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In re A.B.

California Court of Appeals, First District, First Division

October 29, 2014

In re A.B. et al., Persons Coming Under the Juvenile Court Law.
J.B., Defendant and Appellant. MARIN COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,

Trial Court: Marin County Superior Court Marin County Super. Ct. No. JV25708A and JV25709A, Faye D’Opal, Judge.

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[Copyrighted Material Omitted]

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Mary R. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Steven M. Woodside, County Counsel and Brian C. Case, Deputy County Counsel for Plaintiff and Respondent.


Margulies, J.

Minors A.B. and Z.B. were removed from the home of their mother, J.B. (Mother), and placed in the homes of their respective biological fathers in early 2013 pursuant to Welfare and Institutions Code section 361.2.[1] After a contested disposition hearing, the dependency court upheld the removals, ordered the fathers to assume custody of the minors, declined Mother’s request for reunification services, and ordered Marin County Health and Human Services (Department) to conduct home visits and report back within three months pursuant to section 361.2, subdivision (b)(2). We upheld these rulings in an earlier appeal. Mother now appeals from the dependency court’s ensuing orders which again denied her reunification services, and terminated its jurisdiction as to A.B. She contends she had a due process right to a further evidentiary hearing on the home visit reports that could not be conditioned on the sufficiency of her offer of proof. We disagree, and affirm the findings and orders in issue.

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A. Predispositional Proceedings

Minor A.B., born in September 2001, is the biological child of Mother and Julian L. A.B. was diagnosed with autistic spectrum disorder at an early age. A.B.’s half-sibling, Z.B., was born in October 2005. Z.B.’s biological father is Gavin E.

1. Section 300 Petitions

Just after midnight on December 31, 2012, San Anselmo police received a call that Z.B. had been observed running from his apartment toward a nearby park. When officers found him he was crying and fearful of his mother. When they brought Z.B home, officers saw a marijuana pipe, thousands of empty nitrous oxide containers all over the apartment, and very unclean and hazardous conditions, including rotting food in the sink, a toilet bowl full of feces, and prescription pain pills within reach of the minors. A.B. was asleep upstairs. Police arrested Mother for possible child endangerment, child abuse, and possession of illegal substances, and called the Department. The boys were taken to an emergency foster home.

The Department filed section 300 petitions, alleging the boys were at substantial risk of harm due to Mother’s inability to provide them with adequate care and supervision due to her “mental illness, developmental disability, or substance abuse.” Supporting facts were taken from the December 31 police report. The Department recommended the boys be detained with their respective biological fathers, and Mother be given case plan services, including substance abuse treatment services, random drug testing, parenting education, and mental health counseling. Both fathers requested custody of their sons. The plan also included weekly supervised visitation for Mother with the minors.

On January 7, 2013, Mother submitted on detention. The court found both fathers to have presumed father status, and made the recommended orders, including to provide both fathers with parenting education.

2. Jurisdiction

According to the jurisdiction report, there had been a total of 29 referrals regarding the family, dating back to 2005. Some were related to domestic

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disturbances between Gavin and Mother in 2005, and physical altercations between Gavin and his brother witnessed by Z.B. Others involved drug use and lack of supervision by Mother, and allegations by Mother of sexual abuse by Z.B.’s uncle during Z.B.’s visitation with Gavin (determined to be unfounded). In 2011, it was reported that Mother may have been under the influence of drugs or alcohol when she dropped Z.B. off for summer camp, that Z.B. stated Mother spanked him for no reason and would sleep and not supervise him or A.B., and that the minors did not get dinner or lunch at home sometimes. These reports were later determined to be unfounded or inconclusive. There were several reports of concerns about Mother’s mental health and appearance of being overmedicated. Z.B.’s special needs school “had many concerns about this family.” He had poor school attendance and many disciplinary actions, including suspension after he brought a lighter and some straw to school and said he knew how to burn the school down. He was suspended from school six times. A reporting party at the school believed Mother was abusing methamphetamines and/or prescription drugs, and was uncooperative with attempts to help her and Z.B. Mother ignored or rejected repeated attempts by the Department in 2012 to get her to agree to a voluntary case plan, and refused all forms of communication with the Department about services for the family.

Social worker Janelle Torres reported Mother told her she was attending a weekly support group and was participating in individual counseling. She had completed an outpatient substance abuse program three years earlier and attributed her current relapse to chronic pain arising after receiving a massage in 2010. Mother presented as disheveled and disorganized. Torres wrote that although Mother wanted to have her sons returned to her care and expressed willingness to participate in services, she tended to minimize the situations leading to the removal of her children, and blame others. Torres felt Mother would continue to endanger her children until she was willing to seriously address her chronic drug dependency and unstable mental health.

The court sustained an amended allegation that Mother put the boys at substantial risk of suffering serious physical harm or illness due to (1) her willful or negligent failure to supervise or protect the boys; and (2) inability to provide regular care for the boys due to mental illness, developmental disability, or substance abuse.

3. Disposition Report

A disposition report filed in March 2013 noted Mother had taken initiative in obtaining individual and group therapy, and a pain management course. Nonetheless, social worker Torres stated she was still deeply concerned about Mother due to her long struggle with a polysubstance dependency, and her

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recent relapse. Although Mother reported she had ceased to use inhalants as of early January 2013, she had made recent misrepresentations to that effect. Due to limitations in drug testing for nitrous oxide, the Department would have to rely on Mother’s self-reports in order to protect the minors’ safety and well-being in her care. The children stated Mother had instructed them not to divulge information about the family situation, and both children had complied. A.B.’s psychologist for the past year, Dr. Barbara Nova, also believed Mother had coached the children. The Department was “very concerned about [the minors] being safe in [Mother’s] care and about being able to oversee [Mother’s] ability to make appropriate and safe choices in the care of the children, ” and therefore could not recommend family reunification services for Mother.

Dr. Nova expressed concern about an “enmeshed” relationship between Mother and A.B, where Mother placed undue focus on A.B.’s body and hygiene. The relationship dynamics between A.B. and Mother tended to result in Z.B. being “pushed out, ” blamed for A.B.’s actions, and made to feel mistreated and resentful. The social worker wrote: “Dr. Nova stated that were [A.B.] to return to his mother’s care she would be concerned about [A.B.] being neglected again [and] it was not clear that the children were always fed and getting their meals at appropriate times.” Dr. Nova felt living with his father was having a positive effect on A.B., making him feel stronger and more empowered.

With respect to custody by their fathers, the social worker reported: “[I]t has been very positive for both [A.B.] and [Z.B.] that they are now safe, are able to continue being cared for within their family and that they seem happy with their fathers.” She also reported visitation with Mother had generally gone well, the visits had been warm and positive, and Mother had acted appropriately for the most part. With regard to Z.B.’s father, Gavin, the social worker reported he “would like to participate in counseling to help him through the process of transitioning into being a full time father.” Z.B.’s paternal grandmother said they “very much wanted to be more involved in [Z.B.’s] life.” Although Z.B. said his father and uncle had sometimes fought, the Department learned Gavin completed an anger management course in 2006. In addition, about a year and a half had passed since Gavin and his brother had a physical fight. Based on Gavin’s willingness to attend therapy and recent reports about Z.B.’s progress in school, the social worker concluded there were no concerns about the safety of Z.B. In a May 1, 2013 addendum to the disposition report the Department recommended termination of dependency jurisdiction as to Z.B.

With regard to A.B.’s father, Julian, the social worker wrote that he sought full custody of A.B. The social worker concluded Julian “can continue

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parenting [A.B.] safely and appropriately without the oversight of the Department and can ensure that [A.B.] maintains a relationship with his brother.” The Department recommended dismissing the case as to A.B. with full physical custody of A.B. granted to Julian.

4. Disposition Hearing

The social worker testified the basis for the recommendations to remove the boys and not offer Mother services to reunify was concern the Department was unable to assure the children will be safe in Mother’s care because (1) no tests can detect use of nitrous oxide; (2) Mother was not a reliable self-reporter; (3) A.B. indicated Mother has asked him to keep her use of nitrous oxide secret; and (4) in 2012, Mother “absconded” with the boys when she thought Child Protective Services (CPS) might remove them. The basis for the recommendation to give both fathers full custody and dismiss the dependencies was that the boys seemed to have positive relationships with their fathers and seemed to be safe in their care. The social worker believed it was in the boys’ best interests to continue to have contact with Mother through supervised visits.

On cross-examination, the social worker acknowledged there had never been any substantiated referrals that Mother physically abused either minor, and the amended petition contained no allegation that Mother had physically abused either child. The disposition report included opinions about Mother’s mental health from A.B.’s individual therapist, who had done no therapy with Mother, or performed any mental health examination or evaluation of Mother. The social worker did not include information from Mother’s therapist, Rose Rutman, in her disposition report because Rutman’s observations of Mother did not agree with what she had observed. Rutman said Mother had ...

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