Filed 10/17/17 In re D.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed.

Michele Cella, under appointment by the Court of Appeal, for Defendant and Appellant A.C.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant J.V.

Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Appellant.

Nicole Williams, under appointment by the Court of Appeal, for the Minor.

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A.C. (Father), J.V. (Mother), and Orange County Social Services Agency (SSA) appeal from the juvenile court’s order pursuant to Welfare and Institutions Code section 364, subdivision (c),[1] continuing jurisdiction of the minor, D.C. Father, Mother, and SSA argue insufficient evidence supports the court’s order. We disagree and affirm the order.

FACTS

Detention

In its detention report dated August 23, 2016, SSA stated Mother gave birth to D.C. and he was taken into protective custody the following day because Mother tested positive for amphetamines and methamphetamines. D.C. was placed with Father at the family home, a detached room they rented from Mother’s grandmother,[2] with home supportive services while Mother had to move out. Mother admitted to chronic methamphetamine use the previous two years. In 2010, she was charged with possession of a controlled substance but the case was dismissed. Mother stated that during her pregnancy she stopped using twice but relapsed twice because of stress and she told Father when she relapsed. Mother had not thought about a drug treatment program because she previously stopped by telling Father she relapsed and going to church but relapsed when she was under stress. At the hospital, Mother said she would consider a drug treatment program, but she was “unsure if she will follow through with it because she will be too busy taking care of her baby.” Mother admitted she used methamphetamine four or five days before giving birth to D.C. D.C.’s urine screen tested negative for drugs but his meconium sample was pending. He was suffering from apparent withdrawal symptoms.

Father knew Mother previously abused drugs but denied knowing she used drugs during her pregnancy. Father was committed to helping Mother with her sobriety. Father previously abused alcohol and suffered a driving while intoxicated conviction but stopped abusing alcohol one or two years ago.

SSA filed a petition alleging D.C. was a child as described in section 300, subdivision (b), failure to protect. The petition stated the following: After giving birth to D.C., Mother tested positive for amphetamines and methamphetamines. She admitted to using methamphetamines during her pregnancy, including about five days before D.C. was born. Mother reported attending three or four prenatal appointments, but the record shows she attended two. The petition said D.C.’s test results were pending but he suffered from apparent withdrawal symptoms.

The petition added the following: Mother had an unresolved substance abuse problem. She began using methamphetamine two years earlier and used daily. Mother stopped using for three months when she learned she was pregnant. She used for two days, stopped for two months, and relapsed, using every other day until she felt contractions, five days before D.C.’s birth. Mother never participated in a substance abuse program. Mother stated Father was aware she used methamphetamine during her pregnancy but he denied this. Father previously abused alcohol and suffered a conviction for driving under the influence. Father stopped abusing alcohol one or two years ago.

At the detention hearing, the juvenile court concluded a prima facie case had been made and ordered D.C. detained from Mother only (§§ 319, 300). The court ordered Mother was to have a minimum of eight hours of supervised visits per week. The court set a jurisdictional hearing.

Jurisdiction/Disposition

SSA filed a jurisdiction/disposition report on September 23, 2016, followed by two addendum reports. In the jurisdiction/disposition report, social worker Melissa Alamilla recommended the juvenile court sustain the dependency petition and order family enhancement services for Mother and family maintenance services for Father. D.C. was placed with Father.

Alamilla reported the reason D.C. was taken into protective custody when he was born was because Mother tested positive for amphetamines and methamphetamines and D.C.’s meconium sample tested positive for amphetamines. D.C. suffered from apparent withdrawals. Mother admitted chronic methamphetamine use for the previous two years, including one week before giving birth. She received minimal prenatal care. Father knew Mother had a history of abusing drugs but claimed he did not know she used drugs while she was pregnant.

Alamilla interviewed Mother on August 29, 2016. Mother asserted she attended four prenatal appointments. She admitted the petition’s allegations concerning her drug use. She disputed Father knew she was using drugs during her pregnancy because she used at night when he was at work. She stated Father “‘stopped drinking alcohol’” since they met two years ago and he does not “‘abuse[] alcohol.’” Mother told Alamilla the following: “‘I want to do everything to get my kid back. I am trying to do well and do good. I take responsibility for my own actions. I do not blame anyone but myself.’”

Alamilla reported Mother self-enrolled in a 24-week program at La Familia Drug Abuse Services (La Familia) and began services on August 22, 2016. Mother had three negative drug tests. Mother was required to call Avertest drug testing (Avertest). During September 2016, she had a 69 percent compliance rate, which meant she failed to call on four days to determine if she needed to test. On the two occasions she called and was required to test, the results were negative. Mother attended six Narcotics Anonymous (NA) meetings in September 2016. Mother was scheduled to begin parenting education and mentoring services.

Alamilla stated she met with D.C.’s maternal grandmother (Grandmother) who will supervise Mother’s visits. Grandmother told Alamilla that Mother met with D.C. every day for two weeks. Mother bathed, fed, and changed him. Alamilla met with D.C. and Mother. Mother was excited to see him and held him, fed him, and talked to him.

Alamilla interviewed Father on September 12, 2016. Father knew Mother previously abused drugs but denied he knew she used during her pregnancy. He became suspicious when Mother refused to drug test in the hospital. He believed Mother attended two prenatal appointments early in her pregnancy and stopped going because she spent most of her pregnancy in Mexico. Father told Alamilla “he does not abuse alcohol any longer, but occasionally has a beer.” Father admitted he suffered a conviction for driving under the influence. Father hoped Mother would complete her classes so they could resume their life together.

In the first addendum report two weeks later, Alamilla reported Mother had attended five group sessions at La Familia and had three negative drug tests. Mother attended eight NA meetings. Mother called Avertest every day as required and had a total of four negative drug tests. Mother self-enrolled in individual counseling at Kaiser Permanente and was progressing through parent education and mentoring programs. Mother continued to visit D.C. every day. Father failed to attend his in-home services appointment.

In the second addendum report two weeks later, Alamilla reported Mother continued with services at La Familia and parenting education and mentor classes. Mother was enrolled in two individual therapy programs and will choose one. Mother attended 13 NA meetings. Mother called Avertest every day as required and had a total of six negative drug tests. Mother visited every day and fed, changed, and bathed D.C.; she was affectionate with him. Father was scheduled to begin in-home services, parenting education, and Alcoholic Anonymous.

The court held a combined jurisdiction/disposition hearing on October 24, 2016. Mother and Father submitted to the petition. The court found the allegations true, sustained the petition, and declared D.C. a dependent child. The court ordered D.C. removed from Mother’s custody and placed with Father. The court ordered enhancement services for Mother and family maintenance services for Father. The court set a

six-month review hearing for April 4, 2017.

Six-Month Review

SSA filed the six-month status review report on March 24, 2017, followed by an addendum report. In the six-month status review report, social worker Elvia Villa recommended the matter be continued to May 5, 2017, to coincide with Mother’s 60-day home trial visit.

Villa reported Mother moved in with Father and D.C. on March 6, 2017, for a 60-day trial visit; Mother and Father were married four months earlier. Father and Mother provided D.C. a suitable home and adequate food, clothes, supervision, and care. Because Father worked nights, Mother cared for D.C. Father completed his parent education course and had attended 10 AA meetings with Mother. Mother completed individual therapy, parent education, and mentoring programs, and La Familia substance abuse treatment program. Mother had 100 percent call-in compliance with Avertest, and she tested negative 33 times from September 2016 to March 2017. She had not tested positive since she started the program. During the same time period, Mother attended

34 AA meetings. Villa reported both Mother and Father made “substantial” progress.

Villa reported that in November 2016 Mother’s visits were increased from eight hours of supervised visits per day to 10 hours of supervised visits per day. Mother was appropriate and attentive, feeding, bathing, and changing D.C. In January 2017, Villa approved Mother for unsupervised visits of 10 hours per day. Villa stated she visited the home during the 60-day trial. Mother took two weeks off from work, and Father reported she “ha[d] completely taken over caring for [D.C.] and ha[d] spent a lot of time bonding and caring for [him].”

In the addendum report filed May 2, 2017, SSA recommended terminating dependency proceedings. Villa reported Father completed his case plan and continued attending weekly NA meetings. Mother also completed her case plan. Mother had

100 percent call-in compliance with Avertest and she tested negative 10 times from March 2017 to April 2017 without any positive tests. Mother attended weekly NA meetings. Villa stated there were no safety concerns and concluded, “The parents have shown that they take their parenting roles and responsibilities very seriously as evidenced by making sure [D.C.’s] physical, medical, and developmental needs are being met.”

At the section 364 hearing, the court stated he had read and considered the status review and addendum reports and admitted them into evidence. SSA “strongly” supported closing the case, as did Mother’s and Father’s counsel.

D.C.’s counsel stated Mother had done a great job and should be congratulated but asserted there was a difference between completing a program and committing to sobriety. Counsel noted “studies” establish recovery takes about

15 months and Mother had about eight months. Counsel said closing the case would be premature and conditions would likely reoccur.

The court commended Mother for her progress on her case plan and for putting D.C.’s needs first. The court commended Father for caring for D.C. while Mother sought treatment. The court explained the “reality” was Mother just completed a 60-day trial visit and the family was adjusting and noted relapse is a part of recovery. The court ruled conditions that created the dependency proceedings were likely to exist if supervision was withdrawn. The court placed D.C. with Mother and Father and ordered family maintenance services. The court ordered a six-month review hearing for November 2, 2017. [3]

DISCUSSION

A.C., J.V., and SSA contend there was no evidence to support the court’s order. We disagree.

“After the juvenile court finds a child is a person described in section 300, it must ‘hear evidence on the question of the proper disposition to be made of the child.’ [Citation.] In appropriate circumstances, the court may declare the child a dependent, and ‘without removing the child from his or her home, order family maintenance services to ameliorate the conditions that made the child subject to the court's jurisdiction.’ [Citation.] Once a child has been declared a dependent, the juvenile court must review the status of the child every six months. [Citations.] . . . Section 364 provides the standard when ‘a child under the supervision of the juvenile court . . . is not removed from the physical custody of his or her parent or guardian.’ [Citations.]” (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154-1155, fns. omitted (Aurora P.).) [¶] At the section 364 review hearing, the juvenile court determines whether dependency should be terminated or whether further supervision is necessary based on the totality of the circumstances. (Aurora P., supra, 241 Cal.App.4th at p. 1155.)

“Section 364[, subdivision] (c)[,] establishes a ‘statutory presumption in favor of terminating jurisdiction and returning the children to the parents’ care without court supervision.’ [Citation.] Under the statute, the juvenile court ‘shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn.’ [Citation.] While the statute speaks in terms of the social worker or department establishing the basis for the continuation of dependency jurisdiction, the first sentence of section 364[, subdivision] (c)[,] makes clear that the parent, the guardian, or the child may offer evidence on that question. [Citation.] Furthermore, even if the social worker or department recommends termination of dependency jurisdiction, the juvenile court is not bound by that recommendation and may retain jurisdiction ‘if there is a preponderance of evidence that the conditions are such to justify that retention.’ [Citations.]” (Aurora P., supra, 241 Cal.App.4th at p. 1155, italics added.)

“Where, as here, the social services agency recommends termination of jurisdiction, termination will be the ‘default result’ unless either the parent, the guardian, or the child objects and establishes by a preponderance of the evidence that conditions justifying retention of jurisdiction exist or are likely to exist if supervision is withdrawn. [Citation.] In this case, [the minor was the party] were the parties seeking to persuade the juvenile court to do something other than follow the statutory presumption favoring termination of jurisdiction. As such, [his counsel] bore the burden to establish the existence of conditions justifying retention of dependency jurisdiction. [Citation.]” (Aurora P., supra, 241 Cal.App.4th at p. 1163.)

“Orders made pursuant to section 364 are reviewed for substantial evidence. [Citation.] Under the substantial evidence standard of review, the appellate court does not reweigh the evidence, evaluate the credibility of witnesses, or draw inferences contrary to the findings of the trial court. [Citation.] The appellate court ‘accept[s] the evidence most favorable to the order as true and discard[s] the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.’ [Citation.] For evidence to be sufficient to support a trial court’s finding, it must be reasonable, credible, and of solid value. [Citation.]” (In re J.F. (2014) 228 Cal.App.4th 202, 209.)

Here, there was sufficient evidence to establish the conditions that justified the initial assumption of jurisdiction were likely to exist if supervision was withdrawn. SSA concedes “a parent’s prior history can be a large, and sometimes controlling, factor” in a finding of continued risk. SSA contends though there has to be some evidence beyond mere speculation to support such a finding. Here, there was such evidence.

The evidence demonstrated Mother admitted she used methamphetamine daily for two years. When Mother learned she was pregnant, she stopped using but relapsed because she was stressed. She stopped using for three months, used for two days, stopped for two months, and relapsed, using every other day until she felt contractions, five days before D.C.’s birth. Mother’s attempts to stop using methamphetamine by telling Father and going to church failed despite the risks to her baby. SSA contends D.C.’s counsel’s reliance on “truisms” about the perils of recovery are misplaced because Mother never previously sought treatment and when she did her performance was excellent. But Mother herself questioned whether she could comply with a program while raising a child. Mother told a social worker she would consider a drug treatment program, but she was “unsure if she will follow through with it because she will be too busy taking care of her baby.”

Mother had lived with Father and D.C. for only two months. Both Father and Mother worked, Mother during the day and Father at night. Mother was responsible for caring for D.C. by herself at night when Father worked. Since Mother returned home, she “completely [took] over” caring for D.C. Needless to say, Mother was relieved to be home with her new husband and baby. But this was most definitely an adjustment period, and there will be many trying days ahead. Mother’s ability to remain sober will be a challenge when faced with the many stresses of raising a child, often times by herself. Mother cannot cheat her recovery because she has to care for D.C. Mother must be completely devoted to both her recovery and D.C.’s upbringing. The court was correct to conclude Mother would benefit from another six months of supervision to ensure she was on a solid foundation in her recovery.

In reaching our conclusion, we do not rely on Mother’s 2010 drug charges, which were dismissed and not included in the petition, or her 69 percent call-in compliance rate, which was at the beginning of her treatment after she sought treatment on her own. Our conclusion is based solely on evidence of Mother’s relapses, the short time in which she lived in the home with Father and D.C., and her statements expressing uncertainty about her commitment to treatment while caring for D.C.

Father, Mother, and SSA rely on In re D.B. (2015) 239 Cal.App.4th 1073 (D.B.), a case from this court, and In re N.S. (2002) 97 Cal.App.4th 167 (N.S.), to assert the conditions no longer exist because Mother completed her case plan and provided appropriate care for D.C. D.B. and N.S. are inapposite.

In D.B., a 10-year-old child told the social worker that she did not understand why her parents were mean to each other, particularly her father who spoke ill of mother and threatened to report her to the police. (D.B., supra, 239 Cal.App.4th at pp. 1080, 1082.) The juvenile court continued jurisdiction under section 364, subdivision (c), because the harmful conditions still existed. (D.B., supra, 239 Cal.App.4th at pp. 1085-1086.) The D.B. court reversed, concluding there was insufficient evidence and “Father did nothing during [his visits with the child] that would justify assumption of dependency jurisdiction.” (Id. at p. 1086.) Unlike D.B., here the evidence to support the court’s decision not to terminate dependency proceedings was not an isolated comment.

In N.S., father was unable to control his stress and anger. (N.S., supra,

97 Cal.App.4th at pp. 172-173.) In the ensuing six months, however, there was no evidence father had acted impulsively or had an outburst, and the evidence showed he had complied with his case plan and made good progress in therapy. (Id. at p. 173.) The N.S. court reversed, concluding there was no evidence the harmful conditions existed or would exist if jurisdiction were terminated. (Ibid.) Unlike N.S., drug abuse over a period of years was not the same as an inability to control stress and anger.

Yes, Mother and Father completed their case plans but that is not the only factor to consider. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140 [completion of reunification plan not juvenile court’s sole concern].) Unlike D.B. and N.S., here there was evidence the harmful conditions would exist if jurisdiction were terminated. Mother abused methamphetamine for a considerable time, including during her pregnancy, and she herself questioned whether she could commit to a substance abuse program while caring for D.C. She had only been caring for D.C. for two months and still adjusting to the stresses of married and working life. This was sufficient evidence to support the court’s conclusion conditions were likely to exist if supervision was withdrawn.

Finally, SSA asserts the evidence demonstrated this was no longer a dependency case because there was no substantial risk to D.C. and the court should have made other custody and visitation orders. SSA admits it did not raise alternate arguments below. Thus, this claim is forfeited. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [nonjurisdictional dependency issues must be subject of objection or appropriate motions otherwise waived].)

We too commend both Mother and Father on their exemplary performance completing their case plans. The record demonstrates Father cared for his son during the day and worked at night while Mother received treatment. The record also demonstrates that with the exception of a few missed calls at the beginning of her treatment, Mother completed her case plan and had over 30 negative drug tests and 100 percent call-in compliance with Avertest. But despite their good performance, sufficient evidence supported the court’s concerns that the same conditions that justified the initial assumption of jurisdiction were likely to exist if supervision was withdrawn.

DISPOSITION

The order is affirmed.

O’LEARY, P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.