In re C.C. CA2/8

Filed 11/12/13 In re C.C. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re C.C., A Person Coming Under the B247060
Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT (Los Angeles County
OF CHILDREN AND FAMILY SERVICES, Super. Ct. No. CK60431)

Plaintiff and Respondent,

v.

SHERRY E.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County.
D. Zeke Zeidler, Judge. Affirmed.

Suzanne Davidson, under appointment by the Court of Appeal, for Appellant.

John F. Krattli, County Counsel, James M. Owen, Assistant County Counsel,
William D. Thetford, Deputy County Counsel, for Respondent.

__________________________
 Appellant Sherry E. (mother) appeals from juvenile court orders removing her
four-month-old daughter, C.C., from her custody and denying mother reunification
services. We conclude substantial evidence supports the removal order, and under both
the substantial evidence and abuse of discretion standards, the trial court did not err in
denying reunification services. Accordingly, we affirm.

FACTS AND PROCEEDINGS

A. Referral and Preliminary Matters

Mother has had a lengthy history of DCFS referrals for her two older daughters.
Her parenting of C.C. came to the department’s attention on September 24, 2012, when a
referral was made to the DCFS that C.C. was exposed to second-hand methamphetamine
smoke. The report to DCFS stated that one of mother’s roommates had tested positive
for amphetamine, other tenants who lived in the residence had been smoking
methamphetamine for several months, and C.C. had been exposed to the smoke.
A social worker accompanied by police officers went to the location. The
manager of the complex said too many people were living in the apartment and there
were lots of comings-and-goings. Tenant Ray said that he did not use illegal drugs and
there was no reason for DCFS’s concern for the baby. But police officers watching the
unit saw a man on a balcony who appeared to be under the influence. Tenant Robert told
police he stayed at the location several nights during the week. Robert was on parole for
weapons charges.
The social worker described the residence as disorganized and smelling of smoke.
Various computers and peripherals were found in the unit and the place appeared
cluttered. A pitbull lay asleep on the floor. C.C., however, appeared healthy. Mother
denied methamphetamine use but she had heard that someone had smoked the drug in the
bathroom. Mother said she would drug test but wanted to wait for three days because she
did not want to take C.C. out in the heat.

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 The police officers then entered the home, found two baggies of
methamphetamine, two marijuana pipes and a scale. Officers reported that the residence
was known to the department as a drug house, and arrests had been made there in the
past. Both male tenants were arrested, one for being a felon in possession of ammunition,
apparently based on a shotgun shell or bullet found in the home.
On September 24, 2012, the court detained C.C., finding sufficient cause to
remove her from parents’ custody. Monitored visits were ordered. Prior to the
adjudication hearing on November 9, 2012, DCFS interviewed both father and mother
and filed its report with the court. DCFS advised that mother and father had agreed to
drug test in the interim. Mother had two negative tests and four missed tests. Father had
two positives, one negative and four missed tests. DCFS recommended that reunification
be denied for mother because mother had failed to reunify with two other children, one of
whom had been adopted. The department recommended reunification services for father
with participation in drug and other programs.

B. Adjudication and Disposition Hearing

Mother testified at the November 9, 2012 adjudication hearing. The
methamphetamine, drug pipes and scale were found in the living room but mother said
she did not usually go into that room. She testified that, in conjunction with 2006
dependency proceedings for her eldest daughter, mother had begun an out-patient drug
program and completed four and one-half months before the court terminated
reunification services. She started another program and then quit after her parental rights
were terminated. She explained the cluttered state of the residence as a product of
remodeling; the several computers were there because her boyfriend repaired computers.
Mother’s landlord, who lived in the same residence, also testified. The landlord
was a recovering methamphetamine addict and had recently tested positively. Mother
told her she had seen methamphetamine crystals in the bathroom, and that mother had
experimented with methamphetamine for 3 months some 10 years ago. The landlord also
said that mother had told her she last used methamphetamines 8 years ago. Mother

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testified she saw little granules in the bathroom. “So I swept them up and I put them on
the side.” Generally, mother denied any drug problem.
The court also reviewed reports that showed that mother had failed to reunify with
daughter S.E. and that on June 28, 2007, the court had terminated mother’s parental rights
to S.E., who had been adopted by her paternal grandmother. Reunification services had
also been terminated for mother’s middle daughter, K.M. who was under legal
guardianship with her paternal grandmother. (S.E. and K.M. have different fathers.)1
The court sustained an amended petition that mother had a history of substance
abuse, had failed to complete a previously ordered drug program as part of S.E.’s
proceedings, allowed methamphetamine and drug paraphernalia to be in plain sight at her
residence, and failed to address the problems that brought half-siblings into the
dependency system, all such that there was a risk to the physical health and safety of C.C.
The petition was sustained on the additional grounds that father was unable to provide
ongoing care and supervision. The court set a disposition hearing for January 23, 2013.
Prior to the disposition hearing, DCFS reported that mother had failed to keep an
appointment with a substance abuse counselor and refused to respond to follow-up
telephone calls. She had missed four drug tests and tested negatively seven times.
Mother did attend a parenting class although it was not on the DCFS list. Mother also
discussed other programs she had attended. Mother explained that the fathers of her two
older children both had drug problems. Dr. Alfred Crespo interviewed mother and
concluded that mother’s drug problem was likely the result of chronic substance abuse as
to which she was in denial. He believed reunification services would not resolve her drug
problem. Amy Castro of Social Model Recovery Systems testified at the disposition
hearing that, based on several assessment tools applied in her interview with mother, she
did not believe that mother had a substance abuse problem at this time. Mother did not
tell Ms. Castro that she had two children removed from her custody because of a drug

1 We upheld termination of parental rights as to S.E. in a 2008 unpublished opinion
(B200290). Mother had failed to appear at the dispositive 366.26 hearing in the juvenile
court.
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problem. Although mother mentioned methamphetamines had been found, she did not
tell Ms. Castro that two baggies of methamphetamine and drug paraphernalia had been
found in plain sight at her residence. Nurse Cheryl Clifford testified that when she
observed C.C., the baby looked healthy.
The court expressed serious concern about mother’s credibility. Reunification
services were provided for father but denied for mother. The court found by clear and
convincing evidence that reunification services had been denied and parental rights had
been terminated, respectively, for two half siblings and that mother had not made a
reasonable effort to treat the problems that led to removal and termination. (Welf. & Inst.
Code, § 361.5, subd. (b)(10), (11).)2 Monitored visits were ordered for mother with
DCFS discretion to liberalize if mother were in therapy.

DISCUSSION

Mother makes two arguments on appeal. She first contends there was insufficient
evidence to remove C.C. from mother’s custody, and second, the trial court erred in
denying mother reunification services. We find no merit in either argument.

1. Substantial Evidence Supported the Trial Court’s Removal Order

Before a child may be removed from a parent’s custody, section 361,
subdivision (c)(1) requires a showing by clear and convincing evidence that there is
substantial danger to the child absent removal and there are no alternative methods of
protecting the child. A juvenile court’s determination of removal is reviewed for
substantial evidence. (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.) Although the

2 The record is unclear whether the court was denying reunification services
because parental rights were terminated as to S.E. alone, or also based on denial of
reunification services as to K.M. as well. DCFS reported both of the prior dispositions.
The parties’ appellate briefs state the trial court’s denial of reunification services was
based on both subdivision (10) [denial of reunification services] and subdivision (11)
[termination of parental rights] of section 361.5 so we accept that services for mother
were denied based on the rulings as to both of mother’s other daughters.
All future undesignated code references are to the Welfare & Institutions Code.
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standard required for the juvenile court is clear and convincing evidence, on appeal that
test disappears and we apply the traditional substantial evidence review. (Sheila S. v.
Superior Court (2000) 84 Cal.App.4th 872, 881.) Mother challenges the court’s findings
based on her evidence that she did not abuse drugs, drugs found at the residence were not
mother’s, she tested clean on several occasions, mother’s visitations were consistent, no
apparent physical injury was noted on C.C., and Ms. Castro testified that her assessment
was that mother was not a drug user. Any problems could have been addressed by less
onerous means than removal; for example, by on-demand drug tests and unannounced
visits.
To accept mother’s argument would require us to reweigh testimony and ignore
respondent’s countervailing evidence, something we may not do. (Sheila S. v. Superior
Court, supra, 84 Cal.App.4th at p. 881.) We start with the trial court’s finding that
mother was not credible. That finding undermines the major part of mother’s case which
was through her own testimony. The court was entitled to discredit mother’s testimony
that methamphetamine had been found on a toothpaste tube based on usage by others,
that she was unaware that others were smoking methamphetamine in the house and that
she did not observe methamphetamine or drug paraphernalia that were found by police in
plain sight. There was evidence that the residence was a known drug location and that an
unusual number of people went in and out of the residence. Two children were removed
from mother’s care due to her substance abuse. By mother’s own testimony, both of the
girls’ fathers were drug users. Although mother tested negatively on several occasions,
she also missed a number of tests which the juvenile court was free to consider as
positive tests. She refused to test on demand. Given this evidence, the trial court was
justified in concluding that C.C. was at risk and that means other than removal would be
insufficient to protect C.C.

2. The Trial Court Reasonably Denied Reunification Services.

Mother contends the trial court prejudicially erred when it denied mother
reunification services.

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 Section 361.5, subdivision (b) (10), (11) provides:
“(b) Reunification services need not be provided to a parent or guardian described
in this subdivision when the court finds, by clear and convincing evidence, any of the
following:
....
“(10) That the court ordered termination of reunification services for any siblings
or half siblings of the child because the parent or guardian failed to reunify with the
sibling or half sibling after the sibling or half sibling had been removed from that parent
or guardian pursuant to Section 361 and that parent or guardian is the same parent or
guardian described in subdivision (a) and that, according to the findings of the court, this
parent or guardian has not subsequently made a reasonable effort to treat the problems
that led to removal of the sibling or half sibling of that child from that parent or guardian.

“(11) That the parental rights of a parent over any sibling or half sibling of the
child had been permanently severed, and this parent is the same parent described in
subdivision (a), and that, according to the findings of the court, this parent has not
subsequently made a reasonable effort to treat the problems that led to removal of the
sibling or half sibling of that child from the parent.”

A parent whose child is subject to juvenile court jurisdiction is presumed to be
entitled to reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th
87, 95.) Section 361.5 lists 16 different grounds, however, for the juvenile court to deny
reunification. The court must find that at least one of the disqualifying circumstances
exists by clear and convincing evidence. (§ 361.5, subd. (b).) Two of those grounds are
that reunification services were previously denied or parental rights terminated for
reasons that have not been subsequently addressed by the parent.
It is undisputed that mother’s parental rights were terminated as to S.E. and
reunification services were denied as to K.M. Mother argues that, notwithstanding the
dispositions in the cases involving C.C.’s older sisters, it was in C.C.’s best interests to
grant mother reunification services under section 361.5, subdivision (c).
Ordinarily an appellate court reviews an order denying reunification services for
substantial evidence. (Cheryl P., supra, 139 Cal.App.4th at p. 96.) When the point on
appeal does not involve the facts underlying the finding of failure to reunify or
termination of parental rights, or failure to make reasonable efforts, but instead that it is
nonetheless in the child’s best interests to offer reunification services, there is authority

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that review is under the abuse of discretion standard. (In re Albert T. (2006)
144 Cal.App.4th 207, 218, fn. 5.)
Under either standard, we find no error. Mother lost custody of two children, she
exposed C.C. to drugs and drug paraphernalia, she has consistently denied any substance
abuse problem notwithstanding strong evidence to the contrary, and at least one expert
doubted reunification services would adequately address the problem. Although mother
had visited C.C. as regularly as permitted and appears to have a bond with her daughter,
and even though father was given reunification services, the trial court reasonably could
have found that reunification would prove unsuccessful and therefore was not in C.C’s
best interests.

DISPOSITION

The juvenile court’s orders are affirmed.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J.

FLIER, J.

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