In re R.C. CA2/3 ( 2021 )

Filed 2/5/21 In re R.C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re R.C. et al., Persons Coming B303047
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP05685A,
AND FAMILY SERVICES, 19CCJP05685B,
19CCJP05685C
Plaintiff and Respondent,
v.
M.T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Michael E. Whitaker, Judge. Affirmed.
Melissa A. Chaitin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, Aileen Wong, Deputy County Counsel, for
Plaintiff and Respondent.
_________________________
Mother appeals orders declaring her three children
dependents of the juvenile court and removing the children
from her physical custody. She also challenges an order imposing
a monitored visitation restriction. The evidence showed mother
was a current abuser of methamphetamine, she used the drug
with her youngest child’s father (who was barred from contact
with mother under a domestic violence restraining order), and
the children had suffered emotional trauma from the tumultuous
home environment. Although mother had recent success
addressing her addiction in an inpatient drug treatment
program, she had also repeatedly lied about the extent of her
drug use, and she had instructed her children to lie about her
contact with the youngest child’s father. The juvenile court found
mother’s lack of credibility, her years of drug abuse, and her
tenuous recovery necessitated the removal order and monitored
visitation restriction. The evidence supported the court’s
findings. We affirm.
FACTS AND PROCEDURAL HISTORY
Consistent with our standard of review, we state the facts
established by the evidence in the light most favorable to the
juvenile court’s findings, resolving all evidentiary conflicts in
favor of the findings, and indulging all reasonable inferences
to uphold the court’s orders. (In re I.J. (2013) 56 Cal.4th 766,
773; Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996.)
The family consists of mother and the children: R.C.
(born October 2005), A.S. (born October 2009), and A.C. (born
November 2015). Each child has a different father.
Mother and R.C.’s father coparented R.C., but did not have
a formal custody agreement. A.S.’s father shared joint custody of
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A.S. with mother. A.C.’s father had been living with the family.
He did not have a custody agreement with mother.
In July 2019, the Los Angeles County Department of
Children and Family Services (the Department) received a
referral alleging general neglect of the children by mother and
A.C.’s father, as well as possible drug use in the home.1 Mother
claimed she had not smoked marijuana since last year and denied
current drug use. She said A.C.’s father smoked marijuana, but
denied he used other drugs. She also said he no longer lived in
the family home. Mother agreed to drug test.
In August 2019, the Department received another referral
alleging domestic violence and drug use in the family home.
The caller alleged mother verbally berated R.C. while under
the influence of methamphetamine and mother had repeatedly
complained that the child was “ ‘always depressed.’ ” R.C. had
reportedly been “self-mutilating” by cutting her forearm, but
when mother was confronted about seeking counseling for
the girl, mother responded that cutting “ ‘doesn’t count.’ ” Since
the earlier referral, the caller said mother had been in the
process of hiding or disposing of drug paraphernalia in the home.
A social worker went to the family home to investigate.
She found A.C.’s father there with the three children and the
maternal great grandmother. A.C.’s father explained there
was an active restraining order prohibiting him from being
within 100 yards of mother due to a domestic violence incident
1 Mother’s child welfare history included six referrals
between May 2015 and December 2018 for alleged general
neglect, sexual abuse by mother’s boyfriend, and emotional
abuse. All allegations were deemed inconclusive after
investigation.
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in May 2019. He lived with his father and came to the house
once or twice a week to spend time with his son when mother
worked. He denied there had been a new incident of domestic
violence.
R.C. and A.S. said A.C.’s father no longer lived in the home.
They had heard mother and A.C.’s father argue, but never
witnessed a physical altercation. R.C. and the maternal great
grandmother had not seen drug use in the home. The social
worker reported there appeared to be no child safety concerns
and there were no signs of drug paraphernalia.
Mother’s drug test was positive for methamphetamine
and amphetamine. She admitted she had smoked the drug
with a friend the day of the test. She said she began using
methamphetamine four months ago and used it “ ‘every once
in a while’ ” since then.
Mother later admitted she began using methamphetamine
more than a year earlier, in July 2018. However, A.S.’s father
reported mother had disclosed her methamphetamine use
to him as far back as 2008. Mother currently used the drug
at her neighbor’s home. She denied A.C.’s father used
methamphetamine, and she denied ever using the drug with him.
She said A.C.’s father smoked “a lot of weed.”
The day before his scheduled drug test, A.C.’s father
admitted he also used methamphetamine. His drug test was
positive for methamphetamine, amphetamine, and marijuana.
The Department spoke with a friend of A.C.’s father
who was familiar with the family. She reported A.C.’s father
continued to live in the family home, in violation of the
restraining order, and he regularly used methamphetamine
with mother. She said mother and A.C.’s father were violent
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with one another. She believed R.C. was suffering from
depression due to the turbulent home environment.
Mother agreed to a safety plan that required A.C’s father
to stay away from the home and that prohibited both parents
from using drugs. But not long after executing the safety plan,
mother notified the Department that A.C.’s father had nowhere
else to live and that she was “trying to work things out” with him.
On September 3, 2019, the Department filed a dependency
petition on behalf of the three children, alleging mother and
A.C.’s father had a history of domestic violence and they were
current abusers of methamphetamine and marijuana. The
Department obtained a removal warrant and placed R.C.
and A.S. with their respective fathers. A.C. went to a foster
placement.
After the detention, the Department interviewed A.S.
again. A.S. said mother had told the children to lie about A.C.’s
father, and she confirmed A.C.’s father continued to live in
the family home with the maternal grandmother’s permission.
A.S. also said R.C. had been cutting herself with a blade because
R.C. felt “pressure.” She said R.C. wanted to run away from
home. A.S. had also thought about harming herself because
of the chaotic home environment, but she said she now wanted
to be strong for her father.
A.S. had witnessed mother smoking marijuana in the
home’s bathroom. She said her grandmother also smoked “weed”
and did not care about drug use in the house.
A.S. said A.C.’s father regularly yelled at mother, they were
always arguing, and they sometimes would “hand fight.” She
recalled the police had come to the home because of the fighting.
Although mother and A.C.’s father had been told they could not
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be around each other, “they never listened.” A.S. said she was
happier living with her father because she no longer had to
“deal with all of that stuff.”
R.C. likewise reported mother and A.C.’s father “argue
all the time.” She recalled an incident when A.C.’s father shoved
mother, who hit her head on a door. The arguments usually
began with a lot of yelling and profanity and often progressed
into the parents shoving each other. Despite the restraining
order, R.C. said A.C.’s father regularly came to the house when
mother was at work and, on at least one occasion, had come over
when mother was home to help her with A.C.
R.C.’s father had spoken with R.C. about her time at
mother’s home. R.C. told him mother and A.C.’s father fought
“daily.” Mother sometimes did not return home, and A.C.’s father
stayed with the children. At other times, A.C.’s father slept
in a car on the side of the house. R.C. said there were “always
people hanging around” the house. A.C.’s father smoked
marijuana in the home. R.C. had missed a lot school and
her grades had been very poor the past year.
Contradicting her prior claims, mother admitted she
was aware that A.C.’s father used methamphetamine at her
neighbor’s house while mother was at work. She said the
neighbor had introduced her and A.C.’s father to the drug, and
she admitted she and A.C.’s father used methamphetamine
together. She claimed this occurred only “a few times.”
At the end of August 2019, mother enrolled in an
outpatient drug treatment counseling program. In September,
she enrolled in an inpatient program. She tested negative for
all substances four times between August and October 2019.
In November 2019, she enrolled in a parenting class. Her
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frequent visits with the children at the inpatient facility went
well.
The Department had referred R.C. for mental health
services and reported she was “getting better.” R.C. no longer
had thoughts of harming herself and her grades had considerably
improved. A.S. also was doing well in her father’s home. And
A.C. was doing well in his placement.
On November 27, 2019, the juvenile court held a combined
jurisdiction and disposition hearing. Its tentative decision was to
dismiss the domestic violence counts and to sustain the substance
abuse and failure to protect counts. The court reasoned the
May 2019 domestic violence incident was too remote to support
jurisdiction without more specific evidence of an ongoing threat
of harm. As for the drug abuse and failure to protect counts, the
court reasoned mother’s and A.C.’s father’s positive drug tests,
their subsequent admissions that they used methamphetamine
together, and their earlier attempts to deceive the Department
about the extent of their drug use supported jurisdiction.
The Department and the children’s counsel argued the
court should sustain the domestic violence counts and submitted
with respect to the substance abuse and failure to protect counts.
Mother argued her recent participation in a residential drug
treatment program negated any risk of harm from her past drug
abuse.
The court adopted its tentative decision, dismissing the
domestic violence counts and sustaining the substance abuse and
failure to protect counts.2 The court emphasized that mother’s
2 In sustaining the counts, the court also found the children’s
respective fathers failed to protect them from the risk of harm
posed by mother’s and A.C.’s father’s substance abuse.
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and A.C.’s father’s dishonesty about their substance abuse
supported the finding that a current risk of harm persisted.
Regarding disposition, the Department recommended
the court terminate jurisdiction over the older children with an
exit order granting their respective fathers sole physical custody
and joint legal custody with mother. As for A.C., the Department
asked the court to remove the four-year-old from mother’s and
his father’s custody and to maintain A.C. in a suitable placement
with reunification services. The children’s counsel joined with
the recommendation, except with respect to R.C., who wanted
the case to remain open to give mother a chance to reunify.
While the children’s counsel acknowledged mother was making
progress in drug treatment, counsel argued a risk of harm
remained because mother would be returning to the home where
she used drugs and where she maintained a relationship with
A.C.’s father. Mother requested the court maintain jurisdiction
and release the children to her physical custody, citing her
progress in treatment and her clean drug tests.
The juvenile court adopted its prior credibility findings,
ordered the children removed from mother’s physical custody,
terminated jurisdiction over the older children with an exit order
granting their respective fathers’ sole physical custody and joint
legal custody with mother, and ordered A.C. to remain suitably
placed. The court ordered mother’s visits to be monitored.
DISCUSSION
1. Substantial Evidence Supports the Disposition Order
Removing the Children from Mother’s Physical
Custody
Mother challenges the jurisdictional findings regarding her
substance abuse and failure to protect the children, as well as
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the disposition order removing the children from her physical
custody. However, she acknowledges reversal of the
jurisdictional findings will have no effect on her children’s
adjudication as dependents, which was separately based on
sustained allegations concerning the conduct of the children’s
fathers. Because jurisdiction will not be affected by our decision,
and the jurisdictional findings will have no impact on mother’s
future rights or the challenged disposition order, we decline
to address mother’s challenge to the findings. (See In re I.A.
(2011) 201 Cal.App.4th 1484, 1491; cf. In re Drake M. (2012)
211 Cal.App.4th 754, 762.) In any event, the same evidence that
supports the disposition order also supports the jurisdictional
findings. We address the disposition order now.
The purpose of the juvenile dependency laws “is to provide
maximum safety and protection for children who are currently
. . . being neglected, . . . and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of
that harm.” (Welf. & Inst. Code, § 300.2;3 see In re Christopher
R. (2014) 225 Cal.App.4th 1210, 1215 (Christopher R.).)
When a minor has been adjudged a dependent child of
the court under section 300, the juvenile court may limit the
control to be exercised over the dependent child by the parent or
guardian. (§ 361, subd. (a).) A dependent child may not be taken
from the physical custody of the parent with whom the child
resides unless the juvenile court finds by clear and convincing
evidence that there is 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
3 Statutory references are to the Welfare and Institutions
Code.
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reasonable means by which the minor’s physical health can be
protected” without removal. (§ 361, subd. (c)(1); see In re Ashly F.
(2014) 225 Cal.App.4th 803, 809–810 (Ashly F.).) “ ‘The court
may consider a parent’s past conduct as well as present
circumstances.’ ” (In re John M. (2012) 212 Cal.App.4th 1117,
1126 (John M.).) “ ‘A removal order is proper if it is based on
proof of (1) parental inability to provide proper care for the minor
and (2) potential detriment to the minor if he or she remains with
the parent.’ ” (In re Francisco D. (2014) 230 Cal.App.4th 73, 83.)
Our Supreme Court recently clarified the standard for
appellate courts to use when reviewing findings that must be
proved by clear and convincing evidence. In such cases, “the
question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.
Consistent with well-established principles governing review
for sufficiency of the evidence, in making this assessment the
appellate court must view the record in the light most favorable
to the prevailing party below and give due deference to how
the trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B., supra,
9 Cal.5th at pp. 995–996; see also In re Jasmon O. (1994) 8
Cal.4th 398, 423.) The appellant has the burden of showing there
is insufficient evidence to support the juvenile court’s findings
or orders. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Mother contends the evidence was insufficient to support
the disposition order removing the children from her physical
custody. She argues there was no evidence that her substance
abuse ever resulted in physical harm to the children, and she
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maintains her successful efforts in an inpatient drug treatment
program eliminated any risk of future harm. She also argues
the juvenile court failed to consider reasonable alternatives to
removal. We conclude the evidence was sufficient to support
the court’s disposition order.
Fortunately, none of the children appear to have suffered
direct physical harm from mother’s substance abuse. But
evidence of physical harm is not required before removal is
appropriate, because the focus of section 361 is on averting harm
to the child. (John M., supra, 212 Cal.App.4th at p. 1126.) This
statutory directive is especially relevant for A.C., who, because
of his tender years, is acutely at risk of harm from mother’s
inability to provide regular care while under the influence of
methamphetamine. (See Christopher R., supra, 225 Cal.App.4th
at p. 1220 [even absent evidence of actual harm, father’s
substance abuse supported removal of infant, who, because
of his need for constant care, was at inherent risk of physical
harm].) The evidence showed mother and A.C.’s father used
methamphetamine together at a neighbor’s home when they were
responsible for supervising their four-year-old son. And mother
allowed A.C.’s father to use methamphetamine when he cared
for the child. This conduct endangered A.C. (See ibid.; cf.
In re Destiny S. (2012) 210 Cal.App.4th 999, 1004 (Destiny S.)
[mother’s drug use did not endanger 11-year-old child who
“ ‘was old enough to avoid the kinds of physical dangers which
make infancy an inherently hazardous period of life’ ”].)
As for the older children, while there may not have been
physical harm, the evidence showed mother’s substance abuse
and tumultuous relationship with A.C.’s father had taken an
emotional toll on R.C. and A.S. (See § 361, subd. (c)(1) [removal
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is warranted when parental conduct poses a “substantial danger
to the . . . emotional well-being of the minor”].) A friend of A.C.’s
father, who was familiar with the family, reported the parents
regularly used methamphetamine together and the home
environment they fostered had caused R.C. to suffer depression.
A.S. corroborated this report. After revealing that mother
had told the children to lie about A.C.’s father staying with
the family, A.S. disclosed that R.C. had been cutting herself with
a blade and that R.C. wanted to run away from home. Mother
had neglected R.C.’s mental health needs, suggesting the child’s
cutting “ ‘doesn’t count’ ” as self-mutilation. After R.C. was
removed to her father’s home, her condition improved and she
reported she was “getting better.” A.S. had also thought about
harming herself. She reported she was happier since being
placed with her father, because she no longer had to “deal with”
the problems in mother’s home. This evidence of emotional harm
to the older children was sufficient to support the removal order.
(See In re Joseph B. (1996) 42 Cal.App.4th 890, 894–896, 898–
899, 903 [although jurisdiction was based on physical abuse, risk
of emotional harm supported continued removal of child from
parents’ physical custody; minor was emotionally traumatized by
physical discipline, had adjusted to living with grandmother, and
would likely run away from home if returned to parents’ custody];
cf. Destiny S., supra, 210 Cal.App.4th at pp. 1001–1002 [no risk
of harm where “uncontradicted evidence” showed child “was a
healthy, happy preteen”].)
Mother’s progress in an inpatient drug treatment program,
while commendable, did not eliminate the risk of harm. Mother
had a substantial history of methamphetamine abuse, and the
juvenile court reasonably found her lack of candor about the
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significance of her drug use raised considerable doubt about the
durability of her recovery. Mother repeatedly lied about her drug
abuse—first claiming she never used methamphetamine, later
indicating she had only been using the drug for a few months and
never with A.C.’s father, and finally admitting she had actually
been using methamphetamine for over a year and she used it
with A.C.’s father “a few times.” Still the evidence showed
mother’s admissions were deceptive. A.S.’s father reported
mother had in fact been using methamphetamine for over
a decade, and a family friend said mother and A.C.’s father
regularly used the drug together when they were supposed
to be caring for A.C. And, critically, as the children’s counsel
emphasized, although mother had made progress, she had yet
to demonstrate she could maintain sobriety at home, where she
would lack the support of the inpatient program and where she
would have ready access to methamphetamine from her neighbor.
In view of mother’s repeated inability to acknowledge the
significance of her drug abuse, and the foreseeable complications
that attended her return home, the juvenile court reasonably
found a risk of harm persisted, notwithstanding mother’s recent
progress. (See In re J.C. (2014) 233 Cal.App.4th 1, 6–7 [removal
supported where, notwithstanding the father’s plan to live with
his parents and his seven months of sobriety, evidence showed
he had “years-long struggles with drug abuse” and he was at
“risk of relapsing”]; In re Kimberly F. (1997) 56 Cal.App.4th 519,
531, fn. 9 [“It is the nature of addiction that one must be ‘clean’
for a much longer period than 120 days to show real reform.”];
see also In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044
[“denial is a factor often relevant to determining whether persons
are likely to modify their behavior in the future”].)
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Finally, the juvenile court reasonably determined
alternatives to removal would not have adequately protected the
children. Unlike Ashly F., upon which mother principally relies,
simply removing mother from the family home was not an option,
because no other parent was in the home to care for the children.
(Cf. Ashly F., supra, 225 Cal.App.4th at p. 810; § 361, subd.
(c)(1)(A) [juvenile court must consider the “option of removing
an offending parent . . . from the home”].) Given those
circumstances, the Department and juvenile court reasonably
intervened to protect the older children while maintaining them
in the custody of their respective fathers, in whose care they
were thriving. As for A.C., the court determined his father’s
methamphetamine abuse posed a danger to the four-year-old’s
health and safety, and A.C.’s father has not challenged this
removal order on appeal. (Cf. Ashly F., at p. 810 [children could
have remained in family home under an order removing mother,
as father had completed a parenting class].)
The record shows mother had a significant history of
methamphetamine abuse that emotionally harmed her children
and posed a persistent threat to their well-being. Although
mother had started to address her addiction, the juvenile
court reasonably determined her deceptiveness and evident
unwillingness to fully acknowledge her substance abuse created
an ongoing risk that could not be adequately addressed without
removing the children from her physical custody. The evidence
supports the disposition order.
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2. The Juvenile Court Reasonably Exercised
Its Discretion to Impose a Monitored Visitation
Restriction
Mother contends there was insufficient evidence to support
the monitored visitation restriction. We review a juvenile court’s
visitation order for abuse of discretion. (In re Tanis H. (1997)
59 Cal.App.4th 1218, 1227–1228.) In making visitation orders,
the court is guided by the principle that “[v]isitation shall be as
frequent as possible, consistent with the well-being of the child.”
(§ 362.1, subd. (a)(1)(A); In re Nicholas B. (2001) 88 Cal.App.4th
1126, 1138.) Of equal importance, however, is the statutory
directive that “[n]o visitation order shall jeopardize the safety
of the child.” (§ 362.1, subd. (a)(1)(B).) The juvenile court must
balance the “interests of the parent in visitation with the best
interests of the child” and “impose any other conditions or
requirements to further define the right to visitation in light
of the particular circumstances of the case before it.” (In re
Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
Mother has not shown the monitored visitation restriction
was an abuse of discretion. She contends the children were
“never abused or neglected while in her care.” But the evidence
showed that the older girls had suffered emotional harm
and that mother neglected A.C.’s supervision while using
methamphetamine with the four-year-old’s father. Indeed, much
of the trauma in the home resulted from mother’s destructive
relationship with A.C.’s father. Yet mother failed to enforce
the restraining order against him and she told her children
to lie about his presence in the home. Based on this evidence,
the juvenile court reasonably concluded monitored visitation was
necessary to ensure the children’s safety upon mother’s return
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home from her inpatient drug treatment program. We find
no abuse of discretion.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
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