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In Re D. W. et al., Persons Coming Under the Juvenile Court v. H. L

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)


March 2, 2011

IN RE D. W. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. CALAVERAS WORKS AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
H. L., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 10JD5037, 10JD5038)

The opinion of the court was delivered by: Robie ,j.

In re D.W. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

H. L., mother of minors D. W. and T. W., appeals from the juvenile court's dispositional order removing D. W. from mother's custody. (The court also removed T. W. from mother's custody, but she does not appeal from that order.) Mother contends there is no substantial evidence of a "substantial danger to [D. W.]'s physical health, safety, protection, or emotional well-being" in her custody. (Welf. & Inst. Code,*fn1 § 361, subd. (c)(1).) We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 17, 2010, the Calaveras Works and Human Services Agency (agency) filed section 300 petitions as to D. W. (a 12-year-old female, whose father is J. W.) and T. W. (a five-year-old male, whose father is S. W.) alleging: between October 2005 and June 14, 2010, the agency had received five referrals on behalf of the minors, alleging physical abuse and general neglect; two were determined to be substantiated as to mother.

On or about March 19, 2007, the agency received a police report of recent domestic violence between mother and her "significant other," both alleged to have used methamphetamine. Mother, who admitted to using methamphetamine three days before the police interview, was very fidgety, extremely thin, and covered with open sores. She said her "significant other" had punched her in the face and kicked her and D. W. out of the house. D. W., upset and crying, said she had seen mother's boyfriend hit and push mother several times. Mother was incarcerated as a result of this referral because she had a warrant out of Nevada for domestic violence.

On or about August 2, 2007, the maternal grandmother (who had a criminal record dating back to 2005 for driving under the influence, vandalism, and willful cruelty to a child) applied for temporary guardianship of D. W. and T. W. The grandmother received permanent guardianship of both minors on October 2, 2007. The guardianship of D. W. was terminated on September 11, 2009, but the guardianship of T. W. remained in effect.

On or about June 10, 2010, a sheriff's deputy responded to a domestic disturbance between mother and the grandmother. According to mother, the minors were residing with the grandmother, but the grandmother was intoxicated after drinking all morning. They argued, and the grandmother tried to hit her, with D. W. watching. After driving away, the grandmother was soon stopped and arrested for driving under the influence. The minors remained temporarily in mother's care.

On or about June 14, 2010, the agency received another referral alleging physical abuse and general neglect of the minors. A sheriff's deputy interviewed the grandmother, who said mother was still using methamphetamine. About four days earlier, when mother and her "significant other" (Da. W.) came to visit T. W., Da. W. threw T. W. into a wall, causing him to hit his head; mother said if the grandmother called law enforcement about it, she "would be dead."*fn2

Interviewed by the deputy, T. W. said mother and the grandmother had arranged for him to live with the grandmother, who secretly drank whiskey at night. He also said Da. W. "'hurts me a lot and throws me around'"; "'at my grandma's house [Da. W.] threw me into the wall because he thought I had his sunglasses and I hit my head by my ear.'" T. W. told the same story about Da. W.'s behavior to a social worker, adding that Da. W. was not playing when he threw T. W. around and laughed when T. W. got hurt.

Also on or about June 14, 2010, the deputy observed signs of methamphetamine use by mother, specifically "rapid animated arm movements and rapid speech," "a very slender appearance" and "open sores on her face."

On the same date, mother told a social worker that Da. W. had not physically abused T. W. and she was not using drugs. According to mother, the grandmother, who had a major drinking problem, was harassing her. Mother refused to provide a urine sample for drug testing without a court order. She said her face was breaking out because she was nervous. According to mother, though the grandmother had temporary custody of the minors in 2007, mother had had custody of them ever since; T. W.'s father had never had physical custody of him. On or about the same date, the sheriff's deputy placed the minors into protective custody.

On or about June 15, 2010, mother called the social worker, "very agitated and . . . yelling." Speaking very quickly, she said she had never tested positive for drugs and had only had boyfriends that used drugs. She hung up on the social worker without letting her speak.

On or about the same date, the grandmother told the social worker that she had tried to "relinquish" D. W. back to mother, since mother was receiving welfare money for the children. The grandmother also said she knew she had to address her drinking problem.

On June 18, 2010, at the detention hearing, D. W. indicated through counsel that she wanted to return to mother's custody, but the minors' counsel opposed that request. The juvenile court ordered the minors detained.

On June 22, 2010, the parties agreed to continue the jurisdictional hearing for a week to see if the matter could be resolved informally and a family maintenance plan instituted. Counsel represented to the juvenile court that mother and the grandmother would be willing to submit to drug and alcohol testing and to have their homes inspected.

On June 29, 2010, however, at the jurisdictional setting conference, mother (who said she was engaged to Da. W.) asked for a contested jurisdiction hearing. The grandmother submitted on the allegations of the section 300 petition, and the juvenile court found them true as to her. The court set a contested jurisdiction hearing as to mother on July 14, 2010.

The jurisdiction report, submitted July 9, 2010, recommended that the court assume jurisdiction over the minors because: (1) mother had a history of substance abuse, denied methamphetamine use, and continued to refuse drug testing; (2) mother refused to let the social worker into her residence to conduct a home study; (3) mother refused to participate in preventative services or attend a mediation meeting; (4) mother's new fiancee, Da. W., had aggressively and inappropriately disciplined T. W.; (5) the grandmother had "extreme difficulties with alcohol," had incurred multiple DUI's (including one with a minor in her car), and tested positive for alcohol after T. W. was removed from her home; and (6) the minors "have been exposed to a hostile environment where the grandmother and mother argue and have physical altercations in the presence of the children, severe substance abuse issues in both environments, and inappropriate exposure to domestic violence."

The report stated on June 23, 2010 (the day after the parties agreed in open court to try to resolve the matter informally), the social worker arrived at mother's home to do the agreed-on inspection. Da. W. answered the door, said mother was not home and had never agreed to an inspection, and refused to let the social worker in. Mother later confirmed by telephone that she would not work with the social worker and would "see her in court."

The next day, mother arrived 55 minutes late for her scheduled visit with the minors, became angry and blamed the social worker for the mix-up, and said she would not work with the family maintenance plan. Later that day, mother again refused to drug test.

On July 7, 2010, mother admitted she had written down the wrong time for the visit, but again adamantly refused to drug test. She denied admitting methamphetamine use. She also claimed the grandmother had forged mother's signature on the guardianship papers and the guardianship was void.

In the 2009-2010 school year, D. W.'s grades and school attendance declined dramatically.

The grandfather gave the social worker a written statement which said mother planned to enroll the minors in a school district they would not be living in, to which they would need transportation. D. W. had been held back at a previous school due to lateness and absences because mother could not get out of bed before noon. D. W.'s grades this year were almost all D's and F's. Mother had recently wanted to move to Avery Ranch, where a friend would let her stay for free; the site had no running water, electricity, or phone service.

The contested jurisdiction hearing was held on July 14, 2010. Mother testified she never consented to a temporary or permanent guardianship of T. W.; the grandmother forged mother's signature on the papers, and mother was never served with them. She did not learn of the guardianship until June 2010. D. W. lived with her, not with the grandmother.

She had not used methamphetamine since 2006. If a police report said she admitted using it in 2007, it would be wrong. She also had not told a social worker that she used it in 2009.

She admitted she had agreed to allow drug testing and a home inspection, and then refused both. She felt drug testing violated her civil rights; she also thought it was "nonsense" instigated by the grandmother in retaliation for getting a DUI. She also felt it was wrong to have a family maintenance plan only as to D. W. because she wanted both of her children to come home.

Her altercation with the grandmother on the morning of June 10, 2010, did not begin because the grandmother had accused her of doing drugs; it began because mother saw that the grandmother was drunk. When mother demanded that the grandmother stop drinking, the grandmother tried to hit her. It was true, however, that the grandmother had often accused her of using drugs lately. It was also true that mother had allowed the minors to live with the grandmother despite her drinking problem.

Mother admitted that her boyfriend, Da. W., and T. W. had argued about Da. W.'s sunglasses and a struggle ensued, during which T. W. fell back and hit his head against the wall. She denied, however, that Da. W. had hit T. W. or put his hands on him in anger. If T. W. said that happened, it was because the grandmother had put the idea into his head. Mother had seen roughhousing between Da. W. and T. W., but nothing beyond normal limits. Mother admitted that she and Da. W. had been in a relationship for six months and were now living together.

Social worker Karen Karam testified that when she interviewed mother in March 2007 at the Calaveras County Jail, mother said she had last used methamphetamine 10 days before the interview. Karam and mother discussed the danger to D. W. of the domestic violence in the home, mother's methamphetamine use, and mother's choice to live with men who were addicted to methamphetamine. Mother agreed with Karam that it would be good for the children to stay with the grandmother; mother and Karam discussed a guardianship, and mother said that was her wish. Karam offered mother voluntary services and asked mother to contact her when she got out of jail, but mother never did.

Social worker Kristen Kardas, currently assigned to this case, testified consistent with her jurisdiction report. She admitted that D. W. had never complained of mistreatment by mother, but concluded that D. W. was "very reserved" on the subject and "won't really talk about anything in detail" about mother. She also admitted that D. W. said she had never seen mother using illegal drugs and never gave meaningful responses to questions about domestic violence.

Calaveras County Sheriff's Deputy Paul Newman testified that based on his training and experience, mother showed all the signs of being under the influence of methamphetamine and of being a chronic user when he interviewed her on June 14, 2010. In his subsequent interview with Da. W. on the same date, Da. W. was angry and accusatory from the start; he denied physically abusing T. W. and said he had only told him to stand in the corner.

The grandmother testified that she and mother discussed the proposed legal guardianship of the minors when mother was in jail, and mother urged her to go through with it because otherwise the minors would be placed in foster care. The grandmother signed the papers for mother at her request. Later, the grandmother relinquished her guardianship over D. W. because mother appeared to be doing well but needed financial aid, which she could get with D. W. at home. In late May 2010 both minors were staying with grandmother because she was driving D. W. back and forth to school; she did not think she could count on mother to do it.

The grandmother saw Da. W. physically abuse T. W., but mother did not because she was in the bathroom at the time. T. W. told the grandmother every day he was with her that he was terrified of Da. W. She was sure if she told mother about it, mother would take both minors and leave, and the grandmother would not be able to protect them. She finally reported it to the police because she was really getting worried. She talked about it with D. W., who said she had also seen Da. W. abusing T. W. D. W. said she did not like Da. W. and did not want mother to be with him because he was mean.

D. W. testified in camera that everything was fine with her mother at home, school was going well, and she had never seen Da. W. be mean to her brother. She admitted she had gotten D's and F's in school the last trimester. She also admitted her attendance record showed eight unexcused absences, but insisted there was really only one; most of it was because of head lice.

The juvenile court found by a preponderance of the evidence that the allegations of the section 300 petitions were true. The court found the grandmother's testimony about Da. W.'s abuse of T. W. "very compelling" and found it "troubling" that Da. W., not mother, was there when social worker Kardas came to inspect mother's residence. The court was also persuaded by Deputy Newman's testimony that mother was under the influence of methamphetamine on June 14, 2010, and is a chronic user. As to D. W., "it is a closer question" than with T. W.: it was clear that she wanted to go home and understandably did not want to say anything bad about mother, but nevertheless the court found that D. W. as well as T. W. was described by section 300, subdivision (b).

The disposition report, filed July 23, 2010, recommended out-of-home placement of both minors, with reunification services for mother (and for the grandmother as to T. W.). The report stated that mother had submitted voluntary urinalysis tests on July 15 and July 20, but the results were not yet in. Mother allowed a home visit on July 20; the home was clean and appropriate for the minors. Mother had signed a release of information and agreed to have referrals made for substance abuse services and parenting classes. Her visits with the minors had gone well.

According to the report, reasonable efforts had been made to help mother maintain the minors in her home in 2007 and afterward, but mother had never cooperated. The chronic and serious domestic violence and substance abuse in the home, and mother's lack of effort to deal with it until now, made it premature to return the minors to her custody.

At the disposition hearing on July 27, 2010, mother did not ask for a contested hearing. She signed her case plan, and her counsel said she "want[ed] to take advantage of services." The juvenile court made the findings and orders recommended by the agency.*fn3

DISCUSSION

Mother contends there was insufficient evidence that D. W. would be in substantial danger if returned to mother's custody, and that reasonable efforts were made to prevent D. W.'s removal from mother's home. According to mother, her willingness to participate in services eliminated any need for out-of-home placement. We disagree. The juvenile court's orders were amply supported.

Before removing a minor from a parent's custody, the juvenile court must find by clear and convincing evidence that there is or would be a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being if the minor were returned home, and no reasonable means exist to protect the minor without removing him or her from the parent's home. (§ 361, subd. (c)(1); In re Jasmine G. (2000) 82 Cal.App.4th 282, 284, 288.)

The jurisdictional findings are prima facie evidence the minor cannot safely remain in the parent's home. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) Because the statute's focus is on averting harm to the minor, the parent need not be dangerous and the minor need not actually have been harmed before the juvenile court may order removal. (Ibid.) In deciding the issue of substantial danger to the minor, the court may consider the parent's past conduct as well as present circumstances. (Ibid.)

Although the juvenile court was required to apply the clear and convincing evidence standard, we review its ruling for substantial evidence, resolving all evidentiary disputes in favor of the court's rulings and drawing all reasonable inferences to support them. (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)

Viewing the evidence most favorably to the juvenile court's orders, mother's long history of substance abuse and domestic violence created a substantial danger to D. W.'s "physical health, safety, protection, or physical or emotional well-being" (§ 361, subd. (c)(1)) in mother's custody. So did mother's closest adult relationships: her ongoing battle with the maternal grandmother, and her linkage to a boyfriend D. W. disliked, who bullied and physically abused D. W.'s younger half sibling. Furthermore, mother's recent scheme of relocating her family to a ranch without running water, electricity, or telephone service was evidence of her continuing irresponsibility as a parent.

Although D. W. had not been physically abused, she had had recurring difficulties in school due to poor attendance and recently her grades as well as her attendance had fallen off catastrophically. The court could reasonably have concluded that the strain of living with a methamphetamine-addicted parent and her abusive boyfriend, and of being caught in the crossfire between mother and the grandmother, was causing D. W. emotional harm, despite her natural wish to return home.

As of the contested jurisdictional hearing on July 14, 2010, mother had not taken a single step to deal with any of these problems. On the contrary, she denied them all. She insisted she had not used methamphetamine since 2006, despite the testimony of the social worker and the sheriff's deputy that a month earlier she showed all the signs of long-term and current use. She had broken her promises to drug test and to allow a home inspection, and was unapologetic about doing so. She denied Da. W.'s mistreatment of T. W. She denied agreeing to give the grandmother legal guardianship of the minors or even knowing about the arrangement, despite overwhelming evidence to the contrary. In short, there was nothing in her past or her present that could give the juvenile court any confidence D. W. would be safe with her.

Mother's postjurisdiction change of attitude and conduct was far too recent to alter the court's assessment. Mother did not submit to drug testing until two weeks before the dispositional hearing. When a parent is a long-term substance abuser, half a year of sobriety may not be enough to prove that the battle has been won. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424.) It was only a few days before the dispositional hearing that mother suddenly acceded to a home inspection and the fact that the home was in satisfactory condition on that occasion was hardly enough to reassure the court it would remain so. Finally, it was unknown whether Da. W. would change his conduct, whether mother would separate from him if he did not, and whether she would avoid taking up with other unsuitable companions if she left him; nothing in her history was encouraging on any of those points.

Mother asserts the agency did not show and the court did not find that D. W. and T. W. were similarly situated. No such showing or finding was required. The court acknowledged at the jurisdictional hearing that D. W.'s desire to return home made its decision a closer question as to her than as to T. W., who did not want to do so. Nevertheless, the court found the allegations of the section 300 petitions, which were evidence that returning home would pose danger to D. W., true as to D. W. also. Since mother submitted on the agency's recommendations at the dispositional hearing, the court at that stage could rely on its prior finding. (See In re Cole C., supra, 174 Cal.App.4th at p. 917.)

Mother asserts there was no evidence of negative "interactions" between D. W. and Da. W. aside from a "hearsay statement" from the grandmother at the jurisdictional hearing. However, the juvenile court expressly found the grandmother's testimony credible, and we do not reweigh the court's credibility determinations.

Mother asserts there was no evidence D. W. was ever physically harmed by domestic violence in mother's home, or that D. W. witnessed any such violence between March 2007 and June 2010. However, the juvenile court did not need to find that D. W. was physically harmed or that she witnessed any particular incident of domestic violence in order to find that exposure to domestic violence was not good for D. W.'s emotional well-being.

Mother asserts there was no evidence that her methamphetamine use was preventing her from meeting D. W.'s needs. But the juvenile court could reasonably infer that the irresponsibility caused by mother's drug use was the main cause of D. W.'s lagging school attendance and falling grades, which would pose a substantial danger to her well-being if allowed to continue. In re Janet T. (2001) 93 Cal.App.4th 377, cited by mother for the proposition that "the bare fact of time out of school . . . does not demonstrate a substantial risk to a child," is inapposite because it addresses the narrow requirement of "serious physical harm or illness" under section 300, subdivision (b), not the broader standard set by section 361, subdivision (c)(1).

Mother asserts the juvenile court did not state the factual basis for its finding that reasonable efforts had been made to protect D. W. without removing her from mother's custody. In performing substantial evidence review, however, we presume the court made whatever findings were needed to support its orders. Here, the jurisdiction and disposition reports detailed the efforts that had been made to help and support mother ever since 2007, and mother's persistent refusal to take advantage of the help and support until shortly before the dispositional hearing. Mother's own testimony at the jurisdiction hearing, which showed her obdurate unwillingness to acknowledge her need for services, buttressed the agency's conclusions. Her last-minute change of mind was not enough to outweigh her entire prior history, which the court could properly consider as evidence of her likely future conduct. Substantial evidence supports the finding that reasonable efforts had been made and no means existed to protect D. W. without removing her from mother's custody.

DISPOSITION

The judgment (dispositional order) is affirmed.

We concur: RAYE , P.J.

MAURO ,J.


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