Opinion
G059434
04-29-2021
In re M.B., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JESSICA C., Defendant and Appellant.
Law offices of Arthur J. LaCilento and Arthur J. LaCilento for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 20DP0248) OPINION Appeal from a judgment of the Superior Court of Orange County, Katherine Lewis, Judge. Affirmed. Law offices of Arthur J. LaCilento and Arthur J. LaCilento for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
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Jessica C. (mother) appeals from the juvenile court's judgment removing her five-year old daughter, M.B., from mother's care. The juvenile court resorted to removal after mother continued to abuse methamphetamine and failed to comply with other supervisory restrictions the juvenile court had imposed. The court's disposition order four months after removal confirmed that M.B. still could not be returned safely to mother's care. Mother contends the court had no reasonable basis to take jurisdiction over M.B.; she argues the court erred in removing M.B. from her care and placing M.B. with her (M.B.'s) father. In short, mother challenges the sufficiency of the evidence to support the juvenile court's decision on each of these issues. We review mother's claims under the substantial evidence standard and find ample evidence to support the court's rulings. We therefore affirm the court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 2020, officers from the Huntington Beach Police Department conducted a welfare check at 3:30 a.m. at mother's residence based on reports of a child screaming in the home. The officers found on mother's bedroom floor glass shards from the bulbous end of a broken, used methamphetamine pipe. The rest of the pipe and a baggie of methamphetamine lay inside a drawer, which was on the floor along with the broken glass. Mother shared the bedroom with Michael C. (stepfather); she claimed she usually kept the drawer out of M.B.'s reach.
Mother's and stepfather's dilated pupils suggested methamphetamine use. The officers found M.B. in a hallway clad only in her underwear. According to mother and stepfather, she had been throwing a tantrum after they took her tablet away. She was awake because mother and stepfather took M.B. with them to a restaurant at 2:00 a.m., returning home not long before the officers arrived.
Stepfather admitted he purchased methamphetamine weekly that he shared with mother. They both later admitted they used methamphetamine every night. Mother felt overwhelmed parenting M.B., stating to the officers that she did not know how to "control" her. M.B. denied mother or stepfather struck her, though she observed that they yelled at each other "a lot."
The officers upon entry found the home disheveled, with "trash all over the residence," old food left on the living room floor, "large amounts of dirt" covering the floor, and "broken furniture in piles" in a corner of the living room; there was also dirty laundry piled throughout the house. Before departing, the officers assisted in cleaning and organizing the home, informed mother and stepfather of "resources to help them in their family relationships and parenting issues," confiscated the drugs, and cited mother and stepfather for possession of a controlled substance and paraphernalia.
Follow up by social workers from the Orange County Social Services Agency (SSA) indicated law enforcement had responded to the home seven times recently and 10 times total in less than a year, including other incidents in which M.B. was screaming. Prior to the present welfare check, none of the contacts had led to a written police report. SSA had previously substantiated an allegation of general neglect of M.B. in 2017 after mother initiated a physical altercation with M.B.'s maternal aunt.
SSA's reports showed a history of mother and stepfather quarreling frequently, and mother claimed stepfather had pushed her in the past during an argument. Six months before the current incident, mother and stepfather had physically separated, with stepfather leaving the house because, according to mother, they were "constantly yelling at each other." Nevertheless, she allowed him to return home three weeks later. Mother admitting relapsing into methamphetamine use around this time.
After its investigation, SSA filed a dependency petition and sought—with agreement by minor's counsel—to detain M.B. from mother's care. The juvenile court took a more reserved course, finding jurisdiction to detain M.B., but directing her continued "release[] to mother on CRISP-like conditions." Those conditions included random drug testing by urinalysis initially, to be supplanted once mother began to wear and provide results from a drug-testing "patch." The court also required mother to engage in services to address her substance abuse.
CRISP is an acronym standing for Conditional Release with Intensive Supervision.
The court authorized drug testing funds for stepfather. The court specifically imposed as a condition of placing M.B. with mother that stepfather "move out of the home until he tests clean" and that, if he refused, mother must "leave with the child." Stepfather's lengthy arrest record showed multiple drug-related police contacts. The ensuing months demonstrated stepfather did "not appear to be interested in drug testing," as a social worker observed. As the case progressed, it also came to light that stepfather had multiple outstanding warrants for his arrest.
Mother told SSA that M.B.'s father, Martin B. (father), resided "in Colorado" and remained in touch with M.B. electronically, but mother initially claimed she could not provide his contact information because her phone was broken. Mother identified her mother and grandmother, who both lived nearby, as her (mother's) "support system." A social worker contacted mother's grandmother for potential placement of M.B. in the future, if necessary, but she, unlike other family members, had been unaware of "the concerns with the mother." The grandmother mistakenly believed instead that "the family was doing good."
Once the social worker reached father, he confirmed he lived in Arizona. According to father, he had "constantly" reached out to have a relationship with M.B., but mother rebuffed his efforts. He claimed to have been paying child support since 2015, and said he had tried to communicate to mother "that she had alternatives" but found mother "didn't want to leave her situation," which, of the "little" father knew of, involved "the fighting" with stepfather. Father had "caught" mother using methamphetamine "a couple of times when they were together," but he believed she was "a good mom" and assumed she had stopped any drug use "because of [M.B.]." He did not know of stepfather's involvement with drugs.
Father had been in the military from 2012 to 2016. When he moved out of California in 2016, he and mother "set up an agreement for visits and spending time with" M.B. According to father, mother did not honor the agreement, even when father offered to pay for both mother's and M.B.'s flights for visits, including to see M.B.'s paternal grandmother, with whom mother was on good terms. Mother reported she communicated with the paternal grandmother "often," and the paternal grandmother in turn reported that she "loves [mother] to death."
Mother acknowledged father "tries to see the child on weekends and speak to [her] over the phone." Father had not seen M.B. in person since 2018. He began contacting parenting class providers in Arizona once he learned of the allegations involving M.B. He also tried arranging a visit with M.B. through mother, but mother did not respond to his online message. Father identified as the important people in his life: "[M.B. is] my number 1, my girlfriend, and my friend from the Marines."
Within weeks of M.B.'s release to mother's care, mother's patch test results came back positive for methamphetamine. SSA recommended removing M.B. from mother's custody, observing also that stepfather failed to provide test results but still appeared to reside in the home. Mother provided a clean urine test around the same time as the dirty patch test, and the juvenile court gave her another chance at custody. Specifically, the court left its prior orders in effect until the next hearing, including placement of M.B. with mother under the CRISP conditions.
Two weeks later, SSA sought and obtained a protective custody warrant based on reports of repeated, heated arguments between mother and stepfather at her residence, including reports of M.B. sobbing during the quarrels. Additionally, during an unannounced visit to mother's home, a social worker discovered stepfather hiding beside mother's bed under a comforter.
Mother screamed at the worker when she reported the violation to her supervisor by telephone, and then aggressively approached the worker outside the home. Mother picked up a pair of pliers, verbally threatened the worker, motioned toward the worker as if she were going to strike her, and then threw the pliers into the back yard. Stepfather was observed frequently at mother's home; she did not appear to intend to abide by the court's CRISP restriction regarding stepfather.
SSA filed an amended petition based on mother's cumulative actions and lack of progress, including her positive patch test for methamphetamine, her anger management issues, her continued contentious relations with stepfather, and failure to abide by the CRISP conditions. SSA's report noted that when M.B. was removed from mother's home pursuant to the warrant, mother threatened to kill herself and shattered a glass door by punching through it. She severely injured her arm, had to be transported to the hospital, and underwent surgery requiring hospitalization for several days; her physical therapy was projected to extend for a year or more to recover. Her mother (M.B.'s maternal grandmother) was present for M.B.'s removal from mother's home.
The maternal grandmother told the social worker "she thought . . . mother was doing everything she needed to [do]," and thus "did not understand why the child was removed" from her daughter's custody. Mother had not told her that stepfather used methamphetamine, nor did she appear to know of mother's drug use. SSA's reports noted that "mother has had domestic incidents with the maternal grandmother, therefore visitation in her home may not be feasible," and the record also indicated mother previously complained "the maternal grandmother was violent in front of the child."
Meanwhile, father had regular, positive remote visitation with M.B. He also spoke with M.B. on the day she was removed from mother's care and placed temporarily at a county family facility. According to father, M.B. told him "she wanted to go with [him]."
SSA conducted background checks on father in multiple states with multiple agencies and found no arrest records or other cause for concern. He reported that he and his girlfriend, a cook, "usually work, but due to the [corona]virus are not working." Father was "currently a student," which his mother confirmed, and was also "applying for part-time employment."
Father and his girlfriend, H.F., had lived together for a year; they would have different shifts when they returned to work so they could care for M.B. if needed. H.F. did not have children of her own and, like father, she reported no criminal history; she also did not "use substances." Father reported only that he drank socially. He had been diagnosed with depression and anxiety in 2013, for which he took daily medication and had attended therapy through the Veteran's Administration; he provided his therapist's name to SSA. Mother reported father had no mental illness, characterizing him simply as "socially awkward." She confirmed they had met "at a club" and dated for a time but "split due to not 'being meant' for [one] another." Mother reported that when father had visited M.B. in the past, the two of them played board games together.
SSA conducted a remote assessment of father's residence via a video connection and found the home clean and well-organized, including an empty bedroom reserved for M.B. Following further record checks on father's background, SSA recommended placing M.B. with father, who volunteered to travel to California to pick her up. At a hearing on SSA's amended petition, the juvenile court ordered M.B.'s release to father's custody, authorized near-daily contact with mother by telephone or video calls, and up to six hours of supervised visitation a week if mother visited Arizona.
SSA social workers conducted a home visit at father's residence within a month of M.B.'s placement and found no concerns. Father reported that M.B. had a difficult "first couple of nights" with the transition, obviously "homesick" and not wanting "to eat anything besides junk food," but she quickly adjusted. H.F. had returned to work so father could remain home to bond with M.B. H.F., who had been a foster child herself, also provided care, sometimes laying down with M.B. at her request until she fell asleep. M.B. appeared well-cared for in "a healthy home environment" in which father "implemented structure and consistency"; father was also "patient" with and "attentive" to M.B. M.B. was excited to show the social workers her room decorated to "[her] liking of unicorns."
Subsequent proceedings in the case demonstrated little progress by mother in critical areas. She tested positive for methamphetamine on multiple patches in April 2020 and similarly through May, June, and July. In early June she became irate and screamed at the social worker upon learning of SSA's recommendation for M.B.'s continued placement with father.
Mother denied drug use, expressing perplexity as to her patch results; she began to deny she ever told the police she used methamphetamine. SSA confirmed with the patch testing facility that various medications would not result in a false positive for methamphetamine. Stepfather continued to reside in mother's home, as she conceded and as evidenced on M.B.'s videocalls with mother; stepfather never submitted to drug testing.
At the jurisdiction and disposition hearing on SSA's amended petition in August 2020, the juvenile court heard testimony from the assigned social worker, father, and the maternal grandmother. The court specifically found "there clearly is a nexus between mother's substance abuse and her ability to care for the child." The court recognized mother had presented evidence she no longer used drugs, including hair follicle tests, but "put[] more weight on the tests that show that she is," which was consistent with her history of abuse and "continued erratic, aggressive-type behavior." The court also explained that "there is a difference in levels that are being tested for," which in the court's view "account[ed] for the difference in the test results."
The court concluded M.B. should remain in father's custody, observing the governing statute "requires that the court shall place the child with [a formerly noncustodial] parent, unless it finds that placement . . . would be detrimental to the safety, protection or physical and emotional well-being of the child." The court also agreed with SSA's recommendation to close the dependency case, concluding "there is no reason to keep [it] open," as the evidence showed M.B. "is safe in the care of" father. The court found "no reason to think that supervision is necessary to keep her safe. She's been doing just fine with him. And there's no reason to think that she will no longer be doing fine with him."
The court issued exit orders vesting sole physical custody with father and joint legal custody with father and mother. The court also ordered visitation for mother consisting of continued video/phone contacts five times per week, six hours of supervised visitation if she were to travel to Arizona, and thrice-yearly visits for M.B. to travel to California for a minimum of three days each. The court then terminated the dependency proceedings.
DISCUSSION
Mother challenges the sufficiency of the evidence to support the juvenile court's jurisdictional finding that M.B. fell within the court's dependency protection. She also disputes the court's finding that removal from her care was necessary. We review both findings using the substantial evidence test. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.); In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
The juvenile court's dependency jurisdiction arises when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness" due to a parent's failure or inability "to adequately supervise or protect the child" or to "provide regular care for the child due to the parent's . . . substance abuse." (Welf. & Inst. Code, § 300, subd. (b)(1).) Abuse or injury need not be inevitable before the juvenile court intervenes to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) "The court may consider past events in deciding whether a child presently needs the court's protection." (Ibid.)
All further statutory references are to this code.
Under section 361, subdivision (c)(1), a dependent child may not lightly be taken from the physical custody of the parent with whom the child resides at the time the petition was initiated. The juvenile court must find by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor 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 parent's . . . physical custody." (§ 361, subd. (c)(1).)
"A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) "The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.] The parent need not be [personally physically] dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
Our purpose on appeal is not to determine whether contrary findings might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) As befitting our limited role where the juvenile court has heard the evidence firsthand, we draw all inferences in favor of the ruling below. (I.J., supra, 56 Cal.4th at p. 773.) "'"We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court."'" (Ibid.) Issues of fact and credibility are for the trier of fact to determine. (Ibid.)
As mother correctly observes, there must be a causal nexus between a parent's substance abuse and risk to the child, presenting an ongoing danger at the time of the court's ruling to justify jurisdiction and removal. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003.) Mother argues that requirement was not met, citing positive reports from her therapist, an in-home parenting counselor, the fact she had completed a parenting class, and four clean hair follicle tests. Mother notes that these "professionals did not see the mother act under the influence of any narcotics."
The fact that mother did not use methamphetamine while engaging with professionals does not diminish the risk the juvenile court reasonably found. Basic legal guidelines establish that "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 the child." (§ 300.2.) Mother's admitted nightly methamphetamine use at the outset of the proceedings demonstrated she could not provide a safe environment for M.B.; this was amply shown by repeated police intervention and the conditions in which the officers found M.B.
Despite numerous opportunities afforded by the juvenile court, mother refused to address the issues leading to M.B.'s removal. She ignored the CRISP-like conditions the court reasonably required. Instead, the evidence showed she chose her drug-dependent lifestyle with stepfather over M.B., continuing to regularly use methamphetamine and continuing to engage in "erratic, aggressive-type behavior" that was inconsistent with giving M.B. a safe place to grow up. As the court observed, M.B.'s removal, the unannounced social worker visits, and the testing requirements did not "appear to be acting as a deterrent to mother using." In these circumstances, the court had ample grounds for jurisdiction over M.B. and for her removal from mother's care.
Mother also challenges the juvenile court's order placing M.B. with father, claiming SSA "never properly vetted" him, his girlfriend, or his home. We disagree.
As a preliminary matter, mother misapprehends SSA's role where a parent seeks custody of his or her child. In such instances, "the appropriate investigation is a basic one, less rigorous than the investigation necessary for placement with a more distant relative such as a cousin." (In re John M. (2006) 141 Cal.App.4th 1564, 1573 (John M.).) This follows from "the legislative preference for placement with the noncustodial parent when safe for the child." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262.) When "that parent requests custody, the court shall place the child with the parent unless it finds [such] placement . . . would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).)
A detriment finding may only be made on the basis of clear and convincing evidence. (In re Abram L. (2013) 219 Cal.App.4th 452, 461.) The party opposing placement with a parent bears the burden of proof. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1256.) We review the juvenile court's determination under the deferential substantial evidence standard. (John M., supra, 141 Cal.App.4th at pp. 1569-1570.)
Mother's complaints about placement with father are insubstantial. She suggests a "complete criminal history" was never compiled for father or H.F., yet she identifies no omissions and her claim is belied by SSA's documented consultation with numerous agencies and databases. Mother also states father "admitted his Depression and Anxiety created a Substantial Risk of Danger to" M.B., but her record citations do not bear out the claim. To the contrary, father confronted the issue years before through therapy and has long managed his condition successfully through medication. Mother herself denied father had mental health problems, and nothing in the record gave rise to even a remote concern.
Mother's further invocation of comparatively minor objections to placement with father do not require reversal. She cites such issues as M.B.'s occasional nightmares, her continued interest in maintaining a relationship with maternal relatives, and parental squabbles between mother and father about holiday visits. These matters fall far short of mother's burden to demonstrate the evidence compelled "a finding in [her] favor . . . as a matter of law." (In re Luis H. (2017) 14 Cal.App.5th 1223, 1227.) Mother's vague claim that the juvenile court's exit orders did not facilitate "enough" in-person contact for mother or her relatives "in California" similarly fail in the context of the court's justified placement of M.B. with father.
Father did not oppose visitation with mother or her relatives, and indeed pledged to support it. The court found "father does have a good relationship with the maternal relatives," which mother does not challenge. And while the court expressed concern about whether maternal grandmother should play a supervisory role in future visits, the court did not bar it, recognizing that was now father's decision to make for his daughter. On that score, the juvenile court could reasonably conclude that multiple visits by social workers to see M.B. at home with father and the record as a whole "overwhelming[ly]" showed "her doing well and being happy in his care." Mother's challenges therefore fail.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.