In re Janeen H

Filed 3/2/06 In re Janeen H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.

Gayle G. appeals a judgment declaring her daughter Janeen H. a dependent of the juvenile court under Welfare and Institutions Code section 300,^[1] subdivision (b) and removing Janeen from her custody under section 361, subdivision (c)(1). Gayle challenges the sufficiency of the evidence supporting the court's jurisdictional and dispositional findings. Subsequent events did not render the appeal moot. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2005, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b) on behalf of nine-year-old Janeen. The petition alleged Janeen was at substantial risk of harm due to Gayle's use of methamphetamine and the presence of drugs and drug paraphernalia in the family's borrowed motor home. Janeen's father was deceased.

Gayle had a 20-year history of methamphetamine addiction, recovery and relapse. After a recent two-year period of sobriety, she relapsed on April 27, 2005, during a brief stay at the home of her friend Cathy. On April 28, 2005, the San Diego County Sheriff's Department (Sheriff) conducted a search of Cathy's residence for drug sale activity and found methamphetamine and drug paraphernalia in the motor home Gayle parked on the property. Gayle's purse contained a needle and syringe. Methamphetamine, scales and a pipe were found in the master bedroom of Cathy's home. Sheriff found several more bags of the drug in other locations on the property. Gayle was present at the time of the search. She was arrested and changed with possession of a controlled substance.

A social worker interviewed Janeen at her school. She and her mother had been at Cathy's approximately one month. Janeen slept in Cathy's home and used its kitchen and bathroom facilities. She played in the motor home and on occasion slept there. Janeen found a dirty syringe in the motor home, washed it, and used it to play doctor with her stuffed animals. On another occasion, she and a friend found a needle in a piece of wood. The needle stuck her friend.

Janeen was in third grade. She had attended the same school since kindergarten. Gayle made Janeen's school attendance a priority because it was "the most stable thing in her life." School personnel described Janeen as friendly, bright, well-adjusted and "a wonderfully polite student." She was well-groomed and always brought her lunch and a snack to school. They described Gayle as a caring, responsible parent and an active participant in school activities. Janeen had a special bond with her mother and was thriving in her care. Although the family experienced some difficult times, Gayle loved her daughter and provided good care.

At the contested jurisdiction and disposition hearings, Gayle testified she was a methamphetamine addict. She completed two treatment programs, the first during a six-month incarceration in 1994 and the second in 2003 after a relapse. Before her recent relapse, she had been clean more than two years. Gayle denied knowing the extent of the drug use and drug sales at Cathy's home. She was concerned about staying at Cathy's home because of the large number of people present and her friend's alcohol use. Gayle did not expose Janeen to drugs.

In February 2005 Gayle's mother broke her hip and needed Gayle's assistance. Janeen's school allowed her to leave for 30 days in March 2005. Gayle did not have a permanent residence. She stored the family's belongings in the motor home. Gayle and Janeen returned to San Diego County approximately three and a half weeks before her arrest. They stayed with friends. She and Janeen were at Cathy's home approximately one week. Gayle was working. She almost had sufficient funds to move when she was arrested. As a result of the arrest, Gayle lost her job. The charge of possession of a controlled substance was dismissed.

James S., a resident at the house, told the social worker he brought the drugs into the motor home. Most of the people at the house were using drugs and it seemed to be "the hangout spot." He and Gayle did drugs together approximately two days before the search.

The social worker stated the family had many strengths: Gayle was willing to participate in services, she was aware of her addiction, she was employable, and the parent-child bond was strong. Janeen was extremely well behaved. She missed her mother and sometimes cried after visits. In addition, Gayle was family oriented and remorseful. Nevertheless, the social worker opined there was a substantial danger to Janeen's physical health due to Gayle's addiction to methamphetamine, recent drug use, and the presence of drugs and drug paraphernalia in Janeen's living environment. Janeen needed a safe, stable home free from drugs and possible harm. Gayle was not in a position to provide Janeen that home at this time.

The court declared Janeen a dependent, removed her from Gayle's custody and placed her in the home of a nonrelative extended family member. The court ordered Gayle to participate in the Substance Abuse Recovery Management System program (SARMS) and to comply with the case plan. The court assessed the family's potential for early reunification as "very good."

At oral argument on January 23, 2006, minor's appellate counsel requested permission to update the court on the status of the case. Appellate counsel did not object. We were informed that Janeen was returned to Gayle's custody at the six-month review hearing on January 3, 2006. We asked appellate counsel to submit simultaneous letter briefs addressing whether subsequent events affect the disposition of this appeal. The Agency requests we affirm the jurisdictional order and dismiss Gayle's appeal on dispositional matters as moot. Gayle continues to assert the circumstances at the time the initial petition was filed did not justify jurisdiction. On February 15, 2006, we granted the Agency's motion to augment the record with court orders and court reports made after the disposition hearing.

DISCUSSION

A

Jurisdiction

Gayle challenges the sufficiency of the evidence to support the court's jurisdictional findings and order under section 300, subdivision (b). Specifically, Gayle contends the evidence was insufficient to support a finding that Janeen was at substantial risk of suffering serious physical harm due to Gayle's relapse.

We look to the entire record to support the court's findings. We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. We draw all reasonable inferences in support of the findings, view the record in the light most favorable to the court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-43; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

A child is described by section 300, subdivision (b) if the Agency can prove by a preponderance of the evidence there was (1) neglectful conduct by the parent, (2) causation and (3) serious physical harm or illness to the child or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco).) Here, the Agency alleged Janeen was at substantial risk of suffering serious physical harm or illness by Gayle's inability to provide regular care for the child due to her substance abuse.

Gayle admits her use of methamphetamine was neglectful conduct. However, she asserts there is insufficient evidence to support a finding she denied Janeen regular care and argues there is no nexus between the quality of care she provided Janeen and her addiction to methamphetamine. Gayle contends her relapse was brief and there was no evidence to show it was likely to reoccur. (Rocco, supra, 1 Cal.App.4th at p. 823; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)

The parties agree Janeen was not seriously injured or harmed by Gayle's conduct. Therefore, the question is whether Gayle's neglectful conduct placed Janeen at substantial risk of serious physical harm or illness. Gayle asserts her drug use on April 27, 2005, did not present a serious risk to Janeen because (1) Janeen was at school when Gayle used drugs and (2) the small amount of methamphetamine she injected did not leave her incapable of adequately caring for her daughter.

We do not believe Janeen's exposure to serious harm was as limited as Gayle proposes. Risk was inherent in Janeen's home environment, the people with whom Gayle associated, the dangerous activities in which they participated, and the possibility of Gayle's continued drug use. Exposing a child to a substantial risk of serious harm or illness is a denial of regular care.

Although Gayle denied she knew the extent of the drug activity at Cathy's house, she obviously knew at least one resident possessed methamphetamine and drug paraphernalia and was willing to provide it to others. She was aware of "the progression of people" at Cathy's house. Conditions at the residence were chaotic. The house was a "hangout" for persons using drugs. We resolve all inferences in favor of the factual conclusions reached by the trial court. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) The record supports the reasonable inference Janeen was directly exposed to this activity. Although Gayle claims Janeen rarely went into Cathy's house, Janeen said she often slept in the house and retreated to the motor home only when the partying proved too noisy for sleep.

In addition, Janeen was placed at substantial risk of serious harm or illness by her exposure to and contact with discarded drug paraphernalia. Methamphetamine and drug paraphernalia were found in multiple locations on the property, including the motor home. Janeen found a syringe and played with it. She and a friend found a needle. The needle poked her friend. Although Janeen was probably too old to accidentally ingest the drug as the Agency suggests, the record shows the environment contained hazards that could inflict serious harm or illness on Janeen such as punctures and blood-transmitted viral infections, including hepatitis and AIDS. Gayle's belief she did not expose Janeen to a substantial risk of harm shows she did not understand the many serious risks inherent in the home environment she provided her daughter.

Gayle argues the fact she is a methamphetamine addict does not in and of itself present a risk of harm to Janeen. She contends her "one-time relapse" does not support a finding she was unable to provide Janeen regular care. Gayle asserts her use was limited to a one time injection of a small quantity of methamphetamine.

Gayle's use of methamphetamine in April 2005 was not a one-time relapse but part of a long-standing history of addiction, recovery and relapse. Gayle had a 20-year addiction to methamphetamine. The record supports the conclusion she used the drug consistently from 1992 to her incarceration on a felony drug charge in 1995. In contrast to Gayle's forthright admission she was an addict, she was evasive when asked how many times she relapsed since Janeen's birth. Gayle admitted she relapsed in 2003, using methamphetamine several times in an approximately six-week period before her arrest for possession of a controlled substance in March 2003. However, Gayle was arrested on a drug possession charge in October 2002,^[2] indicating her previous relapse lasted longer than six weeks or she had multiple relapses in a relatively short time. The record supports a reasonable inference Gayle minimized and excused her drug use. We believe the trial court accurately assessed the substantial probability Gayle's relapse would continue absent court intervention and treatment.

A home free from the "negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2.) Gayle claims she was not fully informed of the extent of the drug-related activities on the property. At the same time, she asserts she protected her daughter from the unsuitable conditions. Neither assertion is sound. Gayle obviously knew drug use was occurring at the residence; she participated in it. If Gayle were as ignorant of the drug-related activities as she claims, she would not be able to protect Janeen from the risks they posed. We believe Gayle's confidence in her ability to control her drug use and to shield Janeen from its risks and consequences was illusory and symptomatic of addiction. Rather than mitigating risk, it only increased the risk of serious harm to Janeen.

Substantial evidence supports the court's finding Janeen was placed at substantial risk of serious harm or illness by her exposure to drugs, drug paraphernalia, ongoing drug use and related criminal activities. Gayle chose to stay at Cathy's residence and indulge her addiction instead of taking action she knew was necessary to protect her daughter. Janeen's exposure to this environment was a denial of regular care.

B

Disposition

Gayle asserts that insufficient evidence supports the court's disposition order under section 361, subdivision (c). She challenges the court's finding that there was a substantial danger to Janeen's physical and emotional health and safety. Gayle contends the court abused its discretion when it did not consider alternatives to removal. Finally, she argues the Agency did not make reasonable efforts to prevent Janeen's removal from her custody.

The Agency asserts the dispositional portion of Gayle's appeal became moot when the court returned Janeen to parental custody at the six-month review hearing. The Agency relies upon cases holding that an appeal is moot when the controversy no longer exists. (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405; In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204.) However, in those cases, the appellant parents subsequently stipulated in the trial court to the facts contested on appeal, rendering the issues moot. (Ibid.) Here, Gayle continues to challenge facts underlying the dispositional findings and order.

In addition, "when an issue raised in a timely notice of appeal continues to affect the rights of the child or the parents, the appeal is not necessarily rendered moot by the dismissal of the underlying dependency." (In re Hirenia C. (1993) 18 Cal.App.4th 504, 517-518.) Accordingly, "the question of mootness must be decided on a case-by-case basis." (Ibid.) Janeen was returned to Gayle's custody; however, dependency jurisdiction was not dismissed. Were Janeen to be removed from Gayle's custody a second time, her detention during the first six months of the case would continue to affect Gayle's rights. (See § 366.21, subd. (f) [limiting reunification services to 12 months.].) Gayle's appeal, therefore, is not moot.

A child who is a dependent of the juvenile court shall not be removed from parental custody unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (§ 361, subd. (c)(1); Cal. Rules of Court, rule 1456(c);^[3] In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)

If the child is to be removed from the home, the burden of proof is substantially greater than at the jurisdictional hearing. (Compare § 361, subd. (c)(1) with § 355, subd. (a); In re Henry V., supra, 119 Cal.App.4th at p. 528.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) The heavier burden of proof is intended to protect the fundamental right of a parent to retain custody of a child. Despite the heightened burden of proof required for removal at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H., supra, 46 Cal.App.4th at p. 1654; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)

Substantial Danger

There is a close overlap between a finding of jurisdiction based on a substantial risk of serious physical harm or illness under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (Rocco, supra, 1 Cal.App.4th at p. 826.)

For the reasons stated earlier in this opinion, substantial evidence supports the court's finding there would be a substantial danger to Janeen's physical health, safety and protection were she returned to parental custody. Although Gayle apparently was living on her own at the time of the disposition hearing, the court reasonably determined she was in a relapse cycle. Until Gayle entered a drug treatment program, tested clean, showed progress with Narcotics Anonymous (NA) meetings, and took seriously her referral to SARMS, there was a substantial danger to Janeen's physical health, safety and protection in Gayle's custody.

Reasonable Alternatives to Removal

A dependent child may not be taken from the physical custody of the parent unless the juvenile court finds by clear and convincing evidence there are no reasonable alternatives by which the child's physical health can be protected without removing the child from parental custody. (§ 361, subd. (c).) Gayle argues the court abused its discretion when it did not consider reasonable alternatives to removal. She contends there is nothing in the record to show the court considered any disposition other than continued detention. However, the record establishes that the court actively weighed a decision to place Janeen in Gayle's custody:

"[The Court]: If I returned Janeen to you today, where are you going to stay tonight? [¶] . . . [¶]

[Gayle]: We would camp at Santee Lakes for the night.

[The Court]: Do you have a tent?

[Gayle]: Yes, I do.

[The Court]: Is that where you have been staying[,] just in the tent?

[Gayle]: Currently for the last week or so, yes."

The court considered returning Janeen to Gayle's custody and concluded it was not yet safe to do so. Gayle was an addict and had relapsed. She had not entered a treatment program. Two months earlier, at the detention hearing, the court informed Gayle that she could voluntarily begin substance abuse treatment through SARMS. Gayle made an initial appointment with SARMS. She was unable to keep the appointment and did not reschedule. Although Gayle was no longer living in what apparently was a gathering place for people using drugs, her living situation was far from stable. The circumstances that led Gayle to accept a living environment in which there were substantial risks to Janeen's physical health still existed at the time of the disposition hearing. Substantial evidence supports the court's conclusion there were no reasonable alternatives to removal.

Reasonable Efforts

Gayle contends the Agency did not make reasonable efforts to prevent Janeen's removal from her custody. She asserts that the court should have ordered the Agency to provide housing and employment assistance and suggests the primary reason for Janeen's continued detention was her lack of stable housing. The Agency responds that Gayle's methamphetamine addiction, not housing, was the primary protective issue. The most-needed services were available to her through SARMS.

The Adoption Assistance and Child Welfare Act of 1980 (42 U.S.C. § 602 et seq.) requires a participating state to have a plan that provides "reasonable efforts will be made . . . prior to the placement of the child in foster care to prevent or eliminate the need for removing the child from the child's home, and to make it possible for the child to safely return to the child's home. (42 U.S.C. § 671(a)(15).) The United States Supreme Court, in Suter v. Artist M. (1992) 503 U.S. 347, 360, noted that no statutory guidance is provided as to how "reasonable efforts" are to be measured. "It is a directive whose meaning will obviously vary with the circumstances of each individual case." (Ibid.)

The California Legislature mandated that "[f]amily reunification services shall be provided or arranged for by county welfare department staff in order to reunite the child separated from his or her parent because of abuse, neglect, or exploitation. . . . Family reunification services shall be available . . . to families whose child has been adjudicated or is in the process of being adjudicated a dependent child of the court under the provisions of Section 300." (§ 16507, subd. (a).)

"Family reunification services" are services designed to make it possible for a child to return to his or her family. (See rule 1456(f)(1)). These are a subset of "child welfare services as defined in section 16501, subdivision (a). " '[C]hild welfare services' means public social services which are directed toward . . . protecting and promoting the welfare of all children, including handicapped, homeless, dependent, or neglected children; . . . preventing the unnecessary separation of children from their families by identifying family problems, assisting families in resolving their problems, . . . restoring to their families children who have been removed, by the provision of services to the child and the families." (§ 16501, subd. (a), emphasis added).

"Child welfare services may include, but are not limited to, a range of service-funded activities, including case management, counseling, emergency shelter care, emergency in-home caretakers, temporary in-home caretakers, respite care, therapeutic day services, teaching and demonstrating homemakers, parenting training, substance abuse testing, and transportation. These service-funded activities shall be available to children and their families in all phases of the child welfare program in accordance with the child's case plan and departmental regulations." (§ 16501, subd. (a)(1).)

The Agency is required to identify the problems leading to the loss of custody and offer services designed to remedy those problems. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The case plan for each child must "include a description of the services offered and the services provided to prevent removal of the child from the home and to reunify the family." (45 C.F.R. § 1356.21(g)(4); see also 42 U.S.C. § 671(a)(15); § 16501.1, subd. (f)(9).) If the Agency recommends removal of the child from the home, the social study shall include a discussion of the reasonable efforts made to prevent or eliminate removal. (Rule 1455(a)(1)(B)(i).) At the disposition hearing, the court is required to determine whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home. (§ 361, subd. (d).)

In its detention report, citing the three months of voluntary services provided Gayle in 1994 for an older child, the Agency asserted that preplacement services were not effective in preventing or eliminating the need for Janeen's removal from parental custody.^[4] Currently, available family reunification services included counseling, emergency in-home caretakers, case management, emergency shelter care,^[5] parent training, public assistance services, out of home respite care, teaching homemaker, and transportation. Of these services, the Agency specifically recommended Gayle participate in drug treatment services, drug testing, individual counseling and parenting education.

At the May 3, 2005 detention hearing, the court ordered the Agency to provide or offer Gayle crisis intervention services, case management, transportation and counseling. The court advised Gayle that she could voluntarily begin participating in SARMS.

On May 11, 2005, during a meeting at the Agency, Gayle told the social worker she needed stability and "having housing and a job would help." Gayle said she was looking for a residential drug treatment facility that would allow Janeen to live with her while she completed a treatment program. Gayle had contacted SARMS and a parent education program. She was attending NA meetings.

In its May 24, 2005 court report, in the section entitled "[Reasonable Efforts]," the Agency stated it gave Gayle "a list of East County referrals that included but were not limited to drug treatment classes, parenting classes, counseling, emergency shelters, etc." (See 42 U.S.C. § 671(a)(15); 45 C.F.R. § 1356.21(g)(4); rule 1455.) This list is not included in the appellate record.

The record does not reflect with specificity what obligations existed or were undertaken to assist Gayle after the May 11, 2005 meeting.^[6] Gayle and the social worker spoke twice in June 2005. Neither discussion involved the provision of reunification services. Gayle did not sign the case plan until July 5, 2005, the day of the combined jurisdiction and disposition hearings. After disposition, the Agency provided Gayle counseling services, a 10-week parenting education class, substance abuse treatment and the SARMS program. Gayle began parenting education in July 2005, entered McAlister Institute for substance abuse treatment on August 12, 2005, and started individual counseling in September 2005. She participated in all recommended services and completed her case plan as scheduled.

We draw all inferences in favor of the judgment. (In re Katrina C., supra, 201 Cal.App.3d at p. 547.) We infer that the family reunification services provided after the disposition hearing were available to Gayle within a reasonable time after Janeen was removed from her custody on April 28, 2005. At the detention hearing, the court offered Gayle the opportunity to immediately begin participating in SARMS. She did not take advantage of the court's offer. The Agency provided Gayle with referrals to counseling, parenting education and an outpatient substance abuse program through SARMS. In its detention report, the Agency stated that public assistance services were available. We presume the "list of East County referrals" included viable community resources to help address Gayle's need for assistance with housing and employment.^[7]

We conclude there is substantial evidence to show the Agency made reasonable efforts before the disposition hearing to prevent or eliminate the need for Janeen's removal from parental custody. Had Gayle secured suitable housing, absent substance abuse treatment and a period of demonstrated sobriety, the court would have acted within its discretion in removing Janeen from parental custody. Error, if any, was harmless.

The juvenile court has broad discretion in making a disposition order. (§ 361, subd. (c)(1).) Here, the court believed that with Gayle's participation in appropriate services, family reunification would be quickly realized. The court removed Janeen from parental custody and authorized the Agency to place Janeen with Gayle on a 60-day extended visit as soon as Gayle's circumstances permitted. The court informed Gayle of the steps she needed to complete in order to regain custody and ordered the Agency to provide services consistent with the case plan. The social worker gave Gayle referrals to services in their first meeting on May 11, 2005. We conclude that the disposition findings are supported by substantial evidence and the disposition order was reasonable. There was no abuse of discretion.

DISPOSITION

The jurisdictional and dispositional orders are affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

HALLER, J.

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^[1] Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.

^[2] The dispositions of the March 2003 and October 2002 charges for possession of a controlled substance are listed in the appellate record as "unknown." It appears Gayle completed substance abuse treatment following her arrest in March 2003.

^[3] Rule references are to the California Rules of Court.

^[4] We question whether three months of voluntary services provided to another child under different circumstances more than 10 years earlier relieves the Agency of its responsibility to consider preplacement preventive services in a later case. However, here, the record supports the reasonable inference that predetention preventive services would have been ineffective due to Gayle's arrest, her history of addiction and recent drug use, and her unstable living conditions. Therefore our focus is whether reasonable efforts were made to eliminate the need for removal after the detention hearing but before disposition. (§ 361, subd. (d).)

^[5] "Emergency shelter care" is defined as "emergency shelter provided to children who have been removed pursuant to Section 300 from their parent or parents or their guardian or guardians." (§ 16501, subd. (a)(1)(3).)

^[6] The Agency concedes that giving a parent a list of service referrals without additional assistance in providing or arranging services may not constitute reasonable efforts in all cases. ' (See § 16507, subd. (a).)

^[7] The Agency argues that "[i]t is not within the purview or power of the Agency to solve clients' housing or other economic problems." ' However, child welfare services are not limited to specific service-funded activities and include other public social services. (§ 16501, subd. (a).) Although the Agency may not have the resources or programs to directly address housing and economic problems, services include "assisting families in resolving their problems." (Ibid.) Agency referrals to community-based resources and other state and federal agencies are appropriate. Were a parent to have difficulty accessing services, further Agency assistance may be indicated. Here, the record does not show Gayle had problems contacting service providers.