Opinion
B229443 Los Angeles County Super. Ct. No. CK81267
09-26-2011
In re JOSHUA D., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of Los Angeles County. Deborah Andrews, Judge. Affirmed in part and remanded in part with directions.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
J.D. (Mother) challenges the sufficiency of the evidence underlying the juvenile court's order asserting jurisdiction over her son Joshua. Mother also disputes the order removing Joshua from her custody, and the adequacy of the notices to the Cherokee tribes under the Indian Child Welfare Act (ICWA). The jurisdiction and disposition orders are supported by substantial evidence. We remand the case for proper notice to be given under the ICWA.
FACTS
Joshua was born—two months prematurely—in June 2009. He was hospitalized, attached to an apnea monitor for surveillance of his breathing and heart rate. In August 2009, the hospital notified the Department of Children and Family Services (DCFS) that Mother was unable to care for Joshua's special needs. She stopped attending CPR classes, and arrived late (then left early) for apnea monitoring instruction. Mother had difficulty feeding Joshua, and when she stayed overnight at the hospital, she slept through—and consequently missed—Joshua's feedings. Mother indicated that she missed feedings because she was tired. The hospital had concerns about Mother's ability to take care of Joshua, as she appears to have cognitive deficits.
Mother informed the social worker that she has received all the training needed to care for Joshua upon his discharge from the hospital. Although she slept through a feeding, her male companion was awake and fed Joshua. Mother denied feeling anxious or overwhelmed. She was homeless during part of her pregnancy: her parents demanded that she leave their home when they discovered she was expectant. Mother planned to live with Joshua at a Salvation Army home for women and children. Joshua was discharged from the hospital and placed in out-of-home care on September 10, 2009.
DCFS conducted a meeting on October 2, 2009, to develop an appropriate safety plan for Joshua. During the meeting, Mother disclosed that she has a conviction for driving under the influence (DUI), and failed to comply with the resulting 2007 criminal court order to complete a substance abuse course. Mother told the caseworker that she received the DUI citation when she left a bar after consuming two or three drinks. DCFS felt that Joshua was at substantial risk of harm if released to Mother. Mother agreed to participate in voluntary reunification services consisting of substance abuse testing and classes, and parenting education.
In October 2009, Mother enrolled in a substance abuse course to satisfy her DUI requirement. When DCFS attempted to verify Mother's enrollment in November, the provider stated that Mother was terminated from the program for nonattendance and missed drug testing. Mother acknowledged that she was terminated from the program. In December 2009, Mother refused a referral to an inpatient substance abuse program, saying that she did not need inpatient care. Mother enrolled in another substance abuse program in January 2010; however, this program did not satisfy the criminal court's substance abuse treatment requirement. Though Mother claimed to be attending parenting education classes, DCFS was informed by the service provider in February 2010 that Mother had not attended any classes.
During monitored visits in September and October 2009, Mother "seemed very uncomfortable with the baby as evidenced by her needing help picking the baby up out of the car seat, her troubles bottle feeding the baby, and her lack of knowledge on burping the baby after the feeding. The mother also held the baby in an awkward upright position which made the baby grunt and gasp." When the monitor offered assistance, Mother was open to learning and made appropriate corrections. On October 13, Mother attempted to clip Joshua's nails and ended up cutting open his left thumb. Afterward, she was hesitant but obtained a wet napkin and put pressure on the wound.
Mother had to be constantly reminded to hold the baby bottle upright, so Joshua would be able to drink milk instead of ingesting air. Mother struggled to change Joshua's diaper, "as if she didn't know which way the diaper should be placed . . . ." At the end of visits, Mother could never remember how to fasten Joshua into the car seat. In January 2010, the monitor stated that Mother "still needs to be told over and over again how to appropriately interact with and care for the baby." Mother was observed trying to force Joshua to drink from the bottle after he had drifted off to sleep. This caused the social worker particular concern that Joshua was in danger if left alone with Mother. When asked to bring books or toys to engage Joshua during visits, Mother brought inappropriate items. Mother had to be prompted to show affection toward Joshua, and they did not appear to be bonding.
Mother indicated that she lives with her maternal aunt, Ms. H., and planned to continue living there with Joshua. As it turns out, Ms. H. is a schizophrenic who resides with Mother's great aunt, who denied that Mother lives in her home. The great aunt confirmed that the family has Cherokee heritage through a great, great grandmother. She described Mother's parents as "very dysfunctional" and violent, and she opined that Mother is slow or lazy and "just can't get it together." The great aunt is "exhausted" and does not know any family members who can care for Joshua.
In November 2009, the DCFS social worker enrolled Mother in a drug and alcohol testing program at Pacific Toxicology. The process of random testing was explained to Mother, and she was advised that a missed test is considered a positive test. Mother stated that she understood the procedure. Nevertheless, Mother failed to appear for testing on November 16 and December 10 and 22, 2009, or on January 7, 2010. She tested negative on November 12, 2009. Mother's visits in December and January were awkward: she had to be encouraged to pick up Joshua, feed him, and burp him. During a visit at the DCFS office on January 13, Mother made a false police report that the alleged father Jose B. was at the site harassing her. After the police arrived and excoriated Mother, she had to be encouraged to kiss and interact with Joshua.
After six months of voluntary reunification services, Mother had not completed any programs to alleviate the concerns of DCFS. DCFS decided to detain Joshua: "Given mother's questionable mental capacity, an outstanding criminal DUI, lack of parenting skills, inadequate bonding, and unstable living arrangement, it appears that she is unable to provide ongoing care and supervision for the child, Joshua," such that DCFS could not ensure Joshua's safety if he were released to Mother's care. DCFS asked the court to order individual therapy, a drug and alcohol awareness program, parenting education, and an interactive parenting class.
On February 22, 2010, a petition was filed on Joshua's behalf alleging that Mother has a history of alcohol abuse and is a current abuser of alcohol, which renders her incapable of providing Joshua with regular care and supervision. She has a criminal conviction for DUI. DCFS provided Mother with remedial services that failed to resolve the family problems because Mother failed to participate in a substance abuse rehabilitation program with random testing, or in parenting classes. Mother's alcohol abuse endangers Joshua's physical and emotional health and safety, and places him at risk of harm.
The petition also made drug abuse allegations against Jose B., the man that Mother identified as Joshua's father. Paternity testing showed zero possibility that Jose B. is Joshua's father, and he was dismissed from the petition.
At the detention hearing on February 22, 2010, Mother denied the allegations in the petition. The court found a prima facie case for detaining Joshua, and placed him in the custody of DCFS. Mother was given monitored visitation. DCFS was ordered to give notice to the Cherokee tribes regarding Mother's Indian heritage.
DCFS submitted a jurisdiction/disposition report in March 2010. Mother stated that her DUI was a misdemeanor, and she randomly tests for alcohol through probation. Mother claimed to be in an alcohol abuse program since January 2010, and in a parenting program since February 2010. Mother asserted that "I am not a risk to my child," but missed random drug tests on January 29, and February 2 and 24, 2010. She seemed overwhelmed by the criminal court and DCFS processes.
Mother's counselor at the drug program noted that Mother was enrolled for weeks in the wrong program, but was scheduled to enroll in the correct DUI program in one week. A mental health assessor described Mother as sociable, happy, and cooperative. Although her intellect is impaired, her judgment is appropriate and she does not appear to have a substance abuse problem. She has no close friends, and although she was formerly close to her parents, they made her leave home when she discovered she was pregnant. Mother did not realize that she was pregnant until mid-May 2009, i.e., shortly before Joshua was born in June. She received minimal prenatal care and had hypertension.
During her mental health evaluation, Mother attributed her DUI conviction to driving slowly without her eyeglasses, not to alcohol use. The assessor believes that Mother is "slightly low functioning," and described Mother as having slow motor behavior and slow speech responses. Nevertheless, Mother graduated from high school and has sought out resources to benefit herself and Joshua. The assessor recommended that Mother enroll in training to learn appropriate parenting techniques; receive in-home services; have teaching and demonstration, to assist with her daily living skills; and have substance abuse counseling to fulfill her outstanding criminal court obligation.
DCFS reported that Mother does not have permanent housing. She consistently visits Joshua three times per week, for two hours each time. Her comfort level has improved and she is proactive in changing Joshua's wet diaper and interacting with him. By the same token, during a visit on March 9, 2010, Mother had to be told to give Joshua a kiss, and when he became fussy, the foster mother went to get a bottle, but Mother made no effort to comfort the child with a pacifier or to pick him up and talk to him. Mother previously worked as a caregiver for the disabled and elderly; her longest full-time job lasted for two years. She is currently unemployed and relies on welfare and food stamps.
DCFS filed an amended petition in May 2010. It alleges that Mother has a history of alcohol abuse and is a current abuser of alcohol, which renders her incapable of providing her child with regular care and supervision, and Mother failed to regularly participate in a substance abuse program despite a DUI conviction. The new allegation is that Mother "has displayed impaired intellectual functioning and mental and cognitive deficiencies which renders the mother incapable of providing regular care and supervision of a special needs child . . . ." Mother denied the allegations in the amended petition.
Mother identified a new alleged father, Sergio G., who denied siring Joshua and refused to cooperate with DCFS. Mother visited Joshua regularly in April 2010. A medical assessment was requested to determine whether Joshua has cerebral palsy. Mother was doing well in her parenting, substance abuse and DUI programs, and tested clean for all substances. She was scheduled to complete the case plan in August 2010, but her living arrangements were unclear.
The petition was tried on June 28, 2010. Mother made a motion to dismiss the petition on the grounds that DCFS did not meet its burden of proof. She argued that there is no evidence of alcohol abuse, other than a 2007 DUI conviction, and there is no evidence of impaired intellectual functioning or risk to Joshua. The court denied Mother's motion. On the merits of the petition, Mother renewed her argument that there is no substantial risk to Joshua due to alcohol abuse, because there is no proof that Mother has used alcohol since his birth. Although Mother displayed some awkwardness with her baby, her judgment is good and there is no substantial risk to Joshua in her care.
The court sustained both of the allegations against Mother. It found that there is evidence of alcohol abuse in that Mother was required to complete alcohol rehabilitation following her DUI conviction, and failed to finish the program. Plus, persons close to Mother were interviewed and acknowledged that she has a longstanding alcohol problem. Mother had some clean tests, but they do not create an assumption that the tests she missed would have been clean: the missed tests are "dirty," which was explained to Mother beforehand. The court also found "ample evidence that Mother has difficulty attending to the child[;] difficulty feeding; difficulty consoling; difficulty with performing basic functions." Joshua has special needs and requires special services and monitoring, which Mother is not capable of providing.
In July 2010, DCFS reported that there has been no change in Mother's living arrangements; therefore, DCFS cannot recommend that Joshua be placed in Mother's care. DCFS explored housing programs that would accommodate Mother and Joshua, but Mother showed no interest in enrolling in those programs. Joshua was medically evaluated by a pediatric neurologist: while there are no signs of cerebral palsy, he has "a mild developmental delay" due to premature birth.
In September 2010, Mother stated that she completed parenting education and her DUI program. Mother's counselor confirmed that she has completed all required programs: parenting, DUI, and a six-month substance program. She had seven random clean tests. Mother does not have suitable housing for Joshua, so he cannot be placed with her.
The disposition hearing was conducted on October 1, 2010. It was stipulated that Joshua has special needs that would qualify him for regional center services. DCFS argued that Mother "definitely needs services in order for her to show that she can safely care for this child." Joshua's counsel agreed with DCFS, stating that Mother lacks the cognitive and emotional ability to care for Joshua, so that placing him with her would "place him at enormous risk." Mother asked for Joshua to be returned to her immediately because there is no substantial risk to him and there are reasonable means to avoid removal. Her intellectual limitations should not be a bar to having custody of her child, and she can participate in programs while Joshua is in her care.
The court found that there is a clear risk if Joshua is placed with Mother at this time. He is a special-needs child, and Mother has serious issues with alcohol, even if she has completed the DUI program. Mother has persistently shown difficulty in caring for, feeding, and consoling Joshua, and clipped his thumb instead of his thumbnail. The court ordered a psychological evaluation for Mother; an Alcoholics Anonymous program twice weekly; random alcohol testing; and individual counseling to include parenting a special-needs child. Mother appeals from the disposition order.
DISCUSSION
1. Appeal and Review
A dependency court disposition is an appealable judgment. (Welf. & Inst. Code, § 395; In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) "In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] 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; In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
2. Jurisdiction and Disposition
Mother objects to the court's sustained findings under Welfare and Institutions section 300, subdivision (b). The statute is satisfied by showing that the child has suffered or there is a substantial risk that he will suffer serious physical harm or abuse. (In re Adam D. (2010) 183 Cal.App.4th 1250, 1261.) This showing can be "based on evidence of prior acts" to establish dependency jurisdiction, taking into account the parent's mental condition and any other probative factors. (In re J.K. (2009) 174 Cal.App.4th 1426, 1438.) Even isolated incidents that occurred two years and six years before the petition is filed may be relevant—and not too remote. (Id. at pp. 1429, 1439-1440.) As noted in Mother's brief, prior parental conduct is relevant to the extent that it helps predict the risk of future harm.
The court may exercise jurisdiction under section 300 if "(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her or her parent pr guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
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Mother contends there is no evidence of a current risk of harm to Joshua from her alcohol abuse, which is remote in time and stems from a 2007 DUI conviction. She also contends that she has no cognitive deficits that place Joshua at risk of harm. She does not dispute that Joshua was born two months prematurely, required extended hospitalization, and has special needs. We reject Mother's contentions because substantial evidence supports the court's jurisdictional findings.
Based on the DCFS reports, the court could reasonably find that Mother's DUI conviction, coupled with her failure to seek substance abuse rehabilitation as ordered by the criminal court—until required to do so by the juvenile court in this dependency proceeding—indicates that Mother is evading responsibility for her alcohol use and her DUI conviction. Mother was dishonest in her interviews, offering two conflicting stories regarding the DUI conviction. She told the DCFS social worker that she was arrested after drinking in a bar and driving; by contrast, she told the mental health evaluator that she was arrested while driving slowly away from her parents' home without her eyeglasses, and the police mistook her nearsightedness for intoxication.
Mother relies upon In re James R. (2009) 176 Cal.App.4th 129, but that case is inapposite. The mother in James R. had to be hospitalized due to a bad reaction from combining ibuprofen and beer. (Id. at pp. 131, 136.) This event did not present a risk of harm to the children: their father was able to protect and supervise the children if his wife was intoxicated, and they were in school or at daycare while their father was working, not alone with their mother. (Id. at p. 137.)
Unlike the parent in James R., Mother got drunk at a bar, then started up her car and drove away, endangering herself, her passengers (if any), pedestrians, and other drivers. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [citing "the horrific risk posed by those who drink and drive."].) To make matters worse, Mother lied about the DUI during her mental health assessment, attributing her conviction to nearsightedness instead of admitting that she was intoxicated. A parent who drives while intoxicated poses a tremendous risk to a child passenger, who cannot protect himself. The children in James R. had their father living in the household, to intervene if they needed protection. Joshua has no protector except Mother, who is estranged from her parents and has no close friends.
Mother's denial of responsibility for the DUI conviction suggests an unresolved addiction. A remorseful and self-aware individual would have promptly complied with the criminal court order and sought treatment, to avoid any future endangerment to herself and others. Mother balked at undergoing a program aimed at preventing future DUI convictions, was terminated from her first program for nonattendance, and missed numerous tests at her second program, despite knowing that a missed test is a "dirty" test. Mother did not complete her DUI and substance abuse programs until August 25, 2010, two months after the jurisdiction hearing. In sum, the record contains substantial evidence of Mother's publicly endangering conduct involving alcohol, followed by resistance to treatment for alcohol abuse, which supports the juvenile court's finding that Mother's alcohol abuse presents a risk of future harm to Joshua.
Eyewitness reports indicate that Mother is unprepared to parent Joshua, a prematurely born special-needs child. From the outset, Mother seemed disengaged, sleeping through her infant's feedings at the hospital and failing to learn how to resuscitate Joshua or monitor his breathing. After Joshua was discharged from the hospital, Mother exhibited discomfort: she held her child awkwardly; required assistance to remove him from a car seat, feed him, and burp him; and cut open his thumb with clippers. She had to be told repeatedly how to interact with and care for her baby, and tried to force a bottle into him when he was already asleep. She showed little or no affection for Joshua, and had to be prompted to kiss him. Despite six months of voluntary services, Joshua was still not safe in Mother's care. Mother's cognitive impairment is shown by her failure to realize that she was pregnant until shortly before she gave birth. As a result, she received no prenatal care. Although Mother consistently visited Joshua, the foster mother had to take over when the baby became fussy, and Mother made no effort to console him. Even in a monitored setting, Mother could not meet Joshua's basic needs.
The courts need not wait for disaster to strike before asserting jurisdiction. A case cited by Mother, In re Rocco M. (1991) 1 Cal.App.4th 814, lists two types of cases in which findings were made of a "substantial physical danger" to a child. One grouping involves adults with "a proven record" of abuse, and the other group "involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety." (Id. at p. 824.) "At 11 years, Rocco was old enough to avoid the kinds of physical dangers which make infancy an inherently hazardous period of life." (Id. at p. 825.) By contrast, Joshua falls into the "tender years" category: he was detained shortly after birth in mid-2009, and was a year old when the petition was adjudicated. Lack of appropriate care poses an inherent risk to Joshua's health and safety, even if Mother has no record of abuse. The record supports the juvenile court's jurisdictional finding that Mother is not capable of caring for a special needs child.
Under the circumstances, the juvenile court could find reasonable grounds for asserting jurisdiction, and for insisting that before Mother continue with parenting education; continue to test for alcohol and participate in AA; and undergo a psychological evaluation. Mother seeks immediate custody of Joshua, as a less drastic alternative to foster care. After reviewing the entire record, we conclude that the court could reasonably demand proof that Mother has acquired the skills needed to safely parent a special-needs child of tender age before she takes custody. If Mother progresses in her parenting program and acquires suitable housing, she is likely to be given increased and unmonitored visitation, and overnight visits, and at that point it will be clear that Joshua is safe in Mother's custody.
3. Notice to Cherokee Tribes
Mother claims enate Cherokee heritage. In March 2010, DCFS gave notice to the Cherokee Nation of Oklahoma. No other Cherokee bands were notified, though the juvenile court ordered that notice be sent to all relevant "tribes." The record contains no response from any tribe, and no ICWA findings were made by the court. DCFS concedes that "the notices included in the appellate record are insufficient as they indicate only one of the three Cherokee tribes was noticed, there is no proof the notices were received by the tribes, and no notice findings were made by the juvenile court." Joshua's possible status as an Indian child seems to have fallen by the wayside.
This Court has ruled that improper notice under the ICWA "does not impact the jurisdictional and dispositional orders previously made in this proceeding." (In re Brooke C. (2005) 127 Cal.App.4th 377, 379.) The only order subject to reversal for failure to give ICWA notice is one terminating parental rights, which does not exist here. (Id. at p. 385.) The lack of statutory notice requires a limited remand to the juvenile court, so that DCFS can perfect notice to the Cherokee tribes. "If, after proper notice is given under the ICWA, [Joshua] is determined not to be an Indian child and the ICWA does not apply, prior defective notice becomes harmless error." (Brooke C., at p. 385.) If Joshua is found to be an Indian child, an intervening tribe can petition the juvenile court to invalidate its orders. (25 U.S.C. § 1914.)
DISPOSITION
The jurisdiction and disposition orders are affirmed. The case is remanded to the juvenile court with directions to order DCFS to comply with the notice provisions of the ICWA.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
ASHMANN-GERST, J.