Opinion
F080261
08-13-2020
In re B.W., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. BRIANT W., Defendant and Appellant.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD139562-00)
OPINION
APPEAL from an order of the Superior Court of Kern County. Raymonda B. Marquez, Judge. Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
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The juvenile court took jurisdiction over five-month-old B.W. (B.W.1), finding he was a child described by Welfare and Institutions Code section 300, subdivisions (b)(1) and (j). The juvenile court removed B.W.1 from the custody of his father, Briant W. (father), and placed him with his mother, Arlene M. (mother), on family maintenance. Father was bypassed for reunification services. Father appeals, claiming the jurisdictional order must be reversed and all subsequent orders rendered moot because the juvenile court's jurisdictional findings were not supported by sufficient evidence. Finding no error, we affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to rule 8.90 of the California Rules of Court, we refer to some persons by their first names and/or initials. No disrespect is intended.
In November 2018, Kern County Department of Human Services (department) received a referral alleging general neglect against father and mother (collectively, "the parents"). The referral alleged that the parents used methamphetamine, that smoke could be seen coming out of their apartment, and that they left then-two-month-old B.W.1 home alone.
When the social worker responded to the family's home, the parents denied the allegations. Mother reported she last used methamphetamine soon after finding out she was pregnant with B.W.1, and father reported he last used methamphetamine three months prior to the social worker's investigation. Both parents declined to drug test. The social worker observed no health or safety hazards in the home, and the allegations were deemed inconclusive.
The parents had extensive history with Child Protective Services (CPS), dating back to 1995. Eight of mother's children were removed from her care due to substance abuse. Her parental rights were terminated as to seven of them, and one was placed in legal guardianship. Three of the children were also father's. Because of the parents' CPS history, the department offered them voluntary family maintenance services (VFM), and the parents agreed to participate.
Over the next three months, the VFM social worker visited the family several times. The VFM social worker consistently observed that B.W.1 appeared free of neglect or abuse, had ample supplies, and the living environment appeared free from safety or health hazards. A nurse examined B.W.1 and reported no concerns and that mother was giving B.W.1 "particularly good care resulting in his health and safety." The parents, however, consistently declined to drug test. Though they agreed to participate in substance abuse counseling in lieu of testing, they did not enroll while on VFM. On one visit, the social worker noted the home had a strong odor of marijuana. Mother denied use and reported that their roommate smoked marijuana.
On February 19, 2019, the department received a referral from law enforcement alleging general neglect and emotional abuse against the parents. B.W.1 and his then 11-year-old brother, B.W.2, were listed as victims. Maternal grandmother had reported to law enforcement that B.W.2 called her and told her that father had pointed a firearm at mother. When officers arrived, approximately 10 children were exiting the home. Mother appeared to be under the influence of alcohol and was not cooperative. Mother told the officers that father " 'left a while ago' " and " '[n]othing happened.' " B.W.2 did not answer any of the officer's questions. Officers could not locate father or the firearm.
Further references to dates in the statement of facts are to dates in 2019, unless otherwise specified.
On March 2, mother called the police, reporting that her adult son, Rudy M., took B.W.1 and had not returned with him. When the officers arrived, mother was lying on a couch and unable to answer questions about her children's full names or birthdates. Mother reported that Rudy went to her residence on February 28 with two females and stayed for about one hour. The next day, March 1, Rudy went back to her residence and asked if he could take B.W.1 to buy some clothes. Mother allowed him to do so, but Rudy did not return B.W.1 at the agreed upon time. When Rudy began blocking her phone calls, she called the police. Mother was unable to give a description of B.W.1 or recall his exact age, and was only able to recall the color of clothing he was wearing. The officer ran a records check on mother, which revealed she had two active misdemeanor warrants for arrest for being under the influence of a controlled substance, possession of a controlled substance, and prostitution.
Also on March 2, and in response to a separate call regarding the location of B.W.1, the officer contacted Mary M. who reported that Rudy called her because mother told Rudy to take B.W.1 because mother could not care for him. Rudy told Mary he observed people under the influence in mother's home. When Mary picked up B.W.1 from Rudy's apartment, B.W.1 had a bad rash near his genitals, a bad cough, and a small wheezing sound coming from his chest. Based on this, Mary called CPS and the police. The officer went with Mary to B.W.1's location and observed a circular red area on the skin similar to a blister on B.W.1's buttocks.
The officer ran a CPS check on mother which revealed 35 total CPS referrals, including six substantiated and 29 inconclusive or unfounded referrals. The check revealed mother's open VFM case and that several of mother's children had been adopted.
The officer contacted Rudy who reported that he went to the parents' home on the evening of February 28 with E.A. and K.H. Rudy observed numerous unfamiliar adults in the living room who appeared to be under the influence and acting " 'crazy.' " Rudy observed B.W.1 lying on a couch unattended, so he brought B.W.1 into the living room. Rudy reported that while he was holding B.W.1, father pointed a handgun at Rudy, so he and his friends left immediately. Rudy returned the next day because he felt B.W.1 was not safe. Rudy asked mother if he could take B.W.1 to the mall to buy him clothes and spend time with him, and she agreed. Rudy took B.W.1 to Rudy's residence to give him a bath and noticed a bad rash near his genital area. Rudy then decided he wanted help from Mary.
E.A. reported to law enforcement that when she, Rudy, and K.H. arrived at the parents' apartment on February 28, there were several unknown females in the residence with mother and father. Mother was acting very strange and appeared to be under the influence. E.A. said she has family members who use narcotics and can recognize someone under the influence. Mother appeared paranoid and talked about how "Mary" was going to take her baby away. E.A. said father was acting strange and rambling about nonsense. E.A. observed the outline of a gun in father's pocket, which made her want to leave. E.A. did not see father point the gun at Rudy. E.A. said after they left, Rudy became emotional because he felt so bad about the conditions in which B.W.1 was living and decided to go back the next day to pick up B.W.1. When they arrived on March 1, she noticed four to five adults wandering in and out of the residence and some of them appeared to be under the influence. E.A. said she saw Rudy bring B.W.1 from a back bedroom and he appeared dirty, had dirty clothing on, and had a cough. E.A. went with Rudy to his home where they bathed B.W.1. E.A. told law enforcement that in her opinion B.W.1 was not safe based on what she observed on February 28 and March 1.
The officer determined B.W.1 was in immediate risk if he were to remain in mother's care based on the statements, his own observation of an untreated blister, untreated cough and wheeze, the fact mother had an active warrant for her arrest, and 35 CPS referrals, which had resulted in six of her children being taken from her custody.
Law enforcement placed B.W.1 into protective custody and made a referral alleging general neglect against mother to the department on March 2.
When B.W.1's first caregiver took B.W.1 to the doctor due to his cough and wheeze, B.W.1 was diagnosed with asthma and an ear infection. Later that day, father advised the social worker that B.W.1 was healthy. When asked if B.W.1 had a cough, father replied that B.W.1 had a " 'lil phlegm' " but they took him to the doctor a few days before and he was fine. Father then reported B.W.1 had " 'a lil pneumonia.' " The social worker asked father when he last used drugs or alcohol, and father said it had " 'been a while,' " later clarifying he had used methamphetamine "two or three weeks or maybe a month" ago. When asked if he had ever completed substance abuse counseling, father reported he completed a six-month program in 2004 and subsequently relapsed.
Later that day, the social worker spoke with mother. Mother denied currently using drugs or alcohol and reported that the last time she "used" was five or six years earlier. In 2010, mother was diagnosed with mood swings, bipolar disorder, and manic depression. Father later reported to the social worker that mother is mentally ill and that he keeps a close watch of her and B.W.1.
The department filed a section 300 petition on behalf of B.W.1 on March 6, alleging B.W.1 came within the juvenile court's jurisdiction under section 300, subdivisions (b)(1) and (j). The petition alleged that B.W.1 was a child described by section 300, subdivision (b)(1) because he had suffered or there was a substantial risk that he would suffer, serious physical harm or illness by (1) the willful or negligent failure of both parents to provide him with adequate food, clothing, shelter, or medical treatment; (2) the inability of mother to provide regular care for B.W.1 due to mental illness and substance abuse; and (3) the inability of father to provide regular care for B.W.1 due to his substance abuse.
The petition alleged B.W.1 was a child described by section 300, subdivision (j) because several of B.W.1's siblings or half siblings had been abused or neglected, and there was a substantial risk B.W.1 would be abused or neglected. It was alleged that dependency jurisdiction had been taken over of at least four of father's children and eight of mother's children, resulting in termination of parental rights as to all children, except in the case of one of mother's children, who had been placed into a legal guardianship.
At a mediation regarding jurisdiction, the parents agreed to submit on the section 300, subdivision (j) allegations. The matter was set for a contested jurisdictional hearing on the section 300, subdivision (b)(1) allegations only. At the end of March, mother began submitting to random drug tests, and tested negative consistently. Father continued to decline to drug test.
At the contested jurisdictional hearing on June 24, B.W.1's sister, B.W.3, testified that she texted Rudy via Facebook Messenger and asked him why he took B.W.1, and Rudy said that it was because Mary gave him $300. Screenshots of the messages were received into evidence.
Maternal grandmother testified that when she saw father changing B.W.1 on March 1, she did not see a boil or diaper rash on B.W.1. Maternal grandmother testified that she acknowledges mother has had substance abuse problems in the past but that she did not currently have any concerns about her using drugs or alcohol.
B.W.1's current caregiver testified she had taken B.W.1 to the emergency room because the social worker was concerned about B.W.1 sounding congested. The doctor who examined B.W.1 told the caregiver he wished all babies were as healthy as B.W.1. The doctor said B.W.1's lungs were clear and he did not believe he had asthma. The caregiver later took B.W.1 to his regular pediatrician, who wrote a letter stating B.W.1's congested-sounding chest was not due to asthma but to B.W.1 being premature and having underdeveloped bronchioles. The doctor opined B.W.1 would outgrow the condition between 12 and 18 months. The letter was received into evidence. The caregiver also testified mother and father attended all appointments and fully participated.
Mother testified that on March 1, Rudy asked if he could take B.W.1 shopping, and mother allowed Rudy to take B.W.1 for a couple hours. Mother said she usually does not let anyone take B.W.1 because he is so small and that B.W.1 had not even spent the night at a family member's house. Mother testified that when Rudy came over to her house, there were not people under the influence of controlled substances. Mother stated that during this time she did not notice any sort of rash on B.W.1, but acknowledged that B.W.1 "[m]aybe" had a "little" cough.
After hearing argument, the juvenile court made a record of its fact and credibility findings. The court noted maternal grandmother's testimony regarding mother's drug and alcohol use was inconsistent with observations made by law enforcement and other witnesses. The court noted the parents appeared to be minimizing B.W.1's health issues. The court stated it was taking Rudy's statements "out of the evidence" in making its rulings without making a judgment as to his credibility. The court gave weight to E.A.'s statements that mother appeared to be under the influence, that father was acting strange, rambling, and had a firearm in his pocket, and that B.W.1 had a cough. The court gave credence to B.W.1's first caregiver who stated he was sick when she picked him up and was diagnosed with asthma and an ear infection. The court noted it had no basis on which to discount the statement of B.W.2. The juvenile court found B.W.1 was a child described by section 300, subdivisions (b) and (j).
After the jurisdiction hearing, mother continued to engage in services and test negative for illicit substances. The department recommended that she receive family maintenance services. Father failed to engage in services. Though father eventually agreed to voluntarily drug test, he failed to appear more than once and eventually stopped calling in to the random drug testing system. The department recommended that father be bypassed for services pursuant to section 361.5, subdivision (b)(10), (11) and (13).
Section 361.5, subdivision (b)(10), (11) and (13) reads in relevant part: "Reunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence . . . : [¶] . . . [¶] . . . That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling . . . and . . . this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . [;] [¶] . . . [t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed . . . and . . . this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . [;] [¶] . . . [¶] . . . [and t]hat the parent . . . has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition."
At the dispositional hearing on November 5, the department, mother, and counsel for B.W.1 submitted the matter on the department's recommendations. Father objected to being bypassed for services but did not offer any different or additional evidence or argument.
The juvenile court ordered B.W.1 removed from the physical custody of father and placed with mother, and further ordered family maintenance services to be provided to mother.
As to father, the juvenile court found by clear and convincing evidence the bypass provisions of section 361.5, subdivision (b)(10), (11) and (13) applied.
Father appealed.
DISCUSSION
The department contends father's challenge to the jurisdictional findings is a veiled and belated attack on the sufficiency of the pleadings and we should not address the merits of father's claim. We address the merits of father's claim and find, in any event, his claim fails.
We review the juvenile court's jurisdictional findings using the substantial evidence standard of review, where we determine whether evidence of reasonable, credible and solid value supports the juvenile court's findings. We do not reweigh the evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) " '[W]e must uphold the [trial] court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (b)(1), as relevant here, when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness . . . or substance abuse." (Ibid.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' " (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216 (Christopher R.).)
Father contends the record does not contain substantial evidence to support a finding that B.W.1 was at substantial risk of suffering serious physical harm as required by section 300, subdivision (b)(1). Specifically, he argues the department did not produce substantial evidence of (1) current substance abuse as opposed to past substance abuse and/or current mere substance usage nor (2) that there was a specific, nonspeculative, substantial risk of harm to B.W.1 at the time of the hearing.
We first address father's contention that the department did not demonstrate the parents were currently abusing substances. Jurisdiction based on allegations of substance abuse may be taken when there is a showing of a medical diagnosis of substance abuse or evidence of life-impacting effects of drug use. (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 726; see also In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.); Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322.) As father points out, courts have found the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders provides helpful criteria. (See Christopher R., supra, 225 Cal.App.4th at p. 1218; Drake M., at p. 765.) Those criteria include but are not limited to substance use, which results in a failure to fulfill major role obligations at home, and recurrent substance-related legal problems. (Christopher R., at pp. 1217-1218; Drake M., at p. 766.)
Father concedes mother and father have a long history of substance abuse. This is abundantly supported by the record. The record here showed that mother had an extensive criminal history dating back to 1995, including eight convictions related to drug use and 11 convictions related to alcohol use, which included two driving under the influence of alcohol convictions and several disorderly conduct convictions. Mother's most recent conviction was for possession of a controlled substance in 2014, and at the time the dependency proceedings were pending, she had outstanding warrants for arrest for possession of a controlled substance and use of a controlled substance. Over the course of 20 years, her parental rights as to seven of her children were terminated and one of her children was placed into legal guardianship due to substance abuse related issues. Father had an extensive criminal history dating back to 1989, including eight convictions related to drug use and one conviction for driving under the influence of alcohol. Father was ordered to register as a narcotic offender for methamphetamine twice, once in 1997 and once in 2016. As for the 2016 conviction, father was sentenced to four years in prison. Father failed to reunify with one of his children. It is clear mother's and father's substance use has greatly impacted their lives and affected their ability to fulfill many of their obligations for some time and clearly constitutes abuse under case law.
Father contends, however, that at the time of the jurisdictional hearing, the record contained "[a]t best" "occasional" " 'use' " of substances, rather than "abuse." We decline to view the parents' substance " 'use' " in isolation as father suggests. By insisting evidence of " 'use' " in this case does not constitute "abuse," father ignores the evidence on the record that the parents' substance abuse issues were never resolved. The record demonstrates that both parents had participated in substance abuse services in the past to no avail. Mother had received substance abuse services through previous dependency proceedings and continued to use. Father admitted he completed a six-month treatment program, then relapsed.
Indeed, the record contains substantial evidence that mother and father were using substances. Father admitted to using methamphetamine as recently as February 2019. Mother inconsistently reported when she last used substances and was observed exhibiting symptoms of being under the influence twice in February 2019. The parents consistently declined to drug test during VFM services. Based on this evidence, a reasonable inference could be made that mother and father were using illicit substances.
We do not agree with father's distinction between "occasional substance 'use' . . . with a long history of substance abuse problems" and "substance abuse." Rather, we view the parents' use of substances as a continuation of their substance abuse issues. Juvenile courts have noted in other contexts that longstanding and chronic abuse is a serious problem not ameliorated in a short time. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 686-687 [relapse following 300 days of sobriety]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days insufficient to convince juvenile court that a relapse would not occur].) Based on their chronic and unresolved substance abuse issues combined with evidence of current use, we conclude the evidence on the record supports a finding that the parents were currently abusing substances.
Further, there is evidence on the record that mother was diagnosed with a substance use disorder through her mental health services. Though the court did not have this evidence before it at the time it took jurisdiction over B.W.1, it supports our premise that any use combined with the parents' unresolved history constitutes abuse.
We turn to father's contention that the evidence did not support a finding of particularized risk of harm to B.W.1 resulting from the parents' substance abuse. Father correctly argues that substance abuse, without more, is an insufficient ground to assert jurisdiction in dependency proceedings under section 300. (In re L.W. (2019) 32 Cal.App.5th 840, 848-850.) Here, however, the evidence supports a finding that on February 17, mother was under the influence of alcohol in the presence of 10 children with no other adults present. There is also evidence on the record which supports a finding that on February 28, the parents were under the influence while in the care of B.W.1 with father also in possession of a firearm. Based on this evidence and the fact that father had not consented to drug testing or meaningfully begun participating in services to ameliorate his substance abuse issues, we conclude a particularized, substantial risk of harm to B.W.1 existed at the time of the jurisdictional hearing.
In any event, in cases involving children of " 'tender years,' " "the finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm." (Drake M., supra, 211 Cal.App.4th at p. 767; accord, In re Natalie A. (2015) 243 Cal.App.4th 178, 185-186; Christopher R., supra, 225 Cal.App.4th at p. 1216.)
Here, B.W.1 was a mere five months old when the juvenile court asserted jurisdiction. Based on the evidence that the parents were abusing substances, the department was not required to make a particularized showing of risk.
We find on this record that the parents did not adequately rebut this prima facie evidence by showing lack of risk. There was no evidence, for example, that the parents did not use while caring for B.W.1 or provided for his care while they were using. To the contrary, the parents were the primary caregivers of B.W.1. Mother testified she usually did not let B.W.1 go with anyone or spend the night at a family member's or anyone's house. Evidence on the record that B.W.1 had ample diapers, wipes, and formula, and otherwise appeared to be well taken care of is not evidence adequate to rebut the presumption. If the absence of injury were enough, proof of a specific, identified hazard would always be required and the tender years presumption would cease to exist.
In re David M. (2005) 134 Cal.App.4th 822 (David M.), relied on by father, does not alter our conclusion. In David M., the appellate court reversed a court's jurisdictional order holding that the agency had not borne its burden of showing the nexus between mother's mental health and substance abuse issues and father's mental health issues with any substantial risk of serious harm to their two-year-old and two-day-old children. (Id. at pp. 825, 832-833.) The allegations included "extensive" and "unresolved" substance abuse. (Id. at p. 825.) Though the appellate court acknowledged the mother "continue[d] to suffer from a substance abuse problem with marijuana in the limited respect shown on this appellate record," it did not find there was sufficient evidence on the record to show a specific, defined risk of harm to the children resulting from the substance abuse. (Id. at p. 830.) The court noted "it [wa]s possible to identify many possible harms that could come to pass," but without more evidence than what was in the record before it, the harms were speculative. (Ibid.)
David M. is distinguishable because, as we have discussed, there was evidence on the record that mother's and father's substance abuse put B.W.1 at a substantial risk of harm. Further, David M. was decided years before the judicially created " 'tender years' " presumption was established, and to that extent, we do not find it persuasive. (See Drake M., supra, 211 Cal.App.4th at p. 767.)
We conclude the evidence was sufficient to support the juvenile court's finding that there was a substantial risk B.W.1 would suffer serious harm or illness as a result of both parents' inability to provide regular care for him due to their substance abuse.
Since a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction, we need not address father's other claims regarding mother's mental health issues, neglect of medical care for B.W.1, or findings made pursuant to section 300, subdivision (j). (Drake M., supra, 211 Cal.App.4th at p. 762.)
DISPOSITION
The juvenile court's jurisdictional order is affirmed.
DE SANTOS, J. WE CONCUR: HILL, P.J. FRANSON, J.