Opinion
F083467
03-04-2022
In re D.J., a Person Coming Under the Juvenile Court Law. v. B.J., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Meghan Grim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County. No. JD142361-00 Susan M. Gill, Judge.
Meghan Grim, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
THE COURT[ *]
Appellant B.J. (mother) appealed from the juvenile court's October 18, 2021, dispositional order removing her three-month-old daughter, D.J., from her custody and placing her with her father. (Welf. & Inst. Code, § 361, subd. (c)(1).) After reviewing the juvenile court record, mother's court-appointed counsel informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Statutory references are to the Welfare and Institutions Code.
Mother filed a letter but failed to set forth a good cause showing that any arguable issue of reversible error arose from the dispositional hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
D.J. was born prematurely in June 2021. On July 7, 2021, the Kern County Department of Human Services (department) received a referral that mother was crying hysterically, stating she hit D.J. because she was crying and needed her diaper changed. There was a bruise on D.J.'s leg and mother was afraid to take her to the hospital because of the bruise. The reporting party was concerned that mother was an alcoholic and unable to properly care for D.J.
On July 16, 2021, a social worker from the department went to mother's home unannounced. Mother denied the allegations and the social worker found no marks or bruises on D.J. She was dressed in a clean diaper and swaddled in a clean baby blanket. The home was clean and organized. Mother agreed to drug test and participate in family maintenance services. On August 2, 2021, the social worker returned to mother's home with a public health nurse. The home smelled strongly of cigarette smoke. Mother provided a urine sample and directed the nurse and social worker to her bedroom where they observed D.J. placed on a pillow face down surrounded by blankets. When the nurse tried to provide mother information about safe sleeping for infants and the risk of sudden infant death syndrome, mother rudely replied that she had the material already. Mother made no effort to turn D.J. over until told to do so by the social worker. The social worker and nurse left mother's home.
Mother's urinalysis yielded a positive result for ethanol. Mother admitted a history of using alcohol, methamphetamine, and marijuana. She also admitted drinking alcohol since D.J.'s birth but denied drinking during her pregnancy. Further investigation revealed mother gave birth to a child in September 2019 and tested positive for methamphetamine and marijuana. The baby was very medically fragile and mother was uncooperative with the medical staff and refused to be taught how to care for the child. The juvenile court detained the child but released her to mother's custody after mother agreed to participate in her care and abstain from mind-altering substances and control her anger.
On August 5, 2021, the department obtained a protective custody warrant and removed D.J. from mother's custody. The department filed a dependency petition alleging under section 300, subdivision (b) that D.J. was at risk of serious physical harm because mother had a history of alcohol abuse, methamphetamine abuse and marijuana use dating back to 2019, tested positive for methamphetamine and marijuana on September 1, 2019, drank wine throughout her pregnancy with D.J., tested positive for ethanol on August 2, 2021, awoke with difficulty on August 2, 2021, the day the social worker and public health nurse went to her home, and had D.J. sleeping in an unsafe position. The petition identified Christian B. as D.J.'s alleged father.
On August 9, 2021, the juvenile court ordered D.J. detained from her parents and continued the hearing. At the continued hearing on August 11, the court elevated Christian to presumed father and released D.J. to his custody. The court set the jurisdiction/disposition hearing for September 27, 2021. Mother was provided with referrals for parenting classes, substance abuse counseling, a mental health evaluation and random drug and alcohol testing. The hearing scheduled for September 27 was continued until October 18, 2021.
In its report for the jurisdiction/disposition hearing, the department recommended the juvenile court order D.J. removed from mother's custody, grant Christian sole legal and physical custody and terminate its dependency jurisdiction. At the time the report was prepared on September 24, 2021, mother had completed a mental health assessment and did not require mental health services. She was enrolled in counseling for parenting and neglect and attempted to enroll in substance abuse classes but had not received a call back. She had provided one drug test since D.J. was removed and the results were negative. She missed a drug test on September 10, 2021, and refused to drug test for the department. She regularly visited D.J. and visits went well. However, in a supplemental report, the department informed the court mother had not made any progress in completing her case plan. She had not provided any documentation to show her progress in her parenting and neglect and substance abuse classes and missed multiple scheduled visits, stating it was too far to travel. She was provided a bus pass on September 22, 2021, which she threw away. She explained she thought the pass was no longer valid. She provided two negative drug tests and the results of another were pending as of October 13, 2021.
Mother and her sister testified at the jurisdiction/disposition hearing on October 18, 2021. Mother's sister testified mother was staying at her house on Sunday, August 1, 2021, and left the next day. Mother drank alcohol the evening of August 1 but the sister did not know how much she drank.
Mother testified she started drinking alcohol around 10:00 p.m. on August 1 and drank the whole bottle throughout the night until somewhere between 11:00 p.m. and midnight. She felt rested the next morning, not intoxicated. She did not hear the social worker and the nurse knock on her door because the television was on. D.J. was lying on her chest so she kept her in that same position and laid her on the bed. Her face was not sinking into the bed and she was not smothering. She was right beside D.J. and did not leave her at any time except to answer the door. She denied drinking alcohol while pregnant with D.J. She completed seven weeks of her parenting class.
Mother's attorney argued there was insufficient evidence to sustain the section 300, subdivision (b) allegations, pointing out there was no prohibition in placing a baby on her stomach and there was no evidence mother endangered D.J. by her alcohol consumption the day before.
The juvenile court found there was sufficient evidence under the totality of the circumstances to adjudge D.J. a dependent child under section 300, subdivision (b). The court struck the allegation mother drank wine while pregnant because the evidence did not support it. The court ordered D.J. removed from mother's custody, finding by clear and convincing evidence placing D.J. in mother's custody would place her at a substantial risk of harm and there were no reasonable means to protect her without removing her. The court ordered twice weekly supervised visits for mother. The court ordered mother and Christian to have joint legal custody and Christian sole physical custody and terminated its dependency jurisdiction.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
The juvenile court's authority to make decisions concerning a minor child derives from section 300. If the court finds, by a preponderance of the evidence, the actions of either parent bring the child within one of the statutory definitions set forth in section 300 and its subdivisions, the court may exercise its dependency jurisdiction over the child. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Here, the court found D.J. came within its jurisdiction under section 300, subdivision (b)(1), which applies as relevant here where "[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 failure or inability of the child's parent … to adequately supervise or protect the child, or … to provide regular care for the child due to the parent's … substance abuse." (§ 300, subd. (b)(1).) Because the court assumes jurisdiction over the child, not over the parents, jurisdiction may exist based on the conduct of one parent alone. (§ 302, subd. (a); In re John S. (2001) 88 Cal.App.4th 1140, 1143.)
After the juvenile court finds a basis for jurisdiction under section 300, it must conduct a dispositional hearing (§ 358). At the dispositional hearing, the court has several options, including the option chosen by the court here: declaring dependency, removing the child from one parent's physical custody, ordering custody to the other parent, and terminating jurisdiction. (Cal. Rules of Court, rule 5.695(a)(7)(A).) In particular, the court may declare a child a dependent of the juvenile court once it finds that the minor is a person described by section 300. (§ 360, subd. (d).) The court may remove the child from a parental home if it finds, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) After removal and orders of custody and visitation, the court may terminate jurisdiction. (See In re Destiny D. (2017) 15 Cal.App.5th 197, 205-207 [court may issue orders and terminate jurisdiction instead of ordering services to the parents]; see also § 362, subd. (a) [juvenile court may make "all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child"].)
Good cause to warrant supplemental briefing in this case would require mother to show that there is no substantial evidence to support the juvenile court's jurisdictional findings and dispositional orders. Mother fails to make that showing. Although she contends "nothing was officially proven," she fails to show that the evidence on which the court based its rulings was insufficient. Instead, she asserts that she was not credited for her efforts to care for D.J. while also caring for a "disabled 1 year-old child" or for being a medical assistant trained to take care of a disabled child. She claims the "case was an abuse of authority" because she did not do anything wrong.
Here, the juvenile court found a jurisdictional basis to exercise its dependency jurisdiction over D.J. because of mother's continuing alcohol use and the risk it posed to D.J. The court stated, "[Mother] knows what's appropriate for the child and yet she does something contrary to that. And I can only believe that she's done something contrary to that because perhaps her senses are dulled by the amount she drank before." The court also noted the mother minimized the risk. When she was asked about the blankets on D.J., she admitted knowing it was a risk, but thought it was acceptable and argued there is nothing wrong with drinking because it is legal. Once the juvenile court established its jurisdiction, it had discretion to fashion an appropriate custody order and terminate its involvement in the case.
Based on the forgoing, we conclude mother failed to set forth a good cause showing that an arguable issue of reversible error exists on this record. Consequently, we dismiss the appeal.
DISPOSITION
This appeal is dismissed.
[*] Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.