Opinion
A131150
12-23-2011
In re T.D., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. Nos. J38485, J38466, J38467)
C.W. (Mother), mother of 15-year-old T.D., 13-year-old K.D., and 5-year-old Z.W., appeals from a dispositional order removing her children from her custody and placing them in the home of an approved relative or in foster care. She contends there was insufficient evidence that removing them from her custody was necessary for their protection and welfare. We disagree, and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Previous Petition
On April 16, 2008, the Solano County Health & Social Services Department (the Department) filed an original petition on behalf of then 11-year-old T.D., 9-year-old K.D. and 18-month-old Z.W., alleging Mother had a substantial history of methamphetamine use that interfered with her ability to provide regular and appropriate care, custody and support for her children. She admitted she had relapsed and had used methamphetamine "six times in the last six months," including the night before Z.W. was hospitalized for "ingesting a caustic liquid [that] contained sodium hydroxide, a chemical use[d] to manufacture methamphetamine. . . ." Mother had "left the liquid soap in a Dixie cup in the motel room and within the child's reach. [Z.W.] was being watched by his eleven year old sister [T.D.] at the time of the incident." Z.W. suffered second and third degree burns to his mouth and throat and tested positive for methamphetamines. Z.W.'s alleged father, J.B. had a substance abuse problem. T.D. and K.D.'s alleged father, R.D., also had a substance abuse problem. R.D. admitted he served several prison sentences for felony domestic violence against Mother and that the children had witnessed some of the violent incidents. He continued to verbally and emotionally abuse Mother and also physically and emotionally abused K.D. K.D. demonstrated anger, rages, fighting and anti-social behaviors, including shoving a towel into Z.W.'s mouth in an attempt to suffocate him. The juvenile court detained the children, found J.B. was Z.W.'s alleged father, and found R.D. was K.D. and T.D.'s presumed and legal father as well as Z.W.'s alleged father. At a further detention hearing, the court returned T.D. and K.D. to Mother's care under certain conditions.
According to a jurisdiction report dated May 29, 2008, T.D. and K.D. were living with Mother and Z.W. remained hospitalized. Alleged father J.B.'s whereabouts were unknown. Mother reported that J.B. had acknowledged Z.W. was his son and held him out to the community as his own. A child support case specialist stated that R.D. was deemed Z.W.'s legal father because he was legally married to Mother. The report set forth the family's prior child welfare history, which included allegations beginning in January 2001 for a total of 13 referrals for neglect, abuse, substantial risk, and caretaker absence, among other things. Several of the referrals were unfounded or inconclusive, a few were substantiated, and the others were evaluated out.
In a disposition report dated June 16, 2008, the Department recommended that Mother receive family maintenance services as to T.D. and K.D. and family reunification services as to Z.W. It recommended that R.D. receive family reunification services for all three children, with the option of allowing him to waive services as to Z.W. It recommended that J.B. receive no services because his whereabouts remained unknown. The Department stated, "[g]iven the history of this family (domestic violence, drug abuse, neglect, homelessness), the children continue to be at substantial risk of harm . . . . While [Mother] appears to be protective over [T.D. and K.D.], her ability . . . continues to be questionable as Child Welfare continues to receive reports that she leaves the children unattended while she works the graveyard shift at the motel, which she denies. [Mother] also has yet to address her drug history and has not engaged in the substance abuse assessment as referred . . . . [Mother] minimizes her use (past and present) of drugs . . . ." Mother continued to reside in the same motel room in which Z.W. was injured and she had not identified an appropriate child care plan for the hours she worked. The Department believed the living arrangements were unsafe for Z.W., who was still recovering from his injury and required constant care and attention due to his "medically fragile" state and developmental age. The juvenile court sustained the petition as amended, adjudged T.D. and K.D. dependents, and placed them in Mother's custody with family maintenance services.
According to an interim review report dated August 18, 2008, Mother was receiving family maintenance services as to T.D. and K.D. and family reunification services as to Z.W., who had been released from the hospital on June 19, 2008, and was living in a confidential licensed foster home. Z.W. had received internal damage as a result of the incident in which he ingested a caustic liquid and had also had a "thalamic stroke" that resulted in a "global brain injury." He would bang his head when frustrated and had poor impulse control. He required speech and occupational therapy. Mother did not appear for a drug test on April 30 and May 10, 2008, and tested negative for drugs on May 13, 2008. On June 11, 2008, she had a positive hair follicle test for amphetamines and methamphetamine and a negative urinalysis. On August 13, 2008, a urine sample Mother provided was not sufficient for testing and the result from a test she took later that day was pending. R.D. had been arrested for and charged with cruelty to a child, possession of drug paraphernalia and battery, and was in jail. He tested positive for marijuana on April 28, 2008. The Department commended Mother for her active efforts and participation in Z.W.'s assessment and was hopeful she would continue to participate in his medical treatment and care. However, the Department did not recommend returning Z.W. to Mother's care because Mother had canceled two substance abuse assessments and had not engaged in any treatment and was not addressing her substance abuse addiction.
In a September 26, 2008, six month status review report, the Department requested continued family maintenance services to Mother as to T.D. and K.D., who were in her custody, and family reunification services to Mother as to Z.W. The Department requested family reunification services for R.D. as to all three children, as he had also established paternity as to Z.W. The Department also requested discretion to place Z.W. with Mother or R.D. with family maintenance services. Mother continued to reside in the same motel. She had moved twice within the motel complex and, at the time of the report, she had immediate access to an extra living space that had a small kitchen. She took time off from work to focus on reunifying with Z.W. She was visiting him three times a week and was making attempts to attend his medical appointments. She believed her family was "worse off after the Department became involved" and declined most services that were offered to her, "stating that if it is not court ordered she does not have to do it." R.D. had been incarcerated for a probation violation and was released on August 26, 2008. His living environment was unstable. T.D. was healthy, developmentally on target and enjoying school. K.D. was taking medication for bipolar disorder, was developmentally on target, and was doing "a lot better and being more controllable since beginning his medication." Z.W. was being treated for "[g]lobal brain injury with atrophy, methamphetamine intoxication, toxic ingestion, developmental delay, speech and language delay, malnutrition, constipation, and rotavirus infection." He was discharged from the hospital with a feeding tube in place to ensure he was receiving the right amount of nutrition. Due to a thalamic stroke he suffered while hospitalized, he suffered neurological delays and was grossly delayed in numerous areas of development. He had contact with T.D. and K.D. during supervised visits. At the six month status review hearing, the juvenile court followed the Department's recommendations and also granted Mother's request for additional visitation with Z.W.
In a 12-month status review report dated March 28, 2009, the Department recommended terminating jurisdiction as to all three children and granting sole physical custody to Mother and shared legal custody to Mother and R.D. The children were living with Mother, who had moved from the motel to a three bedroom home where the children could walk to and from school. Her "demeanor, insight, outlook and affect [had] changed considerably" during the reporting period. She was receiving treatment and had tested negative for illegal substances, with the exception of a positive marijuana test on two occasions—November 25, 2008, and December 30, 2008. T.D. was mentally and emotionally stable, K.D. was in an appropriate after school program, and Mother was working with her drug treatment case worker to set up therapy services for her children to address their exposure to domestic violence. R.D. continued to "live a transient lifestyle." K.D. had stopped taking his medication in November because it "made him feel sick." He felt he was doing better without the medication. Mother said she discovered K.D. was not taking his medication when she was packing to move and found a container with over 30 pills among his belongings. Mother said she noticed a positive change since he went off his medication and the school did not report having any problems with him. Z.W. was receiving weekly infant development sessions. He was making progress and was no longer engaging in self-harming behaviors. On April 14, 2009, the juvenile court adopted the Department's recommendations and terminated jurisdiction over all three children.
Current Petition
On October 13, 2010, the Department filed a dependency petition alleging that Mother had subjected all three children to an unsafe environment by using illegal drugs in the home. There was methamphetamine and multiple drug paraphernalia within the children's reach in the motel room where the family lived. According to the detention report, the Department received a report that Mother was in jail after having been arrested for child endangerment and possession of methamphetamine and drug paraphernalia. The arresting officer said Mother was "clearly under the influence of drugs." The police department had prior contacts with the family and often found K.D. unattended and wearing the same, dirty clothes. He was not being bathed regularly and was asking neighbors for food. On a prior occasion, Mother reported that K.D. took candy from a registered sex offender at the motel. A journal was found in which K.D. had written about being hit in the head multiple times. Mother reported that R.D. was "homeless somewhere in Fairfield." The juvenile court detained the children as recommended.
At a November 4, 2010, contested jurisdictional hearing, social worker Andrometa Hayes testified she was assigned to investigate the case and filed a dependency petition on behalf of the children on October 13, 2010. A risk assessment she conducted showed the children were at high risk. Z.W. had behavioral issues and was moved to a different foster home after the foster parents with whom he was initially placed gave a "seven-day notice" requesting that he be moved. Mother had submitted to a urine test and a hair strand test on October 14, 2010. The urine test, which determines whether drugs have been in the system within the last three days, was negative. The hair strand test, which determines whether drugs have been in the system within the last 90 days, was positive for methamphetamine. Mother told Hayes she had not used drugs and "come this April she would be three years clean."
Hayes noted that some family strengths included the fact that Mother and the children had remained together and had a positive attitude toward each other and that the children were attending school regularly. At least two of the children were also generally well behaved. According to Mother, K.D.'s attention deficit hyperactivity disorder (ADHD) had improved and she had followed up on getting him another appointment to address his ADHD.
Social worker Bonnie Mencher testified she was assigned to the case in mid-October 2010. Mother's recent drug test was positive for alcohol. Mencher believed that continued detention of the children was necessary because, despite intensive services that were provided to the family during the last dependency case, many of the same issues were present again. Mother had tested positive for methamphetamine and alcohol, K.D. was not properly supervised, and the police were called out to check on his welfare. There was
"quite a bit of evidence of methamphetamine paraphernalia in the room." Mother continued to deny that drugs or alcohol were a problem for her or that there was any cause for concern in regards to her children's safety or care. If the children were returned to Mother, "they would essentially be returning to a situation that has not changed, which would just continue to place them at risk of abuse or neglect."
When Mencher met with Mother, Mother denied using methamphetamine even after being shown that her drug test was positive for methamphetamine. Mencher smelled alcohol on Mother as soon as they entered the interview room and brought it to Mother's attention. Mother took some gum out of her mouth and said that Mencher must be smelling the gum. Mencher told her she was not smelling gum, but that Mother "smelled strongly of alcohol." Mother denied drinking, stating that the last time she drank was "mid-September." Mother also said she was involved in Project Aurora at the time her previous case was dismissed, but Mencher later learned that she had never completed the program. When Mencher raised the issue concerning the lack of supervision of K.D., Mother said that K.D. was "never alone and he was always supervised," despite reports from police that he was not being properly supervised. Mother did acknowledge that K.D. was "asked to stay out of the motel room for periods of time and to stay in the lobby of the motel." Mencher was also concerned that Z.W., who has special needs, was not receiving any services because Mother had not followed through on what had been recommended to her as far as continuing services for Z.W. Mother told Mencher that Z.W. had no behavioral problems and was "developing perfectly normal," and that services were unnecessary. At the end of the hearing, the juvenile court sustained the petition, as amended.
According to a jurisdiction/disposition report dated November 18, 2010, the children were in foster care. The Department stated that reunification "would be premature at this time" due to the high risk of further abuse and/or neglect caused by Mother's failure to address her substance abuse issues. The Department believed Mother needed to be "actively engaged in a formal substance abuse treatment program and consistently testing negative for all substances, including marijuana and alcohol," before the children could be placed with her. The children were also at risk if placed with their father, R.D., as he did not have stable housing and had unaddressed anger issues and suspected substance abuse issues. Mother was having weekly supervised visits with the children. The family enjoyed the visits, and although Z.W. was "difficult to control at times," Mother "tried her best" to encourage him to express his emotions in a positive manner. The Department was in the process of scheduling a permanency team meeting for the family to discuss and explore long-term placement options for the children, should reunification not occur. In an addendum report dated December 29, 2010, the Department submitted, under confidential cover, the results from three random urine tests the Department had asked Mother to take on November 18, December 16 and December 22, 2010.
At a January 5, 2011, contested dispositional hearing, Mencher testified there had been difficulties placing Z.W. He was on his third placement and Mencher needed to find a new placement for him. He was assaultive with other children and the foster parent and had bitten a child twice, and had "completely regressed in his toilet training including purposely urinating on the carpet." He had "pica," i.e., he was swallowing objects that were not edible. Mencher had made various efforts to locate a new placement for him but had been unsuccessful. Z.W. was on his best behavior when he was with Mother. Mother tested negative for all substances during her last three drug tests. Despite this, Mencher believed that given the family history, Mother's delay in seeking services, and her inability to take responsibility for or acknowledge her part in the dependency action, Z.W. should not be returned to Mother's care because there was "still a very high level of risk of abuse or neglect if he is placed back in his mom's care at this time."
Mencher further testified that K.D. had some behavioral challenges that were observed in foster care. The issues were significant enough that Mencher had requested approval for wraparound services to be provided to K.D.'s care provider. She had received a seven-day notice from K.D.'s foster family requesting that he be placed elsewhere due to his behavioral problems, which consisted primarily of teasing and taunting a younger child in the home and teasing or arguing with his sister. Mencher was able to obtain approval for wraparound services and for mental health services, and the foster parent rescinded the seven-day notice. T.D. also had some behavioral problems. She was suspended from school for five days for getting into a fight with a peer. She also argued and fought with her brother, K.D., which went "a little bit beyond the normal sibling relationship."
Mencher observed the children getting along during visits and was impressed with K.D.'s ability to play with Z.W. T.D. also did her best to interact with Z.W. However, Z.W. became aggressive towards K.D. and T.D. on occasion, hitting K.D. and not letting go of T.D.'s hair, requiring intervention by the visitation supervisor. During visits, Mother did not respond well to the visitation supervisor's directives or suggestions. The supervisor was also concerned that Mother was not appropriately intervening when Z.W. was interacting inappropriately with his siblings. Z.W. appeared to be "in charge," and everyone else "sort of step[ped] around carefully to make sure [Z.W. did not] get upset." Mother always tried to sooth Z.W. rather than discipline him, and Z.W. responded to Mother because she would try to appease him.
Mencher had spoken to T.D. and K.D., both of whom indicated they wanted contact with their parents. They were upset to be in the system a second time, and T.D. did not want to go home again too soon, only to "have to be pulled [out] again." The children were very aware of what their parents needed to do before they could return to their home. Z.W. expressed that he missed Mother and was often angry when she had to leave at the end of a visit.
The juvenile court found that continued detention of the children was necessary and ordered them placed in the approved home of a relative or in foster care.
DISCUSSION
Appellant contends the dispositional order must be reversed because there was insufficient evidence that removing her children from her custody was necessary for their protection and welfare. We disagree.
Welfare and Institutions Code section 361, subdivision (c)(1), provides in part: "A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5) . . . [¶] (1) There 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." "A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) We review the juvenile court's determination for substantial evidence, bearing in mind the heightened burden of proof by clear and convincing evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Here, there was substantial evidence supporting the juvenile court's decision. A welfare check by the police department revealed there was methamphetamine and multiple drug paraphernalia within the children's reach in the family's motel room. K.D. continued to have behavioral issues and was not being properly supervised, but Mother insisted he was "always supervised." The Department was concerned that Z.W., who had special needs and behavioral issues, was not receiving the recommended services due to Mother's belief that he had no behavioral issues and did not need any services. Mother continued to deny using drugs despite the evidence of drug use and her drug test that was positive for methamphetamine. She also claimed she had not had any alcohol since "mid-September," but a recent drug test showed she had consumed alcohol, and she "smelled strongly of alcohol" during an interview with social worker Mencher. She had failed to complete the Project Aurora program in which she stated she was involved at the time the first petition was dismissed. Although Mother tested negative for drugs and alcohol on three occasions in November and December 2010, the Department believed she needed to be actively engaged in a formal substance abuse treatment program and consistently test negative for all substances before the children could be returned to her care. In light of the overwhelming evidence of Mother's failed attempts at sobriety and her inability to recognize that her substance abuse was a problem, the juvenile court could reasonably determine that the children would continue to be at substantial risk if left in her care, and that removal was necessary.
Mother notes that Z.W. was returned to her care after the juvenile court issued the dispositional order, and asserts this shows that "no possible justification exists for finding that [T.D. and K.D.] could not be returned as well." In the absence of exceptional circumstances—which have not been shown to exist in this case—a reviewing court may not "receive and consider postjudgment evidence that was never before the juvenile court,
and rely on such evidence . . . ." (In re Zeth S. (2003) 31 Cal.4th 396, 399.) We therefore decline to consider evidence of Z.W.'s change in placement for purposes of this appeal. For the same reasons, we deny the Department's request for us to take judicial notice of various documents purporting to show where Z.W. was placed at subsequent hearings.
DISPOSITION
The dispositional order is affirmed.
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McGuiness, P.J.
We concur: _______
Pollak, J.
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Jenkins, J.