In re Ethan H.
Filed 6/11/13 In re Ethan H. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re ETHAN H., a Person Coming
Under the Juvenile Court Law.
B244571
(Los Angeles
County
Super. Ct.
No. CK76636)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LORI A.,
Defendant and Appellant.
APPEAL from
findings and orders of the Superior Court
of
County. Terry T.
Truong, Juvenile Court Referee.
Affirmed.
Jack A.
Love, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Timothy
M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
__________________
Lori A. (mother) appeals from the
juvenile court’s jurisdictional findings and dispositional orders made on
September 19, 2012, removing her son, Ethan H. (Ethan, born Dec. 2006), from
her custody. The juvenile court
terminated jurisdiction with an exit order giving Ethan’s father, Anthony H.
(father), sole legal and physical custody of Ethan. The juvenile court ordered that mother’s
visits with Ethan be monitored until she completed a
testing and individual counseling.
On appeal, mother
claims: (1) the juvenile court’s
jurisdictional findings are not supported by substantial evidence; and (2) the
juvenile court abused its discretion in revising the existing
order.
We affirm.
Referral of
Neglect
This family came to the
attention of the Department of Children
and Family Services (DCFS) on May 29, 2012, after DCFS received a telephone
call alleging that mother was abusing drugs, including methamphetamine,
marijuana, and oxycodone. The caller
told DCFS that mother had twice passed out while caring for Ethan and that
once, Ethan had cried uncontrollably because he believed that his mother was
dead. The caller also reported that
mother had sent a text message to an unidentified person, saying, “please get
over here, I’m passing out, I don’t know what I took and Ethan is here,
please[,] I need help.â€
DCFS reported regarding
its prior involvement with the family.
On March 16, 2009,
when he was just two years old, Ethan had been detained as a result of general
neglect due to domestic disputes between mother and father. Father eventually obtained sole physical
custody of Ethan, and mother was ordered to have monitored visits.
Father informed the
social worker that approximately one year after the prior juvenile court case
was closed, he allowed mother to have monitored visits. After a year of monitored visits, father
allowed mother to have unmonitored visits.
During the time Ethan was having unmonitored visits with mother, she
became involved in violent relationships with two different men. Mother claimed that she was unknowingly
drugged by her friend, but acknowledged that Ethan was present during the
incident.
The social worker met
with mother at mother’s home, with a police officer present. Mother had called law enforcement about a
domestic violence issue she was currently experiencing. Mother reported that the prior dependency
court involvement was overwhelming and she was not going to go through it
again. She told the social worker that
she would move away and get out of Ethan’s life. The social worker encouraged mother to stay
involved, for Ethan’s sake. The social
worker advised mother to get help to protect herself from abusive relationships
and substance abuse.
The social worker
requested that mother submit to random drug testing, but mother refused. Mother claimed that she could not drug test
on that day due to a doctor’s appointment, but offered to test the following
day. When the social worker suggested
that she submit to the drug test after her doctor’s appointment, mother became
upset and walked out, stating: “‘I’m not
going through this bull shit. You can
have him. This is bull shit.’â€
Ethan told the social
worker that once, when he was with mother, she would not wake up. He was very scared, thought she had died, and
cried a lot. He told the social worker
that he missed his mother and that he cried for her.
On June 28, 2012, DCFS
placed Ethan into protective custody and released him to father.
Welfare and
Institutions Code Section 300
name="_ftnref1" title="">[1]
DCFS
filed a petition pursuant to section 300, subdivision (b), alleging that mother
had a history of substance abuse and was an abuser of prescription medication,
which resulted in an incident where she lost consciousness while Ethan was in
her care.
At
the initial hearing on the section 300 petition, the juvenile court found a
prima facie basis for detaining Ethan and removed him from mother’s
custody. Mother was granted monitored
visitation, and father was not permitted to monitor those visits.
Jurisdiction/Disposition
Report (Aug. 17, 2012)
DCFS
reported that on January 25, 2011, the juvenile
dependency court had previously terminated its jurisdiction with a custody
order providing that father had sole physical custody of Ethan, the parents
shared joint legal custody, and that mother had monitored visitation.
On
August 11, 2012, the social worker interviewed Ethan. He recounted the story of when his mother had
passed out and would not wake up. Ethan
said, “‘I just waiting and stop crying, and then I go watch tv.’†When asked if he was crying, Ethan responded
that he was. When asked if he tried to
wake his mother up, Ethan replied, “‘[m]y body was on her. She wouldn’t get up.’â€
Previously,
on August 1, 2012, the social worker had interviewed father. He informed the social worker that when he
liberalized mother’s visits to unmonitored, he did not know that she was using
drugs. He also advised the social worker
that his wife, Heather W. (Heather),
caring to Ethan.
Father
further said that Ethan was having unmonitored visits with mother on Mondays,
Wednesdays, and Saturdays or Sundays for a few hours; he denied that he had
allowed overnight visits. Father
recalled one incident on March 23, 2012.
At that time, father went to a wedding and had asked mother to watch
Ethan at the last minute. Upon returning
home, Ethan told father that mother had fallen asleep and that he believed that
mother was dead.
Father
spoke to mother and she admitted that she fell asleep for about 10
minutes. Father told the social worker
that mother seemed fine when he dropped Ethan off and picked him up, and he had
no reason to believe that mother was using drugs.
Father
was shocked that mother refused to drug test.
He believed that mother would provide random drug testing to prove that
the allegations were false. Once he
heard that mother refused to drug test, he then agreed that mother’s visits
needed to be monitored.
Father
remembered that mother previously had back problems and took Vicodin in around
2008. He also remembered that during the
prior juvenile court case, mother was using medical marijuana.
Finally,
father told the social worker that mother had difficulty functioning. He said that Ethan was “everything†to
him. Father understood that Ethan’s
visits with mother needed to be monitored, and he was willing to monitor them
himself, which had been done in the past.
Mother
left a telephone voicemail message with DCFS, advising the social worker that
she was not able to be involved with DCFS and the juvenile court a second
time. She told the social worker that
the first juvenile court involvement was too painful; she offered to sign over
her parental rights to Ethan rather than go through it again. In the message, mother also talked about
being evicted from her apartment, missing court because her car broke down on
the way and she had to abandon her vehicle.
Additionally, she told the social worker that her cat had died. In the message, mother appeared to be
emotionally overwhelmed.
But,
on August 11, 2012, the social worker interviewed mother. Mother indicated that although she had used
methamphetamine in the past, she denied any recent or current methamphetamine
abuse.
Mother
believed that the allegations of child abuse were made by her ex-boyfriend,
Brett C. (Brett), because of a grudge over money. She told the social worker that Brett had
called the police reporting harassment almost every night. She claimed that Brett threatened her, claiming
that he had a video of her on drugs. She
also informed the social worker about an incident during which she was cooking
a meal in the kitchen and suddenly felt strange and faint, as if she was going
to pass out. Brett told her it was okay
and took her to the bathroom. Mother
remembered sending a text message to father to come and care for Ethan. She believed that Brett had drugged her
because she had not taken anything that day that would have made her feel that
way. She believed that Brett was experimenting
with her because she later claimed to have found several women that Brett had
allegedly drugged, raped, and robbed.
Mother claimed that the calls to the police stopped when Brett was
incarcerated. The social worker
confirmed that Brett was then incarcerated.
Mother
advised the social worker that Brett had recently been injecting
methamphetamine. She explained that she
previously refused to drug test because she had a doctor’s appointment. Although she offered to test the following
day, mother claimed that she had not been permitted to do so.
Mother
further informed the social worker that she had a prescription for medical
marijuana, Vicodin, and Percocet for her back pain. She also had a prescription
for Xanax for anxiety; in fact, she showed the social worker a prescription for
generic Xanax, dated July 19, 2012. But,
she could not afford to fill her prescriptions.
So, mother usually waited until the pain was unmanageable before she
took any medication. Mother told the
social worker that because she could not afford to go to the doctor to fill the
prescriptions, she would “‘buy a pill here and there from a friend.’â€
Mother
also told the social worker that she did not take “‘anything’†that would
affect her ability to take care of her son.
Regarding
the incident when mother fell asleep, mother confirmed that she had been
watching Ethan while father was at a wedding and that she did fall asleep. She said that she was hung over from drinking
with friends the night before and was tired.
When mother was asked about domestic violence in a relationship with a
man named Scott, who she was dating just prior to her current boyfriend, mother
told the social worker that “‘[t]here are problems in every relationship.’â€
Mother
told the social worker that she did not think that she could participate in
anything court-ordered because she was too traumatized by her previous
involvement with the juvenile court and DCFS.
She did not think she could participate in random drug testing.
Heather
told the social worker that she saw mother regularly and did not suspect that
mother was using drugs. Heather informed
the social worker that mother was cordial and respectful, and that mother and
father were respectful to each other.
Concerning the incident when mother watched Ethan while father was at a
wedding, Heather stated that mother seemed fine when they dropped Ethan off,
and she seemed fine when Ethan was returned to their care. Heather was unaware of mother’s back problems
and did not know whether mother had prescription medication for pain or
anxiety.
Mother
had not visited Ethan since June 28, 2012.
Based
on the foregoing, the social worker opined that there was strong evidence to
support the allegations in the petition.
The social worker noted mother’s history of substance abuse and mother’s
admission to the current use of marijuana, Vicodin, and Percocet for back pain,
with prescriptions. While mother claimed
that Dr. Paul Deronda had provided prescriptions, she could not confirm any of
her current prescriptions to the social worker and could not provide the social
worker with the doctor’s telephone number.
The
social worker believed father and Ethan’s statements and confirmed that mother
had passed out while Ethan was in her care.
Ethan was crying, terrified that his mother was dead because he could
not wake her. The social worker believed
that mother was struggling with many areas of her life, including housing,
employment, relationships involving violence, parenting, and mental
health. She also believed that mother’s
current substance abuse was a significant contributing factor to her low level
of functioning. She believed that
mother’s substance abuse placed Ethan at risk of harm.
Finally,
the social worker opined that father, who knew he was violating the court order
by allowing mother to have unmonitored contact with Ethan, had failed to
protect Ethan from the risks of mother’s negligent conduct.
Based
on the foregoing, DCFS recommended that the juvenile court find the allegations
in the section 300 petition to be true, that the juvenile court terminate
jurisdiction with an exit order, and that the juvenile court admonish father
that any failure to comply with the exit order would result in the removal of
Ethan from his custody.
Jurisdiction/Disposition
Hearing (Sept. 19, 2012)
At
the jurisdiction and disposition hearing, the juvenile court found the section
300 petition to be true as amended.
name="_ftnref3" title="">[3] It removed Ethan from mother’s custody and
terminated dependency jurisdiction with an exit order providing that Ethan’s
sole physical and legal custody be given to father. Mother was granted monitored visits; she was
required to complete a substance abuse
program with random testing and individual counseling.
Appeal
Mother’s
timely appeal ensued.
I.
court’s order sustaining the section 300 petition
A. Standard of review
As the parties correctly
agree, we review the juvenile court’s order for substantial evidence (
822, 828), keeping in mind that the primary purpose of dependency proceedings
is to serve the best interests of the child.
(See Montenegro v. Diaz (2001)
26 Cal.4th 249, 255.) “‘All conflicts
must be resolved in favor of [DCFS] and all legitimate inferences indulged in
to uphold the [findings], if possible.’â€
(In re Kristin H. (1996) 46
Cal.App.4th 1635, 1649.) We may not
reweigh the evidence or redetermine the facts.
(In re Sheila B. (1993) 19
Cal.App.4th 187, 199–200.)
B. Mother’s conduct placed Ethan at
substantial risk of harm
Section 300, subdivision
(b) provides, in relevant part, that a child may fall within the jurisdiction
of the juvenile court if that “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.†(§ 300, subd. (b).) Three elements are necessary for a
jurisdictional finding under section 300, subdivision (b): “(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.)
Ample evidence supports
the juvenile court’s determination that mother’s neglectful conduct placed
Ethan at substantial risk of harm. She
abused drugs and, on one occasion, passed out while Ethan was in her care and
custody. Although mother claims that she
had been unwittingly drugged by a friend, the juvenile court was permitted to
weigh—and reject—her proffered explanation.
In urging us to reverse,
mother relies upon In re Destiny S.
(2012) 210 Cal.App.4th 999, In re Drake
M. (2012) 211 Cal.App.4th 754, and In
re Alexis E. (2009) 171 Cal.App.4th 438, 453 and points out that “a
parent’s use of marijuana, hard drugs or alcohol, without more, does not bring
a minor within the jurisdiction of the dependency court.†Regardless of whether mother’s assertion is
true, it is undisputed that there was “more†here. While she was caring for Ethan, mother passed
out and could not be awakened. A young
child is certainly at risk of harm if his caregiver uses drugs and/or alcohol
and passes out to the point of being unable to wake up.
II.
abuse of discretion
A. Standard
of review
Section 362.4 authorizes the juvenile court “‘to make
custody and visitation orders that will be transferred to an existing family
court file and remain in effect until modified or terminated by the superior
court.’†(In re Chantal S. (1996) 13 Cal.4th 196, 203.) Such an order is commonly referred to as an
“exit order.†(In re John W. (1996) 41 Cal.App.4th 961, 970.) Again, the parties agree that we review
juvenile court exit orders for abuse of discretion. (Bridget
A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
B. The
juvenile court’s exit order was not an abuse of discretion
Considering that mother was
drug-involved (and one of her recent partners was also drug-involved), had
disregarded prior court orders for monitored visits, had cared for Ethan while
under the influence of drugs to such a degree that she passed out, and was
involved in relationships marked by domestic violence, the juvenile court acted
well within its discretion in granting father sole legal and physical custody
and ordering that mother complete a substance abuse program with random testing
and individual counseling.
The
juvenile court’s findings and orders are affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________,
J.
ASHMANN-GERST
We concur:
______________________________, P. J. ______________________________,
J.
BOREN FERNS
Institutions Code unless otherwise indicated.
with Heather—while father represents that she is his wife, the record also
indicates that she is father’s girlfriend.
