In re Savannah T.

Filed 3/27/07 In re Savannah T. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

The mother of infant Savannah T. (Mother) appeals from an order under Welfare and Institutions Code section 361[1] removing Savannah from her care. Mother contends that the order must be reversed because: (1) it was not supported by clear and convincing evidence, and (2) the respondent Contra Costa County Bureau of Children and Family Services (Bureau) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). We affirm the order and associated findings.

I. BACKGROUND

A. The Petition

Savannah T. was born in June 2006.[2] Mother and baby both tested positive for methamphetamine on Savannahs date of birth. On June 27, the Bureau filed a section 300 petition on behalf of Savannah, alleging that Savannah had suffered, or there was a substantial risk that she would suffer serious physical harm or illness, by the inability of her parents to provide regular care due to the parents drug abuse.

The petition alleged as to Mother that: (1) Mother had a history of chronic and regular substance abuse; (2) during prenatal examinations on April 14, May 16 and 23, and June 9 and 11, Mother tested positive for methamphetamine; (3) during prenatal examinations on June 9 and 11, Mother tested positive for marijuana; (4) Mother and Savannah tested positive for methamphetamine on the date of Savannahs birth; and (5) Mother had three other children who were being cared for by their fathers. Savannah was detained on June 28.

B. Jurisdictional Proceedings

A jurisdictional report prepared by the Bureau included summaries of the prospective testimony that would be given concerning Mothers alleged drug use by the following individuals, among others: (1) Bureau social worker, Jennifer Weiss; (2) hospital social worker, Maureen Crosgrove; and (3) early start specialist, Marilyn Scott.

Scott was expected to testify that Mother tested positive on five separate occasions during her pregnancy for methamphetamine and marijuana. When confronted with the test results, Mother was adamant that her positive drug tests were wrong and asked to be re-tested. She suggested that the positive results must have been caused by her mother-in-laws allergy medications, which she was taking for her own allergies. Scott asked Mother several times to bring in a list of the medications she was taking and offered to send samples to the lab to see if they could be causing the positive tests. Mother never provided a list of medications. Scott observed Mother to be agitated, jittery at times, and extremely talkative. In Scotts opinion, Mother was in deep denial about her substance abuse problem due to the possibility of losing her child.

Crosgrove was prepared to testify that Mother and baby both tested positive for amphetamine and methamphetamine on the day of birth. When she discussed the results with Mother, Mother stated over and over again that the results were wrong. Mother told Crosgrove that she had taken AM/PM, which she had received from the Kaiser pharmacy. Crosgrove learned that the Kaiser pharmacy had not dispensed AM/PM (now called Allegra) for some time, and that this medication was not sold over the counter, but must be prescribed. When Mother finally did produce medication she claimed to have taken, she brought in Sudafed, not AM/PM.[3] Crosgrove would testify that when she first met Mother, she presented as jittery and very hyper, talking incessantly. She believed Mother looked like a meth user.

Weiss would testify that she investigated the drug use allegations for the Bureau. Mother told Weiss that the allergy medications she was taking were over-the counter, not prescription. She told Weiss that she had never been to a doctor for her allergies as they were not really that bad. Weiss spoke to Crosgrove, who informed her that she had spoken directly to the hospital pharmacist, who told her that no allergy medication would cause a positive test for methamphetamine. Weiss confirmed this with the pharmacy and with a hospital neonatologist, who called the regional testing lab in Berkeley to verify the information. The charge nurse told Weiss that Mother appeared to be under the influence in that she was constantly scratching, talking incessantly, and moving constantly.

The jurisdiction report prepared by the Bureau in connection with the July 10 hearing further stated, The [ICWA] does or may apply. The report also included a recommendation to the juvenile court that it order the parents to provide the social worker with information about any American Indian ancestry which the child may have . . . .

A contested jurisdictional hearing began on July 10 and continued on July 28. At the outset of the continued hearing, the court accepted the parties stipulation to amend the petition to allege that Mother has a substance abuse problem which impairs her ability to care for the child. Mother admitted that allegation, and the parties stipulated that the admitted allegation was sufficient to support the juvenile courts jurisdiction over the minor. The other allegations of the petition were dismissed. Mothers counsel stated on the record on July 28 that Mother had been in an outpatient drug treatment program for one month.

In its written jurisdictional order, the court adopted the Bureaus recommendation that the parents be ordered to provide the social worker with information about any American Indian ancestry the child might have. The disposition report submitted to the court on August 22 stated that [t]he [ICWA] does not apply.

C. Proceedings on Disposition

The August 22 disposition report included the following information: Mother started her prenatal care late and, once she did so, tested positive on at least five occasions during her pregnancy for methamphetamine and marijuana. At the time of Savannahs birth, Mother and Savannah both tested positive for methamphetamine. Mother denied drug use throughout her pregnancy, and continued to deny drug use, insisting that her positive results were caused by allergy medication. Although Mother had since enrolled in out-patient treatment with New Connections, the Bureau was unable to monitor Mothers progress in the program because she had refused to sign a release form permitting the two agencies to communicate. Father and Savannahs paternal grandmother appeared to join in Mothers denial of her drug use.

The disposition report further stated that Mother and Father were in a long-term committed relationship and appeared to have a deep bond with one another. They had been consistent in their visitation with Savannah, had a deep love for her, and genuinely missed her. However, due to continued concerns about Mothers drug use and denial, and about Fathers criminal record (which included a 1987 conviction for child cruelty and a 2004 arrest for spousal abuse), the Bureau recommended against returning Savannah to her parents care. The Bureau also noted that Savannahs paternal grandmother had submitted an application for relative placement, but that she had been deemed ineligible due to the fact that Mother and Father lived with her.

At the disposition hearing, the social worker testified that after Savannah was removed and detained, Mother again tested positive for methamphetamine on July 11. She testified that Father was evasive when questioned about Mothers drug use. When she discussed with both parents her concern about parents who use methamphetamine with infants in the home, they both denied there was any substance abuse in the home. When the social worker spoke to Savannahs paternal grandmother, she also denied any substance abuse by the parents.

When the grandmother testified at the disposition hearing, she confirmed that she did not believe Mother was using methamphetamine currently or had been using it in the recent past. When asked if she had ever discussed Mothers positive drug tests with her, she responded as follows: Um, we have been very busy lately. We have moved, and our house is partly under construction, and we all went through the flu and things like that so . . . I really dont havehavent seen any signs of herbut Im not an expert on drugs . . . .

The juvenile court found by clear and convincing evidence that returning Savannah to her mother would create a substantial danger to Savannahs physical health, safety, protection, or emotional well-being. The court further found that reasonable efforts were made to avoid the need for removal of the child. However, the court did not accept the Bureaus recommendation that Savannah be removed from both parents care. Instead, it ordered that the child be returned to Fathers care on condition that (1) Father remain living in his mothers residence, and (2) Mother not reside in the same household.

The court explained the basis for its decision in relevant part as follows: The fact that [M]other tested positive and exposed the child to methamphetamine when the child was in-utero . . . suggests strongly that a child returned . . . to her custody, at least early on in her recovery, would be at risk. Mother tested, again, at the time of the childs birth positive and subsequent to the childs birth, has tested positive. And . . . giving full [credence] to evidence of negative tests after the fact, shes only been testing clean for about two and a half months, and assuming shes involved in her aftercare, all of which . . . are positive steps, but the irresponsibility in the recent past . . . certainly creates, in my mind, by clear and convincing evidence, that returning the child to [M]other would create a substantial risk. [] Now, on the other hand, I think that that risk, by clear and convincing evidence, does not exist as to [F]ather. The court also stressed that Mother had to address her drug use issues not simply by attending outpatient treatment, but by coming to terms with the fact that the allegations of drug use against her were true.

Mother timely appealed from the dispositional order.

II. DISCUSSION

Mother contends that the removal order must be reversed because: (1) the trial courts decision to remove Savannah from her care was not supported by clear and convincing evidence, and (2) the Bureau failed to comply with the notice provisions of the ICWA. We disagree on both counts.

A. Sufficiency of the Evidence

Section 361 authorizes removal of a minor from a parents physical custody upon a showing, by clear and convincing evidence, that: (1) [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 [(2)] there are no reasonable means by which the minors physical health can be protected without removing the minor from the . . . parents . . . physical custody. ( 361, subd. (c)(1).)

Although a removal order requires proof by clear and convincing evidence of both predicate findings, [t]he juvenile court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accordance with this discretion. [Citations.] The courts determination in this regard will not be reversed absent a clear abuse of discretion. [Citation.] (In re Jose M. (1988) 206 Cal.App.3d 1098, 11031104.)

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidencethat is, evidence which is reasonable, credible and of solid valueto support the conclusion of the trier of fact. [Citations.] (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)

Under this standard, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]  (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

Here, substantial evidence supported all of the following facts: Mother was using methamphetamine during her pregnancy and after she gave birth to Savannah. Her last known positive test for the drug was recorded on July 11, approximately six weeks before the disposition hearing. Although she had been in once-per-week outpatient drug treatment since the end of June, the extent of Mothers progress in the program after July 11 was unknown to the court because she had refused to authorize the release of any drug treatment information to the Bureau. During her pregnancy and up to the time of the disposition hearing, she remained in deep denial that she had any type of drug problem. The persons who would have been in the best position to oversee Mothers in-home care of Savannah, Savannahs father and paternal grandmother, were also in a state of denial about Mothers drug use.

On these facts, the juvenile court was justified in removing Savannah from Mothers care. Notwithstanding repeated warnings from health care professionals about her drug use during pregnancy, Mother had already gravely endangered Savannahs physical health and safety by exposing her to high doses of methamphetamine and other drugs in utero. As an infant, Savannahs physical safety and survival would depend to a very large degree on her Mothers ability to perceive and attend to her needs. A few weeks of outpatient treatment and negative drug tests provided no assurance that Mother was now capable of consistently placing her babys needs ahead of her own drug dependency. The risks inherent in returning Savannah to her mothers care at this early stage in her drug treatment were magnified by Mothers evident inability to admit to herself that she even had a drug problem, by her deliberate withholding of information about her progress in the treatment program, and by the apparent inability of other members of Savannahs family to appreciate the potential danger that would be posed to Savannah by Mothers reversion to drug use. Substantial evidence supported the juvenile courts finding that Savannahs physical health and well-being would be endangered if she were returned to her mothers care.

The courts finding regarding alternatives to removal was also supported by substantial evidence. The court did in fact adopt an alternative to Savannahs complete removal from her parents care. It did not order Savannahs removal from her fathers custody despite the Bureaus recommendation that it do so. But given the fathers and paternal grandmothers level of denial and evasiveness concerning Mothers drug use, the court was justified in rejecting alternatives that would have left Savannah in her mothers care, and relied on the other members of the household to oversee Mothers contacts with the child. Substantial evidence supported the courts determination that no means short of removing Savannah from her mothers physical custody would have adequately protected her from the risk of harm.

In our view, substantial evidence supported the juvenile courts dispositional findings and order.

B. ICWA

Mothers claim under the ICWA turns on the sentence in the jurisdiction report stating that the ICWA does or may apply. She argues that the Bureau could not thereafter unilaterally determine that the ICWA did not apply, as it did in its disposition report, without making some further inquiry or sending notice to the Bureau of Indian Affairs.

In our view, the statement in the jurisdiction report must be read in conjunction with the Bureaus recommended order, later adopted by the court, that the parents provide the social worker with any information they had about possible American Indian ancestry. Read together, the two statements mean that the social worker had no information about any Indian ancestry on Savannahs part when the jurisdiction report was prepared. At that stage, the social worker was under no duty to go beyond requesting information on that subject from the parents, which is exactly what she did by requesting an order to that effect from the court.

There is also no indication in the record before us that information showing possible Indian ancestry was ever subsequently brought to the social workers attention. Given the courts order after the jurisdictional hearing that the parents provide any such information, and the social workers statement in her disposition report that the ICWA did not apply, we may infer that the parents provided no information about possible Indian ancestry despite the invitation to do so. (See Evid. Code, 664 [official duty is presumed to have been regularly performed].) 

In In re Aaron R. (2005) 130 Cal.App.4th 697, 708, we held the juvenile court had no obligation to make a further or additional inquiry in the absence of any evidence supporting a reasonable inference that the child might have Indian heritage. Here, neither the Bureaus jurisdiction report nor any subsequent evidence in the record support any inference of possible Indian heritage. Accordingly, there was no failure to comply with the ICWA by either the Bureau or the juvenile court.[4]

III. DISPOSITION

The juvenile courts dispositional findings and order are affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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

[2] All dates referred to herein are in 2006 unless otherwise indicated.

[3] According to the hospital pharmacist, taking Sudafed could produce a false positive test result for amphetamines, but not for methamphetamine.

[4] Over Mothers objection, respondent Bureau has asked this court to receive as additional evidence under Code of Civil Procedure section 909, a Judicial Council Parental Notification of Indian Status form executed by Mother while this appeal was pending. We deferred a ruling on respondents request, and now deny it.