Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County, Marguerita D. Downing, Judge, No. CK23932
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant M.B.
Lee Gulliver, under appointment by the Court of Appeal, for Appellants J.G. et al.
Office of County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
Appellants M.B. (mother) and the three minor children appeal from the jurisdictional findings and dispositional order made by the juvenile court at a hearing on the Welfare and Institutions Code section 300 petition filed by the Los Angeles County Department of Children and Family Services (DCFS). Because the juvenile court’s findings are supported by substantial evidence, we affirm.
Although jurisdictional findings are not appealable, an appeal from a dispositional order allows an appellate court to consider errors in connection with nonappealable jurisdictional findings. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition.
On August 21, 2008, DCFS filed a section 300 petition on behalf of J.G. (born May 1998), B.G. (born May 1999), and I.G. (born Jan. 2002) alleging mother had an 11-year history of drug use and was a current user of methamphetamine, amphetamine and marijuana; mother’s five older children received permanent placement services from DCFS due to mother’s drug abuse and failure to reunify with them; and the children’s father, S.G. failed to provide the children with basic necessities, such as food, clothing, shelter, and medical care, and his whereabouts were unknown.
Mother has a total of nine children. It appears that six children, rather than five, were removed from her care through dependency proceedings. Thereafter, four were adopted by the maternal grandmother, and two were adopted by a paternal grandmother.
Detention Report.
On August 10, 2008, DCFS received a referral alleging the children were being neglected and emotionally abused by S.G. and mother; the family was homeless and periodically stayed at the Valley Inn Motel; the parents would lock the children inside the room while the parents used drugs; and the children appeared very thin, possibly malnourished, and dirty.
On August 14, 2008, an emergency response DCFS social worker (ER-CSW) went to the Valley Inn Motel and met with mother. The children were sleeping. Mother reported that she had been separated from S.G. for six years, he was not involved in the lives of the children; he did not provide for them; and he had had no contact with the family for several months. Mother denied being homeless, stating the children had a stable residence at the motel, where they had been residing since November 2007, and claimed the family was on a waiting list for low-income housing. She received welfare financial assistance and food stamps, and her adult children provided emotional and financial support.
The ER-CSW observed that the motel room was moderately kept, had an adequate supply of food, working utilities, and, aside from smelling of cigarettes, did not contain any safety hazards for the children. The children were healthy, had had all of their immunizations, were appropriately dressed, were doing well in school and had excellent school attendance. Two of mother’s adult children, who happened to be at the motel when the ER-CSW was there, stated they maintained a close relationship with mother. They claimed she took good care of their younger siblings and denied that she abused drugs or alcohol. The motel front desk clerk stated she had no concerns about the family and observed that mother took good care of her children.
The ER-CSW interviewed B.G. privately. She stated she was enrolled at Don Julian school, but was on summer break. She had been living at the motel for about a year. She knew S.G. by name, but had not seen him for a long time. She was properly fed, and spoke positively about mother’s care. She denied being physically or sexually abused, or exposed to domestic violence. She claimed no one in the home abused drugs or alcohol, and denied that mother had a boyfriend.
According to J.G., he was doing very well in school. He denied being physically disciplined or exposed to sexual abuse or domestic violence. He reported no one in the home abused drugs or alcohol. J.G. knew his father by name, but stated he had not seen him for a long time. He spoke positively about mother’s care.
I.G., too, spoke positively about mother’s care, denied suffering any abuse, and claimed his father was absent from the home.
Mother admitted having a history with DCFS 11 years ago after she gave birth to a child prenatally exposed to drugs, and stated that four of her older children had been adopted by their maternal grandmother through dependency court actions when mother failed to reunify with them. She claimed she had been sober for many years and denied current drug or alcohol abuse. She agreed to submit to a drug test the same day. Test results revealed a positive toxicology screen for methamphetamine and amphetamine.
The test results have the notation, “INVALID RESULT.” DCFS later investigated by speaking to a lab technician who explained the urine sample was not consistent with normal human urine and suggested a foreign substance was added to the urine. Because of this, negative results for other drugs were unreliable, but the results for positive use of methamphetamine and amphetamine were accurate and confirmed on second testing.
After receiving mother’s positive drug test, the ER-CSW re-interviewed mother, who reported she did not know how she tested positive. She reported that about two weeks before she tested, she and a girlfriend went out, and mother consumed alcohol and smoked marijuana. Mother denied ingesting any other drug. She believed someone put crystal methamphetamine in her drink. Mother stated that when she abused drugs 11 years ago cocaine was her drug of choice.
DCFS detained the children together in foster care.
Detention Hearing.
At the August 21, 2008, detention hearing, the juvenile court stated that it did not appear that there was a nexus between mother’s positive drug test and a safety risk to the children. The court found that DCFS had failed to make reasonable efforts to prevent the removal of the children and that there were services available to prevent further detention. However, the court found a prima facie case that the children were persons described under section 300. The children were released to mother’s custody under a family maintenance plan. When asked where she was residing, mother advised that she and the children were living with the maternal grandmother. The court instructed her not to change her residence without notifying the DCFS social worker. Mother was ordered to drug test on demand. A multidisciplinary assessment of the family, including an assessment of the children’s physical and psychological status, was ordered, and the court forbade visits between the children and S.G. until he contacted DCFS.
Pretrial Resolution Conference.
A pretrial resolution conference was held on October 1, 2008. DCFS was ordered to provide a supplemental report addressing mother’s progress. The matter was continued for a contested adjudication hearing.
Jurisdiction/Disposition Hearing.
A jurisdiction/disposition hearing was held on December 2, 2008. By that time, mother had moved from the maternal mother’s home, first into a motel in El Monte, and then into a motel in Hacienda Heights. However, she did not notify DCFS that she intended to move, or provide DCFS with her new address. It took the investigator about two weeks and about 14 attempts to find the family. The family was finally located by contacting the school, family members, and motels. Once located, the dependency investigator re-interviewed the family, along with other witnesses.
Mother told the investigator that she began using drugs at the age of 22. She started with marijuana and proceeded to cocaine. She consumed cocaine by “snorting” it or by “mixing it with weed and smoking it.” Mother denied using drugs around any of her children, claiming she would leave them in the care of the maternal grandmother when she used. Mother claimed she stopped using drugs when she was 27, and that she had been sober for 11 years without receiving treatment. She had six other children, fathered by two men other than S.G. Both of these men were “crack” users. Mother claimed her prior DCFS case was opened because of drug use by one of these men. Mother stated that while she was pregnant with this man’s child she was with him and some of his friends in a car. When they were stopped by the police, the father and his friends told mother to swallow the father’s cocaine, which resulted in the baby testing positive at birth. Mother resumed her relationship with him even though she was attempting to reunify with her older children.
Mother explained that four of her older children were adopted by the maternal grandmother, and two by a paternal grandmother. Mother stated her failure to reunify was by choice, not because of any court orders. She claimed she allowed the children to be adopted for financial reasons.
When asked about her recent positive test, mother stated she believed it was the result of her being around people who used methamphetamine. She claimed to have baby-sat for a woman who abused the drug. This was the same woman who accompanied mother to the bar where she consumed alcohol and smoked marijuana. When reminded that she had told the ER-CSW that the positive drug test was likely the result of someone spiking her drink, mother stated she still suspected being drugged. She also suspected the woman for whom she baby-sat of drugging her, as mother had heard rumors the woman had drugged others. Mother denied any current drug use. Mother’s adult daughter advised her against associating with this particular friend, warning that the woman was a “tweeker,” and mother would “get in trouble for helping” her. Three subsequent drug tests yielded negative results.
Regarding S.G., mother stated the two were romantically involved for seven years before they separated four years ago. He would visit intermittently and give mother some money when he visited. S.G.’s sister also provided some money and clothing on S.G.’s behalf. Mother last saw S.G. on Christmas, 2007. She denied knowing his current whereabouts, but stated she maintained contact with his sister.
Mother was participating in parenting classes and drug testing. She was willing to go to a drug treatment program upon securing childcare.
The dependency investigator interviewed the children, all of whom denied mother used drugs. They again spoke positively about the care she provided them. The children were healthy, developmentally on target, and did not exhibit any signs of mental or emotional problems.
The maternal grandmother, when asked if mother currently was using drugs, responded, “[N]ot right now.” When asked how she knew, the grandmother responded, “[B]ecause she’s a little chubby.” The grandmother stated mother used marijuana when she was with S.G. When asked why the other children had been removed from mother’s custody, the grandmother stated mother had neglected them because she had used marijuana.
Mother had a criminal history, including a 1996 misdemeanor conviction for petty theft, a 1997 misdemeanor conviction for presenting false identification to police officers, a 1998 misdemeanor conviction for spousal abuse, and a 2002 conviction for misdemeanor theft.
The juvenile court continued the matter for trial. DCFS prepared a supplemental report. Mother submitted five additional, negative drug tests. DCFS confirmed the accuracy of the positive test submitted by mother in August 2008. Mother continued to attend parenting classes, but “very sporadically.”
Trial.
At the December 2, 2008, trial, the court admitted in evidence the two DCFS reports submitted for the original jurisdiction/disposition hearing, and the supplemental report. The children’s attorney called mother to testify. Mother stated she and the children had resided at the Valley Inn Motel for about a year. They then stayed with the maternal grandmother for a few days before moving to a motel in El Monte and then to a motel in Hacienda Heights. Mother had recently secured an apartment for the family.
Mother stated the children resumed school in September 2008, and had not been absent except when present in court or when I.G. was sick. They attended the same school they attended the previous year and were all doing well. Mother was involved at the school, and the children were involved in extracurricular activities.
In addition to drug testing through DCFS, mother was attending Narcotics Anonymous meetings and individual counseling through a sober-living rehabilitation program.
Mother again denied using drugs and stated the positive drug test was due to having been “around the wrong people who were smoking that stuff.” She denied having a history of methamphetamine use or ever using the drug.
On cross-examination, mother stated she had not used an illicit substance since she was 23 or 24 years old. She was now 41 years of age. She reiterated that she tested positive for methamphetamine because she associated with the wrong crowd while baby-sitting. She later clarified that another possibility was that some men at a bar had drugged her. She admitted to smoking marijuana the evening she went out with her girlfriend to the bar. She denied using marijuana since, and stated that she had not used marijuana since she was 23 years of age. She also confirmed that since the case’s inception, four months ago, she had lived in different motels and the maternal grandmother’s home, and only recently had secured an apartment.
In closing, counsel for DCFS noted the one positive drug test had been tampered with, suggesting mother attempted to alter the test results because she knew she had used drugs. Mother’s multiple explanations for the positive test, given her history, were suspect. Also, her own admission of recent marijuana use contradicted her statements of sobriety since the age of 23.
The children’s attorney stressed that mother had a stable place to live with the children; the children attended school daily and were excelling; and mother was attending Narcotics Anonymous meetings. According to the children’s attorney: “I’m not quite sure, other than family maintenance, what the [DCFS] and what social services can offer to this lady that she hasn’t already undertaken on her own. [¶].... [¶] Submitted.”
Mother’s counsel asked the court to dismiss the b-1 count, urging mother’s substance abuse and prior DCFS history were too remote. Counsel argued a one-time use of marijuana was insufficient to warrant jurisdiction. “And quite frankly, the mom doesn’t know how she tested positive for the methamphetamine and the amphetamine. There’s no reason to think the mother is lying....” Counsel noted that there were “eight clean tests in the file.”
The juvenile court sustained counts b-1, regarding mother’s substance abuse and history with DCFS, and g-1, regarding S.G.’s neglect, as pled, and dismissed count b-2, which was identical to count g-1. The court was concerned with mother’s history, her current use of marijuana, and that she had placed herself in a vulnerable situation. The court ordered that the children were to remain in mother’s physical custody, ordered mother to continue in her current programs, including drug testing, and stated that mother need not participate in a drug program. The court directed DCFS to provide family preservation services and to assist mother with finding child care. The court did not make the children dependents of the court. Instead, it ordered that the family be informally supervised by DCFS for six months and dismissed the petition pursuant to section 360, subdivision (b).
Section 360, subdivision (b) provides that “[i]f the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child’s parent or guardian under the supervision of the social worker for a time period consistent with Section 301.
Mother’s attorney asked the court strike the language in the petition referring to methamphetamine and amphetamine use. The court denied the request, which prompted mother’s counsel to request a basis for the court’s finding. Later the court stated: “She admitted to use of narcotics, and I have a positive test from August 14, 2008, and I have somebody who has an 11-year history. She states that she finished using drugs in—when she was 27. But then she admitted using marijuana.”
The children and mother timely noticed appeals from the court’s jurisdictional findings.
CONTENTIONS
Mother and the children argue that the juvenile court erred in assuming jurisdiction over the children.
DCFS, citing In re S.B. (2004) 32 Cal.4th 1287, 1293-1294, and In re Christina L. (1992) 3 Cal.App.4th 404, 416, argues that the children’s attorney forfeited review by failing to object to the juvenile court’s findings. We need not decide the issue since we conclude that substantial evidence supports the trial court’s jurisdictional findings and dispositional order.
DISCUSSION
I. Standard of Review
The juvenile court’s jurisdictional finding that a child is a person described by section 300 must be supported by a preponderance of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) When reviewing a jurisdictional finding, an appellate court employs the substantial evidence test. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) The term “substantial evidence” means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
When assessing the sufficiency of the evidence to support a jurisdictional finding, an appellate court must view the record in the light most favorable to the juvenile court’s finding. It also must draw all reasonable inferences from the evidence to support the finding. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) The reviewing court has no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Resolution of fact issues and assessment of credibility are within the sole province of the trial court. (In re Heather A., supra, at p. 193.)
II. Substantial Evidence Supports the Juvenile Court’s Findings
Section 300 provides that any minor who comes within the descriptions set forth in subdivisions (a) through (j) is within the jurisdiction of the juvenile court. Section 300, subdivision (b) provides the following description: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child,... or by the inability of the parent... to provide regular care for the child due to the parent’s... substance abuse.” The court is not required to find that the subject children have been harmed, but only that the children are at substantial risk of harm. (§ 300, subd. (b).)
Substantial evidence within the appellate record supports the juvenile court’s jurisdictional findings regarding mother. Mother, who had failed to reunify with other children because of her drug use, lost custody of her children because she tested positive for methamphetamine and amphetamine; admitted using marijuana; and was associated with individuals she knew to be drug users, which, of course increased the possibility of a relapse.
Mother claims with respect to the positive drug test for methamphetamine and amphetamine that DCFS failed to meet it burden of showing that the test was valid. While it is true that the test result was marked “invalid,” evidence was presented to show that the test was accurate. The dependency investigator spoke to a lab technician about the test results. Regarding the “invalid” notation, the technician explained the urine sample was not consistent with normal human urine, suggesting a foreign substance was added to the urine. Because of this, negative results for other drugs were unreliable, but the results for positive use of methamphetamine and amphetamine were accurate and confirmed on second testing. County counsel was the only attorney to provide an explanation for the results, i.e., that mother, knowing she would test positive, tampered with the urine sample. No one objected to this claim, offered contrary evidence, or sought to discredit the test.
By failing to raise the issue in the juvenile court, mother has forfeited review of the adequacy of the drug test. (See In re S.B., supra, 32 Cal.4th at pp. 1293-1294.)
The record reflects that mother never completed a substance abuse program, either before or after the loss of her older children. Mother claims she should be “commended for having overcome her drug problem on her own, not faulted because it occurred without a [DCFS] sanctioned program.” Mother deserves no such commendation. Had she completed a substance abuse program, she would have been instructed not to associate with individuals she knew were using drugs, and not to ingest any kind of drug, including marijuana. We cannot conclude, on the evidence presented, that mother overcame a drug problem. What the evidence suggests is that even if mother had been “clean and sober” for several years prior to the August 2008 referral, she suffered a relapse. Our conclusion is bolstered by mother’s inconsistent statements about her drug use history and current use of drugs. Although she admitted using marijuana as recently as August 2007, she testified that she last used drugs about 20 years ago, when she was 23 or 24 years of age.
She told the dependency investigator she last used drugs when she was 27 years of age.
Mother’s suggestion that she did not associate with known drug users is belied by the record. Mother speculated that she tested positive for methamphetamine because the woman for whom she baby-sat was a user of the drug. By referring to the woman with whom she was associating as the woman for whom she had been baby-sitting, mother suggests that she did not really associate with the woman; that she somehow accidently came into contact with drugs because of her baby-sitting chores. However, this is the same woman who accompanied mother to a bar where they consumed alcohol and smoked marijuana. And, this is the same woman one of mother’s older children warned mother not to associate with. According to mother, her daughter told her that her “friend” was a “tweeker,” and that mother was “gonna get in trouble” by associating with her and by helping her. Clearly, mother knew that she was associating with a user of methamphetamine, and took no steps to disassociate herself until she received the August 2008 DCFS referral.
Mother lost custody of her older children because of her drug use, and because of her association with individuals (fathers of her older children and other individuals) who used “crack” cocaine. While the children removed in 2008 were different, the drug of choice was different, and the drugs users with whom mother associated were different, the pattern of drug abuse was similar.
Mother suggests the juvenile court should not have focused on her past drug and dependency history because: 1) she has not received referrals concerning her care of the three children at issue in this case; 2) she has managed to provide a stable residence in the form of long-rental motel rooms and later, an apartment; 3) she has provided her children with the necessities of life; 4) she has taken good care of her children, which is evidenced by how well they are doing in school; and 5) she has stayed clean and sober for years. We disagree. This is precisely the kind of case that requires a court to consider past drug use and current lapses in deciding whether there is a “substantial risk” that children will suffer harm as a result of a parent’s substance abuse. Mother’s past drug use was severe. It included giving birth to a child prenatally exposed to drugs, associating with drug users, using poor judgment to conceal an associate’s drug possession from the police, and refusing to enter a drug treatment program. These were circumstances which suggested that mother’s current drug use presented a risk to her children. We find no error in the juvenile court’s consideration of mother’s past drug use and dependency history in making its jurisdictional findings.
Mother, citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, next claims DCFS presented no evidence linking mother’s recent marijuana use to the welfare of the children. Jennifer A. is readily distinguishable. In that case, the children were adjudicated dependents after mother left them home alone when she went to work. There was no other evidence of abusive or neglectful conduct on the part of the mother, who was employed and could provide for the children. (Id. at pp. 1326-1327.) The issue of marijuana use arose at an 18-month review hearing, where the evidence showed that during the prior reporting period, the mother used marijuana. There was no evidence the marijuana use would interfere with her care of the children. (Id. at p. 1346.) Under these circumstances, the appellate court found that the marijuana use did not justify retaining the children in out-of-home care. In contrast, as set forth above, mother permanently lost custody of her older children due to drug use, admitted to using marijuana recently, tested positive for methamphetamine and amphetamine, and had been associating with a known drug user. These are circumstances suggesting that mother’s current drug use presents a risk to her children.
Mother suggests the juvenile court took jurisdiction over her children in order to punish her for being impoverished and for not having a stable residence. Nothing contained in the appellate record suggests that this is so. In fact the court specifically stated: “I am the last person to convict anybody or sustain a petition because of poverty.” Clearly, the court understood that poverty, alone, is a not a basis for inferring negligence or detriment. (See In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212, fn. 4 [neither temporary homeless, unemployment, nor poverty, are statutory grounds for dependency intervention pursuant to § 300].) While mother’s housing situation, unemployment and near-poverty status were obviously factors considered by DCFS in assessing the stability of the family, these factors were not the reasons for the jurisdiction of the children.
Taken together, all of the evidence presented during the jurisdictional hearing warranted juvenile court intervention.
DISPOSITION
The juvenile court’s jurisdictional findings and dispositional order are affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.