Opinion
E069948
07-02-2018
In re A.T. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. G.S., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J271618 & J271619) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court found A.T. and M.T. (the children) came within the juvenile court's jurisdiction (Welf. & Inst. Code, § 300, subd. (b)), and, at the disposition hearing, ordered the children remain removed from the custody of G.S. (Mother), who is their mother (§ 361, subd. (c)(1)). Mother contends the juvenile court erred by ordering the children remain removed from Mother's custody because there were other means, less drastic than removal, that could protect the children from Mother's substance abuse. We affirm the disposition order.
All subsequent statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Mother has experienced the following arrests: (1) in 2000, being under the influence of a controlled substance; (2) in 2005, driving under the influence of alcohol or drugs; (3) in 2010, driving without a license and driving at an unsafe speed; and (4) in 2013, burglary, theft, and driving under the influence of alcohol or drugs. Additionally, Mother was convicted of battery on July 31, 2001.
Mother has two children: (1) M.T., a female born in April 2011; and (2) A.T., a male born in September 2012. The children's presumed father, M.T.1 (Father), was in a relationship with Mother for 10 years, but they were not married. The children have been the subjects of two prior dependency cases.
The first dependency case was from June 25, 2013, through September 4, 2014. On June 18, 2013, A.T. had not had formula for four days. A relative brought formula to Mother's house. Mother screamed at the relative. Mother left the house at 1:00 a.m., without A.T., and returned at 4:00 a.m. Mother was under the influence of an intoxicating substance. During a follow-up visit on June 25, by San Bernardino County Children and Family Services (the Department), Mother was possibly under the influence of an intoxicating substance. Mother admitted abusing methamphetamine and marijuana. There were prescription medication bottles and loose pills on the kitchen counters. The Department detained the children.
An allegation concerning Mother's substance abuse was found true by the juvenile court. In July 2014 Mother was charged with reckless driving, due to driving under the influence of alcohol or drugs. Mother was convicted and granted 36 months' probation. The first dependency case was closed on September 4, 2014, in Fresno County where it had been transferred, with Father being granted custody of the children.
The children's second dependency case took place from April 30, 2015, to May 10, 2016. Father left the children unsupervised outside, near a busy street, while Father slept inside the home. The children were almost struck by a car. The home was dirty and unsafe for the children. Additionally, there were allegations of domestic violence and substance abuse. The children were removed from Father's care. In May 2015 Mother was charged with driving without a license. A year later, Mother had completed her services and maintained her sobriety. On May 10, 2016, the children's second dependency case was closed with sole custody being granted to Mother.
In December 2016 Mother was arrested for being drunk in public/disorderly conduct (Pen. Code, § 647). Mother was under the influence of alcohol and argued with her mother (Grandmother) in the presence of Grandmother's adopted child. In April 2017, Mother was arrested for theft. (Pen. Code, § 484.)
B. DETENTION
In April 2017, the director of the children's KinderCare facility told the Department there were " 'a couple of times' " when Mother was obviously intoxicated when she came to retrieve the children. Mother stumbled, had to prop herself up against a wall, lost her balance when bending over, and slurred her words. On April 5, Mother was stumbling and cursing. KinderCare personnel called the police to report that Mother was under the influence of alcohol while driving the children home from school.
A police officer went to Grandmother's apartment where Mother and the children were residing. The officer who spoke to Mother believed that Mother was intoxicated. Mother refused to perform any field sobriety tests. The officer checked the children and concluded that they appeared healthy. The officer advised Grandmother that Mother "needs help and that she was very close to being arrested" for driving under the influence if she had been stopped while driving. The police officer contacted the Department.
On April 19, Mother moved the children from the KinderCare facility that contacted the police, to another KinderCare facility. On May 25, a Department social worker spoke to the children at the second KinderCare facility. The children were well-groomed and appropriately dressed. The children said they were not scared of Mother. On June 6, the social worker spoke to Grandmother. Grandmother said she and Mother did not have a good relationship and Grandmother's apartment was small, so Mother and the children had moved to a hotel.
On June 8, the social worker spoke to Mother. Mother explained that on April 5, she received her tax refund and celebrated with a martini and shopping. Mother said "the martini 'hit her hard,' " but she thought she could drive because she ate a meal. Mother told the social worker she stopped drinking after April 5, but then said she stopped drinking at Grandmother's house. Mother admitted drinking a beer two days before June 6. Mother said she left Grandmother's apartment because staying there made Mother want to drink.
Mother was working at Lowe's and looking for stable housing. Mother had support from her father (Grandfather), her sister, Grandmother, and a single mother support group at church. The social worker told Mother that the Department would follow-up to ensure Mother remained sober. On June 12, the social worker asked Mother to submit to a drug test. Mother tested negative for all substances. The social worker researched Mother's criminal history and saw the 2017 arrests for theft and being drunk in public. On June 19, the Department decided to remove the children from Mother's care.
The juvenile court found the Department established a prima facie case. The juvenile court ordered the children be detained. The children were placed in foster care. The court granted Mother supervised visitation a minimum of once per week for one hour. The court ordered Mother to submit to one on-demand drug test prior to the next court hearing.
C. JURISDICTION
1. DEPARTMENT REPORT
Mother told a Department social worker that she drank wine approximately twice per month and drank approximately six beers in the course of a month. Mother explained that, on April 5, she was celebrating the receipt of her tax return. At 11:00 a.m., Mother drank one glass of wine and ate a meal. Mother picked-up the children at 6:00 p.m. Mother said that because she rarely drinks alcohol, the one glass of wine " 'hit [her] really hard.' " The social worker questioned why Mother would still be intoxicated seven hours after drinking a glass of wine. Mother insisted that due to her overall lack of alcohol consumption, the one glass of wine "really affected her."
Mother was one year short of receiving a college degree in construction management. Mother completed a five-year carpentry training program and has worked as a carpenter. Mother said that Father is unemployed, homeless, and actively abusing drugs.
M.T. had two cavities; A.T. had five cavities. A.T. suffered speech delays. The children were adjusting well to their foster home. The children's visits with Mother went well. Mother read to the children and brought them food. The children had difficulty concluding their visits with Mother because they were attached to her. The children cried at the end of the visits and said they did not want Mother to leave.
2. MOTHER'S EVIDENCE
Mother provided the juvenile court with her declaration. Mother declared she was not intoxicated on April 5. Rather, when she arrived to pick-up A.T. from KinderCare, the staff complained that A.T. had been disruptive. Mother explained that A.T. needed more one-on-one time, and that she was seeking help from the school district. Mother and the KinderCare staff argued. Mother understood that the staff no longer wanted to provide care for A.T.
"Shortly after arriving home," a police officer knocked on the apartment door. Mother explained to the police officer that she "just w[o]ke up from a nap earlier." Mother declared she was not intoxicated. Mother asserted she had not tested positive for alcohol or a controlled substance for three and one-half years. Nevertheless, in an effort to regain custody, Mother had been attending outpatient substance abuse classes, alcoholics anonymous meetings, parenting classes, and counseling sessions, while also working full-time for a construction company.
A letter, signed by three hotel staff members from the hotel where Mother and the children stayed prior to the children's removal, reflected Mother woke up early to get breakfast for the children, dressed the children appropriately, took the children to school, and then went to work. In the evening, Mother gathered plates and utensils for dinner, took the children to the pool to swim, and was quiet by 10:00 p.m.
3. HEARING
a. Mother's Testimony
The juvenile court held a contested jurisdiction hearing on November 15. Mother testified at the hearing. Mother worked 40 hours per week when the children were in her care; she worked 60 hours per week after the children were removed from her care. Mother explained that on April 5, from noon to approximately 2:00 p.m., she was at a restaurant where she had a martini and ate lunch. Mother then went home and took a nap. Mother picked-up the children at approximately 6:30 p.m. When picking up the children, Mother argued with the KinderCare staff concerning A.T.'s emotional outbursts.
At approximately 8:30 p.m., after Mother and the children arrived home, a police officer knocked on the door. Mother told the officer she was not intoxicated and let him see the children. Mother was contacted by the Department on June 6, and the children were removed on June 22. No incidents occurred between April 5 and June 22. When asked why Mother told the social worker that she drank wine (rather than a martini) with lunch on April 5, Mother explained that she told the social worker she was offered wine at a day spa, prior to lunch at the restaurant, but she did not accept the wine.
In regard to Mother's drunk in public/disorderly conduct arrest in December 2016 Mother explained that she had come to southern California to visit Grandmother. While Mother was loading her car to leave, she argued with Grandmother. Mother's sister called the police. After the argument, Mother drank "a couple glasses of wine with [her] girlfriend next door." Mother then sat in her car, waiting for Grandmother to go to sleep before reentering the house. When police arrived, they arrested Mother for being drunk in public. The police told Mother they received a call about Mother and Grandmother fighting so Mother needed to go to jail for the night to prevent any further issues. A police report from the incident reflects Mother was slurring her speech, was confused, had an unsteady gait, and watery eyes. Mother told the police officer "she was going to drive to Fresno."
As part of the first dependency case in 2013, Mother participated in "three different outpatient programs." Mother did not believe she had a substance abuse issue; however, she avoided alcohol due to it causing problems in her life. Mother had been attending alcoholics anonymous meetings since April 2017. Mother gave her sobriety date as June 18, 2017; Mother explained she had a beer on that day. Mother also attended counseling once per week.
b. Closing Arguments
In closing, Mother's attorney argued that Mother consumed alcohol on two occasions, once in December 2016 and again on April 5, 2017. The attorney asserted Mother had tested negative for alcohol since June 2017 and was nearly finished with her case plan. The attorney argued that Mother had a substance abuse issue in the past, but that she was now sober and the children were not in danger in Mother's care.
Minors' counsel asked the court to find the allegations true. Minors' counsel argued that Mother had completed substance abuse treatment in the past, but continued to suffer from issues caused by drinking alcohol. Minors' counsel contended the children were at risk of harm in Mother's care due to Mother's history of relapsing. Minors' counsel asserted Mother drove with the children while intoxicated, which was supported by the police officer's opinion that Mother was intoxicated on April 5.
The Department argued that the allegations should be found true. The Department focused on the children's multiple removals from Mother and Father. The Department asserted that Mother had multiple alcohol-related incidents since the children's initial removal in 2013, such as the drunk in public arrest and the April 5 incident of driving drunk with the children in the car. The Department argued that Mother's story that she had one drink during the afternoon of April 5 did not explain why she appeared intoxicated at 6:30 p.m. at the KinderCare or at 8:30 p.m. at home. The Department contended Mother had issues with alcoholism and was early in her recovery process. The Department asserted the children needed to be protected and the court should find the allegations to be true.
c. Findings
The juvenile court said, "I believe it's very clear that [M]other has a long outstanding problem with alcohol, and I believe she is still minimizing that." The court continued, "I am very concerned that [M]other has attended three outpatient programs and yet fails to realize the risk she places her children in anytime that she has alcohol." The court found true (1) that Mother has a substance abuse problem which impairs her ability to provide adequate care and protection; (2) that Mother failed to reunify with the children in the past and has failed to resolve the issues that led to the Department's initial involvement; and (3) that Father failed to reunify with the children in the past and has failed to resolve the issues that led to the Department's initial involvement. (§ 300, subd. (b).)
D. DISPOSITION
On December 11, the juvenile court held a contested disposition hearing. Mother presented evidence of negative alcohol/drug tests and attendance at counseling sessions. Mother testified at the hearing. Mother last consumed alcohol on June 18. Mother had taken approximately 20 alcohol/drug tests during the course of the case. All of the test results were negative. Mother completed her case plan requirements of counseling, parenting classes, and an alcohol abuse program. Mother continued to participate in an aftercare program at Inland Valley Recovery Services, and she attended alcoholics anonymous meetings.
Mother said that if the children were returned to her custody, then she would not drink alcohol. Mother explained that she would not have consumed alcohol on April 5 if she had known it would lead to a dependency case. Mother said she had substance abuse issues in the past, but "currently [does] not" have those issues.
As part of the prior dependency cases in Fresno County, Mother participated in counseling for two and one-half years and parenting classes. Mother also participated in an outpatient substance abuse treatment program, but missed three sessions when she came to San Bernardino County for her 2013 charge of driving under the influence. As a result, Mother had to reenroll in the Fresno County outpatient program and "retake it again."
The second dependency case was closed in Fresno County on May 21, 2016. Since that time, to address her sobriety, Mother attended alcoholics anonymous meetings, individual counseling, church gatherings, and she had family support. In December 2016 Mother was arrested in San Bernardino County, for being drunk in public. Mother explained that she moved away from her Fresno County support system to San Bernardino County. Mother said that if she regained custody of her children, she would eventually return to Fresno County where she had a better support system.
In closing argument, Mother's attorney asserted Mother had completed her case plan, never tested positive for alcohol, and continued to attend alcoholics anonymous meetings. Mother's attorney argued that the children's removal was the type of event that would cause many alcoholics to relapse, but Mother remained sober. Mother's attorney asserted that Mother did not pose a risk of detriment or harm to the children. Mother's attorney requested the children be placed in Mother's custody.
Minors' counsel requested the children remain outside of Mother's custody. Minors' counsel asserted Mother has been sober in the past, but then relapsed. In the second dependency case, Mother completed her program and was sober, but then regained custody of the children and relapsed. Minors' counsel asserted the children would be at risk of harm if they were immediately returned to Mother's custody.
The Department argued that this was the children's third dependency case, that Mother failed to reunify with the children in the first dependency case, and Mother relapsed after the second dependency case. The Department asserted Mother was still asserting a single drink at lunch on April 5 caused her to be drunk at 6:30 p.m., which showed Mother was not taking responsibility for her intoxication. The Department contended Mother was making progress with her sobriety, which justified unsupervised and increased visits, but did not justify returning the children to Mother's custody.
The juvenile court found it was contrary to the children's welfare to return them to Mother's custody because returning to Mother's custody posed a substantial danger to the children's health and safety. The court said, "[I]t can't be overstated how concerning the history in this case is. This the children's third dependency. . . . [¶] I think it is great that mom is making progress. . . . But I still struggle with whether she fully accepts responsibility . . . . [W]hat I heard mom indicate at the last hearing is she had done three outpatient programs previously. She had done everything she is doing now and had only maintained sobriety after that for a period of about six to seven months. [¶] She had a drunk in public after that. She had the issues with the drinking and driving and the children being involved. And when she talks about it, she talks about it as if she had a substance abuse problem in the past. Mom's an alcoholic. I haven't heard her acknowledge that. She is going to be an alcoholic today, tomorrow, and 20 years from now. It's not something that just goes away."
The court continued, "The issue is can she maintain a long-term period of sobriety so the children aren't again placed at risk. . . . [¶] I am pleased to hear her say that she places the children before alcohol, but it confuses me then as to why we had the two situations after the children were returned to her for the very same issues. And I think the reason we had those is because mom has a serious alcohol issue."
The court increased Mother's visitation to twice per week for three hours each visit, and granted unsupervised visitation with the condition that Mother not transport the children. The court explained that Mother needed to show sobriety over a period of time, given that she relapsed six or seven months after the closure of the second dependency case.
DISCUSSION
Mother contends the juvenile court erred by ordering the children remain removed from her custody because other options, less drastic than removal, could protect the children.
A dependent child shall not be removed from his or her parent's physical custody unless the juvenile court finds clear and convincing evidence "[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).)
We apply the substantial evidence standard of review. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) Under this standard, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In 2000, Mother was arrested for being under the influence of a controlled substance. In 2005, Mother was arrested for driving under the influence of alcohol or drugs. In 2010, Mother was arrested for driving without a license and driving at an unsafe speed. In 2013, Mother was arrested for driving under the influence of alcohol or drugs.
In June 2013, at the beginning of the children's first dependency case, Mother admitted abusing methamphetamines and marijuana. There were prescription medication bottles and loose pills on the kitchen counters. The children were removed from Mother and an allegation concerning Mother's substance abuse was found true. In July 2014 Mother was charged with reckless driving, due to driving under the influence of alcohol or drugs. Mother was convicted. The first dependency case ended in September 2014 with Father being granted custody of the children.
In April 2015 the children's second dependency case began. In May 2015 Mother was charged with driving without a license. The children were placed with Mother on September 15, 2015, and on May 10, 2016, the second dependency was closed with sole custody being granted to Mother. In December 2016 Mother was charged with being drunk in public and was required to spend the evening in jail to prevent her from driving to Fresno while intoxicated.
On April 5, 2017, Mother drank a martini that caused her to be drunk from approximately noon to 8:30 p.m. While intoxicated, Mother drove the children home from school and was then visited by police. Despite the strong impact from the martini, Mother drank beer on June 4 and June 18.
Given Mother's history of alcohol abuse and history of driving while intoxicated, the juvenile court could reasonably conclude that the children's health and safety were at risk in Mother's care because there was a substantial risk of Mother once again relapsing and then driving drunk with the children in the car. Mother's history of relapsing creates a substantial risk that Mother will again relapse. Mother's habit of drunk driving places the children at risk of physical injury or death. Mother needs to establish long-term consistency with her sobriety to demonstrate there is not a substantial risk of Mother relapsing and then driving while intoxicated with the children in the car.
A less restrictive alternative, such as ordering Mother not to drive the children, would not be reasonable because Mother's arrests for driving without a license reflect she does not comply with directions to refrain from driving. Another less restrictive alternative, such as requiring Mother to submit to random alcohol screenings, would not be reasonable because Mother is greatly impacted by a single alcoholic drink. Therefore, there is a risk of Mother having a single cocktail and then driving the children while intoxicated, which could occur within a brief period of time. As such, random alcohol tests would not sufficiently prevent the risk of harm to the children because Mother could be randomly tested for alcohol at 10:00 a.m., and then at noon have a single cocktail and drive the children while intoxicated.
Mother contends a less drastic alternative to removal would be unannounced home visits by the Department. This alternative presents the same issue as the random alcohol tests—Mother's intoxication and driving with the children could occur quickly. Random in-home visits would not prevent the risk of harm to the children.
Mother contends a less drastic alternative to removal would be Mother and the children moving into the home of Grandfather. Mother does not explain how living with Grandfather will prevent her from driving with the children while intoxicated. The record includes a letter from Grandfather in which he wrote, "[Mother] has never harmed her children and never would harm them." Grandfather appears to be ignoring Mother having driven, while intoxicated, with the children in the car. Due to Grandfather ignoring this issue, it is unclear how Grandfather is going to assist Mother in ensuring she does not again drive the children while intoxicated.
In sum, Mother's long history of substance abuse, her multiple arrests for driving while intoxicated (in 2005, 2013 & 2014), and her act of driving while intoxicated with the children in the car in 2017, necessitate the children's removal from Mother's care. There is no alternative that can adequately protect the children from the risk of Mother driving while intoxicated with the children in the car. Accordingly, substantial evidence supports the juvenile court's order removing the children from Mother's custody.
DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.