Opinion
B234186
12-09-2011
In re ISAAC C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.G., Defendant and Appellant.
Janette Freeman Cochran, by appointment of the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J935610)
APPEAL from orders of the Superior Court of Los Angeles County. David R. Fields, Judge. Affirmed.
Janette Freeman Cochran, by appointment of the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
L.G. (Mother) appeals from the juvenile court's dispositional orders placing her son Isaac C. in the custody of his father, Robert C. (Father), who has a history of substance abuse. We affirm the juvenile court's orders.
FACTS
Isaac was born in 1995. Both Mother and Father have long standing substance abuse issues. Isaac came to live with Father in 2005 and Father was granted sole physical custody in 2007 after the Los Angeles County Department of Children and Family Services (DCFS) substantiated an allegation that Isaac was neglected by Mother as a result of her substance abuse.
On April 10, 2011, DCFS again received a referral about Isaac when Father was taken by ambulance to the hospital after he was observed sitting on the curb outside his home with "altered mental status." When Father's ex-girlfriend came to the hospital to take them home, she reported to the hospital staff that Isaac was diagnosed with depression and attention deficit hyperactivity disorder (ADHD) but Father's drug use prevented him from ensuring that Isaac took his medication regularly or followed his psychiatrist's treatment plan.
On April 12, 2011, Father was arrested for driving under the influence of PCP and possession of two vials of PCP. Officers took Isaac into custody because there was no one to care for him at home. Rather than put him in foster care, Isaac was placed with his sister-in-law. Isaac's brother, who had a felony conviction, agreed to temporarily move out of his home in order for the home to comply with regulations. The caseworker determined that Mother "remains inappropriate for the care of the child."
That same day, a caseworker interviewed Isaac at his home. Isaac told the caseworker that when Father was taken to the hospital on April 10, 2011, he could "barely stand up and was not acting like himself." Isaac smelled PCP on him and called 911. Isaac said he was familiar with the smell of PCP because he used to smell it on Mother when she had custody of him. Isaac told the caseworker that he did not have a relationship with Mother and had not seen her in five years.
Isaac also reported to the case worker that on March 4, 2011, he tried to choke himself with a cell phone cord at school after a fight with his girlfriend. He denied trying to kill himself. He was hospitalized for five days as a result. He also used to cut himself and showed the caseworkers scars on his inner forearms. Isaac reported that he sees his therapist and psychiatrist regularly and is not failing any classes at school. Isaac stated he would prefer to live with Father but if that was not possible, he would like to remain with his sister-in-law. The caseworker observed Isaac to be in "overall good health" and "very polite."
Father's ex-girlfriend reported to DCFS that she and Father had a relationship many years ago. She was aware Father had been using cocaine and PCP for over 25 years. She reunited with Father four years ago and had been living with Father and Isaac for two years but moved out in March 2011 because she knew Father would not stop using drugs. She told the caseworker that Father never smoked or kept the PCP inside the home. Instead, he smoked and kept it in his car. She believed that Isaac takes his medication inconsistently and Father is unable to meet Isaac's mental health needs.
Mother left a largely incoherent voicemail message for the caseworker on April 13, 2011, protesting that she never received a fair trial, provided various reasons for why Isaac was taken away from her and denying any drug use. Isaac's sister-in-law told DCFS that she was not aware Father used drugs and had never seen Father under the influence. The court ordered a mental health assessment of Isaac on April 15, 2011.
At the detention hearing on April 15, 2011, both Mother and Father appeared and were appointed counsel. Isaac's attorney informed the court that Isaac had been having irregular visits with Mother and he did not want to live with her. Isaac's attorney also requested that Isaac's visits with Father be unmonitored, noting that he was sixteen years old, six foot three and presumably able to ensure Father's conduct was appropriate during visits. The juvenile court found a prima facie case had been established for detaining
Isaac under subdivision (b) of section 300 of the Welfare & Institutions Code. The juvenile court further ordered Mother and Father to submit to weekly random drug testing and have monitored visits with Isaac at least three times a week.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
In a June 7, 2011 disposition report, DCFS reported that Father was in full compliance with a drug recovery treatment program and had tested negative for PCP in all but his initial test. Isaac told DCFS that he had only seen Father under the influence of PCP once and "all I want to do is go home to my dad ASAP." He also stated that he did not have a relationship with Mother and he did not have any interest in visiting with her though she had called him "every now and again" over the years. Father admitted that his drug of choice was PCP and he had used the drug off and on for about 20 years. Most recently, he began using PCP for four months before he was hospitalized on April 10, 2011. He believed that no one would notice his drug use and stated that was the first time his son had seen him under the influence of PCP. He stated he was willing to fully comply with the court's orders and that this matter was a "wake up call."
Isaac provided a handwritten letter addressed to the "Judge of Children's Court" "to let everybody know how I am feeling about this whole situation." Stating that it has been very stressful, Isaac wrote that the detention has affected his school performance and his focus. He repeated his desire to return to Father's house. The disposition report further stated that Isaac was a healthy child with no serious medical issues or developmental problems, who was performing at grade level but struggling in algebra. Faced with an F in algebra, Isaac was receiving tutoring on the subject at school.
DCFS further reported that Father visited with Isaac every day after school. DCFS's visit to Father's one bedroom apartment, which he had lived in for nine years, showed that it was clean and well furnished. "DCFS [] assessed that as long as the father continues with positive participation in his drug treatment program; continues to test negative for PCP; and continues in individual therapy and case recommended treatment that there does not appear to [] be any risk factors why the child cannot be returned home to his father [] at this time."
At the dispositional hearing, the juvenile court sustained a section 300 petition that read: "Isaac[„s] father . . . has a history of substance abuse and is a current abuser of PCP, which periodically renders the father incapable of providing the child with regular care and supervision. On 4/12/2011, the father was arrested and charged with Possession of PCP. The father's use of illicit drugs places the child at risk of harm." Allegations against Mother regarding her substance abuse were dismissed and Mother was made non-offending in the amended petition. At the hearing, Isaac's attorney joined in DCFS's recommendation to release Isaac to Father and not to provide reunification services to Mother.
Mother objected to the proposed order releasing Isaac to Father due to Father's drug issues. Mother also requested reunification services. She acknowledged that there were "shortcomings" to her relationship with Isaac but felt that conjoint counseling would better her relationship with him and benefit him.
The juvenile court released Isaac to Father's custody with twice monthly unannounced visits by DCFS to ensure Isaac was not harmed. The court also ordered continued drug treatment and random testing for Father as well as individual and conjoint counseling. The court denied reunification services for Mother, but allowed monitored visits with Mother and conjoint counseling subject to Isaac's therapist's recommendation. Mother timely appealed the juvenile court's dispositional and jurisdictional orders.
DISCUSSION
Mother's appeal challenges the juvenile court's order placing Isaac with Father and denying her reunification services. We find no abuse of discretion and affirm the court's orders.
I. Custody
Mother contends that the juvenile court abused its discretion when it released Isaac to Father's custody due to Father's extensive history of drug abuse. Mother argues: "One, father was neglecting Isaac's needs in a way which might be reasonably expected to create the kind of emotional and psychological conditions in which substance abuse typically thrives. Two, by exposing Isaac to his own drug use, father impliedly approved such conduct and even encouraged Isaac to believe that it was an appropriate or necessary means of coping with life's difficulties." While we do not discount Mother's concerns, we find the juvenile court did not abuse its discretion in returning Isaac to Father's home. By its order, the court set in place reasonable means by which Isaac can be protected from harm.
DCFS and Mother disagree on the standard of review we are to apply to the court's dispositional order granting custody to Father. DCFS argues we must review for substantial evidence and Mother contends the standard is abuse of discretion. It appears courts have used both standards. (Compare In re Levi H. (2011) 197 Cal.App.4th 1279, 1291 [" 'We review a juvenile court's custody placement orders under the abuse of discretion standard of review. . .' "] with In re Heather A. (1996) 52 Cal.App.4th 183, 193 ["In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them"].) For our purposes, it is immaterial whether we review for abuse of discretion or substantial evidence as our conclusion remains the same under either standard.
Section 361, subdivision (c) provides in relevant part: "A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of . . . [¶] . . . a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be 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 parents' or guardians' physical custody." "The statute embodies 'an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent's homes where it was safe to do so.' [Citations.]" (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
Here, the juvenile court expressed a desire "to keep close tabs on this" case. As a result, it ordered the parties to return in two months to "make sure everything is going well." It also ordered twice a month unannounced visits by DCFS to Father's home, random drug testing and continued compliance with a drug treatment program. Coupled with Father's acknowledgment of wrongdoing and motivation to comply with the court's orders, the juvenile court's precautions are a reasonable means to ensure Isaac is not exposed to harm.
Though Isaac does have emotional and psychological issues, we note that he has a support system in place which he can, and did, rely on when he was faced with a difficult situation. Specifically, he called Father's ex-girlfriend for help when Father was under the influence of PCP. His brother and sister-in-law also agreed to take him into their home when he would otherwise have been forced into a foster home. Isaac's sister-in-law has confirmed that "she would remain available as a support to the father and child Isaac in the instance that it is necessary." Through his treatment program, Father has also become aware of community resources which he can rely upon in the event he needs further assistance with Isaac. Additionally, Isaac is not a young child who is completely dependent on Father for his care. He was 16 years old at the time of the dispositional hearing and 6 foot 3 inches tall, presumably old enough and able to help ensure his own safety and well-being.
These circumstances are markedly different from those in In re Rocco M. (1991) 1 Cal.App.4th 814, upon which Mother relies. There, the court held that the mother created a substantial risk that her 11-year-old child would ingest illegal drugs because she left drugs in an available place, was absent for long periods of time, neglected the child's needs, and exposed him to her own drug use which impliedly approved of such conduct. (Id. at p. 825.) Here, there is no indication that Father exposed Isaac to drugs while he was living with him. Father and his ex-girlfriend both stated that Father did not smoke PCP in the home or in front of Isaac. Isaac confirmed that he had only witnessed Father under the influence of PCP once. When Father was arrested for possession of PCP, Isaac was not in the car with him. There is also no indication of neglect. The DCFS caseworker observed Isaac to be in good health and Father's home to be clean and well furnished. Given Isaac's repeated desire to be with Father and the juvenile court's precautionary measures to ensure Isaac's well-being, we find no abuse of discretion in placing Isaac with Father.
II. Child Welfare Services
Mother also argues that "[c]hild welfare services should have been ordered to identify, address and help resolve the family problem, specifically the relationship between Isaac and his mother." Mother acknowledges that she is not entitled to reunification services because Isaac did not live with her when this dependency proceeding was initiated. However, she argues the juvenile court abused its discretion by failing to order child welfare services, which are a broader category of public social services for abused, neglected or dependent children. Child welfare services include several kinds of services not limited to family maintenance services and family reunification services, which come into play only when the child is removed from his home. (§ 16501, subd. (a); see In re Shannon W. (1977) 69 Cal.App.3d 956.)
Under section 16501, " 'child welfare services' means public social services which are directed toward the accomplishment of any or all of the following purposes: protecting and promoting the welfare of all children, including handicapped, homeless, dependent, or neglected children; preventing or remedying, or assisting in the solution of problems which may result in, the neglect, abuse, exploitation, or delinquency of children; preventing the unnecessary separation of children from their families by identifying family problems, assisting families in resolving their problems, and preventing breakup of the family where the prevention of child removal is desirable and possible; restoring to their families children who have been removed, by the provision of services to the child and the families; identifying children to be placed in suitable adoptive homes, in cases where restoration to the biological family is not possible or appropriate; and ensuring adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption. [¶] 'Child welfare services' also means services provided on behalf of children alleged to be the victims of child abuse, neglect, or exploitation."
--------
We find no abuse of discretion. Mother has failed to specify what other child welfare services would have been appropriate or necessary in this case. The juvenile court ordered conjoint counseling for Mother and Isaac to begin when Isaac's therapist felt it to be appropriate. The court also ordered visitation for Mother. It would seem that these two measures, if Mother chose to utilize them, would help Mother attempt to repair her relationship with Isaac. Mother does not identify what other orders the court could or should have made to address the issue of her relationship with Isaac. In any event, Mother did not visit Isaac during the two months Isaac was living with his sister-in-law, even though she was entitled to under the juvenile court's orders. Also, her contact with him was sporadic, at best, during five years he was living with Father. Compounded with Isaac's reluctance to have a relationship with Mother, it appears doubtful whether the juvenile court could have ordered any other services that would be more successful at addressing the issue.
DISPOSITION
The challenged orders are affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
FLIER, J.