Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Nos. JD114431-00, JD115235-00, JD115236-00 & JD115237-00, Peter A. Warmerdam, Juvenile Court Referee.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CORNELL, J.
L.F. is the mother of four children: 15-year-old M.F., 10-year-old P.F., eight-year-old Ta.F., and seven-year-old Ti.F (collectively the children). The Kern County Department of Human Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300 alleging the children came within the jurisdiction of the juvenile court. The juvenile court found it had jurisdiction over the children, removed them from their parents’ custody, and ordered reunification services for both parents. Mother’s primary issue, although not the only issue, was habitual marijuana use. The reunification plan required mother to complete random drug tests.
These were the children’s ages at the time the first petitions were filed.
There were virtually identical petitions and supplemental petitions filed for each child. To ease the reader’s task we will refer only to one petition, one supplemental petition, and one order.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Mother eventually completed her plan and regained custody of the children. Shortly thereafter she submitted several samples that tested positive for marijuana. The Department filed a supplemental petition alleging that mother’s continued use of illegal drugs established that the prior orders had not been effective in the protection of the children. (§ 387.) The juvenile court found the allegations of the petition true and removed the children from mother’s custody, with a plan of placing them in long-term foster care.
Mother argues that neither the juvenile court’s order finding the petition true nor the order removing the children from her custody was supported by substantial evidence. Simply put, mother argues that mere use of illegal drugs, without more, does not establish that the previous order was not effective in protecting the children, nor does such use establish a substantial risk to the children.
Under the facts of this case, we agree. Mother and the children had a strong bond, mother admitted smoking marijuana for pain, but did so only when the children were in school, the children confirmed that mother did not smoke marijuana in their presence, there was no marijuana found in the residence, the family had adequate food, shelter and clothing, the children were attending school, and mother was employed. The Department did not present any evidence suggesting the children were at risk. The Department’s failure to do so required the juvenile court to deny the petition. We will reverse the order that did not do so.
FACTUAL AND PROCEDURAL SUMMARY
I. The Original Proceedings
A. The 2007 petition
A section 300 petition was filed on July 17, 2007, alleging that P.F., Ta.F. and Ti.F. came within the jurisdiction of the juvenile court for various reasons. The petition alleged that (1) there was a substantial risk that the children would suffer physical harm because of their father’s (Ma.F.) abuse; (2) there was a substantial risk the children would suffer serious physical harm or illness caused by mother’s failure to provide care due to mother’s and father’s substance abuse; (3) there was a substantial risk the children would suffer physical harm because of mother’s failure to protect them from father’s physical abuse, substance abuse, and domestic violence; and (4) there was a substantial risk the children would suffer physical harm because of father’s failure to protect the children from mother’s substance abuse and domestic violence.
M.F.’s petition was filed on August 6, 2007.
B. The detention social study
The Department filed a social study for the detention hearing, which documented the incident that led to the detention of the children. When the social worker and police responded to the residence, the children reported that the family had lived at the current address for a short while and before that had lived in an aunt’s apartment, on the streets, and at a motel. They currently were living with a couple that offered to give the family a place to stay. P.F. stated she was not abused and denied that her parents used drugs. Ti.F. stated she was spanked by father and that father hit her on the knee, causing a bruise. Ti.F. also stated her parents smoked marijuana. Ta.F. stated she got spanked with an open hand, but denied that her parents used drugs. M.F. stated that she was not spanked, but the younger children were spanked. She denied that her parents used drugs. In subsequent interviews, the children confirmed repeated episodes of domestic violence, involving both parents as aggressors, and that mother and father smoked marijuana (P.F. denied that her parents ever fought or smoked marijuana).
Father was arrested on outstanding warrants related to the 2000 child cruelty charges. Father admitted pan handling to support the family and admitted he and mother smoked marijuana.
Mother blamed anyone but herself for her problems. She admitted that she and father smoked marijuana, but asserted they did not do so at their current residence. Mother explained that she and father pan handled and collected scrap metal to support the family. She was argumentative throughout the interview.
The social study also reviewed the family’s history with social services. In September 1997, father threw a pair of pliers against the wall, which struck P.F. in the face when they fell. A June 2002 referral resulted in the arrest of mother on an outstanding warrant and father fleeing when he saw mother being arrested. The children were removed from the parents’ custody and released to the paternal grandparents.
A referral was received in October 2005. The investigation concluded that father had a long history of alcohol abuse, had a previous Penal Code section 273 conviction (described above), had failed to comply with court recommendations, and the family had been homeless since the summer of 2005, although currently they were residing with a relative. It appears that at the time of the investigation father had stopped drinking. Mother reported that she and father smoked marijuana regularly and that she and father were seeking employment. The parents resisted offers of help.
A referral was received in March 2006 claiming father was an alcoholic and both parents used drugs. Many allegations were made without the benefit of any facts to support the allegations. The social study claimed the allegations of general neglect were substantiated without citing any facts to support this conclusion. The social study stated both parents admitted smoking marijuana, although it is unclear when the admission was made.
The next referral was received in May 2006, alleging the family was homeless and without food. Investigation revealed the family was living in a motel with adequate food.
Another referral was received in October 2006. An argument between mother and father escalated when mother pushed father causing him to fall and strike his head. The argument apparently was instigated by father’s intoxication. The social worker had concerns about father’s perceived mental health and substance abuse issues. She also had concerns because of the family’s history of homelessness. There was no evidence, however, of emotional abuse by mother.
The social study recommended the children be detained and services be provided to the parents.
C. The jurisdictional/dispositional social studies
The jurisdictional and dispositional hearings were held in September. The juvenile court was provided with a social study and three supplemental reports. The social study repeated the information described above. In subsequent contacts with mother, the social worker stated that mother denied there were any problems and often was hostile to the social worker. During visits, mother ignored instructions not to discuss the case with the children or tell them they were in foster care because of antagonism between the social worker and mother. Mother refused to accept any responsibility for the situation, instead blaming father for all family issues. Mother admitted smoking marijuana in early July and being homeless in late July.
Mother consistently asked for the return of her children. Her visits demonstrated a bond with the children. At various points, mother agreed to comply with aspects of the case plan, but disagreed with, and refused to comply with, other aspects of the case. Mother’s behavior at family visits improved over time. In late July 2007 mother and father reunited. The two, however, were observed in an angry verbal exchange at the Department that was terminated by security before it could escalate into a physical altercation.
The social study concluded there was a long history of mutual domestic violence and substance abuse. There also was evidence that father abused the children. Accordingly, the social study recommended that the juvenile court find the allegations of the petition true.
A supplemental social study stated that a mental health assessment indicated mother needed substance abuse and anger management counseling. In addition, mother submitted two positive tests for marijuana.
Another supplemental social study stated that mother submitted another positive test for marijuana.
A third supplemental social study indicated that mother had been communicating with the older children through e-mails. In one message, mother asked the girls for their “help when you take the stand.” Such contact was in violation of the juvenile court’s order that prohibited mother from having unsupervised contact with the children.
D. The jurisdictional/detention hearings
The juvenile court found the allegations of the petition true as stated above and assumed jurisdiction over the children. The juvenile court ordered the children detained and reunification services to mother and father. Mother was ordered to participate in anger management, parenting, and substance abuse counseling. A visitation schedule was established. The juvenile court ordered an evaluation to determine whether the maternal grandmother, who was located in Idaho, was a suitable candidate for placement of the children.
The parties stipulated that two allegations could be dismissed without prejudice. These allegations are not discussed in this summary.
II. Subsequent Hearings
A. The review hearing
A review hearing was held in April 2008. The social study prepared for that hearing indicated the children had been placed with the maternal grandmother in Idaho, in the preceding November. Mother continued to deny any responsibility for her current situation and accused the Department of conspiring to take her children away from her. She had enrolled in substance abuse counseling, but her participation was poor. She had not participated in random drug testing as required by her reunification plan. She provided one negative drug test, while others indicated she continued to use marijuana. Mother completed her parenting class. She visited consistently with the children and there appeared to be a strong bond between family members. The social study recommended an additional six months of services for mother. The juvenile court adopted the Department’s recommendations.
B. Mother’s request for reunification
Mother then filed a petition seeking to be reunited with her children. The hearing was held in July 2008. The social study prepared for the hearing stated mother had completed her anger management and substance abuse classes and had submitted negative drug tests in May, June and July. Accordingly, the Department recommended that mother’s request to reside with the children and maternal grandmother be approved. The juvenile court granted the petition.
III. The Supplemental Petition
A. The petition
The Department filed a supplemental petition pursuant to section 387 in November. The petition alleged the children were at risk of suffering physical harm or illness due to mother’s use of illegal drugs. The petition alleged mother tested positive for marijuana in September, October and November. Mother also failed to test once in each of the above months. The November drug test indicated mother tested positive for the presence of amphetamine and methamphetamine.
B. The detention social study
The social study prepared for the detention hearing confirmed the facts alleged in the petition. No facts were alleged to indicate why the children were at risk of physical harm as a result of mother’s drug use. The children were ordered detained from mother at the detention hearing.
C. The jurisdictional social study
Another social study was prepared for the jurisdictional hearing. The only new information provided was that on November 26, 2008, mother failed to submit to drug testing, resulting in a presumed positive test. On December 3 mother tested positive for marijuana.
The analysis portion of the social study repeated the requirements imposed on mother when the children were returned to her care and her missed and failed drug tests as outlined above. The social study noted that mother was ordered to enter substance abuse counseling upon a positive drug test, and had failed to do so. The report concluded, “The mother has continued to place her children at risk by her use of illegal controlled substances as evidenced by the three positive urine drug tests and three presumptive positive drug tests during the time the children were placed in her care. Since the children were removed from her home[,] the mother has again failed to submit to drug testing and has tested positive for illegal controlled substances. [¶] Based upon this evidence it is the [Department’s] opinion the allegations of the petition filed November 24, 2008, pursuant to Welfare and Institutions Code section 387 are true.”
D. The jurisdictional hearing
M.F., P.F. and mother testified at the contested jurisdictional hearing. M.F. testified she was 16 years old and was living with her mother until removed in November. She was not afraid for her safety while with her mother, nor did she feel unsafe. Mother provided food, shelter and clothing. The children attended school regularly. While M.F. knew mother smoked marijuana, mother did not do so in front of her. Mother always took care of the children.
P.F. was 11 years old. She denied feeling unsafe or seeing her mother smoke marijuana. There was adequate food in the house, and the house would be cleaned when it was dirty. Her mother was nice and loving. The children attended school, and her mother made sure the children did their homework.
Mother testified she received custody of her children in July 2008, with a family maintenance plan. The family returned to Bakersfield in September and lived with the children’s aunt. Mother admitted she sometimes smoked marijuana, but denied using methamphetamine in over 10 years. Mother could not explain the positive test for methamphetamine. Mother began smoking marijuana approximately two times per week in September because she was having back problems and the marijuana helped with the pain. She did not feel that smoking marijuana impaired her ability to be a parent. Mother recently had received a medical marijuana prescription. She did not smoke marijuana in front of the children, but instead waited until after the children had left for school. Mother was employed and offered to stop smoking marijuana if she could retain custody of the children.
The juvenile court observed that the social study documented mother’s failure to comply with court orders, but did not state that as a result of the failure there was an increased risk of physical harm to the children. The juvenile court then asked the Department to explain why previous orders had not been effective in protecting the child. The Department responded, “[mother] is still using drugs. She is supposed to stay away from the drugs and she continues to use drugs; otherwise, why do we have jurisdiction?”
Despite recognizing the absence of any evidence that mother’s use of drugs had placed the children at risk, the juvenile court found the allegations of the petition true.
E. The dispositional social study/hearing
The social study prepared for the dispositional hearing noted that mother had enrolled in substance abuse counseling, but apparently did not view her marijuana use as problematic. Placement with mother was considered and rejected because of her drug use. The children were found not likely to be adopted. Visitation between mother and the children went well. The Department recommended that no further reunification services be provided to mother because there was not a substantial probability she would address her substance abuse issue within the time remaining for reunification with the children (one month). The Department concluded that “[a] planned permanent living arrangement is appropriate.” The juvenile court adopted the recommendations of the Department. The juvenile court was hopeful the grandmother could accept legal guardianship of the children but, since she resided in a different state, could not make any findings or orders on that issue at the hearing.
DISCUSSION
Mother argues the juvenile court erred in finding the allegations of the supplemental petition true and in ordering the children removed from her custody because neither order was supported by sufficient evidence.
Statutory Requirements
Whenever the Department seeks to modify a previous order by removing a child from the custody of a parent and placing that child in foster care, the Department must file a petition pursuant to section 387. (§ 387, subd. (a).) The petition must contain “facts sufficient to support the conclusion that the previous disposition has not been effective in the … protection of the child.” (Id., subd. (b).)
While section 387 speaks of the need to protect the child, removal from the care and custody of the parents requires the juvenile court find that the requirements of section 361 have been met. (In re Paul E. (1995) 39 Cal.App.4th 996, 1003 (Paul E.).) Section 361, subdivision (c) provides that a dependent child may not be removed from the custody of his or her parent unless there is clear and convincing evidence that one of six specific conditions exist. The only condition that the facts of this case suggest could apply is subdivision (c)(1) of section 361, which requires “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.”
Standard of Review
Our review of the record for the sufficiency of the evidence is guided by well-established principles. “We review the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value. [Citation.]” (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) We draw all reasonable inferences that support the order. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) We do not reweigh the evidence, evaluate witness credibility, or resolve evidentiary conflicts. (In re H.G. (2006) 146 Cal.App.4th 1, 13 (H.G.).)
Analysis
The Department was required to present evidence to establish that the previous disposition was not effective in protecting the children and, for removal of the children from mother’s custody, there was a “substantial danger to the physical health, safety, protection or physical or emotional well-being” of the children. (§ 361, subd. (c)(1).) The only evidence presented by the Department on these issues was mother’s admitted drug use and positive drug tests. It relied on mother’s recent positive test for methamphetamine and her history of abuse of marijuana.
These facts establish that mother did not comply with her case plan. Drug abuse by itself, however, does not establish that the children were not being protected or there was a substantial danger to their physical health. To the contrary, the uncontradicted evidence at the hearing established (1) mother was employed; (2) mother provided housing for herself and the children; (3) the children had adequate food and clothing; (4) the children regularly attended school; (5) the children loved their mother and wanted to remain with her; (6) mother did not smoke marijuana in front of the children since regaining custody of them; and (7) the children had not seen mother intoxicated since mother regained custody of the children. Moreover, there was no evidence that marijuana or any other illegal drug was found in the residence.
We do not think two facts that were presented at the hearing were significant. First, the Department emphasized mother’s positive test for methamphetamine. In the years that mother had been testing, however, this was the first test indicating methamphetamine use. One positive test in five years does not establish that mother is addicted to methamphetamine, or that mother necessarily will increase her usage of the drug. While it is possible that such things will occur in the future, a mere possibility is speculation, not credible evidence. (H.G., supra, 146 Cal.App.4th at p. 13.)
Nor do we think significant mother’s claim that she recently had obtained a prescription for medical marijuana. The positive tests began before mother obtained her prescription. If mother needed marijuana for medical reasons, her decision to smoke marijuana before obtaining a prescription evidenced very poor judgment.
The three most relevant cases on this issue support our conclusion that there was not substantial evidence to support the juvenile court’s order. In re W.O. (1979) 88 Cal.App.3d 906 (W.O.) involved two minor children who were described as healthy, happy, and well cared for by their parents. The parents did not appear to be under the influence of drugs. Father admitted using cocaine and heroin, but claimed to have stopped doing so. A search of the family home by a probation officer located cocaine and marijuana.
The appellate court held that there was no evidence to support the trial court’s conclusion that parental custody would harm the children. (W.O., supra, 88 Cal.App.3d at p. 909.) There were two reasons for reaching this conclusion. First, the appellate court recognized that violations of court orders may be punished appropriately, but removal of one’s children is not an appropriate punishment. (Id. at p. 910.) “Punishing the parent distorts the focus of the custody inquiry; that focus must be exclusively on the question whether actual harm will come to the child.” (Ibid.) Second, there was no evidence the children, both under the age of three, could gain access to the illegal drugs. “There is, as the court below found, a ‘remote possibility’ that the children may be endangered by their present environment but remote possibilities do not provide grounds sufficient for removing a child from parental custody. ‘The right to the custody of one’s own children, free from unwarranted state interference, has long been recognized as a fundamental right.’ [Citation.] Fundamental rights do not fade before remote possibilities.” (Id. at pp. 910-911.)
The appellate court upheld an order removing the minor from mother’s custody in In re Rocco M. (1991) 1 Cal.App.4th 814 (Rocco M.), under similar circumstances, with one significant difference. The mother asserted the juvenile court’s order that there was a substantial risk Rocco would suffer serious physical harm pursuant to the provisions of section 300, subdivision (b) was not supported by substantial evidence. The appellate court concluded the order was supported by substantial evidence because the mother had left illegal drugs in plain sight and readily available to 11-year-old Rocco.
“We begin with a purely legal premise, i.e., that a child’s ingestion of illegal drugs constitutes ‘serious physical harm’ for purposes of section 300. [Citation.] This leaves a largely factual question: Did [mother’s] conduct create a ‘substantial risk’ that Rocco would ingest drugs? The trial court could reasonably find that it did, in four distinct ways: (1) by placing or leaving drugs in a location or locations where they were available to Rocco; (2) by frequent and prolonged absences which created the opportunity for Rocco to ingest the drugs; (3) by neglecting Rocco’s needs in a way which might be reasonably expected to create the kind of emotional and psychological conditions in which substance abuse typically thrives; and (4) by exposing Rocco to her own drug use, thus impliedly approving such conduct and even encouraging him to believe that it is an appropriate or necessary means of coping with life’s difficulties. [¶] In sum, we believe a trial court is entitled to infer that a child of Rocco’s age is subjected to a substantial risk of serious physical harm when he or she is placed in an environment allowing access to drugs, with nothing to prevent him from succumbing to the temptation to ingest them.” (Rocco M., supra, 1 Cal.App.4th at p. 825.)
The appellate court distinguished W.O. on the basis of the minors’ different ages. “But Rocco is not an infant. He is old enough, on the one hand, not to sample the cleansing compounds under the sink. He is also old enough to recognize, and be tantalized by, controlled substances found lying around the house. At a time when many thousands of children Rocco’s age have been seduced by the blandishments of the drug subculture as encountered at school or playground, we view with utmost seriousness a parent’s turning the home into an arena where the child must contend, alone, with the choice between preserving his health and future and taking a chemical escape route. By placing drugs under his nose, setting the wrong example, and leaving him entirely to his own devices over prolonged periods of time, appellant certainly subjected him to a substantial risk that he would eventually succumb to the latter temptation. On that basis the trial court reasonably could, and presumptively did, find a substantial risk of serious physical harm.” (Rocco M., supra, 1 Cal.App.4th at p. 826.)
The mother in Rita L. v. Superior Court (2005) 128 Cal.App.4th 495 (Rita L.) exposed her fetus to drugs by ingesting them during the pregnancy. The minor was born with amphetamine in his system. The petition filed by social services alleged that mother and father had a long history of drug abuse, and mother had a history of domestic violence. The parents did not oppose the petition, and the juvenile court ordered reunification services for them. Mother completed her reunification plan, obtained employment, and visited with the minor regularly.
Just before mother was to obtain custody of the minor, she had what was described as a relapse. She was at home with a headache and asked her adult daughter for pain medication. Her daughter brought her a prescription pain reliever, which contained codeine. The following day, when mother discovered the contents of the medication her daughter had given to her, she reported the incident at her regular drug test. She also informed her sponsor and her social worker. Despite mother not having a history of abusing prescription pain medications, the juvenile court terminated her reunification services.
The appellate court identified the issue as whether mother’s “failed drug test, viewed in the context of this case, constituted substantial evidence that returning [the minor] to her custody would ‘create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.’ [Citation.]” (Rita L., supra, 128 Cal.App.4th at p. 505.) In reversing the juvenile court’s order, the appellate court emphasized that social services was required to meet the statutory standard—in this case, that there was a substantial risk of detriment to the child if he were returned to mother. (Ibid.) It also recognized that while mother had a setback, there was no evidence that the setback impaired her ability to parent the minor. “And we can’t see how it bodes especially ill for her future. This incident is significant only if it is viewed as a likely first step in [mother’s] backslide into more serious drug use. And while such a progression is always possible, there is little (if any) indication that was happening here. Rita did not ignore or minimize the danger. She made no effort to argue (as some might) that her ingestion of a single prescription pain killer was insignificant. Instead, she discussed the incident with her AA sponsor, the drug testing personnel, and her social worker. [Mother] was, in other words, quite proactive in addressing the lapse.” (Id. at p. 506.)
None of these cases is directly on point. We can distinguish Rita L. because here mother failed several drug tests, and she tested positive for marijuana, the drug she had been abusing for years. Rita L., however, also confirms that the Department was required to meet the statutory test, i.e., establish that the previous order had not been effective in protecting the child and that there was a serious risk of harm if the children were not removed from mother’s custody. Rocco M. assists mother because there were no drugs found in her house. Nor was there evidence that the children were left unattended for long periods of time to permit them the opportunity to abuse drugs.
Mother’s insistence on abusing marijuana, however, implies to the children that drug abuse is an acceptable method to avoid life’s difficulties. W.O. assists mother because it holds that the mere presence and use of drugs does not justify removal of children from the parents’ custody. Since the Department pointed only to mother’s drug use, and did not present any other facts to support removal of the children from mother’s custody, these cases compel the conclusion that the juvenile court order was not supported by substantial evidence.
Not only do these cases compel this conclusion, so does the requirements of the applicable statutes. The Department was required to prove that the previous order was not effective in protecting the children and that removal was necessary because the children were at substantial risk of harm. Mere usage of illegal substances is not substantial evidence that will prove either point. While mother did not comply with her case plan, and violated the orders of the juvenile court, these facts did not justify removal of the children from her custody. (Paul E., supra, 39 Cal.App.4th at pp. 1003-1004.) “Juvenile courts cannot expect perfection from parents in dependency cases.” (Rita L., supra, 128 Cal.App.4th at p. 502.) If the parents were capable of perfection, the children never would have entered the juvenile dependency system in the first instance.
Mother should not read this opinion to suggest that we are condoning her behavior. Indeed, we condemn such behavior. Mother’s history proves that her insistence on abusing marijuana will lead to unemployment, homelessness, and the loss of her children. And when mother’s behavior puts the children at risk of physical or emotional harm, it is unlikely she ever will regain custody. We suspect that this result will occur sooner rather than later, if mother continues down the path it appears she was headed at the time of the hearing. Mother repeatedly has stated that she can and will give up using illegal drugs for the sake of her children. Now is the time to prove through action that she is willing to do so. However, because mother’s abuse of drugs had not yet placed the children at risk of physical or emotional harm, and it did not establish the previous order failed to protect the children, the juvenile court’s order cannot stand.
DISPOSITION
The order finding the allegations of the section 387 petition true is reversed, and the juvenile court is directed to enter an order finding the allegations of the petition not true.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.