Filed 7/18/14 In re A.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E059396
Plaintiff and Respondent, (Super.Ct.No. SWJ1300332)
v. OPINION
E.J.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M.
Monterosso, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for
Pamela J. Walls, County Counsel, and Anna M. Marchand, Deputy County
Counsel, for Plaintiff and Respondent.
1 E.J. (mother) contends there was insufficient evidence to support the
juvenile court’s jurisdictional findings under Welfare and Institutions Code1
section 300, subdivisions (b) and (g), regarding her children, A.M. and J.M. (the
children). Mother argues those findings should be reversed, and the dispositional
order should accordingly be reversed, as well. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2013, the Riverside County Department of Public Social
Services (the department) filed a section 300 petition on behalf of the children,
alleging that they came within subdivisions (b) (failure to protect) and (g) (no
provision for support). A.M. was four years old at the time, and J.M. was two
years old. The petition alleged, under section 300, subdivision (b), that mother
had extensive substance abuse issues, including marijuana and alcohol abuse,
which limited her ability to provide her children with adequate care and
supervision; and she neglected their safety and well-being and created a
detrimental home environment. The other allegations under subdivision (b) and
subdivision (g) concerned the children’s father, who is not a party to this appeal.2
In a detention report, the social worker reported that on February 25, 2013,
a referral was received alleging general neglect. It was reported that each time
1All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
2 Since the children’s father is not a party to this appeal, we will not discuss any allegations or findings regarding him. 2 mother was seen, she was wearing sunglasses and “seem[ed] drugged up.” She
did not know the date, slurred her words, looked anorexic, and said she had no
energy. She was only 24 years old. Mother said her children were too heavy for
her to carry, although the children appeared to be underweight and short for their
ages.
The social worker reported that she made an unannounced visit to mother’s
home on March 28, 2013. She was invited in by mother’s friend, who was
babysitting the children. Mother’s friend said mother had been in the hospital for
about one week with a swollen face, possibly caused by her liver problems.
Mother’s friend and parents were taking care of the children while she was in the
hospital.
The social worker made a subsequent unannounced home visit, but no one
answered the door, even though there were cars in the driveway. The social
worker left her business card on the door with a request to contact her. A few days
later, mother’s sister, Irene, left the social worker a voicemail with her and
mother’s phone numbers. The social worker called back and left voicemails.
Over a week later, the social worker called mother again and spoke to her. When
asked if she had received the business cards left on the front door, mother said she
thought she did. When asked why she had not contacted the social worker, she
responded that she “[had not] gotten to them.” The social worker asked mother
why she was hospitalized, and she said, “I fell I guess.” Mother denied that her
3 face was swollen and said she did not know if she was hospitalized due to her
alcohol usage. Mother also said the last time she drank alcohol was approximately
one year ago. Mother said that her parents had obtained guardianship of the
children.
A few days later, the social worker had a brief telephone conversation with
mother’s sister, Irene. Irene explained that mother and the children are brought to
her home, and she or an adult supervises and assists mother with the children. The
children were never left alone in mother’s care.
The social worker further reported that mother completed a urine drug test
on April 30, 2013, and tested negative for all substances. Regarding her medical
conditions, mother’s diagnoses were as follows: “alcoholic cirrhosis of liver,
gallstones, abnormal accumulation of fluid in the abdominal, liver encephalopathy,
malmution [sic], and acute non-traumatic [k]idney injury.” Mother reported that
she began using alcohol when she was 13 years old, and started drinking heavily
after her brother passed away from alcoholism three and one-half years ago. She
drank three cups of vodka everyday for two to three years. Mother’s parents and
sister stated they did not believe it had been a year since mother drank alcohol.
Her father said it may have only been seven months. Mother’s father was a
recovering alcoholic. In addition, mother’s parents said they had not applied for
legal guardianship of the children.
4 The social worker further reported that on May 16, 2013, she visited mother
at home. There was a babysitter there to watch the children and assist mother
around the house. The social worker observed that both children went to the
babysitter, and that J.M. came over to the social worker for her to hold him, twice.
When she attempted to redirect J.M. to mother, he stayed with her. When mother
verbally called him over, he did not respond to her. The social worker observed
that mother did not initiate any contact with the children verbally or physically.
The social worker had observed the same lack of interaction between mother and
the children at a previous visit.
At the detention hearing on May 21, 2013, the court found a prima facie
showing had been made that the children came within section 300, subdivisions
(b) and (g). The court allowed the children to remain in mother’s custody upon
the conditions that she reside in her parents’ home and that there be no alcohol in
the home.
Jurisdiction/Disposition Report
The social worker filed a jurisdiction/disposition report on July 2, 2013,
recommending that the court find the allegations in the section 300 petition true as
alleged, and that mother be provided with family maintenance services. The social
worker stated there was sufficient evidence to support the allegation in section
300, subdivision (b), that mother had extensive substance abuse issues, which
limited her ability to provide the children with adequate care and supervision. The
5 social worker reported that in July 2012, mother was admitted to the hospital for
excessive bleeding due to liver failure/liver disease. She was drug tested at that
time and tested positive for methamphetamine and marijuana. Her mother made a
statement that mother tended to drink a lot. Despite mother’s substance abuse, her
alcohol-related medical conditions, and her family’s history of abusing alcohol,
she failed to ever enroll in a program to address alcohol addiction. The social
worker opined that mother was at a high risk of relapse and/or continued use.
The social worker interviewed mother’s father, who stated that his family
continued to support mother and the children. He reported that mother continued
to reside in his home, and that he hired a babysitter to be present in the home to
supervise mother and the children.
As to the children, the social worker reported that they appeared to be
developing at an age-appropriate level, and they appeared to be happy.
The social worker filed an addendum report on August 12, 2013. She
reported that the court ordered the department to assess the maternal grandparents
for legal guardianship of the children. When the social worker asked mother why
her parents did not previously follow through with filing for legal guardianship,
mother said it was her fault because she “thought this would just all go away.”
The social worker told mother she would benefit from a substance abuse treatment
program to address her addiction and educate her on relapse prevention. Mother
replied that she was attending Alcoholics Anonymous (AA) meetings once a
6 week. When asked where she attended, she said she went to different locations,
and that she also participated in AA meetings at church. The social worker
stressed that mother was in need of intense substance abuse treatment, and stated
that, with continued supervision, the department could ensure the children’s safety
while mother participated in services. Thus, the social worker continued to
recommend that mother be provided with family maintenance services.
The court held a contested jurisdiction hearing on August 12, 2013. The
department submitted on the petition and the reports filed. Mother’s counsel
stated that it submitted documentation to the court and also had some stipulated
testimony on behalf of mother. He stated that if she were called to testify, mother
would say she was currently attending AA meetings approximately once a week,
and that she had attended AA four times so far. She would also testify that she
had a patient-compliance agreement with regard to her medical issues, and that
part of the agreement required her to participate in AA meetings. Furthermore,
mother would testify that she had not drunk alcohol in approximately one year,
and she was currently able to care for her children. All counsel stipulated that was
what mother would testify to, and they waived cross-examination.
Mother’s counsel proceeded to argue that although mother did not deny she
had a history of substance abuse, there was no indication she had been abusing
drugs or alcohol recently. He also claimed her medical issues were completely
separate from any current substance abuse. He further argued that there were no
7 concerns about her ability to take care of the children, since she and her family
worked as a team.
The children’s counsel asked the court to find the allegations in the petition
true and order family maintenance. Because of mother’s history and medical
conditions, she felt it would be better for the court to be involved to ensure that
mother was receiving the services needed.
County counsel argued that mother’s family was taking care of the children
because mother was weakened by her liver failure. She asserted that it was the
alcohol that ruined mother’s liver. Counsel pointed out that it was only 12 months
ago that mother tested positive for methamphetamine and marijuana, and that
many family members said she drank a lot. Counsel pointed out that there was a
deep-rooted alcohol addiction in mother’s family, but mother lacked insight and
thought “this was all going to go away.” Although the social worker had been
asking mother for documentation of the AA meetings she attended, mother had not
produced any until that very day, and that documentation showed that she only
attended two meetings in the last 30 days.
After hearing the arguments and reading the reports, the court noted
mother’s serious health issue involving cirrhosis of the liver, and its particular
concern with the evidence of some of mother’s conduct, such as, what it described
as her “suspicious fall” that led to this investigation. The court found by a
preponderance of the evidence that the allegations in the petition were true. The
8 court noted that it only had proof of attendance at two AA meetings, and that
someone in mother’s position should have been going more than once a week.
The court set a review hearing date and addressed mother directly. The court told
mother that she needed to “get on the right road” so that it could see her being
diligent about staying alcohol free. The court added that if she could show the
court there was no suspicion that she was using alcohol or any illegal substance for
a period of time before the review hearing, it would be happy to terminate the case
prior to that date. The court wanted to see mother at least show a sustained
commitment to AA. It then wished her luck in getting her liver transplant. The
court ordered a plan of family maintenance services, which included an in-home
parenting program, regular attendance at AA, and completion of an alcohol
rehabilitation program, if recommended after assessment.
ANALYSIS
I. The Court Properly Took Jurisdiction of the Children
In sustaining the jurisdictional finding alleged, the juvenile court effectively
determined that the children were subject to its jurisdiction because there was a
substantial risk they would suffer “serious physical harm or illness,” resulting
from mother’s inability to provide them with regular care due to her substance
abuse. (§ 300, subd. (b).) Mother argues there was insufficient evidence to
support the juvenile court’s jurisdictional finding under section 300,
subdivision (b). She contends that there was no evidence she was currently using
9 alcohol or that her history of substance abuse placed her children at risk. She
asserts that, to the contrary, the evidence showed that the children were healthy,
happy, developing appropriately, and well cared for. We conclude that the court
properly took jurisdiction of the children.
A. The Evidence Was Sufficient
Section 300, subdivision (b), provides that the juvenile court may adjudge a
child a dependent of the juvenile court when the child has suffered, or there is a
substantial risk that the child will suffer, serious harm or illness, “as a result of the
failure or inability of his or her parent or guardian to adequately supervise or
protect the child, or . . . by the inability of the parent or guardian to provide regular
care for the child due to the parent’s or guardian’s mental illness, developmental
disability, or substance abuse.” “The standard of proof required in a section 300
dependency hearing is the preponderance of evidence. [Citation.]” (In re
Basilio T. (1992) 4 Cal.App.4th 155, 168 (Basilio T.).)
“The issue of sufficiency of the evidence in dependency cases is governed
by the same rules that apply to all appeals. If, on the entire record, there is
substantial evidence to support the findings of the juvenile court, we uphold those
findings. [Citation.] We do not pass on the credibility of witnesses, attempt to
resolve conflicts in the evidence or evaluate the weight of the evidence. Rather,
we draw all reasonable inferences in support of the findings, view the record most
favorably to the juvenile court’s order, and affirm the order even if other evidence
10 supports a contrary conclusion. [Citations.] The appellant has the burden of
showing the finding or order is not supported by substantial evidence. [Citation.]”
(In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
The petition here alleged that “mother [had] extensive substance abuse
issues, including but not limited to marijuana and alcohol abuse, thereby limiting
her ability to provide her children with adequate care and supervision, neglecting
their safety and well[-]being, and creating a detrimental home environment.”
There was substantial evidence to support the petition. The evidence showed that
on February 25, 2013, the department received a referral because each time mother
was seen, she was wearing sunglasses and appeared to be on drugs, she did not
know the date, she slurred her words, and she looked anorexic. Mother herself
said she had no energy and the children were too heavy for her to carry.
Furthermore, mother was recently hospitalized for one week, but she was not sure
why. Her discharge documents from the hospital showed that she had numerous
and serious medical conditions, including alcoholic liver cirrhosis, gallstones,
abnormal accumulation of fluid in the abdomen, liver encephalopathy, and acute
non-traumatic kidney injury. She was taking several medications, and was seeing
a liver specialist. Mother was on a waiting list for a liver transplant.
The evidence further showed that mother had a history of substance abuse.
She began using alcohol when she was only 13 years old, and she said her
alcoholism was “really bad” approximately three and one-half years ago. She
11 admitted that she drank three cups of vodka everyday for two or three years.
Although mother said she had not had alcohol in one year, her family did not
believe it had been that long. In 2011, mother was arrested for driving under the
influence of alcohol. In 2012, a referral was received alleging general neglect. It
alleged that mother was abusing alcohol and drugs and was not tending to the
children’s needs. At that time, she was admitted to the hospital because of
excessive bleeding due to liver failure/liver disease, and she tested positive for
methamphetamine and marijuana. Mother also had a family history of alcohol
addiction. Her father was a recovering alcoholic, and her brother died of
alcoholism.
In addition, the evidence showed that mother was not serving in the
capacity of a parent to her children. While her testimony stated that she could care
for her children, the evidence demonstrated that she completely relied on others to
take care of them. The children were never left alone in mother’s care. When
mother and the children would go to her sister’s house, her sister or another adult
would supervise and assist her with the children. When mother and the children
were at the maternal grandparents’ home, the maternal grandmother was the
primary caregiver. When the grandparents were at work, they arranged for a
babysitter to be at home with mother. At one home visit, the social worker
observed that both children would go to the babysitter, rather than mother. When
the social worker asked mother to show her how she conducted a diaper change,
12 she observed that mother had great difficulty pulling J.M. up to the couch. The
social worker also observed that mother did not initiate any contact with the
children verbally or physically.
In sum, mother admittedly had a serious problem with alcohol that she had
not fully addressed. The current dependency was initiated because she was
recently seen numerous times appearing to be on drugs and/or alcohol. Her
alcoholism has clearly affected her health (e.g., alcoholic cirrhosis of the liver) to
the point where she has been hospitalized for liver failure, and she needs a liver
transplant. Despite her serious alcohol-related medical conditions and issues,
mother has never sought any type of substance abuse treatment on her own. Her
family has indicated that the only way she will seek treatment is if she is forced to
do so. Moreover, mother was limited in her ability to care for her children, as
shown by the fact that she always had to have another adult present to supervise
her and the children. Viewing the evidence in the light most favorable to the
juvenile court’s order, as we must, we conclude that there was substantial evidence
to support the court’s jurisdiction over the children. (Basilio T., supra, 4
Cal.App.4th at p. 168.)
Mother claims that the issues raised in this case were based on speculative
concerns. She argues there was no evidence that her past alcohol consumption had
caused the children to suffer serious physical harm or that it created a risk of harm
in the future. In support of her argument she cites such cases as In re David M.
13 (2005) 134 Cal.App.4th 822 (David M.) and In re Destiny S. (2012) 210
Cal.App.4th 999 (Destiny S.), but these cases are distinguishable. In David M., the
court reversed the trial court’s jurisdictional findings under section 300,
subdivision (b), concluding that the record lacked any evidence that the mother’s
substance abuse problem was tied to any actual harm or a risk of substantial harm
to the children.3 (David M., at p. 829.) The David M. court noted the appellate
record only showed that mother had a substance abuse problem with marijuana in
a “limited respect.” (Id. at p. 830.) The evidence showed that the mother used
marijuana “off and on” over 10 years before the children were detained. (Id. at
p. 826.) She tested positive for marijuana metabolites when she was pregnant with
her youngest child, A. (Ibid.) The social worker “never spoke to anyone who had
seen mother use drugs during her pregnancy with A., or had seen her in possession
of drugs or drug paraphernalia.” (Id. at p. 827.) The appellate court
acknowledged the mother’s use of marijuana on at least one occasion while
pregnant with A., but noted that “A. tested negative for any drugs at birth, was
healthy at birth, and showed no signs of withdrawal from any controlled
substances.” (Id. at p. 829.) Although the court accepted as true that the mother
continued to suffer from a substance abuse problem, it concluded there was no
3 It was also alleged that the mother in David M. had mental health issues. However, since mother here only cites this case with regard to the mother’s problem with substance abuse, we will also only discuss this aspect of the court’s jurisdictional findings.
14 evidence presented that this problem caused, or created a substantial risk of
causing, serious harm to the children. (Id. at p. 830.)
Unlike David M., supra, 134 Cal.App.4th 822, the evidence in the instant
case showed that mother had an extensive problem with alcohol. (See ante.)
Mother and her family members all reported that she abused alcohol.
Furthermore, the evidence showed that her problems with alcohol seriously
affected her health and limited her ability to care for her children. (See ante.)
Mother points out that the evidence showed her children were well cared for,
healthy, and happy. However, the evidence also demonstrated that the children
were only doing well because of the support from mother’s family. While the
mother in David M. took good care of her children by herself, it was reasonable to
infer from the evidence in the instant case that mother was not able to take care of
her children by herself. Mother’s family never left the children alone in her care.
Mother also relies upon Destiny S., supra, 210 Cal.App.4th 999. In that
case, the evidence showed that the mother was currently using methamphetamine
and marijuana. (Id. at p. 1001.) The juvenile court took jurisdiction over the
mother’s child, a preteen, finding that “she was at risk of serious physical harm
because she had often been late to class in the previous school year and her mother
was in denial as to her drug habit.” (Id. at p. 1002.) The appellate court reversed
the jurisdictional finding because the record lacked any evidence that the child was
at risk of suffering physical harm as the result of the mother’s use of illegal drugs.
15 (Id. at p. 1003.) The court noted that tardiness to school in the past could not
support a finding that there was a present “substantial risk” of suffering serious
physical harm. (Ibid.)
Unlike Destiny S., supra, 210 Cal.App.4th 999, the children here were at
much more risk than just being tardy to school. Mother’s substance abuse and
medical condition apparently impaired her ability to function as a mother. She had
no energy, could not carry her children, and had difficulty trying to change J.M.’s
diaper. She also had no apparent bond with them. Mother asserts that there was
“no evidence that [she] was currently using drugs or alcohol which further
demonstrates the lack of causation in this case.” However, the evidence indicated
that she was using drugs at the time the dependency was initiated (e.g., she slurred
her words, did not know the date, had no energy, etc.). We further note that
mother admitted she started drinking alcohol at age 13 and that she drank heavily,
especially when her brother died. While evidence of past conduct is not sufficient
by itself to support a finding that circumstances at the time of the hearing subject
the children to a risk of harm, it is probative of current conditions. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 824.) Moreover, there was “‘some reason to
believe the acts may continue in the future.’ [Citations.]” (Ibid.) Mother had a
nonchalant attitude about her problem, as shown by her failure to ever participate
in a substance abuse program and her minimal attendance at AA meetings.
16 It was reasonable for the social worker to infer from the evidence that
mother was at a high risk of relapse and/or continued use.
Thus, contrary to mother’s claim, the court’s concerns were not based on
speculation. Given the nature of mother’s medical condition, and her apparent
lack of insight into the seriousness of her substance abuse problem, it was
reasonable to infer the children were at substantial risk of serious harm to support
the court’s order that the children be declared dependents of the court. (See
Basilio T., supra, 4 Cal.App.4th at p. 169.)
II. The Juvenile Court’s Disposition Order for Family Maintenance Was
Proper
Mother simply claims that, since there was no evidence to support the
court’s jurisdiction over the children, the court’s dispositional order should
accordingly be vacated. In light of our conclusion that there was sufficient
evidence to support the court’s jurisdiction, we reject mother’s claim.
We further note that “[t]he court has broad discretion to determine what
would best serve and protect the child’s interest and to fashion a dispositional
order in accord with this discretion. [Citations.] We cannot reverse the court’s
determination in this regard absent a clear abuse of discretion. [Citations.]” (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The court here ordered that
the children stay in mother’s custody under a plan of family maintenance. Her
case plan included an in-home parenting program, regular attendance at AA, and
17 completion of an alcohol rehabilitation program if recommended after she is
assessed. This case plan is geared toward helping mother to gain and/or maintain
sobriety and to help improve her parenting skills. We see no abuse of discretion.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
RICHLI J.
MILLER J.