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In re D.J.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 23, 2012
D060087 (Cal. Ct. App. Jan. 23, 2012)

Opinion

D060087

01-23-2012

In re D.J. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.T., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J517420A-D)

APPEAL from an order of the Superior Court of San Diego County, Michael Martindill, Juvenile Court Referee. Affirmed.

M.T. appeals a juvenile court order denying her petition for modification (Welf. & Inst. Code, § 388) to obtain unsupervised and overnight visitation with her four children. She challenges the sufficiency of the evidence to support the court's finding she did not show changed circumstances justifying modification. We affirm the order.

Further undesignated statutory references are also to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Between 1999 and 2003, four children were born to M.T. and D.J. All four of the children tested positive for marijuana at birth. In 2007 the family court awarded D.J. sole legal and physical custody of the children.

In February 2009 a social worker with the San Diego County Health and Human Services (the Agency), accompanied by police officers, did a welfare check at D.J.'s home. He was on probation after being convicted of transporting and selling narcotics. When they arrived, D.J. was attempting to drive away in his car. He had left the children unattended in the home, and it smelled strongly of marijuana smoke. A few ounces of marijuana and drug paraphernalia were found in the home and more marijuana was found in his car. The home was unsafe for the children because marijuana was within their reach and the home was filthy. The children reported that their father sold drugs and smoked "weed." D.J. was arrested for drug offenses and child endangerment. The Agency took the children into protective custody and filed petitions on behalf of them under section 300, subdivision (b).

D.J.'s live-in girlfriend had helped him care for the children and she was named the presumed mother. Placement with her, however, was not an option because of her own history of drug abuse. Her whereabouts later became unknown and her reunification services were terminated. The petitions were amended to add M.T. as the presumed mother.

D.J. reported that M.T. had no contact with the children since he obtained custody and her whereabouts were unknown. The Agency's attempts to locate her proved fruitless, and at the 12-month review hearing the court terminated her reunification services. The court continued D.J.'s services to the 18-month date because he had made substantial progress on his case plan. He had completed a parenting education class, and he was attending individual therapy, enrolled in SARMS (Substance Abuse Recovery Management System), drug testing, and attending a 12-step program.

In September 2010 M.T. came to San Diego from her home in Las Vegas. She appeared at the children's school and was turned away. The school advised her to contact the Agency, and thus she went to the social worker's office. She "appeared anxious, jittery, and tearful," and she told the social worker she was on SSI (supplemental security income) for a mental disorder. The social worker asked her to submit to an on demand drug test. She agreed and the result was positive for marijuana. She blamed it on antidepressant medications and also claimed she had a "[m]arijuana card." She provided no prescriptions or marijuana card. The social worker gave M.T. referrals for drug treatment at her own expense, since her reunification services were terminated. M.T. responded "that she has already been doing her own drug treatment." M.T. made her first court appearance in October 2010, at which time the court ordered supervised visitation for her.

By the time of the 18-month review hearing in November 2010, all four children had been returned to D.J. The court found D.J. had made substantial progress with his case plan. He was working full time, taking care of the children and getting them to therapy, and they were "doing extremely well." The court continued services for an additional six months, by way of a family maintenance plan. The court also gave the Agency discretion to expand M.T.'s visitation with the concurrence of minors' counsel.

M.T. moved to San Diego in March 2011. In April she filed a petition to modify under section 388, requesting unsupervised and overnight visitation. She argued her circumstances were changed in that she visited the children weekly and phoned them nightly; she obtained a three-bedroom apartment; and her use of marijuana was for medical purposes and she tested drug-free except for marijuana. She submitted a "Physician's Statement Regarding Medical Cannabis," signed by Arkady Borisovich Goldstein, M.D., and dated November 30, 2010.

Dr. Goldstein's authorization was issued after she tested positive for marijuana in the Agency's random drug test.

The Agency opposed the petition out of concerns for M.T.'s mental health, her lengthy addiction to marijuana, and her ability to protect the children. M.T. was unemployed and on disability for a mental condition, and she refused to sign a release to authorize the Agency to speak with Dr. Goldstein. M.T. also refused to allow the Agency to inspect her new home. Further, she told the social worker she was three months pregnant, but she would not identify the father so the Agency could perform a background check on him. She said he was in the military stationed in Libya, "and if he comes back and transfers to another location, she will be going with him."

Before the hearing, the Agency was able to evaluate M.T.'s home and it was appropriate. Further, the Agency had obtained Dr. Goldstein's records. In the intake form M.T. stated that during the preceding six months she used marijuana every day or almost every day; she used marijuana for tension, depression, mood swings and loss of appetite; she had a history of mental disorders and weight loss; she received SSI benefits for a mental disability; she was currently taking Zypreza and Depokote, and in the past she had taken Paxil and Thorazine; and she was seeing a therapist once a week. Dr. Goldstein authorized M.T.'s use of cannabis for depression, mental illness, and poor appetite. He noted she has a history of depression and mental problems.

Dr. Goldstein's records also show that M.T. initialed certain advisements, one of which warned of the dangers to a fetus of marijuana use during pregnancy. The social worker noted M.T. "is still using [m]arijuana while pregnant with no regards for her unborn, just like when she was pregnant [with her other four children]." Further, Dr. Goldstein instructed M.T. to follow up with her primary care doctor, and she submitted no evidence she had done so.

At the hearing in June 2011, the social worker urged the court not to allow unsupervised visitation because of M.T.'s marijuana addiction—now facilitated by a medical marijuana card—and her inability to understand the impact of it on the children. She tested positive for marijuana in April 2011 and in two previous tests. The social worker quoted M.T. as saying, "I have a weed card. It is legal. I will smoke weed all the time." The social worker advised her she should not be using marijuana during pregnancy, and she responded, "It's bull. You guys don't know what you are talking about." She claimed a doctor told her "marijuana will not harm my baby." M.T. told the social worker in October 2010 that she suffered from "major depression," and she admitted she had not followed up with mental health care. The social worker conceded M.T. did not appear unstable or under the influence during visits he supervised.

M.T. testified she did not see the children for two and a half years because of a custody dispute with D.J. He was physically abusive to her and "left and never returned with the kids."

M.T. denied using marijuana before a scheduled visit, and she denied the current use of any marijuana. She testified she stopped smoking it six weeks earlier because her obstetrician advised her it could lead to a low birth weight and she desired expanded visitation with her four children. As to previous use, she claimed the social worker "told me as long as I have the marijuana card, it was fine."

M.T. also denied having any current depression or ever being diagnosed as having depression. She said that when she was 16 or 17 years old she was prescribed Zypreza and Depokote for ADHD (attention deficit hyperactive disorder), and she then began receiving SSI benefits for ADHD. Even though she still received benefits, she denied having any current symptoms of ADHD or that she needed any medication for it or for depression. She testified she quit taking the medications when she was 17 years old. She conceded she used marijuana the preceding 10 years, but she denied ever using it two days in a row or having any drug problem.

M.T. refused to identify the father of her unborn child. She testified he was in the military, fighting a war in Libya. When it was pointed out that the United States had no ground troops in Libya, she conceded the father was not in the military, he merely did not want to get involved. She admitted she lied to the social worker and in her testimony under oath.

The parties stipulated that if called the children would testify they enjoy seeing their mother, feel safe with her, and wish to see her more often in an unsupervised setting. They would also testify that if they saw their mother using drugs during visits they would tell their father.

The court denied the petition, finding M.T. did not meet her burden of showing changed circumstances. The court then proceeded to the family maintenance review hearing. The court granted the parents joint legal custody of the children, granted D.J. physical custody of them, and terminated jurisdiction. The parents agreed to a schedule that allows M.T. supervised visits for two hours each Friday and six hours each Saturday.

DISCUSSION


I


Applicable Law

"The essence of a section 388 petition is the petitioner's assertion that she or he can demonstrate, by a preponderance of the evidence, that new evidence or a change of circumstances exists warranting a finding that the best interests of the minor child will be served if a previous order of the court is changed, modified or set aside. The petition is addressed to the dependency court's discretion and in an appeal from the order on the petition, the task of the reviewing court is to determine whether that discretion has been abused." (In re Marcos G. (2010) 182 Cal.App.4th 369, 382.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

"Not every change in circumstance can justify modification of a prior order. The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate." (In re S.R. (2009) 173 Cal.App.4th 864, 870.) The petitioner must show changed, not changing, circumstances. (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) "The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' " (Ibid.)

II


Analysis


A

We conclude the court's denial of M.T.'s request for unsupervised visitation does not exceed the bounds of reason. She had an admitted 10-year history of marijuana use, and it was apparently not casual use since all four of the children tested positive for the drug at birth and she continued to use marijuana during her latest pregnancy. She advised Dr. Goldstein she used marijuana daily or almost daily. She testified she had not used marijuana for six weeks, but the court could reasonably find her testimony not credible since she lied on the stand about the whereabouts of the father of her unborn child. She had no evidence of even a single negative drug test, or that she was undergoing drug treatment or a 12-step program. Perhaps her circumstances in this regard were changing, but they were not changed. Even if she had not used marijuana for six weeks, that is a small period in relation to the length of her addiction.

Further, the court could reasonably find a lack of changed circumstances in regard to M.T.'s mental condition. In Dr. Goldstein's intake form, she claimed she used marijuana for depression and mood swings, and she acknowledged a history of mental disorders. She also listed prescription medications she was currently taking for those disorders. At the hearing, however, she denied having any depression or taking the medications after the age of 17. She testified she had been receiving SSI benefits since the age of 16 or 17 for ADHD, yet she was not on any medication for it and it supposedly caused her no problem. Again, the court could reasonably find her not credible, and she submitted no corroborating evidence.

Further, while M.T. had moved to San Diego recently, she was admittedly out of contact with the children for two and a half years. Moreover, she refused to identify the father of her unborn child so the Agency could perform a background check on him. Under all the circumstances, the court's ruling was a proper exercise of its discretion.

Given our holding, we decline to address the parties' positions on whether M.T. met her burden of showing unsupervised visitation would be in the children's best interests. We would, however, find against her on that point as well. The mere fact that the children desire expanded visitation does not make it in their best interests.

B

M.T. relies on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.), for the proposition that "case law shows the mere use of marijuana does not present a risk to children." In Jennifer A., the mother's two children, ages five years and 18 months, were taken into protective custody after she left them alone in a motel room and went to work. She reported that she expected their father to be there soon to care for them. He appeared and explained he was late because his car had broken down and he had to take a bus. (Id. at pp. 1326, 1329.) At the six-month date the social worker reported the mother accepted responsibility, was learning proper parenting skills, and was " ' "far removed" ' " from leaving the children alone again. (Id. at p. 1326.) At the 12-month review hearing, the parties stipulated the children would be returned to the mother within six months. (Ibid.)

At the 18-month review hearing, however, the juvenile court terminated reunification services and scheduled a section 366.26 permanency hearing. The mother admitted occasional marijuana use and the detention order required her to drug test. (Jennifer A., supra, 117 Cal.App.4th at pp. 1328, 1330.) Shortly before the review hearing the mother claimed she was unable to undergo a drug test because of scheduling conflicts. The social worker insisted on the test and it was positive for marijuana. Further, in the previous few months the mother missed four drug tests, was unable to void once, and gave five diluted specimens. (Id. at p. 1335.) The mother was in general compliance with her case plan, but the social worker believed she had an unresolved substance abuse problem. (Jennifer A., supra, at pp. 1335-1336.) The juvenile court determined return of the children to the mother would create a substantial risk of detriment to their physical and emotional well-being. (Id. at pp. 1340-1341.)

The appellate court granted the mother's writ petition and reversed the ruling. The court concluded substantial evidence did not support a finding the mother's marijuana use created "a substantial risk of detriment to the physical or emotional well-being of the children in light of the factors in this case militating in favor of their return." (Jennifer A., supra, 117 Cal.App.4th at p. 1346.) The mother had 95 testing obligations, and the court deemed her completion of 84 drug-free tests was sufficient compliance to avoid termination of parental rights. As for the diluted tests, the mother's therapist confirmed he told her to drink a lot of fluids so she could void. (Id. at p.1343.)

The court also noted, "No medical professional diagnosed Mother as having a substance abuse problem, no medical professional testified at the 18-month review hearing, and there was no testimony of a clinical evaluation." (Jennifer A., supra, 117 Cal.App.4th at p. 1346.) "Further, no one offered testimony linking Mother's marijuana and alcohol use to her parenting judgment or skills." (Ibid.) To the contrary, the social worker testified she "did not have a drug problem that affected her parenting skills." (Ibid.) After the mother tested positive for marijuana the social worker allowed her to continue daily unmonitored visitation because he felt there was no danger to the children. (Id. at pp. 1337, 1341.)

Jennifer A. is distinguishable procedurally. In Jennifer A., the court explained that at the 18-month review hearing the social worker has the burden of proving that returning the children home would be detrimental. (Jennifer A., supra, 117 Cal.App.4th at p. 1345, citing § 366.22, subd. (a).) In a section 388 petition, the petitioning party has the burden of proving changed circumstances " 'of such significant nature that it requires a setting aside or modification of the challenged prior order.' " (In re Mickel O., supra, 197 Cal.App.4th at p. 615.) As M.T. acknowledges, the "court did not immediately grant [her] unsupervised visits because there was some concern about her using marijuana and having mental illness." The record does not indicate she objected to supervised visits.To prevail here, she was required to show changed circumstances, and the court reasonably found she did not do so.

The appellate record does not include the reporter's transcript from the October 2010 hearing in which she was granted supervised visitation.

M.T.'s reliance on In re David M. (2005) 134 Cal.App.4th 822, is also misplaced. The court there reversed a jurisdiction order because the social services agency did not meet its burden of proving the mother's marijuana use and both parents' mental problems created any substantial risk of harm to the children. (Id. at pp. 825, 829-830.) In In re Alexis E. (2009) 171 Cal.App.4th 438, 452-453, the court affirmed a jurisdiction order because the social services agency provided substantial evidence that the father's use of medical marijuana created a risk of harm to the children. These opinions do not pertain to section 388 modification hearings.
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DISPOSITION

The order is affirmed.

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McCONNELL, P. J.

WE CONCUR:

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BENKE, J.

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HALLER, J.


Summaries of

In re D.J.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 23, 2012
D060087 (Cal. Ct. App. Jan. 23, 2012)
Case details for

In re D.J.

Case Details

Full title:In re D.J. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 23, 2012

Citations

D060087 (Cal. Ct. App. Jan. 23, 2012)