Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Dennis Keough, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant C.V.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant J.V.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
C.V. (mother) and J.V. (father) appeal from the court’s dispositional judgment removing their two sons — T.V., now five years old, and B.V., now two years old — from mother’s custody. They contend insufficient evidence supports the court’s removal order. We disagree and affirm the judgment.
Father did not file a separate brief, but joined in all of mother’s arguments.
FACTS
On February 22, 2011, Orange County Social Services Agency (SSA) filed a petition under Welfare and Institutions Code section 300, alleging T.V. and B.V. came within the jurisdiction of the juvenile court under section 300, subdivision (b) (failure to protect).
All statutory references are to the Welfare and Institutions Code.
SSA’s initial report stated that on February 11, 2011, mother drove with the children from Arizona to California to look for a house in Orange County. Upon experiencing chest pains, she drove to an urgent care facility with B.V. in the car. After suffering a seizure at the urgent care facility, she was transported to a hospital. The hospital personnel believed mother’s seizures resulted from alcohol withdrawal. Furthermore, she had suffered a recent fall resulting in a broken clavicle and contusion. A bottle of vodka was found in her car.
Father was in the process of changing jobs and was scheduled to start a new job in Orange County. Upon learning of mother’s condition, father immediately came to Orange County to care for the children. Father said he would stay with the paternal grandparents until he could obtain his belongings from Arizona and secure a permanent residence for himself and the children. Father said mother had had an alcohol problem since age 18. He said she did not drink constantly nor did she drink during the day while home alone with the children. But once he arrived home from work, she would start drinking and not stop until she passed out.
Mother told SSA her alcohol withdrawal seizures were “a ‘wake up call’ to her drinking problem.” She said she had been in treatment and 12 step programs before and her longest period of sobriety had been 18 months. She was unsure how B.V. ended up with father (after being with her at the urgent care facility), but believed B.V. had been in the ambulance with her and then released to a friend.
On February 23, 2011, the juvenile court held a detention hearing on the section 300 petition. The court detained the children, ordered them to remain in father’s custody, and authorized monitored visitation for Mother.
SSA’s jurisdiction report stated mother underwent detoxification while hospitalized. After her release from the hospital she moved to Wellspring Sober Living Home for one month while she attended a substance abuse program at the hospital’s Pacific Coast Recovery Center. She planned to enter a sober living home near Huntington Beach after completing the program.
Father and the children had relocated to Huntington Beach. Their house mate, Buffie Warren, was in the process of obtaining a day care provider license and had agreed to supervise mother’s visits with the children.
Father said mother had been under stress prior to the family’s relocation to California. She had gone to school to become a medical assistant, but her job search had been unsuccessful. During the last three to four months, her alcohol consumption had been heavy. She drank two to three 20-ounce cocktails daily, but only after the children went to bed at night. She had never passed out around the boys. Father had seen her pass out on three occasions.
Mother’s mother and two sisters expressed their frustration in trying to help mother with her long history of alcohol abuse. The paternal grandfather had been uncomfortable with the amount of alcohol he saw mother consume in December 2010.
Mother admitted she drank alcohol during the day when the children were home, but not to the point of intoxication. She said father did not know the extent of her drinking. She denied drinking on a daily basis and said she had not done so since 1999. She began drinking after she graduated from high school in 1999. She had completed an alcohol treatment program around 2001.
On April 11, 2011, mother and father appeared in court and pleaded no contest to the amended petition. The court found true the allegations of the amended petition bringing the children within the court’s jurisdiction. The court continued the matter for a dispositional hearing.
In addendum reports, SSA reported mother was currently in the first phase of an outpatient treatment program, attended weekly Alcoholics Anonymous (AA) 12-step meetings (up to six per week), and drug tested twice a week. Her counselor opined that a patient should focus on substance abuse issues during the first phase of the program, rather than on her children and domestic duties. Mother came nightly to help bathe the boys and otherwise assist in their care. The boys went to day care during the day. Father was looking for a two-bedroom apartment for himself and the children.
At the dispositional hearing in May 2011, the court heard testimony from many witnesses. Mother testified she had informed her counselor of her entire history of substance abuse. Around the year 2000, mother entered a 28-day inpatient substance abuse program to treat her alcoholism. After completing the program in 2001, she lived in a sober living home for one year. About six months after leaving the sober living home, mother relapsed. After that, she was sometimes sober for months at a time. During the last year, her drinking had progressed to daily consumption. Twice she drank until she passed out, but only when father was present. During the last year, she had “occasionally” drunk while alone with the children. Mother was now attending AA meetings on a daily basis.
Mother had learned that stress and loneliness were triggers that caused her to drink. Financial stress had caused her most recent relapse, because she had been looking for work and going to school.
Now mother had been sober for 90 days, as verified by negative drug tests. She realized she could never drink again and had to avoid situations where she would be tempted. She had an AA sponsor.
Father testified he has known mother since 2003. In the two months before leaving Arizona, her drinking had increased from two nights a week to four or five nights a week, because it was hard for her to find a job and to be home with the boys every day. Previously, he had been unaware of mother’s daytime drinking when home alone with the boys. At times father would talk with mother about what it would take for her to attain sobriety.
He stated she is a loving, caring mother who puts the children on a good schedule and makes sure they are well cared for. He believed mother realizes how much is at stake — if she relapses, she might lose her husband and her sons. Father recognized that if mother had to care for the boys, this might trigger a relapse for her. He admitted mother needed a longer period of sobriety before she could act as the children’s sole caretaker. She would have to be monitored; father admitted he could not monitor her 24 hours a day, 7 days a week.
Social Worker Barbara Flores testified she was newly assigned to the case and had based part of her recommendation on the previous social worker’s reports. Flores did not recommend that mother be allowed to move home yet, because she was only in phase one of the treatment program and had a long history of alcoholism with previous treatment and relapse. Flores wanted to see another three months of mother’s clean testing before mother moved back home with the boys. Flores felt that unmonitored visitation would be appropriate only after mother was in phase two of the program. Flores’s concerns related to mother’s sobriety, not to her parenting skills. Flores knew that the owner of Well Springs Sober Living Home believed mother should be allowed to return home with the children under conditions such as a breathalyzer and a psychiatrist.
Buffie Warren testified she was the boys’ caretaker for about four weeks when father and the two children lived in her home. Warren monitored mother’s visits with the boys and testified mother never missed a visit or came late. She noted the boys were “very” affectionate with mother and “extremely” enjoyed the visits; they cried when mother left and did not understand why she was going. Based on Warren’s experience in child day care, she believed the boys should be with mother. Warren witnessed the dynamic of the family and “a lot of love.”
Muriel Enos testified she was mother’s current perinatal therapist and had had six group sessions and two individual sessions with her over the course of four weeks. Mother attended 12 step meetings twice a week. She was halfway through the first phase of the perinatal program and was doing well. She had not missed or been late to any sessions; she participated in the sessions and tested clean. Enos’s focus was on recovery; it was out of her scope of practice to make a recommendation on whether mother and the boys should be reunited. She did not recall telling the social worker that if mother returns home, mother will focus on her children and domestic duties and perhaps not on her recovery.
Sharon Faucett, a former social worker, is the owner of Wellsprings Sober Living Home, where mother resided for four weeks. Faucette attended some 12-step meetings with mother. Faucette believed mother had accepted she is an alcoholic, was deeply committed to the AA program, and was deeply remorseful for jeopardizing her children. Faucette did not know if mother had developed stress management skills. Faucette had suggested to mother that she see a psychiatrist to determine if there is an underlying reason she feels stress.
Faucette disagreed with the social worker’s recommendation that mother not be allowed to move home. She noted the social worker believed 90 days of sobriety was an insufficient time period for mother to develop coping strategies to prevent relapse. Faucette did not believe in a magic number of days for a person to develop coping skills. She believed it was a long time for the young children to be separated from their mother and there were available safeguards such as telephone breathalyzer tests to protect their safety if mother moved home.
Retta Soogoff testified she was mother’s case manager at Mission Hospital. Soogoff believed mother was internalizing the concepts she learned. Mother identified her triggers and had stress management skills. Soogoff did not have an opinion on whether mother should be allowed to return home. Although mother had the tools to maintain her sobriety, Soogoff was not sure whether mother could use them in the dynamic situation of returning home and reestablishing her role as mother and wife.
The court removed custody of the children from mother. The court was impressed with the evidence of a loving relationship between mother and her children. The court realized people do mature and are not the same person later in life as at age 19. The court sympathized with mother’s stress as she faced economic troubles finishing school and searching for a job. But the court was concerned that the drinking developed to the point where father was unaware of the depth of the problem, physical issues resulted such as mother’s broken bones, a medical crisis ensued, and there were alcohol bottles in the car. The court noted it was fortunate the situation did not end in a tragedy involving mother and the children. The court found the evidence of risk to the children at the time of the event was substantial. But the court realized mother had engaged appropriately in a detoxification period and a program at Mission Hospital and a sober living home. It concluded the question is, what is “the present risk at this juncture?”
The court stated SSA bore the burden of showing a substantial risk by clear and convincing evidence. The court found such a risk exists. The court noted one of mother’s triggering events was the situation where she had finished school, was home with the boys, and could not find a job. Looking at the past dimensions of the problem, the risks to the children, mother’s ability to hide the scope of the problem from father, and father’s admission he could not ensure mother’s sobriety at all times, the court found by clear and convincing evidence that vesting custody of the children with mother would be detrimental to the children.
The court declared the children dependents of the court and ordered custody of them to remain with father. The court authorized mother one overnight visit per week, with the condition that father be present at all times and mother remain sober and not be alone with the children. The court set a 90-day progress review hearing for August 16, 2011 and scheduled a six-month review hearing for November 14, 2011. The court found reasonable efforts had been made to eliminate the need for removal of the children from mother’s custody. The court based its findings and orders on its evaluation of the specific needs and history of the family.
DISCUSSION
Substantial Evidence Supports the Removal of the Children from Mother’s Custody
Mother challenges the sufficiency of the evidence to support the court’s removal of the children from her custody. She contends the evidence established she was able to provide proper care for the boys. She argues the evidence that she could relapse “if she resumed her full-time parenting role” presents a potential detriment to her only, not to the children. She asserts it is “unrealistic speculation that she might return to her old ways.”
We review the relevant law on dispositional orders removing children from parents’ custody. “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence” (§ 361, subd. (c)) that there “is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody” (id. subd. (c)(1)). Case law interprets this subdivision “to require a threat to physical safety, not merely emotional well-being, in order to justify removal.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) “The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “In this regard, the court may consider the parent’s past conduct as well as present circumstances.” (Ibid.) “Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order.” (Id. at p. 918.)
Evidence is clear and convincing if it “leave[s] no substantial doubt and [is] sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.] It has been said that a preponderance calls for probability, while clear and convincing proof demands a high probability.” (In re Terry D. (1978) 83 Cal.App.3d 890, 899.) Thus, the “burden that must be met to remove a child from the parent’s custody under [section] 361 is substantially greater than that required to support jurisdiction.” (1 Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2010) § 5.21, p. 313.)
“On review, 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.) “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.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (In re Megan S. (2002)104 Cal.App.4th 247, 251.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th at p. 1433.)
Mother acknowledges the cases upon which she relies (In re Jasmine G. (2000) 82 Cal.App.4th 282, In re Basilio T. (1992) 4 Cal.App.4th 155, In re Jeanette S. (1979) 94 Cal.App.3d 52, and In re W.O. (1979) 88 Cal.App.3d 906) are factually dissimilar from the circumstances here, but cites them “for the reasoning of how to determine risk....” The reasoning applied in those opinions conforms to the principles summarized above. (In re Jasmine G., at pp. 288-289; In re Basilio T., at pp. 169-170; In re Jeanette S., at pp. 59-60; In re W.O., at pp. 909-911.)
Applying those principles, we affirm the court’s order removing the children from mother’s custody. Mother acknowledges there was evidence she “could relapse if she resumed her full-time parenting role, ” but asserts this possibility presents a “potential detriment” to her only, not to the boys. Such a relapse, however, could easily result in a tragedy to the children, which, as the court noted, the family was lucky to avoid this time. In the past, stress and loneliness have been triggers causing mother to drink. As the court observed, mother’s main trigger in the most recent episode was the situation where she had finished school, was home alone with the boys during the day, and had no outside job. This is precisely the situation (at least at the outset) in which mother would have found herself had the court allowed her to return home. Father, whom the court found to be a very candid witness, admitted he did not know whether he could control what mother did when he was not home and that he could not monitor her 24 hours a day, seven days a week.
Mother’s continued sobriety, and her efforts to achieve same, to date are laudable. As she continues to increase her tools for maintaining sobriety, there is every hope she will never relapse and can return to living with her family soon.
DISPOSITION
We affirm the court’s judgment removing the children from mother’s custody.
WE CONCUR: BEDSWORTH, ACTING P. J.FYBEL, J.