Opinion
E070454
10-31-2018
In re T.M. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.O., Defendant and Appellant.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JUVIJ11257) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
L.O. (Mother) had an extensive history with child protective services and substance abuse resulting in the removal of her then 13-year-old son C.M. and then 10-year-old daughter T.M. Mother's sole contention on appeal is that there was insufficient evidence to support the juvenile court's order removing the children from her care. We reject this contention and affirm the judgment.
C.L.M. (Father) is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior History with Child Protective Services
From April 1996 through February 2018, the Riverside County Department of Public Social Services (DPSS) received 19 referrals involving the family based on allegations of physical abuse, general neglect, caregiver absence, and emotional abuse due to the parents' issues with substance abuse, domestic violence, and mental health. Thirteen of the 19 referrals related to Mother's substance abuse. Eleven of the referrals were closed as unfounded, one was closed as inconclusive/unfounded, four were closed as inconclusive, and three were substantiated.
The first substantiated referral occurred in January 1999 when DPSS received a general neglect referral involving her eldest son T.B.M. after a probation search of Mother's residence revealed she had no heat, no power, no food, no refrigerator, and a broken window. Law enforcement also found a small amount of marijuana and drug paraphernalia in the home. In April 1999, the juvenile court found true the allegations in the petition, and Mother was provided with family reunification services, including therapy to address issues of anger management, domestic violence, and substance abuse. In February 2000, Mother completed her services and reunified with T.B.M.
The second substantiated referral occurred in June 2006 based on caregiver absence/general neglect involving then 12-year-old T.B.M. and then almost two-year-old C.M. after Father was arrested for felony domestic violence and Mother was arrested for being under the influence. Mother admitted she and Father used alcohol problematically and had a long history of methamphetamine use. The substantiated referral was closed after the maternal grandmother was appointed as the children's legal guardian. The guardianship was presumably dissolved in May 2007, after Mother filed a petition to dissolve the guardianship and the maternal grandmother was in agreement with dissolving the guardianship. DPSS was ordered to evaluate Mother's home. DPSS found Mother had acquired housing, was able to provide for the children, tested clean, and provided documentation showing she had completed substance abuse treatment, parenting classes, and anger management classes.
The record does not specifically show that the guardianship was dissolved.
The third substantiated allegation occurred in October 2017 when a referral was received involving Father physically abusing his five-year-old son. Physical abuse to the child was found true, as well as, siblings at risk of similar abuse.
In addition, Mother received five referrals in 2008 and 2009 due to Mother's substance abuse and general neglect. In November 2008 and January 2009, Mother refused to drug test, and in May 2009, she tested clean for drugs. In December 2009, Mother admitted to using drugs and failed to drug test. In February 2010, Mother admitted to medical marijuana use, and failed to drug test in November 2010. Additionally, in January 2012, Mother was uncooperative with DPSS, and declined counseling for C.M. three times in September 2014 and refused to drug test. She also refused to drug test in February 2017. Mother had a criminal history for reckless driving in 1995, three separate incidents of being under the influence of a controlled substance in 2006, possession of a controlled substance and forgery in 2008, and vehicle theft in 2015.
Most of the referrals that were closed as unfounded or inconclusive were not closed because DPSS found the allegations of substance abuse by Mother untrue; rather, they were unfounded or inconclusive for other reasons. For example, a referral dated November 16, 2017, involved substance abuse by Mother in which she arrived at the hospital with auditory hallucinations, tested positive for methamphetamine, and went home against medical advice. This referral was closed as unfounded because the children were residing with and being adequately cared for by their adult brother T.B.M. A referral dated January 9, 2012, regarding substance abuse by Mother was deemed inconclusive after DPSS was unable to contact Mother. And, a referral dated November 2, 2010, where the maternal grandmother reported suspicions that Mother was using methamphetamine, was closed as inconclusive because Mother did not submit to drug tests and the children showed no obvious signs of distress.
B. Circumstances Leading to Current Dependency
On February 5, 2018, DPSS received a referral alleging physical abuse of then 10-year-old T.M. It was reported that T.M. got into an argument with Mother and then ran back into school with no shoes and Mother chasing behind her. T.M. reported that she was afraid of Mother and that Mother had hit her on the lip at home. T.M. stated that she was uncomfortable living with Mother due to Mother's drug use and Mother's friends who came to the house to give Mother her drugs. Mother admitted marijuana use but denied using any other substances. She also refused to drug test. DPSS gave Mother a packet of resources for substance abuse treatment, parenting classes, and mental health services. Mother agreed to obtain counseling for T.M. and attend Alcoholics Anonymous/Narcotics Anonymous meetings to help maintain her sobriety. DPSS thereafter closed the referral as unfounded because there was no evidence of physical injury.
Approximately 10 days later, on February 14, 2018, DPSS received a general neglect referral after T.M. went to school wearing her Mother's sweater and found a methamphetamine pipe and bag with residue in the pocket. T.M.'s teacher and principal confiscated the items and contacted law enforcement. T.M. stated that she knew the pipe was used for drugs and that she was concerned about Mother's drug use. She again asserted that she did not feel safe at home because of the people that would come over to give Mother her drugs.
The social worker made several unsuccessful attempts to contact Mother on February 20 and 21, 2018, but was able to speak with Mother's adult son T.B.M. and the children. T.B.M. informed the social worker that T.M. had been residing with him since February 15, 2018, and that C.M. was still living with Mother. T.B.M. also stated that he would be enrolling T.M. in a different school because she was embarrassed about the drug paraphernalia incident. C.M. denied being aware of Mother's current drug use but said that he knew the previous year about Mother's drug use interfering with her medical treatment. T.B.M. informed the social worker that he did not know anything about Mother's current drug use and that he would keep T.M. and C.M. in his custody to avoid any problems with DPSS.
The social worker eventually spoke with Mother over the phone on February 22, 2018. Mother was upset and asserted DPSS was harassing her with false reports. She denied current drug use. And, regarding the drug pipe incident, she stated, " 'It might have been old stuff and [T.M.] might have set [her] up to get [her] into trouble.' " Mother refused substance abuse treatment and failed to show up for drug testing on February 22, 23, and 27, 2018.
Father, who had been separated from Mother for about 11 years, reported that he knew Mother was using drugs. He noted that Mother had used methamphetamine since he had known her and did not believe she would quit. He also stated that Mother had tested positive for methamphetamine during her cancer treatment in 2017 and that Mother had overdosed on heroin in the late 1990's. He further asserted that Mother had tested positive for methamphetamine in November 2017 while at the hospital and that Mother generally hid drugs inside her clothes. He expressed ongoing concerns with the safety of the child while in Mother's care and indicated that Mother had a long history of abusing methamphetamine.
At a team decision making meeting on March 5, 2018, a substance abuse counselor was present to facilitate Mother's enrollment in treatment. However, Mother denied drug use and declined to drug test. She stated she wanted DPSS out of her life and requested an attorney.
On March 14, 2018, a petition was filed on behalf of T.M. and C.M. pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect).
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
A contested detention hearing was held on March 19, 2018. At that time, Mother's cousin testified that she "house-sat" for Mother from November 2017 to January 2018 while Mother was staying at T.B.M.'s house recovering from cancer treatment. Although she did not live there, she stored her stuff in a shed behind the main house and used methamphetamine while house sitting. Mother did not know she used drugs and the children were never around. She claimed that she had left the sweater T.M. took to school at Mother's house, that she had been missing the sweater for over a month, and that the drug pipe found in the sweater belonged to her. She noted that Mother only smoked marijuana.
Mother's counsel argued that Mother did not use drugs, indicated she was willing to complete a hair follicle test, and asked the court not to detain the children. The juvenile court questioned why Mother never said anything about the sweater not being hers when asked by the social worker and found Mother's cousin's testimony lacked credibility. Thereafter, the court detained the children, found Father to be the presumed father, and ordered an expedited referral for a hair follicle test for Mother. The court specified that if the results from the hair follicle test indicated Mother was negative for all drugs except marijuana and Mother was willing to participate in services, the children would be placed back in Mother's care.
Mother did not comply with the hair follicle drug test order. And, in an answer to DPSS's section 300 petition, Mother admitted that she used to have a drug problem and that she last used drugs on April 14, 2012. She provided negative drug test results dated June 21, 2007, and December 15, 2017. She also attached a certificate of completion of drug treatment and other programs in 2006 and her medical marijuana license with an expiration date of April 25, 2018. Mother claimed the sweater belonged to her cousin, who may have left it while she was staying at the house. Father described Mother's cousin as a drug dealer.
The children were placed with a paternal aunt. T.M. was generally in good health and preferred to stay with her adult brother T.B.M. C.M. had cancer and had received chemotherapy as a baby. As a result, C.M. was required to use hearing aids and had received a variety of restorative dental work. C.M. preferred to be placed with his mother.
The contested jurisdictional/dispositional hearing was held on April 24, 2018. The juvenile court admitted the social worker's reports into evidence and Mother submitted several documents to the court. Among the documents were the results of a urine test conducted on April 2, 2018, that indicated Mother had tested negative for all substances. Another document was an email from Mother's oncologist, which stated that when Mother was hospitalized in November 2017, she was not drug tested for illegal substances, and there were no suspicions or indications of illegal drug use at that time. Another document was a form indicating Mother's intake for a substance abuse program scheduled for April 12, 2018.
Following argument, the juvenile court found the allegations in the petition true and declared the children dependents of the court. The court also removed the children from parental custody and ordered family reunification services for both parents. In making its findings, the court explained as follows: "[F]ortunately, we are not talking about a little child, but if a child has found something in their jacket pocket that is considered paraphernalia, that in of itself would not be, in my mind, sufficient for me to think about keeping the children away from mom. [¶] However, that kind of started the whole process, opened up the family for inspection. And at every turn from the get-go, Mother's lack of cooperation and the lack of candor and the putting on of testimony that I found to be incredibly not credible, and [M]other's refusal to follow through has made me hesitate to return the children to the mother's care. Had the mother initially up front been more candid about the situation and come up with some kind of safety plan so I could feel comfortable returning the children to her care, it would have been an easier call. [¶] But at this point I'm in a position where I need to ensure the welfare and safety of the children and not focus so much on how to get the children returned to [M]other's care." The court also noted concerns about Mother's long history of substance abuse issues and purported admission to methamphetamine use.
On May 1, 2018, Mother filed a timely notice of appeal, challenging the juvenile court's order removing the children from her custody.
III
DISCUSSION
Mother argues that there was insufficient evidence to support the juvenile court's dispositional order removing the children from her custody. We disagree.
To remove children from a parent's custody, the juvenile court must find by clear and convincing evidence that (1) there is a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if the child is returned home, and (2) there is no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) Section 361, subdivision (e), provides that the court must "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and that the court "shall state the facts on which the decision to remove the minor is based." The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361., subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).)
"The parent need not be 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. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances. [Citation.]" (Cole C., supra, 174 Cal.App.4th at p. 917; see In re T.V. (2013) 217 Cal.App.4th 126, 135-136.) " '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 Francisco D. (2014) 230 Cal.App.4th 73, 83; see In re T.W. (2013) 214 Cal.App.4th 1154, 1163.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
We review a dispositional order under "the substantial evidence test, . . . bearing in mind the heightened [clear and convincing] burden of proof" that is required to remove a child from a parent's care. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; see In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard, " '[w]e review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible.' " (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384; see In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) " ' "In making this determination . . . we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "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." ' " (In re I.J. (2013) 56 Cal.4th 766, 773; accord, In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) " ' "Substantial evidence is evidence that is 'reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings." ' " (In re D.C. (2015) 243 Cal.App.4th 41, 52; see In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) "[P]arties challenging the juvenile court's findings and orders . . . bear the burden to show there was no evidence of a sufficiently substantial nature to support those findings and orders." (In re M.R. (2017) 8 Cal.App.5th 101, 108; see In re D.C., at p. 52.)
In the present case, there was substantial evidence to support the juvenile court's finding that removal of the children from Mother's custody was the only reasonable means to protect the children from harm. The juvenile court found that the children should be removed based on Mother's long history of substance abuse, her admission to using methamphetamine, her lack of cooperation with DPSS, her lack of candor, and her refusal to follow through with services. Prior to seeking court intervention, DPSS had offered Mother substance abuse treatment services, but Mother refused, because she wanted DPSS out of her life. By the time of the contested jurisdictional/dispositional hearing, about one month after the children were formally detained, Mother still had not enrolled in any services. She also refused to acknowledge her drug use, claiming the methamphetamine pipe found by T.M. belonged to her cousin. She also blamed T.M. for trying to get her in trouble. She also repeatedly refused to drug test, provide a hair follicle test, and cooperate with DPSS. Mother had a long history of methamphetamine abuse, a long history with DPSS, and had not taken responsibility for her actions. In fact, Mother had made no progress toward alleviating or mitigating the causes necessitating intervention.
Moreover, both children reported that they were aware of Mother's drug use. T.M. stated that she did not feel safe in Mother's home because Mother had people come over to her home that gave her drugs. She also expressed concern with Mother's ongoing drug use and wanted to reside with her adult brother. While C.M. stated that he was not aware of his mother's current drug use, he "was aware his mother used drugs last year when she was hospitalized due to her drug use interfering with her medical problems." Mother herself admitted to using methamphetamine in November 2017, although she later disputed this statement. In addition, Father, who had been separated from Mother for about 11 years, was concerned about his children's safety with Mother. He stated that Mother had used methamphetamine since he had known her and that Mother had told him that she would not quit using methamphetamine. He also reported that Mother had tested positive for methamphetamine during her cancer treatment in 2017 and that she hid drugs inside her clothes.
Indeed, DPSS had received many past referrals relating to Mother's substance abuse. Mother has 19 prior referrals, dating from 1996 to 2018, with 13 relating to Mother's substance abuse. Three referrals relating to Mother were substantiated and four were inconclusive. Most of the referrals that were closed as unfounded or inconclusive were not closed because DPSS had found the allegations of Mother's substance abuse untrue. Rather, they were unfounded or inconclusive for other reasons, such as Mother's refusal to drug test, the children showing no obvious signs of distress, DPSS's inability to contact Mother, and the children residing with and being adequately cared for by their adult brother. Mother also has a criminal history that includes three separate incidents of being under the influence of a controlled substance in 2006, and one in 2008 for possession of a controlled substance. Section 300.2 provides that a home 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.
" '[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.' " (In re A.F. (2016) 3 Cal.App.5th 283, 293.) Throughout the proceedings here, Mother denied any substance abuse problem, despite her long history with substance abuse. She also refused to drug test, participate in substance abuse treatment or other services, and despite saying she would, she failed to submit to a hair follicle test. Under these circumstances, substantial evidence supports the conclusion that Mother had not changed her behavior—behavior that placed her children at risk of harm and led to her children's initial removal.
In addition, although there was no evidence of abuse and the children had not been physically harmed as a result of Mother's substance abuse issues, the evidence revealed Mother clearly neglected the children and was unable to provide regular care for or supervision of the children. "One of the goals of dependency is to protect a child before the harm takes place." (Cole C., supra, 174 Cal.App.4th at p. 918.) On this record here, we conclude the juvenile court reasonably could infer the children were at risk of harm were they to return to Mother's care.
Citing to In re David M. (2005) 134 Cal.App.4th 822, abrogated on other grounds in In re R.T. (2017) 3 Cal.5th 622, 628, Mother asserts that there was an insufficient nexus between her substance abuse history and a current substantial risk of harm to the children. Mother's citation of David M. is not persuasive. There, during the time between the detention hearing and the jurisdiction hearing—a period of four and one-half months—the mother "tested negative for drugs approximately 18 times" and "mother's missed tests were excused." (Id. at p. 830.) The court, rightly, focused on the risk of substantial harm "at the time of the hearing" (id. at pp. 831-832), and, under those circumstances, found there did not appear to be a future risk of harm.
Here, at the time of the combined jurisdictional/dispositional hearings, Mother refused to drug test, blamed T.M. and her cousin for the methamphetamine pipe found in the sweater, and failed to cooperate with DPSS. In addition, her conduct evinced a refusal to acknowledge a substance abuse problem, notwithstanding her long history with substance abuse issues and a criminal record of drug-related convictions. Furthermore, her drug use had negatively impacted her judgment, so much so that she was unable to acknowledge the risk of harm her actions had placed on her children. (See In re A.F., supra, 3 Cal.App.5th at p. 291.) T.M. found a methamphetamine pipe with drug residue in Mother's sweater she wore to school. Furthermore, Mother allowed drug dealers to come to her home, causing T.M. fears and concerns. "In light of [M]other's failure to recognize the risks to which she was exposing the [children], there was no reason to believe the conditions would not persist should the [children] remain in her home." (Id. at p. 293.) The record demonstrates a sufficient nexus between Mother's substance abuse and a current risk of harm to the children.
In her reply brief, Mother asserts that "there was no evidence in the present case that Mother did not appreciate the risks involved with caring for her children while under the influence," noting the children were safely in the care of relatives when her drug use occurred in November 2017. However, the evidence suggests that the relatives intervened when they discovered Mother's drug use. There is no evidence to suggest that Mother arranged for the children's care with relatives before she used methamphetamine.
Mother also asserts that "there was no evidence that any purported drug use by Mother impacted her ability to parent her children" and that she had adequately provided for the children's medical, developmental, and educational needs. These factors, however, are not dispositive. The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. " ' "The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]' [Citation.]" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) Moreover, Mother misunderstands the scope of our review. The question is not what evidence supported a different order. Our only concern is whether substantial evidence supported the court's order removing the children from her care, and it did. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [holding that we "affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion"].)
We conclude substantial evidence supports the juvenile court's dispositional findings and order removing the children from Mother's home.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.