In re Pablo U.
Filed 9/6/13 In re Pablo U. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
In re PABLO U., JR., a Person Coming Under the Juvenile Court Law. | B245684 (Los Angeles County Super. Ct. No. CK62325) |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PABLO U., SR., Defendant and Appellant. |
APPEAL from
orders of the Superior Court
of
County, Veronica McBeth, Judge. (Retired judge of the L.A. Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Janice A.
Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant
County Counsel and Navid Nakhjavani, Deputy County Counsel for Plaintiff and
Respondent.
I. INTRODUCTION
The father, Pablo
U., Sr., appeals from the juvenile court’s jurisdiction and disposition
orders. He contends there is
insufficient evidence to support the jurisdictional findings under Welfare and
Institutions Code section 300, subdivision (b).
father argues the juvenile court’s factual findings were insufficient. We affirm the orders.
II. PROCEDURAL HISTORY
A. Section 300 Petition
On June
13, 2012, the Los Angeles
County Department of Children and Family Services (the department) filed a
section 300 petition on behalf of the recently born infant, Pablo U., Jr. Count b-1 of the petition alleges the mother,
G.J., had used illicit drugs during her pregnancy with the child. The mother had a history of drug use,
including methamphetamine and marijuana, which rendered her incapable of caring
for the child. Count b-1 also alleges
the child’s two siblings, Alex J. and Mary J., received permanent placement
services because of the mother’s illicit drug use. Count b-2 alleges the father had a history of
drug use and abused marijuana.
B. Detention Hearing
At the June 13, 2012 detention
hearing, the juvenile court detained the child with temporary placement
vested with the department. The juvenile
court denied the father’s request for custody.
However, the juvenile court indicated the father could secure custody
depending on his marijuana test results:
“And I’m going to indicate that if father -- father test for
marijuana. If over the course of three
tests -- I will allow weekly tests -- if the tests are -- if his numbers are
going down, then I want the child be placed with him for three weeks. I want three consecutive weeks of the numbers
going down, and then the child can be placed.â€
The juvenile court ordered weekly drug testing and parenting classes for
the parents. The parents were granted
monitored visits, two to three times a week for two to three hours per
visit.
C. Jurisdiction Hearing
At the October 2, 2012 jurisdiction hearing, the juvenile court
sustained the following count b-1: “The
[mother] is a current abuser of marijuana, which renders the mother incapable
of providing regular care of the child.
The mother used illicit drugs during her pregnancy with the child. The child’s siblings, [Alex and Mary J.],
received Permanent Placement Services, due to the mother’s illicit drug
use. The mother’s illicit drug use
endangers the child’s physical health and safety and creates a detrimental home
environment, placing the child at risk of physical harm and damage.†The juvenile court struck the allegation
concerning the father’s marijuana use because his serum cannabinoid levels were
going down, with the exception of one blood test.
D. Disposition Hearing
At the November 2, 2012 disposition hearing, the juvenile court
denied the father’s request for physical custody of the child. The juvenile court explained: “I also think father sincerely loves his
child a lot. I found that and I believe
that from his testimony and what he has done with respect to the child; but I
do not think at this point father is strong enough to protect this child from
the mother and for that reason, I am not going to release the child to father
at this time.†At the hearing, the
juvenile court observed the mother appeared either nervous or under the
influence of a drug. The juvenile court
commented: “As to the mother, I
understand she has negative testing and it appears to the court so much of the
basic system of somebody who is using now. . . . I hope
she is just nervous and that accounts for the behavior I see exhibited before
me, but in any event, I think father has taken too long from the time that the
child was removed until just recently to have mother move out. I am very concerned if he is probably
returned to father and he would not be protective of Pablo from the
mother.†The November 2, 2012 minute
order states: “By clear and convincing
evidence pursuant to [section] 361(b):
Substantial danger exists to the physical health of minor and/or minor(s)
is suffering severe emotional damage, and there is no reasonable means to protect
without removal from parent’s or guardian’s physical custody.â€
The father was ordered to have eight random
drug blood tests, with no missed or dirty tests. The juvenile court stated: “If I do have those [missed or dirty test],
then you will have to take the whole [drug and alcohol] program. As long as I have eight random test[s,] and
that will go a long way along with the other things. I am going to talk about letting you know
that you can indeed provide a safe home for Pablo.†The father was granted unmonitored visits,
two or three times a week for two to three hours, outside the presence of the
mother.
III. EVIDENCE
A. Detention Report
The June 13, 2012 detention report stated
the department received a referral the day after the mother delivered the child
at the hospital. The detention report
stated the mother had disclosed her drug abuse history, which included past
methamphetamine use and daily marijuana use since she was a teenager. The baby tested negative and did not exhibit
any withdrawal symptoms.
On June 8, 2012, children’s social worker
Jane Gonzalez spoke with the hospital social worker, Marisa Martinez, about the
referral. Ms. Martinez reported
after the child was born, the mother admitted using marijuana. But the mother was not tested for drugs. The mother found out she was pregnant at
seven months and had smoked marijuana daily before she learned of her
pregnancy. According to Ms. Martinez,
the mother last used marijuana about a month ago. But the mother then changed her story when
she was informed the department would be notified.
On that same day, children’s social worker
Crystal Pimentel spoke with the child’s nurse, Marilu Baylosis, at the
hospital. The nurse stated the hospital
failed to test the mother for narcotics pre-delivery. Ms. Baylosis reported the baby was
healthy with no withdrawal symptoms. The
mother was bonding with the child and taking care of him appropriately by
feeding him on time and changing his diaper.
Ms. Pimentel also interviewed the
mother at the hospital. The mother
reported her two other children had been adopted. The mother stated she stopped smoking
marijuana when she found out she was pregnant at six months. The mother denied stating she used marijuana
a month ago. She said: “I didn’t say that. I told the nurse that it was months ago not
one month ago.†The mother explained she
was unaware of the pregnancy until she was six months pregnant because she had
irregular periods and her stomach did not grow.
The mother disclosed she and the father smoked marijuana together. They did not have medical marijuana
cards. The mother agreed to drug test
and was tested by the hospital. The
hospital staff later confirmed the mother tested positive for opiates.
Ms. Pimentel interviewed the father and
advised him of the allegations. The
father confirmed he smoked marijuana daily and had smoked that day before going
to work. He stated smoking marijuana
relaxed him and gave him a better attitude.
The father resided with the mother and a brother and sister-in-law,
Robert and Carolyn L. He stated the
mother last smoked marijuana about three months ago when she learned about her
pregnancy. The father noticed the
mother’s stomach was growing and told her to go to a clinic. They went to a clinic and learned about the
pregnancy. When informed about the
mother’s past, the father responded: “I
don’t care about her past. I just want
to move forward with her and my baby.â€
The detention report discussed a prior
dependency case that resulted in termination of the mother’s parental rights
over her two older children, Alex and Mary.
On February 8, 2006, the department filed a section 300 petition on
behalf of Alex and Mary. The petition
alleged Mary and the mother tested positive for marijuana. The positive test was returned when Mary was
born. The petition further alleged the
mother and the father, Miguel C., were frequent users of marijuana and abused
illicit drugs while caring for Alex. The
juvenile court sustained the petition on March 2, 2006. On August 7, 2007, the juvenile court
returned the children to the parents and terminated the suitable placement
order.
On March 9, 2009, the juvenile court
sustained another petition alleging the mother and Miguel C. physically abused
two-year old Mary. During a medical
examination on October 22, 2008, Mary was found to be suffering from severe
injuries. The injuries included bruises
and abrasions to her eye, chest, right elbow and legs, and cigarette burns on
her legs and buttocks. Miguel abused
Mary by striking her with a paddle, a cord, a belt, and his hands. Miguel also pushed her into a wall causing
her to lose consciousness. On October
22, 2008, Miguel was arrested for injuring Mary. The mother also abused Mary. The mother struck Mary with a cord and
belt. Also, the mother choked Mary
around the neck. In addition, the mother
struck the child’s face on numerous occasions.
Each parent failed to protect Mary from the abuse of the other. The juvenile court also sustained a domestic
abuse allegation. The petition alleged
the parents had a history of domestic violence.
On one occasion, Miguel struck the mother’s face in the children’s presence. Finally, the juvenile court sustained an
allegation that Miguel violated a court order by allowing the mother to reside
in the children’s home and to have unlimited access to them. The
parental rights of the mother and Miguel were terminated and Alex and
Mary received permanent placement services.
Their adoption was finalized on June 10, 2011.
Ms. Pimentel spoke with Shantie Blair,
the social worker assigned to the mother’s prior case. Ms. Blair reported the mother did not
comply with the prior court orders. At
one point, the mother disregarded a court order by living at home with Alex and
Mary. The mother also abused
methamphetamine at one point.
B. Jurisdiction/Disposition Report
The July 18, 2012
jurisdiction/disposition report was prepared by children’s social worker Lorena
Moya. The mother admitted she used
marijuana on a daily basis but stopped smoking after she learned she was six
months pregnant. The mother received
prenatal care following confirmation of her pregnancy.
The mother reported smoking marijuana since
she was 12 years old. At the age of four,
she witnessed her father, the maternal grandfather, smoking marijuana. The father was aware of the mother’s drug use
because the parents smoked marijuana together.
The mother claimed marijuana relaxed her and helped her with her
asthma. The mother admitted prior
methamphetamine use. The mother
said: “I started meth at the age of 13
or so and I used it off and on until 2006, when my other kids were taken away. I wasn’t a frequent user of meth. I mean there were times when I didn’t use for
a really long time, like years and then I started to use again.â€
The father admitted he and the mother smoked
marijuana together. He stated: “Before she (mother) was pregnant, we were
both smoking weed on a daily basis. I
smoked two joints in one day, every day.
I smoked once in the morning, before work and another joint after
work. She (mother) was smoking weed
before I met her. I started going out
with her (mother) a year ago.†The
father indicated he has been smoking marijuana since he was 15 or 16 years
old. At 18, he started using
methamphetamine every day, twice a day but stopped in 2008 after he
participated in a drug program.
Ms. Moya reported the father’s home was
assessed for placement. The father’s
home was furnished with necessities for the child including a crib, clothes,
bottles, wipes, an infant tub and shoes.
The father agreed to obtain diapers and formula once the child was
released. The father resided with a
paternal uncle, Robert L. Also living in
the residence was Robert’s girlfriend, Carolyn E. Carolyn’s brother lived in a shed in the
backyard. The other residents had not
been live scanned or interviewed by department staff.
C. Addendum Report
The July 25, 2012 addendum report indicated
the mother had enrolled in a substance abuse and parenting program on June 25,
2012. At a July 19, 2012 meeting with
Ms. Moya and children’s social worker April Dejohnette, the father stated
he was unaware of the mother’s severe physical abuse of the child’s
half-sibling, Mary, in 2009. On July 24,
2012, the department staff held a team decisionmaking meeting with the parents
to discuss return of the child to the father’s home. The father indicated he did not believe the
mother abused Mary. The father stated,
“I have known her (mother) for over a year and I don’t think that she could
hurt a child like that. I see how she is
with our son.†Ms. Moya expressed
concerns about the father’s ability to protect the child from the mother. In response, the father rolled his eyes and
mumbled, “Whatever.†But the father
reiterated he would protect the child and not allow the mother in the home
should the court make that order. For
childcare, the father stated he would have the maternal grandmother take care
of the child while he worked.
Ms. Moya indicated the father was receptive to having the child
placed with the maternal grandmother while the parents remained together in the
home. The father stated: “Yeah, that’s good. I don’t mind the baby being with her
(maternal grandmother) until we get him [the child] back.â€
D. Interim Review Reports
The October 2, 2012 interim review report
stated the parents had participated in substance abuse and parenting classes
since June 15, 2012. Each parent had
five negative drug tests in August and September. The foster mother reported the mother was a
little rough with the child and did not seem confident when caring for
him. The foster mother observed the
father exuded confidence when caring for the child. The father held the child. Also, the father would change and feed the
child during visits. The father appeared
very loving and affectionate with the child.
The report indicated the mother’s drug use
had affected the child’s well-being.
According to the initial medical exam, the child exhibited stiffness in
his extremities indicative of withdrawal symptoms. The report also indicated the child kept his
hands in a fisted position, did not bear weight on his legs, avoided eye
contact during feedings, and was a restless sleeper. The report states: “It is suspected that the mother might have
also engaged in methamphetamine use due to the child’s exhibiting withdrawals. The child was referred to the Regional Center
for evaluation and results show that the child presents slight skills in all
areas of development tested except in the area of cognition.â€
The November 2, 2012 interim review report
indicated the father missed two drug tests.
The laboratory reported the father missed drugs tests on September 28
and October 1, 2012. The father stated
he had gone to the testing site but his name was not on the list. A children’s social worker, Ms. Dejohnette,
called the laboratory and was informed the father’s name was on the list. The father later agreed to submit to an on demand
test on October 4, 2012 and tested negative for drugs.
On October 9, 2012, Ms. DeJohnette met with
the parents, the foster mother, and Vicky Baeza, the Regional Center service
coordinator. Ms. Baeza stated she
was concerned about the child’s jerky head movement because it was a sign of
withdrawal. The child qualified for
early start services which would begin in two weeks.
On October 25, 2012, Ms. Moya made an
unannounced visit to the father’s home.
Ms. Moya visited to confirm that the mother had moved out. The mother stated to the juvenile court that
she would move out of the home. However,
the mother was present and greeted Ms. Moya. The mother stated: “I’m almost all moved out. I’m at my mom’s house.†According to Ms. Moya’s report: “When asked if she had moved out of the
house, the mother replied, ‘I’m not going to take all my things out. Most of what’s in the room is mine and my mom
doesn’t have the room to fit all my things.
I’m coming back to the house so I don’t see why I have to have
everything gone.â€â€™ The mother appeared
upset. Ms. Moya clarified that the
department was not asking the mother to leave the house. Rather, it was mother who had made this
proposal in court. The mother stated,
‘“[We] were being pressured for me to leave the house. [The father’s] attorney keeps yelling at
[him] and telling him that I need to leave.â€â€™
Ms. Moya recommended the child remain in foster care while the
parents continued with their programs.
The mother responded: “Well, I
think that’s a good plan too. I think it
would be better for the baby to stay where he’s at until me and [the father]
could get the baby back.â€
The father, who had been in the shower,
walked in on the conversation between the mother and Ms. Moya. The father stated he did not want the mother
to leave but had been pressured by his attorney, Donna Bernstein. Ms. Moya asked the father what he wanted
and the mother interjected saying, “We think it would be better if the baby
stayed where he’s at.†Ms. Moya requested
the mother allow the father to speak on his own behalf. The father replied: “We’re a team. We are each other’s support and I think it
would be better for the baby to stay where he’s at until we can both get the
baby back.†The father added the parents
were being cooperative with their programs and should have the child returned
to their care. Ms. Moya explained
the mother only admitted using marijuana.
But the Regional Center staff suspected the mother had used
methamphetamine because of the child’s withdrawal symptoms. The mother did not argue with Ms. Moya’s
statement, and replied: “Oh yeah? Ok.â€
Ms. Moya observed the father sighing in disbelief when she
explained the child’s withdrawal symptoms were caused by prenatal drug
exposure. The father then changed his
mind and stated: “I want my son. I want him.
I don’t want to wait.†Ms. Moya
wrote: “The father stated he wanted the
mother to move out in order to have his son with him. The mother then replied, ‘Ok. If that's what you want.’â€
When asked about the childcare plan, the
father stated he would ask the maternal grandmother or his roommate, Carolyn,
to care for the child. The father had
not yet spoken with Carolyn. But the
mother has talked to Carolyn about caring for the child. Carolyn, who came out of her bedroom with her
infant daughter, acknowledged the parents had asked her to care for the
child. Ms. Moya was unable to see
Carolyn’s bedroom to ensure the infant had a crib. This was because Carolyn claimed she was locked
out of her bedroom. All the residents at
the father’s home had been live scanned except for the paternal uncle who
traveled extensively for work.
IV. DISCUSSION
A. Standard of Review
We review the juvenile court’s
jurisdictional findings for substantial
evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 574-575;
1433.) We review a removal order for substantial evidence in
the light most favorable to the juvenile court’s rulings. (In re
Miguel C. (2011) 198
Cal.App.4th 965, 969; In re Mariah T.
(2008) 159 Cal.App.4th 428, 441.) Issues of
fact, weight and credibility are the provinces of the juvenile court. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Ricardo L. (2003) 109
Cal.App.4th 552, 564.)
B. Jurisdictional Findings
Section 355, subdivision (a) provides:
consider only the question whether the minor is a person described by Section
300. Any legally admissible evidence that is relevant
to the circumstances or acts that are alleged to bring the minor within the
jurisdiction of the juvenile court is admissible and may be received in
evidence. Proof by a preponderance of
evidence must be adduced to support a finding that the minor is a person
described by Section 300 . . . . †Section 300, subdivisions (b) states: “Any
child who comes within any of the following descriptions is within the
jurisdiction of the juvenile court which may adjudge that person to be a
dependent child of the court: [¶]
. . . (b) The 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 . . . .†To establish jurisdiction under section
300, subdivision (b), the department must prove by a preponderance of the
evidence that: there was neglectful
conduct by the parent in one of the specified forms; causation; and “serious
physical harm or illness†to the child or “substantial risk†of such harm or
illness. (In re B.T. (2011) 193 Cal.App.4th 685, 692; In re Ricardo L., supra, 109 Cal.App.4th at p. 567.) The father, a non-offending parent, challenges the section
300, subdivision (b) jurisdictional findings made against the mother. The father has standing to appeal because he
was aggrieved by the juvenile court’s assumption of jurisdiction over the child. (See In
re K.C. (2011) 52 Cal.4th 231, 239-240; see Canaan Taiwanese Christian Church v. All World Mission Ministries (2012)
211 Cal.App.4th 1115, 1122.)
Substantial
evidence supports the jurisdictional findings under section 300, subdivision
(b). It is undisputed the mother has a
substance abuse history. In 2006, the
mother and Mary tested positive for marijuana at the time of that child’s
birth. The juvenile court took
jurisdiction over the children, Mary and her older brother, Alex. Jurisdiction was assumed because of the
mother’s marijuana abuse. The mother
regained custody of Alex and Mary in August 2007. However, in March 2009, the mother
lost custody of Alex and Mary. This resulted when the mother and the
father, Miguel C., physically abused then two-year old Mary. The children’s social worker assigned to the
prior case reported the mother abused methamphetamine at one point. The mother also violated a court order by
living in the home with the children when she has been ordered to move
out. The mother failed to comply with court-ordered
services and her parental rights over Alex and Mary were terminated. Alex and Mary participated in permanent
placement services and were adopted in June 2011.
The mother did not resolve her substance
abuse problem. The mother acknowledged
she used marijuana on a daily basis since she was 12 years old. The father was aware of the mother’s drug use
because the parents smoked marijuana together.
The mother also admitted she used methamphetamine in the past. She said:
“I started meth at the age of 13 or so and I used it off and on until
2006, when my other kids were taken away.
I wasn’t a frequent user of meth.
I mean there was times when I didn’t use for a really long time, like
years and then I started to use again.â€
The mother admitted using marijuana on a
daily basis while pregnant with the child.
The mother reported she stopped using marijuana three months before
giving birth to the child, when she was six or seven months pregnant. However, the hospital social worker discussed
the marijuana issue with the mother.
During that discussion, the mother stated she used marijuana about one
month before giving birth to the child.
The mother changed her story when she was told the department would be
contacted by the hospital staff.
The father argues the child did not suffer
harm from the mother’s marijuana use.
But the October 2, 2012 interim review report stated the child exhibited
stiffness in his extremities indicative of withdrawal symptoms at the initial
medical examination. The report also
indicated the child kept his hands in a fisted position, did not bear weight on
his legs, avoided eye contact during feedings, and was a restless sleeper. The report states: “It is suspected that the mother might have
also engaged in methamphetamine use due to the child’s exhibiting
withdrawals. The child was referred to
the Regional Center for evaluation and results show that the child presents
slight skills in all areas of development tested except in the area of
cognition.†The evidence amply supports
the jurisdictional findings under section 300, subdivision (b).
C. Removal Order
Section 361, subdivision (c)(1)
provides: “A dependent child may not be
taken from the physical custody of his or her parents or guardian or guardians
with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence of any of the following
circumstances . . . :
[¶] (1) [t]here is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if
the minor were returned home, and there are no reasonable means by which the
minor’s physical health can be protected without removing the minor from the
minor’s parent’s or guardian’s physical
custody. . . . The court shall also consider, as a
reasonable means to protect the minor, allowing a nonoffending parent or
guardian to retain physical custody so long as that parent or guardian presents
a plan acceptable to the court demonstrating that he or she will be able to
protect the child from future harm.â€
Section 361, subdivision (d) states:
“The court shall make a determination as to whether reasonable efforts
were made to prevent or eliminate the need for removal of the minor from his or
her home . . . . The court shall state the facts
on which the decision to remove the minor is based.†The purpose of section 361 is to avert harm
to the child. The parent need not be
dangerous nor the child actually harmed before removal is appropriate. (In re
Cole C. (2009) 174 Cal.App.4th 900, 917; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on
another ground in Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 748, fn. 6.)
The juvenile court may consider both the parent’s past conduct and the
present circumstances. (
p. 917; In re S.O. (2002) 103
Cal.App.4th 453, 461.)
The father argues the juvenile court failed
to make express findings as required by section 361, subdivisions (c) and
(d). We disagree. At the November 2, 2012 disposition hearing,
the juvenile court removed the child from the father’s custody because: the father took “too long from the time that
the child was removed until just recently to have mother move outâ€; the mother
appeared nervous or under the influence of a drug at the hearing; and the
father was not strong enough to protect the child from the mother. The juvenile court’s statement of reasons
support a clear and convincing evidence finding. The mother’s life-long narcotics abuse
endangered the child who was born with symptoms of drug intoxication. Coupled with her methamphetamine abuse, the
father’s indolent enabling with his own drug abuse was sufficient to warrant
removal.
V.
DISPOSITION
All orders under
review are affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
MOSK, J.
KRIEGLER,
J.
name="_ftn1" title=""> [1] Future statutory references are to the
Welfare and Institutions Code.
