Opinion
F080075
05-27-2020
In re K.T., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CHRISTOPHER T., Defendant and Appellant.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 19CEJ300194-1)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Leanne LeMon, Commissioner. Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Snauffer, J.
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Christopher T. (father) appeals from the juvenile court's dispositional orders removing his one-year-old son, K.T., from his custody and ordering him to participate in parenting, substance abuse and mental health services. Father contends the order removing his son from his physical custody was not supported by evidence the removal was necessary to avoid a substantial danger to his son's physical health or emotional well-being. (Welf. & Inst. Code, § 361, subd. (c)(1).) He also contends the juvenile court abused its discretion in ordering him to participate in reunification services. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
On May 21, 2019, social worker Jennifer Moore from the Fresno County Department of Social Services (department) was assigned a crisis referral regarding newborn K.T. It was reported his mother, Amy (mother), disclosed in January 2019 to having binged on methamphetamine and alcohol during her first trimester. The family was under investigation because a half sibling, then 23-month-old J.F., was found a month earlier floating in the family pool. At the time of K.T.'s birth, J.F. was in an unresponsive state in the pediatric intensive care unit. He did not have any brain activity and the plan for his long-term care was uncertain. Mother also had an 11-year-old son (J.T.'s full sibling) who was in his father's care. His father was granted full legal and physical custody after divorcing mother. She was not granted visitation.
Moore met Grace Garcia, mother's nurse, at the bedside. Garcia said mother had been appropriate with K.T. and there were no notable concerns. Garcia stated a toxicology screen was pending.
Mother said father was planning to sign the birth certificate and she had baby supplies at home, including a crib, car seat, diapers and clothing. Mother denied disclosing methamphetamine and alcohol use during her first trimester, however, confirmed using both until she found out she was pregnant at three weeks gestation. She denied recent use. She understood the concern that she was under the influence of alcohol during a recent visit with J.F., but said she had used hand sanitizer. Regarding father's substance abuse, she initially stated, " 'I can't speak for him,' " then said he used " 'every once in a while, I guess.' " She said father was at work, employed as a mechanic.
The following day, Moore received a telephone call from the reporting party, stating K.T. tested positive for methamphetamine. Social worker Amy Ford visited mother at the hospital. Mother again denied using methamphetamine or alcohol in January 2019. She said she last used in September 2018 and stopped using when she found out she was pregnant. Ford informed mother K.T. tested positive for methamphetamine. Mother denied using drugs or alcohol and said it must be a false positive. Mother asked why she was not tested. Father entered mother's hospital room and was also informed about K.T.'s positive result for methamphetamine. Ford explained the department's concern that the parents were using drugs. Father denied actively using any drugs and declined to drug test. He said he had seven- and eight-year-old sons who lived with their mother. He had never been investigated by child protective services (CPS). Asked whether he was concerned K.T. tested positive for methamphetamine or if he had any knowledge of mother using drugs, father said he never noticed mother using drugs and was not concerned. He was upset K.T. was tested without his knowledge or consent. Asked whether he had any support he would like to utilize as a safety plan until a plan could be made, father stated he had his brothers and father, however, would not utilize them as support and no one was going to stop him from taking K.T. home.
Ford explained K.T.'s positive result for methamphetamine signified mother used the drug. Mother admitted prior use of methamphetamine on weekends when she drank alcohol but did not believe she had a substance abuse problem. She was willing to test weekly for the department to prove that she was clean and to consider outpatient substance abuse treatment. Ford asked to see the baby supplies. Mother said she could see them at the home when she was released. Mother stated father had been staying at his father's home and they were not speaking. Ford attempted to confirm that with father but he said it was personal and he was not going to answer that question. He said he was not worried about CPS and said no one was taking K.T. from him. Ford explained a team decision making (TDM) meeting would be conducted to address a safety plan. Father stated he did not "give a f***" and would not attend. Ford reported that his eyes appeared to be glossy and red.
Ford spoke to medical social worker Lung Vang who said mother was asking to be drug tested, claiming K.T.'s result was a false positive. Vang stated it was unlikely the result was a false positive and said she would ask the nurse if mother could drug test. The nurse said mother was offered a toxicology screen the day before but declined.
The following day, Ford contacted Detective Justin Williamson of the Fresno Sheriff's Office who worked on the investigation of J.F.'s near drowning. Ford explained K.T. tested positive for methamphetamine and requested assistance placing him on a protective hold. At the hospital, Ford conferred with medical social worker Pachia and the detectives. Pachia said mother was originally pregnant with twins and one of the twins died during her first trimester. Mother disclosed at that time that she used methamphetamine and alcohol during her first trimester. Pachia explained that was the reason K.T. was tested. Pachia also expressed concern that father was using drugs because his eyes were red and glossy the previous day and he refused to drug test. The medical staff observed the parents slept a lot and father's eyes were very red every day.
Detective Williamson explained to the parents a protective hold was being placed on K.T. because he tested positive for methamphetamine. Mother said she did not use methamphetamine and did not understand. Father said K.T. was going home with him and no one was going to stop him. Williamson told him he would be arrested if he tried to leave with K.T. Father left the room, stating he was going to take K.T. He walked the halls, yelling at hospital staff and stating he was leaving with K.T. Security was called. Ford asked the nurse why mother was not drug tested. The nurse explained that at approximately 4:00 p.m., the day before, she asked mother for a urine sample. Mother provided a urine sample much later in the evening. The nurse on duty did not send the sample for testing, concluding mother did not produce it because she was still bleeding from the delivery and the sample appeared free of blood.
Father continued to cause commotion, disagreeing with the detectives and nurses. The nurse took K.T. to the nursey to remove him from the situation. Security escorted father out of the hospital because he was threatening to take K.T. and he tried to intimidate the social worker. Security also escorted the social worker with K.T. to the county van.
The following day, a TDM meeting was conducted with the parents, social workers and maternal relatives. Father disagreed with the meeting ground rules, refused to sign the TDM form and asked to take K.T. home. He was escorted to the lobby by security after he refused to participate in the meeting. There, he accused the receptionist of kidnapping his baby and threatened to report her.
The social workers expressed their concern that K.T. tested positive for methamphetamine yet mother denied using drugs while pregnant, that there was an open investigation into K.T.'s sibling, J.F., that mother has a prior CPS history of alcohol use and was offered family maintenance services but did not participate, that mother reported having postpartum depression, father was aggressive and uncooperative, and there was a history of domestic violence. Mother requested a copy of K.T.'s toxicology screen. She was told to request a copy from the hospital.
The maternal grandmother asked if it was possible K.T. tested positive because mother was around the drug. It was explained the only way K.T. could test positive was if mother consumed the drug. The maternal grandmother was not aware of any drug use but was concerned about mother's mental health. She was also concerned about father's attitude and no longer allowed him in her home. She was not able to take custody of K.T. and did not know of any other relatives who could.
As a result of the TDM meeting, the social workers decided to file a dependency petition on K.T.'s behalf seeking his removal. Family maintenance services were not offered because mother failed to comply in the past and father was being uncooperative. Mother said her plan for J.F. was to transfer him to a long-term care facility because she could not care for him at home. He was ultimately placed in a subacute care facility in San Bernardino.
The department filed a dependency petition, alleging K.T. came within the juvenile court's dependency jurisdiction under section 300, subdivision (b)(1) because mother's substance abuse placed him at a substantial risk of suffering serious physical harm or injury and father failed to protect him. The petition alleged two counts, one as to each parent. Count b-1 alleged K.T. had a positive toxicology for "amphetamine" at birth and mother reported using methamphetamine and alcohol during her first trimester. Count b-2 mirrored count b-1 with the additional allegations the parents maintained a relationship and resided in the same home and father knew or reasonably should have known of mother's ongoing drug use during her pregnancy.
The department's allegation K.T. tested positive for amphetamine yet repeatedly referred to mother's methamphetamine use is an issue raised at the dispositional hearing and on this appeal.
The department recommended the juvenile court detain K.T. and offer the parents services to reunify with K.T. who was in foster care. A copy of the toxicology report showing K.T. tested positive for amphetamine was not attached to the detention report.
The parents objected to the juvenile court detaining K.T. at the detention hearing and father challenged the court's assumption of jurisdiction. His attorney represented that father did not live with mother but lived with his parents and he had baby supplies. He planned to ask for custody of K.T. The court issued a temporary order detaining K.T. and set a contested detention and jurisdictional hearing for June 17, 2019. The court denied father's request for placement based on his uncooperative behavior and ordered two one-hour supervised visits a week for the parents.
Prior to the contested hearing, father met with Ford and apologized for his behavior at the hospital, explaining he had been under a lot of stress because of J.F.'s medical needs. He denied living with mother, stating he lived with his parents and stayed with mother for two days at a time. He did not know she was using drugs, adding that she hid it very well from him. He asked if his parents' home could be assessed on June 3, 2019. Ford noted in her report to the court that father drug tested on May 31, 2019, with negative results.
Mother's attorney called Ford, the emergency response social worker, to testify at the contested hearing on June 17, 2019. She saw the toxicology report that showed K.T. tested positive for methamphetamine at birth. She had a copy of the results but did not know if it had been provided to the court. She did not know if any of the medication given to mother at the hospital would have caused a positive test result. She did not know if the sample taken from K.T. was retested to rule out a false positive. Since then, mother tested twice, testing negative both times. The positive toxicology taken at K.T.'s birth was the only evidence Ford had to support her conclusion that mother was using drugs.
Ford believed father lived with mother because mother said he was living there when the agency responded to the home after the near drowning of J.F. When she received the referral about K.T., Ford went to the family home to speak to father. The maternal grandfather answered the door. He said father was not home but gave no indication that he did not live there. When she subsequently interviewed father at the hospital, he said he lived with his parents. However, she made three attempts to assess his parents' home but father was not home and he did not return her phone calls. Ford had no evidence mother was actively using drugs prior to K.T.'s birth. Father never said he was aware mother was using methamphetamine or drinking alcohol while she was pregnant. Ford recalled mother telling a social worker something to the effect that father used drugs "every other day or every once in a while." When told K.T. tested positive for methamphetamine, he was not concerned about K.T. but was more concerned that the baby was tested without his knowledge.
Mother testified she was surprised when K.T. tested positive for methamphetamine. She denied telling anyone prior to his birth that she used methamphetamine or alcohol. She was administered pain medication prior to K.T.'s birth. Her labor was induced and during the process the medical staff decided to perform an emergency caesarian section but then decided against it. She was given an epidural and other pain medication. She denied she and father were in a committed exclusive relationship, explaining they were friends. They lived together for approximately six months as roommates over a year ago.
Social worker Jennifer Moore received the report that mother disclosed using methamphetamine and drinking alcohol during the first trimester of her pregnancy. Mother denied making the disclosure but confirmed its veracity. She did not know what type of drugs were administered during mother's delivery.
The juvenile court found prima facie evidence to order K.T. detained, granted the parents reasonable supervised visitation and offered the parents parenting, substance abuse and mental health services. The court sustained the allegations in the petition, adjudged K.T. a dependent child under section 300, subdivision (b)(1) and set the matter for a dispositional hearing. The hearing was continued and conducted as a contested hearing on August 19, 2019.
Meanwhile, father relocated to a home in Chowchilla and asked to have the case transferred to Madera County. Although the parents denied it, family members reported they were living together. The department was aware that mother stayed in a "Ronald McDonald" house in San Bernardino to be near J.F.
Father asked that K.T. be returned to his custody and objected to participating in reunification services.
The department recommended the juvenile court remove K.T. from parental custody and provide the parents reunification services. It reported they consistently visited K.T. and interacted appropriately with him. There were no reports that they appeared to be under the influence of any substances. They completed substance abuse assessments and were not referred for treatment. They enrolled in random drug testing and mother tested positive for opiates on May 24, 2019, and did not show twice in July. Father tested negative in May and on two occasions in July but then failed to appear twice in July. They were scheduled for a parenting class on August 27 and their referrals for a mental health assessment were accepted by a service provider on June 21, 2019. Despite their participation in services, the department did not believe K.T. could be returned to their custody because of their history of substance abuse. In addition, they were an intact couple and the department was unable to confirm father's address.
The juvenile court conducted the dispositional hearing on August 19, 2019. Father's position at the hearing was that K.T. could be safely returned to his custody. Father's counsel called Susan Quesada, social worker supervisor, to address the department's recommendation to remove K.T. from father's custody. She cited father's history of methamphetamine use, erratic behavior at the hospital and the department's inability to assess his home for placement. She acknowledged father was not referred for substance abuse treatment but testified that the evaluator's recommendation for treatment was based on the parent's report of drug usage. Father told the evaluator he did not use drugs. She also conceded that he did not test positive for drugs on the random drug tests but was inconsistent and missed several test dates. In addition, the nursing staff observed that his eyes always appeared glossy and red and he and mother slept a lot. He reacted erratically to K.T.'s removal at the hospital, yelling at the hospital staff and pacing the hallway. Security had to accompany the social worker and K.T. to the county van for their protection. Father was also uncooperative in getting his home assessed and the department believed he and mother remained an intact couple. The department was willing to work with them as a couple to reunify with K.T. but they would not clarify the nature of their relationship. Father would only say their relationship was "complicated."
Father denied living with mother, testifying he lived with a married couple. He and mother were friends and visited K.T. together. He understood that if K.T. were placed in his custody, he could not live with mother. He believed she would respect the need to stay away. He started a new job two weeks before the hearing and worked from 7:00 a.m. to 7:00 p.m., six days a week. He scheduled an appointment with the social worker to assess his home the Friday before the hearing but had to reschedule because of a work conflict. An appointment was scheduled for the day after the hearing.
Father reacted angrily at the hospital because he was taken by surprise when Ford told him his son was going to be removed. He had never been involved with CPS and did not believe he had done anything to warrant removing his son. They told him K.T. tested positive for methamphetamine and he asked mother about it. She denied using the drug and he believed her. He did not know mother used methamphetamine while she was pregnant. He acknowledged missing some drug tests, explaining he was working and did not believe he needed to drug test. He never had a drug problem or "even really used drugs." He did not use or had ever used methamphetamine. His eyes may have been red and glossy because he had allergies. He did not believe he needed to take a parenting class because he successfully parented two children from another relationship. All he needed was to take care of K.T. and protect him. He had all the baby supplies and furniture to care for K.T. and family members who could care for him while he was at work. He had no doubt he could provide K.T. a safe home.
On cross-examination, father was pressed on where he lived when K.T. was born. He testified he was living with his father at that time. He did not know why his father would say he lived there occasionally. He did not know whether mother and K.T. tested positive for methamphetamine because he was not shown any test results. He denied ever using methamphetamine or any other drugs, except marijuana in high school. He believed he and mother were being more carefully watched because of J.F.'s case.
During a break, county counsel obtained a copy of K.T.'s toxicology report, which reflected he tested positive for amphetamine. The court stated that any statements referring to "methamphetamine" would be understood to refer to the positive result for "amphetamine."
The juvenile court exercised its dependency jurisdiction over K.T., ordered him removed from parental custody and ordered the parents to complete a parenting program, substance abuse and mental health assessments and participate in random drug testing.
In ruling, the juvenile court expressed its concerns about the parents' truthfulness about drug use in the home during mother's pregnancy and doubted father understood the "actual issue" in the case. The court was concerned about father's lack of cooperation with the department and his belligerent behavior at the hospital. The court was also concerned father was more focused on K.T.'s removal than his exposure to drugs in utero. The court did not find father's denial of drug use credible and believed he and mother were in a relationship during her pregnancy. The court found by clear and convincing evidence that placing K.T. in father's custody would place him at a substantial risk of harm and that there were no reasonable means to protect K.T. other than removing him from parental custody. The court set the six-month review hearing for February 3, 2020.
DISCUSSION
I. Removal
Father contends the juvenile court's removal order was error because there was insufficient evidence K.T. would be at substantial risk of harm if placed in his care. We disagree.
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)(1).)
"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.) "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.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (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 evidence 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.) We conclude substantial evidence supports the juvenile court's removal order.
Father posed a substantial risk to K.T.'s physical safety because he and mother were methamphetamine users and he refused to take measures to protect K.T. Although he denied being a drug user, the juvenile court did not find him credible in light of evidence that he was; i.e., mother's statement he used methamphetamine occasionally and the medical staff's observations he slept a lot and often had red, glossy eyes. Father also posed a substantial risk of harm to K.T. because, instead of working with the department to formulate a safety plan to place K.T. in his custody, he was belligerent and uncooperative.
Father contends the only evidence of risk the department presented was K.T.'s positive result for amphetamine, which he argues was insufficient. Specifically, he contends, the department repeatedly and mistakenly represented the positive result as "methamphetamine" rather than "amphetamine" and failed to rule out medication mother was administered as the source of the amphetamine in K.T.'s system. We find no merit to father's contentions. First, he fails to show there is a material difference between amphetamine and methamphetamine in terms of the risk of harm they pose to a fetus in utero since they are both controlled substances. Further, counsel never raised this discrepancy prior to the dispositional hearing. As a result, no distinction was made between mother's use of methamphetamine and K.T.'s exposure to amphetamine and the parties proceeded as if they were causally related. In addition, there was no confusion surrounding the allegation of amphetamine exposure and references to methamphetamine use, certainly not for the juvenile court who clarified the matter yet sustained the allegation and issued the removal order. As for ruling out medication as the source of the amphetamine, the department inquired whether mother was administered medication that could yield that result and was told she was not. Mother's attorney could have but did not produce such evidence.
Further, even though it was mother's methamphetamine use that triggered the department's involvement, the department was willing to work with father to establish a safe home for K.T. However, he refused to acknowledge mother's drug use and allow the department to assess his home for placement. Consequently, he eliminated the only alternative that would have allowed him custody of K.T. and gave the court no choice but to order K.T.'s removal.
II. Reunification Services
Father contends there was insufficient evidence to warrant ordering him to complete a parenting class, substance abuse and mental health assessments and participate in random drug testing. We disagree.
At a dispositional hearing, the juvenile court may order reunification services to facilitate reunification between parent and child. As stated above, the court has broad discretion to determine what would best serve and protect the child. "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.] Section 362, subdivision (c) states in pertinent part: 'The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the minor is a person described by Section 300.' " (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007.)
We conclude the juvenile court offered father services designed to remedy the problems requiring K.T.'s removal. Although he insists there was no evidence he used drugs, the court did not find him credible based on evidence that he did. Having so found, the court was justified in ordering him to complete a substance abuse assessment and participate in random drug testing. The court was also justified in ordering him to complete a mental health assessment based on his erratic behavior and a parenting class based on his overall denial of drug use in the home.
Contrary to father's position, In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.) does not convince us to reverse the dispositional order. Drake M. is unavailing because it pertains to a jurisdictional finding, not a dispositional order requiring a parent to participate in a family reunification plan. In Drake M., the dependency court found jurisdiction over a child whose father smoked marijuana legally, pursuant to a prescription for medical purposes. Family maintenance services were ordered for the father, requiring him to submit to random drug testing and to attend parenting courses and drug counseling sessions. (Id. at pp. 760-762.) The appellate court reversed the jurisdictional finding as to the father, concluding there was insufficient evidence his legal use of marijuana constituted drug abuse under section 300, subdivision (b). (Id. at pp. 768, 771.) Without such evidence, the court further concluded the juvenile court's order requiring him to participate in drug testing and counseling could not reasonably be designed to address the mother's substance abuse and mental illness, which were the remaining conditions from which dependency jurisdiction was obtained. The court also concluded there was nothing in the record showing that the father needed parenting classes. Rather, the record showed that Drake was well cared for by him. Thus, the court concluded, the juvenile court abused its discretion in ordering the father to participate in random drug screens, drug counseling and parenting classes. (Id. at pp. 770-771.) Here, there is no evidence that the services father was required to complete were unnecessary or unsuitable.
We find no error.
DISPOSITION
The juvenile court's orders are affirmed.