Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK78971 Debra Losnick, Juvenile Court Referee.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Objector and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
D.C. (mother) appeals from jurisdictional and dispositional orders made by the juvenile court pursuant to Welfare and Institutions Code section 395 with regard to her infant son, A.K., who was born in June, 2009. The juvenile court removed A.K. from the custody of mother, who was then 24 years old, based on her history of illicit drug use, which periodically rendered her unable to provide regular care to, and supervision for, A.K., and her substance abuse, which endangered A.K. and placed him at risk of harm. The juvenile court declared A.K. a dependant of the court and removed him from mother’s custody.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The identity of the father was unknown.
On appeal, mother contends there was not substantial evidence to support the juvenile court’s jurisdictional and dispositional orders. Mother also argues the juvenile court failed to consider other reasonable means to protect A.K. without removal from mother and failed to consider and balance the harm from removing the child against the harm the removal was intended to prevent. In addition, mother argues the dispositional orders requiring her to participate in counseling to address case issues, parental education, and a drug rehabilitation program, were “inappropriate.” We affirm.
BACKGROUND
Then two-month-old A.K., came to the attention of the Department of Children and Family Services (Department) because he was involved in a car accident on September 11, 2009, in a car driven by mother. The Department filed a Detention Report on September 17, 2009, which stated that mother said she hit a parked car when she reached into the back seat to give A.K. a bottle. Mother denied she was under the influence of drugs and alcohol. According to mother, she and A.K. were taken to the hospital, where mother was treated for injuries to her right hand and left foot. A.K. was not injured.
Upon release from the hospital, mother was arrested by the Los Angeles Police Department for an outstanding warrant for robbery. She was not cited for the car accident. The Department received an immediate referral, and A.K. was taken into protective custody because there was no caregiver available when mother was arrested.
The Detention Report provided that mother denied committing the robbery. She admitted that as an adolescent she was rebellious, dropped out of high school, acted incorrigibly, and experimented with drugs. Mother stated that her behavior caused her parents to stop communicating with her. She also realized “that her past [had] finally caught up with her.” Three weeks before the car accident, when A.K. was one month old, she was arrested for a misdemeanor. Mother reported that A.K. was born three months early, but he was born without any medical complications. Mother was unemployed, did not receive any child support from A.K.’s father, and relied on public assistance to subsist.
Mother identified John B. as A.K.’s father, but when interviewed, John B. stated that he did not believe he was the child’s father. John B. said mother told him that an Asian gang member was A.K.’s father. John B. considered mother “unstable.” He also claimed to know that mother abused drugs in addition to being involved in criminal activity.
On September 17, 2009, the Department filed a petition under section 300, subdivision (b), alleging mother’s car accident endangered A.K. and mother’s history of drug use rendered her incapable of providing minor with regular care placing him at risk of physical and emotional harm. The petition also alleged under section 300, subdivisions (b) and (g) that A.K.’s father failed to provide for him.
Mother did not appear at the detention or arraignment hearings that were held on September 17, and 23, 2009, respectively, because she was in custody, and the orders for her to attend were not carried out. At the detention hearing, the juvenile court appointed counsel for mother and ordered A.K. detained.
Mother appeared at the October 2, 2009, arraignment hearing. At John B.’s request, the juvenile court ordered a paternity test to determine whether he was A.K.’s biological father. Mother argued that A.K. should be released to her because she was cleared of the arrest warrant and was not under the influence at the time of the accident. Counsel for A.K. advised the juvenile court she was opposed to the release to mother at that time. The juvenile court stated it needed more information before releasing the child to the mother. Mother’s counsel then asked the juvenile court to order an assessment of mother’s home, and explained that mother was willing to drug test “on-demand” to prove her sobriety. John B.’s counsel informed the juvenile court that his statements to the Department that mother abused drugs and was involved in criminal activities was a description of her past activities. The juvenile court ordered that mother was to have periodic, monitored visits with A.K., and continued the proceedings to November 2, 2009, for a pre-trial resolution conference.
The warrant on which mother was arrested after the accident was subsequently cleared, and no charges were filed. Mother said the warrant was a case of mistaken identity.
On November 2, 2009, the Department filed its Jurisdiction/Disposition Report, which provided that mother admitted she used drugs from age 15 to age 19. She also admitted using alcohol and marijuana to excess for approximately four years. When she turned 19 years old, she started experimenting with methamphetamine, and she stated her use increased for “about three to four months... maybe longer.” Mother claimed she had been sober for three years, having undergone a six-month long residential drug rehabilitation program at Bimini, then another three months of inpatient and one month of outpatient treatment at Tarzana Treatment Center, after which she participated in a year-long sober living program. Mother told the social worker she would send documentation of this by facsimile. However, she had not done so by November 2, 2009, nor did she have an Alcoholics Anonymous (AA)/Narcotics Anonymous (NA) sponsor. Mother appeared to understand she needed to provide clean drug tests and demonstrate she could appropriately care for her child. She stated her desire to reunify with A.K. as soon as possible. The Department provided mother with referrals for programs and drug testing.
The report showed that on October 13 and 19, 2009, mother provided inadequate urine samples for her “on-demand” drug tests. The laboratory staff stated that although it was understandable that a person could not produce a sufficient amount of urine for one test, it was suspicious when it happened twice. On October 27, 2009, mother tested negative.
The report also reflected that mother had a criminal history that included a 2003 misdemeanor conviction for theft (Penal Code, § 484), a 2005 misdemeanor conviction for receiving stolen property (Penal Code, § 496, subd. (a)), and a 2007 misdemeanor conviction, less than two and one-half years from the car accident, for identity theft. (Penal Code, § 529, subd. 3.) From 2001 to 2009, mother had numerous bench warrants and various other charges in addition to her convictions. Mother also admitted she had episodes of depression. One episode incapacitated her for two weeks; another occurred after A.K.’s birth.
On November 2, 2009, the juvenile court held a pre-trial resolution conference. Mother failed to appear. On November 13, 2009, the Department reported that approximately two weeks earlier, A.K. had been placed with maternal cousin, Lester K.
A Multidisciplinary Assessment Team Summary of Findings filed on November 13, 2009, reported that mother’s parents were separated before she was born. As a teenager, mother was involved with a man who was abused drugs and was engaged in criminal activity, and she had a criminal conviction in connection with his activities. She also had a strained relationship with her maternal grandmother. The Department recommended that mother receive mental health therapy “to assist her in processing emotions regarding past painful experiences with her own family, issues of guilt regarding the accident and separation from [A.K.], and so that mother [could] cope effectively with her emotions when dealing with [A.K.] and his needs.”
Mother failed to appear at pre-trial resolution conferences held on November 13, December 14 and 17, 2009. On January 11, 2010, the Department filed an Information for Court Officer advising that paternity test results revealed that John B. was not A.K.’s biological father. The report also stated that on January 8, 2010, the Department contacted Lester K. who advised the Department that mother was at “a [drug] program, ” and was expected to visit A.K. “in about an hour.” The telephone number mother provided to the Department was “out of service, ” and the Department obtained her new telephone number from Lester K. The Department called mother, and left her a voice mail message advising her she was ordered to drug test that day. Mother called the Department and said in a quivering voice that she could not test then because she was out of town―in Las Vegas―to help an ill grandmother. She said Lester K. did not know of the emergency, and she did not advise the Department of it because she did not know it was required. The Department advised mother to “bring some strong evidence” to support her statements of why she could not test. The Department believed mother’s excuse may have been contrived, and it considered the missed test to be a “dirty” test.
On January 11, 2010, mother failed to appear at a pre-trial resolution conference. At the request of mother’s counsel, the juvenile court set the matter for trial-a jurisdiction and disposition hearing-on February 9, 2010.
The Department reported on February 9, 2010, that mother provided two pages of documents to support her excuse for missing the drug test, consisting of Urgent Care Discharge Instructions and a receipt of payment concerning the laboratory test and treatment on January 4, 2010 (four days before the demanded drug test) of a Christine Guay. Mother tested negative for drugs on January 14 and 19, 2010. Also, as of February 4, 2010, the Department did not have confirmation that mother was enrolled in a random drug test program.
Mother failed to appear at the February 9, 2010, jurisdiction and disposition hearing, and the juvenile court denied her counsel’s request for a continuance. The juvenile court shared the Department’s concern about mother not appearing. John B. was stricken from the petition because he was not the father. As to the counts alleged against the mother, the juvenile court dismissed count (b)(1) (the automobile accident), but found true the jurisdiction allegation in an amended count (b)(2). As amended, count (b)(2) read that mother “has a history of illicit drug abuse which periodically renders the mother unable to provide regular care and supervision for the child. The mother’s substance abuse endangers the child’s physical and emotional health and safety, placing the child at risk of physical and emotional harm, damage and danger.” As to the unknown father, the juvenile court found true the jurisdiction allegations in counts (b)(3) and (g)(1) (both for failure to provide).
Regarding disposition, mother’s attorney asked that A.K. not be detained from mother, and if he was, that mother’s visits with A.K. not be monitored. Mother’s attorney also asked that mother not be ordered to drug counseling because she contends she has been drug and alcohol free and she never tested positive for any of the Department’s drug tests. In response, the juvenile court stated it was “very concerned that the mother seems to be missing tests that she knew she should have taken in order to establish that she is currently drug free. I don’t know that she is or not, and I think that, in fact, by her actions that she may be, in fact, using substances.” It ordered monitored visits for mother with the Department having the discretion to liberalize such monitoring, declared A.K. a dependant of the juvenile court, and removed custody of the child from the parents. The juvenile court ordered family reunification services for mother, including “random, witnessed, on demand, consecutive” drug tests and drug counseling; parenting education; and individual counseling to address case issues. The juvenile court scheduled a six-month section 366.21, subdivision (e) review hearing for August 10, 2010.
DISCUSSION
A. Jurisdiction Order
On appeal, jurisdiction findings are reviewed for substantial evidence, i.e., the order must be affirmed if there is any substantial evidence that supports the court’s order, resolving all conflicts in support of the determination and indulging all legitimate inferences in favor of the order. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) Mother argues there was not substantial evidence to sustain the juvenile court’s true finding on the section 300, subdivision (b) jurisdiction count against her. We disagree.
Mother argues that the true findings under section 300, subdivisions (b) and (g) as to the unknown father cannot support dependency jurisdiction against her. Because we find there is substantial evidence to sustain the juvenile court’s true finding on the section 300, subdivision (b) jurisdictional count against her, we do not address this issue.
Section 300, subdivision (b), states, in relevant part: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child, ... or by the inability of the parent... to provide regular care for the child due to the parent’s... substance abuse.” The purpose of the juvenile court law is to provide “maximum safety and protection for children” being harmed or who are at risk of harm. (§ 300.2)
The juvenile court found jurisdiction over A.K. based on an amended count against mother that she had a history of illicit drug abuse which periodically rendered her unable to provide regular care to and supervision for A.K., and places A.K. at risk of harm. There is substantial evidence mother had a history of abusing drugs. She admitted that she abused drugs when she was 15 years old, and by age 19 she was experimenting with methamphetamine. From 2001 to 2009, numerous bench warrants were issued for mother’s arrest, mother was arrested, and numerous criminal charges were filed against her. From 2003 to 2007 mother suffered three misdemeanor convictions. As a teenager, she was involved with a man who was engaged in criminal activities and used illicit drugs, and she had been convicted of a crime in connection with his activities. When A.K. was one-month-old, mother was arrested on another misdemeanor charge. Although it is unclear whether all of mother’s arrests and convictions were drug related, her history of drug use would allow a reasonable trier of fact to conclude that at least some of them were. It was therefore reasonable for the juvenile court to conclude that mother’s history of drug use and criminal activity rendered her periodically unable to provide for A.K.
There was also substantial evidence mother continued to have drug abuse issues. Mother stated she has been sober for only three years and that she participated in several drug rehabilitation programs. Mother failed, however, to fulfill her promise to the Department that she would send documentation by facsimile proving that she successfully completed the programs. She also did not have an AA/NA sponsor. In addition, mother provided two inadequate samples for her “on-demand” drug test, causing the laboratory staff to believe the circumstances were suspicious. She failed to take a demanded drug test and, as an excuse, provided documentation which consisted of evidence of someone’s treatment four days before she was ordered to drug test. The Department believed mother’s excuse may have been contrived, and it considered the missed test to be a “dirty” test. The juvenile court stated it was “very concerned that the mother seems to be missing tests that she knew she should have taken in order to establish that she is currently drug free. I don’t know that she is or not, and I think that in fact, by her actions, that she may be, in fact, using substances.” Moreover, John B. claimed he knew that mother abused drugs. He qualified this statement by saying he was not referring to her present use of drugs. Because we view the evidence in the light most favorable to the order (In re John V., supra, 5 Cal.App.4th at 1212), substantial evidence supports an inference that mother was not rehabilitated at the time of the hearing, and A.K. could not safely be returned to her care.
A.K. is an infant and is, therefore, particularly vulnerable to harm and in need of regular care and supervision. The legislature has determined that “a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2) Mother’s substance abuse endangered A.K.’s physical and emotional health and safety, placing him at risk of physical and emotional harm, damage, and danger. There was substantial evidence that A.K. would be at substantial risk of harm if returned to mother’s care. We uphold the juvenile court’s true finding of dependency jurisdiction under section 300, subdivision (b) as to mother.
B. Disposition Orders
1. Standard of Review
We review the juvenile court’s disposition orders for an abuse of discretion. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) “‘[T]he 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. [Citations.]’” (In re Corrine W. (2009) 45 Cal.4th 522, 532; accord, In re A.E. (2008) 168 Cal.App.4th 1, 4; In re Neil D. (2007) 155 Cal.App.4th 219, 225.) A trial court abuses its discretion only if its decision is arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) We review for substantial evidence the findings of fact on which the disposition orders is based. (In re Jasmine C. (2003) 106 Cal.App.4th 177, 180.)
2. Removal of Custody
Mother argues that the juvenile court abused its discretion because it failed to balance the harm from removing the child with the harm the removal sought to prevent, and it failed to consider other reasonable means to protect A.K. without removal from mother. Mother does not cite any authority for the proposition that the juvenile court must make specific findings on these matters. Evidence Code, section 664 , however, provides a rebuttable presumption that the juvenile court balanced the harm. As noted by the mother, “Courts have long recognized the principle” of the need to balance the harm from removing the child with the harm the removal seeks to prevent. (In re Jamie M. (1982) 134 Cal.App.3d 530, 541) There is nothing in the record to suggest that the juvenile court ignored this long recognized principle.
Evidence Code, section 664 provides in part that “[i]t is presumed that official duty has been regularly performed.”
Mother invokes section 361, subdivision (d), which provides “there [were] reasonable means by which the minor’s physical health may be protected without removing the minor from the parent’s physical custody.” Here, the juvenile court found that “[s]ubstantial danger exists to the physical health of [A.K.]... and there is no reasonable means to protect without removal from [mother’s]... physical custody, ” and “[r]easonable efforts have been made to prevent or eliminate the need for removal of [A.K.] from the home of [mother]....” In addition, the juvenile court found that the Department “complied with the case plan by making reasonable efforts to enable [A.K.’s] safe return home and to complete whatever steps are necessary to finalize the permanent placement of [A.K.], ” but mother failed to appear at the jurisdiction and disposition hearing, and “mother has not made substantive progress.” Also, the juvenile court read and considered all of the Department’s reports. Thus, the record demonstrates that the juvenile court considered other reasonable means to protect A.K. without removal from mother.
Presumably mother meant to reference section 361 subdivision (c)(1) in support of the quoted language.
Even assuming, arguendo, the dependency court failed to make findings on the record (§ 361, subd. (d)), the error was harmless. “[C]ases involving a court’s obligation to make findings regarding a minor’s change of custody or commitment have held the failure to do so will be deemed harmless where ‘it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.’” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Had the juvenile court fully complied with subdivision (d), it undoubtedly would have made findings adverse to mother. Therefore, any failure by the juvenile court to make required findings was harmless error.
Mother contends the disposition orders removing A.K. from her, and providing her with only monitored visitation rights were not supported by substantial evidence. Substantial evidence supports the juvenile court’s orders. There is evidence that in the five months from the time A.K. was taken into protective custody to the jurisdiction and disposition hearing, mother has not demonstrated that she could safely care for the child.
As discussed above, there was evidence that mother had a history of abusing drugs, and that she continued to abuse drugs after A.K. was detained. Mother also had a significant criminal history which included convictions for theft, receiving stolen property and identity theft, as well as numerous bench warrants for her arrest and various other criminal charges in addition to her convictions. It was reasonable for the juvenile court to infer that at least some of these crimes were drug related, particularly since there was evidence that mother associated with gang members and persons involved in criminal acts and drug use. There was also evidence that an Asian gang member may have been A.K.’s father. The juvenile court could reasonably infer that mother’s criminal activity, and association with gang members and others engaged in drug use and crime, would continue as long as she used drugs.
Substantial evidence also supports an inference that mother was irresponsible or not sufficiently interested in having custody of A.K. As noted by the juvenile court, there was evidence that she failed to make progress in the reunification program designed to reunite her with A.K, to provide adequate samples for drug tests, failed to take a drug test, to provide the Department with proof that she had successfully participated in three drug rehabilitation programs, and to keep the Department apprised of a telephone number by which she could be contacted. In addition, mother attended only one of the seven hearings that were held after mother was released from custody. The hearings mother missed included the jurisdiction and disposition hearing, the results of which she now seeks to reverse on appeal.
Mother missed the first two hearings because she was in custody after having been arrested for an outstanding warrant.
Mother argues there were reasonable means to protect A.K. without removal from mother, such as “mother moving in with Lester K., unannounced home visits by [the Department], or a voluntary family maintenance program with mother agreeing to random drug testing.” There was substantial evidence that these means would not have protected the child. The evidence supports an inference that mother had a substance abuse problem. She was ordered by the court to participate in random drug testing and failed to comply. Therefore, the juvenile court had reason to conclude that she would not comply in the future.
In addition, there was substantial evidence that mother associates with gang members and persons involved in criminal acts and drug use. This association was not in the best interests of the child, and supported a reasonable inference that such conduct would not be eliminated by mother living with someone else or unannounced visits by the Department.
3. Parenting Education, Counseling, and Drug Rehabilitation
At the disposition hearing, the juvenile court must order child welfare services for the minor and the minor’s parents to facilitate reunification of the family. (§ 361.5, subd. (a); Cal. Rules of Court, rule 5.695, subd. (f)(1).) Section 362, subdivision (a) provides in pertinent part: “When a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child.”
Section 362, subdivision (c) provides in pertinent part: “The juvenile court may direct any and all reasonable orders to the parents... of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out the provisions of this section.... That order may include a direction to participate in a counseling or education program, including, but not limited to, a parent education and parenting program.... 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 child is a person described by Section 300.” “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.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
Mother contends the disposition order requiring her to participate in counseling to address case issues was “inappropriate, ” because disposition orders may only be issued to correct problems that led to the child’s removal. The contention lacks merit.
The juvenile court’s authority in fashioning a disposition order is not limited to the issues raised by its jurisdictional findings. (In re Christopher H., supra, 50 Cal.App.4th at p. 1008 (Christopher).) “[W]hen the court is aware of other deficiencies that impede the parent’s ability to reunify with his [or her] child, the court may address them in the reunification plan.” (Id. at p. 1008.) Section 362, subdivision (c) specifically authorizes counseling.
During its investigation, the Department recommended that mother receive mental health therapy “to assist her in processing emotions regarding past painful experiences with her own family, issues of guilt regarding the accident and separation from [A.K.], and so that mother can cope effectively with her emotions when dealing with [A.K.] and his needs.” On October 28, 2002, the Department reported that mother’s parents were separated before she was born. Mother admitted her behavior as an adolescent caused her parents to stop communicating with her. Mother also had episodes of depression after A.K.’s birth that on one occasion incapacitated her for two weeks. In addition, John B. described mother as “unstable.” The juvenile court reasonably concluded that these emotional issues were obstacles to reunification that had to be addressed in the reunification plan. The disposition order requiring mother to participate in counseling to address case issues was not an abuse of discretion.
Mother contends the disposition order requiring her to participate in parental education was inappropriate because her parenting skills were never brought into question. We disagree. Mother’s parenting skills were called into question by evidence concerning her conduct, including the taking of drugs, the commission of crimes, the association with gang members and individuals who also abused drugs and committed crimes, and her apparent lack of interest in gaining custody of A.K as evidenced by her missed or incomplete drug tests and missed juvenile court hearings. Evidence called into question her parental skills, given mother’s admission that the car accident she had with A.K. in the car resulted from her taking her eyes off the road and turning around to reach into the back seat to give A.K. a bottle. It was reasonable for the juvenile court to conclude that reunification would be aided by parental education.
Mother also argues that the juvenile court’s order requiring her to participate in a drug rehabilitation program was improper because there is insufficient evidence that she abused drugs by the time of the custody determination. As discussed above, however, there is substantial evidence mother continued to abuse drugs. Ordering mother’s participation in a drug rehabilitation program was not an abuse of discretion.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
We concur: ARMSTRONG, Acting P. J. KRIEGLER, J.