In re Savannah T.

Filed 7/25/07 In re Savannah T. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

The mother of infant Savannah T. (Mother) appeals from an order entered at an interim status review hearing continuing in place the juvenile courts previous dispositional order that Savannah be returned to her fathers care on condition that Mother not reside in the same household. We affirmed the underlying dispositional order in an earlier appeal by Mother.

Mother contends that: (1) she was denied her asserted due process right to a contested hearing at the interim review proceeding, (2) the order preventing her from returning to the same household with Savannah was not supported by substantial evidence, and (3) respondent Contra Costa County Bureau of Children and Family Services (Bureau) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). We affirm the order entered following the review hearing.

I. BACKGROUND

Sections I.A. through I.C. below reiterate verbatim the background discussion contained in our nonpublished opinion in In re Savannah T. (Mar. 27, 2007, A115157) (hereafter Savannah T. I):

A. The Petition

Savannah T. was born in June 2006.[1] Mother and baby both tested positive for methamphetamine on Savannahs date of birth. On June 27, the Bureau filed a section 300 petition on behalf of Savannah, alleging that Savannah had suffered, or there was a substantial risk that she would suffer serious physical harm or illness, by the inability of her parents to provide regular care due to the parents drug abuse.

The petition alleged as to Mother that: (1) Mother had a history of chronic and regular substance abuse; (2) during prenatal examinations on April 14, May 16 and 23, and June 9 and 11, Mother tested positive for methamphetamine; (3) during prenatal examinations on June 9 and 11, Mother tested positive for marijuana; (4) Mother and Savannah tested positive for methamphetamine on the date of Savannahs birth; and (5) Mother had three other children who were being cared for by their fathers. Savannah was detained on June 28.

B. Jurisdictional Proceedings

A jurisdictional report prepared by the Bureau included summaries of the prospective testimony that would be given concerning Mothers alleged drug use by the following individuals, among others: (1) Bureau social worker, Jennifer Weiss; (2) hospital social worker, Maureen Crosgrove; and (3) early start specialist, Marilyn Scott.

Scott was expected to testify that Mother tested positive on five separate occasions during her pregnancy for methamphetamine and marijuana. When confronted with the test results, Mother was adamant that her positive drug tests were wrong and asked to be re-tested. She suggested that the positive results must have been caused by her mother-in-laws allergy medications, which she was taking for her own allergies. Scott asked Mother several times to bring in a list of the medications she was taking and offered to send samples to the lab to see if they could be causing the positive tests. Mother never provided a list of medications. Scott observed Mother to be agitated, jittery at times, and extremely talkative. In Scotts opinion, Mother was in deep denial about her substance abuse problem due to the possibility of losing her child.

Crosgrove was prepared to testify that Mother and baby both tested positive for amphetamine and methamphetamine on the day of birth. When she discussed the results with Mother, Mother stated over and over again that the results were wrong. Mother told Crosgrove that she had taken AM/PM, which she had received from the Kaiser pharmacy. Crosgrove learned that the Kaiser pharmacy had not dispensed AM/PM (now called Allegra) for some time, and that this medication was not sold over the counter, but must be prescribed. When Mother finally did produce medication she claimed to have taken, she brought in Sudafed, not AM/PM.[2] Crosgrove would testify that when she first met Mother, she presented as jittery and very hyper, talking incessantly. She believed Mother looked like a meth user.

Weiss would testify that she investigated the drug use allegations for the Bureau. Mother told Weiss that the allergy medications she was taking were over-the counter, not prescription. She told Weiss that she had never been to a doctor for her allergies as they were not really that bad. Weiss spoke to Crosgrove, who informed her that she had spoken directly to the hospital pharmacist, who told her that no allergy medication would cause a positive test for methamphetamine. Weiss confirmed this with the pharmacy and with a hospital neonatologist, who called the regional testing lab in Berkeley to verify the information. The charge nurse told Weiss that Mother appeared to be under the influence in that she was constantly scratching, talking incessantly, and moving constantly.

The jurisdiction report prepared by the Bureau in connection with the July 10 hearing further stated, The [ICWA] does or may apply. The report also included a recommendation to the juvenile court that it order the parents to provide the social worker with information about any American Indian ancestry which the child may have . . . .

A contested jurisdictional hearing began on July 10 and continued on July 28. At the outset of the continued hearing, the court accepted the parties stipulation to amend the petition to allege that Mother has a substance abuse problem which impairs her ability to care for the child. Mother admitted that allegation, and the parties stipulated that the admitted allegation was sufficient to support the juvenile courts jurisdiction over the minor. The other allegations of the petition were dismissed. Mothers counsel stated on the record on July 28 that Mother had been in an outpatient drug treatment program for one month.

In its written jurisdictional order, the court adopted the Bureaus recommendation that the parents be ordered to provide the social worker with information about any American Indian ancestry the child might have. The disposition report submitted to the court on August 22 stated that [t]he [ICWA] does not apply.

C. Proceedings on Disposition

The August 22 disposition report included the following information: Mother started her prenatal care late and, once she did so, tested positive on at least five occasions during her pregnancy for methamphetamine and marijuana. At the time of Savannahs birth, Mother and Savannah both tested positive for methamphetamine. Mother denied drug use throughout her pregnancy, and continued to deny drug use, insisting that her positive results were caused by allergy medication. Although Mother had since enrolled in out-patient treatment with New Connections, the Bureau was unable to monitor Mothers progress in the program because she had refused to sign a release form permitting the two agencies to communicate. Father and Savannahs paternal grandmother appeared to join in Mothers denial of her drug use.

The disposition report further stated that Mother and Father were in a long-term committed relationship and appeared to have a deep bond with one another. They had been consistent in their visitation with Savannah, had a deep love for her, and genuinely missed her. However, due to continued concerns about Mothers drug use and denial, and about Fathers criminal record (which included a 1987 conviction for child cruelty and a 2004 arrest for spousal abuse), the Bureau recommended against returning Savannah to her parents care. The Bureau also noted that Savannahs paternal grandmother had submitted an application for relative placement, but that she had been deemed ineligible due to the fact that Mother and Father lived with her.

At the disposition hearing, the social worker testified that after Savannah was removed and detained, Mother again tested positive for methamphetamine on July 11. She testified that Father was evasive when questioned about Mothers drug use. When she discussed with both parents her concern about parents who use methamphetamine with infants in the home, they both denied there was any substance abuse in the home. When the social worker spoke to Savannahs paternal grandmother, she also denied any substance abuse by the parents.

When the grandmother testified at the disposition hearing, she confirmed that she did not believe Mother was using methamphetamine currently or had been using it in the recent past. When asked if she had ever discussed Mothers positive drug tests with her, she responded as follows: Um, we have been very busy lately. We have moved, and our house is partly under construction, and we all went through the flu and things like that so . . . I really dont havehavent seen any signs of herbut Im not an expert on drugs . . . .

The juvenile court found by clear and convincing evidence that returning Savannah to her mother would create a substantial danger to Savannahs physical health, safety, protection, or emotional well-being. The court further found that reasonable efforts were made to avoid the need for removal of the child. However, the court did not accept the Bureaus recommendation that Savannah be removed from both parents care. Instead, it ordered that the child be returned to Fathers care on condition that (1) Father remain living in his mothers residence, and (2) Mother not reside in the same household.

The court explained the basis for its decision in relevant part as follows: The fact that [M]other tested positive and exposed the child to methamphetamine when the child was in-utero . . . suggests strongly that a child returned . . . to her custody, at least early on in her recovery, would be at risk. Mother tested, again, at the time of the childs birth positive and subsequent to the childs birth, has tested positive. And . . . giving full [credence] to evidence of negative tests after the fact, shes only been testing clean for about two and a half months, and assuming shes involved in her aftercare, all of which . . . are positive steps, but the irresponsibility in the recent past . . . certainly creates, in my mind, by clear and convincing evidence, that returning the child to [M]other would create a substantial risk. [] Now, on the other hand, I think that that risk, by clear and convincing evidence, does not exist as to [F]ather. The court also stressed that Mother had to address her drug use issues not simply by attending outpatient treatment, but by coming to terms with the fact that the allegations of drug use against her were true.

D. Affirmance of Disposition Order on Appeal

Mother timely appealed from the dispositional order. In Savannah T. I, supra, A115157, we affirmed the order, finding that Mother had endangered Savannahs physical health and safety by exposing her to high doses of methamphetamine and other drugs in utero. We further found that during her pregnancy and up to the time of the disposition hearing, she remained in denial that she had any type of drug problem, and that the persons in the best position to oversee Mothers in-home care of Savannah, Savannahs father and paternal grandmother, were also in a state of denial about Mothers drug use. Also, as of the dispositional hearing, there was little evidence in the record in the form of clean drug tests or a track record of positive performance in drug treatment to demonstrate that Mother had overcome her drug dependency. For those reasons, we concluded that the juvenile court was justified in removing Savannah from Mothers care. We also found that the Bureau was not required to give notice under the ICWA because the Bureau in fact had no information about any Indian ancestry on Savannahs part despite having afforded the parents an opportunity to supply such information.

E. The Interim Review Hearing and Order

At the disposition hearing, the trial court calendared a status review hearing pursuant to Welfare and Institutions Code section 364 on February 15, 2007, and set a November 16, 2006 date for an uncontested three-month status review. On November 16, the social worker submitted a one-page memorandum to update the court on the parents compliance with their case plans. The caseworker reported that Father had started parenting education and participated in on demand drug testing, but he had not begun therapy or Al-Anon classes. Savannahs paternal grandmother reported that Father was very good with the baby.

The caseworker noted that Mothers case plan consisted of outpatient substance abuse treatment, drug testing, and participation in 12-step meetings, parenting education, and therapy. According to the memorandum, Mother had been drug testing consistently with one missed test. All tests had come back negative for drugs and alcohol. She began an outpatient treatment program on November 9, 2006, and reported that she had been attending one or two Narcotics Anonymous meetings per week. She had also begun a parenting education class and individual therapy. The caseworker stated: To date the parents have shown some initiative by starting to work on their case plan. An area of concern is that mother still appears to be in denial about her drug use which caused our initial involvement. This worker remains hopeful that this denial will be addressed in mothers outpatient drug treatment.

At the hearing on November 16, 2006, Mothers counsel stated: So this is a status memo that I cannot contest, you know, by presenting evidence, but I can argue, and I think that its safe for [M]other to return to the home at this time. He informed the court that Mother had been testing clean since at least July 11, 2006, and that Savannahs paternal grandmother had testified previously that she would make efforts to ensure that Savannah was safe if Mother was in the home. Counsel also recalled testimony by an aunt who lived nearby who could take care of Savannah when necessary. He noted that the current living arrangements were a financial hardship for the family. He summed up as follows: [I]t was my opinion at the time of disposition, and its still my opinion, that with so many eyes watching Savannah, so many people there to help out, and mother has now five months of clean drug tests, that there is no risk to Savannah with her in the home. Father joined in Mothers request, and requested in the alternative that the order be modified to allow Mother to have overnight visits with Savannah.

Minors counsel expressed concern that Mother had delayed her outpatient treatment until November 9, and that she was not working, which was part of her case plan. Minors counsel stated that she would have had more sympathy with Mothers position if Mother had gotten started on her program sooner after the disposition hearing. The Bureau opposed any change in the dispositional order and also indicated its concern that Mother had only recently begun an outpatient program. The Bureaus counsel stated that no change in the order was appropriate at this time, and that the court should simply confirm the date for the six-month review hearing.

After hearing from all parties, the court noted that it would expect to see a minimum of 30 days of positive performance if Mother were in a residential treatment program, so it was not prepared to modify the dispositional order based on one week in an outpatient program. The court indicated that if Mother was testing clean and performing well after 30 days in the outpatient program, she could request that the matter be put back on calendar for review before the February review date. At the request of Mothers counsel, the court also gave the Bureau the authority to allow supervised overnight visits if Mother continued to perform well, and if minors counsel were given 72 hours notice of such visits.

Mother timely appealed from the juvenile courts November 16 order to the extent that it left in place the condition that Mother could not live in the same household with Savannah.

II. DISCUSSION

Mother contends that: (1) she was denied her asserted due process right to a contested hearing at the interim review proceeding, (2) the order preventing her from returning to the same household with Savannah was not supported by substantial evidence, and (3) the Bureau failed to comply with the ICWA.

We find no indication in the record that Mother requested a contested hearing on the issue of whether the dispositional orders should be modified to allow her to return to live with Savannah. While the court set the November 16 hearing as an uncontested status review hearing, Mothers claim that it would have been futile to request a contested hearing is unpersuasive. The juvenile court gave no indication whatsoever as to how it might rule on such a request. Having never sought a contested hearing, Mother is in no position to complain that her rights were violated by its denial.

Even assuming for the sake of analysis that Mother had a right to a hearing on her request to modify the dispositional order, any error in that regard was harmless. Even if all of counsels representations to the court are taken at face value, there were no changed circumstances that justified modification of the order. Mother had been in outpatient drug treatment for one week at the time of the hearing. None of the circumstances that led to the dispositional removal orderMothers recent history of endangering Savannahs health through her drug use, her state of denial and that of the other family members about drug usehad been alleviated by events since the dispositional hearing. If anything, Mothers delay in beginning an outpatient program only confirmed that, despite the courts dispositional order, she and other family members in a position to influence her were still not taking her drug issues seriously enough. There was also no prejudice to Mother from the denial of a contested hearing on November 16 because the court specifically invited her to renew her modification request in 30 daystwo months in advance of the scheduled six-month review hearingif her performance in her drug program continued to be positive. Mothers due process claim, even if not waived outright by her failure to request a contested hearing, affords no basis for reversal.

Mothers substantial evidence argument also fails. The argument seems to assume that the Bureau has some ongoing burden to come forward with evidence at each new postdisposition hearing justifying the courts prior dispositional order. No such requirement is imposed by the Welfare and Institutions Code. It is true that Mother is entitled to a presumption of reunification and that the Bureau would have the burden at the six-month review stage of proving that it would be detrimental to return Savannah to her custody, and that it is providing reasonable reunification services. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249; In re James Q. (2000) 81 Cal.App.4th 255, 262.) But this does not mean that the Bureau must relitigate the dispositional order at each interim hearing set for any purpose prior to the six-month review hearing. Such a requirement would make it impossible for the court to play a supervisory role in dependency proceedings outside of the section 364 review process. Nor can Mother impose that burden on the Bureau by making an oral modification request as she did here, without prior notice to the parties or filing a verified petition. (See  388, subd. (a).) The Bureau was under no burden at this hearing to put on evidence in support of the dispositional order over and above the evidentiary showing it had just made at the disposition hearing a few months earlier. Accordingly, there are no substantial evidence grounds for reversing the courts ruling on November 16, 2006 declining to grant what was in essence an improper oral motion by Mother to modify the dispositional order.

Mothers argument regarding the ICWA simply reiterates her arguments in Savannah T. I, supra, A115157. For the reasons stated in that opinion, there was no evidence in the record to support any inference of possible Indian heritage. Accordingly, there was no failure to comply with the ICWA.

III. DISPOSITION

The juvenile courts order following the interim review hearing of November 16, 2006 is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] All dates referred to herein are in 2006 unless otherwise indicated.

[2] According to the hospital pharmacist, taking Sudafed could produce a false positive test result for amphetamines, but not for methamphetamine.