In re A.U

Filed 4/25/06 In re A.U. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

Appeal from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Liana Serobian, Associate County Counsel, for Plaintiff and Respondent.

Gloria U., mother of two minors, challenges the juvenile court's order removing the children from her care and placing them with their father. (Welf. & Inst. Code, § 361, subd. (c).)[1] Mother, incarcerated in state prison, argues that the court should have placed the children with her in a drug treatment facility for inmates and their children. Finding no error, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

Petitioner Gloria U. and her husband Nicolas U., Sr., are the parents of seven-year old A.U. and five-year old N.U. Mother has abused drugs for almost 20 years, and has been involved with the Department of Children and Family Services (DCFS) for over 10 years. In 1993, mother lost custody of two children (from a different father) who were born drug-exposed. She failed to comply with court-ordered reunification services. It was alleged that both parents tested positive for marijuana at N.U.'s birth. Mother refused voluntary family maintenance services at that time. DCFS received five additional referrals on the family alleging emotional and physical abuse and general neglect. Two of the referrals for general neglect were substantiated. In November 2001, the family entered into a voluntary family maintenance agreement with DCFS involving general counseling, parenting, and substance abuse counseling and random drug testing.

Mother has a record of arrests and convictions beginning in 1987, including numerous arrests for the possession of controlled substances. Both parents lied to a social worker during a January 2005 visit, claiming that mother was an aunt assisting with the children's care. They told the social worker that the children's mother lived in New York.

The couple separated in early 2005 when father took the children with him to a shelter. He testified that mother left the family for weeks at a time and was having an affair with another man. Mother removed A. U. from the shelter without father's permission. Father found A.U. by contacting a friend of mother's and learning that mother had been arrested and incarcerated for forgery. The sheriffs told father that A.U. was in DCFS custody. Although she was six years old, A.U. had not been enrolled in school or seen a doctor.

On March 24, 2005, DCFS filed a dependency petition alleging that mother placed the children at risk of physical and emotional harm under section 300, subdivisions (b), (c), and (j), on the grounds that petitioner had a long history of substance abuse including the use of methamphetamine and that petitioner's two other children (from a different father) were former dependents of the juvenile court system. At a hearing, the juvenile court detained A.U. and released N.U. to his father's care. The court ordered DCFS to provide family maintenance services to father and reunification services to mother, including at least weekly telephone calls and visits while she was incarcerated within a reasonable distance. On April 25, 2005, the court ordered A.U. released to father and N.U. to remain released to father, conditioned on father drug testing clean, attending treatment programs, and keeping DCFS advised of his address and phone number. DCFS opposed placement with father, arguing that he had failed to protect the children from mother's longtime drug abuse and had drug problems himself, drove N.U. to school using a suspended license, and failed to keep DCFS informed of his address.

Father also has an arrest record, but it appears the most recent arrest was a DUI in 1987. Father admitted to using marijuana and cocaine in high school. He recently passed several drug tests. DCFS required father to participate in a treatment program because he allowed the children to be exposed to mother's drug use, not because DCFS believed him to be a current user. The social worker testified that father has made good progress complying with family maintenance services. He currently is employed, has enrolled the children in good schools, and is attending a treatment program. Father lives with the children in a 90-day shelter called Project ACHIEVE, which provides shelter and case management services to homeless families. The program assists residents with financial planning, job development, and housing placement. The social worker reported that father's room at the shelter was fully furnished, the refrigerator was filled with food and drinks, and the dresser contained children's clothes.

The juvenile court held a disposition hearing on June 7, 2005. By the time of the hearing, mother was incarcerated at a women's prison in Chowchilla. She and father appeared at the hearing and testified. Mother pled no contest to an amended version of the petition. Her attorney joined in the plea and waivers and stipulated to the juvenile court's finding that there was a factual basis for the plea. As sustained, the amended petition alleged that mother was incapable of caring for the children because of her drug abuse and that father failed to take adequate action to protect the children. The amended petition further stated that mother used illicit drugs during two previous pregnancies.

At the conclusion of the hearing, the juvenile court declared the children dependents of the juvenile court under section 300 and placed them with the father. The juvenile court found substantial danger existed to the children's physical and mental health in the care of the mother. The juvenile court also ordered DCFS to provide family maintenance services to father and family reunification services to mother. Mother filed a timely appeal.

DISCUSSION

Mother's main contention on appeal is that the trial court erred by removing the children from her custody. She argues that the children should have been placed with her in a residential drug program during her incarceration.

Findings supporting a removal order are subject to the substantial evidence standard of review. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214; In re Mark L. (2001) 94 Cal.App.4th 573, 581, fn. 5.) Section 361, subdivision (c) sets the standard for removal from parental custody. That section provides that a child may not be taken â€