Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. CK10114
ORIGINAL PROCEEDINGS in mandate. Albert J. Garcia, Commissioner.
Law Office of Timothy Martella and Thomas Wayne Pichotta for Petitioner Jose R.
Law Offices of Alex Iglesias, Steven D. Shenfeld and Michael Kandell for Petitioner Patricia E.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Real Party in Interest.
Children’s Law Center of Los Angeles and Gabriela Shapiro for Minors.
KLEIN, P. J.
Patricia E. (mother) and Jose R. (father) seek writ review of orders by which the juvenile court: (1) sustained the allegations of a dependency petition; (2) denied mother and father family reunification services; and (3) set a hearing under Welfare and Institutions Code section 366.26 on December 19, 2007, as to Summer E., Amber E. and S.E. We affirm the juvenile court’s jurisdictional finding but accept the concession by the Department of Children and Family Services (DCFS) that the juvenile court erroneously denied father’s request for a continuance of the disposition hearing. (§358, subd. (a)(3).) Based on DCFS’s concession, we set aside the juvenile court’s order setting a hearing under section 366.26 on December 19, 2007, and remand for further proceedings.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. The dependency petition.
DCFS filed a dependency petition on June 28, 2007, which alleged: (1) mother and S.E. tested positive for opiates at the time of S.E.’s birth; (2) mother had a 15-year history of substance abuse, mother is a current abuser of opiates, and S.E.’s siblings, Jesse, Rosa, Kimberly, Jaime, Patricia and Precious, received permanent placement services due to mother’s substance abuse; and (3) father has a history of substance abuse and S.E.’s siblings, Precious and Patricia, received permanent placement services due to father’s substance abuse and failure to protect the children from mother’s drug abuse.
2. The detention report.
The detention report indicated that, two days after S.E. was born prematurely at 28-weeks gestation with a positive toxicological screen for opiates, the Children’s Social Worker (CSW), accompanied by two Los Angeles police officers, interviewed mother at her home. Mother indicated she had a toothache and was taking Vicodin that was prescribed for her when she gave birth to Summer E. and Amber E. (the twins) in November of 2005. Mother denied the use of opiates and stated she did not know she was pregnant when she took the Vicodin. DCFS detained the twins and placed a hold on S.E., who remained in the intensive care unit of the hospital. The report indicated mother failed to reunify with Jesse E. (born 1992, parental rights terminated 1998); Rosa E. (aka Tatiana) (born 1995, parental rights terminated 1997); Kimberly E. (born 2001, parental rights terminated 2002); Jaime E. (born 2002, parental rights terminated 2003); Patricia E. (born 2003, parental rights terminated January 2005) and Precious E. (born 2004, parental rights terminated July 2005). Three of these children, Kimberly, Jaime and Patricia, tested positive for drugs at birth. Mother also had a child who died of SIDS at the age of a few months.
An addendum report prepared for June 28, 2007, indicated Jose R., the father of the twins and S.E., is also the father of Precious and Patricia. Attached to the addendum report was a report dated July 12, 2005, that was prepared for a section 366.26 hearing in Precious and Patricia’s case. That report indicated Patricia had been declared a dependent child due to mother’s drug abuse and that father knew of mother’s drug abuse but failed to take action to protect the children. Father attended one court hearing with respect to Precious E. but made no effort to contact DCFS or to visit Precious. Additionally, father and his wife, Yvonne, lost custody of two children, Justin and Yamilet, who were declared dependents in November of 1996. The sustained petition in that case alleged father and Yvonne were “frequent users of cocaine which renders parents incapable of providing regular care for the minors” and that father and Yvonne failed to comply with a voluntary family maintenance agreement, which required them to remain drug free and participate in drug counseling. On June 26, 2007, father tested negative for illicit drugs.
On June 28, 2007, the juvenile court ordered the children detained in foster care and directed DCFS to provide family reunification services with monitored visits three times a week.
3. The jurisdiction/disposition report.
The jurisdiction/disposition report prepared for July 24, 2007, indicated father’s criminal history included arrests for receiving stolen property, grand theft, possession of controlled substances and burglary.
The CSW reported that mother said she took three Vicodin on June 19, 2007, one every six hours, and two drinks of Nyquil, to relieve abdominal pain and headaches. On June 22, 2007, father called 911 because mother was bleeding from her anal or vaginal area. The paramedics asked if mother was pregnant and she indicated she was uncertain. Mother told the CSW she did not know she was pregnant because she continued to have a menstrual cycle, the baby did not move and mother believed she either had swelling due to the birth of the twins or a tumor because she bled for six months after she gave birth to the twins. Mother admitted a fifteen year history of substance abuse but denied she had abused controlled substances in the past three years, noting the twins tested negative for illicit drugs at the time of their birth. Mother said she attended church regularly and showed the CSW a prescription for Vicodin mother was given upon discharge from the hospital following S.E.’s birth. Mother indicated father told her he last smoked crack cocaine five years ago.
Mother told the CSW she met Jesse G. after graduating from high school and gave birth to Jesse E. in 1993. Mother reported that Jesse G. had mental health issues, abused methamphetamine and cocaine and was physically abusive to the point that he once tried to kill mother. Three months after mother left Jesse G., mother became pregnant by Miguel S. While Miguel S. was in jail, mother gave birth to Miguel S., Jr. Mother left Miguel S., Jr. with Jesse G. and the child was found dead while in Jesse G.’s care. Mother indicated cause of death was SIDS but admitted she had exercised poor judgment in allowing the child to be in Jesse G.’s care.
Mother told the CSW that she gave birth to Kimberly in 1996. Mother maintained a relationship with Kimberly’s father for approximately four years. However, he eventually returned to his wife. Two years later, mother met Sergio G. and gave birth to Hector E. Mother’s relationship with Sergio G. lasted approximately two years and ended because he used drugs. One year later, mother met Jaime M. and gave birth to Jaime M., Jr. This relationship ended because Jaime M. was coping with ongoing mental health issues. Mother believes Fernando G., the father of Precious and Patricia, was deported. In 2003, mother met Jose R. and gave birth to the twins in November of 2005 and S.E. in June of 2007. Mother admitted that she abused methamphetamine, marijuana and other illicit substances throughout her adulthood and that all of her children, except Miguel S. Jr., were placed in protective custody as a result of mother’s drug abuse.
Father claimed he was unaware of mother’s juvenile dependency history and indicated he was not concerned with what had happened to mother’s other children and was interested only in the twins and S.E. Father claimed mother took appropriate care of the twins and was a good mother. Father admitted he had been involved in drugs 10 years earlier but has avoided controlled substances since that time and indicated he completed a drug treatment program in 1996 during dependency court proceedings related to Justin and Yamlit R.
4. Judicially noticed social reports.
In addition to the foregoing documents, we grant DCFS’s request to take judicial notice of the following documents found in the juvenile court file:
With respect to Patricia E., we take judicial notice of the jurisdictional report dated October 11, 2004, which indicates Patricia E. had a positive toxicological screen at birth for opiates and methamphetamine. Father told the CSW he was unaware of mother’s drug use and denied using drugs in the past seven years. Although the CSW noted mother and father resided together, father claimed they lived apart and only visited during mother’s pregnancy. On November 24, 2003, the juvenile court denied mother and father family reunification services. Neither parent appeared for that hearing or for the termination of rights hearing on April 19, 2004.
With respect to Precious E., we take judicial notice of reports indicating the child was born in October of 2004 with a positive toxicological screen for opiates. Mother told hospital staff the father was Fernando E. but, in the same report, indicates Jose R. was the father. Mother told the CSW she had a prescription for Tylenol No. 3. Mother, father and Fernando E. failed to appear for a pretrial resolution conference and the juvenile court denied family reunification services on November 16, 2004. Father was granted monitored visitation with Precious E. at the section 366.26 hearing on May 17, 2005. A subsequent report indicated father failed to request visitation. Parental rights over Precious E. were terminated on July 12, 2005.
5. The last-minute information for court officer.
The juvenile court set the matter for a contested adjudication hearing on August 22, 2007, at the request of the parents.
A last-minute information for court officer form filed on August 22, 2007, indicated mother was rejected by the Shields for Families program and was referred to Compton Mental Health because an assessment revealed mother has mental health issues rather than substance abuse issues. Mother and father enrolled in a parent education program on July 9, 2007, and have attended seven out of seven sessions with good participation.
According to laboratory reports attached to the form, mother tested positive for opiates and Hydrocodone on June 26 and July 11, 2007, and tested negative on July 20, July 26, August 10, and August 17, 2007; father tested negative on July 11, July 20, July 24, August 2 and August 17, 2007.
Letters attached to the form indicated mother had completed two psychotherapy visits and father had completed two mental health counseling visits. The letters indicated both parents appeared motivated to regain custody of the children.
6. The adjudication hearing.
On August 22, 2007, the juvenile court received into evidence the detention report and the jurisdiction/disposition report but not the information for court officer report.
The CSW, Ladore Winzer, testified that, after she detained the children, mother presented a bottle of Vicodin with an expired prescription in mother’s name. The CSW did not inquire of the testing lab whether ingestion of Vicodin might produce a positive screen for opiates.
Mother’s counsel argued mother’s use of out-dated Vicodin was insufficient to sustain the petition because mother was unaware she was pregnant.
Father’s counsel argued there was no evidence father currently was abusing drugs, the reports indicated the twins had been well cared for, and it was not unusual for mother not to know she was pregnant because mother only recently had given birth to the twins.
Counsel for the children indicated mother should have known she was pregnant and her positive test for opiates, which was consistent with her previous drug history, was sufficient to sustain the petition.
The juvenile court found DCFS had met its burden by a preponderance of the evidence as to mother on counts one and two and as to father on count three.
7. The disposition hearing.
Immediately after the adjudication hearing, the juvenile court indicated it was “ready to proceed to disposition” and again received into evidence the social reports. Father’s counsel requested a continuance in order to set the matter for a contested disposition hearing. The juvenile court responded, “Your request is denied. We’re moving on today.” The juvenile court received into evidence the last-minute information for court officer form at the request of father’s counsel and took judicial notice of the entire juvenile court file at the request of DCFS.
Father then testified he last used drugs over ten years ago, he completed a drug treatment program at the Salvation Army on Sixth Street in 1995, and that mother would be willing to move from their two-bedroom home on Grape Street if it was necessary in order to get their children back. Father, who worked as a painter and a mechanic, had day care available for the children. Father received a completion certificate from the drug treatment program but had misplaced it.
After hearing argument, the juvenile court found, by clear and convincing evidence, there was substantial danger to the physical or emotional health of the children and no reasonable means to protect the children without removal from the home. The juvenile court ordered the children into shelter care and denied family reunification services as to mother under section 361.5, subdivisions (b)(10), (11) and (13), and as to father under section 361.5, subdivisions (b)(10) and (13). The juvenile court indicated, based on mother and father’s failure to reunify with their other children, it was “left with no choice. Because I have to follow the law.” The juvenile court indicated it did not believe mother’s claim she did not know she was pregnant and did not believe mother’s testimony that she had only taken Vicodin. In any event, it was against the law to self medicate and doing so had endangered the children.
Section 361.5, subdivision (b), provides: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:
The juvenile court ordered monitored visits a minimum of three times per week and indicated DCFS could liberalize father’s visitation after father had submitted ten additional clean tests. The juvenile court set a hearing under section 366.26 for December 19, 2007.
CONTENTIONS
Mother and father filed writ petitions in which they contend: (1) there was insufficient evidence to sustain the dependency allegations; (2) the juvenile court should have granted father’s request for a continuance of the disposition hearing; (3) the juvenile court erroneously denied family reunification services under section 361.5, subdivisions (b)(10) and (11) because mother and father made reasonable efforts to correct the problem that led to the dependency of their other children (In re Albert T. (2006) 144 Cal.App.4th 207, 220-221; In re Harmony B. (2005) 125 Cal.App.4th 831, 842-843); (4) section 361.5, subdivision (b)(13) does not apply because mother had not been ordered to attend a drug treatment program in the three-year period immediately prior to the filing of the current dependency petition and mother has not failed to comply with a program of drug treatment on two prior occasions; (5) the juvenile court should have returned the children home with father with family maintenance services under section 361, subdivision (c); (6) the juvenile court failed to acknowledge that it had discretion to order family reunification services in this case; and, (7) the juvenile court improperly took judicial notice of the entire juvenile court file, which included many documents that contain hearsay and are therefore not subject to judicial notice (In re Amber D. (1991) 235 Cal.App.3d 718, 724; In re David C. (1984) 152 Cal.App.3d 1189, 1204-1205).
Father and mother additionally request a stay of the hearing under section 366.26, set for December 19, 2007.
DISCUSSION
1. The evidence is sufficient to sustain the allegations of the dependency petition.
Father contends there was insufficient evidence to sustain the dependency petition in that DCFS failed to show that his history of substance abuse rendered him presently incapable of providing regular care and supervision for the children. Father notes he last used drugs ten years ago, he tested negative for drugs after the twins and S.E. were detained and DCFS failed to present any evidence of current drug use or any other conduct by father that would create a risk of harm to the children. Father notes there was never any evidence the twins were in danger of harm and the reports indicated S.E. was doing well after her premature birth.
Father further contends mother’s positive toxicological screen for opiates at the time of S.E.’s birth was insufficient to sustain the petition. (Pen. Code, § 11165.13. [positive toxicology report by itself insufficient to form a basis for suspected child abuse].) Father claims mother’s use of Vicodin that previously had been prescribed for pain was not unreasonable because mother was unaware of her pregnancy. Father asserts the juvenile court could not properly disbelieve mother’s claim she took only Vicodin absent expert opinion evidence that eliminated Vicodin as the cause of mother’s positive test result for opiates. Father notes the Physician’s Desk Reference states Vicodin contains Hydrocodone bitartrate which is an opioid analgesic.
Mother contends the only basis for removal of the children was her self-medication with prescription Vicodin to treat pelvic pain and a severe toothache. Mother asserts she was unaware of her pregnancy and there were no facts that supported an inference mother currently was abusing illegal drugs. Mother notes father reported mother was a good parent to the twins, the twins were born drug free and mother had not used controlled substance in three years. Mother concludes that, absent a showing of a current substantial risk to the children, the juvenile court erred in finding the children were dependents within the meaning of section 300, subdivision (b).
In reviewing a juvenile court’s jurisdictional findings, we determine whether the record contains substantial evidence to support the juvenile court’s conclusions. (In re David M. (2005) 134 Cal.App.4th 822, 828; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Ricardo L. (2003) 109 Cal.App.4th 552, 564; In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Evidence of past conduct may be probative of current conditions, but there must be a showing the child remains at substantial risk at the time of the jurisdictional hearing. (In re Savannah M., supra, at p. 1396; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
Here, mother admitted that all of her children, except Miguel S. Jr. who died within a few months of birth, were removed from her care by DCFS due to mother’s drug abuse. Father also lost two children, Jasmin and Yasilt, due to his own drug abuse and lost custody to Precious and Patricia because he failed to protect them from mother’s drug abuse. Also, the sustained petition filed with respect to Precious alleged father was a current user of illicit drugs and mother told the CSW that father admitted use of crack cocaine five years before the filing of the dependency petition.
This history of drug abuse and involvement with DCFS, combined with mother’s positive tests for opiates at the time of S.E.’s birth, warranted the juvenile court’s exercise of jurisdiction over the children. The juvenile court was entitled to disbelieve mother and father’s self-serving claims of sobriety and rehabilitation, as well as mother’s claims she was unaware she was pregnant with S.E. and she took only Vicodin, and father’s claim he was unaware of mother’s drug abuse. The absence of expert opinion eliminating Vicodin as the cause of mother’s positive toxicological screen for opiates does not cause a different result. The juvenile court found that, even if mother only took Vicodin, it was unlawful for her to self-medicate.
In sum, the foregoing evidence supports the juvenile court’s finding the children were dependents of the juvenile court.
2. Request for continuance of disposition hearing.
Father contends the juvenile court’s denial of a request of a continuance for a contested disposition hearing violated section 358, subdivision (a)(3), which provides, “if the social worker is alleging that subdivision (b) of Section 361.5 is applicable, the court shall continue the proceedings for a period not to exceed 30 days.”
Section 358, subdivision (a) provides, in part: “After finding that a child is a person described in Section 300, the court shall hear evidence on the question of the proper disposition to be made of the child. Prior to making a finding required by this section, the court may continue the hearing on its own motion, the motion of the parent or guardian, or the motion of the child, as follows: [¶] . . . [¶] (3) If the social worker is alleging that subdivision (b) of Section 361.5 is applicable, the court shall continue the proceedings for a period not to exceed 30 days. The social worker shall notify each parent of the content of subdivision (b) of Section 361.5 and shall inform each parent that if the court does not order reunification a permanency planning hearing will be held, and that his or her parental rights may be terminated within the timeframes specified by law.
In its answer to the petitions for extraordinary writ, DCFS concedes the point. We accept DCFS’s concession and remand the matter for a new disposition hearing. We therefore need not address any of the contentions mother or father raise with respect to the juvenile court’s disposition order.
Counsel for the children has joined in DCFS’s answer to the petition for extraordinary writ.
DISPOSITION
The order to show cause is discharged; the petitions for extraordinary writ are granted. The order setting a hearing under section 366.26 on December 19, 2007, is set aside and the matter is remanded to the juvenile court for a new disposition hearing. The order granting the writ petitions is final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: KITCHING, J., ALDRICH, J.
“(10) That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian.
“(11) That the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent. [¶] . . .
“(13) That the parent or guardian of the child 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, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358. 1 on at least two prior occasions, even though the programs identified were available and accessible.”