Opinion
G056235
08-27-2018
In re K.R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. K.P., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18DP0017) OPINION Appeal from an order of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
* * *
INTRODUCTION
K.R., now eight months old, was taken into protective custody shortly after birth. K.R.'s mother, K.P. (Mother), tested positive for methamphetamine and marijuana two days before K.R.'s birth. Mother pled nolo contendere to the allegations of the dependency petition at the jurisdiction hearing. Mother challenges the juvenile court's disposition order removing K.R. from her custody.
We affirm. The juvenile court's findings that K.R. would be in substantial danger if left in Mother's custody and that there were no reasonable means of protecting K.R. were amply supported by evidence of Mother's history of substance abuse, including her multiple relapses.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
1. Detention
K.R. was taken into protective custody at three days of age. A dependency petition filed by Social Services Agency (SSA) contended that K.R. came within the juvenile court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivision (b)(1) (failure to protect), based on the following allegations: Mother had tested positive for methamphetamine and THC two days before K.R.'s birth, although Mother and K.R. tested negative for illicit substances after K.R.'s birth. Mother had a history of substance abuse problems, including the use of heroin, methamphetamine, and marijuana. Mother lied to SSA personnel of the regarding the last time she had ingested illicit substances.
All further statutory references are to the Welfare and Institutions Code.
K.R.'s presumed father, T.R. (Father), was aware of Mother's substance abuse history. During a previous child abuse investigation involving Father's two other children (by a different mother), it was discovered that Father was using methamphetamine. Father had failed to show up for scheduled drug tests during that earlier investigation.
At the detention hearing, the court found: (1) a prima facie showing had been made that K.R. came within section 300; (2) it would be contrary to K.R.'s welfare to remain in the home of Mother or Father; (3) there was a substantial danger to K.R.'s physical or emotional health if she remained in the physical custody of Mother or Father; and (4) there were no reasonable means by which K.R.'s physical or emotional health could be protected without removing K.R. from the physical custody of Mother and Father. (§ 319, subd. (b)(1).)
2. Nolo Contendere Pleas to the Petition at the Jurisdiction Hearing
Mother and Father both pleaded nolo contendere to the allegations of the petition. The juvenile court found the allegations of the petition true by a preponderance of the evidence, and found that K.R. came within the court's jurisdiction pursuant to section 300, subdivision (b).
3. SSA's Pre-Disposition Hearing Reports
The maternal grandfather's home was evaluated for possible placement of K.R., with Mother also residing in the home. No areas of concern were revealed during a safety check of the home. SSA reported that neither the maternal grandfather nor the paternal grandmother were willing to accept placement of K.R.
Although most of Mother's drug tests were negative, she did have two positive test results for marijuana and one for alcohol; Mother denied any use of drugs or alcohol.
K.R.'s caregiver reported that K.R. had had several choking episodes. K.R. was given a prescription for reflux medication, and changed to a hypoallergenic baby formula.
The caregiver also reported that Mother's visits with K.R. "have gone well." Father, however, missed visits, came late or left early, and was not interested in dealing with K.R. when she became fussy.
Mother was participating in the other aspects of her case plan, specifically by completing random drug testing, attending self-help meetings, signing up for a substance abuse treatment program, and participating in counseling and in a parenting program. Father had not signed up for any classes, and had not submitted to any drug tests.
SSA recommended that K.R. be removed from Mother's and Father's custody, and that family reunification services be provided to Mother and Father. "The Social Services Agency continues to be concerned as the mother has not maintained even a short period of sobriety as evidenced by her recent positive test results for Cannabinoids and Alcohol. The mother has still not provided a reasonable explanation for the recent positive drug test results and continues to deny the use of methamphetamine prior to child's birth and the use of marijuana or alcohol recently. The Social Service Agency is concerned about the mother's lack of accountability despite her participation in supportive services. The Social Services Agency would like to see the mother establish a longer period of sobriety before [an] infant can safely be returned to her care." (Italics added.)
4. Disposition Hearing
At the disposition hearing, the social worker testified that she was concerned about Mother's continued use of drugs and alcohol, particularly in light of her history, and her denial of any substance abuse. Mother had just started counseling, drug treatment, and parenting classes. The social worker was concerned about Mother's ability to quickly respond to K.R.'s reflux problems if she were using drugs or alcohol. Mother cared appropriately for K.R. during visits.
The social worker was concerned about placing K.R. with Mother until she had "engaged in services enough to where she is acknowledging her drug use and where she is making progress with those issues." Placing K.R. with Mother in the maternal grandfather's house would not resolve the social worker's concerns because the maternal grandfather would not be present to provide constant supervision.
Mother also testified at the disposition hearing. She initially denied using drugs and alcohol, but eventually admitted her alcohol use. Mother did not believe K.R. had a problem with reflux.
The maternal grandfather testified that if Mother were living in his house with K.R., he would set conditions including a curfew, limiting who could come to the house, and making Mother face her addiction problem. The maternal grandfather promised to ensure that Mother was drug testing and to let SSA know if Mother was using drugs or refusing to test, although he admitted Mother had not been honest with him about her past drug use. He promised to support Mother throughout the process, but he could not be "on [her] every hour of the day," and could not accept placement of K.R. if SSA were to remove K.R. from Mother's custody.
After the disposition hearing, the juvenile court found by clear and convincing evidence that there was a risk of danger to K.R. if left in Mother's care. The court specifically found that "mom needs to have an extensive period of time without any positive tests." The court also expressed concern regarding Mother's restricted driver's license and transportation issues: "If there's a necessity to take this child to the emergency room or for emergency pediatric care, just like the foster mother had to, the court is concerned that Mother will not be able to respond in time." As to Father, the court expressed concerns that Father had not been testing and was not taking the full opportunity of visitation with K.R. Members of Father's household had not been cooperative with SSA.
K.R. was declared a dependent of the court. (§ 360, subd. (d).) The court found that reasonable efforts were made to prevent or eliminate the need for removal of K.R. from Mother's home, and that to vest custody of K.R. with Mother or Father would be detrimental to K.R.'s best interests. (§ 361, subd. (c)(1).) The court therefore vested custody of K.R. with SSA.
Mother timely filed a notice of appeal. Father did not appeal from the disposition order.
DISCUSSION
Mother argues on appeal that the disposition order must be reversed because there was not substantial evidence supporting the juvenile court's findings under section 361 that (1) remaining in Mother's custody would place K.R. in substantial danger, and (2) there were no reasonable means of protecting K.R. absent removal from Mother's custody.
Section 361 limits the ability of the juvenile court to remove a child from the physical custody of his or her parents. To do so, the juvenile court must find by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).)
"'The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children.' [Citations.] 'Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.' [Citation.] [¶] At the same time, jurisdictional findings are prima facie evidence the child cannot safely remain in the home. [Citation.] The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. [Citations.] [¶] The standard of review of a dispositional order on appeal is the substantial evidence test, 'bearing in mind the heightened burden of proof.' [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings or orders. [Citation.] On appeal, we do not pass on the credibility of witnesses, resolve conflicts in the evidence or weigh the evidence. Instead, we review the record in the light most favorable to the juvenile court's order to decide whether substantial evidence supports the order." (In re A.E. (2014) 228 Cal.App.4th 820, 825-826.)
In this case, we find the juvenile court's order removing K.R. from Mother's physical custody is supported by substantial evidence. As of the date of the disposition hearing in February 2018, Mother had only gone 14 days since she had tested positive for alcohol, and 20 days since she had tested positive for THC. Mother had an admitted history of methamphetamine and heroin use since 2015. She participated in a substance abuse program in 2015-2016, after which she remained sober for less than a year before she relapsed in September 2016. Although Mother claimed she had not used drugs since she learned she was pregnant, she had tested positive for methamphetamine two days before K.R. was born. The relatively short time within which Mother had not used drugs or alcohol, when contrasted with her lengthy period of drug use, during which she had numerous relapses, was simply insufficient to show that Mother would not turn back to using drugs and alcohol while K.R. was in her care.
We conclude that the short period of sobriety compared to the lengthy period of substance abuse and relapse is sufficient alone to support the juvenile court's finding of substantial danger under section 361. We note that other evidence supported the court's finding, including Mother's belief that K.R. did not actually suffer from reflux and her reliance on Father (who was not participating in his case plan) for transportation.
Mother also argues the juvenile court failed to adequately consider the reasonable means by which K.R. could have been left in her care and custody. We disagree. While the maternal grandfather was willing to allow Mother and K.R. to live in his home with his wife and teenage son, the evidence was that there would not be sufficient supervision in the home to ensure K.R.'s safety. The maternal grandfather could not be "on [Mother] every hour of the day," and was unwilling to undertake the full responsibilities of being K.R.'s caretaker. The maternal grandfather claimed to have a "really good, stern relationship" with Mother, and promised he would keep illegal substances and alcohol out of the house, ensure Mother went to drug testing, and advise SSA if she used any controlled substance or failed to attend testing. However, he had been unable to prevent Mother's previous abuse of drugs and alcohol.
Mother suggests that the juvenile court failed to consider alternatives such as the Conditional Release to Intensive Supervision Program (CRISP), an in-home coach, or wrap-around services for Mother. To the contrary, the social worker explained why the available services were simply insufficient in light of Mother's substance abuse history:
"Q. By [County Counsel]: Are there any constellation of services that you believe could be put into place today that would allow for the safe return of the child to Mother?
"A. I would still be—I can think of certain things to put into place but I would still be concerned regarding [Mother's] drug use and the possible—her not being able to respond to the child quickly.
"Q. What do you think could be put in place or how could you envision safely returning the child today if at all?
"A. Definitely CRISP services where we had a social worker going out several times a week but definitely more than two times a week, which is their standard. Something more in place as far as, like, supervision of mom as far as, like the grandfather, where he is more available and it's not necessarily where it could be chunks of time where she would be alone with the baby, where if something were to happen there would be someone else there to step in.
"Q. But there's nothing identified that would make that possible; is that right?
We recognize the question was "is that right?" and the answer was "no." Nevertheless, in context, it appears to us the witness was opining that there were no services that would reduce the risks discussed.
Given Mother's lengthy history of substance abuse, her very recent relapses with marijuana and alcohol, her use of methamphetamine during pregnancy, and K.R.'s reflux (which Mother denied), the juvenile court properly determined that there were no reasonable means for allowing Mother to retain custody of K.R. (In re Stephen W. (1990) 221 Cal.App.3d 629, 646 [if the only alternative to removal requires 24-hour supervision, removal is the only reasonable alternative].)
DISPOSITION
The order is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.