Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DP013949, Jane L. Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Respondent.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
Marsha F. Levine, under appointment by the Court of Appeal, for the Minor and Appellant.
SILLS, P. J.
T. B. was detained in August 2006, when he was born with a positive toxicology screen for opiates. His mother, Kirsten B., has a long-standing drug addiction; his father, Mark L., was declared a presumed father one year after T.B.’s birth. T.B. was placed with a foster family, where he remained for over two years. Both parents have been participating in reunification services and separately pursuing placement of the child throughout the prolonged life of this case. In November 2008, the juvenile court authorized the return of the child to his mother for a trial visit. T.B. filed a petition under Welfare and Institutions Code section 388 seeking relief from that order, which was denied. In August 2009, the juvenile court ordered the child placed with his mother in conjunction with family maintenance services.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
In these consolidated appeals, T.B. challenges the denial of his section 388 petition and the order returning him to the mother. Mark L. also challenges the child’s return to the mother and the arrangements for visitation between him and the child. We affirm.
FACTS
This case has generated multiple appeals, which have resulted in three unpublished opinions filed by this court: In re Baby Boy B. (Mar. 27, 2009, G040104); In re T.B. (Mar. 30, 2009, G040594 cons. with G040741); and In re T.B. (Apr. 29, 2009, G040648). These opinions exhaustively document the history of this case, and we incorporate them into this opinion by reference. Our factual summary begins where the previous opinions left off.
T.B.’s case worker, Stacy Breffle, submitted a report dated April 6, 2009. On March 12, 2009, the mother told Breffle she could not enroll in the drug court program until she was finished with her methadone treatment. The next day, the mother tested positive for morphine. She explained to Breffle three days later that she had been taking “prescribed Vicodin on occasion due to pain from her Cellulitis condition in her legs. [Breffle] informed the child’s mother that she needed to throw out all Vicodin/prescribed pain medication, and no longer take it for her pain. The child’s mother agreed....” The next day, the mother missed a random dug test. The mother claimed she did not hear her testing color on the recording that day. Breffle asked the mother’s probation officer, Janet Apodaca, to give the mother random drug tests through probation.
The conjoint therapist for T.B. and the mother, Nicole Gerth, reported “[t]hings are going really well.” She was enthusiastic about the relationship between the mother and child and had “no clinical concerns.” Gerth praised the mother for her “intuitive and good parenting skills.” Breffle met with T.B., his mother and the maternal grandmother on April 1. The child appeared “very happy and content.” The mother reported she had a part-time job, was attending daily 12-step meetings, and was planning to enroll in community college as soon as she received her drug court schedule.
The next day, the mother appeared in drug court and was taken into custody because of the Vicodin incident. T.B. was temporarily placed with the maternal grandmother, where he did well, although he missed his mother. The mother was released from custody on April 16. According to the mother’s criminal defense attorney, “[t]his judge has kept her in custody to do ‘clean time’ and make sure she is completely off of the prescribed Methadone before releasing her.”
Breffle filed an addendum report dated April 21. The mother met with her drug court probation officer as required and was in compliance with the program, which included wearing a drug patch. Breffle asked her about a drug test result on February 25, 2009, that had been positive for “Benzodiazepines, Opiates and Methadone.” The mother explained, “‘I was on the prescribed Methadone treatment, which is why I tested positive for the Methadone. The positive for Opiates was due to the prescribed Vicodin I took for the pain in my legs due to my Cellulitis. And, at that time, I was also prescribed the Anti-Anxiety and Anti-depressants, Zanex [sic] and Zoloft, to take as needed. The Zanex [sic] and Zoloft would probably test for the Benzodiazepines. I have now thrown out all of my prescription medications and I am now taking nothing.’” Breffle stated she had seen the mother’s prescription bottles for the Vicodin, Xanax and Zoloft on February 5, 2009.
In April 2009, the minor filed a section 388 petition asking the juvenile court to terminate the trial visit with the mother. The petition alleged that T.B. was at risk of harm in the mother’s care because she had violated her probation, tested positive for opiates, and failed to comply with the drug treatment plan ordered by the criminal court. The hearing on the petition began on April 17. All parties stipulated that the testimony presented on the petition could be considered at the 18-month review hearing. The hearing continued over nine court days, concluding on May 26.
Apodaca testified the mother was on three years’ formal probation for drug charges. She was tested randomly and had had three positive tests for opiates: September 15, 2008; January 26, 2009; and February 25, 2009. The mother told Apodaca the positive September test was because she had been in the hospital; the January and February tests were caused by the use of Vicodin for pain. Apodaca testified the mother told her she used “unprescribed Vicodin on a regular basis.” The mother also told her she had bought the drug and that she had an old prescription for it. The mother had missed a total of eight appointments with Apodaca from August 2008 to February 2009. Her probation was revoked three times: October 2008, for being discharged from her program and for a positive test; February 2009, because she missed a court date; and in April, when she was taken into custody, for missing another court date.
Breffle testified she had been assigned T.B.’s case in January 2009. She was aware of the mother’s positive tests, but she felt the mother’s explanations about the Vicodin were adequate. Breffle said the mother told her the Vicodin was prescribed for her in January when she was in the hospital for cellulitis, and in February, Breffle verified that by looking at the prescription bottle. When Breffle got the case in January 2009, the mother was transferring from one perinatal program to another because she was relocating to south Orange County. Then she decided to go to a private physician and receive methadone treatment. So during February and March 2009, the mother was not participating in any substance abuse treatment program and had not yet completed an SSA approved drug treatment program. Notwithstanding, Breffle felt the mother was on “an upswing.... [S]he’s now being sent into the drug court program.... I’ve had... two negative drug tests from Med-Tox in the last week. Mother is complying with the drug patch. Mother is in compliance with Social Services and keeps me updated daily on how she’s doing. She’s doing her 12 steps.”
Breffle did not believe that the mother posed a risk of detriment to T.B. if he remained in her care. Her opinion was based on Gerth’s opinion that “the best place for [T.B.] is with [the mother], ” her “observation... of [T.B.] and [the mother ] interacting together as mother and child” and “seeing [T.B.] in the home being a very happy, comfortable child.” Breffle did not believe the mother had relapsed into drug use since January 2009. The positive drug tests were satisfactorily explained, and mother and child were closely bonded. “[U]sually, the parents that do relapse and are using narcotics again do not interact with their children appropriately, or they do not care to even have that bond with their child. It’s not an interest of theirs. The drug takes priority.”
The father testified he had visited T.B. about four times during the last six months. In December 2008, the father stayed at the maternal grandmother’s house with the mother and the child. He testified during that visit, the mother “would sleep through most of the day into the afternoon.” He was concerned for T.B.’s safety because the maternal grandmother told him the mother had previously failed to wake up during the night when the child was crying.
The mother testified she enrolled in a perinatal program in 2006. SSA required continued participation in a drug abuse treatment program, so the mother asked to be referred “back to the perinatal” in 2008. She started that program in the city of Orange, and then removed herself from the program when she decided to move into the maternal grandmother’s house in south Orange County in late 2008. Between that time and her recent enrollment in the drug court program, she was not participating in a drug treatment program. She was “involved in private therapy with a drug alcohol specialist.” She also attended weekly conjoint therapy with T.B., individual counseling, and daily 12-step meetings. The mother testified she told her social worker at the time, Scott Sweaza, about her positive test in September 2008 and about her probation revocation in October 2008.
On May 26, after the close of evidence and argument, the juvenile court denied the minor’s petition. It found Apodaca “had little to offer the court” because “she did not have good memory or good records.” The father’s testimony was “self-serving.” The court found T.B. had been safe while “in his mother’s physical custody over these last six months or so.” The court noted that “the moving party has the burden. It’s true that the mother could have presented evidence of her prescription or many other things, but the burden is not on the mother.” It found the minor had not proved by a preponderance of the evidence that it would be in T.B.’s best interest to remove him from the mother.
The minor filed a motion for reconsideration of the section 388 petition, which was heard on July 9, 2009. The minor offered a letter dated June 11, 2009, from Donald Mac Neil, who was employed by MEDTOX Laboratories as the chief criminalist for public safety and addiction medicine operations. He stated he had examined “the records associated with above referenced drug test report” and found the final results “identify the presence of a number of substances associated with the use of illegal drugs.” Specifically, the presence of “6-MAM” was “decisive evidence” of prior heroin use. “6-MAM is a metabolite of heroin and can only be found in humans following ingestion and metabolization of heroin.” The juvenile court denied the motion, finding it was untimely and “there’s no timeline set forth as to how much time must pass or to what degree any other substance must be metabolized to produce the result indicated in the letter.”
The 18-month review hearing began on July 13. SSA submitted two new reports, dated June 15 and July 9. The mother had again enrolled in a perinatal program, and her perinatal therapist gave glowing reports of her progress. She was attending all the components of the drug court program, and her drug court probation officer was enthusiastic about her progress. All her drug tests had been negative. Gerth reported T.B. and the mother had achieved their treatment goals for the first phase of therapy and the mother was “now transitioning into the second and final phase of treatment. Both [the mother] and [T.B.] continue to thrive in the therapeutic setting. [T.B.] presents happy and excited to play with his mother. [The mother] is equally enthusiastic and presents with a genuine and natural ability to utilize the skills taught in [therapy].” Breffle’s reports of her meetings with T.B. and the mother were equally positive.
Breffle testified she recommended returning T.B. to the mother under a family maintenance plan. She continued to be pleased with the mother’s progress and saw that T.B. was happy and comfortable. Breffle stated the mother went back on methadone in January 2009 because she was feeling depressed and was concerned that she would relapse. “So she took it upon herself to go in and get on a prescribed methadone treatment rather than just go to any clinic.”
When Breffle received a copy of Mac Neil’s letter, she reviewed it with the mother. “[S]he denied any use at that time. It did not change my recommendation. In talking with my supervisor, we agreed that it was several months ago, whether it did happen or not. And... since then [I] have seen nothing but stability in this home, nothing but the child being very stable... in the care [of] his mother. She’s maintained her sobriety for many months. [¶] So I just felt that the decision needed to [stay] the same, that it would be, in my opinion, [a] disservice to remove this child from his mother due to that February 25th test when he’s very bonded with her and she’s taking great care of him and she’s maintaining her sobriety right now.”
The minor’s counsel called Mac Neil; the juvenile court conditionally allowed his testimony under Evidence Code section 403, subdivision (b). He testified he had a bachelor’s degree in biochemistry and a master’s degree in criminalistics. He was currently employed at MEDTOX Laboratories as the head of criminalistics and addiction medicine and pain management. His responsibilities “are to oversee the services we provide to public service agencies, children and family services, law enforcement and drug treatment.” His duties “consist of ensuring that our Minnesota personnel are properly supplying the client agencies with the supplies they need that we call turnaround time, on testing meets the basic requirements.” He is “one of those” who interprets drug test results and provides clarification to a social worker or probation officer.
Mac Neil was trained “in the identification of dangerous drugs and narcotics... and learned specifically to be able to communicate, explain the way in which drugs are, once consumed, ingested in the body, acted upon biologically and eliminated in the urine, blood, bile and other solvents.” He had provided drug test interpretations for MEDTOX “[a] thousand times plus.” When asked what it meant to interpret test results, he answered, “We interpret the final raw results that are printed on the reports.” Sometimes an interpretation required additional research; his primary sources are a textbook called “Disposition of Toxic Drugs and Chemicals in Man” by Randall Baselt and a book titled “Pain Management Testing Reference” by Robert White and Matthew Black. Mac Neil has written a textbook called “Drug Abuse Recognition” and essays and letters to editors of journals “on matters related to interpretation of drug test results.”
Mac Neil reviewed the test results for the mother’s February 25, 2009 test. He explained that the screening phase of the test showed it was positive for benzodiazepines, opiates and methadone. The second phase of a test is the confirmation phase, which reports “on the precise nature of what the screen picked up.” The confirmation for opiates revealed the presence of “codeine, morphine and 6-acetyl morphine.” Mac Neil testified, “The presence of these three substances fit the profile of the use of a... particular opiate drug” which is “known on the street as heroin.” He explained that the concentrations of morphine and 6-acetyl morphine were high, which “[t]ends to indicate that the dose of the drug associated with these numbers occurred relatively soon or relatively in a short period of time prior to the test being taken. The 6-acetyl morphine in particular is a short-lived metabolite from heroin ingestion.” Mac Neil saw none of the substances that would be present in an opiate confirmation for Vicodin; neither codeine, morphine, nor 6-acetyl morphine are found in Vicodin test results.
Mac Neil received training in “interpreting the type of opiates, ” particularly in how the “matter of drug concentration from urine or blood is assessed in terms of how long it has been since a drug has been ingested or last used.” He estimated that 10 percent of “all the Vicodin-related, hydrocodone-related training, ” was devoted to interpreting test results.
Mac Neil was asked about two subsequent test results for the mother, collected on March 12 and March 28, respectively. He testified the confirmation of the first of these tests indicated the ingestion of either morphine or heroin. The March 28 test was positive for opiates and morphine. The marker for heroin was negative, but there was no indication that the opiate was Vicodin.
After argument from counsel, the juvenile court struck Mac Neil’s testimony. It found Mac Neil did not “have the specific training, experience and education to opine on the issue of interpretation of these specific drug test results....” It noted his answers to questions were often general. “[O]ftentimes the court was not clear whether this was something that he was doing or he was speaking on behalf of MEDTOX.... [¶] [H]e did not proffer... any sort of a discussion or resume or curriculum vitae which would seem to be appropriate.”
The mother was asked, “Do you believe that you’ve been completely honest with, for instance Ms. Breffle, as to when you’ve relapsed.” The mother replied, “No, ” because “I... was not working my program or my recovery to the best of my ability. [¶]... [¶] I know, as I sit here today, what I’m doing and the effort that I’m putting forth, and compared to that time, I’m not doing the same.” She testified she was honest about her sobriety with prior social workers. The mother testified she was not prescribed Vicodin by the emergency room physician in January 2009. “I told Ms. Breffle that the positive tests were from a prescription of Vicodin with no date involvement.”
The mother testified she had a boyfriend named Brett L. who ran a sober living home, Donna’s House, in Dana Point. Although Brett had “been around” T.B., the mother had not told Breffle about him. The child had been to Donna’s House to visit Brett two or three times with the mother, and Brett had been to the mother’s house for dinner. When asked why she would take a child to a sober living home, the mother replied, “Because these are friends of mine. [¶]... [¶] They’re people that are in recovery like I am. They work strong programs, and they are great people for me to be around. [¶]... [¶]... They are addicts, but they’re not drug users today....” Brett had a criminal history of drug-related charges; the mother was willing to ask him to undergo a background check.
The juvenile court found the mother had participated regularly and has made substantive progress in her programs. After referencing many of the positive aspects of the mother’s participation in reunification services, the court noted, “The evidence shows that mother... had some positive drug tests since [T.B.] began to live with her in November of 2008. Despite the evidence of positive drug tests..., the evidence fails to show a substantial risk of detriment to [T.B.] if he is returned to his mother’s custody. In fact, the opposite appears true.” The court ordered T.B. placed in the mother’s custody and ordered SSA to provide family maintenance services.
The court ordered that the father will have unsupervised visits two weekends per month; the visits can occur in Orange County or at the father’s home in Washington State. The court added, “Any visits or travel to Washington State must be deemed therapeutically appropriate for [T.B.] prior to his travel there. So, again, I’m concerned about that transition for [T.B.], that it’s done in his best interest in a way that’s therapeutically appropriate.” The father’s counsel asked the court to authorize funds for some sessions with Gerth and the father so Gerth could form an opinion about whether the visits would be therapeutically appropriate. The court stated, “Right now, I’m going to leave that in the judgment of the agency. My concern is not with [the father], but... [T.B.]’s still a little guy.... [¶] So I just want social services to check it out. If there are any issues that we need to address, social services will bring them to my attention.”
The minor filed notices of appeal from the May 26 order denying the section 388 petition (G042159) and the August 7 order returning him to the mother under family maintenance (G042461). The father also filed a notice of appeal from the order returning the child to the mother (G042494). This court consolidated the three appeals for all purposes.
DISCUSSION
Both the minor and the father contend the juvenile court should have found there was a substantial risk of detriment if T.B. was returned to the mother. Underlying this argument is a sense of outrage on the part of the appellants that SSA failed to investigate the mother’s positive drug tests and failed to characterize these tests as significant relapses that justified T.B.’s removal from her custody. The appellants claim the juvenile court erroneously excluded the testimony of Mac Neil, which was conclusive evidence that the mother had relapsed on heroin. They insist the admission of his testimony would have compelled a different result. Even without Mac Neil’s testimony, they argue, there is substantial evidence that T.B.’s return to his mother presents a substantial risk of detriment.
We agree the juvenile court erred in failing to qualify Mac Neil as an expert. But we find this error was harmless. Substantial evidence supports the trial court’s conclusion that T.B. was safe, happy, and secure with his mother and that the mother was currently excelling in her case plan.
Refusal to Qualify Mac Neil as an Expert
Evidence Code section 720 provides: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) A person will meet the qualifications of an expert if he has “the background to absorb and evaluate information on the subject” and if he has “access to reliable sources of information about the subject.” (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.) “[T]he degree of his knowledge is a matter affecting the weight of his testimony, not its admissibility.” (Ibid.) A trial court’s decision to exclude expert testimony is reviewed for an abuse of discretion. (People v. Bolin (1998) 18 Cal.4th 297, 321; Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
The juvenile court found Mac Neil did not have the specific training, experience or education to render an opinion about the interpretation of the mother’s test results, stating: “The witness does not have the personal knowledge regarding the issue of interpretation of drug testing results. It appears to the court based on the testimony here today, he is relating some information he may have learned.” The court felt his answers were too general and vague, and it criticized the absence of a curriculum vitae. But Mac Neil had degrees in biochemisty and criminalistics. He testified he was employed at MEDTOX Laboratories, the laboratory that contracts with the county to provide drug tests for SSA. He is one of the employees who interprets drug test results to provide clarification to a probation officer or a social worker. He testified to extensive training, including the way drugs were eliminated in bodily fluids and the interpretation of the results of tests for opiates. He had performed more than 1000 drug test interpretations for MEDTOX. This evidence amply qualified Mac Neil as an expert in the interpretation of drug test results.
The juvenile court was free to assess the credibility and weight of Mac Neil’s testimony. But its decision to strike the testimony because Mac Neil did not qualify as an expert was an abuse of discretion.
The minor and the father argue the erroneous exclusion of Mac Neil’s expert testimony compels reversal. They contend his testimony constituted positive proof that the mother had relapsed on heroin, and its absence allowed the trial court and Breffle to believe the mother’s positive tests were the result of taking Vicodin. We disagree.
The juvenile court found an absence of detriment notwithstanding evidence of positive drug tests. And Breffle testified she did not change her recommendation after she reviewed Mac Neil’s letter because she felt T.B. belonged with the mother even if she had tested positive for heroin several months ago. Both Breffle and the court put more weight on the mother’s current progress than her past positive tests.
Substantial Evidence to Support Return to the Mother
The appellants contend even without Mac Neil’s testimony, the evidence supports a finding of detriment to return T.B. to his mother. They appear to argue that at an 18-month review hearing, positive drug tests require a finding that the parent did not make substantial progress in her case plan, thus precluding return of the child. This is not the law.
We first point out that “[w]e review the trial court’s findings for substantial evidence. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, no matter how fervently the appellants marshal the evidence against the juvenile court’s ruling, we will affirm if there is substantial evidence to support it. (Ibid.)
At an 18-month review hearing, “[t]he court shall order the return of the child to the physical custody of his or her parent... unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.... The failure of the parent... to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker’s report and recommendations...; [and] shall consider the efforts or progress, or both, demonstrated by the parent... and the extent to which he or she availed himself or herself of services provided....”
The juvenile court found the mother had made significant progress in her programs notwithstanding the evidence of positive drug tests. She received glowing reports from her service providers and her social worker. Despite a long-standing drug abuse problem, she continued to fight back from failures and try again to overcome her problem. She was currently participating in all required programs and maintaining her sobriety. Compliance with the case plan does not need to be perfect; a juvenile court can find substantial compliance even when some requirements have not been completed. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1397.)
Until reunification services are terminated, there is a statutory presumption that a child should be returned to the parent. (In re Marilyn H. (1993) 5 Cal.4th 295, 308; § 366.22, subd. (a).) The juvenile court did not find enough evidence of risk to T.B. to rebut that presumption. The record supports its conclusion. T.B. had been living with the mother for nine months at the time of the 18-month review hearing. During that time, none of the service providers or the social worker had detected any risk to T.B. On the contrary, he had been thriving in his mother’s care, he was closely bonded to her, and he was happy, healthy and comfortable in her home. Neither Breffle nor Gerth saw any signs of the mother’s relapse when they observed the interactions between mother and child. The court observed the mother testify and evaluated her credibility.
The appellants claim the juvenile court did not recognize the nature and significance of the mother’s positive drug tests, pointing out there is a chance she could relapse again and place T.B. at risk. We acknowledge there is such a chance. But the juvenile court had evidence of the mother’s success in keeping her child safe and happy during a nine month placement, her exemplary parenting skills, and her commitment to sobriety. This constitutes substantial evidence to support the court’s finding that there was not a substantial risk of detriment if T.B. was returned to the mother.
The Father’s Visitation Orders
The father separately complains that the juvenile court erred in leaving to SSA the decision whether T.B. could travel to Washington State for visits with him. But the father did not object to this order in the trial court; rather, his counsel asked for a visitation review in 30 days to iron out any problems, which the juvenile court granted. We will not entertain his complaint here. (In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
The Minor’s Motion to Direct Further Proceedings to a Different Bench Officer
While these appeals were pending, the minor filed a motion asking this court to direct further proceedings in this case to a different bench officer, regardless of the outcome of these appeals. (Code Civ. Proc., § 170.1, subd. (c).) While we have the power to grant such a request, “‘this power must be used sparingly and only when the interests of justice require it.’ [Citations.]” (Kent v. Superior Court (1992) 2 Cal.App.4th 1392, 1395.) The minor merely states that this case “calls out for a new set of ears.” This is an insufficient showing to justify the requested relief. The motion is denied.
DISPOSITION
The order denying the minor’s section 388 petition and the orders made at the 18-month review hearing are affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.