Opinion
H045230
07-26-2018
In re E.P., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 17JU00267)
S.P. (mother) is the mother of two-year-old E.P. (child). Child was placed in protective custody when her parents were arrested for drug related charges. At the contested jurisdiction and disposition hearing, the juvenile court found that mother, a recovering methamphetamine user who denied any current substance abuse, was not credible and not a safe parent due to her abuse of controlled substances. The court declared child a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b)(l) and removed her from mother's custody.
Unspecified statutory references are to the Welfare and Institutions Code.
On appeal, mother contends the evidence was insufficient to support the court's jurisdictional findings and dispositional order for child's out-of-home placement. The Santa Cruz County Human Services Department (Department) disputes mother's sufficiency of the evidence claims and argues that any challenge to the dispositional order is moot because child was restored to mother's home a few months after removal.
For the reasons discussed herein, we address mother's contentions on the merits and conclude that substantial evidence supports the court's jurisdictional findings and dispositional order. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of September 7, 2017, Santa Cruz County sheriff's deputies approached a car parked alongside Scott Park. A deputy observed a man in the driver's seat holding an uncapped syringe and preparing to inject himself. Another deputy encountered mother a few yards away, walking toward the car. She told the deputy that her two-year-old daughter was inside the car with child's father (father).
Child was asleep in a car seat. A capped syringe lay on the floorboard beneath child's car seat, and a large fixed blade combat style knife was plunged into the right side of the driver's seat. Both items were within three feet of child's reach. Deputies found "multiple additional needles" in the car, as well as marijuana and paraphernalia on the front passenger floorboard, an inoperable taser on the driver door panel, and a baggie containing a crystal-like substance consistent with crystal methamphetamine that father had concealed in his left hand.
Mother appeared to be under the influence of a stimulant. She "talked slightly fast," was "continuously moving and fidgeting her hands," "her eyelids were fluttering," her pupils were constricted, and she had "a hard time following basic instructions and being still." The deputy could not get an accurate heart rate because she "was moving so much" and "continued to flex and move her hands even after [he] repeatedly told her to stop moving." She had "a group of red marks" on her left arm that "appeared raised and was a possible injection site." The deputy conducted a "Rhomberg [sic] test," asking mother to estimate 30 seconds in her head and let him know when she was done by opening her eyes and saying "done." Mother "completed the test in approximately 1 to 2 seconds during three separate tests."
Mother denied using drugs. She told the deputy that she was on Wellbutrin medication and that if she took a urine test it would be negative for everything but marijuana. The deputy asked her when she had last used and she responded that it had been two years. Mother said that she had gotten out of the car to get water and did not know what was going on in the car or about the contraband inside.
Father initially told the deputy that he was cleaning the car and not getting ready to use drugs. He later admitted the needles were his and the syringe in his hand was filled with methamphetamine and energy drink, though he denied that he was about to use it. He had last used 24 to 30 hours ago. He agreed when the deputy suggested that child protective services take protective custody of child.
Father and mother were transported to the jail. Mother repeated that she did not know father was using drugs and would not have put child in the car if she had known about the syringes. She wanted to press charges against father for not caring for child. She previously had not seen father for three months.
A nurse at the jail took mother's pulse two times with a finger pulse device. It was 115 beats per minute the first time and 119 beats per minute the second time. Mother explained that she was normally high-strung and would take a urine test but needed water. After multiple cups of water, she was "unwilling or unable" to provide a urine sample. The deputy admonished that her refusal could be used against her in court because he believed she was under the influence. Mother insisted that she was not refusing but simply did not have to go. The next day, mother filled out a health referral slip at the jail requesting "to receive drug test result" because she was "[w]rongfully arrested."
The liquid inside the syringe found on father tested presumptive positive for methamphetamine. Father also provided a urine sample that day in jail.
I. Dependency Petition and Initial Hearing Report
The Department filed a petition on September 11, 2017, alleging that child, born 2015, came within the dependency jurisdiction of the juvenile court under section 300, subdivision(b)(l) for failure to protect. The petition alleged that mother abuses controlled substances, including methamphetamine, which negatively impacts her ability to provide safe and appropriate care for child. It referred to the incident on September 7 when father held a syringe loaded with methamphetamine while child was in the backseat and mother was walking nearby and was under the influence of a controlled substance. The petition made the same allegations regarding father's inability to provide safe and appropriate care for child due to his abuse of controlled substances, including methamphetamine.
There had been four prior referrals to child protective services concerning mother since 2009. One referral in 2015 was substantiated for general neglect based on mother's use of methamphetamine during her pregnancy with child. Mother was "late to prenatal care" but entered and completed Janus 28-day substance abuse treatment program followed by the perinatal program. Both mother and child had negative drug screens at child's delivery at 33 weeks. Mother indicated at that time that she was committed to her recovery. The other three referrals were evaluated out.
Mother told the Department social worker that she began using methamphetamine at the age of 14 but had been clean and sober since June 2015. She graduated from the Janus perinatal program nine months before her arrest and moved into the family home with her mother (maternal grandmother). She also completed substance abuse treatment at Sienna House and Pueblo Del Mar. She said that she regularly attends support group meetings and had completed a "Triple P" parenting class and two other parenting programs. She adamantly denied being under the influence of any controlled substance when she was arrested. She believed that she had passed the field sobriety test and said that she was not tested when she arrived at the jail.
Mother explained that she had not seen father in over a month and they were no longer a couple. He had asked to see child that day to give her a birthday present. He picked them up at maternal grandmother's house and drove to Scott Park. Mother had taken her medication before leaving the house. She felt nauseous and got out of the car to vomit, then walked to a water fountain. She was returning to the car when the sheriff's deputy approached her. Mother learned that father had a syringe as she arrived back at the car with the deputy. Though she knew father used drugs, she had no idea he would use with her and the baby there. She did not see any syringes when she put child into the car seat, possibly because she had not opened the back-passenger door but had leaned between the front-passenger and driver seats to secure child.
According to the Department's report, mother told the social worker that she had taken Wellbutrin and Diazepam. Mother later testified that she does not take Diazepam and does not know what it is, though she recalled the social worker saying something about it and assumed it had to do with the Wellbutrin.
Father told the social worker that he and mother were together for four years and used methamphetamine throughout their relationship, though mother stopped using when she became pregnant. Father admitted that he injects methamphetamine once daily around midday and then smokes marijuana the rest of the day. He had not used and was not high when he picked mother and child up. Mother was not feeling well and went for water while he stayed with child who was asleep. Father claimed that the drugs and syringes were in a backpack that did not belong to him; he had found the syringe loaded with methamphetamine and was about to shoot up when law enforcement arrived. He denied there were syringes scattered in the car or on the floorboard near child and explained that the combat blade was in a sheath by the center counsel, not near child's reach. Father acknowledged that he made a bad decision that placed his child at risk and that he needed substance abuse treatment. He indicated that he and mother were still a couple and were trying to work things out.
The parties stipulated at the September 12, 2017 detention hearing to a prima facie showing under section 300 for detention based on the petition and initial hearing report. The juvenile court found father to be a presumed parent. It detained child and ordered supervised visitation to occur at least three times a week between mother and child, as well as supervised visitation with father upon his release from custody.
II. Jurisdiction and Disposition Report
The Department filed a jurisdiction/disposition report on October 6, 2017, recommending the court sustain the petition and order family reunification services for mother and father.
Since father is not a party to this appeal, we focus our discussion on the evidence pertinent to the jurisdictional and dispositional findings against mother.
Mother believed that her demeanor at the time of her arrest was the result of a bad reaction to the Wellbutrin, her just having learned that father was using drugs with child in the car, and her realization that the deputies did not believe her and had called child protective services. Mother said she was unable to provide a urine sample because she was dehydrated from throwing up at the park. But she provided a urine sample the next day, on September 8, 2017, which came back negative. According to mother, that test would have detected if she had been under the influence on September 7 because methamphetamine stays in a person's system for at least 72 hours.
Mother reiterated that she would not have exposed child to drugs, saying " 'I did not know there were hypodermic needles in the car. . . . When I put [child] in her car seat I did not see any stuff. . . . I don't care what anybody says; I tested clean, I am clean and I [am] going to stay clean. . . . If l had never been sick I would not have left [child] in the car with her dad. I would have taken her with me. If she had been awake I would have taken her with me. I did not know [father] had a syringe or drugs. I would have never thought he would have used in [child]'s presence or mine.' " She explained that she is not in a relationship with father, so he does not see child regularly and she does not know what he does. She only agreed to meet him because he had birthday gifts for child.
Father similarly told the social worker that mother did not know there were drugs " 'let alone' " syringes in the car, and he had not seen her " 'use anything' " since she started the Janus program. He said that he and mother were a couple and working on finding a home together.
Since the detention hearing on September 12, 2017, mother took six drug tests and missed one test. The results were positive only for marijuana. She obtained a medical marijuana card (issued on September 12, 2017) to address anxiety and depression. Mother expressed that she is a good mother and is committed to getting child back. She indicated that she could benefit from individual counseling, would attend any program to gain better insight, and would accept the recommendations of the Department.
The Department tried unsuccessfully to obtain medical record information for mother's Wellbutrin prescription. According to the Department, the clinics that mother thought had prescribed the medication had no record of a prescription. Mother explained that she had jumped around so much she could not remember everywhere she had been seen. She referenced a psychological evaluation that showed she had trouble with recall and suffered memory impairment. She declined to share her copy of the psychological evaluation, which was from an application for Supplemental Security Income (SSI), because she did not feel it was pertinent to the child protective services investigation.
When asked if she had a Wellbutrin prescription bottle, she said she had thrown the bottles away after she was told not to take it anymore. She indicated that Planned Parenthood was conducting a medication review to determine why she had an adverse reaction to the Wellbutrin. The Planned Parenthood clinic records showed that mother was seen for depression on September 14, 2017, after child's removal. The notes indicate that mother reported being prescribed Wellbutrin at Doctors on Duty about two months ago, but discontinued use because she was told not to take it if she had a mood disorder. Planned Parenthood referred mother to counseling and initiated a psychiatric referral to obtain definitive diagnosis and treatment.
Mother also completed a drug and alcohol assessment with the county health services agency. Mother told the coordinator that she has been sober for over a year and was prescribed Wellbutrin "on and off for the past two years," but was advised to stop taking her prescriptions due to a possible allergic reaction. The assessment recommended that mother continue to attend her support group meetings and work closely with her sponsor, and referred her to outpatient services to reinforce relapse prevention skills and strengthen coping skills.
Child's foster parent reported that child was adjusting to foster placement and enjoyed talking to mother on the phone. The visitation supervisor reported no concerns about mother's behavior during visits. She was " 'pretty impressed' " with mother's demeanor and interactions with child, stating that mother " 'is very appropriate' " and " 'successful in redirecting unwanted behavior.' " She noted that mother has " 'a very calm demeanor,' " does reflective listening, is present in play with child, and mother and child respond well to each other.
The Department recommended that child be declared a dependent with out-of-home placement, and that both parents receive reunification services. The Department noted that while mother was testing negative for methamphetamine, there was reason to believe that she was under the influence of a stimulant at the time of her arrest on September 7. Among other things, she failed three field sobriety tests and had been unable to confirm a prescription to Wellbutrin, which she claimed caused an adverse physical reaction that contributed to her condition that day.
III. Update Report
An update report filed on October 31, 2017, informed the court that mother took eight more drug tests in October which were positive for marijuana only. She began counseling through Planned Parenthood and attended a substance abuse counseling assessment on October 12, 2017, followed by weekly group sessions. She attended two out of three available sessions and missed one due to a conflicting medical appointment.
IV. Jurisdiction and Disposition Hearing
A contested hearing on jurisdiction and disposition took place on November 8, 2017. The Department filed a memo requesting a neuropsychological evaluation for mother to determine what services would facilitate reunification. The court admitted into evidence the Department's jurisdiction/disposition report filed on October 6, 2017, the update filed on October 31, 2017 and memo filed on November 8, 2017, and the attachments to each. The Department submitted its case-in-chief based on this evidence.
The court also admitted exhibits submitted by mother. Among these were: certificates of completion from Janus Treatment Program, Janus Perinatal Residential, and other residential and educational programs; a letter to the court from mother regarding the events of September 7, 2017 and child's removal; letters from mother's current medical providers at Planned Parenthood noting their referrals to neurology and psychiatry and advice for mother to stop taking Wellbutrin; a letter from the County of Santa Cruz Health Services Agency from October 2017 finding mother ineligible for specialty mental health services based on the "mild to moderate severity" of her condition; medical records from health clinic visits in March 2017 and December 2016 which had notations for Wellbutrin under mother's medication and recorded mother's pulse at those visits as 75 beats per minute and 64 beats per minute; mother's typed response to the petition allegations; a partial copy of a letter from August 2016 from the Social Security Administration denying mother's SSI request and referencing a neuropsychological evaluation; and several letters of support from family and friends, including from maternal grandmother. These letters expressed confidence in mother's continuing sobriety and praised her parenting ability and devotion to child.
The court set evidentiary limits on mother's exhibits, including her response to the petition allegations (to be considered only subject to cross-examination), health records (to be considered not for their truth but to demonstrate that mother sought medical care and shared that information with the social worker), the letter denying mother's SSI claim (to be considered for the limited purpose of showing that mother applied for SSI), and the letters of support (to be considered for disposition if the court finds it has jurisdiction).
Mother testified that she was not under the influence on the day that child was taken into protective custody. Though she was arrested and was given a drug test in jail, she was not charged with any crime. She had a history of substance abuse and had completed the Janus main and Janus perinatal treatment programs. To stay sober she surrounded herself with a strong support network, attended two or more support meetings a week and group counseling through the Alto outpatient program, took drug tests, and had a sponsor. For her mental health, she had started weekly therapy through Planned Parenthood and had completed three sessions. Through these activities, she already was engaged in the Department's case plan recommendations for substance abuse services and counseling. She testified that she understood she had a neurological condition called Gerstmann's Syndrome. Mother wanted child returned to her custody. She would comply with family maintenance and a case plan if offered. She intended to keep living at maternal grandmother's house with child.
On cross-examination, mother testified that father drove them to Scott Park. Child was in the back seat. Mother did not open the passenger side door but "just put [child] over the chair and buckled her in." Mother "was aware" of father's history of substance abuse but did not know that he was still using or used intravenously. She had not seen him in about two weeks. She did not see syringes on the floorboard but saw the large combat blade on the side of the driver's seat. She left child with father for about 10 minutes so she could get water because she had thrown up. She could see the car the entire time.
Mother further testified that she had told the deputies that she had been nauseous and was taking Wellbutrin. She thought the Wellbutrin prescription was in the documents she had given to the Department. She acknowledged upon further cross-examination that she did not know the doctor or clinic where it was prescribed since she had jumped from place to place. She did not know which pharmacies would have a copy of the prescription if she signed a release for the social worker. Though the Wellbutrin prescription was for twice-a-day use, she did not take it as prescribed. On the day that child was taken into protective custody, mother took the Wellbutrin in the morning around 11:00 a.m. and got sick in the afternoon around 4:00 p.m. She believed that she had approximated 30 seconds accurately for the first of the three Romberg tests but has difficulty telling time due to her Gerstmann's Syndrome.
Mother confirmed that her SSI application in 2016 included a neuropsychological evaluation by Dr. Gerald Chambers. She was not willing to release it to the Department. But she had an upcoming neurology appointment scheduled by Planned Parenthood, which would evaluate appropriate medication for her, if any. She agreed to sign a release for the Department to speak with the doctor following that examination.
The court did not find mother's testimony credible. It found significant mother's apparent inability to provide a urine sample to law enforcement on the day she was arrested and her incongruous statements about father. It noted as one example that although mother testified she was "not aware that [father] was active in his addiction," she told the social worker that she was aware of father's drug use but had no idea that he would use while she and the baby were present. Also, mother indicated that she would not have left child with father if she had not been sick, which the court observed would "only . . . be an issue is if he were somehow going to actively use methamphetamine if she were to leave him alone for that little bit of time." And while mother told the social worker that she had "no idea" what father does because they were not in a relationship, father admitted to daily methamphetamine use and indicated that he and mother were working on finding a home together. The court found that mother's statements showed "a complete lack of consistency with the fact that she says I didn't think he would use in my presence or [child]'s presence; yet, she wouldn't leave him alone with her."
The court identified these contradictions as the basis for its findings: "[N]ot only do we have the police report . . . noting a group of red marks inside her arm and noting her other symptoms that she showed that are set forth in the report, when you combine it with her history of substance abuse, her denial and inconsistent statements concerning [father]'s continued use, the fact that this was, in fact, [father]'s car that had syringes on the floorboard, it's just not credible that she didn't know that [father] was actively using, and I don't believe . . . that her statements denying she was under the influence of methamphetamine on that day are credible."
After closing arguments, the court found the allegations of the petition to be true and sustained the petition. It advised mother and father that it was "really impressed" that they had "gotten into" their treatment but that "honesty is a huge part of making it through this process." The court specified that it was not finding removal proper based on mother's mental health but on its finding that "she abuses controlled substances, including, but not limited, to methamphetamine. And it's that abuse of controlled substances that negatively impacts her ability to be a safe parent, as you can see by the fact that she would get into a car that I find that she knew was [father]'s. And I believe that the syringes were visible to her when she put [child] in the car."
Having found child to be a person described by section 300, subdivision (b), the court determined "by clear and convincing evidence" that "continuance in the home of the parent or guardian [would be] contrary to the child's welfare, and an award of custody to a parent would be detrimental to the child." The court explained that there were no reasonable means to protect child's physical health without removing her because "despite all of those services that have been provided to [mother], this incident occurred on September 7," and based on the court's credibility findings mother "has yet to understand the danger and risk that that situation posed to her daughter."
The court found the Department had made reasonable efforts to enable child to return home safely. It ordered child removed from mother's custody, appointed Dr. Richard Alloy to conduct a neuropsychological evaluation of mother, and ordered reunification services and supervised visitation for both parents a minimum of three times a week. The court set an interim hearing for February 6, 2018 and six-month review hearing for May 1, 2018.
Mother filed a timely notice of appeal on November 8, 2017.
V. Child Placed with Mother Following Section 388 Petition
The filings and orders referenced in this section were submitted with a motion in this court for judicial notice and to augment the appellate record. We granted the motion to augment the record on April 4, 2018. Judicial notice of the juvenile court records is proper pursuant to Evidence Code sections 451, subdivision (a) and 452, subdivision (d).
On March 12, 2018, after the filing of mother's opening brief in this appeal, the Department filed a petition for a change of order in the juvenile court, seeking child's placement with mother under family maintenance services. The petition indicated that mother and father were both "fully engaged" in their case plan services, with mother regularly drug testing and participating in counseling and outpatient services; both parents had "regularly and consistently visited" with child and the visits had "gone well"; and the Department had authorized overnight visits in February 2018 for mother and had begun an "extended visit" between mother and child.
The court set the Department's request for a hearing and issued a written order on March 27, 2018. It granted the petition, finding by a preponderance of the evidence that a change of circumstance warranted the change of order: that returning child to mother "would not create a substantial risk of detriment" to child's safety or well-being, that foster care was "no longer the most appropriate permanent plan" for child, that mother's and father's progress toward alleviating the causes necessitating placement had been "good," and that the "permanent plan of return to the home of the mother" was "appropriate." The court accordingly ordered child's placement with mother but found it was in child's best interests to continue the dependency jurisdiction. The court ordered family maintenance services for mother and father, vacated the six-month review hearing, and continued the matter to September 2018 for a family maintenance review hearing.
DISCUSSION
Mother challenges the juvenile court's jurisdictional findings involving her conduct as unsupported by substantial evidence. She also argues that even accepting the jurisdictional findings, the court erred in ordering child's removal from her custody. The Department responds that any challenge to the dispositional order removing child from mother's home is moot because the court ordered child returned to permanent placement with mother, and that mother does not have standing to challenge jurisdictional findings related to father's conduct. The Department further argues that substantial evidence supported the court's jurisdictional and dispositional findings and removal order.
The Department appears to misapprehend mother's jurisdictional argument as an attempt to seek review of the juvenile court's findings related to father's conduct. However, mother's briefing makes clear that her appellate claims do not extend to the jurisdictional findings based on father's conduct.
I. Justiciability
Before addressing mother's contentions on the merits, we must decide whether this court can provide " 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (In re I.A. (2011) 201 Cal.App.4th 1484, 1490 (I.A.).) The question of effective relief is known as justiciability. It arises in this case in two ways. First, we consider whether mother has presented a justiciable issue regarding jurisdiction, since she does not challenge findings based on father's conduct, and the court only needs "to find that one parent's conduct has created circumstances triggering section 300 for [it] to assert jurisdiction over the child." (Id. at p. 1491.) Second, we consider whether mother's challenge to the dispositional order for removal could have any practical effect on appeal, since child was later placed with mother, and an issue that " 'originally was based upon a justiciable controversy cannot be maintained on appeal if . . . subsequent acts or events' " have rendered it moot. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.)
A. Review of the Jurisdictional Finding Based on Mother's Conduct Is Proper Due to its Continuing Consequences for the Case
Mother challenges the jurisdictional findings involving her conduct but not father's conduct. She acknowledges that because "jurisdiction may exist based on the conduct of one parent only" (In re J.C. (2014) 233 Cal.App.4th 1, 3 (J.C.)), the appellate court need not consider jurisdictional findings based on the other parent's conduct. (Ibid.) However, she asks this court to exercise its discretion and consider her claims regarding jurisdiction for two of three reasons discussed in In re Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.). Specifically, she argues that the jurisdictional finding served as the basis for the dispositional order that is challenged on appeal and could prejudicially impact her in this or a future dependency proceeding. (Ibid.)
We find that mother is correct in both respects. The purpose of a dependency is to protect the child (§ 300.2), not to punish the parent. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202 (Joshua G.).) Consistent with this purpose, the juvenile court assumes jurisdiction over a minor "if the actions of either parent bring the child within one of the statutory definitions in section 300." (Ibid.) Since a finding "that one parent's conduct has created circumstances triggering section 300" is sufficient for the juvenile court to assert jurisdiction over the child (I.A., supra, 201 Cal.App.4th at p. 1491), an appellate court may decline to review jurisdictional findings based on the other parent's conduct. (Id. at p. 1492; Joshua G., supra, at p. 202.)
I.A. illustrates how these principles can render a parent's jurisdictional challenge non-justiciable. In I.A., the father of a child who was detained at birth sought review of the jurisdictional finding involving his conduct; he did not challenge jurisdiction based on the mother's drug use while pregnant. (I.A., supra, 201 Cal.App.4th at p. 1487.) The court reasoned that "any decision" on the allegations involving the father would not alter the juvenile court's entitlement "to assert jurisdiction over the minor on the basis of the unchallenged allegations." (Id. at p. 1492.) Even finding that he was a "nonoffending parent" would not impact placement or reunification orders, in part because the child never resided with him. (Id. at p. 1494.) The court found it could provide no effective relief for father and deemed the appeal non-justiciable. (Id. at pp. 1492, 1495.)
Similarly in J.C., the court declined to consider a father's jurisdictional challenge as to his infant son, where the jurisdictional finding based on the mother's conduct was not contested and the father had not identified "legal or practical consequences" flowing from that finding to the dispositional order or to other aspects of the proceedings. (J.C., supra, 233 Cal.App.4th at p. 4.) The court noted that even "eras[ing]" the jurisdictional finding based on the father would not affect the dispositional order due to the father's "established history" of sustained allegations involving previous children and his "failure to adequately address" mental health issues. (Ibid.)
This case resembles I.A. and J.C. in that the juvenile court assumed jurisdiction over child based on true findings on the petition allegations against both mother and father. An appellate determination of error in the jurisdictional finding related to mother's conduct would not affect the juvenile court's dependency jurisdiction. (I.A., supra, 201 Cal.App.4th at p. 1492; Joshua G., supra, 129 Cal.App.4th at p. 202.) But whereas the appellants in I.A. and J.C. were both non-custodial parents whose jurisdictional arguments—even if found to be accurate—would not have had a practical effect on disposition or other aspects of the proceedings, in this case mother contends that the jurisdictional finding correlated to the dispositional order and could prejudice her in this or other dependency proceedings in the future.
We agree with mother's characterization. She not only had custody of child at the time of child's detention and removal, but the dispositional order placing child outside of mother's home was a direct consequence of the finding that mother's substance abuse prevented her from being a safe parent. In Drake M., the court recognized that when a challenged jurisdictional finding "serves as the basis for dispositional orders that are also challenged on appeal" or "could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings . . . ," an appellate court may properly exercise its discretion to address the merits of a parent's jurisdictional challenge. (Drake M., supra, 211 Cal.App.4th at p. 762.) At issue in that case was whether the father's use of legal marijuana for medical purposes made him an " 'offending' parent versus a 'non-offending' parent" for jurisdictional purposes. (Id. at p. 763.) The court determined that while its decision would not alter the juvenile court's dependency jurisdiction due to other findings based on the mother's conduct, reaching the merits would have "far-reaching implications" for future proceedings in the dependency case and for the father's parental rights. (Ibid.; see also In re J.K. (2009) 174 Cal.App.4th 1426, 1432 (J.K.) [finding sustained jurisdictional findings could affect the parent's custody rights and any future dependency proceedings].)
The same is true here. Like in Drake M., the challenged jurisdictional finding has identifiable consequences beyond the juvenile court's assumption of jurisdiction, beginning with its impact on the dispositional order to remove child from the home. (Drake M., supra, 211 Cal.App.4th at p. 762.) We do not view the subsequent change to the dispositional order—returning child's placement with mother—as a basis to decline review of the predicate jurisdictional finding, because the impact of that finding is not limited to the dispositional order regarding removal. Rather, the juvenile court's continuing jurisdiction over child and orders for permanent placement and family maintenance directly affect mother's parental rights and arise—as to her—directly from the adverse jurisdictional finding. We therefore exercise our discretion to review the merits of the jurisdictional findings pertaining to mother's conduct.
B. Review of the Dispositional Order is Proper Due to its Potential to Prejudice Mother in This or Future Proceedings
We also must address the argument that mother's challenge to the removal order is moot. The Department correctly points out that the order on the section 388 petition for a permanent plan returning child to mother's home already afforded mother the relief she seeks by arguing for reversal of the dispositional order placing child in foster care.
"When no effective relief can be granted, an appeal is moot and will be dismissed." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.) But "[a]n issue is not moot if the purported error infects the outcome of subsequent proceedings." (In re Dylan T. (1998) 65 Cal.App.4th 765, 769 (Dylan T.).) Thus in Dylan T., the appellate court declined to dismiss as moot a parent's appeal concerning the denial of visitation with her son while she was incarcerated, finding that although the parent was no longer incarcerated, the erroneous ruling had continuing consequences for reunification and risked being repeated if the parent were to be reincarcerated. (Id. at pp. 769-770.)
Mother urges our review of the dispositional order, given the juvenile court's continuing jurisdiction over child and possibility that the Department will again seek a more restrictive placement if mother "appear[s] to falter" in her care of child. She argues that to declare the issue moot will insulate an erroneous ruling from appellate review, particularly because dismissal of the appeal operates as an affirmance of the underlying judgment or order (In re Jasmon O. (1994) 8 Cal.4th 398,413 (Jasmon O.)).
The court in In re C.C. (2009) 172 Cal.App.4th 1481 (C.C.) addressed similar arguments involving a mootness issue. In that case, the mother appealed from a dispositional order denying visitation with her son, though the juvenile court later restored visitation through a family law proceeding and terminated the dependency jurisdiction. (Id. at p. 1483.) The appellate court observed that the orders terminating jurisdiction and restoring visitation appeared "to doubly moot" the mother's appeal. (Id. at p. 1489.) It deemed the mother's concern about prejudice in subsequent proceedings (stemming from the detriment finding that formed the basis for the order denying visitation) to be "highly speculative." (Ibid.) It nonetheless considered the merits of the challenged order, citing "an abundance of caution" (ibid.) and the fact that dismissal of the appeal would function as an affirmance (Jasmon O., supra, 8 Cal.4th at p. 413) of what the court ultimately concluded was an erroneous application of the detriment standard by the juvenile court. (C.C., supra, at p. 1492.)
In our case, child continues under the jurisdiction of the juvenile court. Like in C.C., insofar as the detriment finding underlying the challenged dispositional order could be invoked in ongoing proceedings or alleged in a subsequent petition, there remains a risk that the purported error will perpetuate. (C.C., supra, 172 Cal.App.4th at p. 1489; Dylan T., supra, 65 Cal.App.4th 765.) We conclude that appellate review of the dispositional order removing child from mother's home is proper. Accordingly, we turn to consider the merits of mother's appeal.
II. Mother's Challenge to the Jurisdictional and Dispositional Findings
The juvenile court may take dependency jurisdiction over a child only if it finds the child is a person described by one or more of the section 300 subdivisions. (In re D.C. (2011) 195 Cal.App.4th 1010, 1014.) The court determines whether circumstances at the time of the jurisdiction hearing subject the child to the defined risk of harm under section 300. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) It is the Department's burden to establish the jurisdictional facts by a preponderance of the evidence. (§ 355; In re I.J (2013) 56 Cal.4th 766, 773 (I.J.).) If the court finds jurisdiction under section 300, it declares the child a dependent of the juvenile court and proceeds to disposition, where the court considers whether the child should be removed from the parents under section 361. (J.K., supra, 174 Cal.App.4th at p. 1432.) Removal at the dispositional phase requires clear and convincing evidence that there are no reasonable means other than removal to protect the child from the enumerated harm. (§ 361; J.K., supra, at p. 1433.)
Mother challenges both the jurisdictional finding that child was at risk of suffering serious physical harm due to her alleged substance abuse and the dispositional finding that removal from mother's home was necessary to protect child from the risk of harm.
A. Standard of Review
"When an appellate court reviews the jurisdictional or dispositional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings." (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446 (Alexzander C.).) "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." (J.K., supra, 174 Cal.App.4th at p. 1433.)
In making the substantial evidence determination, " ' "we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." ' " (I.J., supra, 56 Cal.4th at p. 773.) We do not "reweigh the evidence or express an independent judgment" but rather we "determine whether 'a reasonable trier of fact could have found for the respondent based on the whole record.' " (Alexzander C., supra, 18 Cal.App.5th at p. 446.)
B. Substantial Evidence in the Record Supports the Juvenile Court's Jurisdictional Finding
The Department's petition alleged that child came within section 300, subdivision (b)(1), due to "the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." The juvenile court under section 300 "is not required to 'wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.' " (Alexzander C., supra, 18 Cal.App.5th at p. 448.) Rather, the court assesses "whether the child is at 'substantial risk' of 'serious physical harm or illness.' " (In re R.T. (2017) 3 Cal.5th 622, 634.)
Section 300, subdivision (b)(l) provides that a child may be declared a dependent of the juvenile court because "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, [1] as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or [2] the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or [3] by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or [4] by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." The dependency in this case is based solely on clause [4] of subdivision (b)(1).
In this case, the Department identified substance abuse as the basis for mother's alleged inability to provide safe and appropriate care for child. It cited mother's conduct being "in a park . . . under the influence of a controlled substance" while child was in the car with father who was about to inject methamphetamine and had other drugs and dangerous items near child. The juvenile court found the allegations true based upon facts such as the sheriff's deputy's observations of mother's behavior and her failure to provide a urine sample that day. The court noted that mother's subsequent drug tests were positive only for marijuana but found that she was not honest about her drug use or about her awareness of father's continued use.
The statute does not define substance abuse for purposes of section 300, subdivision (b), and courts have varied widely in determining what conduct qualifies as substance abuse. (See Alexzander C., supra, 18 Cal.App.5th at p. 447 [citing case law defining substance abuse as "shown by a diagnosis from a medical professional or by evidence of criteria recognized by the medical profession as indicative of a substance abuse disorder"]; cf. In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.) It is not clear in this case what criteria the juvenile court applied to determine mother's current substance abuse, but since she has not challenged that aspect of the court's findings, we do not address the issue.
Mother acknowledges that a finding of substance abuse in cases involving children of tender years is prima facie evidence of a substantial risk of physical harm to the child under section 300, subdivision (b). (Drake M., supra, 211 Cal.App.4th at p. 767.) But she argues that in this case there was no substantiated evidence of substance abuse because the drug test that she requested in jail the day after her arrest showed "all negative" for controlled substances. This matters because, as she told the social worker, "methamphetamine stays in your system for a period of [at] least 72 hours." She suggests the negative test result is why the prosecutor did not charge her with being under the influence of a controlled substance.
Mother cites a medical study entitled "Methamphetamine Disposition in Oral Fluid, Plasma, and Urine" (Ann. NY Acad. Sci. (Mar. 2007) 1098:104-21, p. 22) as support for her statement to the social worker about the three-day detection rate for methamphetamine in urine. We have found no reference to this study in the record before the juvenile court. Since "[t]here is no blanket exception" for juvenile dependency appeals to the "general rule" that appellate review proceeds " 'upon a record of matters which were before the trial court for its consideration' " (In re Zeth S. (2003) 31 Cal.4th 396, 405), we do not consider it in our analysis here.
Mother also argues that the court relied on speculation about her substance abuse, since the only evidence presented to the court to show she was under the influence was the unsworn incident report of the sheriff's deputy. She contends the court disregarded the evidence linking her behavior that day to a medication reaction and to her fear and upset that child would be taken away, and also disregarded evidence indicating she was not abusing drugs—namely her negative drug test results (excluding marijuana) since the detention hearing and her compliance with counseling and drug testing referrals.
Mother's desired interpretation of the evidence cannot be squared with the standard of review on appeal. It is the trial court's province to decide issues of credibility. (I.J., supra, 56 Cal.4th at p. 773.) Significant to the court's conclusion that mother lacked credibility were the inconsistencies in her testimony and the reasonable inferences drawn from the statements and evidence she provided to the social worker. For example, after several cups of water she was unable to give a urine sample the first day at the jail; she wavered in her proclaimed lack of awareness of father's continuing drug use and claimed she did not see a hypodermic needle lay on the floorboard beneath child's car seat; she could not verify the timing or origin of her Wellbutrin prescription despite several efforts by the social worker to track the prescription; and she attributed her difficulty remembering details in part to a neurological condition but would not provide a copy of the neurological evaluation that she referenced in support of that fact.
Mother asserts in her reply brief that one of the Doctors on Duty medical records submitted at the contested hearing (exhibit C-6, dated March 3, 2017) established that she was prescribed Wellbutrin on that date. This ignores that the juvenile court admitted the hearsay evidence not "for the truth of whether . . . you had an adverse reaction to Wellbutrin, but the fact that you did, in fact, seek medical care . . . [on] the dates set in here." What is more, to consider the record proof of the Wellbutrin prescription would highlight a stark inconsistency between the date of the record and mother's statement to the county health services agency that she had been prescribed Wellbutrin "on and off for the past two years."
This record supports the inference drawn by the juvenile court that mother was not credible in denying her own use and her awareness of father's ongoing use. Whether other evidence in the record can support the opposite inference does not change our analysis, as the reviewing court determines only if there is " 'substantial evidence, contradicted or uncontradicted' " to support the trial court's findings. (I.J., supra, 56 Cal.4th at p. 773.) Thus, while mother is correct that the methamphetamine-free drug tests and her follow through with the Department's recommendations could support an inference that she had remained sober and her symptoms were not caused by a controlled substance stimulant, we may not substitute that inference for the reasonable inference drawn by the trial court from the evidence in the record. (In re M.R. (2017) 8 Cal.App.5th 101, 108 (M.R.) ["we do not consider whether . . . the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw"].)
In addition, the observations made by the deputy sheriff of mother's physical symptoms—including fluttering eyelids, constricted pupils, flexing and fidgeting her hands despite the instruction to hold still, and three times estimating the passage of 30 seconds after only one to two seconds—provide credible evidence, of solid value that mother was under the influence of a stimulant. (See J.K., supra, 174 Cal.App.4th at p. 1433.) Mother's elevated pulse, taken at the jail after her arrest, also supports the juvenile court's conclusion.
The sheriff's report indicated that mother's finger pulse taken by a nurse at the jail on September 7, 2017, registered 115 and 119 beats per minute.
Mother distinguishes her level of engagement in treatment and services from cases in which the parent had failed to engage by the time of the jurisdiction hearing. (See, e.g., M.R., supra, 8 Cal.App.5th at p. 107 [minors' parents as of the jurisdiction hearing had not begun any programs concerning problematic use of alcohol that gave rise to substantial risk finding]; In re Natalie A. (2015) 243 Cal.App.4th 178, 186 [father only completed one, inconclusive drug test by the time of jurisdiction hearing]; In re Christopher R., supra, 225 Cal.App.4th at p. 1217 [mother missed one drug test and failed to enroll in substance abuse or other recommended programs].) In contrast, the juvenile court here acknowledged mother's proactive steps, stating it was "really impressed" that mother and father had "gotten into [their] treatment." But this does not eliminate the considerable evidence behind the court's findings that mother had not been honest in her denial of the behaviors that placed child at risk of harm. We conclude that substantial evidence in the record fully supports the jurisdictional finding that mother's substance abuse created a substantial risk of harm to child's physical safety and health. (§ 300, subd. (b)(l).)
C. Substantial Evidence Supported the Dispositional Finding and Order Removing Child from Mother's Custody
Whether substantial evidence supports the dispositional order that removed child from mother's custody presents a closer question. Mother points to the statutory directive that limitations imposed on parental rights in dependency proceedings "may not exceed those necessary to protect the child." (§ 361, subd. (a)(l).) As the California Supreme Court explained in In re Ethan C. (2012) 54 Cal.4th 610 (Ethan C.), the focus of the dependency scheme is " 'on the preservation of the family as well as the safety, protection, and physical and emotional well-being of the child.' " (Id. at p. 624, quoting § 300.2.) Even after exercising dependency jurisdiction, the juvenile court cannot remove the child from the physical custody of the parents under section 361, subdivision (c)(l) except upon finding by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being" of the child if she were returned home, and "there are no reasonable means by which" the child can be protected without removing her. (§ 361, subd. (c)(l); Ethan C., supra, at p. 625; accord In re Hailey T. (2012) 212 Cal.App.4th 139, 145-146 (Hailey T.).)
The standard for removal "is a heightened standard of proof from the required preponderance of evidence standard for taking jurisdiction over a child." (Hailey T., supra, 212 Cal.App.4th at p. 146, citing §§ 300, 355, subd. (a).) It "demonstrates the 'bias of the controlling statute is on family preservation, not removal.' [Citation.] Removal 'is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.' (In re Henry V. [(2004) 119 Cal.App.4th 522,] 525.)" (Hailey T., supra, at p. 146.) At the same time, "[t]he jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(l).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (In re Cole C. (2009) 174 Cal.App.4th 900, 917; accord Hailey T., supra, at pp. 146-147.)
Mother questions how the juvenile court's stated reasons for removal amounted to clear and convincing evidence that child was at risk of harm, arguing that the points cited by the court were not proven and relied on speculation, such as that mother knew the car belonged to father, that the syringes were visible when mother put child in the car, or that a urine sample provided on the day of her arrest "may have reflected a positive test for methamphetamine." She also contends that the change in order only four months after disposition was based on the same level of engagement with services that existed at the disposition hearing, demonstrating that child could have safely returned home at that time under a family maintenance plan.
We note there is some inconsistency in how reviewing courts have applied the substantial evidence standard in dependency cases when the clear and convincing standard of proof was required at trial. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238 (T.J.) [comparing cases that maintain "the clear and convincing standard ' " 'disappears' " ' on appellate review" from those that proceed by " ' "bearing in mind" ' the heightened standard of proof"].) We agree with the court's reasoning in T.J. that because the clear and convincing evidence standard is incorporated into the substantial evidence standard of review (In re Angelia P. (1981) 28 Cal.3d 908, 924) we remain cognizant of the heightened standard of proof when reviewing the record on appeal for substantial evidence. (T.J., supra, at p. 1239.)
Even considering that heightened standard, we are not persuaded that the juvenile court improperly premised its removal decision on speculation, nor that the change in order four months later demonstrates the removal order lacked sufficient evidence.
The jurisdictional findings in this case involved a lengthy history of drug abuse by both parents. Father indicated that he and mother "used a lot of methamphetamine" during their four-year relationship, and she began using at the age of 14. He continued using daily though mother entered treatment during her pregnancy with child. Mother was clean for child's birth and presumably in subsequent months while living in a sober living environment. Though mother denied being under the influence on the day child was taken into protective custody, substantial evidence in the record supported the juvenile court's finding that mother's denial was not credible. We accept the juvenile court's factual findings and the reasonable inferences supporting them. (In re Henry V., supra, 119 Cal.App.4th at p. 530 (Henry V.).)
As noted in our discussion of the jurisdictional findings, the court drew reasonable inferences from the evidence regarding mother's reticence to provide a urine sample though she insisted she was not under the influence, her awareness of father's drug abuse, the dangers to child that were visible in the car, and the observations of the sheriff's deputy. (See ante, section II.B.) Also relevant is the child welfare referral that was "evaluated out" about seven months before the September 7, 2017 incident, in which the reporting party had second-hand information that mother was "using methamphetamine off and on."
The juvenile court in effect referenced this extensive history of drug abuse in finding that removal from mother's home was the only available means to protect child's welfare. The court explained that mother's substantial, prior engagement with services had not prevented the incident that led to child being taken into protective custody. It reiterated that "based on [mother's] testimony on the stand and my finding that it lacked credibility—[mother] has yet to understand the danger and risk that situation posed to her daughter." (Italics added.) It was the demonstrated lack of understanding of the risk of harm to child that led the court to conclude that mother "has made minimal progress towards alleviating or mitigating the causes necessitating the initial placement of the child in out-of-home placement."
This finding supported removal, because a blind spot in the parent's ability to evaluate risk for a young toddler exposed to drug use qualifies as proof of parental inability to safely care for the child. (See Drake M., supra, 211 Cal.App.4th at p. 767 [substance abuse is prima facie evidence that parent cannot provide adequate supervision for child of tender years, resulting in substantial risk of physical harm]; Alexzander C., supra, 18 Cal.App.5th at p. 451 [removal is proper if based on proof of parental inability to provide proper care for and potential detriment to the child if she remains with the parent].) This comports with the statutory focus on averting harm to the child. (Alexzander C., supra, at p. 451.) To this end, " '[t]he court may consider a parent's past conduct as well as present circumstances.' " (Ibid.)
Mother also had some difficulty accepting the recommended services even while she complied in most respects. She refused the Department's counseling referral to the Parents Center, stating she did not need it, though she later pursued counseling independently and agreed to allow the Department access to her therapist. As of the November 8, 2017 disposition hearing, she had completed 14 drug tests, participated in a substance abuse assessment, and began attending group outpatient sessions. Her engagement in these services was still preliminary as compared to four months later in March 2018, when the court granted the Department's petition under section 388 and ordered child's permanent placement with mother. She also consistently tested positive for marijuana, which was not legalized for adult use and for which she did not have a medical prescription prior to initiation of this dependency.
We do not view the subsequent petition and order on child's permanent placement as any indication of the sufficiency of the evidence on the record before the court at the disposition hearing.
It is concerning to this court that the record contains no discussion either of the provisions for child's care during those times when mother has used marijuana or the potential risk of harm to child from mother's and father's apparently regular marijuana use (father admitted daily use, and all of mother's drug test results as of the disposition hearing were positive for marijuana). (Cf. Drake M., supra, 211 Cal.App.4th at pp. 767, 770 [finding that the father's use of medical marijuana, which did not overlap in time or place with his responsibilities for his young son, did not constitute substance abuse or interfere with his ability to provide appropriate care for the child].)
It is also significant that the Department had assessed maternal grandmother, with whom mother resided, for a possible placement for child but found that maternal grandmother had a significant child welfare history with the Department, including numerous referrals of suspected child abuse, four dependencies, and a referral as recent as November 2016 for domestic violence in the home. This evidence supported the court's conclusion that there were no suitable relative placements and out-of-home placement was necessary.
Father was in a residential drug treatment program at the time of the disposition hearing.
The circumstances detailed in the preceding paragraphs distinguish the risk factors that placed child at substantial risk of physical harm if she remained in mother's custody from cases in which the reviewing court reversed the dispositional order because removal was not necessary to protect the child from harm.
For example, in In re Paul E. (1995) 39 Cal.App.4th 996, the court found that certain identified "hazards" at the home of the four-year-old, possibly autistic child (including a shorted lamp socket, a propeller protruding from a boat in the yard, and a child's wading pool filled with dirty water) were "trivial to the point of being pretextual" and did not present clear and convincing evidence of danger, especially since the mother would follow the child around all day to keep him from hurting himself. (Id. at p. 1005.) Here, however, child was precariously close to dangers synonymous with substance abuse, including needles, and the court did not credit mother's insistence that substance abuse would not continue to interfere with child's safety.
In Hailey T., supra, 212 Cal.App.4th 139, the court concluded that despite a serious injury to the younger infant sibling, the older sibling was not herself at substantial risk of harm if returned to the parents' custody, since there was no evidence of any harm to the child, no evidence of domestic violence, substance abuse, or other challenges that might create a continuing risk in the home, and the court had failed to consider less drastic alternatives to removal. (Id. at pp. 147-148.) And in Henry V., supra, 119 Cal.App.4th 522, the court determined the juvenile court erred in ordering the child's removal because there was "ample evidence that appropriate services could have been provided" (id. at p. 529) in the family home where the mother was "fully cooperative in taking advantage of the services that had been offered" (ibid.) and it was unclear if the court understood the heightened "clear and convincing evidence" standard that should have applied to its removal finding. (Id. at p. 530.) In contrast with both cases, there was no evidence put forth here that specialized services could have been offered in mother's home to assure child's safety. And unlike in Henry V., the juvenile court here indicated on the record that it was applying the clear and convincing evidence standard to the removal determination.
We recognize that when the risks involved in returning a child to parental custody at the dispositional phase are not clearly established, the juvenile court must abide by "the legal restraints against separating parent and child." (Henry V., supra, 119 Cal.App.4th at p. 531.) At the same time, "a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2, italics added.)
Viewing the record, as we must, in the light most favorable to the juvenile court's determinations (I.J., supra, 56 Cal.4th at p. 773), we conclude that in addition to the evidence supporting the jurisdictional finding of risk of harm, mother's lengthy history of methamphetamine use, her difficulty acknowledging the circumstances that led to child's detention, and her incomplete participation in recommended services at the time of the disposition hearing, together constitute substantial evidence supporting the juvenile court's finding that it was necessary to remove child from mother's custody at that time pursuant to section 361, subdivision (c)(l).
DISPOSITION
The dispositional order is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.