In re Raquel R.

Filed 10/19/06 In re Raquel R. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIX

Wendy S. (Mother) is a longstanding alcoholic whose rehabilitation efforts have repeatedly failed. Her twin daughters, Jessica R. and Raquel R., introduce her to a 47-year-old man, Paul P. Two months after they meet, Wendy allows Paul P. to take her daughters to Reno, Nevada, for the ostensible purpose of visiting Paul's family. While in Reno, Paul gives alcohol to Jessica and also orders Raquel to give Jessica alcohol. Jessica drinks sufficiently to cause her admission into the hospital with alcohol poisoning. When the San Luis Obispo County Department of Social Services (DSS) is informed of the event, another occasion when Jessica spent the night at a local beach with Paul, and also determine that Mother is a chronic alcoholic, the children are removed from Mother's home.

Mother appeals the juvenile court's jurisdictional and dispositional orders removing Jessica and Raquel from her custody. (Welf. & Inst. Code, §§ 300, subd. (b), 358, 395.)[1] Mother claims the evidence was insufficient to support either jurisdiction or the disposition. We affirm.

FACTS AND PROCEDURAL HISTORY

In June 2005, Mother allowed her 14-year-old twin daughters Jessica R. and Raquel R. to travel to Reno, Nevada, in the care of a 47-year-old man, Paul P. Paul was not a relative and Mother had been introduced to him by her daughters only two months before the trip. While in Reno, Paul provided alcohol to Jessica and forced Raquel to do so as well. As a result, Jessica was hospitalized for alcohol poisoning.

DSS filed a dependency petition when the minors were returned to California in July 2005. The petition alleged that there was a substantial risk that both Jessica and Raquel would suffer serious physical harm as the result of Mother's failure or inability to supervise or protect them. (§ 300, subd. (b).) The petition was based on the Reno incident, a 1998 dependency petition involving sustained allegations that Mother physically abused Jessica, and the father's minimal involvement with his children.

The detention report stated that Paul P. provided vodka, beer and Jack Daniels to Jessica in Reno and, when Jessica became dangerously intoxicated, took her to the hospital. At the hospital, Jessica's blood alcohol level was determined to be 0.263. The report also stated that Raquel could not be located for several hours.

Mother was given an interim case plan that required mental health counseling, treatment as recommended by drug and alcohol services, and random alcohol testing. Initially, DSS planned to return Raquel to Mother with a safety plan, and continue placement of Jessica with her grandmother. The detention report, however, stated that DSS had been concerned with Mother's alcohol and mental health problems and the children's truancy since the 1998 dependency case. The report and an addendum also noted a 2004 police report of a "suicidal gesture" by Jessica, and concern by Mother's therapist regarding Mother's ability to keep her children safe.

Mother appeared at the August 9, 2005, detention hearing under the influence of alcohol. A test by the court bailiff showed that she had a blood alcohol level of 0.18. After the test, Mother submitted to the detention of both Jessica and Raquel. The minors were placed with their maternal grandmother and step-grandfather.

On August 30, 2005, DSS filed an amended petition, alleging that there was substantial risk that the minors will suffer serious physical harm due to Mother's inability to provide care because of her "mental illness, developmental disability, or substance abuse." (§ 300, subd. (b).) The amended petition alleged that Mother has a "severe" and "chronic and long-standing" alcohol problem. It repeated allegations about the Reno incident and the prior dependency, and added allegations of two incidents in July 2005 when Jessica spent the night at the beach with Paul P.

In early September 2005, the court ordered that Mother participate in dependency drug court as part of her case plan. A report by drug and alcohol services stated that a few days earlier Mother had been injured in a fall which a doctor believed was "likely" to have resulted from an alcohol withdrawal seizure after a short period of abstinence.

Also in early September, the court issued an order restraining Paul P. from contacting Jessica or Raquel. Mother appeared at the restraining order hearing under the influence of alcohol. A test showed a 0.21 blood alcohol level.

DSS filed its jurisdiction and disposition report in late September 2005. The report acknowledges that Jessica and Raquel want to live with their Mother, but concludes that the minors would be unsafe in Mother's custody. The report reveals that Mother has driven the minors while intoxicated, and asserts that Mother's alcoholism is so severe as to place her own physical health at risk. The report and an addendum state that Mother has not followed her case plan, failed to appear for an assessment by alcohol and drug services, refused residential treatment for alcoholism, and suffered another seizure. In addition, the addendum states that Mother often fails to appear for scheduled alcohol testing.

The report also states that Paul P. continues to be a risk to the minors because, despite the restraining order, he and Mother have remained friendly. The report notes that Paul has accompanied Mother to several court appearances.

A joint jurisdiction and disposition hearing began on November 17, 2005. Social worker Lance Hillsinger testified that Mother was "lackadaisical" in her alcohol treatment, and was not complying with her case plan. She missed several drug and alcohol services meetings in October and November, did not test for alcohol on several occasions, missed almost half of her drug dependency court appointments, and missed a November 15 meeting scheduled to discuss her poor attendance record. Hillsinger testified that Mother endangers her daughters by driving them while intoxicated and, in general, has no control over her drinking. He concluded that Mother cannot provide a safe home for her daughters without in-patient residential alcohol treatment.

The November 17 session of the hearing was adjourned after it was determined that Mother again was under the influence of alcohol in the courtroom. Mother tested at a 0.15 blood alcohol level.

At the resumed hearing, Raquel testified that she wanted to live with Mother and did not like living with her grandmother. She knew that Mother had a drinking problem but never saw her "falling over or not being able to talk right," and did not think Mother's drinking affected her parenting ability. She wanted Mother to stop drinking but was afraid that residential treatment would break up the family. Jessica testified in a similar fashion.

Mother testified that she had "checked out" Paul P. before the Reno trip. Paul told her that he lived with his adult sister who worked for a police department, and that the purpose of the trip was for Paul to care for a sick sister and visit other family members. Mother also determined where her daughters would be staying while in Reno.

Mother admitted that she had a severe and long-standing alcohol problem and had participated in alcohol treatment multiple times over the years. She described herself as a "functioning alcoholic." She acknowledged that her drinking caused her daughters emotional pain, but testified that they were always safe in her home.

On November 29, 2005, the court issued its jurisdictional and dispositional orders. The court ruled that Jessica and Raquel were dependents of the court and ordered them removed from the custody of Mother. (§ 361, subd. (c).) Based on clear and convincing evidence, the court found the allegations of the petition to be true, and that placing Jessica or Raquel in the custody of Mother would present a substantial danger to their physical health, safety, protection, and well-being.

DISCUSSION

Substantial Evidence Supports Jurisdictional Order

Mother contends that there was insufficient evidence to support the court's jurisdictional order[2] finding that Jessica and Raquel were minors described in section 300, subdivision (b).[3] We disagree.

In reviewing the sufficiency of evidence, we determine whether there is any substantial evidence to support the conclusion of the trier of fact. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) We view the evidence in the light most favorable to the judgment or order and draw all reasonable inferences that support the order. (Ibid.) A trial court's determination will not be disturbed unless it exceeds the bounds of reason. (Ricardo, at p. 564.)

As applicable to this case, a juvenile court may determine a child is subject to its jurisdiction if it finds by a preponderance of the evidence that "there is a substantial risk that the child will suffer, serious physical harm or illness," as a result of a parent's inability to care for the child due to "mental illness, developmental disability, or substance abuse." (§ 300, subd. (b); In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.) Evidence of past conduct may be probative of current conditions, but there must be a showing that the child remains at substantial risk at the time of the jurisdictional hearing. (In re Savannah M., supra, 131 Cal.App.4th at p. 1396; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Generally, there must be evidence that conduct resulting in past infliction of harm may continue to occur in the future. (Ibid.)

The triggering incident for the dependency petition was the trip to Reno. Mother acted at least unwisely in allowing Paul P. to serve as a caretaker for her daughters. She had known Paul for only two months and had no ability to come to the aid of her daughters when they were out of state. The nights Jessica spent with Paul at the beach are also damaging. Jessica may have lied about her whereabouts, but the incidents support the inference that Mother lacked control over her daughters. The record shows that the minors led inappropriately independent lives for 14 year olds.

As Mother argues, these past incidents of poor judgment are insufficient to establish a substantial risk of serious physical harm in the future. Despite poor judgment and lack of parental control, Mother could not foresee the serious harm to Jessica that was caused by Paul P. Mother testified that she acted responsibly prior to the Reno trip by assuring herself that Paul P. was a responsible adult who was visiting family members, and that the trip was an important event in her daughters' lives. Mother emphasizes that she established rules for behavior at home, and claims that much of the petition relates to conduct that does not show a continuing risk of physical harm.

Mother's emphasis on prior events, however, is misguided. The amended dependency petition alleged jurisdiction, and the dispositional reports sought removal from Mother's custody because of the harmful effects of Mother's continuing "severe alcohol problem, which impairs her ability to safely care for the minors." Moreover, the evidence presented by DSS in support of both jurisdiction and removal of Jessica and Raquel from Mother's custody focuses on Mother's continuing alcoholism. There is substantial evidence supporting the juvenile court's finding that the effects of Mother's continuing alcoholism establish a substantial risk of serious harm to Jessica and Raquel in the future. Past events were given probative value, but the record shows that Mother is an alcoholic whose ability to parent her children remains substantially impaired.

The trial court did not speculate on the possible effects of Mother's drinking. The evidence links Mother's alcohol abuse to deficiencies in her parenting skill, and shows how the alcohol abuse jeopardizes the minors' safety. (See In re David D. (1994) 28 Cal.App.4th 941, 953.) The evidence shows that Mother has failed to remediate her alcohol abuse despite repeated treatment over the years, and that Mother is not currently committed to rehabilitation. Mother continues to endanger her daughters through poor judgment caused by alcoholism and resistance to treatment.

We also reject Mother's argument that, even if substantial evidence supports jurisdiction over Jessica, there is insufficient evidence as to Raquel. Mother correctly observes that Raquel was not hospitalized in Reno, but Raquel is subject to the same risks as Jessica resulting from the effects of Mother's alcohol abuse. In addition, Raquel's unswerving desire to be reunited with Mother, while relevant, does not negate the substantial evidence supporting jurisdiction contained in the record.

Clear and Convincing Evidence Supports Dispositional Order

Mother also contends that the evidence is insufficient to support the juvenile court's dispositional order removing the children from her custody. Again, we disagree.

A dependent child may be removed from parental custody if "the juvenile court finds clear and convincing evidence" that "[t]here is or would be 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 there are no reasonable means" to protect the minor without removal from parental custody. (§ 361, subd. (c)(1).) The "clear and convincing evidence" burden of proof is substantially greater than required for jurisdiction, and reflects a statutory presumption the child will be returned to parental custody except as a last resort. (In re Marilyn H. (1993) 5 Cal.4th 295, 308; In re Henry V. (2004) 119 Cal.App.4th 522, 525, 528-529.) Our standard of review, however, is the same. We uphold the trial court's decision if it is supported by substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Basilio T. (1992) 4 Cal.App.4th 155, 170.)

Except for the burden of proof, a finding of jurisdiction based on "substantial risk [of] serious physical harm" (§ 300, subd. (b)) may be based on similar facts as a dispositional finding of "substantial danger to the physical health, safety [and] protection" of the minor. (§ 361, subd. (c)(1); In re Rocco M., supra, 1 Cal.App.4th at p. 826.) For the same reasons that substantial evidence supported jurisdiction, we also conclude that substantial evidence supports the court's finding by clear and convincing evidence that there would be a substantial danger to the physical health, safety and protection of Jessica and Raquel if they were returned to parental custody.

The well-documented incidents of endangerment, Mother's severe alcohol abuse, and her failure to follow her case plan or make a serious effort to participate in rehabilitation services support the trial court's conclusion that Jessica and Raquel are

likely to be placed in dangerous situations in the future.

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Teresa Estrada-Mullaney, Judge

Superior Court County of San Luis Obispo

______________________________

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] The jurisdictional order is not appealable, but may be challenged in an appeal from the dispositional order. (E.g., In re Athena P. (2002) 103 Cal.App.4th 617, 624.)

[3] Section 300 provides in part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: . . . (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . ."