In re Zachary B.
Filed 11/12/13 In re Zachary B. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
In re ZACHARY B., a
Person Coming Under the Juvenile Court Law.
SAN JOAQUIN COUNTY
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
SABRINA B.,
Defendant and Appellant.
C070723
(Super. Ct. No. J04454)
Mother, Sabrina
B., appeals from the juvenile court’s order that denied her request for in-home
visitation with minor Zachary B. and maintained existing visitation orders. (Welf. & Inst. Code, § 395.)
Mother brought the minor to the
County Human Services Agency (the Agency) in November of 2006 because she
was unable to take care of him. The
minor, who was four years old when these proceedings began, suffers from major
psychological problems, including attention deficit hyperactivity disorder,
which cause him to act out impulsively and aggressively. Counseling and psychotropic medication have had
only a limited effect. Since May 2007 the
minor has mostly been placed in group homes and has been deemed
unadoptable.
The minor’s
behavior in the group homes has been problematic. For example, in April 2008, the minor “got
into a ‘locked’ medicine cabinet at his group home.†The cabinet contained Alavert, Seroquel, Clonidine,
Tylenol, Abilify, and Zoloft. The minor convinced
another minor that the medications were candy.
Both overdosed and were taken to the hospital for treatment.
By November
2009, mother had made progress in her reunification plan, both mother and minor
were participating in parent-child
interactive therapy, and the home where mother was living with her
boyfriend, Michael J. was deemed safe and suitable for the minor. The social worker recommended the minor be
returned to the custody of mother, with family maintenance services. The juvenile court returned the minor to the
custody of mother under a family maintenance plan.
In March
2010, the minor was admitted to John Muir
Behavioral Health
Center on a “section 5150â€
hold. Upon return to the home, the
minor’s behaviors escalated and affected mother’s own mental stability. Mother stated she was not capable of
supervising or controlling the minor, even with the intensive counseling
services that had been provided. Pursuant
to a section 387 petition filed by the Agency, in July 2010 the juvenile
court placed the minor in a group home, terminated mother’s reunification
services, and adopted a planned permanent living arrangement as the minor’s
permanent plan.
A December
2011 status review report stated that the minor, who was then in fourth grade
and taking three different psychotropic medications, had “more good days th[a]n
bad days†at school, but still frequently had behavioral problems at the group
home.
On December 21,
2011, the juvenile court held a hearing on mother’s request for in-home
visitation. The Agency originally
suggested the idea, hoping it might encourage the minor to improve his
behavior. However, a social worker who
was present at the hearing told the court he found an “overwhelming [odor] of
marijuana†during a home visit. He
recommended against the minor being returned to that environment. The Agency also had “concerns†about Michael J.,
mother’s “live-in†boyfriend, because he had a long criminal history, including
possession of marijuana and resisting arrest.
Michael J. had become aggressive during the social worker’s home
visit. The minor’s counsel agreed with
the Agency that the marijuana issue made in-home visitation inappropriate.
Mother’s
counsel stated that mother had a medical marijuana card. Mother added that she also had a letter from
her doctor. Counsel further stated that
mother had only been smoking marijuana inside of the home over the last year
and half since the minor last had been placed with her, and mother was willing
to refrain from use for a reasonable period before in-home visits.
Mother’s
counsel stated that mother smoked marijuana at home. However, when the minor was living in the
home, mother smoked only outside the house and outside his presence. Mother stated that whatever marijuana she had
in the house was kept in a locked box. She
added that Michael J. also had a medical marijuana card.
The
juvenile court declined to order in-home visitation at that time, but stated
that it might reconsider the issue if mother and Michael J. both provided their
medical marijuana cards and were willing to avoid smoking for a reasonable time
before in-home visits.
On February 27,
2012, the juvenile court held a contested visitation hearing. The court heard testimony from the social
worker, mother and Michael J.
The Social Worker’s
Testimony
The social worker stated that when
he went to the home on an announced visit in November 2011, he found an
overwhelming odor of marijuana that was so intense he had to leave without
doing a complete home inspection. The
social worker stated that both mother and Michael J. denied there was an
odor. Also, they “initially†denied they
had been smoking marijuana.
name="_ftnref2" title="">[2] Acknowledging that mother had stated she had
a medical marijuana card, county counsel told the court he was recommending
against home visitation only because of the smell. The social worker also stated that the minor
had been moved from a group home in Davis to a group home in Stockton, nearer
to mother’s residence, and the Agency approved of mother visiting the minor
there as often as possible.
Mother’s Testimony
Mother
testified she was requesting overnight visits, monthly at first, then weekly,
with the hope of eventually regaining custody.
She and Michael J., whom she called her fiancé, now visited the
minor three to four times a week, ranging from two to five hours at a time. The court’s orders allowed them to have a 12-hour
visit, so long as they did not take the minor home.
Mother did
not remember denying marijuana use when the social worker visited in November
2011. She testified, “we were surprised
when he asked. But by -- at the end, we
told him.†Mother believed the Agency
had known about her medical marijuana recommendations since 2006.
that time. Mother and Michael J.
explained to the social worker that in November 2011, they did not think it
mattered whether they smoked in the house at that time because the minor had not
lived there for a year and a half.
Michael J. also had a medical marijuana card and mother had
provided the social worker both of the card numbers in a telephone conversation. She did not produce her card to the social
worker during the visit because it had just expired and she had to get a new
one, which she did immediately afterward.
Mother used
marijuana for “seizures and anxiety.â€
She had had a seizure in the minor’s presence during a group home visit
in December 2011. The seizures generally
occur once or twice a week and last 10 to 20 minutes. She needs help as she is coming out of a
seizure, because she is “kind of confused.â€
She smokes after some, but not all seizures. Marijuana relieves the pain and it does not
affect her liver, with which she has “issues.â€
Other pain medications “knock [her] out†and prevent her from
functioning. If a seizure occurred
during the minor’s home visit, she would endure the pain rather than
smoke. A seizure during a home visit
would not create a problem in controlling the minor because mother always had
Michael J. or his mother with her. Unlike
other forms of medication, marijuana enabled her to continue functioning. Michael J. smoked “[w]hen he has
pain.†Both smoked “when we feel the
need.â€
Mother
stated that since the social worker’s visit in November 2011, she and Michael J.
“no longer medicate in the home†and they bought an air purifier. She said they would guarantee that they would
not “medicate†for 72 hours before visits or during visits. All prescribed substances in her home were
behind locked doors. She stated that the
social worker had not been back to visit and invited a return visit.
Mother and
Michael J. had developed “house rules†for the minor in the event he was in the
home with her, including “no biting, no hitting, keep your hands to yourself,
to be respectful to others, no swearing, to not touch or mess with property
that is not his own.†They had also prepared
a safety plan based on what they had learned through “wraparound services.†These services taught them that the minor was
a special needs child from whom they had expected too much in the past. They had also learned proper methods of
redirecting him and restraining him if necessary.
Since the
minor had been moved to the new placement, mother believed he was much happier,
with fewer outbursts. The group home
kept mother and Michael J. informed about how things were going
there.
of Michael J.
When the
social worker visited in November 2011, Michael J. did not deny having
recently smoked marijuana. He had a
valid medical marijuana card for arthritis, and had had a card since 2005. Like mother, he said they no longer “medicateâ€
inside the home and they obtained an air purifier. He would guarantee that he would not
“medicate†72 hours before visits.
He was willing to take any further previsit precautions the Agency might
suggest. He now smoked marijuana in a
shop he had on his property.
In a given
week, Michael J. might not need to smoke marijuana at all, or he might need
to smoke five times a week; it depended on whether his arthritis flared
up. He still worked as a carpet
installer. This might make the arthritis
flare up more than when he did not work.
He “cho[]se not to use†other drugs that are prescribed for arthritis
because he had looked them up and did not like their side effects. He might take aspirin sometimes. His current doctor recommended marijuana for
his condition. He saw this doctor once a
year. He got his marijuana from a
“delivery service,†whose name he did not recall. So far he had used the service only once,
purchasing two ounces. He did not have a
regular recommended dose, but tried to use as little as possible, so two ounces
would last “[a] very long time.â€
Michael
J.’s mother, who was a nurse, had originally diagnosed him with arthritis. He believed he had suffered from it since he
was 12 years old. The only doctor who
had diagnosed arthritis was the one who prescribed marijuana for him. When asked what testing the doctor had done
in diagnosing his arthritis, Michael J. replied “medical tests.†When asked what specific testing was done, he
said he was unsure, adding, “I’m not a doctor.â€
No blood work was done.
The Juvenile Court’s
Ruling
The court
stated that the social worker’s statement about the overwhelming odor of
marijuana in November 2011 was a matter for concern because the minor would be
exposed to secondhand smoke. The court
observed, “There’s some dispute as to whether or not the parents admitted to
use or not, which is disheartening to the Court. If that’s the case, they should be up front,
let them know what is going on, not hide that fact. That was a concern.†On the other hand, the precautions mother and
Michael J. had now taken “impressed†the court; they were “steps in the
right direction.â€
The court
remained concerned that the minor was a special needs child who still displayed
“poor impulse control†in the group home and frequently needed to be restrained
for his own safety and the safety of both peers and staff. Furthermore, the fact that he was on
medication raised the question whether mother and Michael J. would be able
to administer the medication correctly, if, for example, mother had a seizure
while Michael J. was out of the house.
The court had been provided no information about Michael J.’s
mother and there was no evidence that she would be available when needed.
Michael J.’s
account of his arthritis and the need for marijuana to treat it was “suspectâ€
because it was diagnosed by a doctor seeing him for the first time, who
administered no blood work or other testing.
It was unclear whether the condition was really arthritis, if so how
severe, and whether there were alternative approaches.
Mother used
marijuana, by her own account, to relieve pain from her seizures, not the
seizures themselves. The court remained
concerned about “what condition these parties will be in when they’re
using this marijuana, or having used it[,] and if the minor’s going to be
subject to that.†Although the rules
they had devised were “great,†the court was not satisfied that there were
“sufficient safeguards†for the minor, given his demonstrated needs and
problems.
In light of
the above, the court ruled that extended home visits were not appropriate at that
time. In response to mother’s request
that the Agency conduct a home inspection, the court said the social worker
could return for an inspection if he chose to do so. The court was of the opinion that the safety
plan for the minor was not sufficient.
“So until we come up with something different, visits are going to
remain as previously ordered.†In
particular, the court wanted it clarified whether there were alternative
treatments available for mother’s seizures and whether her treating physician
was aware of the minor’s needs and what might occur when he was on
medication.
The court
thereafter entered written orders maintaining the existing visitation order and
setting the matter for further hearing in June 2012.
Mother contends the juvenile
court abused its discretion by denying her request for in-home visitation.
“Whether an
order should be modified rests within the sound discretion of the juvenile
court. Its decision will not be
disturbed on appeal absent a clear abuse of discretion. [Citation.]â€
(Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 118-119.)
Mother
asserts that the court abused its discretion by finding her proposed
precautions insufficient to ensure the minor’s safety during in-home
visitations. In her view, the court
could not reasonably doubt her promises that she would abstain from marijuana
use before and during the minor’s visits because “there was no evidence in any
of the dependency proceedings that Mother abused drugs or that her use of
medicinal marijuana affected her parenting skills or relationship with [the
minor].†According to mother, “the
evidence supported only one inference:
that Mother would not be under the influence of medicinal marijuana
during any in-home visitation with [the minor].†Mother’s argument is unpersuasive.
First, the
court made express or implied credibility findings adverse to both mother and
Michael J., which are supported by substantial
evidence. The court expressly found
that Michael J.’s alleged need for medical marijuana was “suspect†because
his purported condition had never been properly diagnosed, and the inferiority
of other treatments for it had not been established. The court expressed concern about what mother
and Michael J. told the social worker about their marijuana use during the
November 2011 visit. While mother said
she did not remember initially denying marijuana use, Michael J. unequivocally
said he made no such denial. The court
noted that any such denial would be “disheartening.†We observe that neither mother nor Michael J.
denied having told the social worker there was no odor in the home. This evidence gave the court cause to
question the credibility of mother’s promise to abstain from marijuana use
before and during the minor’s home visits.
Second,
even if credible, mother’s promise did not resolve all potential problems. By her own admission, she could have a
seizure during a visit by the minor. Even
if she did not use marijuana during a visit, it was unclear how she could cope
with the minor’s needs, including his need for medication, if mother was
undergoing a seizure or immediately afterward -- when, as she acknowledged, she
would need help herself. And, as the
court found, there was no evidence that Michael J. or his mother could be
counted on to help at such a time. The
minor’s supervision at all times was
critical in light of his history, which included raiding a locked medicine
cabinet and eating the contents as if it were candy.
It was
undisputed that mother and Michael J. had ample visitation at the minor’s
group home and those visits went well.
It was also undisputed that the minor remained psychologically fragile
even in that controlled environment, where expert help was presumably available
at all times. Under the circumstances, the
juvenile court could reasonably exercise its discretion to maintain the status
quo as to visitation, subject to reconsideration if further evidence favorable
to mother’s request were presented in the future.
The order
appealed from is affirmed.
MURRAY , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] After the social worker said mother and
Michael J. “initially†denied smoking marijuana, the court asked about the
group home in which the minor was residing.
County counsel had no further questions regarding the issue, and neither
counsel for mother nor counsel for the minor asked the social worker any
questions. At the December 2011 hearing,
counsel for the social worker told the court that mother and boyfriend “first
denied use of marijuana and then later
admitted using it that day.â€
(Italics added.)
