Opinion
D059230 Super. Ct. No. NJ13446B
10-20-2011
In re HAILEY W., a Person Coming Under the Juvenile Court Law._ SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TRAVIS W. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
Travis W. and Amber B. appeal orders adjudicating their daughter, Hailey W., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and denying Travis's request to place Hailey with him, under section 361.2, subdivision (a). We affirm.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Travis W. and Amber B. are the unmarried parents of Kody W., born in December 2005, and Hailey W., born in December 2006 (together, the children). This appeal concerns only Hailey. The family has a history of involvement with child protective services.
In July 2006, the San Diego Health and Human Services Agency (the Agency) initiated dependency proceedings on behalf of Kody, who was present during a physical altercation between his parents. At that time, Amber was on probation for a 2004 conviction for the transportation and sale of a controlled substance. In November, Amber was arrested after twice testing positive for methamphetamine. She was eight months pregnant with Hailey. The Agency detained Hailey in protective custody at birth.
When Hailey was detained, Amber indicated that Travis was also using drugs. Travis refused to answer the social worker's questions about his drug history or current drug use, but he agreed to enter a residential substance abuse treatment program.
During Hailey's first dependency proceeding, Travis successfully completed the SARMS program, a residential substance abuse treatment program, a domestic violence intervention program, a parenting education class and a 52-week domestic violence treatment program. The social worker reported that Travis used effective parenting techniques during his unsupervised visits with the children. Amber successfully completed substance abuse treatment and tested negative for drugs for more than a year. In April 2008, at the 12-month review hearing, the juvenile court reunified the family and terminated its jurisdiction.
SARMS is an acronym for the Substance Abuse Recovery Management System.
Travis and Amber lived together with their children until May 2009. When Travis and Amber separated, Amber sent Hailey to live with Amber's friend, Carl T., for a month. Carl had recently been released from prison.
In January 2010, Amber married Joshua B. Their son, G.B., was born in September.
Travis supported Amber, Kody and Hailey until he lost his job in February 2010. Travis and Amber then took turns caring for the children during alternate weeks. In March 2010, the Agency received a child welfare referral alleging that Travis and Kody were living in a home in which law enforcement had found six marijuana plants in a locked room. Travis denied any knowledge of the plants and said that the marijuana plants were in a room that was used exclusively by a roommate. He denied using drugs. The social worker briefly detained Kody, and subsequently released him to Amber's care. The social worker advised Amber to file for sole physical custody of Kody in family court.
Travis took custody of both children at some point in 2010. The record indicates that Travis, Amber and Joshua became homeless during the summer of 2010. Amber said that she, Joshua and Travis stayed in a hotel room together in July because they were "in between homes." In August, Travis moved to Riverside County with the children. However, when Travis's car broke down in September, he and Kody stayed with his parents, and he asked Amber to care for Hailey. Travis cared for Hailey in the days immediately before and after G.B.'s birth in mid-September.
Eleven days after G.B.'s birth, police officers investigated a report of spousal abuse at Amber and Joshua's home. Officers arrested Amber and Joshua for being under the influence of methamphetamine. The police impounded Joshua's car and found a white purse on the passenger side. The purse contained three small plastic baggies that contained traces of what the officer believed was methamphetamine residue. The Agency detained G.B. in protective custody and filed dependency petitions on behalf of both Hailey and G.B.
Amber told the social worker that Hailey's biological father was Carl. The Agency allowed Carl to take custody of Hailey.
At the detention hearing, Carl requested presumed father status. The juvenile court noted that in the previous dependency proceedings, the court had found that Travis was Hailey's presumed father. Travis asked the juvenile court to detain Hailey with him. The juvenile court denied Travis's request and ordered the Agency to evaluate his suitability for placement. The juvenile court deferred the paternity issue and detained Hailey in foster care.
Travis told the social worker that he had used methamphetamine and marijuana from ages 18 to 23. Travis said that he had been sober since he was arrested on a drug charge in August 2002. He had completed an 18-month substance abuse treatment program. Travis stated, "I'm an addict, but I've been clean for eight years."
The social worker asked Travis to submit to a random drug test. In response, Travis said that he had not done anything wrong and that the Agency had no right to ask him to drug test. The social worker told Travis that drug testing would give him an opportunity to demonstrate his sobriety.
Carl told the social worker that Travis had visited him in August with the children. According to Carl, Travis told him that Amber was using drugs and that she was sleeping in a truck.
On November 2, the social worker telephoned Travis. He said that he had returned to his home in Riverside County with Kody.
On November 3, the social worker made an unannounced visit to the address where Amber and Joshua were staying. The owner of the home said that Amber, Joshua and Kody were in a shed in the back, and that Travis was there, as well, and had spent the night there. The social worker asked Travis, Amber and Joshua to drug test and told them that if they did not do so, the Agency and the court would consider their failure to test as having tested positive for drug use. Travis, Amber and Joshua all submitted to drug tests. Each of them tested negative.
On December 14, the juvenile court found that Travis was Hailey's statutorily presumed father and dismissed Carl from the proceedings. The juvenile court sustained Hailey's section 300 petition by clear and convincing evidence.
The social worker telephoned Travis on January 10, 2011, and asked him to drug test that day. Travis said he was not able to drug test because he was in Temecula and did not have any money to pay for gas.
On February 9, the social worker asked Travis to drug test and informed him that a failure to test would be considered a dirty test. He said that he did not agree to the proposed case plan and would not comply with her request.
The contested dispositional hearing was held on February 17, 2011. The juvenile court admitted in evidence the Agency's reports, as detailed above, and documentation that showed that Travis had completed a parenting program in 2007, and two domestic violence programs in 2008.
The social worker testified that there would be substantial risk of detriment to Hailey if she were placed in Travis's care. The social worker was concerned about Travis's ability to protect Hailey, his parenting skills and his lack of participation in services. The social worker did not know whether Travis was drug free. He had recently refused to drug test. The social worker had concerns about Kody's welfare. However, she acknowledged that Travis's care of Kody, although marginal, was adequate.
The juvenile court denied Travis's request to place Hailey with him. The juvenile court said that it did not know whether Travis was clean, noting that Travis had refused two requests by the social worker to drug test and that he had been living in a home in which six marijuana plants were found. In view of Travis's history of substance abuse, the juvenile court said that Travis would have to test clean before the court would place Hailey in his care. The juvenile court placed Hailey in the care of a relative and ordered a plan of reunification services.
DISCUSSION
Amber contends that there is no substantial evidence to support the jurisdictional finding under section 300, subdivision (b). Travis contends that there is no substantial evidence to support the finding that placement with him would be detrimental to Hailey under section 361.2, subdivision (a). Travis and Amber each join the other's briefing.
A
There Is Substantial Evidence to Support the Jurisdictional Finding
At the time of the jurisdictional hearing, the court considers only whether the child is described by one or more subdivisions in section 300. Under section 300, subdivision (b), the Agency must show that the parent's neglectful conduct has caused the child to suffer serious physical harm or illness, or creates a substantial risk that the child will suffer such harm or illness. (Cf. In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The Agency has the burden of proving by a preponderance of the evidence that a child is a person described by section 300. (§ 355, subd. (a).)
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the findings or orders. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Amber contends that Hailey was not at risk of suffering serious physical harm or illness at the time of the jurisdictional hearing. She argues that the evidence shows that she had been clean for five years and had relapsed on only one occasion shortly after G.B.'s birth. Amber asserts that her circumstances are similar to the circumstances in In re James R. (2009) 176 Cal.App.4th 129, 132, 137 (James R.), in which this court determined that there was no substantial evidence to support the finding that the children were at substantial risk of serious harm as a result of their mother's combined use of alcohol and ibuprofen, and In re J.N. (2010) 181 Cal.App.4th 1010, 1022 (J.N.), in which the reviewing court reversed the finding that the children were described by section 300 because they had been in a car accident that occurred while their father was driving while intoxicated.
In reversing the juvenile court's jurisdictional findings in James R., this court noted that the parents had no history of abusing or neglecting their children, and that the father, who lived with the mother and children, was able to protect and supervise the children. (James R., supra, 176 Cal.App.4th at p. 136.) In J.N., the reviewing court held that a single incident involving parental substance abuse was insufficient to sustain a jurisdictional finding where the evidence did not show that the parents had a history of substance abuse. (J.N., supra, 181 Cal.App.4th at pp. 1014-1015.) In determining that the evidence was insufficient to sustain the jurisdictional findings, the reviewing court emphasized that the family had no prior child welfare referrals, the parents did not have criminal histories, and the juvenile court did not find that either parent had a substance abuse problem. (Id. at pp. 1020, 1022.)
In stark contrast, the record here shows that Amber has a substantial history of substance abuse and child protective services intervention, and she has been convicted on charges of selling and transporting drugs. Amber has admitted that she started using drugs when she was 15 years old and that she tried "everything." She started using methamphetamine when she was 18 years old and used methamphetamine "whenever [she] had it." Five years later, Amber tested positive for methamphetamine while she was on probation. She was eight months pregnant with Hailey at the time. Amber told the social worker that Carl, Amber's biological father, had been her drug dealer and that she had had sex with him to obtain drugs. Amber said that Carl was a violent person, yet she arranged for Hailey to stay with Carl for a month shortly after he was released from prison.
The circumstances that gave rise to Hailey's dependency case in 2010 were the same as those that gave rise to her dependency case in 2006—domestic violence fueled by methamphetamine use. Amber gravitated to partners who had substance abuse problems. When Hailey's first dependency case began, Amber indicated that both she and Travis were using drugs. When Hailey's second dependency case began, Amber's husband, Joshua, acknowledged that he had been using methamphetamine for approximately a month before his arrest in September. He said that he and Amber were at a party in April 2010 in which some of the partygoers were using methamphetamine. Amber admitted that she used methamphetamine shortly after G.B.'s birth.
The record contains ample evidence to support the findings that Amber has a substantial history of methamphetamine use, that she used methamphetamine in September 2010, and that she did not provide Hailey with regular care. We conclude that there is substantial evidence to support the jurisdictional finding under section 300, subdivision (b).
B
There Is Substantial Evidence to Support the Finding that Placement with Travis Would Be Detrimental to Hailey
Travis argues that he was a noncustodial, nonoffending parent who was entitled to care for Hailey unless the Agency could show, by clear and convincing evidence, that placement with him would be detrimental to Hailey's safety, protection or physical or emotional well-being. (§ 361.2, subd. (a).) Travis contends that there is no substantial evidence to support the finding that placing Hailey in his care would be detrimental to her.
The phrase "noncustodial, nonoffending parent" is used as a shorthand reference to indicate "a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child." (§ 361.2, subd. (a).)
In reviewing the court's findings and orders under section 361.2, subdivision (a), we employ the substantial evidence test, bearing in mind, however, the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. In addition, we draw all legitimate and reasonable inferences in support of the judgment. (Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 408.)
Travis argues that there is no evidence to support the conclusion that he was using drugs or that he has a current problem with anger or violence. He contends that he was not required to prove that he was not using drugs, and that the juvenile court may not shift the burden to require that the parent show there is no detriment to the child, rather than requiring the Agency to show detriment. Travis further argues that the evidence is insufficient to show that the cultivation of six marijuana plants by a former roommate presents a current risk to Hailey's well-being, and maintains that his lack of financial resources and the social worker's concerns about his parenting skills are not sufficient to sustain a finding of detriment on review.
We agree that a court may not base a finding of detriment on a parent's poverty or the fact that a parent has minimally adequate parenting skills that may be improved through further services. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) However, in determining whether a child may be safely placed in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (Cf. In re Cole C. (2009) 174 Cal.App.4th 900, 917 [discussing removal of the child from the custodial parent under section 361.5, subdivision (c)].)
Travis's argument presumes that in order to sustain a finding that placement with him would be detrimental to Hailey, the juvenile court had to find by clear and convincing evidence that he was using drugs or that he had an anger management problem. We reject that premise.
The purpose of dependency proceedings is to provide maximum safety and protection for children who are currently being abused, neglected or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm. (§ 300.2.) To this end, the juvenile court may consider the parent's past conduct as well as his or her current circumstances. (In re Cole C., supra, 174 Cal.App.4th at p. 917.)
As we detailed earlier in this opinion, the record shows that Travis has a significant history of substance abuse and child protective services intervention. Travis's argument that the presence of six marijuana plants in his home in March 2010 is not currently detrimental to Hailey misses the wider implication of that fact for Hailey's safety and well-being. The record supports the inference that Travis had both children in his care at the home in which his roommates were cultivating marijuana. This indicates that Travis did not recognize that drug-related activity in the home presented a protective risk to Hailey. Further, in August 2010, Travis told Carl that Amber was using drugs. Thus, we can reasonably infer that when Travis returned Hailey to Amber's care in September, he was aware of Amber's drug use. The marijuana plants in his home, while remote in time, returning Hailey to Amber's care knowing that Amber was using drugs and his close association with Amber and Joshua, allow the reasonable inference that Travis did not object to exposing his children to drug users and producers, and implicates his ability to protect Hailey. His unwillingness to cooperate with the social worker also indicates that he did not take the protective risks to Hailey seriously.
Travis's own history of methamphetamine use, and his response to allegations that he was currently using drugs, also constitutes substantial evidence of detriment to Hailey's safety and well-being. Travis admitted that he was an addict. He claimed that he had been clean and sober since his 2002 arrest. This claim is contradicted by Amber's statement that the incidents of domestic violence in 2004 and 2006 that led to Hailey's first dependency case were fueled by their drug use. In addition, both Travis's stepmother, with whom he was living in September 2010, and his stepsister, told the social worker that they believed Travis was using drugs. Travis surrounded himself with people who were using methamphetamine. In August, he visited Carl, whom Amber had identified as her former drug dealer. After Hailey was detained in protective custody, Travis continued to live with Amber and Joshua in the same home. The court could reasonably infer, based on the fact that Travis agreed to the social worker's requests to submit to a drug test on a single occasion, but refused to submit to testing on two other occasions, that he was willing to test only when he knew that the results would be negative for drug use.
The power of the appellate court begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the trial court. (Silicon Valley Taxpayers' Assn, Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431, 447.) In view of Travis's history of substance abuse, his lack of credibility, and his placement of Hailey in a household in which he knew or should have known that methamphetamine was being used, we conclude that there is substantial evidence to support the finding that placement with Travis would be detrimental to Hailey's safety, protection or physical or emotional well-being. (§ 361.2, subd. (a).)
DISPOSITION
The findings and orders are affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.