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In re K.R.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 26, 2012
No. B232132 (Cal. Ct. App. Jan. 26, 2012)

Opinion

B232132

01-26-2012

In re K.R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.R., Defendant and Appellant.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK 85903)

APPEAL from orders of the Superior Court of Los Angeles County, Sherri Sobel, Referee. Affirmed.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

Appellant, mother, has four children, K.R., 13, J.R., 11, A.R., 8, and M.R., 6. At this time the children are residing with their father, J.R., Sr. (father), in Wisconsin. Mother appeals the juvenile court's jurisdictional and dispositional findings and orders, which include the order terminating juvenile court jurisdiction. Father has not appealed.

Mother contends that substantial evidence does not support the juvenile court's jurisdictional findings that she left the children unsupervised for long periods of time, abused prescription drugs and marijuana and had emotional problems leading to violent outbursts in the children's presence. We disagree and therefore affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) when father called the police here from Wisconsin, claiming the children were often left at home without adult supervision. DCFS began its investigation of mother.

On December 28, 2010, DCFS filed a nondetained juvenile dependency petition under Welfare and Institutions Code section 300. Under subdivision (a) of section 300, the petition alleged the parents had a history of engaging in violent altercations when the children are present and on one occasion father threw mother down a flight of stairs. Under subdivision (b) of section 300, the petition alleged that mother was a current abuser of marijuana and prescription medication. Under subdivisions (b) and (g) of section 300, the petition alleged that mother left the children home alone overnight without appropriate adult supervision.

All further references to statutes are to the Welfare and Institutions Code unless otherwise stated.

Ultimately, the court dismissed count a-1, b-2, b-3 and g-1, sustained count b-1 after amending it to state mother was convicted of disorderly conduct and added a new count b-2 that stated: "mo[ther] has emotional problems leading to violent outbursts in front of the children, and [subjected them to a] lack of supervision for significant periods of time."

Mother and father were married for 12 years before divorcing in September 2009. Mother was awarded sole legal and physical custody of the children. According to the divorce decree, father was not given visitation privileges. Although the divorce decree barred father from having any contact with the children, mother allowed the children to travel to Wisconsin and have unmonitored contact with him.

Mother has no family in the Los Angeles area and is not close to her family in Wisconsin. Father is an enrolled member of the Ho-Chunk Indian Nation and is employed by the tribe as an executive compliance officer.

1. Child Care

Mother said she operated a home-based business and was home every day. Father on the other hand, reported that mother had an undisclosed job that took her away from the children at night. He said mother often left the children home alone and explained they regularly call to tell him mother was gone for the night and they were alone. Father further stated although there was a college student that looked after the kids, they were often left at home alone. When they were alone at night father telephoned the children in the morning to help them get ready for school.

M.R. said K.R. watched him and his siblings at night. J.R. said when mother goes out, the kids are "babysat" by the nanny and that mother goes out often. K.R. said she was tired of having to stay with her siblings while mother was gone. A.R. said the kids are usually cared for by the nanny when mother is gone and she is often sad when mother is away. All the children said they felt safe at home.

Mother's friend and employee was interviewed by the social worker. She described her as a "good mother." The employee provides care for the children at times, but they are usually cared for by the nanny.

M.R.'s teacher, who was also A.R.'s teacher the year before, said she observed the children were given a lot of freedom and forced to be more independent than other children in her class. It appeared to her that the older children had a lot of responsibility.

The school principal saw the children on many occasions unsupervised, arriving at school 20 minutes early when there is no supervision on campus and riding their bikes without helmets. Although she sees the children's house from the school, she rarely sees mother. She also noted mother had a bad attitude and demeanor and was rude and hostile.

Maternal aunt, H.B., said mother was always traveling to places like Brazil, Mexico and Miami.

Mother believed the child welfare referral was made by a former tenant who she had recently evicted for not paying rent. She said the tenant assisted in babysitting and would sometimes watch the children overnight. According to mother the last time the tenant stayed with the children was in February 2010, when she was in Miami. She later said the last time he watched the children was in July 2010. Basically she said when she is gone the children were watched by the nanny four days a week and they also go to the Boys and Girls Club after school and take piano lessons.

The case was assigned to dependency investigator Roberta Javier for further investigation. M.R. told the investigator that mother had not left the kids alone all night, but just for a little while. A.R. said the kids were either with mom or the new nanny. J.R. said they were never left alone. Father said he telephoned the children on numerous occasions and they were home alone. He said there were times when neither mother nor any adult was home to see the children off to school.

On January 10, 2011, a Monday, M.R. telephoned father about 3:45 p.m. and told him they were home alone. Father called the police who arrived at approximately 5:43 p.m. and found the children home alone. K.R. and J.R. told the police they had a live-in nanny who would be there around 7:00 p.m. The children said mother was in Florida and would be returning on Wednesday. The investigator arrived at the home about 6:45 p.m. and found the children without adult supervision. J.R. and K.R. called mother who said K.R. had agreed to be in charge until the nanny arrived at 7:00 p.m. As it turns out, the nanny did not arrive until 7:30 p.m.

2. Drug Use

Father said mother's use of marijuana caused problems in their marriage, and he gave mother an ultimatum to stop smoking marijuana, but she did not.

K.R. said mother uses drugs every day. Although she did not know what kind of drug mother was using, she observed it to be green and mother smoked it.

When asked to submit to drug testing, mother said she had a prescription for marijuana as a result of a back injury. She later said that she uses marijuana because of a torn rotator cuff and nausea caused by antibiotics she took for multiple kidney infections. Mother also has prescriptions for Adderall and Valium. The social worker confirmed that Adderall would produce a positive test for amphetamines.

On December 21, 2010, Kevin Weissman, the director of the LAC+USC Drug Information, said that marijuana and Adderall should not be taken together and mother's prescribing physician should be told she was taking both drugs simultaneously.

When offered voluntary family maintenance services and information regarding family preservation services, mother refused and would not sign a safety plan. She agreed, however, that the children were in need of counseling and she and the children would benefit from such services.

3. Domestic Violence

Mother had previously told investigator Javier that in October 2008 father threw mother down the stairs. Father said that mother's explanation was incorrect. He said mother was visiting Wisconsin and came to paternal grandparents' home to get the children's swim suits. She became upset when she saw father's girlfriend. Mother asked grandmother to ask the girlfriend to leave but instead grandmother and father asked mother to leave. When mother began to shout and yell, father picked her up, took her outside and told her he would bring the swim suits to her. Mother yelled obscenities and started throwing rocks at father, his girlfriend and paternal grandmother before leaving the home. Paternal grandmother called the police who subsequently arrested mother.

4. Mother's Mental and Emotional Problems

The record is filled with instances of mother's irrational behavior. Mother had violent outbursts in the presence of the children. The school principal described one instance when mother became outraged and hostile after being asked to provide proof of residency for the children.

Mother was hostile, argumentative and defensive to the point that an attorney asked the juvenile court to order a psychological evaluation.

Maternal aunt, S.R., said mother had been banned from telephoning the Ho-Chunk Nation tribal office because of her vulgar demeanor.

Maternal grandmother said mother was extremely volatile and when mother was a child she was removed from their home because they feared for their safety.

Maternal aunt, H.B., said mother was a mean and violent person who had a history of flying off the handle with family members. When mother was arrested for assaulting a flight attendant in Florida, the police officers said mother needed to be on medication.

Mother's temper and her inability to control herself were witnessed by the children and social workers when the children were to be transported to the airport for their trip to Wisconsin. While mother was in agreement with the children living with father, she became aggressive, erratic and abrasive toward the social workers in the children's presence, resulting in police intervention. Although mother was reminded by the social worker it was not good for the children to see such behavior, mother's aggression escalated. K.R. then said mother handled everything in that manner.

Of interest, however, is mother's version of the incident. Mother claims that neither social workers nor police officers ever came to her home. She said that the children were taken to the airport by federal marshals and denied she became upset with them.

At the initial detention hearing on December 28, 2010, the juvenile court said it was surprised to discover that the DCFS allowed the children to remain in mother's custody as she "left them alone, uses drugs, and was involved in domestic violence." The court presumed, however, there was no present risk. As to father, the court said, "If this guy's okay and mom's not, then that's where we are." While the court left the children with mother, it gave father unmonitored telephone rights.

On January 20, 2011, the juvenile court granted the Ho-Chunk Nation's request to intervene in the case. On March 14, 2011, a home study was conducted of father's home by the Ho-Chunk Nation Department of Social Service. The home study recommended the children be placed with father.

On January 26, 2011, the social worker reported mother had said she would allow father to speak to the children if he deposited $100 into her bank account. He did so, but was not allowed to speak to the children. Mother again promised father he could speak to the children if he sent money for ice skates and sport equipment. Father sent money but as of January 25, 2011, was still not allowed to speak to the children.

Mother told the children they would be going to Wisconsin to live full time with father in the beginning of December 2010. But after father purchased plane tickets for the children, mother became angry and told the children they could not leave; mother told father he would never see the children again. K.R. was sad she was not going to move to Wisconsin and live with father. M.R. liked living in Wisconsin better because he enjoyed visiting his grandparents. M.R. said mother told them they were going to live with father but then changed her mind. Father wanted his children to reside with him in a place where he had family support.

The children's attorney told the court when she attempted to interview the children it was clear they had been counseled by mother not to speak to anyone at the court. Moreover the children were distraught and had not had breakfast. Mother asked the attorney to buy the children food as she did not have any money.

The children's attorney asked the juvenile court to order an Evidence Code section 730 psychological assessment (730 evaluation) of mother as she believed mother was paranoid. Mother's attorney also believed her client was paranoid but added that her client had a good reason for her paranoia. The juvenile court ordered the 730 evaluation. The court also ordered DCFS to immediately contact the Ho-Chunk Nation and obtain an assessment of father's home.

On March 14, 2011, a copy of the 730 evaluation report by Dr. Kaser-Boyd was received by the juvenile court. Dr. Kaser-Boyd reported that mother's testing reflected egocentricity, immaturity and anger. The doctor explained that individuals like mother work hard to "fit in and be approved of," although they can be impatient and critical; they can display a nice facade, although the anger they repress can sometimes break through "with considerable intensity and impulsivity." They are not likely to go for psychological treatment.

Investigator Javier conducted a criminal background check on mother, which revealed no prior history. Mother admitted however that in August 2010, she was arrested for battery and disorderly intoxication. A request to the Jackson County Wisconsin Sheriff's Department revealed arrests for battery, disorderly conduct and assault. Mother refused to be interviewed by the investigator. Father has a record of numerous arrests in Wisconsin.

Based upon Ms. Javier's investigation, it was her belief the children were at high risk of future neglect and emotional harm if they remained with mother without appropriate services in place. She recommended that family reunification services be provided to mother but the children be placed with father.

Returning the children to mother would place them at substantial risk of their physical and emotional well-being. The court declared the children dependents and ordered they be placed with father. Father was given sole physical custody and joint legal custody. Mother's telephone calls and visits with the children were to be monitored. The court terminated jurisdiction and stayed the order for receipt of a family law custody order. On March 30, 2011, the juvenile court lifted the stay, issued the family law custody order, and terminated dependency jurisdiction.

DISCUSSION

We review an order removing a child from a parent's custody for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We will not reverse the dependency court's dispositional orders except for a clear abuse of discretion. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The dependency court has broad discretion to determine what would best serve and protect the minor's interest and to devise a dispositional order in accordance with this discretion. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) The dependency court abuses its discretion when it acts in an arbitrary, capricious, or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)

There is substantial evidence that mother is an abuser of marijuana and prescription medicine. Mother admitted using Adderall and marijuana daily and sometimes used Valium.

Father said mother's marijuana use was a problem during their marriage, but she never gave it up. K.R. said mother used drugs daily although she didn't know what kind.

Maternal aunt, S.R., said mother had a history of drug and alcohol use. Mother received drug and alcohol treatment and was involuntarily hospitalized in a mental hospital on a 72-hour hold on two or three occasions. Paternal grandmother also remembers mother as someone who liked to use drugs and would not come home because she was doing drugs.

Mother had a disturbing belief that being under the "combined influence of dextroamphetamine, amphetamine and marijuana does not affect her ability to care for her children. The Legislature has determined "[t]he provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of . . . child[ren]." (§ 300.2; see also In re E.B. (2010) 184 Cal.App.4th 568, 575.)

There is substantial evidence that mother left the children home alone on numerous occasions. In fact the referral that initiated DCFS's contact with mother said mother left the children unsupervised all day. At trial mother said she never left the children unattended and if they said something to the contrary, they were lying. Mother stated she operated a home based business and was home every day.

Father said mother left the children unattended all the time. They would telephone him and say mother was gone all night. On those occasions he would telephone them in the morning and help them get ready for school. M.R. said his 12-year-old sister K.R. watched the children at night. K.R. said she was tired of having to stay with her siblings while mother was gone.

The school principal observed the children walking to school unsupervised and arriving at school 20 minutes before a supervisor arrived on campus.

There is substantial evidence supporting mother being described as having mental and emotional problems and being volatile, hostile, argumentative and defensive. Maternal aunt, S.R., reported mother being barred from calling the Ho-Chunk Nation tribal office because of her vulgar demeanor. Maternal grandmother said mother was extremely volatile as a child and had to be removed from their home. As a result of mother's violent behavior she spent two years in foster care. Maternal aunt, H.B., referred to mother as mean and violent, who would fly off the handle with all members of the family. When mother was arrested for assaulting a flight attendant in Florida, H.B., who bailed her out, was told by the police officers mother needed to be on medication.

An example of mother's volatile nature and inability to exercise control occurred when the children were to be taken to the airport by the social workers for their trip to Wisconsin. Even though mother agreed to the children living with father, mother became aggressive towards the social workers in the children's presence causing police intervention. When a social worker told mother several times it was not good for the children to witness such behavior, K.R. said that was the way mother handled everything.

As soon as the children moved to Wisconsin, mother telephoned them. J.R. wanted to go first. When he got on the phone mother immediately began to disparage him. She told him he was "going to get dumber out there because that's all they have is schools that make you dumb, is that what you wanted? Now you will just be stupid. The schools here in LA are better." J.R. began to cry. The other children refused to speak with her.

Mother argues the juvenile court erred as there was no clear and convincing evidence that mother's conduct put the children at risk. However, "the 'clear and convincing' standard . . . is for the edification and guidance of the trial court and not a standard for appellate review. [Citation.] '"The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal."' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1525-1526.)

Substantial evidence supports the juvenile court's findings that there was a substantial risk of harm to the children remaining with mother as a result of her inability to provide them with adequate supervision, reliable caretakers and a drug free and peaceful environment because of her substance abuse and mental and emotional problems. The juvenile court pointed out the children wanted to live with father, the former noncustodial parent who asked for custody; the Ho-Chunk Nation wanted the children placed with father, and mother said she wanted the children placed with father. The juvenile court found the home study prepared by the Ho-Chunk Nation Department of Social Services to be very complete and showed father was able to provide a stable home, family support and Ho-Chunk Nation support. Mother on the other hand offered no evidence at trial on the issue of detriment. In fact the documentary evidence she offered indicates that mother did not believe placement with father would be detrimental to the children.

DISPOSITION

The juvenile court orders, including the order terminating juvenile court jurisdiction, are affirmed.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.


Summaries of

In re K.R.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 26, 2012
No. B232132 (Cal. Ct. App. Jan. 26, 2012)
Case details for

In re K.R.

Case Details

Full title:In re K.R. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 26, 2012

Citations

No. B232132 (Cal. Ct. App. Jan. 26, 2012)