In re C.C.
Filed 11/12/13 In re C.C. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 EIGHT
In re C.C., A Person Coming Under the Juvenile Court Law.
B247060
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
SHERRY E.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct.
No. CK60431)
APPEAL
from orders of the Superior Court
of
County. D. Zeke Zeidler, Judge. Affirmed.
Suzanne Davidson,
under appointment by the Court of Appeal, for Appellant.
John
F. Krattli, County Counsel, James M. Owen, Assistant County Counsel, William D.
Thetford, Deputy County Counsel, for Respondent.
__________________________
Appellant
Sherry E. (mother) appeals from juvenile court orders removing her four-month-old
daughter, C.C., from her custody and denying mother reunification
services. We conclude
order, and under both the substantial evidence and abuse of discretion
standards, the trial court did not err in denying
FACTS AND PROCEEDINGS
Referral
and Preliminary Matters
Mother
has had a lengthy history of DCFS referrals for her two older daughters. Her parenting of C.C. came to the department’s
attention on September 24, 2012,
when a referral was made to the DCFS that C.C. was exposed to second-hand
methamphetamine smoke. The report to
DCFS stated that one of mother’s roommates had tested positive for amphetamine,
other tenants who lived in the residence had been smoking methamphetamine for
several months, and C.C. had been exposed to the smoke.
A
social worker accompanied by police officers went to the location. The manager of the complex said too many
people were living in the apartment and there were lots of comings-and-goings. Tenant Ray said that he did not use illegal
drugs and there was no reason for DCFS’s concern for the baby. But police officers watching the unit saw a
man on a balcony who appeared to be under the influence. Tenant Robert told police he stayed at the
location several nights during the week.
Robert was on parole for weapons charges.
The
social worker described the residence as disorganized and smelling of smoke. Various computers and peripherals were found
in the unit and the place appeared cluttered.
A pitbull lay asleep on the floor. C.C., however, appeared healthy. Mother denied methamphetamine use but she had
heard that someone had smoked the drug in the bathroom. Mother said she would drug test but wanted to
wait for three days because she did not want to take C.C. out in the heat.
The
police officers then entered the home, found two baggies of methamphetamine,
two marijuana pipes and a scale.
Officers reported that the residence was known to the department as a
drug house, and arrests had been made there in the past. Both male tenants were arrested, one for
being a felon in possession of ammunition, apparently based on a shotgun shell
or bullet found in the home.
On
September 24, 2012, the
court detained C.C., finding sufficient cause to remove her from parents’
custody. Monitored visits were ordered. Prior to the adjudication hearing on November 9, 2012, DCFS
interviewed both father and mother and filed its report with the court. DCFS advised that mother and father had
agreed to drug test in the interim.
Mother had two negative tests and four missed tests. Father had two positives, one negative and
four missed tests. DCFS recommended that
reunification be denied for mother because mother had failed to reunify with
two other children, one of whom had been adopted. The department recommended reunification
services for father with participation in drug and other programs.
Mother
testified at the November 9, 2012
adjudication hearing. The methamphetamine, drug pipes and scale were
found in the living room but mother said she did not usually go into that
room. She testified that, in conjunction
with 2006 dependency proceedings for her eldest daughter, mother had begun an
out-patient drug program and completed four and one-half months before the
court terminated reunification services.
She started another program and then quit after her parental rights were
terminated. She explained the cluttered
state of the residence as a product of remodeling; the several computers were
there because her boyfriend repaired computers.
Mother’s
landlord, who lived in the same residence, also testified. The landlord was a recovering methamphetamine
addict and had recently tested positively.
Mother told her she had seen methamphetamine crystals in the bathroom,
and that mother had experimented with methamphetamine for 3 months some 10 years
ago. The landlord also said that mother
had told her she last used methamphetamines 8 years ago. Mother testified she saw little granules in
the bathroom. “So I swept them up and I
put them on the side.†Generally, mother
denied any drug problem.
The
court also reviewed reports that showed that mother had failed to reunify with
daughter S.E. and that on June 28, 2007, the court had terminated mother’s parental
rights to S.E., who had been adopted by her paternal grandmother. Reunification services had also been terminated
for mother’s middle daughter, K.M. who was under legal guardianship with her paternal
grandmother. (S.E. and K.M. have
different fathers.)
title="">[1]
The
court sustained an amended petition that mother had a history of substance
abuse, had failed to complete a previously ordered drug program as part of S.E.’s
proceedings, allowed methamphetamine and drug paraphernalia to be in plain sight
at her residence, and failed to address the problems that brought half-siblings
into the dependency system, all such that there was a risk to the physical
health and safety of C.C. The petition
was sustained on the additional grounds that father was unable to provide
ongoing care and supervision. The court
set a disposition hearing for January 23, 2013.
Prior
to the disposition hearing, DCFS reported that mother had failed to keep an
appointment with a substance abuse counselor and refused to respond to follow-up
telephone calls. She had missed four
drug tests and tested negatively seven times.
Mother did attend a parenting class although it was not on the DCFS
list. Mother also discussed other
programs she had attended. Mother
explained that the fathers of her two older children both had drug
problems. Dr. Alfred Crespo interviewed
mother and concluded that mother’s drug problem was likely the result of
chronic substance abuse as to which she was in denial. He believed reunification services would not
resolve her drug problem. Amy Castro of
Social Model Recovery Systems testified at the disposition hearing that, based
on several assessment tools applied in her interview with mother, she did not
believe that mother had a substance abuse problem at this time. Mother did not tell Ms. Castro that she had
two children removed from her custody because of a drug problem. Although mother mentioned methamphetamines
had been found, she did not tell Ms. Castro that two baggies of methamphetamine
and drug paraphernalia had been found in plain sight at her residence. Nurse Cheryl Clifford testified that when she
observed C.C., the baby looked healthy.
The
court expressed serious concern about mother’s credibility. Reunification services were provided for
father but denied for mother. The court
found by clear and convincing evidence that reunification services had been
denied and parental rights had been terminated, respectively, for two half
siblings and that mother had not made a reasonable effort to treat the problems
that led to removal and termination. (Welf.
& Inst. Code, § 361.5, subd. (b)(10), (11).)
visits were ordered for mother with DCFS discretion to liberalize if mother
were in therapy.
Mother
makes two arguments on appeal. She first
contends there was insufficient evidence to remove C.C. from mother’s custody,
and second, the trial court erred in denying mother reunification services. We find no merit in either argument.
1.
Substantial
Evidence Supported the Trial Court’s Removal Order
Before
a child may be removed from a parent’s custody, section 361, subdivision (c)(1)
requires a showing by clear and convincing evidence that there is substantial
danger to the child absent removal and there are no alternative methods of
protecting the child. A juvenile court’s
determination of removal is reviewed for substantial evidence. (In re
T.V. (2013) 217 Cal.App.4th 126, 135-136.)
Although the standard required for the juvenile court is clear and
convincing evidence, on appeal that test disappears and we apply the
traditional substantial evidence review. (Sheila
S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) Mother challenges the court’s findings based
on her evidence that she did not abuse drugs, drugs found at the residence were
not mother’s, she tested clean on several occasions, mother’s visitations were
consistent, no apparent physical injury was noted on C.C., and Ms. Castro
testified that her assessment was that mother was not a drug user. Any problems
could have been addressed by less onerous means than removal; for example, by on-demand
drug tests and unannounced visits.
To
accept mother’s argument would require us to reweigh testimony and ignore
respondent’s countervailing evidence, something we may not do. (Sheila
S. v. Superior Court, supra, 84 Cal.App.4th at p. 881.) We start with the trial court’s finding that
mother was not credible. That finding
undermines the major part of mother’s case which was through her own
testimony. The court was entitled to
discredit mother’s testimony that methamphetamine had been found on a
toothpaste tube based on usage by others, that she was unaware that others were
smoking methamphetamine in the house and that she did not observe methamphetamine
or drug paraphernalia that were found by police in plain sight. There was evidence that the residence was a
known drug location and that an unusual number of people went in and out of the
residence. Two children were removed
from mother’s care due to her substance abuse. By mother’s own testimony, both of the girls’
fathers were drug users. Although mother
tested negatively on several occasions, she also missed a number of tests which
the juvenile court was free to consider as positive tests. She refused to test on demand. Given this evidence, the trial court was
justified in concluding that C.C. was at risk and that means other than removal
would be insufficient to protect C.C.
2.
The Trial
Court Reasonably Denied Reunification Services.
Mother
contends the trial court prejudicially erred when it denied mother
reunification services.
Section
361.5, subdivision (b) (10), (11) provides:
“(b)
Reunification services need not be provided to a parent or guardian described
in this subdivision when the court finds, by clear and convincing evidence, any
of the following:
. . . .
“(10) That
the court ordered termination of reunification services for any siblings or
half siblings of the child because the parent or guardian failed to reunify
with the sibling or half sibling after the sibling or half sibling had been
removed from that parent or guardian pursuant to Section 361 and that parent or
guardian is the same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has not
subsequently made a reasonable effort to treat the problems that led to removal
of the sibling or half sibling of that child from that parent or guardian.
“(11) That
the parental rights of a parent over any sibling or half sibling of the child
had been permanently severed, and this parent is the same parent described in
subdivision (a), and that, according to the findings of the court, this parent
has not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling or half sibling of that child from the parent.â€
A
parent whose child is subject to juvenile court jurisdiction is presumed to be
entitled to reunification services. (
87, 95.) Section 361.5 lists 16
different grounds, however, for the juvenile court to deny reunification. The court must find that at least one of the
disqualifying circumstances exists by clear and convincing evidence. (§ 361.5, subd. (b).) Two of those grounds are that reunification
services were previously denied or parental rights terminated for reasons that
have not been subsequently addressed by the parent.
It
is undisputed that mother’s parental rights were terminated as to S.E. and
reunification services were denied as to K.M. Mother argues that, notwithstanding the
dispositions in the cases involving C.C.’s older sisters, it was in C.C.’s best
interests to grant mother reunification services under section 361.5, subdivision (c).
Ordinarily
an appellate court reviews an order denying reunification services for substantial
evidence. (Cheryl P., supra, 139 Cal.App.4th at p. 96.) When the point on appeal does not involve the
facts underlying the finding of failure to reunify or termination of parental
rights, or failure to make reasonable efforts, but instead that it is
nonetheless in the child’s best interests to offer reunification services,
there is authority that review is under the abuse of discretion standard. (In re
Albert T. (2006) 144 Cal.App.4th 207, 218, fn. 5.)
Under
either standard, we find no error. Mother lost custody of two children, she
exposed C.C. to drugs and drug paraphernalia, she has consistently denied any
substance abuse problem notwithstanding strong evidence to the contrary, and at
least one expert doubted reunification services would adequately address the
problem. Although mother had visited
C.C. as regularly as permitted and appears to have a bond with her daughter,
and even though father was given reunification services, the trial court
reasonably could have found that reunification would prove unsuccessful and
therefore was not in C.C’s best interests.
DISPOSITION
The
juvenile court’s orders are affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
name="_ftn1" title="">[1] We
upheld termination of parental rights as to S.E. in a 2008 unpublished opinion
(B200290). Mother had failed to appear
at the dispositive 366.26 hearing in the juvenile court.
name="_ftn2" title="">[2] The
record is unclear whether the court was denying reunification services because
parental rights were terminated as to S.E. alone, or also based on denial of
reunification services as to K.M. as well.
DCFS reported both of the prior dispositions. The parties’ appellate briefs state the trial
court’s denial of reunification services was based on both subdivision (10)
[denial of reunification services] and subdivision (11) [termination of
parental rights] of section 361.5 so we accept that services for mother were
denied based on the rulings as to both of mother’s other daughters.
All future undesignated code references are to the
Welfare & Institutions Code.
