Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. K.L. (In re E.E.)

• Decision Date: 21 May 2020
• Docket Number: E073284
• Citation: 49 Cal.App.5th 195,262 Cal.Rptr.3d 722
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE E.E. et al., Persons Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. K.L., Defendant and Appellant.

49 Cal.App.5th 195

262 Cal.Rptr.3d 722

IN RE E.E. et al., Persons Coming Under the Juvenile Court Law.San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.K.L., Defendant and Appellant.

E073284

Court of Appeal, Fourth District, Division 2, California.

Filed May 21, 2020

Dennis Temko, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

SLOUGH, Acting P. J. K.L. (mother) and J.P. (father) have three young children together as well as an infant son named E. Mother tested positive for amphetamine at a prenatal visit for E., and when the child was born a few months later, he tested positive for amphetamine and marijuana. At the jurisdiction and disposition hearing, the juvenile court declared all four children dependents ( Welf. & Inst. Code, § 300, subd. (b) ) and removed them from the parents' care (§ 361, subd. (b)(1); unlabeled statutory citations refer to the Welfare and Institutions Code).

In this appeal, mother challenges the sufficiency of the evidence supporting all of the court's findings and orders, except the jurisdictional finding for E. She argues there was insufficient evidence E.'s siblings were at risk of harm, as well as insufficient evidence all of the children could not live safely with father, with her out of the home. We conclude substantial evidence supports the challenged findings and orders, and therefore affirm.

I

FACTS

A. Detention

In December 2018, respondent San Bernardino County Children and Family Services (CFS) received a referral alleging that mother's newborn, E., had tested positive for amphetamine

and marijuana at birth and that mother had tested positive for amphetamine during a prenatal visit a few months earlier. Mother and father have three other children, J.J. (who was two years old at the time), V. (six), and J. (ten).

CFS made several unsuccessful attempts to contact the family in person, by phone, and by mail. Because the family had a prior history with CFS, the social worker was able to determine the elementary school J. and V. attended and made an unannounced visit to interview them.¹ J. and V. said they felt safe in the home and their basic needs were being met. They said they slept on an inflatable mattress in the living room or in their relative's room when he was traveling. They said E. didn't have a crib and slept on blankets on the floor, next to their parents. They were able to give an age-appropriate definition of drugs and alcohol and denied their parents used either.

On February 5, 2019, the social worker interviewed the parents at the apartment in Rialto where they then lived. In his separate interview, father said his family had moved into the apartment a few months earlier. He said mother hadn't told him why CFS was investigating his family, and he denied she used any drugs. He said she used to smoke marijuana but had stopped and had never used the drug while pregnant. He said he had also quit smoking marijuana before his oldest child, J., was born. He said he had been arrested for DUI in 2013 and had not completed his alcohol abuse classes. The social worker searched his criminal history and confirmed the DUI (he had been convicted of the charge in 2015), and also found weapons-related charges from 2006 and 2007 (specifically, carrying a dagger and manufacture or import of an undetectable firearm).

In her separate interview, mother said father did know E. had tested positive for drugs at birth. She said she uses marijuana for pain management because she injured her legs in a car accident. She said she had only used marijuana once while she was pregnant with E. because the pain had become unbearable. She denied using amphetamines

. She claimed she had gone to a party a few days before E. was born and accidentally drank from a cup that wasn't hers. The liquid had made her feel "very weird," but she didn't go to the hospital because she was scared. She became upset when the social worker asked her about the other positive amphetamine test from the prenatal visit. She said she had been "going through a rough time" back then, and nobody had told her they would be drug testing during the visit. She denied having a substance abuse problem. She also denied co-sleeping with E., explaining he slept on a mattress on the floor and she slept on the floor next to him.

Both parents agreed to drug test, and the social worker informed them that missed tests would be considered positive. Later that day (February 5), mother called the social worker "audibly hysterical" and said she hadn't known it was going to be an observed drug test. She said she "could not pee in front of somebody" and complained that the testing staff had made her "feel like a bad mother." The test results reflected she had attempted to urinate twice but had a "shy bladder" and refused to try to urinate a third time. Father's February 5 drug test was positive for amphetamine

. He told the social worker he had taken Sudafed for allergies that day and requested another test. The lab ran a confirmation test on the same urine sample and it came back negative. On February 6 and 7, mother said she could not test because she wasn't in the facility's system, but the social worker checked and confirmed she was in the system and was able to test.

In late February, the social worker contacted mother to arrange another drug test. Mother said she felt harassed by CFS and said her children were fine and "not being abused." The social worker promised mother she was not trying to open a case against her but in fact was hoping to do the opposite, resolve the case without court intervention. She explained she couldn't close the family's referral, however, without a negative test from mother and a formal "Children and Family Team Meeting" (team meeting). She explained that, given the positive toxicology results for E., it was crucial and necessary to create a safety plan. Mother said she did not want her family to find out about her drug use or CFS's involvement.

The social worker followed up with mother on this issue, and this time her supervisor also participated in the phone call. The supervisor reiterated the social worker's assurances that CFS was not trying to harass mother's family. The supervisor explained that CFS management had decided a team meeting and clean drug test were needed before they could close the investigation. Ultimately, mother agreed to drug test and attend a team meeting.

But mother's decision to cooperate changed over the ensuing weeks. She did not respond to the social worker's attempts to schedule another drug test, and then, on March 4, father sent the social worker the following text: "There is no reason for a meeting. You tried and tried to find something and there wasn't anything. We've complied [with] everything that you have asked us to do. At this point I'm feeling like this is personal. I feel like my family and my inalienable right to pursuit of happiness is being denied to us. You will have to speak to our lawyer from this point on." Father did not provide the lawyer's name or contact information. Mother then called the social worker to follow up on father's text. She said she would not agree to a team meeting or any more drug tests. She also said to contact their lawyer going forward but hung up when the social worker asked for the lawyer's contact information.

On March 6, CFS decided to file section 300 petitions on behalf of the children, due to its unresolved concerns about mother's drug use and father's refusal to acknowledge that issue or cooperate with CFS. The social worker called the parents and informed them of the upcoming detention hearing. They responded that a dependency case wasn't necessary because the children were no longer in their custody. Father said they had recently "signed their rights over" and the children had not been in their care for a week.

On March 7, CFS filed petitions alleging the children were dependents under section 300, subdivision (b) (failure to protect). The operative allegations against the parents were that: mother has a "substance use" problem that impairs her ability to provide appropriate care for her children; father reasonably should have known of mother's problem; and father has a "marijuana abuse

problem," placing the children at risk.

The juvenile court held the detention hearing the following day. The parents were not present, and both CFS and counsel for the children recommended detention. The court found prima facie evidence of a substantial risk to the children's physical health and safety, ordered them detained out of the home, and set the jurisdiction and disposition hearing for April 2. On March 25, with the assistance of Rialto police, CFS detained the children in foster care.

B. Jurisdiction and Disposition

The social worker interviewed the parents when CFS took the children into custody. Mother said it was difficult for her to drug test because of her job. She said they had refused a team meeting back in February because they had been misadvised by a friend that such a step was not necessary if jurisdiction had not been established. Father added that by the time the social worker tried to schedule the meeting, they had already given "temporary guardianship" of the children to a family friend, a woman named Carla. The parents said they did not attend the detention hearing because, during a free consultation, an attorney had told them they didn't have to go if CFS had not given them notice of the hearing by mail. Father told the social worker that his family had gone through a rough period when mother was pregnant with E., just before they moved into the Rialto apartment. He said they had "lost their home, stayed with friends, been kicked out, and moved from motel to motel and were around people who were using substances."

Mother said she was currently using marijuana...