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In re Marcus P.

California Court of Appeals, Fourth District, First Division
Jul 29, 2008
No. D052460 (Cal. Ct. App. Jul. 29, 2008)

Opinion


In re MARCUS P. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. PAULINA P., Defendant and Appellant. D052460 California Court of Appeal, Fourth District, First Division July 29, 2008

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of San Diego County No. EJ2923A-B, Gary M. Bubis, Judge.

AARON, J.

Paulina P. appeals judgments declaring her children, Marcus P. and Adriana A., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and removing the children from her custody under section 361,

Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.

subdivision (c)(1). Paulina also contends that the court did not comply with notice provisions of the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. (ICWA), and applicable state law. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Paulina P. is the mother of Marcus P., born August 1995, and Adriana A., born November 2005 (together, children), and an adult daughter, K.P. Marcus and K.P.'s father is Paulina's estranged husband, Mark P. Marcus and K.P. lived with Mark in Oregon. While visiting Paulina after Adriana's birth, Marcus became concerned about Adriana and decided to stay with Paulina. Adriana is diagnosed with Downs Syndrome. Her alleged father is A.A.

On November 11, 2007 (November 11), Paulina telephoned 911 but hung up without saying anything. A sheriff's deputy was dispatched to her home. The deputy observed approximately seven hypodermic needles on the kitchen counter. Paulina told the deputy that Adriana's father had left the needles. The deputy believed that Paulina's appearance and demeanor were consistent with recent methamphetamine use, and arrested Paulina on drug charges. Paulina tested positive for methamphetamine/amphetamine.

The San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of the children under section 300, subdivision (b). The petitions alleged that the children were at substantial risk of serious physical harm or illness due to Paulina's methamphetamine use and the presence of hypodermic needles in the home, within the children's reach.

In initial interviews with the Agency, both Paulina and A.A. denied Native American Indian heritage. Mark reported that he had "very little" Native American Indian heritage from what he believed was the Osage tribe. The court ordered the Agency to notify the appropriate tribe and the Bureau of Indian Affairs (BIA).

The contested jurisdiction and disposition hearing was held on January 15 and 29, 2008. On January 15, Mark informed the court that Mark's birthplace and his mother's name were misspelled in the ICWA notice. The court ordered the Agency to send corrected ICWA notices, which it did on January 16, 2008. The court admitted in evidence the Agency's reports of November 15 and December 11, 2007, and January 7, 15 and 29, 2008.

The Agency reported that Paulina denied that she had ever used methamphetamine. Paulina asserted that A.A. had put methamphetamine in her tequila on November 11, and that she had tested positive in 2005 because she had been taking medicine. Paulina took a number of medications every day, including narcotic and other analgesic drugs, a muscle relaxant, and an antidepressant. Many of the drugs had been prescribed by physicians for a pinched nerve in her neck and for depression. In addition, Paulina had obtained supplies of Darvocet and Percodan from a neighbor.

In its report of January 7, 2008, the Agency stated that Paulina was voluntarily participating in offered services. Paulina was enrolled in the Substance Abuse Recovery Management System (SARMS) program, and was participating in an intensive outpatient treatment program and weekly therapy. SARMS reported that Paulina's progress was good. Paulina continued to assert that she had never used methamphetamine.

Marcus, age 12, told the social worker that he had witnessed physical altercations between Paulina and A.A. during which Paulina sustained injuries. Marcus believed that Paulina used sleeping pills because after she took the pills, Paulina would sleep for a long time. Marcus cared for Adriana while Paulina was sleeping. When Marcus arrived home from school, Paulina needed a break because she had been watching Adriana all day. Marcus completed his chores, which included cleaning the living room, vacuuming, making the beds and tidying the other areas of the house, and did his homework. Marcus then watched Adriana and played with her. Marcus said that he worried about Adriana when he was not with her.

Mark stated that he and Paulina had a history of methamphetamine use. In 2000, Mark was arrested for possession of methamphetamine and marijuana, and was convicted for second degree theft. He submitted documentation to the Agency showing that he had successfully completed substance abuse treatment in 2001 and that he was discharged from probation in May 2002.

The Agency attached the corrected form, "Notice of Child Custody Proceeding for Indian Child" (ICWA-030), and copies of certified mail receipts addressed to the Osage Tribe, the Secretary of the Interior, the BIA, and Mark and Paulina to its supplemental report of January 29, 2008. The court found that the ICWA notice met the requirements of the statute.

Paulina testified that on the morning of November 11, A.A. picked up the children at her home. Paulina gave Adriana's diaper bag to A.A. After A.A. returned the children that evening, Paulina found syringes in the diaper bag and telephoned the police.

Paulina asserted that she had not knowingly used methamphetamine. According to Paulina, the day after she was arrested, A.A. confessed to her that he had put methamphetamine in her drink. Paulina said that on November 11, A.A. brought her two 24-ounce cans of Coors Light, opened one can of beer, and handed it to her. A.A. did not bring any tequila to Paulina's home. Paulina had a new bottle of tequila at home.

Paulina testified that she had prescriptions for eight or nine different medications, and that she had also obtained painkillers from a neighbor. She took the medications for a stiff neck. Paulina drank alcoholic beverages from one to six times each week, and usually consumed three to four drinks on each occasion. On November 11, Paulina had been drinking tequila, Coors light beer and "Fours," a new alcoholic energy drink. Paulina asserted that she did not become intoxicated and denied that she had ever used methamphetamine.

A.A. testified that on the morning of November 11, he picked up the children to take them to a birthday party for Adriana. At the party, A.A. saw someone putting methamphetamine into a bottle of vodka. When he returned the children in the evening, A.A. gave Adriana's diaper bag to Paulina and started to leave. A.A. then realized that he had left his syringes and the bottle of vodka in the diaper bag and returned to the house to retrieve the items. Paulina would not open the door. A.A. stated that he used heroin and "crystal meth." He was not aware that Paulina used methamphetamine.

The court found that Paulina and A.A. were not credible witnesses. The court sustained the section 300 petitions by clear and convincing evidence, and removed the children from Paulina's custody under section 361, subdivision (c)(1). The court placed Marcus with his father and placed Adriana with a paternal relative. The court ordered a plan of family reunification services for Paulina and the children.

DISCUSSION

I

There Is Substantial Evidence to Support the Findings Under Section 300, Subdivision (b)

Paulina contends that there was insufficient evidence at the time of the section 300 hearing to support the findings that Marcus and Adriana were at substantial risk of serious physical harm. Relying on In re Henry V. (2004) 119 Cal.App.4th 522 and In re Basilio T. (1992) 4 Cal.App.4th 155, Paulina argues that the incident on November 11 was an isolated event, and that neither child suffered any harm as a result of her drug use on that date. Paulina asserts that the evidence does not show that she has an ongoing substance abuse problem.

The Agency contends that there is substantial evidence to support the court's findings in that the record shows that Paulina had a substance abuse problem, and that she had drug paraphernalia in her home within the children's reach. The Agency acknowledges that Paulina took some steps to address her problems after the children were detained, but argues that those steps did not resolve the protective risks to the children. Minors' counsel joins the Agency's brief.

At the jurisdiction hearing, the court considers only the question whether the child is described by section 300 at the time of the hearing. Under section 300, subdivision (b), the Agency must show: "(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." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The Agency has the burden of proving by a preponderance of the evidence allegations that a child is a person described by section 300. (§ 355, subd. (a).)

We review the trial court's findings to determine whether there is substantial evidence to support them. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The evidence must be reasonable in nature, credible, and of solid value. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order at issue. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

The record in this case fully supports the finding that the children were described by section 300, subdivision (b). The evidence shows that Paulina had a long-standing, ongoing, serious substance abuse problem. Mark stated that he and Paulina used methamphetamine together before they separated in 1999. Paulina tested positive for methamphetamine at a prenatal visit in 2005 and upon her arrest on drug charges in November 2007. In addition to methamphetamine use, the record shows that Paulina used multiple prescription medications, some of which she obtained illegally, on a daily basis. Paulina acknowledged that she would drink alcoholic beverages while taking prescription medications, including narcotic analgesics. She could not explain why this practice was dangerous.

Contrary to Paulina's assertions, the incident on November 11 was not an isolated event. There is clear evidence that Paulina had a serious, long-standing substance abuse problem. The presence of methamphetamine and other drugs in the home environment constitutes a serious protective risk to the children. (§ 300.2 ["The provision of 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"].) The record also permits the reasonable inferences that Marcus assumed responsibility for Adriana's care while Paulina was under the influence, and that Paulina did not recognize that her habitual substance abuse created a substantial risk of serious harm to her children (and to herself). We conclude that there is substantial evidence to support the court's findings under section 300, subdivision (b).

II

There Is Substantial Evidence to Support the Removal Order Under Section 361, Subdivision (c)(1)

Paulina contends that the court erred when it removed Marcus and Adriana from her home. She argues that in view of her progress with drug treatment and therapeutic services, and her loving and affectionate relationships with the children, the evidence was insufficient to support a finding that there would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being if they were to remain in Paulina's home. (§ 361, subd. (c)(1).) Paulina further contends that the court erred when it did not consider whether there were reasonable means to protect the children's physical healthwithout removing the children from her home. (Ibid.)

The Agency contends that the court properly removed Marcus and Adriana from Paulina's care. It asserts that the risks to the children were too great to allow the court to safely maintain the children in Paulina's care under a plan of family maintenance services.

At the dispositional hearing, there is a statutory presumption that the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A child who is a dependent of the juvenile court shall not be removed from the home unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the child's physical healthwithout removing the child from parental custody. (§ 361, subd. (c)(1); In re Henry V., supra, 119 Cal.App.4th at p. 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)

Despite the burden of clear and convincing evidence required for the removal of a child from parental custody at disposition, "we employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

There is an overlap between a finding of jurisdiction based on a substantial risk of serious physical harm under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826 [referring to earlier version of the statute].) The child need not have been actually harmed before removal is appropriate; the focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B. G. (1974) 11 Cal.3d 679, 699.) Here, as we discussed earlier in this opinion, the evidence supports the finding, by clear and convincing evidence, that the children were at substantial risk of serious physical harm due to Paulina's drug and alcohol abuse, and the presence of hypodermic needles in her home that were within the children's reach.

While the record indicates that Paulina was motivated to participate in reunification services, it also supports the finding that in-home services and protective supervision would not reasonably allow the court to safely maintain the children at home. Despite Paulina's cooperation with offered services, Paulina did not recognize that her chronic substance abuse directly impacted her ability to properly care for her children. Paulina's chronic substance abuse, and her failure to recognize the substantial dangers it presented to her children, constitutes substantial evidence that there were no reasonable means to safely maintain the children in the home.

In addition to Paulina's substance abuse, there were additional risk factors in her home that increased the risk of physical harm to the children. The record shows that Paulina was aware that A.A. used heroin and methamphetamine, yet she allowed him to care for the children. Paulina knew that A.A. was drinking when he arrived at her home on the morning of November 11, yet she allowed A.A. to drive with the children in the car. Further, there was a history of domestic violence in the home: Marcus had observed physical altercations between Paulina and A.A. The social worker was concerned that Marcus was attending to Adriana's needs while Paulina was under the influence.

The court characterized Paulina's testimony as "incredulous" and a "fairy tale," and stated that it was "almost insulted" at the level of Paulina's deception. The court could reasonably infer that maintaining the children in Paulina's home would be dangerous for the children while Paulina continued to fabricate stories about, and deny, her drug use. We conclude that there is substantial evidence to support the findings that there was a substantial danger to the children's safety, protection and well-being in Paulina's home, and that there were no reasonable means to protect the children's physical health without removal from Paulina's custody. (§ 361, subd. (c)(1).)

III

The ICWA Notice Error Is Harmless

Under the notice provisions of ICWA, if the court knows or has reason to know that an Indian child is involved in a child custody proceeding for foster care, guardianship, termination of parental rights or adoption, the agency must notify the Indian child's tribe or, if the identity of the tribe is unknown, the BIA of the proceedings. (25 U.S.C. § 1912(a); §§ 224.1, 224.2; In re Daniel M. (2003) 110 Cal.App.4th 703, 707.) Except for a detention hearing, the court cannot hold any child custody proceeding until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe or the BIA. (§ 224.2, subds. (d), (e); 25 U.S.C. § 1912(a); In re Cody B. (2007) 153 Cal.App.4th 1004, 1013.)

The ICWA notice, and return receipts and responses of the BIA or tribe, if any, must be filed with the juvenile court in advance of the hearing. (§ 224.2, subd. (c); In re Karla C. (2003) 113 Cal.App.4th 166, 175-176.) The failure to file the notice may be deemed harmless error. (In re Karla C., at p. 178.)

In this case, the Agency mailed the corrected ICWA notice to the proper parties on January 16, 2008, and attached the corrected notice and copies of the certified mail receipts to its January 29 report to the court. Paulina contends that the court erred when it held child custody proceedings without proof that the tribe and the BIA had received notice at least 10 days before the hearing. She maintains that the ICWA notice error requires reversal of the jurisdiction and disposition hearings.

The Agency asserts that ICWA notice is required only where the Agency is "seeking foster care placement of, or termination of parental rights to, an Indian child." (25 U.S.C. § 1912(a).) The Agency argues that because the court placed Marcus with his father, ICWA notice was no longer required, and the issue has been rendered moot. Alternatively, the Agency argues that the error was harmless and should be subject only to a limited remand for ICWA compliance. The Agency contends that under the facts of this case, there was no evidence to show that the court would not have placed Marcus with his father; thus the error was not sufficiently prejudicial to justify reversal of the jurisdiction and disposition hearings. (People v. Watson (1956) 46 Cal.2d 818, 836; Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 819.)

We observe that, in Marcus's case, ICWA notice was initially required under applicable federal and state law. The Agency and the court should have fully complied with notice provisions under section 224.2 and ICWA section 1912. However, in view of the fact that the court placed Marcus with his father, together with the evidence filed with the court showing that the Agency correctly completed the required ICWA notice form, mailed notice of the proceedings to the tribe and the BIA, and certified the mailing, we conclude that the error does not require reversal of the court's findings and orders. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836; In re Karla C., supra, 113 Cal.App.4th at p. 178.)

If it has not already done so, the Agency should file with the court the return receipts and responses of the BIA or tribe, if any. (§ 224.2, subd. (c); In re Karla C., supra, 113 Cal.App.4th at pp. 166-167, 175-176.)

DISPOSITION

The judgments are affirmed.

WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.


Summaries of

In re Marcus P.

California Court of Appeals, Fourth District, First Division
Jul 29, 2008
No. D052460 (Cal. Ct. App. Jul. 29, 2008)
Case details for

In re Marcus P.

Case Details

Full title:In re MARCUS P. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 29, 2008

Citations

No. D052460 (Cal. Ct. App. Jul. 29, 2008)