Opinion
G056231
06-25-2018
L.M., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Office of J. Michael Hughes and Lawrence A. Aufill for Petitioner. No appearance by Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Real Party in Interest. Law Offices of Harold LaFlamme and Tina Stevens for Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16DP0161, 16DP0162, 17DP0221) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Petition denied. Law Office of J. Michael Hughes and Lawrence A. Aufill for Petitioner. No appearance by Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Real Party in Interest. Law Offices of Harold LaFlamme and Tina Stevens for Minors.
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L.M was the prospective adoptive parent for her three minor nieces, ages one, two, and three. The children had been placed with her from very early in their lives. As the adoption study was ongoing, however, it was revealed that L.M. was struggling with substance abuse in ways that could potentially harm the children. As a result, the adoption study was going to result in a denial. Meanwhile, another family member offered to adopt the children. This led the Orange County Social Services Agency (SSA) to file a motion to remove the children, which was granted.
L.M. filed the present writ petition requesting that we order the trial court to reverse its ruling and maintain the children with her. She contends the bond she shares with the children, as well as the evidence that the children are generally in good health, required the court to deny the motion.
We disagree. While L.M. can certainly point to factors favoring maintaining the children in her care, her substance abuse was a strong factor cutting against it. Ultimately, the court had to make a judgment call. Where, as here, the standard of review is abuse of discretion, it is not our role to second-guess a judgment where there are factors supporting it. Accordingly, we deny the writ petition.
FACTS
This petition involves three minors. From oldest to youngest, they are: Sa. V. (age three), Sc. V. (age two), and Sy. V. (age one). The matter initially came before the juvenile court when Sc. V. was born because both mother and baby had methamphetamine in their systems.
The initial petition, which was sustained, alleged that the mother had an unresolved substance abuse problem involving both methamphetamine and Vicodin. She also had unresolved mental health problems; in particular, depression. The father had a history of substance abuse, mental health issues, anger management issues, inappropriate physical discipline, and lewd acts with minors. Ultimately, parental rights were terminated in May 2017.
Sa. V. and Sc. V. were placed with L.M. shortly after Sc. V. was born. Sy. V. was placed with L.M. shortly after her birth. L.M. expressed interest in adopting the children. As of November 2017, the home study had not been completed because L.M. had purchased a new house, but was unable to move in until renovations were completed. Nonetheless, that same month L.M. was granted de facto parent status. Through January 2018, everything appeared to be on track for L.M. to adopt the children.
But in February 2018, SSA filed a notice of intent to remove the children. The notice detailed the following allegations of substance abuse and child endangerment. In September 2017, L.M. was arrested for driving under the influence (DUI), though the charge was dropped. A week later, police found L.M. disoriented in her car; the children were in the car also. She admitted to drinking alcohol and consuming prescription drugs on that occasion. The car was impounded and alcohol bottles were found in the car. A child abuse report was filed, but SSA deemed it "unfounded."
In early October 2017, L.M. was once again arrested for DUI. She admitted consuming a drink, though claimed she had been on a date and believed her drink was drugged and that she was subsequently sexually assaulted. The police report indicated L.M. was found in her vehicle, which smelled of alcohol, and that she failed a breathalyzer test. L.M.'s breathalyzer results that night had been .118 and .126 percent blood alcohol content. Also, the police found in the vehicle a half-full bottle of alcohol, a Starbuck's cup filled with alcohol, and prescription medication bottles belonging to someone else. In early November, the DUI charge was dropped.
In January 2018, L.M. was hospitalized and underwent emergency surgery for an ectopic pregnancy. L.M. informed the social worker that she was also pregnant with the fetus appropriately implanted in her uterus. L.M. believed the pregnancy was a result of the sexual assault she previously reported.
That same month, L.M.'s family held a meeting to discuss the children's placement. The family expressed concerns about the children's safety. They repeated those concerns to SSA. One family member reported that L.M.'s new home, which was supposedly being renovated, had not been worked on at all, and was uninhabitable. The same family member reported that, in late January 2018, L.M. had been found approximately one block from her home, so disoriented that she could not find her own home. L.M. was driving with the children at the time over the objections of her family members. The family member also reported that L.M. continued to see multiple doctors and urgent care centers for the purpose of obtaining prescription medication. L.M. had also been attempting to obtain medication from family members.
In February 2018, a child family team meeting was held, which included L.M. and various family members. After being confronted with her recent behavior, L.M. agreed to assist in transitioning the children to another relative caregiver.
As a result of these incidents, L.M. was informed that her home study would not be approved for adoption. The report recognized that "[t]he children have a bond with [L.M.], however, the children are of such a young age that they are able to develop bonds with others especially those familiar to them." The children were approved to be placed with family members with whom they are familiar, and those family members expressed a willingness to adopt. Further, the report stated that the children would continue to have contact with L.M., and that "the county would encourage contact with her as she has been an instrumental person in their lives."
L.M. denied these allegations and objected to the removal. As a result, a contested hearing was set.
The assigned social worker testified consistent with the report. Regarding the unsubstantiated child abuse report, the social worker stated she did not know why it was unsubstantiated and that the incident did in fact concern her.
L.M. testified regarding the September incident where she was found in her car disoriented. L.M. said she was actually just looking at street signs because she had only recently move to the area. She admitted, however, that her aunt had lived there for several years and L.M. had been to the house many times. She blamed her disorientation that night on medication she was taking for migraines. She denied drinking alcohol at the time. Then she admitted having "a beer" the day of the September incident, around noon. When confronted with the statement of her sister, who picked her up that night, that she had smelled alcohol on L.M.'s breath, L.M. demurred, stating, "I don't remember or recall a lot of stuff that happened that night."
L.M. was similarly evasive about the October incident where she was arrested for DUI. When confronted about statements regarding medications she said she was taking, she could not remember much of what occurred that night.
L.M.'s sister testified concerning the September incident. She observed L.M. earlier that day and believed she had been drinking alcohol because she was half-asleep on the couch and slurring her words. Before L.M. left that night, she and their aunt had put the kids down to sleep in hopes that it would discourage L.M. from driving with the kids in her state, and they asked L.M. to stay at the house, but L.M. left with the kids. The sister testified that she had, in the past, found medications in L.M.'s car that did not belong to L.M. The sister once decided to clean L.M.'s car. While cleaning the car she found pill bottles belonging to their aunt and brother. Both of them were on pain medications. The pill bottles were empty.
L.M.'s cousin testified that her mother (L.M.'s aunt, with whom she lived) had been missing some of her medication, and that L.M.'s sister had found her mother's medication bottle in L.M.'s car. The aunt took pain medication.
L.M.'s aunt testified that she believed L.M. was stealing her medication. Her daughter had reported seeing L.M. rifling through her medicine drawer, and she had found empty bottles of her medications among L.M.'s belongings. She had also seen her medications in L.M.'s purse on a couple occasions. The aunt also testified that on the night of the September incident, when L.M. returned to her home, she "reeked" of alcohol. Despite her concerns, the aunt also observed positive aspects of L.M. L.M. had been a great help to the aunt after the aunt's husband passed away. She praised L.M.'s patience with the children, and agreed that L.M. loved the children, and they loved her. But she believed L.M. was overwhelmed and was gravely concerned that something bad would happen to the children.
At the conclusion of evidence, L.M.'s attorney made an offer of proof, stating L.M. was willing to testify "that she has a substance abuse issue regarding prescription medication and alcohol. She is willing to seek treatment for that, wear a SCRAM, drug test, go through a drug program. She's also willing to seek mental health counseling."
After hearing argument from counsel, the court ordered the children removed from L.M.'s care. The court recognized that L.M.'s character was not the problem: "I have no doubt that [L.M.] is a very good, nurturing person, and dearly loves these three children, is bonded with them, and they, at their tender ages, are likely bonded to her." The court recognized that, over the past three years, L.M. had held down a steady job and taken "great care" of the children. The issue for the court was the best interests of the children. "What is concerning is [L.M.'s] substance abuse testified to by her family and her concession now that she does have a significant problem in this area and needs help." "[T]here has been a trigger over at least the last six to 12 months that has caused [L.M.] to accelerate her substance abuse problem." The court made factual findings that L.M. had been stealing medications from her relatives and hiding her alcohol abuse.
The court recognized that L.M. loved the children and had denied the abuse on the stand for that reason, "[b]ut that doesn't excuse the fact that she has not immediately sought substance abuse counseling when confronted by her family about these issues and is in fact in denial up until the end of this hearing to some extent about those issues." The court found that L.M. was overwhelmed by her responsibilities and her substance abuse, and that they "do present a danger to the children . . . ." The court conceded that "if the agency hadn't had other family members ready and willing and able to take over the care and custody and adopt these children, my decision would be different, but these children need stability and love, and they need it quickly, without the dangers posed by [L.M.'s] substance abuse and mental health issues." Accordingly, the court concluded, "I think the evidence is clear at this point that the agency's request for removal is in the best interest of the children . . . ." The court concluded by stating, "I want everybody including [L.M.] to know that this is an extremely tough decision that I've made in this regard."
On April 24, 2018, L.M. filed her notice of intent to challenge the juvenile court's removal order. The present writ petition followed.
DISCUSSION
L.M. contends the court abused its discretion in ordering the children removed from her care. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [custody determinations reviewed for abuse of discretion].) "At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (Id. at p. 317.)
For the trial court, this was clearly a difficult case. L.M. had invested in the children, and generally provided good care for them. The children were bonded to her. On the other hand, the evidence was clear, and she acknowledged it: she had a substance abuse problem. While the children had not come to any harm from it yet, the fact that she was willing to drive while under the influence—with the children in the car—presented a grave danger.
What made this a difficult case for the trial court, however, makes it a relatively easy case on appeal. We can only reverse for abuse of discretion if the court's decision was "'arbitrary, capricious, or patently absurd . . . .'" (In re Stephanie M., 7 Cal.4th at p. 318.) Where, as here, there are factors cutting both ways, we will seldom find an abuse of discretion.
L.M. argues the court ignored the emotional impact on the children of removing them and should have offered L.M. reunification services. While L.M. recognizes that she had no right to reunification services in the same way a biological parent would (In re Kieshia E. (1993) 6 Cal.4th 68, 77), she contends "there are situations, like the current case, when it's the "right" thing to do for the best interest of the children."
Assuming she is correct that the court could have offered her reunification services, the facts here simply do not compel that result. Other family members were willing to adopt the children, and the court was entitled to view L.M.'s substance abuse as a danger to the children sufficient to overcome the benefit of keeping them in L.M.'s care. While services may have aided L.M., as both the trial court and this court are well aware, services are not a panacea. Many people go through services without curing their substance abuse problems. Given the age of these children, the court reasonably concluded it was in their best interests to be given a stable and safe placement immediately. There was no abuse of discretion.
SSA also contends we should deny the writ petition because the notice of intent to challenge the court's ruling was late. The court's ruling was on April 12, 2018. The notice of intent to challenge was filed on April 24, 2018. Under California Rules of Court, rule 8.454(e)(4), the notice needed to be filed within seven days after the court's ruling. L.M.'s counsel acknowledged that the notice was filed late, but submitted a declaration stating that it was due to his inadvertence, and asked that we consider the petition on the merits. SSA contends this does not meet the showing of "exceptional . . . good cause" required by rule 8.454(d). of the California Rules of Court.
Given the stakes at issue, and the years of L.M.'s loving service to the children, we have decided it would be unjust, and unkind, to decide her petition on a technicality, and thus we have addressed the merits.
DISPOSITION
The petition is denied.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.