In re Z.C. CA4/1

• Court: California Court of Appeal
• Decided: January 25, 2016
• Docket: D068123
• Status: Unpublished

Opinion

Filed 1/25/16 In re Z.C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re Z.C., a Person Coming Under the Juvenile Court Law. D068123 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3888) Plaintiff and Respondent,

v.

SHANNAN I. et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, Daniel

Lamborn, Judge. Affirmed.

Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant

and Appellant, Shannan I.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant

and Appellant, James C. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

Shannan I. (Mother) and James C. (Father) challenge the juvenile court's

jurisdictional findings over their daughter, Z.C., under Welfare and Institutions Code

section 300, subdivision (b).1 Mother and Father contend the evidence was insufficient

to support the court's finding of dependency and/or a continued risk of harm to Z.C. at the

time of the jurisdictional hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The San Diego County Health and Human Services Agency (the Agency) detained

Z.C. in February 2015 when she was about two weeks old. The Agency's petition (as

amended) alleges that Z.C. suffered, or there was a substantial risk she would suffer,

serious physical harm or illness as a result of a parent's inability to adequately supervise

or protect her. (§ 300, subd. (b).) The petition further alleges that around Z.C.'s birth,

she tested positive for a dangerous narcotic/opiates, suffered drug withdrawal symptoms

requiring her to remain hospitalized for Methadone treatment, Mother admits to being

dependent on pain relievers and Vicodin, and Father knew Mother was using drugs

during pregnancy but denied Mother abuses prescription drugs.

A contested jurisdiction and disposition hearing was held in April 2015. The court

received the Agency's detention report, jurisdiction and disposition report, two addendum

1 All further statutory references are to the Welfare and Institutions Code. 2 reports, a social worker's curriculum vitae, stipulated testimony of two social workers,

and testimony and evidence presented by Mother. A summary of the evidence received

by the juvenile court follows.

Since 2003, Mother had suffered from chronic pain due to various medical

conditions. For many years, Mother had worked as a registered nurse in central

California, but around 2012, she became disabled and unable to work, apparently due to a

spinal condition, neuropathy, and/or back pain. Mother underwent surgery for her pain—

a spinal fusion. After the operation, Mother was prescribed Hydrocodone (a narcotic

pain medication) with Acetaminophen, offered under the brand name Vicodin

(hereinafter, referred to as Vicodin). Mother took Vicodin for about five days, and then

she was transferred to "Ultram," another pain medication (generic: Tramadol). She

continued using Tramadol for years.

In 2014, Mother discovered she was about 12 weeks pregnant. She was 45 years

old, and on a vacation with Father where they were gradually traveling down the coast of

California in a recreational vehicle. They were in northern California when she

discovered her pregnancy and where Mother had her first of about three prenatal care

appointments during her pregnancy. Mother acknowledged she was of "advanced age,"

and her pain management issues made her pregnancy riskier.

On September 30, 2014, Mother saw Dr. David Crownover at the Community

Memorial Health System in Ventura County. According to Dr. Crownover, Mother had

shown signs of withdrawal from her medications. Up until then, Mother had been taking

Xanax and Effexor for anxiety and Tramadol for pain. Dr. Crownover explained to

3 Mother the "significant" risks to the fetus from her use of Xanax and Tramadol during

pregnancy, such as heart valve birth defects. The doctor instructed Mother to wean off of

Tramadol and make an appointment with a psychiatrist "ASAP." Mother testified that

Dr. Crownover told her it was okay to take Vicodin as a means of weaning off of

Tramadol, but he denied making such a recommendation, and his notes from the visit do

not reflect any discussion about Vicodin. Mother testified she began taking small, daily

doses of Vicodin after her visit with Dr. Crownover, using the leftover pills prescribed to

her years earlier.

In November 2014, Mother saw a psychiatrist. The psychiatrist observed Mother's

emotions were extreme—"laughing and gigglish" one moment and then immediately

"crying and complain[ing] of having multiple psychosocial problems." The doctor

further noted Mother was feeling occasionally depressed, had been "under psychiatric

care for many years," had been on multiple and numerous medications for her mental

conditions, was presently on Effexor, and had poor concentration, insight, and judgment.

The doctor diagnosed her with "bipolar disorder, mixed," and he added Klonopin to her

prescribed medications.

Mother became very sick during the last trimester of her pregnancy, and could not

eat much. In January 2015, she visited the emergency room (ER) in Chula Vista.

Despite Dr. Crownover's specific warnings against taking Xanax, Mother's urine tested

positive for it (and other drugs) during her hospital visit. Mother expressed concern to an

ER doctor about experiencing withdrawal from Klonopin. When she was denied a refill

due to the ER doctor's discomfort in prescribing Klonopin to a woman in her third

4 trimester of pregnancy, Mother apparently said she would just go see her obstetrician or

her own father (who was a psychiatrist) for a refill.

In February 2015, Z.C. was born via cesarean section, weighed only four

pounds at full term, and was admitted to the neonatal intensive care unit due to low blood

sugar (hypoglycemia). At the hospital, Mother appeared disheveled and dirty, and was

concededly malnourished. She disclosed smoking cigarettes during her pregnancy, as

well as taking Klonopin and Effexor for anxiety, but did not disclose her Vicodin use to

attending medical personnel. Nurses were concerned that Mother did not want to see or

feed the baby. Toxicology tests based on urine for Mother and Z.C. were negative.

However, a meconium toxicology screen for Z.C. reported positive for opiates.

Z.C.'s doctor stated the test would only report positive (and at such a high level) if

Mother had either taken "a high amount of Vicodin" or heroin during pregnancy. When

questioned by the Agency's social worker, Mother answered, "Of course I'm addicted to

my pain medication, I've been taking them for [eight] years." Mother said she was

willing to go to a residential treatment program and agreed to see a substance abuse

counselor. At the jurisdictional hearing, Mother clarified that she did not believe she was

"addicted" to drugs, but merely had a "dependency" on pain pills, in the sense that she

would experience physical withdrawal symptoms without them. She further explained

that she had only agreed to attend a drug treatment program so that Z.C. could remain

with her, and not because she thought treatment was necessary.

After receiving Z.C.'s meconium drug screen results, doctors began administering

Methodone to treat the baby's withdrawal symptoms. The hospital attempted to take Z.C.

5 off treatment, then reinitiated it because "[Z.C.] was not doing well her first day off of

Methadone." She was "not sleeping, crying, vomiting, had a low temperature[,] and her

skin was [mottled] with blue and white spots." Z.C. would require Methadone treatment

for weeks, well after hospital discharge. In addition, Z.C. had an "abnormal

neuro[logical] exam," which her attending physicians reported was "likely related to

[Mother's] intake of Klonopin and Effexor" during pregnancy.

Father was aware of Mother's cigarette smoking and prescription drug use

throughout her pregnancy, including her use of leftover Vicodin. Father had assisted in

administering Mother's prescription drugs, which he believed to be appropriate and

condoned by doctors. When informed that a drug test had confirmed Mother's use of

Xanax during her third trimester (against a doctor's instructions), Father stated, "the test

can't be true." One of Mother's relatives reported that Mother had seemed more distant in

the previous three or four years. Another of Mother's relatives believed that Mother may

not have the capability to realize the extent of her own addiction, and Mother had rejected

nonaddictive, alternative pain management methods in the past.

Throughout the Agency's involvement with Z.C., Father and Mother were

cooperative. They both voluntarily submitted and tested negative to several drug tests

requested by the Agency. After Z.C.'s discharge from the hospital, Mother was having

positive visits with Z.C., and Father agreed on a safety plan with the Agency. Mother

developed a list of ways to manage her chronic pain without the use of narcotic

medications and completed several online courses on child care and substance abuse, but

did not participate in a drug addiction treatment program.

6 The juvenile court made true findings on the petition's allegations by a

preponderance of the evidence. Z.C. was placed in the custody of her parents. Mother

and Father filed timely appeals, and challenge only the court's jurisdictional finding.

DISCUSSION

The substantial evidence test is the appropriate standard of review for the juvenile

court's jurisdictional findings. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) We

uphold the juvenile court's findings if after reviewing the entire record and resolving all

conflicts in favor of the respondent and drawing all reasonable inferences in support of

the judgment, we determine there is substantial evidence to support the findings. (In re

Monique T. (1992) 2 Cal.App.4th 1372, 1378 (Monique T.).) Substantial evidence is

evidence that is reasonable, credible, and of solid value. (In re Savannah M. (2005)

131 Cal.App.4th 1387, 1393.)

A juvenile court may determine a child is subject to the court's jurisdiction if it

finds by a preponderance of the evidence that "[t]he child has suffered, or there is a

substantial risk that the child will suffer, serious physical 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 the willful or negligent failure of the child's parent or guardian to adequately

supervise or protect the child from the conduct of the custodian with whom the child has

been left, . . . 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." (§ 300, subd. (b)(1).) A child shall continue to be a dependent child

7 pursuant to section 300, subdivision (b)(1), "only so long as is necessary to protect the

child from risk of suffering serious physical harm or illness." (Ibid.)

Dependency jurisdiction must be based on conditions which exist at the time of

the jurisdictional hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Previous

acts of neglect can be an indicator of future risk of harm. (In re David M. (2005)

134 Cal.App.4th 822, 830.) The "prenatal use of dangerous drugs by a mother is

probative of future child neglect." (In re Troy D. (1989) 215 Cal.App.3d 889, 897, 899-

900 [discussing how a mother's unreasonable acts of ingesting dangerous drugs while

pregnant creates a legal presumption of jurisdiction over drug addicted newborn baby];

Monique T., supra, 2 Cal.App.4th at p. 1379 [same].)

Substantial evidence supports the court's true finding of jurisdiction. Z.C. was

born quite small, drug dependent, and required ongoing medical treatment for her

withdrawal symptoms, which doctors attributed directly to Mother's prenatal drug use.

Contrary to Mother's and Father's assertion, Dr. Crownover positively denied

recommending Mother use Vicodin in lieu of Tramadol during her pregnancy, which is

confirmed by the lack of any discussion regarding Vicodin in his patient notes. Mother

testified she had a "physical dependency" on pain medication. At one point, she had

admitted to being "addicted" to pain pills, having taken them for eight years preceding

Z.C.'s birth. She had taken Xanax in her third trimester against her doctor's

recommendations. Sufficient evidence supports that Mother was underestimating or

minimizing her dependency on pain medication. Further, she failed to disclose her daily

use of Vicodin to medical personnel at the time of Z.C.'s birth despite being a registered

8 nurse; instead, Mother waited for Z.C.'s condition to be discovered through a meconium

toxicology screen. She was of advanced age and had not consistently sought prenatal

care, which may have minimized or mitigated the harm to Z.C. Mother's actions caused

substantial physical harm or illness to Z.C.

Substantial evidence also supports a continuing risk of harm to Z.C. at the time of

the jurisdictional hearing. Mother and Father cite cases standing for the proposition that

drug use alone, or an isolated instance of reckless drug use, does not establish a

substantial ongoing risk of harm to a child. (E.g., In re Destiny S. (2012) 210

Cal.App.4th 999, 1003 [something " 'more' " than a parent's use of marijuana is required];

In re J.N. (2010) 181 Cal.App.4th 1010 [single episode of drunk driving].) The legal

proposition is not controversial, but this case is distinguishable. The record supports, at

minimum, that Mother had been physically dependent on pain pills for eight years, and

she could not end the dependency/addiction during her pregnancy even knowing of

significant risks to her unborn child's health. She then failed to disclose her dangerous

drug use to the hospital, causing Z.C. unnecessary pain. Mother testified about her

significant nerve and spinal conditions, her struggles to manage severe "chronic" pain for

over a decade, becoming disabled, and being unable to work. Mother was also diagnosed

bipolar; suffered from mood swings, anxiety, and depression; and Z.C. was a very young,

vulnerable infant requiring round-the-clock care. Although Mother had begun addressing

her protective issues, the court could reasonably conclude that a current and ongoing risk

of harm to Z.C. existed at the time of the jurisdictional hearing.

9 Furthermore, the record supports that Father would not adequately protect Z.C.

without the court's oversight; he was aware of Mother's drug dependency and enabled

Mother's behavior without sufficient concern for the detrimental effects on his baby's

health. Specifically, Father was aware that Mother used Vicodin on a daily basis during

her third trimester of pregnancy, even though the medication had not been presently

prescribed. He also knew she was not seeking consistent prenatal care despite her

chronic pain management and mental health issues, and refused to believe she had used

Xanax against a doctor's recommendation. Consequently, the evidence established Z.C.

had suffered and was at substantial risk of suffering serious physical harm or illness due

to a parent's inability to adequately supervise or protect her. (See § 300, subd. (b).)

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.