Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. Crystal R. (In re Christopher R.)

• Decision Date: 21 May 2014
• Docket Number: B250806
• Citation: 225 Cal.App.4th 1210,171 Cal.Rptr.3d 14
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE CHRISTOPHER R. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Crystal R. et al., Defendants and Appellants.

225 Cal.App.4th 1210

171 Cal.Rptr.3d 14

IN RE CHRISTOPHER R. et al., Persons Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Crystal R. et al., Defendants and Appellants.

B250806

Court of Appeal, Second District, Division 7, California.

Filed April 14, 2014

As Modified May 21, 2014

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 538 et seq.

APPEAL from orders of the Superior Court of Los Angeles County, Marilyn Kading Martinez, Juvenile Court Referee. Affirmed. (Los Angeles County Super. Ct. No. CK99150)

Cristina Gabrielidis, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Crystal R.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant, Frank G.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P.J.

Crystal R., the mother of seven-year-old Christopher R., six-year-old Natalie M., three-year-old Francisco M., and infant Brianna G., and Frank G., the presumed father of Brianna, appeal from the jurisdiction findings and disposition orders declaring the children dependents of the juvenile court after the court sustained a petition pursuant to Welfare and Institutions Code section 300, subdivision (b),¹ alleging that Crystal had a seven-year history of substance abuse and was a current abuser of cocaine rendering her unable to provide regular care and supervision of her four children and that Frank had a history of illicit drug abuse and was a current abuser of marijuana rendering him unable to provide regular care and supervision of Brianna. Crystal does not seriously challenge the findings and order as to Brianna, who tested positive for cocaine, amphetamine and methamphetamine at birth, but argues the evidence was insufficient to establish jurisdiction over her other children or to remove them from her custody. Frank, who is the father only of Brianna,² likewise does not challenge the court's findings with respect to Crystal and Brianna, but contends the evidence of his past marijuana use and criminal history is insufficient to show he is unable to provide regular care for his child. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Los Angeles County Department of Children and Family Services (Department) received a child abuse referral after both Crystal and Brianna tested positive for cocaine at Brianna's birth. Brianna also tested positive for amphetamine and methamphetamine. Crystal admitted she had started using cocaine when she was 16 years old (seven years before the filing of the dependency petition in this case) but insisted she had stopped when she was 17 and had not used the drug since that time. She denied using cocaine during her pregnancy and could not explain how she and Brianna had tested positive. Subsequently Crystal claimed she had picked up a small container of cocaine for someone else during her eighth month of pregnancy and had tasted it to be sure it was cocaine. Brianna was born three days later, approximately one month before Crystal's due date.

Brianna weighed five pounds one ounce when born and, because of respiratory issues, had to be fed intravenously and was on oxygen. She remained in the hospital for 25 days but did not have any withdrawal symptoms and no ongoing health issues.

At the time of the child abuse report Crystal, Christopher (then six years old) and Francisco (then two years old) were living with a cousin, Estella, and Estella's family in Bellflower. Crystal, however, did not know Estella's address or telephone number. Natalie (then five years old) was living with a maternal great aunt in Las Vegas. All three children appeared healthy and had no marks, bruises or other visible signs of abuse.

Estella watched the two boys when Crystal went out—sometimes returning the same day; sometimes not until the following day. Crystal did not let Estella know where she was going when she left the children in her care. Estella told the Department's social worker she had no knowledge whether Crystal had a drug problem but confirmed that Frank, also a relative of hers, smoked marijuana.

Crystal and Frank had had an “off and on” relationship for 18 months to two years. Frank said he and Crystal had been separated for approximately six months; he was not with her when she was pregnant and did not know what she was doing. Apparently when not with Crystal, Frank lived with his father (Brianna's paternal grandfather).

Frank said he was unaware that Crystal used drugs and denied that they had used cocaine or smoked marijuana together. However, Frank acknowledged he had smoked marijuana since he was 14 or 15 years old and his use had increased over time to once or twice each day. He explained he had been shot in the back and smoking marijuana relaxed him. (Frank had unsuccessfully attempted to obtain a medical marijuana card.) However, Frank said he had completely stopped two weeks prior to Brianna's birth because he was going to have a baby soon. Notwithstanding that explanation, Frank was unsure if he was Brianna's father and asked for a paternity test. Frank also told the social worker he was a former gang member and was on probation for vandalism (actually, post-release community supervision, a form of parole supervised by the probation department). According to his probation officer, Frank was not in full compliance with the terms of his release: He had enrolled in a substance abuse program, but not completed it, and had tested positive for marijuana but no other drugs.

While Brianna remained in the hospital and Natalie was in Las Vegas, the Department detained the other two children and filed a dependency petition on behalf of all four of them on April 24, 2013. The juvenile court found a prima facie case had been established the children were described by section 300, subdivision (b) (inability of parent to provide regular care for the child due to substance abuse), and ordered them detained.

At the July 17, 2013 jurisdiction and disposition hearing the court sustained the petition, amended slightly by interlineation, and found the children were described by section 300, subdivision (b). As sustained, count b–1 provides, “[Crystal] has a seven year history of substance abuse, and is a current abuser of cocaine, which renders the mother unable to provide regular care and supervision of the child. The mother used illicit drugs, during the mother's pregnancy with [Brianna], and had a positive toxicology screen for cocaine ... at the child's birth. The mother's substance abuse endangers the [children's] physical health and safety, creates a detrimental home environment, and places the children at risk of physical harm and danger.” As sustained, count b–2 provides, “[Frank] has a history of illicit drug abuse, and is a current abuser of marijuana, which renders the father unable to provide regular care and supervision of the child. The father's abuse of illicit drugs endangers the child's physical health and safety, and places the child at risk of physical harm and danger.”

Proceeding to disposition, the court found by clear and convincing evidence that a substantial danger existed to the children and there were no reasonable means to protect them without removing them from their parents' custody. The court ordered the children committed to the care, custody and control of the Department for suitable placement and directed the Department to provide reunification services to all four children and Crystal and to Brianna and Frank. Services for the parents were to include substance abuse treatment and drug testing, parenting classes, individual counseling and monitored visitation.

Both Crystal and Frank filed timely notices of appeal from the jurisdiction findings and disposition orders.

CONTENTIONS

Essentially conceding dependency jurisdiction was proper as to Brianna, who was born with a positive toxicology screen for cocaine and other illicit drugs, ³ Crystal contends the evidence of her sporadic drug use was insufficient to support the findings she was a current substance abuser and Christopher, Natalie and Francisco were at substantial risk of serious physical harm justifying the exercise of the juvenile court's jurisdiction. In addition, even if jurisdiction was appropriately extended over all four children, Crystal argues in-home support services could have been provided and there was insufficient evidence that removal of the three older children was necessary for their protection. Frank contends the evidence of his past marijuana use and criminal history was insufficient to support the finding he could not care for Brianna or to justify removing her from his custody. Frank also contends the court lacked an adequate basis for ordering him to participate in a full substance abuse program or individual counseling or to restrict him to monitored visits.

DISCUSSION

1. The Governing Statute and Standard of Review

The purpose of section 300 “is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2; see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599, 108 Cal.Rptr.3d 885.) Section 300, subdivision (b), allows a child to be adjudged a dependent of the juvenile court when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child ... or 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...