Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County. Ct. No. CK76932 Marilyn H. Mackel, Referee.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
On October 22, 2009, the court sustained a petition filed under Welfare and Institutions Code section 300 and ordered the petition to be amended to include a history of domestic violence, as well as positive drug tests on the part of appellant L.W., mother of Ariana, born September 1998, and Robert, born in August 1999. On February 8, 2010, the court removed the children from L.’s custody and ordered them placed with the maternal grandmother. L. appealed from both orders. We have consolidated the appeals under case No. B219892 for all purposes. We affirm both orders.
All statutory references are to the Welfare and Institutions Code.
FACTS
The Department of Children and Family Services (DCFS) first became aware of Ariana and Robert in 2004 as a result of a report that L. was smoking marijuana. While this and several other referrals over the four years were closed as unfounded, DCFS was concerned over L.’s pattern of behavior. On December 18, 2008, there was a report that L. had chased her boyfriend Randle W. out of the apartment with a baseball bat and had broken the window of his car.
After initially denying that she abused drugs, L. admitted early in 2009 that in December 2008 she had smoked marijuana once. L. enrolled in a drug abuse program but tested positive for marijuana three times in January, February and March 2009. She dropped out of the drug abuse program with the explanation that she was too busy trying to get a job.
In the meantime, both children were showing troubling signs of neglect, which are not necessary to detail. Illustrations of this are that Robert developed bed wetting problems and that Ariana went to school dirty and in unsuitable clothing. It is also true that the children witnessed scenes of domestic violence and L.’s drug use.
On April 28, 2009, DCFS filed a section 300 petition on behalf of both children. The grounds were that the children were exposed to domestic violence and that L. used marijuana. At this point, the children’s father, Robert, Sr., was living in Utah. Neither he nor L. showed up at the first section 300 hearing held on May 11, 2009. The court allowed the children to remain with L. but detained them from their father, who had been convicted of domestic violence against L.
At the end of May 2009, L. informed DCFS that she had sent her son Robert to live with his father because she thought that this would be good for her son. This was false information, however, because L. had actually sent Robert to live with his grandmother, L.’s mother, and it was not until mid-June that Robert was sent to Utah.
When interviewed for the DCFS report that was filed in June 2009, L. admitted that during a period of seven years in her relationship with Randle there had been incidents of verbal and physical abuse. The children’s maternal aunt confirmed there was domestic violence and stated that she repeatedly had picked up the children from L.’s house in order to protect them. (According to the aunt, sometimes the children smelled of marijuana.) The children would stay with relatives for weeks at a time. In this interview, L. admitted using marijuana once every two weeks.
Robert’s relations with his father were sufficiently troubled that DCFS requested Utah authorities to check on Robert, which they did, concluding that Robert was not being abused or neglected. Eventually, the court concluded that Robert was doing well with his father in Utah and on October 22, 2009, it denied L.’s request to have Robert returned to her.
In August 2009, DCFS reported that L. tested positive for marijuana on July 17, 2009, and negative on July 23, 2009. She enrolled in a drug treatment program in July 2009.
As noted, on October 22, 2009, the court concluded that L. had tested positively for marijuana, that she hadn’t resolved her problems with drugs, and that L. had a lengthy history of domestic violence.
L. was arrested in California for kidnapping and child endangerment in November 2009. She had gone to Utah and simply kidnapped Robert as he was coming home from school. Ariana was with L. when this happened. L. was also criminally charged in Utah.
On February 8, 2010, the court found the father to be a nonoffending parent but neither child wanted to live with him. (Son Robert intermittently claimed that his father had hit him in the stomach, but he repudiated these claims; it appears his father was strict with him, and therefore the child preferred his mother.) The court removed the children from L.’s custody and placed them in the maternal grandmother’s home.
DISCUSSION
1. L.’s Due Process Rights Were Not Violated
L. contends that her due process rights were violated when the court denied her request to have Robert returned to her. She states that the “court based its refusal on mother’s alleged violation of its order.” She claims she had no notice of this “order” and that this violated due process.
L. is mistaken. On October 22, 2009, the court noted that, in the first place, it was L. who had sent Robert to Utah to live with his father without the court’s permission. The court concluded that she had done the child a service because all the evidence was that Robert was doing well with his father and that Utah officials had determined that Robert was well cared for. This is why the court denied L.’s request in October 2009 to give her custody of Robert.
The court did not deny L.’s request because she had violated an order of the court. It is true that in May 2009 the court had detained the children from their father and that shortly thereafter L. sent Robert to live with his father. At the hearing on June 22, 2009, which was L.’s first appearance, her lawyer told the court that L. did not realize that sending Robert to Utah violated the court’s order. Thus, L. was on notice as of June 22, 2009, that she had violated the court’s May 2009 order but this is as far as this matter ever went; the court certainly did nothing about it except to warn her to obey future orders of the court.
In sum, the court did nothing about the violation of its May 2009 order detaining the children from their father and L. was on notice about that order as of June 22, 2009. There was no due process violation.
2. There Was Substantial Evidence of the Risk of Serious Harm and Injury
L. contends that “the children suffered no serious physical harm or illness attributable to the allegations in [the] petition.” This contention refers to the court’s findings on October 22, 2009, that L. had tested positively for marijuana, that she had not resolved her problems with drugs, and that L. had a lengthy history of domestic violence. L. propounds an identical argument in support of her claim that she should not have been deprived of the custody of the children. We address both of these contentions in this part.
Being kidnapped and taken across state lines is a serious harm by any measure. The spectacle of a mother, accompanied by an 11-year-old girl, driving from Los Angeles to Utah with the intent of kidnapping a child from the custody of his father a placement that the court had just approved is appalling. It shows a degree of criminal recklessness that, standing alone, disqualifies L. as a parent of either child. No child should be subjected to an ordeal of this kind.
But there is far more than one criminal enterprise. To say that a child reeking of marijuana has not suffered “serious physical harm” is simply wrong. Exposure to a mother who regularly smokes marijuana who in fact shows little interest in stopping is not only harmful, it is potentially destructive of the child’s psyche, personal safety and emotional balance. While it is undoubtedly true that such things happen in the world and that this is no singular case on this score, when it does happen, the court has a responsibility to intervene energetically. It did so in this case, and would have been warranted to do so even earlier than February 8, 2010.
As far as domestic violence is concerned, a single instance of chasing a boyfriend out of the house with a baseball bat and smashing the window of his car would suffice, in most people’s opinion, to draw into question the assailant’s qualifications as a role model. But of course there was more than a single instance of domestic violence. It seems to have been endemic enough to cause relatives to remove the children from this home for weeks at a time.
As respondent notes, juvenile court decisions regarding jurisdiction are reviewed under the substantial evidence test. (E.g., In re James C. (2002) 104 Cal.App.4th 470, 482.) There is simply no doubt that this test is amply satisfied in this case. Indeed, combing the record for contrary evidence leads one to conclude that there is no such evidence in this case. Very sadly for L. and her two children, there are no redeeming factors that can be cited in L.’s favor.
“A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that]... [¶] (1) There 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 or guardian’s physical custody.” (§ 361, subd. (c)(1).)
The foregoing requirements have been met in this case by uncontradicted evidence.
3. Conclusion
This was not a close case. By February 2010, with L. in jail and facing serious charges, and an unrelieved track record of drug abuse, domestic violence and flagrant disregard for the court’s orders, the trial court could only hand down one ruling, which was the ruling that it did make.
DISPOSITION
The orders of October 22, 2009, and February 8, 2010, are affirmed.
We concur: BIGELOW, P. J. RUBIN, J.