Filed 9/7/18 In re D.T. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

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J.T. (mother) appeals the juvenile court’s jurisdictional findings and orders. She contends there is not substantial evidence supporting the juvenile court’s finding that D.T. (the minor) was at substantial risk of harm based on mother’s failure to protect her. (Welf. & Inst. Code, § 300, subd. (b).)[1] Specifically, mother contends no substantial evidence supports findings of substantial risk of harm with regard to the minor’s medical condition and mother’s overall unavailability. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The minor was born in June 2017, testing positive for marijuana. Mother also tested positive for marijuana and admitted she had used marijuana daily throughout her pregnancy for pain management and anxiety. The minor was also born with a hole in her trachea (tracheoesophageal fistula) that required immediate surgery. The minor remained hospitalized for over a month following her birth. The minor had difficulty swallowing after her surgery and needed a second surgery on July 10. The hospital could not reach mother to obtain medical consent. The hospital contacted the supervising social worker who went to mother’s home to facilitate the medical consent. The minor remained in the hospital until July 30. Her discharge paperwork indicated she had active diagnoses of patent foramen ovale (versus secundum atrial septal defect), anemia, bilateral ovarian cysts, duodenal atresia, congenital hydronephrosis, and intrauterine drug exposure. The hospital also informed the supervising social worker that the minor had respiratory problems that needed to be monitored. Since her surgery, it was also necessary to use specific feeding methods to prevent feeding intolerance, difficulty swallowing, and increased spit up. Her pediatrician also advised she is at high risk for congenital heart problems and needs to be examined by a specialist, and needs repeated pelvic ultrasounds for her ovarian cysts.

Mother had contact with the minor on July 4, 2017. Mother did not have contact with the minor again until July 16, 2017. Three days later, mother explained to the social worker her visitation had been limited because of health complications related to her C-section and not having transportation.

The Amador County Department of Social Services, Child Protective Services (the Department), filed a section 300 petition on July 31, 2017, alleging the minor was a child described by subdivision (b)(1); that as a result of the failure or inability of mother to protect the minor, there was a substantial risk of harm to the minor. Specifically, the petition alleged that mother had only had two visits with the minor and had not been reachable to provide medical consent for necessary surgery. The juvenile court found prima facie evidence supported the petition and ordered the minor detained.

Mother has a history of substance abuse. Two of mother’s aunts and her sister believed she was using drugs again. A sheriff who was frequently called to the home reported it was “ ‘obvious’ ” when mother was doing drugs based on her erratic behavior. During her pregnancy with the minor, the Department received three reports regarding her alleged heavy drug use, including marijuana, methamphetamine, and heroin. While she was in the hospital giving birth to the minor, her residence was raided. Five adults who lived in the home were arrested. There were large quantities of methamphetamine and heroin in the home, and indicia of sales. Mother lived at that address until as late as July 19.

Mother has two older children in legal guardianship with their paternal grandparents. During the course of those proceedings, mother was ordered to participate in substance abuse counseling and to drug test. She demonstrated a pattern of noncompliance, and failed to complete her drug treatment program. Mother drug tested three times in July 2017. One was positive for hydrocodone and one was positive for marijuana. She declined to test twice in August 2017. The social worker concluded mother would need extensive services to overcome her drug addiction. This addiction likely rendered her unable to safely provide care for a high-needs infant such as the minor.

Throughout August 2017, the Department had difficulty maintaining contact with mother. She provided an e-mail address that did not work, and more than once her phone was not working. She provided a street address the Department was unable to locate. In August, the Department scheduled five visits for mother. She confirmed and attended one. At the August 1, 2017 detention hearing, mother stated she did not know the physical address of her residence, and would contact the Department to provide it. She did not provide that address until August 18. At the time of the jurisdictional hearing, one week later, the Department had not been able to confirm the physical address.

When the minor was in the hospital, staff needed to reach mother on numerous occasions and could not get a response. The Valley Mountain Regional Center could provide physical therapy services for the minor to help with her hands and legs, but they needed a medical referral from mother, and they were not able to contact her. Mother did not attend any of the minor’s medical appointments. Mother had the social worker’s business cards and knew how to contact the Department. The social worker concluded mother was not reachable or making a sufficient effort to provide for the minor’s medical or health needs. Mother’s unwillingness or inability to make herself available to the social worker, the hospital, and the therapy center caused the social worker concern based on the minor’s medical conditions, and the importance of followup with her care providers.

Mother had a visit with the minor on August 18, 2017. The foster parents left her with written instructions on how to feed the minor properly based on her special needs. Despite this, mother fed her improperly and had to be corrected by the case aide worker. After the visit, the case aide worker informed the social worker she believed mother might have been under the influence. The social worker asked mother to drug test on that date, but she declined.

The juvenile court found true and sustained only the paragraph b-2 allegation: “On July 10, 2017, Social Worker Melissa Cato of Sutter Medical Center in Sacramento stated to petitioner that the mother . . . had not visited the newborn, [the minor], since July 4, 2017. The child was in need of a second surgery, and the mother could not be reached to provide consent. Petitioner made in person contact with the mother at her home and facilitated contact with the hospital, allowing the child to receive the needed surgery. On July 27, 2017, Melissa Cato stated to this petitioner that since the mother’s visit on July 4, 2017 the mother’s only other visit was on July 16, 2017.” The juvenile court based this finding on the minor’s medical needs as a medically fragile child, that mother had repeatedly been unavailable to give consent for procedures, and the mother had shown a pattern of failing to follow through on important aspects of this case and care for the minor. The juvenile court further found: “This child will need medical consent at minimum in the future, but will also need a substantial amount of care and supervision. I don’t believe the mother has shown that she is capable of that at this point. I think her pattern, when the child was in the hospital, the infrequent contact, . . . would seem to be consistent with the mother’s pattern recently.”

DISCUSSION

Mother contends there is not substantial evidence to support the juvenile court’s finding that “mother’s limited visits or unavailability by telephone on July 10th caused [the minor] serious physical harm or substantial risk of such harm.”[2]

At jurisdiction, the juvenile court considers only the question whether the child is a person described by section 300 at the time of the hearing. Under section 300, subdivision (b), the Agency must show: “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Allegations that a child is a person described by section 300 must be proved by a preponderance of the evidence. (§ 355, subd. (a).)

“Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citation.] The court may consider past events in deciding whether a child currently needs the court’s protection. [Citation.] A parent’s ‘ “[p]ast conduct may be probative of current conditions” if there is reason to believe that the conduct will continue.’ ” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.) “Exercise of dependency court jurisdiction under section 300, subdivision (b), is proper when a child is ‘of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] health and safety.’ ” (Id. at p. 1384.)

“The Department has the burden of proving by a preponderance of the evidence that the children are dependents of the court under section 300.” (In re I.J. (2013) 56 Cal.4th 766, 773.) We review the juvenile court’s findings to determine whether they are supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “ ‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate].” ’ ” ’ ” (In re I.J., supra, 56 Cal.4th at p. 773.)

Here, the minor is a medically fragile child, in need of multiple medical treatments and surgeries and ongoing consistent monitoring. She also has special needs for her daily care, including relative to her feeding. Mother did not attend any of the minor’s medical appointments and was unavailable to consent to necessary procedures and therapy for the minor. She attended only one out of five scheduled visits with the minor in August and only two visits before that. At the August visit, she was given explicit feeding instructions and had difficulty following them. Mother was unavailable to the Department, not providing them working phone numbers or accurate addresses. Although she had the Department’s contact information, she did not maintain contact with the Department. Mother also tested positive for drugs in this case and declined to test on two occasions. Family members and law enforcement indicated she continued to use drugs, she had a previous pattern of noncompliance with court orders in relation to her older children, and failed to complete an ordered drug treatment program. At the August visit, where she could not follow the written feeding instructions, the case aide worker believed mother was under the influence and she refused to drug test that day. This evidence of mother’s substance abuse provides additional support for the conclusion that she is not able to provide for the minor’s medical needs, putting the minor at substantial risk of harm. In addition, mother admitted drug use during her pregnancy with the minor. There was no evidence indicating the minor’s in utero exposure to drugs caused the minor’s health complications and medical fragility. However, the evidence of mother’s drug use during pregnancy reflects a lack of judgment on mother’s part and an inability to provide the minor with the most basic in appropriate care, and supports the reasonable inference the minor was at substantial risk of harm.

In this case, we find substantial evidence to support the juvenile court’s finding pursuant to subdivision (b) of section 300 that the medically fragile minor was at current substantial risk of suffering serious harm due to mother’s unavailability to medical providers, therapy providers, and the Department, and her lack of attendance at visits and medical appointments, especially in light of her past failures and ongoing pattern of substance abuse.

DISPOSITION

The juvenile court’s orders are affirmed.

BUTZ , J.

We concur:

HULL , Acting P. J.

MAURO , J.