In re Allison F.

 

 

 

 

Filed 1/27/14  In re Allison
F. CA2/4

 

 

 

>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

 

 

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 

 
>

In re ALLISON F., a Person Coming Under the Juvenile Court Law.	B249261
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   PAULA F.,               Defendant and Appellant.	(Los Angeles County       Super. Ct. No. CK93184)

 

            APPEAL
from orders of the Superior Court of Los
Angeles County, Terry T. Truong, Referee.  Affirmed.

            M.
Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and
Appellant.

            John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel and Kim Nemoy, Principal Deputy County Counsel
for Petitioner and Respondent.

 

 

            Paula F. challenges jurisdictional
and dispositional orders made by the juvenile court in this dependency
proceeding in which her infant daughter, Allison F., was declared a dependent
of the court.  We find substantial
evidence of risk to the child to support jurisdiction and no abuse of
discretion in the disposition order. 

FACTUAL AND PROCEDURAL SUMMARY

            Mother
Paula F. has two children, Richard C. (born in December 2007) and his
half-sister, Allison F., (born in January 2013).  Mother was 14 years old when she became pregnant
with Richard.  In June 2012, the
dependency court sustained a petition brought by the Department of href="http://www.sandiegohealthdirectory.com/">Children and Family Services
(department) finding Richard to be a dependent child because of a history of
domestic violence between mother and the child’s father, a six-year history of
drug abuse by mother, and the father’s history of substance abuse.  Richard was removed from mother’s care.  Mother entered a six-month inpatient substance
abuse program in May 2012, but did not comply with the program and did not
complete it.  She claimed to have visited
Richard each Tuesday while at that program, but did not do so.  She also did not successfully complete an
outpatient program, and she failed to appear for seven out of twelve random
drug tests from June to December 2012.  

            A
children’s social worker conducted an assessment and concluded that the risk of
future maltreatment of Allison was high based on mother’s history of drug use,
the age of the child, and the case involving Richard.  But since mother had been admitted to the
Flossie Lewis residential program in January 7, 2013, shortly
before Allison was born, the department recommended that Allison remain in
mother’s care contingent on mother remaining in her current residential href="http://www.sandiegohealthdirectory.com/">treatment program.  The department determined that court
intervention was needed to ensure case plan compliance.  Mother was uncertain which of two men had
fathered Allison.  

            A
petition was filed by the department under Welfare and Institutions Code
section 300,href="#_ftn1" name="_ftnref1"
title="">^[1] subdivision (b), alleging
that Allison is a dependent child because mother’s unresolved history of drug
use rendered her unable to supervise or protect the child, and because the
half-sibling Richard was currently a dependent of the court due to mother’s
drug abuse.  The juvenile court released
Allison to mother’s custody on the condition that mother remain in her program
and test clean.  

            The
jurisdiction/disposition report for
the March 11, 2013 hearing summarized a new interview with mother in February
2013.  She admitted the allegations were
true because she was using marijuana and methamphetamines.  Mother also admitted that she did not
complete the residential substance abuse program she was in before giving birth
to Allison, and that she refused an offer to sign a new three-month contract
with that program.  She had planned to participate
in an outpatient program, but attended only once before Allison’s birth.  Mother stated that she was very happy in her
present residential program, which was more professional and organized than the
previous program.  She said the last time
she had used methamphetamines was in April 2012.  

            A
counselor at mother’s current residential program told the children’s services
worker that mother was attending and participating in twice daily group
sessions on weekdays and weekly counseling session.  Although mother initially had a difficult
time adjusting to the schedule, she had improved significantly and was doing
well.  Mother was drug testing with
negative results.  Mother had been
selected for random drug testing three times after the petition as to Allison
was filed.  She did not test twice, and
tested negative once.  

            The
department recommended that Allison be declared a dependent under section 300
subdivision (b) and ordered to reside at mother’s home, on the condition that mother
remain in her drug rehabilitation program and continue to test clean.  Family maintenance services were recommended
for mother and Allison.  The department
also recommended that mother be ordered to participate in a program of parent
education, substance abuse, and individual counseling, and that she submit to
random drug testing.  

 

 

            In February 2013, a counselor at
mother’s inpatient substance abuse program wrote a letter stating that mother
was in the primary phase of treatment. 
She was participating in numerous weekly groups and classes, such as relapse
prevention, feelings, boundaries, life skills, smoking cessation, 12 & 12
recovery, anger management, parenting, healing and trauma, big book study,
addition education, morning meditation, art/music therapy, adult children of
alcoholics and domestic violence.  Mother
was attending daily 12-step meetings and was scheduled to work toward maintaining
a sponsor in the coming weeks.  Mother
met with the counselor weekly.  She was
showing dedication and willingness to reach long term sobriety for newborn Allison.  The counselor wrote that mother showed
tremendous progress in the preceding three weeks.  

            The
jurisdiction/disposition hearing was held in March 2013.  No testimony was taken.  The court considered the detention report,
the jurisdiction/disposition report, and the progress letter from mother’s
counselor.  Counsel for mother requested
dismissal of the petition, arguing that mother had remained sober since April
2012 with clean tests since then, had made progress in her program, and was in current
compliance.  Counsel for Allison asked
the court to sustain the petition because of mother’s admitted substance abuse issues
and failure to complete her earlier program.  The attorney argued that, while mother tested
negative when she submitted to tests, she was a no-show for testing on November
2 and December
17, 2012 and on January 11 and 30, 2013.  Counsel for minor submitted on the issue of
Allison’s placement in mother’s care because mother was currently in a program.
Counsel for the department joined in this argument.  

            The
court found by a preponderance of the evidence that count (b)(1) of the
petition was true as amended to delete the sentence that had stated mother had
failed to regularly participate.  As
amended, the sustained count read:  “The
child, Allison [F.’s] mother, Paula [F.], has an unresolved history of illicit
drug use, including use of methamphetamine and marijuana.  On 4/16/12 the
mother was under the influence of illicit drugs while the child’s sibling,
Richard [C.], was in the mother’s care and supervision.  The child’s sibling is a dependent of the
Juvenile Court due to the mother’s illicit drug use.  The mother’s unresolved history of illicit
drug use places the child at risk of harm.”  

            The
court declared Allison a dependent within section 300, subdivision (b).  She was ordered to remain placed with mother
on condition that mother was in a drug program. 
The department was ordered to provide family maintenance services to
mother, including a drug rehabilitation program with aftercare, random or
on-demand weekly testing, and individual counseling, which could be a component
of the drug program.  Mother was warned
that Allison could be immediately detained if mother left the drug program.  The court admonished mother that a missed test
was considered to be a dirty test.  Mother
filed a timely appeal from the jurisdiction order.  

DISCUSSION

I

            Mother
argues the court erred in finding Allison came within dependency jurisdiction
because there was no evidence of current or future risk of harm to her.  Mother contends that while she was concerned
about her ability to appropriately care for Richard, there was no evidence of
actual physical harm or abuse as to him. 
She cites maternal grandmother’s statement that she believed it likely
mother had reported herself to the department in a desire to get help.  Mother acknowledges her failure to make
progress while receiving services in Richard’s case, which was filed in April
2012, less than a year before the petition was filed as to Allison in January
2013.  She was pregnant with Allison
during most of that period.  Mother
explained that she was only 15 when she gave birth to Richard, had experienced
family turmoil, had been kicked out of her mother’s home when she was 13, had
not completed high school and had several relationships with men at an early
age.  

            Mother
contends that she has demonstrated a new commitment to sobriety and dedication
to Allison by entering a residential treatment program.  She also argues that Allison is a healthy,
drug-free baby and that there is no evidence that she has not been well cared
for.  

            “At
the jurisdictional hearing, the dependency court’s finding that a child is a
person described in section 300 must be supported by a preponderance of the
evidence.  [Citations.]  We review the dependency court’s
jurisdictional findings for substantial evidence, and review the evidence in
the light most favorable to the dependency court’s findings and draw all
reasonable inferences in support of those findings.  [Citation.]  â€˜Section 300, subdivision (b) provides a basis
for . . . jurisdiction if the child has suffered, or there is a
substantial risk the child will suffer, serious physical harm or illness caused
by the parent’s inability to provide regular care for the child because of the
parent’s mental illness, developmental disability or substance abuse.’  [Citation.]” 
(In re John M. (2013) 217
Cal.App.4th 410, 418.)

            “A
jurisdictional finding under section 300, subdivision (b) requires ‘(1)
neglectful conduct by the parent in one of the specified forms; (2) causation;
and (3) “serious physical harm or illness” to the minor, or a “substantial
risk” of such harm or illness.’  [Citation.]  ‘Subdivision (b) means what it says.  Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence
indicating that the child is exposed to a substantial
risk of serious physical harm or
illness.’  [Citations.]”  (In re
John M., supra, 217 Cal.App.4th at
p. 418.) 

            Mother
argues we may not presume a substantial risk of current or future harm
sufficient to warrant jurisdiction under section 300, subdivision (b) based on
evidence of her substance abuse problem alone. 
She cites In re James R. (2009)
176 Cal.App.4th 129 which held: 
“Although evidence of past conduct may be probative of current
conditions, the court must determine ‘whether circumstances >at the time of the hearing subject the
minor to the defined risk of harm.’  (>In re Rocco M. [1991] 1 Cal.App.4th
[814,] 824; see In re Janet T. (2001)
93 Cal.App.4th 377, 388.)  Evidence of
past conduct, without more, is insufficient to support a jurisdictional finding
under section 300.  There must be some
reason beyond mere speculation to believe the alleged conduct will recur.  [Citation.]” 
(Id. at pp. 135–136.)

            In
addition, mother relies on In re David M.
(2005) 134 Cal.App.4th 822, in which the appellate court reversed a
jurisdictional finding because there was insufficient “evidence of a specific,
defined risk of harm to [the minors] resulting from mother’s or father’s mental
illness. . . .”  (>Id. at p. 830.)  In that case, the mother’s mental and
substance abuse problems and the father’s mental problems were not tied to
actual harm to the minors.  (>Id. at p. 829.)  The parents were raising an older child in a
clean, tidy home.  The mother had tested
negative 18 times and all missed tests were excused.  The child welfare agency conducted no new
investigation, relying instead on an investigation related to an older
half-sibling more than three years earlier. 
(Id. at p. 830.)

            But
here, as the department argues, there was additional evidence to support
jurisdiction.  Less than a year before
the petition was filed as to Allison, a petition was filed as to her older
half-sibling Richard.  That petition was
sustained based on findings that he was at risk of harm because of substance
abuse by both parents and a history of domestic violence.  Mother did not comply with the reunification
program ordered in Richard’s case. 

            In
In re Drake M. (2012) 211 Cal.App.4th
754 (Drake M.), a nine-month-old
infant was referred to the department based on allegations that father used
marijuana for a medical condition pursuant to a medical marijuana prescription,
and that mother had an extensive and unresolved history of drug abuse, mental
illness, and prior department involvement with other children.  Mother was not a party to the appeal so the
appellate court did not consider the facts relating to her.  (Id.
at p. 758.)  The court ruled that “[t]he
trial court is in the best position to determine the degree to which a child is
at risk based on an assessment of all the relevant factors in each case.”  (Id.
at p. 766.)  It concluded that the case
fell within the group of cases under section 300, subdivision (b) which involve
“children of such tender years that the absence of adequate supervision and
care poses an inherent risk to their physical health and safety. . . .[Citations.]”  (Id.
at p. 767.)  In such cases, “the finding
of substance abuse is prima facie evidence of the inability of a parent
. . . to provide regular care resulting in a substantial risk of
harm.”  (Ibid.)  Since the child in >Drake M. was only 14 months old, the
appellate court concluded that the department “needed only to produce
sufficient evidence that father was a substance abuser in order for dependency
jurisdiction to be properly found.”  (>Ibid.) 
It failed to do so.  (>Ibid.)

            This
case falls within the group of cases involving a risk of harm to a child of
tender years posed by a parent’s substance abuse.  Allison is an infant.  Mother, an admitted substance abuser, had an
older child in dependency proceedings and had not complied with the program as
to him.  She was demonstrating much
greater success in her new inpatient program, but had been in it only two
months by the time of the jurisdictional hearing.  She continued to miss drug tests during that
period.  Allison was doing well, but this
was under closely supervised circumstances. 
On this record, we find substantial evidence to support the trial
court’s jurisdictional order. 

II

            Mother
also challenges the court’s dispositional order, arguing that even if the
evidence warranted sustaining the petition, the court could have ordered
services under the informal supervision of the department under section 360,
subdivision (b) without declaring the child a dependent of the court.href="#_ftn2" name="_ftnref2" title="">^[2]  She suggests that in the
event she failed to cooperate with informal services, the department could file
a petition under section 332 and 360, subdivision (c)href="#_ftn3" name="_ftnref3" title="">^[3].  She acknowledges that the
court does not have direct authority to oversee the services or the family
under informal supervision by the department. 
(In re Adam D. (2010) 183
Cal.App.4th 1250, 1259.)  

            “‘At
the dispositional hearing, the [dependency] court must order child welfare
services for the minor and the minor’s parents to facilitate reunification of
the family.  [Citations.]  The court has broad discretion to determine
what would best serve and protect the child’s interest and to fashion a
dispositional order in accord with this discretion.  [Citations.] 
We cannot reverse the court’s determination in this regard absent a
clear abuse of discretion. 
[Citation.]  [¶] The reunification
plan “‘must be appropriate for each family and be based on the unique facts
relating to that family.’”  [Citation.]’  [Citations.]” 
(Drake M., >supra, 211 Cal.App.4th at p. 770.)

            Mother
argues that there is no evidence that even the apparently “benign” maintenance
services ordered here were necessary to protect Allison.  We disagree. 
As discussed, mother admitted a seven-year substance abuse history and
had failed to successfully complete treatment as ordered in the dependency case
involving Richard.  She had a difficult
beginning in the new residential program in which she was residing with
Allison.  But with close supervision and
intensive services, she and Allison were doing well.  On this record, we find no abuse of the
court’s discretion in declaring the child a dependent of the court and ordering
services pursuant to this finding. 

 

DISPOSITION

            The
court’s jurisdiction and disposition orders are affirmed. 

            >NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    EPSTEIN,
P. J.

We concur:

 

 

 

 

            WILLHITE, J.                                                MANELLA, J.