San Diego Cnty. Health & Human Servs. Agency v. H.S. (In re Collin E.)

• Decision Date: 02 July 2018
• Docket Number: D072988
• Citation: 25 Cal.App.5th 647,236 Cal.Rptr.3d 220
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE COLLIN E., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. H.S. et al., Defendants and Appellants.

25 Cal.App.5th 647

236 Cal.Rptr.3d 220

IN RE COLLIN E., a Person Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.H.S. et al., Defendants and Appellants.

D072988

Court of Appeal, Fourth District, Division 1, California.

Filed July 2, 2018

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant H.S.

Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant James E.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.

O'ROURKE, J.

H.S. and James E. appeal an order terminating parental rights to their son, Collin E., under Welfare and Institutions Code section 366.26.¹ James and H.S. argue there is no substantial evidence to support the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq. ) finding that continued custody of the child by the parents was likely to result in serious emotional or physical damage to the child. ( 25 U.S.C. § 1912(f), Welf. & Inst. Code § 224.6, subd. (b)(1).) They also assert the juvenile court erred when it determined the beneficial parent-child relationship exception did not apply and terminated parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2015, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b) on behalf of 13-month-old Collin E. The petition alleged Collin's mother, H.S., had left him unattended in her car while she was under the influence of a prescription narcotic medication. Police officers arrested H.S. for willful cruelty to a child and being under the influence. H.S. told officers she had taken 50 mg of morphine prescribed for pain caused by a brain tumor.

The Agency alleged Collin had suffered, or was at substantial risk of suffering, serious physical harm or illness due to his parents' inability to provide adequate care. (§ 300, subd. (b).) In reports prepared for the dependency proceedings, the Agency described James's and H.S.'s extensive histories of substance abuse, drug-related criminal histories, and lack of effective treatment.

H.S. completed detox in 2003, 2009, February and July 2010, and 2011. In 2011, H.S. lost custody of her three-month-old daughter to the child's father after she was arrested for trying to buy Xanax with a fake prescription. At that time, the Agency opened a voluntary services case but H.S. minimized her substance abuse and refused treatment. H.S. was involuntarily committed in January 2013. She went through another detox program in April 2013, and accidentally overdosed in May 2013. H.S. claimed she needed pain medication for a brain tumor. A neurological examination in December 2013 revealed she did not have a brain tumor.

James's family reported he started using crystal methamphetamine as a teenager in approximately 1993 and had been in and out of jail for many years. James had lost custody of a son, now an adult, when he was incarcerated. James overdosed in jail and went through intensive therapy. He completed a substance abuse treatment program in November 2014.

When Collin was born, because of H.S.'s history of opiate abuse, the Agency investigated a referral for general neglect. Collin did not exhibit any withdrawal symptoms and the parents' families were very supportive. The Agency made a referral to a home health nurse but did not initiate dependency proceedings. When Collin was eight weeks old, the parents took him to the emergency room for treatment of a traumatic head injury related to a fall. James said he did not know what had happened. In August, the Agency received another report of general neglect when Collin underwent corrective foot surgery. He was dirty and appeared neglected. The parents could not be reached for an hour and a half after the surgery. When H.S. arrived, she appeared to be intoxicated and was unable to hold Collin. James said H.S. was just tired.

The paternal grandfather (Grandfather) and his fiancé (together, Caregivers) purchased supplies for Collin and cared for him three to four times a week, including weekends. They took him to baseball games, the beach, the park, the zoo, Disneyland, and swimming. Grandfather supplied several thousand dollars of baby supplies for Collin, helped H.S. and James financially, and cosigned a lease after the parents were evicted when Collin was six months old. Grandfather held a one-year birthday party for Collin. James was two hours late to the party. H.S. was five hours late to the party and fell asleep.

Collin missed several pediatric appointments while in the parents' care. A neighbor told the social worker she overheard the parents arguing for an hour about who would feed Collin, who cried throughout their argument. Another neighbor said the parents were constantly screaming and fighting, and Collin cried "all the time." H.S. asked Grandfather's fiancé for money to buy pain medication for her brain tumor, and offered to let Collin stay with them for five days in exchange for money. H.S. said Collin had only had mashed potatoes and milk to eat that day because she had to use all her money for the doctor.

In May 2015, the Agency received a referral alleging H.S. was frequently going to the local convenience store and inhaling gas from whipped cream cans while holding Collin. Surveillance video confirmed the allegation. A confidential reporter said the parents left Collin in his swing for extended periods and were doing drugs. James and H.S. denied any substance abuse and refused to drug test. The Agency provided service referrals to the parents. On July 21, when H.S. was arrested, the Agency detained Collin in protective custody.

The Agency placed Collin with Caregivers on July 23, 2015. At almost 14 months old, Collin was not yet walking or using any words. He wore braces on his legs at night. Collin displayed difficult behaviors, including biting, scratching, and having tantrums.

H.S. denied any substance abuse. She denied having been arrested and said she had been suffering from low blood pressure when she left Collin in the car by himself. Family members said James had lost 30 pounds in two months. They believed he was using drugs again. James said he only took medication prescribed for back pain and anxiety, including clonazepam, morphine sulfate, and hydromorphone. James advised the social worker H.S. took morphine during her pregnancy for a brain tumor. He used morphine to alleviate the pain from past methamphetamine addiction, which had caused his body to break down. According to the social worker, H.S. and James continued to provide inaccurate and conflicting statements about their use of prescription medication. They did not follow through with referrals for substance abuse treatment and appeared unwilling to discontinue using narcotics or obtain alternative methods for pain relief.

In October 2015, Collin was diagnosed with moderate receptive and severe expressive language delays and was referred to San Diego Regional Center for early intervention services. Collin had multiple appointments each week for services. Issues being addressed included foot deformities, anemia, respiratory issues, eczema and allergies, hearing and speech deficiencies, hyperactivity, sensory processing disorder, and surgery for hearing loss. Because of his behaviors, Collin was removed from several daycare facilities. He had speech therapy twice a week, occupational therapy once a week, physical therapy twice a week, and was taking soccer and swim lessons, with minimal participation by his parents. Caregivers gave the dates of all upcoming appointments to the parents.

In reports prepared for the six-month review hearing, the social worker stated Collin was happy with Caregivers. He called their house "home." H.S. and James lacked motivation to resolve their substance abuse problems. Visitation had not been expanded because of the parents' noncompliance with services. As of May 20, H.S. had been clean for 175 days. She was pregnant and due in late August. H.S. continued to take methadone on the advice of her doctor and was decreasing the dose slightly each week. James was taking hydromorphone, the muscle relaxant cyclobenzaprine, morphine, and diazepam.

H.S. had a C-section a month before her due date. The baby had some withdrawal symptoms and was briefly subject to a hospital hold. H.S. was discharged from the hospital at the end of July with 45 Percocet pills. On August 8, she went to the emergency room seeking pain medication for migraines. Medical staff believed this was drug seeking behavior because H.S. did not have any history of migraines. They nevertheless refilled the prescription for Percocet.

In September 2016, the social worker reported that James missed four drug tests, which had to be rescheduled, and tested positive for hydromorphine, morphine, and oxazepam. James paid for, and attended, Collin's swimming lessons. During visits with his parents, Collin asked Grandfather to stay. Grandfather said Collin treated James like an uncle and was happy to return to Caregivers' home. The parents did not attend any of Collin's therapy or doctor appointments during the second six-month review period.

On September 13, H.S. obtained a new prescription for morphine sulfate for fibroid pain. The parents' levels of morphine indicated substance abuse. The social worker said a prescription of morphine for fibroid pain was unusual, especially because H.S.'s medical chart was flagged for narcotic drug abuse. The social worker reported if a patient was taking hydrocodin, hydromorphone, or Tylenol, any level greater than 12,000 to 15,000 ng/gl was considered substance abuse. On October 17, H.S.'s morphine levels were greater than 100,000 ng/gl. When H.S. tested at the end of October, her morphine levels were 6,226 ng/ml. On October 28, James tested positive for morphine at a level greater than...