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In re Emily D.

California Court of Appeals, Second District, Seventh Division

February 17, 2015

In re EMILY D. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
ELIZABETH D., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, No. DK03412 Marilyn Mordetzky, Juvenile Court Referee.

Page 439

[Copyrighted Material Omitted]

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COUNSEL

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

Mark J. Saladino, County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.

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OPINION

PERLUSS, P. J.

Elizabeth D., the mother of Emily D., Michael D. and Heather C., appeals from the juvenile court’s May 21, 2014 jurisdiction findings and disposition orders declaring the children dependents of the juvenile court, removing them from Elizabeth’s care and custody and placing them with their respective fathers under the supervision of the Los Angeles County Department of Children and Family Services (Department). Elizabeth contends the juvenile court deprived her of her due process right to a fair trial by assuming the function of an advocate rather than an impartial tribunal; violated Welfare and Institutions Code section 352[1] by continuing the jurisdiction/disposition hearing without good cause; and violated section 350, subdivision (c), by improperly considering evidence submitted after the Department had presented its case-in-chief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Detention of the Children

On November 27, 2013 the Department filed a dependency petition on behalf of Elizabeth’s three children, ages 10, eight and six, alleging Elizabeth had a history of substance abuse and had tested positive for methamphetamines and marijuana; the father of Heather (Allan C.) had abused marijuana; and the home Allan shared with Elizabeth and the children was filthy and unsanitary. (§ 300, subd. (b).)

The detention report indicated previous referrals had been received in 2004 and 2006 alleging drug use by Elizabeth.[2] The instant intervention was triggered by an October 28, 2013 referral alleging Elizabeth was abusing methamphetamine and alcohol and had engaged in verbal altercations with Allan in front of the children. The Department first interviewed Elizabeth’s mother, who confirmed she had heard from others that Elizabeth was using methamphetamine and marijuana. The children had been visiting their grandmother for about a week but did not show signs of neglect. On October 31, 2013 a social worker visited Elizabeth’s residence. The house was messy, and Elizabeth appeared as if she had just been awakened. Elizabeth denied using methamphetamine but admitted using marijuana, even though her medical license had expired. She agreed to submit to a drug test. In a separate

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interview Allan admitted he used marijuana because of injuries he had received in a car accident some years earlier but insisted he does not smoke in front of the children.

On November 7, 2013 the Department received drug testing results for Elizabeth and Allan. Elizabeth had tested positive for methamphetamine (at an extremely high level), amphetamine and marijuana. Allan tested positive for marijuana. When confronted with the test results, Elizabeth again denied methamphetamine use but confided to the worker she had been sleeping with a neighbor who used methamphetamine and that her positive test may have resulted from those encounters, a proposition the worker rejected as “doubtful.” Allan said he was not aware Elizabeth had been using methamphetamine but agreed not to leave the children alone with her. Byron D., father of Emily and Michael, acknowledged Elizabeth had used drugs frequently when they were younger (including cocaine and heroin) but said he did not know about her current use. His wife, who had attended high school with Byron and Elizabeth, suspected Elizabeth was using methamphetamine because her face sometimes had blisters, a possible side effect of methamphetamine use. Elizabeth did not respond to telephone calls from the worker.

On November 22, 2013 the Department obtained a warrant authorizing removal of the children. The social workers serving the warrant found the house messy, with trash covering the floor and dishes piled in the sink, and smelling of marijuana. Allan told the workers he and Elizabeth had been sick and unable to clean; his odd behavior caused the workers to become concerned for their personal safety. When served with the warrant, Elizabeth became upset and screamed at the workers, claiming the children would be molested if they were put in a foster home. She also denied using methamphetamine and suggested someone had tampered with her drug test. The worker observed several blisters on Elizabeth’s face. Elizabeth told the workers the children were living with their maternal aunt and uncle, who, when contacted, agreed to keep the children pending the detention hearing. The children showed no physical signs of abuse.

At the November 27, 2013 detention hearing the juvenile court found a prima facie showing had been made the children were persons described by section 300 and ordered the children detained in the home of the maternal aunt. The court found Byron to be the presumed father of Emily and Michael and Allan to be the presumed father of Heather; the court ordered the Department to investigate whether the children could be released to their respective ...


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