Opinion
C088263
09-05-2019
In re E.S., a Person Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. E.S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVSQ18445)
Minor E.S. appeals from a juvenile court judgment at disposition providing that the minor would remain in parental custody in a plan of family maintenance and under the terms of a safety plan. (Welf. & Inst. Code, §§ 358, 360, 395.) He contends there is insufficient evidence to support the juvenile court's determination. We conclude the record contains substantial evidence to support the juvenile court's decision. Accordingly, we will affirm the dispositional judgment.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
In August 2018, the Yolo County Health and Human Services Agency (Agency) filed a section 300 petition on behalf of the newborn minor based on mother's alcohol abuse and father's failure or inability to protect the minor. Although minor's counsel objected, the minor remained placed in his parents' care under a safety plan pending the jurisdiction and disposition hearings. The safety plan provided that the maternal grandmother would be residing in the home through mid-September and father would be staying home from work using his available medical leave. The minor was not to be left unsupervised with the mother at any time and the maternal grandmother or one of two family friends were to supervise all contact between mother and minor. The minor was to sleep in the maternal grandmother's room at night. Mother or the minor were to be removed from the home if there was any sign mother consumed alcohol. Mother was scheduled to attend a drug and alcohol assessment.
According to the social worker's jurisdiction report, the Agency first received a referral after the minor was born with symptoms of fetal alcohol syndrome. The minor had inner utero growth retardation and labor had been induced. Mother has a history of alcohol abuse and drank alcohol throughout her pregnancy. In July 2018, after father took mother's identification and money in an attempt to prevent her from obtaining alcohol, mother drank a bottle of mouthwash. She tested positive for alcohol at several prenatal appointments and she was referred to a recovery program, but she attended only three sessions. During those sessions, she had multiple conversations with a specialist on the effects of alcoholism and its impact on a developing fetus. She participated in Alcoholics Anonymous following her June 2018 hospitalization but stopped participating after a month.
Mother has been struggling with alcoholism for over a decade, with periods of sobriety ranging from one to four years. Her most recent relapse occurred in the summer of 2017 at the time she started dating father. Prior to the filing of the petition, the Agency offered mother an inpatient treatment program where she could take the minor with her, but mother declined. Mother had previously attempted inpatient treatment on several occasions.
Father was aware that mother consumed alcohol during her pregnancy. He described her as a binge drinker rather than a daily drinker. On one occasion in March 2018, she became belligerent and threatened to harm herself after he found her drunk with an empty bottle of vodka. She was transported to the hospital by ambulance and placed on a psychiatric hold. In June 2018, she drank to the point of becoming delirious and she was hospitalized. Father did not want to inform family members about mother's alcohol problem, which complicated the formation of a safety plan.
A second safety plan was formulated in anticipation of the maternal grandmother no longer staying in the parents' home. The second safety plan provided that father would supervise mother's contact with the minor and when father was working or unavailable, mother would be supervised by family friends. Father would provide nighttime care for the minor or supervise mother when she provided nighttime care. The family friends would also provide check-ins to the family home every day. If mother was found to be under the influence, father or the family friends would leave the home with the minor and notify the social worker.
The juvenile court sustained the allegations of the petition as amended. The juvenile court permitted the minor to remain in the home under the second safety plan. Mother, who was enrolled in an outpatient treatment program, had purchased a breathalyzer and obtained the court's permission to breastfeed with the Agency's supervision via daily proof of a satisfactory breathalyzer test. Mother was required to submit to frequent, random alcohol testing.
The social worker's disposition report, filed October 22, 2018, recommended the minor remain in the parents' home with a family maintenance plan. The parents met through an online dating service, dated for six months, and had been married almost a year. Father had lived in the community for approximately 28 years, whereas mother moved to the community after the parents met online. Their home had adequate provisions. Father was employed by the University of California and mother desired to remain at home to care for the minor.
Mother was continuing to participate in her outpatient treatment program and had started attending local 12-step meetings. Mother's counsel represented that mother was testing clean three times a week and was meeting with her therapist. Father was participating in Al-Anon meetings.
Mother identified her primary alcohol trigger as boredom, but she felt she would not be bored while caring for the minor and hoped to meet other moms and make more friendships in the community. The parents were not opposed to Agency involvement and oversight but noted the lack of normalcy was difficult. They wanted mother to have alone time with the minor to facilitate bonding. The parents requested that mother have time to engage in social activities with the minor, such as going for walks, participating in mother/baby groups, and going out to lunch with friends.
Father had been using his family leave time but needed to return to work. The Agency said mother should not be the primary caregiver without continued monitoring, but it added that the parents' engagement with the Agency in creating and following the safety plan had allowed the minor to remain safely in the home. Accordingly, the Agency recommended continued placement of the minor in parents' home with a plan of family maintentence and the safety plan in place. The Agency agreed to modify the plan to permit mother to walk with the minor to and from two specific mother/baby groups, one at the university and another at a local market. Mother would also be permitted to go with the minor to have lunch with friends; father would drop them off and pick them up from the lunch location. Those activities were identified by mother as important to allow her to form connections and relationships with other mothers.
The disposition hearing took place on October 24, 2018. Minor's counsel objected to the minor remaining in parental custody. Mother's counsel asked that prior to the six-month review hearing, the Agency be permitted to expand the amount of mother/child alone time as mother progressed in services. The juvenile court ordered the minor to remain in parental custody in a plan of family maintenance and under the terms of the safety plan. The juvenile court added that the Agency would have the authority within the scope of the safety plan to create a structure for mother to attend programs with the baby.
DISCUSSION
The minor contends there is insufficient evidence to support the juvenile court's determination. We conclude there is substantial evidence to support the determination.
To remove a child from a parent's physical custody, the juvenile court must find clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) "The statute embodies 'an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent's homes where it [is] safe to do so.' [Citation.]" (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
In determining if there are reasonable means to protect the minor without removing the minor from the parents' care, the juvenile court is required to consider the option of removing an offending parent from the home and the option of allowing a non-offending parent to retain physical custody as long as that parent presents an acceptable plan demonstrating that he or she will be able to protect the child from future harm. (§ 361, subd. (c)(1); In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) The juvenile court may also consider other acceptable alternatives to removal, including returning a minor to parental custody under stringent conditions of supervision. (See, e.g., In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "[O]ur dependency system is premised on the notion that keeping children with their parents while proceedings are pending, whenever safely possible, serves not only to protect parents' rights but also children's and society's best interests." (In re Henry V. (2004) 119 Cal.App.4th 522, 530.)
We review the juvenile court's determination for substantial evidence. (In re Basilio T. (1992) 4 Cal.App.4th 155, 170.) Here, the record contains substantial evidence supporting the juvenile court's order.
There is evidence that mother was not a daily drinker. She was participating in outpatient treatment and 12-step meetings. Mother's counsel represented that mother was testing clean three times a week and was meeting with her therapist. Mother identified her primary alcohol trigger as boredom, and because she was new to the community, she wanted to participate in mother/baby groups and engage with friends. But father would be dropping her off and picking her up from visits with friends.
Father was participating in Al-Anon meetings and informed his family of mother's addiction so they could be available for additional support. The second safety plan provided that father would supervise mother's contact with the minor and when father was working or unavailable, mother would be supervised by family friends. Father would provide nighttime care for the minor or supervise mother when she provided nighttime care. The family friends would also provide check-ins to the family home every day. If mother was found to be under the influence, father or the family friends would leave the home with the minor and notify the social worker.
The juvenile court was in the best position to assess the evidence, and here, there is substantial evidence to support the juvenile court's determination.
DISPOSITION
The dispositional judgment of the juvenile court is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.