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In Re J. B., A Person Coming Under the Juvenile Court Law. v. D. B

March 26, 2013

IN RE J. B., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
D. B., DEFENDANT AND APPELLANT.



(Super. Ct. No. JD231069)

The opinion of the court was delivered by: Robie , Acting P. J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

D. B. (father) appeals from the juvenile court's jurisdictional and dispositional orders which removed the minor J. B. from his custody and granted him reunification services. (Welf. & Inst. Code,*fn1 §§ 355, 358.) Father contends no substantial evidence supported the court's findings under section 300, subdivision (b), that father's drug habit put the minor at substantial risk of serious physical harm, and that removal from his custody was required. We affirm.

Mother's appeal was dismissed on September 27, 2012, pursuant to In re Phoenix H. (2009) 47 Cal.4th 835.

FACTUAL AND PROCEDURAL BACKGROUND

By a section 300 petition filed May 27, 2011, Sacramento County Department of Health and Human Services (the department) alleged:

Father failed to protect the minor in that he left her in the care of mother (A. H.), knowing that mother had a substance abuse problem and a mental health problem, and thereafter gave the department misleading information regarding mother's and the minor's whereabouts.

Mother had an active and untreated mental health condition and a long history of abusing methamphetamine and other illicit substances, and had refused or failed to benefit from voluntary services to deal with these problems. Mother had previously lost custody of two half siblings of the minor due to her drug problem, and both had since been adopted. On or about the date of the minor's birth (August 7, 2010), the minor tested positive for methamphetamine.

In July 2011, the juvenile court sustained the petition as to mother, but found the department had failed to meet its burden of proof as to father. The court placed the minor with father on condition that the parents refrain from living together and that father submit to random drug testing for 30 days; mother received reunification services. The department was authorized to require father to submit to an alcohol and other drug assessment (assignment).

In November 2011, alleging that father tested positive for methamphetamine on three different dates in July and August 2011, the department filed a section 388 petition seeking court-ordered drug treatment for him. On December 28, 2011, the court ordered father to participate in the specialized treatment and recovery program (program) and dependency drug court, and to test for drugs until he reported to the program intake.

On January 4, 2012, the department filed a status review report recommending continued dependency for the minor, continued placement with father (but only if he tested negative for drugs and actively engaged in substance abuse treatment), and termination of mother's services.

The report stated that mother was arrested on October 24, 2011, for felony possession of narcotics and was incarcerated in county jail with an expected release date of June 22, 2012. Father was arrested at the same time on an outstanding misdemeanor warrant; both parents were found by law enforcement together in father's vehicle. Father had not informed the social worker of his arrest and the social worker did not know where the minor had been during father's arrest and incarceration.

Mother's program case was closed for nonparticipation in August 2011. Mother had not contacted the department or enrolled in parenting and counseling groups since the minor was released to father's care in July 2011. Mother had not visited the minor in the last six months.

Father tested positive for methamphetamine at his program intake on December 29, 2011. He had been referred to strategies for change for outpatient treatment, but would be reassessed for a higher level of treatment if he continued to test positive. He did so again on January 3, 2012, but denied methamphetamine use and blamed his positive results on kidney stones.

At an in-home review hearing on January 6, 2012, the parties submitted on the report. The juvenile court continued the minor's placement with father and extended mother's reunification services.

On February 3, 2012, the department filed a subsequent supplemental petition requesting placement of the minor in foster care. (§§ 342, 387.) The petition alleged that father had tested positive for methamphetamine nine times from July 2011 to January 2012, had missed a test in January 2012, had not acknowledged his substance abuse problem, and had refused to enter residential treatment as recommended by his program worker on January 19, 2012.

The department's application for protective custody further alleged: At the January 19, 2012, program meeting, father was offered the chance to place the minor in a voluntary placement so that he could enter residential substance abuse treatment. He declined, indicating he could refrain from further methamphetamine use. Nevertheless, he had two subsequent positive tests for methamphetamine. He still blamed these results on kidney stones, but this explanation seemed implausible. His program worker said the results came from "oral swabs" which showed recent methamphetamine use and could not have been processed or affected by the kidneys; in any event, the social worker knew of no information suggesting that kidney stones can cause a positive methamphetamine test. Moreover, father had recently obtained a prescription for pain medication. The program's policy would ...


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