In re P.Y.

Filed 5/25/10 In re P.Y. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County.

Marilyn K. Martinez, Juvenile Court Referee. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________________

Susie Y. (mother) appeals following the court order finding her two daughters (born 2007 and 2009) dependents of the court pursuant to Welfare and Institutions Code section 300, subdivision (b).^[1] Contrary to mothers contentions,^[2]substantial evidence supports the courts jurisdictional findings and the order removing the children from her care. Nor did the court abuse its discretion in ordering monitored visits, with the Department of Children and Family Services (DCFS) having authority to liberalize visitation.

Mothers history of substance abuse, her inconsistent statements regarding recent Vicodin use, her odd behavior on the day the children were detained, fathers conviction for perpetrating domestic violence against mother when she was pregnant with her youngest child, and statements by mother and father denying domestic violence, amply support the courts findings and orders. We thus affirm the October 8, 2009, orders under review.

The juvenile courts jurisdictional findings are supported by substantial evidence.

The standard of review.

The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence, and we will affirm the courts findings if they are supported by substantial evidence. (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.) An appellate court does not reweigh the evidence or reassess witness credibility (In re S.C. (2006) 138 Cal.App.4th 396, 415), and if substantial evidence exists, whether controverted or not, we affirm the juvenile courts order establishing dependency jurisdiction under section 300. (See James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021).

Although the issue under section 300 is whether circumstances at the time of the hearing subject the child to risk of harm, evidence of past conduct may be probative of current conditions if there is reason to believe that the conduct will continue. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Section 300, subdivision (b), at issue here, authorizes juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parents failure to adequately supervise or protect the child or provide adequate medical treatment. The legislative intent was not only to protect children who are currently being abused or neglected, but also to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. ( 300.2, italics added.) Thus, the Legislature also acknowledged that providing a home environment 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. (Ibid.)

The juvenile courts jurisdictional findings.

In the present case, the juvenile court sustained two counts in the dependency petition. One sustained count alleged substance abuse by mother and a second count alleged domestic violence between the parents.^[3]

A. Domestic violence.

Regarding the domestic violence count, the court noted that it took father two years to complete a one-year domestic violence program. The court also referred to the progress report from fathers prior domestic violence program, documenting that he had completed the program, and observed that the assessment of his performance noted that he had shown some insights, but the report lacked any clear statement that father had made any substantial progress addressing the underlying problem. Significantly, he still did not acknowledge that he was involved in domestic violence. As the court aptly observed, the failure to acknowledge domestic violence reflects the absence of any true progress.

Similarly, the court emphasized that mother also did not acknowledge a history of domestic violence, and that there was a documented recent incident of domestic violence, which had occurred just two months prior to fathers completion of his domestic violence program. Mother admitted that when a DCFS social worker investigated a prior incident of domestic violence, mother lied when she claimed that father did not reside at the home with her and lied when she asserted there was no domestic violence. The court appropriately expressed its concern that patterns of domestic violence are not easy to break and require a strong commitment to resolve. Mothers failure to sufficiently acknowledge the unacceptable nature of domestic violence put her young children at significant risk of harm. (See In re Heather A. (1996) 52 Cal.App.4th 183, 194.)

Mother argues that she and father had not engaged in domestic violence in the childrens presence and the children were never injured. However, mother overlooks that one of the violent incidents occurred when she was five months pregnant, and that she sustained injuries as a result of that assault. By assaulting mother while she was pregnantwhich resulted in fathers second domestic violence convictionfather put the health and safety of their unborn child at risk. Thus, contrary to mothers assertion, their history of domestic violence reveals a risk of detriment and supports the juvenile courts jurisdiction.

B. Substance abuse.

Regarding the count alleging substance abuse, the juvenile court stated, The evidence clearly supports [mothers] involvement with substance abuse and that issue was not argued. So Im not going to say more.^[4]

However, substantial evidence supports the courts finding that mothers history of drug abuse, including her use of marijuana and her convictions for driving while under the influence of alcohol and for possession of marijuana, put the children at substantial risk of harm. The children were initially detained after police officers saw mother trying to flag down cars for a ride. Mother was with her children, then just approximately two years old and one month old. Mother appeared under the influence, but tested negative for alcohol. Mothers pupils were slightly dilated, her speech was slurred, and she stumbled as if she was drunk. She did not respond coherently to questions. At that time, police officers observed mother swallow something white.

Mother gave different explanations as to what she had swallowed. Mother told a social worker it was a piece of paper. She told a DCFS investigator it was a Tums for heartburn. However, she told the arresting officers it was Vicodin and reported that she had swallowed it because she knew that she could be charged with a felony if she were found to be in possession of the Vicodin. Consistent with the admission of Vicodin usage, mother later produced diluted drug test results and ultimately admitted she had diluted the test results to conceal the fact that she had consumed Vicodin. Mother later sent a DCFS investigator a blurry fax, which appeared to be a copy of a prescription for Vicodin, dated September 11, 2009, several days after the children were detained and after mother produced diluted test results. Therefore, according to mothers own timeline, she had ingested Vicodin prior to having a prescription for the drug.

Mother argues that there was evidence of only her occasional and remote marijuana usage (a misdemeanor conviction for possession in 2008), no evidence she was ever under the influence of marijuana while caring for her children, the DUI conviction was several years ago (in August of 2006), and she had a valid prescription for Vicodin. However, as previously noted, her blurry copy of a prescription for Vicodin was dated after her usage of the drug, and the Vicodin apparently rendered mother somewhat incoherent to the investigating police officers and at a time when she was caring for her young children. Mothers prior marijuana and alcohol convictions were probative because they were part of a pattern and consistent with mothers recent illicit use of a prescription drug. The Vicodin incident was just the most recent chapter in mothers brief but irresponsible pattern of substance abuse.^[5] Mothers use of Vicodin rendered her somewhat incoherent, occurred while mother was caring for her children, and thus subjected the children to a risk of harm.

Accordingly, substantial evidence supports the courts jurisdictional order.

The juvenile courts order removing the children from mothers care is supported by substantial evidence.

To remove a child from parental custody there must be clear and convincing evidence of 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 . . . no reasonable means by which the minors physical health [could] be protected without removing the minor from the minors parents . . . physical custody. ( 361, subd. (c)(1).) The juvenile court must determine if reasonable efforts were made to prevent or eliminate the need for removal. ( 361, subd. (d).)

However, [t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) On appeal, we review whether substantial evidence supports the courts removal of the child from his parents custody. (In re Heather A., supra, 52 Cal.App.4th at p. 193.)

In the present case, mother argues that the juvenile courts order removing the children from her custody should be reversed because substantial evidence does not support the conclusion that the domestic violence and substance abuse would continue in the future and would present a risk to the children. However, as the juvenile court aptly noted, the parents remained in denial concerning their serious history of domestic violence and thus had learned very little from the programs they had attended. Also, mother informed the court at a hearing that she was not willing to ask father to move out of the family home as a condition of the courts releasing the children to her care, thus apparently putting her relationship with him above the needs of her children. And, although mother had twice tested negative for drugs by the time of the adjudication and disposition hearing, mothers deliberate effort to dilute a different drug test and thus to conceal her Vicodin usage indicates an avoidance of responsibility.

In view of the above factors, substantial evidence supports the courts order removing from mothers custody the two children, both of whom were under the age of three and thus far too young to protect themselves. The court also appropriately ordered the children committed to the care and custody of DCFS for suitable placement and directed that the children and parents be provided with family reunification services.

The juvenile courts visitation order was not an abuse of its discretion.

The juvenile court defines a parents visitation rights by balancing the parents interest in visitation with the childs best interests (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757), and the court may impose restrictions on parental visitation consistent with the childs best interests. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009). The juvenile court has broad discretion in fashioning a visitation order, which should not be disturbed on appeal unless an abuse of the discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

In the present case, the juvenile courts visitation order provided that the parents shall have monitored visits, but no visits if a parent is under the influence, and it permitted DCFS to exercise its discretion to liberalize the visitation restrictions. Because the court properly found that the children would be at substantial risk if returned to mothers care, it is not beyond the bounds of reason and not capricious or arbitraryand thus not an abuse of discretion (id. at pp. 318-319)to conclude that the same risk would ensue absent some monitoring of the parental visits. We also note that the court properly delegated to DCFS the authority to liberalize visits commensurate with mothers progress.

Hence, the courts visitation order was not an abuse of its broad discretion.

DISPOSITION

The orders under review are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

ASHMANN-GERST, J.

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

^[2] Father of the two children is not a party to this appeal.

^[3] It sustained count b-2, which alleged as follows: Mother of the two children has a history of illicit drug abuse including the abuse of marijuana which renders the mother incapable of providing the children with regular care and supervision. The mother has a criminal history of convictions of Driving While under the Influence of Alcohol/.08 Percent and Possession of Marijuana 28.5 grams. The mothers substance abuse endangers the childrens physical and emotional health and safety, placing the children at risk of physical and emotion harm, damage and danger.

The court also sustained count b-3, which alleged as follows: Mother and father have a history of engaging in violent physical altercations in the presence of [the older child.] On a prior occasion, the father was arrested for Domestic Violence, against the mother. Such violent conduct [by] the childs parents, in the presence of [the older child], endangers the childs physical and emotional health and safety, placing [both of the children] at risk of physical and emotional harm, damage and danger.

^[4] On appeal, DCFS argues that because mother specifically asked the court to dismiss one count alleging substance abuse based on the fact that there was a second similar count that mother was not asking the court to dismiss, mother invited any alleged error regarding the finding as to her substance abuse and, therefore, should be estopped from arguing error on appeal. We view the actions of mothers trial counsel as a defensive trial tactic, and no estoppel results from acts of the appellant which are defensive or precautionary. (Horsemens Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1555.)

^[5] We note that DCFS reported that father was convicted in 2000 for felony possession of a controlled substance, and warrants indicated he was not in compliance with the terms of his probation. Also, father was charged with possession of marijuana in 2008, and the disposition of that case was not known to DCFS.