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In Re J.C. et al., Persons Coming Under the Juvenile Court v. L.C

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


November 9, 2011

IN RE J.C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
L.C., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. PDP20100061 & PDP20100062)

The opinion of the court was delivered by: Mauro , J.

In re J.C.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Leah C., mother of two minors, appeals from a judgment of disposition adjudging the minors dependents and removing them from her custody. (Welf. & Inst. Code, §§ 356, 358, 361, 395 [undesignated statutory references are to the Welfare and Institutions Code].) Mother contends substantial evidence does not support (1) the jurisdictional findings, or (2) the order removing the minors from mother's custody. We disagree, and we will affirm.

BACKGROUND

The El Dorado County Department of Human Services (Department) removed five-year-old J.C. from mother's custody in May 2010. His eight-year-old sister, L.C., was removed shortly thereafter. The Department filed a petition alleging that J.C. was at a substantial risk of serious physical harm because (1) mother had substance abuse issues and left J.C. with an unsuitable caretaker, i.e., his teenage sibling, C.C, who may have been under the influence of marijuana; (2) mother and C.C. smoked marijuana in the house; (3) mother was offered services and refused to test; and (4) L.C. was at risk of neglect due to mother's substance abuse, failure to participate in services offered to her and lack of judgment in her care of J.C.

According to the detention report, on May 23, 2010, deputies, responding to an unrelated matter on Slug Gulch Road, saw J.C. standing alone in front of his house near the road. In search of a caretaker, one deputy entered the open door of the house and was unable to locate anyone or get a response to his knocking and calling until he walked up to a door where there was a strong smell of marijuana. On opening the door, the deputy was able to rouse C.C., who admitted smoking marijuana the day before. Mother told C.C. she was going shopping, but C.C. did not know J.C. had been left in C.C.'s care. The social worker reported J.C. was wearing a T-shirt, pants and snow boots and had no underwear.

J.C. told the social worker that mother and C.C. "smoke weed." C.C. said she and L.C. frequently stay with the maternal grandmother. The social worker spoke to mother who agreed to drug test but then refused to do so when mother arrived at the test facility. At the initial hearing, the juvenile court ordered mother to test weekly, detained L.C. and J.C., and ordered them to be placed with the maternal grandmother.

The jurisdiction report stated there was a prior referral in February 2010 indicating that mother was using methamphetamine. The social worker responding to that referral asked mother to test but mother refused to do so and the investigation was closed as inconclusive. In the current case, after mother's initial refusal to test, she provided a sample on May 26, 2010. That sample was checked by an "instant test" and found to be positive for marijuana and methamphetamine.*fn1 In June 2010, mother told the social worker she had used methamphetamine since she was 15 years old and needed it to "stop depression." Mother refused to be tested for drugs and refused to be assessed or treated for substance abuse. The social worker tried to refer mother to services but mother refused services, did not visit the minors, and generally refused to cooperate. The social worker assessed that mother's ongoing substance abuse played a role in her poor judgment and placed the minors at risk.

The dispositional report in September 2010 stated mother was still not cooperating and would not provide information to the social worker. As a result, it was not possible for the social worker to tell if mother was capable of caring for the minors. Mother had submitted to only four of 17 drug tests. Of the four tests, only the May 2010 test was positive, the other three tests were negative for drugs. The minors missed mother but were doing well with the maternal grandmother, where they had spent most of their time prior to removal. The social worker concluded that, without an assessment of mother's need for substance abuse treatment and other services, the minors remained at risk if returned to her care. In the social worker's opinion, mother only tested when she wanted to and it was not possible to tell if she was drug free.

At the hearing, Deputy Schlag testified that he saw J.C. on the fenced property not far from an open gate which led to the rural road. J.C. looked like he had dressed himself and no adults were present. The deputy entered the house for a welfare check and smelled marijuana. The strongest odor was coming from the door to the room where C.C. was sleeping. When C.C. came out, the deputy observed that her eyes were "glossy [sic] and bloodshot" and she smelled of marijuana. C.C. admitted to being under the influence of marijuana which she said she had smoked the day before. The deputy believed she had smoked it more recently than that. C.C. told the deputy she did not know where her mother had gone, only that she went shopping.

C.C. testified mother woke her before mother left the house but C.C. went back to sleep and did not know J.C. was in the house until she saw him with the deputy. She had watched J.C. before without any problems and mother often left him in her care.

Deputy Falkenstein also saw J.C. outside the house. There was snow on the ground and the gate was open at the time. J.C. was not dressed for the conditions. Deputy Falkenstein also saw an above-ground pool with water in it in the backyard. The pool was unfenced and J.C. had access to it. J.C. told him he was hungry and had not eaten since the day before. When the deputy took J.C. to eat, J.C. did appear to be hungry.

The social worker testified the petition was based on C.C.'s admission of marijuana use and J.C.'s statement that mother and C.C. "smoked weed." Further, while mother had no drug-related criminal convictions, her drug test three days after the minors were removed was positive for methamphetamine and marijuana. The social worker believed the minors were at risk because J.C. was left to wander outside unsupervised and the social worker was concerned that mother, who admitted a history of methamphetamine use, was continuing to abuse the drug because she would not answer when asked about her last use. Additionally, the social worker was aware that drug use generally impaired judgment and that would have an impact on parenting. Without specific information on mother's drug use to negate the potential for impaired judgment there would be a substantial risk of harm to the minors if left in mother's care. Further, the smell of marijuana and C.C.'s admission of drug use made C.C. an inappropriate caretaker on the morning that mother left J.C. with C.C.

The social worker testified she did not have evidence of a pattern of leaving J.C. unsupervised or a pattern of substance abuse that placed the minors at risk. But the social worker recounted mother's prior refusals and failures to submit to drug tests. Mother told the social worker she did not think she needed testing and did not know why the Department wanted it. It appeared to the social worker that mother was self-medicating her depression with methamphetamine.

The social worker testified methamphetamine use causes poor judgment and mother displayed poor judgment on the morning of May 23 by leaving J.C. with C.C. without fully waking C.C. up and making sure C.C. was aware that J.C. was being left in her care. Given the strong odor of marijuana coming from C.C.'s room, the social worker stated it was reasonable to conclude that mother knew C.C. had smoked marijuana on the morning of May 23.

Mother testified she used methamphetamine six years ago and had not recently used marijuana. She said she was not aware C.C. was using drugs and did not smell marijuana in the house on May 23. Mother stated she did not know she was supposed to do ongoing testing. Mother was reluctant to test because she did not trust that the people doing the tests would not make mistakes, particularly since the first test was positive. Mother refused subsequent tests because if the first test was positive when she was not using, she did not believe subsequent tests would be more accurate.

Regarding jurisdiction, mother's counsel relied on In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.) to argue that the May 23, 2010, incident was only a single episode and the Department had not established the pattern of neglect necessary to sustain the jurisdictional findings. Counsel further argued that the "instant test" was not verified by a subsequent laboratory analysis and thus was useless. But the juvenile court sustained the petitions, ruling that the J.N. case was not controlling.

Regarding disposition, mother's counsel continued to characterize the May 23, 2010, incident as merely a single episode. Mother's counsel argued there was no evidence of ongoing risk to the minors and they could be returned while mother participated in assessments or counseling as required. However, minor's counsel commented that, if mother had cooperated with the Department by testing, returning the minors would be a realistic option but mother did not and the minors remain at risk until she provides consistent clean tests.

The juvenile court considered this to be a close case, but found credible the officer who testified that a strong aroma of marijuana came from C.C.'s room. The juvenile court concluded mother demonstrated very poor judgment on the morning of May 23. The juvenile court further stated that the situation could be easily remedied if mother would cooperate but she completely refused to do so. The juvenile court added that although mother understood she did not use good judgment on May 23, she did not appear to understand how serious the situation was for J.C. The juvenile court also questioned the sincerity of mother's avowed mistrust of the testing process after she had tested clean three of the four times she did test. The juvenile court concluded that mother's defiance and failure to participate in testing created a substantial risk of harm to the minors if returned and ordered the minors to remain in relative placement with a reunification plan for mother.

STANDARD OF REVIEW

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, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

DISCUSSION

I

Mother contends that substantial evidence does not support the juvenile court's jurisdictional findings*fn2 because leaving J.C. with C.C. on May 23, 2010, was a single episode, not a pattern of behavior putting the minors at risk, and because the "instant" drug test for which she tested positive was not verified by laboratory testing.

Regarding mother's contention that the incident was merely a single episode, mother once again relies on J.N., supra, 181 Cal.App.4th 1010, arguing that the Department was required to show a pattern of neglect to establish jurisdiction. But J.N. does not stand for that proposition, and the facts in that case are inapposite. In that case, the father was driving under the influence of alcohol and had an accident with the family in the car, injuring two of the children, one seriously. (Id. at pp. 1015-1017, 1023.) Mother was also under the influence of alcohol at the time. (Id. at pp. 1016-1017.) Neither parent had a history of alcohol abuse and both rarely drank. (Id. at pp. 1017-1018.) The minors were detained when both parents were arrested. (Id. at p. 1014.) The parents were cooperative with the social worker and remorseful. (Id. at p. 1019.) They had no prior referrals. (Id. at p. 1019.) Mother was placed on probation and ordered to complete parenting and substance abuse programs and the children were returned to her care prior to the hearing. (Id. at pp. 1019-1020.) The father was engaging in services while in custody. (Id. at p. 1015.)

The J.N. court rejected recent authority which suggested that jurisdiction could be based on past actions without assessing current risk. The Court of Appeal stated: "In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident. The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances." (J.N., supra, 181 Cal.App.4th at pp. 1025-1026.)

In J.N. there was no finding of prior substance abuse or even regular alcohol consumption, and no basis to infer likely ongoing substance abuse. (J.N., supra, 181 Cal.App.4th at p. 1026.) There was also no evidence that the parents' judgment and understanding of the risks of substance abuse were so inadequate that they were unable to supervise or protect the children. (Id. at p. 1026.) Mother was ordered to participate in programs as a condition of her probation and both parents were remorseful. (Id. at p. 1026.) On those facts, the Court of Appeal concluded the circumstances did not establish jurisdiction. (Id. at p. 1027.)

The circumstances in this case, however, establish jurisdiction. Mother left five-year-old J.C. in the care of C.C., a teenage sibling, without ensuring that C.C. was awake and aware of the responsibility. Mother had not awakened J.C., dressed or fed him and did not inform the teenager that these things needed to be done. Mother also ignored the strong odor of marijuana coming from C.C.'s room which suggested recent drug use by the teenager. Mother left without securing the open swimming pool or closing the gate to the fenced property, leaving open access to a rural road. Mother admitted a history of methamphetamine abuse and, while she denied recent use, nonetheless tested positive for methamphetamine and marijuana three days after the minors were removed. The five-year-old minor reported that both mother and the teenager regularly "smoke weed." There was a prior referral alleging methamphetamine abuse by mother. Both before and after the petitions were filed, mother resisted services, saw no need for testing, provided a disingenuous explanation for her failure to test and did not appreciate the seriousness of her lapse of judgment as it affected the minors. While the minors were generally well cared for and the teenager was doing well in school, the minors spent a great deal of time with the maternal grandmother and their overall health and well-being was not fully attributable to mother's care. There was a high potential for serious harm to five-year-old J.C. Further, mother's inability to appreciate the seriousness of the incident and her lack of judgment, apparently resulting from ongoing substance abuse, coupled with her adamant refusal to engage in any reasonable service designed to prevent recurrence and demonstrate her claims that substance abuse was not a factor, established that there was a substantial and ongoing risk of physical harm to both minors as a result of mother's substance abuse or of her inability to adequately supervise and protect them. Substantial evidence supports the juvenile court's exercise of jurisdiction over the minors.

Mother also challenges the "instant test," arguing it was never verified, but mother's suggestion that it was inaccurate is not supported by evidence or authority. The evidence in the record is that the test is quite accurate. The juvenile court was entitled to rely on the positive "instant test" in making its jurisdictional findings.

II

Mother next contends that substantial evidence does not support the juvenile court's order removing the minors from mother's care, because there is no evidence of ongoing risk and no danger to the minors if returned to her care.

To support an order removing a child from parental custody, the juvenile court must find 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 by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) The juvenile court must also "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor." (§ 361, subd. (d).)

Mother recognized there had been a lapse in judgment in leaving J.C. with C.C. but did not appreciate that the lapse placed J.C. at significant risk of harm. This ongoing inability to assess the risk of harm to the minors from her conduct meant that the level of risk had not diminished over time. Further, mother adamantly refused to engage in services offered to her which would have either demonstrated that it was safe for the minors to return to her care or provided education and treatment for substance abuse and the depression which triggered it so

that her home could become safe. Substantial evidence supports the removal order.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. ROBIE , J.


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