In re J.H. CA4/2

Filed 8/1/14 In re J.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.H., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E060277

Plaintiff and Respondent, (Super.Ct.No. INJ1300350)

v. OPINION

B.M.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Lawrence P. Best,

Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

Jacob Ivan Olson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Pamela J. Walls, County Counsel, and Leslie E. Murad II, Deputy County

Counsel, for Plaintiff and Respondent.

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 Defendant and appellant B.M. (Mother) appeals from the juvenile court’s

dispositional orders as to her two-year-old son J.H (the child). Mother’s sole contention

on appeal is that the evidence was insufficient to support the removal of the child from

Mother’s care. We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Mother became pregnant with the child at the age of 15. The child was born in

September 2011. His father is R.H. (Father).1 In July 2013, Mother separated from

Father, because according to Mother, Father “smoke[d] too much marijuana.” Mother

then began living with the maternal grandfather.

On September 28, 2013, the Riverside County Department of Public Social

Services (DPSS) received an immediate response referral alleging severe neglect of the

child. It was reported that Mother brought the child into the hospital for possible

ingestion of a Dilaudid pill. Mother was visiting her sister’s home, and she and the child

were napping. When Mother woke up, the child was holding an open bottle of Dilaudid

pills. Mother called poison control and rushed the child to the emergency room. Urine

tests were run on the child at the hospital. The tests came back positive for

methamphetamine. A physician’s assistant reported that the child appeared to be

asymptomatic and that the methamphetamine would stay in his system for 50 hours at

1 Father is not a party to this appeal.

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97 percent detectable. Based on further testing, it was believed that the child had

ingested the methamphetamine sometime on September 26, 2013.

The social worker interviewed Mother. Mother did not know how the incident

could have happened. Mother explained that she was taking a nap when the incident

occurred. Mother had been staying with her older sister P.M. for the past week, and there

was a girl living there named Angelic2 who consumed drugs. Mother repeatedly stated

that she had no idea why the tests came back positive for methamphetamine and that her

son was with her at all times. Mother also noted that she was still breastfeeding her son.

Mother’s 22-year-old sister P.M.3 and J.J., whose home Mother was staying at, stated that

Mother was a good mother; that Mother did not use drugs; and that they did not know

how the incident could have happened. J.J. also stated that there was no

methamphetamine in the home. They stated that the methamphetamine had to be

Angelic’s because she is a prostitute. Father also stated that Mother did not use drugs.

Mother was given a field saliva drug test on September 28. The test came back

negative. Mother had no prior criminal history or a history with child protective services.

An officer from the Cathedral City Police Department also interviewed Mother.

Mother told the officer that she had been staying with her sister for the past week; that

Angelic had not been at the home for the past three days; and that Mother and her son

slept on the same couch as Angelic and that must be why the child tested positive for

2 Angelic H. was originally misidentified as “Pricilla,” and again as “Angelique.”

3 P.M. was originally misidentified as “Denise.”

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methamphetamine. The officer informed DPSS that “it is definitely a case of neglect and

child endangerment.” While the social worker was speaking with the officer, a security

officer from the hospital called and informed the social worker that that she overheard

J.J., Mother’s sister P.M., and Mother’s sister’s girlfriend state that they better go and

clean up the home because someone may search the home.

On October 1, 2013, a petition was filed on behalf of the child pursuant to Welfare

and Institutions Code4 section 300, subdivision (b) (failure to protect). Specifically, the

petition alleged that while in the care and custody of Mother, Mother had failed to

adequately supervise her child, resulting in the child ingesting methamphetamine and

being hospitalized; that Mother was unable or unwilling to explain how her son ingested

the methamphetamine; that Mother had neglected the health and safety of the child by

allowing her son to be around individuals known to abuse controlled substances; and that

Father had abused controlled substances. At the detention hearing, the child was

formally removed from Mother’s custody, and detained with Father on the condition that

Father reside in the paternal grandparents’ home and not allow Mother unauthorized

visits.

In a jurisdictional/dispositional report, the social worker recommended that the

allegations in the petition be found true; that the child be declared a dependent of the

court; that the child be removed from Mother’s custody; and that Mother be offered

4
All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.

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reunification services and Father be offered family maintenance services. Mother

continued to state that she did not know “‘how he got [the methamphetamine] in his

system because [she] was supervising [her] kids.’” Mother explained that on the day of

the incident, while her son was sleeping on a living room couch, she, her sister, her

sister’s girlfriend, and J.J. were in the girlfriend’s bedroom with the door closed talking

about what to do with Angelic.5 While in the bedroom, Mother heard the child

wandering around the house. When he came into the bedroom, he was carrying a metal

box full of white pills. Mother did not know how long the child was unattended and

wandering through the home or if the child had interacted with Angelic. Mother claimed

that Angelic was a “‘whore’” who made bad choices, but in this interview Mother denied

having knowledge of Angelic using drugs.

The social worker concluded that it was unsafe to return the child to Mother’s care

and custody. This was due to Mother’s failure to adequately supervise the child while

she was temporarily residing with her sister whose roommate was involved in

inappropriate activities, thereby placing the child at great risk. The social worker noted

that Mother had admitted leaving the child unattended on a couch while she was behind

closed doors; that it was unclear as to what was occurring in the bedroom and the

activities occurring in the household; that Mother had admitted to residing with an

individual whom she claimed was a prostitute; and that Mother had continued to expose

5 Mother previously stated she had been “napping” and had been woken up by the
child.

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the child to this individual. The social worker opined that it was clear Mother’s poor

judgment and lack of insight had placed the child’s health, well-being, and safety at a

great risk.

On October 25, 2013, DPSS filed a first amended section 300 petition, adding

allegations that Father’s hair follicle test administered on October 18, 2013, tested

positive for marijuana; that Father had admitted to using cocaine about two months ago;

and that Father had changed his residence without authorization or notification to DPSS

thereby violating the October 2, 2013 court order. On October 23, 2013, the paternal

grandparents reported that Father and the child had moved out of their residence on

October 21, and that they were unaware of the child’s or Father’s whereabouts. Father

admitted moving out of his parents’ home and informed the social worker that he had left

the child in the care of Mother’s sister P.M. while he worked his graveyard shift. The

social worker was concerned that Father had left the child with the same maternal aunt

whom Mother and the child were with when the child had ingested methamphetamine.

The child was placed into protective custody. At the detention hearing on the first

amended petition, the child was formally removed from Father’s custody.

In an addendum report, the social worker recommended that the allegations in the

first amended petition be found true and that the child be removed from parental custody.

The social worker also recommended that the parents be offered reunification services.

The social worker noted that there were still questions as to how the child had ingested

methamphetamine. The social worker speculated that the child could have ingested

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methamphetamine from Mother, who had nursed the child until the time he was removed,

or while Mother resided with her older sister P.M. The social worker further noted that

while Mother’s saliva drug test was negative, DPSS had not been able to obtain a hair

follicle test on Mother to determine if Mother had a history of drug use.

The contested jurisdictional/dispositional hearing was held on November 7, 2013.

At that time, the social worker testified in accordance with the submitted DPSS reports.

The social worker reiterated that DPSS was concerned with Mother’s lack of supervision

of the child, poor judgment, negligent behavior in placing the child at risk, failure to

protect, and the fact that no one knew how the child came to ingest methamphetamine.

Following argument from counsel, the juvenile court found allegations b–1, b–3, and b–4

in the amended petition true and allegation b–2 not true. The child was declared a

dependent of the court and removed from parental custody. The parents were provided

with reunification services. This appeal followed.

II

DISCUSSION

Mother contends the juvenile court erred in removing the child from her custody

because there was insufficient evidence to show that the child would be in substantial

danger if returned to her care. We disagree.

In dependency proceedings, if a child is not returned to the original custodial

parent’s home at the dispositional phase, section 361, subdivision (c)(1), as relevant here,

requires the juvenile court to find, by clear and convincing evidence, “[t]here is or would

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be a substantial danger to the physical health, safety, protection, or physical or emotional

well-being of the” child if he or she were returned home, and “there are no reasonable

means by which” to protect the child absent removal from the parent’s physical custody.

(See also In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) Clear and convincing

evidence requires a high probability, such that the evidence is so clear as to leave no

substantial doubt. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.) Clear and

convincing evidence is required in order to protect the parents’ constitutional rights to the

care, custody and management of their children. (In re Henry V. (2004) 119 Cal.App.4th

522, 529.)

“The parent need not be dangerous and the minor need not have been actually

harmed before removal is appropriate. The focus of the statute is on averting harm to the

child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on

other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The court

may consider past events in determining whether there is a danger to the child, and need

not wait until the child is seriously abused or injured to assume jurisdiction and take steps

necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.)

While the juvenile court must find clear and convincing evidence, we determine

whether substantial evidence supports the juvenile court’s conclusion. (In re Javier G.

(2006) 137 Cal.App.4th 453, 462-463; Sheila S. v. Superior Court (2000) 84 Cal.App.4th

872, 880-881; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) “Substantial

evidence” means such relevant evidence as a reasonable mind would accept as adequate

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to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid

value. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) In making our determination, all

conflicts are to be resolved in favor of the prevailing party, and issues of fact and

credibility are questions for the trier of fact. (In re E.B. (2010) 184 Cal.App.4th 568,

575.)

Mother argues that her actions of allowing the child to nap on the maternal aunt’s

couch did not show she lacked judgment, had poor parenting skills, or displayed

negligent behavior. She also asserts that upon discovering the child holding a metal box

with his aunt’s pills in it, she had immediately called poison control and rushed the child

to the hospital. She further maintains that although it was unclear and troubling as to

how the child had ingested methamphetamine, the record is clear that she had no history

with drugs or DPSS and that she had tested negative for methamphetamine.

The juvenile court weighed these facts against the social worker’s report that it

was unsafe to return the child to Mother’s care and custody due to Mother’s failure to

adequately supervise the child while she was temporarily residing with her sister.

Mother’s sister had a roommate who was involved in inappropriate activities, thereby

placing the child at greater risk. The social worker concluded that it was clear Mother’s

poor judgment and lack of insight had placed the child’s health, well-being, and safety at

a great risk. Mother fails to recognize that it was not her actions of merely leaving the

child unattended on the couch to nap that showed her lack of judgment, poor parenting

skills, or negligent behavior, but her failure to properly supervise the child. The evidence

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showed that the problem was much deeper than allowing the child to sleep on a couch;

instead, it stemmed from a lack of concern regarding the dangers inherent in allowing a

two-year-old to be left unattended in a home known to be occupied by an individual

involved in illegal activities. In fact, due to Mother’s negligent actions, the child ingested

methamphetamine, thereby placing him at a serious risk of harm. It was undisputed that

the child had ingested methamphetamine; that the child had been wandering his aunt’s

apartment when he awoke while Mother was in another room with the door closed; and

that Mother was aware of her sister’s roommate who was involved in prostitution and

drugs. Moreover, it is undisputed that Mother could not explain how her child had

ingested methamphetamine. The record clearly shows that Mother lacked supervisory

skills, parenting skills, and good judgment.

Mother argues that the child could have safely been maintained in her care under

family maintenance services in light of the fact that she was found to be credible to

DPSS, displayed no pattern of evasiveness or lack of cooperation, and was ready to

cooperate with DPSS under a family maintenance plan. The juvenile court reasonably

could conclude, however, such a measure would be insufficient to protect the child, who

was at risk of serious harm due to Mother’s lack of or inadequate supervision, insight,

and judgment. Given the evidence of a lack of parenting skills on the part of Mother and

how the child had ingested methamphetamine, it was necessary for the child’s protection

to delay his return until Mother had shown the ability to benefit from intensive services.

In sum, we find substantial evidence supports the juvenile court’s removal order.

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 III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

RICHLI
J.

MILLER
J.

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