Opinion
F081785
12-23-2020
C.P., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Nichole M. Verville for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18CEJ300229-1, 18CEJ300229-2)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary L. Green, Commissioner. Nichole M. Verville for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
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C.P. (mother) seeks extraordinary writ relief (Cal. Rules of Court, rule 8.452) from the juvenile court's September 22, 2020 orders denying her reunification services (Welf. & Inst. Code, § 361.5, subd. (b)(13)) and setting a January 19, 2021 section 366.26 hearing as to her now two-year-old son, D.L.H., and seven-month-old son, D.H. (the children), to select a permanent plan of adoption. Mother contends there was insufficient evidence she was using methamphetamine to support the court's jurisdictional findings and dispositional orders. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In May 2020, mother gave birth to D.H. Neither she nor D.H. were tested for drugs at the time of delivery, however, D.H.'s umbilical cord tested positive for morphine, amphetamine and methamphetamine. Pain medication administered to mother at the hospital could account for the positive results for morphine and amphetamine but not the methamphetamine. By the time the results were reported, mother was at home with D.H. and then 21-month-old D.L.H.
The Fresno County Department of Social Services (department) was familiar with mother, having removed newborn D.L.H. from her and Darrick, the children's father, in August 2018 after D.L.H. was born prematurely and tested positive for marijuana. At that time, mother reported drinking a couple of beers once a month and smoking marijuana throughout her pregnancy. She tested positive once for methamphetamine, explaining she used it when her sister died. However, she told the lactation specialist she used methamphetamine throughout her pregnancy. Darrick also used methamphetamine and marijuana. The juvenile court exercised its dependency jurisdiction over D.L.H. and ordered mother and Darrick to participate in reunification services, including substance abuse treatment. Darrick's reunification services were terminated at the six-month review hearing because he was noncompliant. Mother completed substance abuse treatment and D.L.H. was returned to her custody with family maintenance services. In August 2019, the court granted her sole custody and terminated its dependency jurisdiction.
On May 11, 2020, a social worker attempted to speak to mother at her home about her drug and alcohol use. Mother said her drugs of choice were alcohol and marijuana, not methamphetamine. She refused to drug test and slammed the door on the social worker. The following day, mother telephoned the social worker and denied using methamphetamine during her pregnancy. She last used marijuana in December 2018 and last consumed alcohol when she celebrated D.H.'s birth in May by drinking a beer. She did not believe she had a substance abuse problem. She was not in a romantic relationship with Darrick but maintained contact with him for the children's benefit. During her pregnancy, she and Darrick had an active sex life. He also used methamphetamine daily. She believed methamphetamine in Darrick's ejaculate was ingested by D.H. in utero, which would account for his umbilical cord testing positive for the drug. Mother declined to drug test, stating she was out of town but would test when she returned.
Darrick confirmed his relationship with mother was purely sexual. He did not know if she was using methamphetamine and they were not using it together.
The department took the children into protective custody because of mother's substance abuse history and lack of cooperation and filed a dependency petition under section 300, subdivision (b) seeking their removal. The petition alleged mother's substance abuse problem rendered her unable to adequately care for and protect the children, citing D.H.'s positive toxicology report for morphine, amphetamine and methamphetamine at birth. The children were placed together in foster care.
The juvenile court ordered the children detained in May 2020 and offered mother parenting classes, evaluations and treatment for substance abuse, mental health and domestic violence, and random drug testing. No services were offered to Darrick. The court set a combined hearing in June to adjudicate jurisdiction and disposition (combined hearing).
In the meantime, mother disclosed relapsing with alcohol a week after D.L.H.'s dependency case was closed. Five or six months before, she " 'tested' " methamphetamine three times and had a " 'drink or two' " while pregnant with D.H. She maintained Darrick's ejaculate was the source of methamphetamine detected in D.H.'s umbilical cord.
By June 2020, mother completed a mental health assessment. She met the criteria for treatment and was waiting to be assigned a clinician. She was on a waiting list for a parenting class and scheduled for substance abuse and domestic violence assessments at the end of the month. She had been randomly drug testing since late May and consistently tested negative.
In its report for the combined hearing, the department recommended the juvenile court sustain the petition and deny mother reunification services under section 361.5, subdivision (b)(13) because of her "extensive, abusive, and chronic use of drugs [and] alcohol" and resistance to court-ordered treatment. Mother's substance abuse began in 2007 when she was 20 years old. In March 2007, she was charged with driving under the influence of alcohol (DUI) and was subsequently ordered to complete a three-month alcohol treatment program. In October 2008, she was charged with DUI and driving with a suspended or revoked license and was subsequently ordered to complete an 18-month multiple offender alcohol treatment program. She was also placed on three years of probation. Around that time, mother began using marijuana. Although she claimed her longest period of sobriety was in 2018, she also acknowledged drinking alcohol, smoking marijuana and using methamphetamine that year while pregnant with D.L.H. and in December 2018, four months after his birth. The department also recommended the court deny Darrick reunification services because of his untreated drug abuse following the termination of his reunification services as to D.L.H. (§ 361.5, subd. (b)(10).)
Mother objected to the department's recommendations and a contested combined hearing was scheduled for September 22, 2020. Meanwhile, the children were placed with a maternal relative and mother tested positive for methamphetamine on successive days in July (July 22, 23 and July 29, 30). She also tested positive for creatinine, was unable to produce a urine sample and failed twice to show for a test. On September 8, departmental staff, including substance abuse specialist Cristina Herrera, met with mother to discuss her test results and ongoing relationship with Darrick whom mother claimed was still using methamphetamine. Mother denied using methamphetamine, and said any positive results were from using heartburn medication, Sudafed and a Vicks inhaler. She knew Darrick was using methamphetamine because she found "stuff" on his floor a few times while she was pregnant. She tasted it, thinking it could be methamphetamine, and determined that it was. Mother accused the staff of trying to break up families and said she did her own research on what medications could produce a positive result for methamphetamine. She explained she had diabetes, which she controlled with insulin. Her mother was prediabetic and took Metformin, an anti-diabetic medication, which can yield a positive result for methamphetamine. Mother sometimes mismanaged her food intake and ran out of insulin before she could refill her prescription. When that happened, she took her mother's medication.
The department filed an addendum report, detailing its September 8 meeting with mother. Attached was the umbilical cord drug panel, reflecting the positive result for methamphetamine. The interpretative information section of the report explains the detection of drugs in umbilical cord tissue is intended to reflect "maternal drug use during approximately the last trimester of a full-term pregnancy." The test does not determine the pattern and frequency of the drug used by the mother. The report was reviewed by a doctor on May 10, 2020, who commented that mother reported prior use and stated the results needed to be reported to the department.
The department also provided summaries of mother's visitation with the children from June through August 2020. She was affectionate with them and fully engaged. She sang and talked to them and helped D.L.H. learn his numbers. She regularly told them she loved them.
Herrera testified at the contested combined hearing she has an associate's degree in alcohol and drug counseling and is a certified counselor with an accredited agency. She also had training in how drugs are metabolized in the body and practical experience in assessing a parent's explanation for a positive result. She was trained that drugs are not passed through bodily fluids but must be consumed in order to detect their presence. People consumed substances intravenously and through inhalation and digestion. She did not believe it possible for a fetus to digest methamphetamine through semen exchanged while the mother was having sex with someone who used methamphetamine, and mother did not provide any plausible explanation for the presence of methamphetamine in D.H.'s umbilical cord.
On cross-examination, mother's attorney asked Herrera whether she was taught that it was impossible to be exposed to a drug by bodily fluid. Herrera said, "No." "So in class, we don't talk about what's impossible. What they're teaching us is how it can be consumed into someone's body." She could not answer whether D.H.'s umbilical cord contained methamphetamine because mother ingested methamphetamine, stating "I'm not a doctor. I could not answer any of that."
Herrera testified the four positive test results in July were subjected to confirmatory testing by the lab. She explained that if one of the four yielded a positive result after retesting, she would consider them all positive. Alternatively, they would all be considered negative based on the results of one. This was how she was instructed by the lab to treat the results drawn from samples on consecutive days. Although Herrera did not testify to it, the results came back negative. Counsel argued that fact in closing and the juvenile court declined to consider the results because of it.
Mother testified she was participating in a parenting class, domestic violence counseling and random drug testing. She missed a drug test the day after July 4th because it was a Sunday and the testing lab closed at noon. She tried unsuccessfully to find another testing lab. Another time, she was unable to urinate, and on another occasion her urine was not within the acceptable temperature range. She also tested positive for creatinine but explained she drank a lot of water. She estimated she drank approximately two and a half gallons of water a day, but the amount varied depending on how much she was working. She was remodeling her house and was sweating and thirsty.
Mother last used methamphetamine in 2015 and denied knowingly using the drug while pregnant. She remembered, however, tasting methamphetamine at Darrick's home several times while she was pregnant with D.H. She saw a substance on his floor and on top of the speaker that looked like sugar. She suspected Darrick was using methamphetamine and wanted to find out. She put some of the substance on her tongue and realized it was methamphetamine because of its distinctive taste. She spit it out and did not swallow it. She acknowledged telling the social worker Darrick's sperm may have caused D.H.'s umbilical cord to test positive for methamphetamine. She explained to the social worker she engaged in oral sex with Darrick. She did not know, however, if that caused the positive result. She believed she tested positive for amphetamine in July because she was taking her mother's diabetic medication. She denied telling the social worker she used marijuana and drank alcohol during her pregnancy.
Social worker Deisy Aguirre testified mother admitted to drinking alcohol and using marijuana while pregnant. Mother did not have any positive test results except one in September for creatinine. She had a "no-show" in July and another in August.
In ruling, the juvenile court began by establishing D.H.'s umbilical cord contained morphine and amphetamine even though the focus was on methamphetamine.
It was not until the court had issued its rulings that minors' counsel directed the court's attention to the reporting party's statement included in the detention report that the morphine and amphetamine could be from the pain medication given to mother at the hospital prior to delivery. The court stated the presence of methamphetamine alone would not change its ruling since methamphetamine is such a "hard drug."
The juvenile court sustained the petition, ordered the children removed from parental custody and denied the parents reunification services as recommended. The court found mother lacked credibility and had questionable judgment. As to the positive umbilical cord result, the court found mother did not present any evidence to support her explanation methamphetamine could pass through bodily fluids to the umbilical cord. It believed mother told Aguirre she tried methamphetamine while pregnant and viewed her positive result for creatinine and no-shows as indicators of drug use. The court did not believe mother drank two and a half gallons of water a day. The court also found mother demonstrated poor judgment in using the maternal grandmother's prescription medication and tasting a substance she suspected was methamphetamine. The court found mother has "an extensive, abusive and chronic use of drugs" and resisted court-ordered treatment. The court acknowledged mother had a bond with the children but did not find providing her services would be in their best interest given the judgment and credibility issues it found.
This petition ensued.
DISCUSSION
Mother's trial attorney contends the juvenile court erroneously relied on evidence the umbilical cord tested positive for three drugs, which tainted the court's rulings, resulting in error. She further contends the department failed to prove her explanation for the positive umbilical test result (i.e., transmission by ejaculate) was implausible, pointing out that the department's "expert" (i.e., Cristina Herrera) testified a doctor's opinion was required to make that determination. We find her claims meritless.
As a preliminary matter, the record could not be clearer that the juvenile court's ultimate ruling was based on the presence of methamphetamine alone in D.H.'s umbilical cord. Minors' counsel specifically asked whether the court's ruling would be the same if it were "simply methamphetamine." The court responded, "The answer to that question is yes.... [E]ven if it was methamphetamine alone, my reason would stand."
Further, contrary to counsel's argument, the department did present evidence linking the umbilical cord test to mother's methamphetamine use. The interpretive information accompanying the test result directly links maternal methamphetamine use during the last trimester to the positive result. In addition, the information was reviewed by a doctor, who directed the results be shared with the department. Consequently, the only issue on this writ petition is whether the evidence of mother's methamphetamine use supports the juvenile court's jurisdictional findings and orders removing the children from her custody and denying her reunification services. We conclude that it does. I. Substantial Evidence Supports the Jurisdictional Finding Under Section 300 , Subdivision (b)(1)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (b)(1), as relevant here, when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the ... inability of his or her parent ... to provide regular care for the child due to the parent's ... substance abuse." (Ibid.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' " (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216 (Christopher R.).)
Further, where a child of "tender years" is involved, a finding of parental substance abuse is prima facie evidence of parental inability to provide regular care with a potential for a substantial risk of physical harm. (Christopher R., supra, 225 Cal.App.4th at p. 1220.) This relationship between substance abuse and resulting substantial risk of physical harm rests on the reasonable proposition that children young enough to need constant supervision face an " 'inherent' " and substantial risk of serious physical harm if their caregiving parent is engaged in activity that renders the parent less capable of providing the requisite supervision. (Id. at p. 1216.)
On appeal, the parent has the burden of showing that there is insufficient evidence to support the juvenile court's jurisdictional findings. (In re T.V. (2013) 217 Cal.App.4th 126, 133.) We review the juvenile court's jurisdictional findings using the substantial evidence standard of review, where we determine whether evidence of reasonable, credible and solid value supports the juvenile court's findings. We do not reweigh the evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) " '[W]e must uphold the [trial] court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
The presence in this case of methamphetamine in D.H.'s umbilical cord is prima facie evidence mother's methamphetamine use places him at a substantial risk of harm, but there is more evidence. She failed to show for drug tests in July and August and tested positive for creatinine in September. Given mother's history of drug use, including methamphetamine, the juvenile court could reasonably infer that she was using drugs and attempting to hide it. Such evidence was sufficient to find by a preponderance of the evidence the children were minors described under section 300, subdivision (b).
II. Substantial Evidence Supports the Children's Removal
In order to remove a child from parental custody, the juvenile court must find by clear and convincing evidence there is or would be a substantial danger to the child's physical or emotional well-being if the child were returned home and there are no reasonable means by which the child's physical health can be protected short of removal. (§ 361, subd. (c).)
"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B. (2018) 26 Cal.App.5th 320, 332.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' " (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
On a challenge to the juvenile court's dispositional order, we review the finding to determine whether substantial evidence supports it. We do so bearing in mind that the juvenile court's decision to order a child removed from parental custody must be supported by the heightened standard of clear and convincing evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Mother poses a substantial danger to her children not just because she uses drugs but perhaps more importantly because she denies it. Despite biological evidence she used methamphetamine during her pregnancy with D.H., mother concocted a farfetched scenario to explain how the drug was metabolized by D.H.'s umbilical cord. At no time did she relent in the face of such evidence and admit using methamphetamine in order to get help. Instead, she perpetuated that explanation at the hearing and backed away from it only by saying she was not sure that was the cause. However, she presented a new theory at trial, i.e., that she "tasted" a sugar-like substance she found in Darrick's home that turned out to be methamphetamine. This occurred not once but several times. In her new explanation, mother admitted directly consuming methamphetamine but by accident. It does not explain, however, how someone with her familiarity with methamphetamine would not recognize it or why she had to taste it to determine what it was, knowing that Darrick was a regular user. In any event, the evidence points to mother's intentional use of methamphetamine while pregnant. Evidence of her failure to test and positive result for creatinine point to mother's efforts to conceal continued use.
As children of tender years, D.L.H. and D.H. are at a heightened risk of harm if neglected. Consequently, returning them to mother's care, given her history of substance abuse, ongoing methamphetamine abuse, denial, unwillingness to cooperate with the department and demonstrated poor judgment related to her use of drugs, illicit and prescription, would place their physical well-being at a substantial risk of danger. III. Substantial Evidence Supports the Denial of Reunification Services Under Section 361 .5, Subdivision (b)(13)
When the juvenile court removes a child from the parents' custody, it must provide reunification services for the child and the child's parents unless it finds any one of the exceptions enumerated in section 361.5, subdivision (b) applies to the parents. (§ 361.5, subds. (a) & (b).) These exceptions to the general rule reflect a legislative determination that attempts to facilitate reunification in some cases are futile and do not serve the child's interests. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202.) When the juvenile court determines by clear and convincing evidence that one of the exceptions exists, it is prohibited from providing reunification services unless it finds by clear and convincing evidence that reunification is in the child's best interest. (§ 361.5, subd. (c).)
We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence, bearing in mind the juvenile court was required to apply the heightened clear and convincing evidence standard of proof. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
Section 361.5, subdivision (b)(13) authorizes the denial of reunification services, as relevant here, when the court finds by clear and convincing evidence "[t]hat the parent ... has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention...."
Subdivision (b)(13) of section 361.5 also applies to a parent who has failed or refused to comply with a program of drug or alcohol treatment described in a case plan on at least two prior occasions, even though the programs identified were available and accessible.
Mother concedes the statute applies insofar as she was previously court ordered to participate in substance abuse treatment. Further, she does not challenge evidence of her history of alcohol abuse and marijuana use. Rather, she contends the juvenile court's assessment of her drug use relied on its misstatement of the evidence the umbilical cord contained amphetamine and morphine. Therefore, its application of the statute cannot stand. We disagree.
We addressed at the outset the clarity of the juvenile court's rulings as they relate to the umbilical cord results. We said the court relied only on the positive finding for methamphetamine. We have also discussed at length the evidence demonstrating mother was using methamphetamine during her pregnancy with D.H. and in the months preceding the dispositional hearing. There is also evidence she was drinking alcohol and using marijuana during her pregnancy with D.H. and using marijuana while pregnant with D.L.H. Under the circumstances, the court could find mother has "an extensive, abusive and chronic" use of alcohol and drugs and resisted court-ordered treatment by using alcohol, marijuana and methamphetamine while pregnant with D.H. Further, the court could properly find based on the children's young ages and mother's history of drug use and prior court intervention that it was not in their best interest to provide her reunification services despite the loving relationship she shared with them.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.