Opinion
B229812
08-19-2011
In re ELIJAH F., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T. B., Defendant and Appellant.
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK73499)
APPEAL from orders of the Superior Court of Los Angeles County. Terry T. Truong, Referee. Affirmed.
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
Mother T. B. appeals the dependency court's jurisdictional and dispositional orders, contending jurisdiction is not supported by her insignificant use of marijuana during her pregnancy with minor Elijah F., and for that reason the court's dispositional order placing Elijah with father Dwayne F. also must be reversed. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Elijah was born in July 2010 with a positive toxicology screen for marijuana. Mother admitted that she was nauseated during the pregnancy and did not want to get sick, and at the suggestion of her cousin, smoked some marijuana about three times. Mother claimed this was the first time she had smoked marijuana, but she also had a positive toxicology screen at Elijah's birth. Mother told the social worker, "'I can't believe you guys are tripping off me and there are people out there smoking crack and using crystal meth.'" Elijah was healthy at birth, weighing eight pounds, 12 ounces and having an Apgar score of 9.9. Mother's older child D. G. was a dependent of the court as a result of Mother's physical abuse of D. G.
An Apgar test "is a screening tool to determine whether a newborn needs medical attention to stabilize the heart or breathing function. [¶] . . . A score of 8 or 9 is normal and indicates the newborn is in good condition." (MedlinePlus at http://www.nlm.nih.gov/medlineplus/ency/article/003402.htm as of July 26, 2001.)
D. G. is the subject of separate currently pending proceedings before the dependency court as a result of a physical abuse and neglect referral in June 2008. She was placed with her maternal grandmother Bonnie B.
Elijah's father, Dwayne F., has known and dated Mother for three years, and was not aware she had smoked marijuana while pregnant. Father, who was married to Teresa W., disclosed that his wife did not know about Elijah, but that he was interested in having Elijah placed with him. The social worker told Father that Department of Children and Family Services (DCFS) would need to run a background check on his wife before Elijah could go home with him, and Father provided DCFS with his wife's contact information. However, Teresa was extremely upset upon learning of Elijah, and said she could "not handle it right now." Elijah was placed in foster care with T.E.
DCFS's background check disclosed that Mother had convictions for battery and willful cruelty to a child; Father had convictions for carrying a loaded firearm, possession of a controlled substance, and possession of a controlled substance for sale; and Teresa had been given probation for a conviction for possession of PCP for sale. Mother had six prior referrals for D. G. based upon neglect, physical, and sexual abuse before D. G.'s dependency proceedings were instituted in June 2008.
On August 4, 2010, DCFS filed a petition alleging three counts under Welfare and Institutions Code section 300, subdivision (b) and one count under subdivision (g) based on Mother's drug use during her pregnancy, Father's failure to protect Elijah, and Father's failure to provide Elijah with the necessities of life.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the August 4, 2010 detention hearing, the court found Father was the presumed father of Elijah. The court ordered Elijah detained and released to Father. The court also ordered an assessment of Elijah, and ordered monitored visitation for Mother and random drug testing. The court also ordered a pending review hearing with respect to D. G.'s case be vacated and combined with Elijah's pretrial resolution conference and set the matter for September 13, 2010. The court ordered DCFS to file an amended petition.
DCFS reported for the jurisdictional hearing September 9, 2010, that Elijah remained placed with Father. Mother had numerous contacts with law enforcement, including convictions dating to 1990 for robbery, assault with a firearm, battery and willful cruelty to a child, prisoner possessing a weapon, battery, and vandalism. Mother had been arrested on August 31, 2010 and was in custody, and was charged with terrorist threats and preventing or dissuading a witness from testifying with force or threats. Mother was subject to a 25-years-to-life sentence based upon her prior record. Bail had been set at $1.16 million, and a hearing was scheduled for September 15, 2010. Father had law enforcement contacts dating to 1975, including convictions for possession of a controlled substance, carrying a concealed weapon in public, and felon in possession of a firearm.
Mother told DCFS that she had been diagnosed with paranoid schizophrenia when she was 12 years old. She had been taking medication, but stopped when she was pregnant with Elijah. Father denied any knowledge of Mother's drug use during pregnancy. Father and Teresa have been together for 30 years and married for six. They have no children together, but Father has two adult children aged 30 and 35. Teresa was committed to caring for Elijah, stating: "'Elijah is part of my husband and since we are one, Elijah is part of me too. He (the child) didn't ask to come here, he just needs someone to love him and take care of him and I'm going to do that.'" DCFS observed that Father's home was neat, organized, and in good repair. Mother had been visiting on a daily basis prior to her incarceration on August 31, 2010. Father agreed to take Elijah to visit Mother while incarcerated.
On September 13, 2010, DCFS filed a first amended petition.
At the September 13, 2010 hearing, the court set D. G.'s review hearing and Elijah's jurisdictional hearing for contested hearings on October 25, 2010.
On October 25, 2010, Mother submitted to the court's tentative ruling that would combine counts (b)(1) and (b)(2) and strike (b)(4) as to Mother. Father requested that the court strike the allegation he knew Mother was using drugs, and asked the court to strike count (b)(3) and (g)(1) that Father failed to provide necessities to Elijah. The court dismissed count (b)(4) without prejudice, found count (b)(1) true as amended, and struck counts (b)(2), (b)(3), and (g)(1). The court sustained the petition as to amended count (b)(1), and set the matter for contested disposition on November 30, 2010.
The sustained petition as amended contained one count under subdivision (b) of section 300 that alleged: "The child [Elijah's] mother [T. B.] has a history of drug use and is a current user of marijuana which periodically renders the Mother unable to provide regular care for the child. On or about July 29, 2010, the child's mother had a positive toxicology screen for marijuana at the child's birth. The child Elijah . . . had a positive toxicology screen for marijuana. The mother's use of drugs places the child at risk of harm."
The court terminated reunification services for Mother with respect to D. G.
At the November 30, 2010 disposition hearing, the court found placement with Father suitable, awarded Mother and Father joint legal custody, with Father having sole physical custody of Elijah. The court entered a family law custody order, terminated jurisdiction over Elijah, and granted Mother unmonitored visitation on the condition she tested negative and attended individual counseling.
DISCUSSION
Mother contends that there was no basis for asserting jurisdiction over Elijah because DCFS did not establish beyond mere speculation that he had been harmed or would be harmed by her history of marijuana use. She contends DCFS failed to prove the allegations of the petition that she had a history of drug use and was a current user, and such use would cause serious harm to Elijah. As a consequence, she contends the dispositional order must be reversed. DCFS argues Mother's appeal should be dismissed because she failed to designate the order appealed from; waived the jurisdictional issue on appeal when she submitted on the amended petition; and the findings were supported by the evidence. We conclude that Mother's notice of appeal encompasses both orders, her arguments lack merit; for this reason, we need not consider DCFS's other arguments, and we affirm.
I. SUFFICIENCY OF MOTHER'S NOTICE OF APPEAL.
Mother, in propria persona, filed a notice of appeal on December 23, 2010 following the disposition hearing, but did not designate the order appealed from. The court's dispositional order is the first order that may be appealed in a dependency proceeding. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) On that basis, the record as a whole establishes Mother's intention to challenge the jurisdictional and dispositional orders because the court's disposition of the case was necessarily based upon its finding jurisdiction over Elijah based on Mother's marijuana use. We therefore construe the notice of appeal to designate Mother's appeal as being from both orders. (Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246.)
II. NO ERROR IN THE DEPENDENCY COURT'S JURISDICTIONAL OR DISPOSITIONAL ORDERS.
At the jurisdictional hearing, the dependency court's finding that a child is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review the dependency court's jurisdictional findings for substantial evidence, and review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
Section 300, subdivision (b) provides a basis for jurisdiction "if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness caused by the parent's inability to provide regular care for the child because of the parent's mental illness, developmental disability or substance abuse." (In re James R. (2009) 176 Cal.App.4th 129, 135.) A jurisdictional finding under section 300, subdivision (b) requires "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "Subdivision (b) means what is says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness." (Id. at p. 823; In re Alysha S. (1996) 51 Cal.App.4th 393, 399.)
"In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident. The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances." (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026.) We must have a basis to conclude there is a substantial risk the parent's endangering behavior will recur. (Id. at p. 1026.)
Here, Mother argues that Elijah was born weighing eight pounds, five ounces, and had an Apgar score of 9.9, no withdrawal symptoms were reported at the hospital, and Elijah appeared healthy to the social worker; furthermore, nothing in the record supports a conclusion that her parenting skills were affected by her marijuana use such that there was a current substantial risk of serious physical harm or illness. We disagree. Mother used marijuana several times during her pregnancy with Elijah, failed to take her medication for schizophrenia, physically abused her older child, and had a positive toxicology screen for marijuana the day Elijah was born. Her own statements to the social worker indicate she did not recognize the seriousness of her drug use during her pregnancy. These facts indicate that in spite of Elijah's healthy condition at birth, Mother poses a current risk of harm to Elijah, and that the dependency court's jurisdictional findings were supported by substantial evidence. As Mother offered no other basis for our review of the dispositional order other than her assertion of a lack of jurisdiction, we also affirm the court's dispositional order.
DISPOSITION
The orders of the superior court are affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. I concur:
MALLANO, P. J. ROTHSCHILD, J., Concurring.
The majority appears to hold that smoking marijuana on a few occasions during pregnancy is a sufficient basis for asserting jurisdiction. I do not agree. Nonetheless, I concur in the result because alternative grounds for upholding jurisdiction exist, including Mother's failure to take her medication for schizophrenia and her physical abuse of her other child, D. G.
ROTHSCHILD, J.