In re V.C.

Filed 10/27/06 In re V.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Michael C., in pro. per., for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Introduction

Michael C. and Veronica C. divorced in 2003, with Veronica receiving sole physical and legal custody of their son, V.C., then three years old. In October 2005, V. was detained by the Orange County Social Services Agency (SSA) after Veronica was arrested on charges of child endangerment and possession of illegal substances. After V. spent five months in foster care, the juvenile court found him to be within the court’s jurisdiction. Applying Welfare and Institutions Code section 361, subdivision (c)(1), the court also found it had not been proven by clear and convincing evidence that returning V. to his custodial parent -- Veronica -- would be detrimental to his physical or emotional well-being. Michael appealed from the dispositional order, arguing Veronica’s five months of sobriety were insufficient to prove she was capable of caring for V. We conclude the appellate record contains sufficient evidence to support the dispositional order, and we therefore affirm.

Statement of Facts

Michael and Veronica are the parents of V., now six and one-half years old. (Veronica is also the mother of Samantha R., now one and one-half years old.) Michael was aware Veronica had used drugs during their marriage, but thought she was sober when they divorced. Following their divorce, Veronica was granted sole legal and physical custody of V. Michael had moved to New York and had not seen V. for about two years before October 2005.

On October 3, 2005, Veronica passed out in the office of her apartment manager. Veronica admitted taking a “‘little white pill,’” and using methamphetamines the previous evening. She was taken to the hospital, where tests confirmed she was under the influence of cocaine and methamphetamines. Veronica was released from the hospital the same day. Later that afternoon, a fire broke out in Veronica’s apartment while she slept. Veronica was then arrested and charged with misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).

SSA immediately took V. and Samantha into protective custody. On October 5, 2005, SSA filed a dependency petition alleging failure to protect and no provision for support. (Welf. & Inst. Code, § 300, subds. (b), (g).) SSA could not at that time locate the father of V. or of Samantha. At the detention hearing, the juvenile court detained V. and Samantha, and referred Veronica to the dependency drug court program (DDC) for assessment. V. and Samantha were placed in a foster home.

Veronica was admitted to the DDC program on October 26, 2005. On her application, she admitted using alcohol for 25 years, cocaine for 16 years, and amphetamines for six months. Veronica agreed to drug test, attend Alcoholics Anonymous (AA) meetings, participate in counseling, and comply with all the other DDC program requirements.

Michael admitted to abusing drugs in the past, particularly marijuana and cocaine. Michael stated he had received treatment, and had not used drugs or alcohol for “‘a long, long time.’” Michael admitted attending Narcotics Anonymous meetings with Veronica when they lived in Brazil.

By November 2005, the DDC reported Veronica had drug tested clean three times per week, attended almost daily AA meetings, and appeared at all required DDC hearings. Veronica enrolled in a perinatal program, and her therapist reported she was open in sharing about her struggles and appeared to be motivated. Veronica was residing in a shelter and working in a restaurant.

Based on Veronica’s progress, the juvenile court increased her visits with V. The social worker reported V. really missed his mother and was very close to his half sister. In its jurisdiction/disposition report, SSA recommended against placing V. in Michael’s custody: “Based on Mr. C[.’s] knowledge of the mother’s substance abuse history, his lack of parental relationship with the child and his failure to protect the child, the undersigned does not believe that it would be in the child, V[.’s] . . . best interest to be placed with the father, Michael C[.]”

At the jurisdictional hearing in late November 2005, both Veronica and Michael pleaded no contest to the allegations of the amended dependency petition. (The petition had been amended to delete the Welfare and Institutions Code section 300, subdivision (g) count, and to delete many of the allegations in the section 300, subdivision (b) count.) The juvenile court found the section 300, subdivision (b) count, as amended, true by a preponderance of the evidence, and therefore found V. was under the juvenile court’s jurisdiction. The court ordered that Michael would have unmonitored visitation and telephone calls with V.

Veronica advanced to phase 2 of the DDC program. Veronica’s drug testing requirements decreased from three to two times per week. Her therapist noted she was better able to assert herself to avoid relapses. Because Veronica continued to test negative for drugs and to comply with all the DDC program requirements, the juvenile court increased Veronica’s visits with V. and Samantha and authorized two overnight visits per week. In January 2006, Veronica was asked to leave the sober living home where she had been staying, due to disruptive behavior; she moved in with her AA sponsor before moving into another sober living home.

V.’s therapist advised SSA that “the important factor in preserving and repairing V[.]’s emotional health is the handling of the matter by all adults involved. He could certainly be moved to New York with minimal emotional damage, as long as it is handled correctly by all adults. On the other hand it could be very damaging if it is handled poorly. I can say the same about staying here in California.” The therapist also noted that Veronica “will be the most important element in V[.]’s success.” The assigned social worker reported that V. regularly stated that he wanted to live with Veronica.

The dispositional hearing occurred over several days between January 26 and February 10, 2006. The juvenile court received SSA’s reports into evidence, and heard testimony from Veronica and the social worker. The social worker testified, in part, that returning V. to Veronica at that time would be detrimental to his emotional health because he “feels that he is responsible for taking care of his mother.” The social worker later admitted, however, that she had not referred Veronica and V. to participate in conjoint counseling. The social worker also expressed concern about V.’s physical safety because of Veronica’s short period of sobriety, relative to the length of time she had been a substance abuser. The social worker believed Veronica’s “relatively new” sobriety of approximately four months was not long enough to return V. to her care.

In addition to the length of sobriety, the social worker testified an assessment of risk to the child due to the parent’s substance abuse would require consideration of the parent’s understanding of the substance abuse problem, willingness to reunite with the child, participation in services, honesty level, and housing and employment situation. The social worker testified that each of these factors was tipped in Veronica’s favor. She also testified that she had no information regarding those factors vis-Ã -vis Michael.

The social worker also opined that placing V. in Michael’s care in New York would be emotionally detrimental to V., because of his attachments to Veronica, Samantha, and Samantha’s father. The social worker believed it was important for V. to maintain his sibling relationship with Samantha.

At the conclusion of the hearing, the juvenile court deferred its final dispositional order for six weeks, during which time V. and Samantha would be released to Veronica on a temporary basis. The court authorized SSA to redetain V. and Samantha if Veronica violated the conditions of the temporary release.

When the dispositional hearing resumed in March 2006, SSA reported it was changing its recommendation to advocate that V. and Samantha remain in Veronica’s custody with family maintenance services, despite her arrest on February 26, 2006, for failure to make an appearance in criminal court. SSA advised the juvenile court that Michael had relocated from New York to California and had secured a two-bedroom residence. The court accepted into evidence SSA’s reports, and a written offer of proof from Michael supporting his claim for custody of V.

The juvenile court found returning V. and Samantha to Veronica’s custody under a plan of family maintenance would not be detrimental to their physical and emotional well-being.[1] Michael appealed.

Discussion

We review the juvenile court’s dispositional findings for sufficiency of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We review the record to determine whether there is any substantial evidence to support the juvenile court’s conclusions, and we resolve all conflicts and make all legitimate inferences from the evidence to uphold the court’s orders, if possible. (In re Kristin H., supra, 46 Cal.App.4th at p. 1649.)

Welfare and Institutions Code section 361, subdivision (c), creates a presumption against removing a child from his or her parent’s custody.[2] In this case, the juvenile court concluded clear and convincing evidence did not show there would be a substantial danger to V.’s well-being if he were returned to Veronica’s care. Michael’s only real argument challenging the juvenile court’s order is that Veronica’s period of sobriety was not long enough. However, that argument ignores the substantial evidence of Veronica’s progress in recovery, her active participation in the DDC program, her attendance at AA meetings, and her acceptance and understanding of her substance abuse problem. Given the evidence in the appellate record, there is substantial evidence to support the juvenile court’s conclusion that continued removal of V. from Veronica’s care was not warranted. Furthermore, all the cases Michael cites in support of his argument analyze motions under section 388, which apply a very different standard than do initial dispositional orders.

Michael also argues that, as the “nonoffending” parent, the juvenile court should have placed V. in his custody, rather than in Veronica’s custody. Michael misinterprets the language of Welfare and Institutions Code section 361, subdivision (c), which allows the court to consider placement with the nonoffending parent rather than removing the child entirely from the parents’ custody and care, if the court finds by clear and convincing evidence that placement with the offending parent would be detrimental to the child’s well-being. Here, the juvenile court did not find by clear and convincing evidence that placement with Veronica would be detrimental to V.’s well-being, so it was unnecessary for the court to consider the alternate placement options available under section 361, subdivision (c).

Disposition

The order is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] The minute order of the dispositional hearing states the juvenile court found placement with Michael would be detrimental to V. The reporter’s transcript, however, does not include such a finding. We harmonize this conflict in the record in favor of the reporter’s transcript. (In re Josue G. (2003) 106 Cal.App.4th 725, 731, fn. 4.)

[2] “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following: (1) There 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 by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . . The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.” (Welf. & Inst. Code, § 361, subd. (c)(1).)