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In re Eduardo B.

California Court of Appeals, Second District, Second Division
Apr 14, 2010
No. B217349 (Cal. Ct. App. Apr. 14, 2010)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK76916. Jacqueline Lewis, Juvenile Court Referee.

Lee S. Gulliver, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Defendants and Respondents.


ASHMANN-GERST, J.

The minor, Eduardo B., Jr. (Eduardo, born Mar. 2000), challenges a juvenile court order finding him a person described by Welfare and Institutions Code section 300, subdivision (b), and taking jurisdiction over him. Eduardo contends that insufficient evidence supports the juvenile court’s order.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Because Eduardo requested that the juvenile court take jurisdiction over him, he cannot complain on appeal of error; any error was invited. Setting aside that procedural obstacle, substantial evidence supports the juvenile court’s finding that Eduardo fell within the ambit of section 300, subdivision (b). Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Referral and removal of Eduardo from his mother’s residence

On January 9, 2009, the Department of Children and Family Services (DCFS) received an anonymous referral that Eduardo’s mother, Marcia L. (mother), was using drugs. The caller also reported that mother had stolen his relative’s personal information and had committed identity theft and fraud.

When the DCFS emergency services social worker spoke to Eduardo, he admitted that mother had used drugs. She had told him that she used drugs before he was born. He reported that mother took good care of him. He also stated that while mother and his father, Eduardo B., Sr. (father), did not live together, he spent time with both father and mother.

Mother reported to the social worker that she was a recovering addict and that she had undergone drug treatment in 2003 for methamphetamine use; however, she had been asked to leave the program after nine months because she had relapsed twice. She also admitted that she might have stolen money when she was actively using drugs some time ago.

Mother also stated that she had relapsed in November 2008, but immediately entered a two-week recovery group. She showed the social worker a certificate of completion, reflecting her attendance through December 5, 2008. Mother claimed that she attended Narcotics Anonymous three times per week. She also told the social worker that she was waiting for government aid so that she could enroll in an outpatient program.

That being said, mother admitted that she had relapsed most recently on January 8, 2009, and a drug test administered by DCFS produced positive results for amphetamines and methamphetamines.

A team decision meeting was held and mother was provided with voluntary family maintenance services. But, on April 1, 2009, mother again tested positive for methamphetamines. Eduardo was detained from mother’s custody and residence and placed with father.

DCFS files a section 300 petition on Eduardo’s behalf

On April 16, 2009, DCFS filed a petition on behalf of Eduardo pursuant to section 300, subdivision (b). The petition alleged that Eduardo was at risk because mother had a seven-year history of substance abuse and was a current abuser of amphetamine and methamphetamine. It was further alleged that father knew of mother’s drug use but had failed to take action to protect Eduardo.

Detention hearing

At the detention hearing, the parties represented to the juvenile court that Eduardo spent equal time with each parent; each parent had custody of him for three days one week, and then four days the following week.

Eduardo’s counsel argued that DCFS had not provided any evidence that Eduardo was abused or neglected. In fact, there was no indication that mother had used drugs while Eduardo was in her care. She opined that as long as mother was enrolled in a drug treatment program, Eduardo was safe in a continued shared custody arrangement.

Mother’s counsel joined with Eduardo’s counsel, claiming that although mother had admitted to a relapse in April 2009, she had never used drugs or alcohol while Eduardo was in her custody. Counsel also represented that mother was enrolled in an outpatient drug treatment program, and mother was willing to enter an inpatient program if necessary.

Father’s counsel stated that father had never seen mother using drugs around Eduardo. He had closely monitored mother’s care of Eduardo. He had no objections to the juvenile court releasing Eduardo to mother, although he was willing and able to look after his son.

The juvenile court detained Eduardo from mother’s custody and released him to father. It found that a prima facie case had been shown by DCFS, pointing out that mother’s drug use involved methamphetamine and that mother had had two positive tests for this drug. It further determined that DCFS had made reasonable efforts to prevent Eduardo’s removal from mother. Finally, it ordered that DCFS provide mother with referrals for drug rehabilitation, random testing, and parenting. Once mother was in a drug treatment program and had clean test results, she could have unsupervised visitation with Eduardo. Until that time, father was granted permission to supervise visits between mother and Eduardo.

Mother’s arrest

On April 20, 2009, mother was arrested for a theft that had allegedly occurred several years earlier. She was released from jail on bail on May 5, 2009.

Jurisdiction/disposition report

In its May 11, 2009, jurisdiction/disposition report, DCFS reported that Eduardo remained placed with father. Father stated that he did not believe that he had put Eduardo at risk of harm because he would never allow his son to be around mother when she was using drugs. He explained that if mother were going out to use drugs, she would drop Eduardo off with him. Father was upset that the DCFS social worker had gone to Eduardo’s school to interview him; Eduardo had been embarrassed that his schoolmates knew that a social worker had gone to interview him. Finally, father stated that he had lived with mother for five years and he knew when she was high on drugs.

Mother stated that she did not take any drugs and she could not understand why she had tested positive for methamphetamine on April 1, 2009. She could only explain that she went to a friend’s house and left when her friends started smoking methamphetamine. She reiterated that before the voluntary family maintenance services had begun, she would always take Eduardo to father’s home when she wanted to use drugs. She stated that Eduardo was very well-taken care of and was doing well in school. She acknowledged that father was a very good parent, and he would not have allowed her to care for their son if he knew that he was putting Eduardo in danger. She accepted responsibility for the situation that the family was in, and vowed to get the help that she needed so that she did not lose more time with her son.

The social worker reported that mother was enrolled in an outpatient drug rehabilitation program. Moreover, mother had participated in a drug rehabilitation program and a parenting class while she was incarcerated. Mother had informed the social worker that she intended to reenroll in a drug rehabilitation program while she awaited sentencing on the criminal charges filed against her.

Eduardo was described as developmentally on-target, with no mental or emotional disturbances; he also was an excellent student. He reported that while he enjoyed living with father, he missed mother and wanted to live with her. Eduardo stated that he had never seen mother use drugs or smoke or “do bad stuff.” He described mother as a “good mom.”

Mediation

On May 27, 2009, the parties mediated all jurisdictional and dispositional issues. The mediated petition language indicated that mother had a history of periodic substance abuse, which interfered with her ability to provide regular care for Eduardo and placed him at substantial risk of physical and emotional harm; and that mother had tested positive for amphetamine and methamphetamine on April 1, 2009. Regarding disposition, the parties agreed that Eduardo should remain with father and that family maintenance services would be provided to him. Mother was to complete reunification services, including a substance abuse rehabilitation program with counseling and random drug testing. She also was to have supervised visitation with Eduardo.

Jurisdiction/disposition hearing

At the hearing on May 27, 2009, mother pled no contest to the amended section 300 petition and waived her rights to a contested hearing. Father also waived his rights and submitted on DCFS’s reports.

The juvenile court sustained the allegations of the amended section 300 petition and took jurisdiction over Eduardo, finding that he was a person described by section 300, subdivision (b). It stated that it did not see what the risk was to Eduardo being in father’s home and followed by indicating that if it determined that there was no risk, it would terminate jurisdiction over Eduardo with a family law order. Then, the juvenile court continued the matter for a contested disposition hearing to give the parties the opportunity to present any evidence of risk that might exist if the matter were terminated with father having sole custody of Eduardo.

Throughout the proceedings on May 27, 2009, Eduardo’s counsel, Ms. Estaire Press, was silent.

Continued contested disposition hearing

At the contested dispositional hearing on June 10, 2009, mother submitted on the juvenile court’s prior indication that it would make family law orders granting custody to father and then dismissing the dependency matter. Father submitted the issue of disposition to the juvenile court.

Ms. Press argued that even though mother had a seven-year history of substance abuse and was a current abuser of drugs, there was no nexus between mother’s drug use and any harm to Eduardo. He had lived with mother with no problems. He was doing well in school and was in good health. He was very happy with the joint custody arrangement that existed between his parents. Counsel explained that Eduardo’s life had only been negatively impacted by DCFS’s intervention in it.

Ms. Press concluded her argument with the following comment: “There are cases that uphold the court’s ability to make that decision to continue its jurisdiction. It’s not mandated to terminate jurisdiction when a child is placed with a non-offending, non-custodial parent.” Thus, she asked that the juvenile court “not terminate jurisdiction with the proposed family law order of full legal and physical custody to the dad, monitored visits to the mother with a monitor approved of by the father or a professional monitor paid for by the mother. [¶] I am requesting on behalf of Eduardo that the court allow him to have unmonitored visits with his mother, that it be sole physical custody to the father, joint legal, and that mother be offered reunification services, a drug program with random testing, and individual counseling to address her drug issues.”

After entertaining oral argument, the juvenile court declared Eduardo a dependent of the court pursuant to section 300, subdivision (b). It found by clear and convincing evidence that there was a substantial danger to Eduardo if he was returned to mother’s care and that there were no reasonable means to protect him without a removal order. It also found that reasonable efforts had been made to prevent his removal from mother’s custody.

The juvenile court further determined that any embarrassment that Eduardo had suffered as a result of the DCFS interview at school was directly due to mother’s continuing drug use. In fact, mother had gone to jail because of her drug use and subsequent alleged acts of fraud and theft.

Moreover, the juvenile court found that amphetamine and methamphetamine use was, in and of itself, detrimental to the user’s child. “It is clear to me, after doing this for many years, that the use of amphetamine and methamphetamine is an incredibly harmful thing and is, in and of itself, detrimental.” Mother was denied reunification services, but was allowed to continue to have supervised visitation with Eduardo, with DCFS discretion to liberalize visitation.

Eduardo was ordered placed with father. Also, father was provided with family maintenance services, including an Alanon program, so that father could “understand the [effects] of drug use on his child, and make sure that he [could] adequately protect [Eduardo].”

Appeal

Eduardo’s timely appeal ensued. Neither mother nor father appeals from the juvenile court’s jurisdiction and disposition orders.

DISCUSSION

Eduardo argues that the juvenile court erred in taking jurisdiction over him. The problem with this argument is that Eduardo specifically asked that he be declared a dependent of the juvenile court and that the juvenile court not terminate jurisdiction. “[W]here a party, for tactical reasons, persuades the trial court to follow a particular procedure. The party is estopped from claiming that the procedure was unlawful.” (In re Jamie R. (2001) 90 Cal.App.4th 766, 772.) It follows that Eduardo cannot challenge the juvenile court’s jurisdictional and dispositional orders on appeal.

Even if Eduardo had not invited the alleged error, we would still affirm the juvenile court’s order. “In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could find [that the order is appropriate].”’” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

“A juvenile court may determine a child is subject to the court’s jurisdiction if it finds by a preponderance of the evidence that ‘[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 a parent’s failure or inability to adequately supervise or protect the child, a parent’s failure to provide the child with adequate food, clothing, shelter, or medical treatment, or a parent’s inability to care for the child due to the parents’ mental illness, developmental disability, or substance abuse. (§ 300, subd. (b).)” (In re David M. (2005) 134 Cal.App.4th 822, 829.)

“‘The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ [Citation.]” (In re David M., supra, 134 Cal.App.4th at p. 829.)

Eduardo argues that the second and third factors are absent; there is no evidence that Eduardo was harmed or might by harmed by mother’s drug use. Ample evidence indicates otherwise. In particular, mother pled no contest to the allegations set forth in the amended section 300 petition, thereby “admit[ting] all matters essential to the court’s jurisdiction over the minor.” (In re Troy Z. (1992) 3 Cal.4th 1170, 1181.) And, as DCFS points out in its respondent’s brief, Eduardo did not object to mother’s no contest plea.

Moreover, the juvenile court determined that the problems Eduardo encountered at school following DCFS involvement with this family were the direct result of mother’s drug use and her ensuing time in jail. In so ruling, the juvenile court rejected the claim that DCFS was to blame for Eduardo’s embarrassment at school.

Furthermore, the juvenile court found that mother’s long history of amphetamine and methamphetamine use was an “incredibly harmful thing and is, in and of itself, detrimental.” Our Supreme Court has even so noted. (See People v. Martinez (2009) 47 Cal.4th 399, 413; People v. Schmeck (2005) 37 Cal.4th 240, 257.) Notwithstanding father’s efforts to ensure that Eduardo did not see mother use drugs and his willingness to care for Eduardo when mother was using drugs, mother’s pattern of substance abuse places Eduardo at risk. (Contra, Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346 .)

DISPOSITION

The juvenile court’s order is affirmed.

We concur: DOI TODD, Acting P. J., CHAVEZ, J.


Summaries of

In re Eduardo B.

California Court of Appeals, Second District, Second Division
Apr 14, 2010
No. B217349 (Cal. Ct. App. Apr. 14, 2010)
Case details for

In re Eduardo B.

Case Details

Full title:In re EDUARDO B., JR., a Person Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Second Division

Date published: Apr 14, 2010

Citations

No. B217349 (Cal. Ct. App. Apr. 14, 2010)