In re A.S. CA4/1 - Case Law

Filed 1/13/15 In re A.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.S. et al., Persons Coming Under the
Juvenile Court Law.
D066427
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ003097B-C)
Plaintiff and Respondent,

SHAUNA S.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
Shauna S. appeals the judgment entered following the jurisdiction and disposition

hearing in the juvenile dependency case of her minor sons, A.S. and I.A. She contends

the evidence was insufficient to support the court's jurisdictional finding under Welfare

and Institutions Code section 300, subdivision (b),1 and the court's dispositional order

removing A.S. and I.A. from her custody under section 361, subdivision (c)(1). We

disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 2014, the San Diego County Health and Human Services Agency (the

Agency) petitioned the juvenile court under section 300, subdivision (b) on behalf of two-

year-old A.S. and 11-month-old I.A. The Agency alleged that Shauna left the minors

unattended in an unsafe home environment. The Agency noted that Shauna failed to

reunify with an older child, Damian S., based on Shauna's substance abuse issues.2

Shauna also failed to comply with a prior voluntary case plan regarding A.S. The

Agency concluded that A.S. and I.A. had suffered or were at substantial risk of suffering

serious physical harm or illness as a result of Shauna's failure or inability to supervise and

protect them.

1 Further statutory references are to the Welfare and Institutions Code.

2 Damian came to the Agency's attention after Shauna admitted using amphetamines
or methamphetamines while she was pregnant with him. Shauna did not participate in
any reunification services, and the juvenile court terminated her services in that case.
Damian's father participated in services and obtained full legal and physical custody of
Damian when the juvenile court terminated jurisdiction. Shauna does not have visitation
rights to Damian.
2
The voluntary case plan regarding A.S. was implemented when A.S. was born.

The Agency was aware of the family based on Damian's prior dependency case. Because

Damian's case involved substance abuse issues, the voluntary case plan for A.S. required

Shauna to submit to random drug tests and attend Narcotics Anonymous (NA) meetings.

The voluntary case plan also required Shauna to complete in-home parenting classes.

Although Shauna claimed to have stopped using drugs, she tested positive for

methamphetamines several months after A.S.'s birth. She refused to submit to any

further drug tests for the Agency. Shauna did not complete her in-home parenting classes

and attended only a handful of NA meetings. The voluntary case plan was not

successful.

Over a year later, the Agency received a child abuse hotline referral alleging

substandard living conditions, drug use, and physical violence at the trailer where Shauna

was living with A.S. and I.A. An Agency social worker went to the trailer and found

A.S. and I.A. unattended. Four men were outside the trailer, including Alex H., A.S. and

I.A.'s father.3 However, when the Agency social worker asked whether the father was

present, Alex did not identify himself. A few minutes later, Shauna returned to the trailer

from another house on the property where Alex's grandmother Betty lived. Shauna had

been taking a shower. When the Agency social worker told Shauna that A.S. and I.A.

3 Shauna identified Alex as A.S. and I.A.'s father, although she was not sure. Alex
also said he was their father. The minors' birth certificates did not list a father, and
Shauna and Alex were not married. Soon after this dependency case began, Alex stopped
communicating with the Agency and moved out of California. Alex did not perfect his
paternity and remained an alleged father throughout the case. He is not a party to this
appeal.
3
had been left unattended, she yelled and cursed at the men. Shauna explained that she

had left A.S. and I.A. with their father.

The trailer was in poor condition. The Agency social worker observed holes in the

floor and walls, and the stove had been removed. Clothing and trash covered the floor.

A dead rodent lay outside the door to the laundry room. Shauna admitted that the trailer

was "not safe" and that A.S. and I.A. stayed at Betty's house when Shauna was away.

The surrounding property was also in disrepair and contained numerous hazards.

A fence next to the trailer's porch was low, and Shauna did not prevent A.S. from

climbing on it. Near the trailer, the Agency social worker observed an axe, a baseball bat

with a nail stuck in the top, other sharp objects, empty liquor bottles, and raw sewage

where the minors played outdoors.

A.S. had bruises on his shins and upper arms, as well as small scratches on his

upper arms. Shauna said that A.S. had been crawling under the porch when she was

watching him. He may have scratched himself on a nail, causing an open wound. A.S.

was also visibly dirty on his legs. I.A. did not appear to have any injuries, but he was

also visibly dirty on his legs. Later, I.A. was found to have a cut on his head, which

Shauna said was caused by A.S. throwing a wooden block.

During the visit, the Agency social worker created a safety plan for A.S. and I.A.

The plan required the following: (1) the minors would not be left alone; (2) the minors

would stay in Betty's house; (3) the paternal grandfather's girlfriend would help take care

of the minors; (4) Shauna and Alex would submit to drug testing the following day; and

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(5) the family would attend a team decision making meeting (TDM). Shauna said she did

not agree with the plan, but she would follow it.

The next day, however, Betty told the Agency that Shauna had slept with A.S. in

the trailer overnight. Shauna also did not submit to a drug test as planned. Although she

went to the testing location a day later, she did not give an adequate sample and left the

location. Several days later, the Agency requested that Shauna test again, but she did not

go.

In discussions with the Agency, Shauna denied sleeping in the trailer with A.S.,

but she gave inconsistent accounts of her whereabouts that night. The Agency created a

second safety plan stating that Shauna would stay with a relative or family friend, rather

than the property where the trailer was located. Shauna and the Agency agreed on a time

for the TDM, but Shauna cancelled it. A family friend told the Agency that the minors

stayed at the trailer property when the paternal grandfather's girlfriend babysat them,

contrary to the second safety plan.

Shauna stopped communicating with the Agency. Her paternal aunt told the

Agency that Shauna had an attorney and would no longer talk to the Agency. Several

days later, the Agency filed its petition, obtained a protective custody warrant, and

detained A.S. and I.A. in foster care. At the detention hearing, the court found that the

Agency had made a prima facie showing under section 300, subdivision (b).

Following the detention hearing, Shauna told the Agency she did not have any

place to live other than the trailer. She admitted the dangers the trailer posed to the

minors, stating that "I guess if we didn't live there [A.S.] wouldn't have so many cuts." In

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foster care, A.S. was active, aggressive, and angry, though he sustained few, if any, new

scratches and bruises. Shauna promised to clean up the trailer and surrounding property.

The Agency asked Shauna to submit to drug testing. Shauna admitted to drinking alcohol

the night before, but her test was negative for alcohol and drugs.

In conversations with the Agency, Shauna disclosed that she began using

marijuana at age 13 and methamphetamines at age 14. She stated that she uses marijuana

about every three months. Despite her positive drug test during A.S.'s voluntary case,

Shauna claimed she had stopped using methamphetamines after Damien was born.

Soon afterwards, the Agency learned that Shauna had again tested positive for

methamphetamines. The test results showed high levels of methamphetamines in

Shauna's blood. Before the test, Shauna told the Agency it would be clean because she

had not used methamphetamines in years. After the test, Shauna admitted using drugs

several days beforehand. She said she used methamphetamines only sporadically and

"not every day or even every week."

The Agency amended its petitions to add a second count under section 300,

subdivision (b). The second count alleged that Shauna had used methamphetamines, that

she had admitted a history of such use, and that her prior use had led to the Agency's

involvement with her older son Damian. The Agency concluded that A.S. and I.A. had

suffered or were at substantial risk of suffering serious physical harm or illness as a result

of Shauna's abuse of illegal drugs and her consequent failure to protect and supervise the

minors.

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Shauna was referred to ParentCare, a drug treatment program. She did not

complete enrollment. The Agency subsequently recommended that Shauna complete an

inpatient drug treatment program.

Before the contested jurisdiction and disposition hearing, an Agency social worker

viewed Shauna's progress cleaning the trailer property. Shauna had done some work on

the surrounding property. She had not completed work inside the trailer, so she did not

show the social worker the trailer itself.

At the hearing, the Agency recommended that the court sustain the allegations of

the petitions, that A.S. and I.A. remain in out-of-home care, and that Shauna receive

family reunification services. The court received several Agency reports into evidence

and heard testimony from an Agency social worker. The court sustained the allegations

of the petitions, removed A.S. and I.A. from Shauna's custody, and ordered them placed

with a nonrelative extended family member. The court authorized supervised visitation

and gave the Agency discretion to lift supervision, to allow Shauna to live in the

caregiver's home with the minors, and to grant a 60-day trial visit with Shauna. Shauna

appeals.

DISCUSSION

Our standard of review is well-settled: " 'On appeal, the "substantial evidence"

test is the appropriate standard of review for both the jurisdictional and dispositional

findings. [Citations.]' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) " 'In juvenile

cases, as in other areas of the law, the power of an appellate court asked to assess the

7
sufficiency of the evidence begins and ends with a determination as to whether or not

there is any substantial evidence, whether or not contradicted, which will support the

conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent

and all legitimate inferences indulged in to uphold the verdict, if possible.' [Citation.]

' "If the evidence so viewed is sufficient as a matter of law, the judgment must be

affirmed . . . ." ' " (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.).) "Thus,

we do not consider whether there is evidence from which the dependency court could

have drawn a different conclusion but whether there is substantial evidence to support the

conclusion that the court did draw." (In re Noe F. (2013) 213 Cal.App.4th 358, 366.)

" ' "However, substantial evidence is not synonymous with any evidence.

[Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on

appeal. [Citation.] Furthermore, '[w]hile substantial evidence may consist of inferences,

such inferences must be "a product of logic and reason" and "must rest on the evidence"

[citation]; inferences that are the result of mere speculation or conjecture cannot support a

finding [citations].' [Citation] 'The ultimate test is whether it is reasonable for a trier of

fact to make the ruling in question in light of the whole record.' [Citation.]" [Citation.]' "

(In re Drake M. (2012) 211 Cal.App.4th 754, 763 (Drake M.), italics omitted; see In re

Noe F., supra, 213 Cal.App.4th at p. 367.)

Shauna first challenges the juvenile court's jurisdictional finding under section

300, subdivision (b). As she acknowledges, the minors' father Alex has not appealed.

8
We therefore will not reverse the court's jurisdictional finding even if the allegations as to

Shauna cannot be sustained. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

Nonetheless, "we generally will exercise our discretion and reach the merits of a

challenge to any jurisdictional finding when the finding (1) serves as the basis for

dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial

to the appellant or could potentially impact the current or future dependency proceedings

[citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction'

[citation]." (Drake M., supra, 211 Cal.App.4th at pp. 762-763.) Because the

jurisdictional findings here support the court's dispositional orders, and because the

jurisdictional findings could have an effect on future child custody determinations,

among other things, we exercise our discretion to reach the merits of Shauna's challenge.

(See id. at p. 763.)

Section 300 provides, in relevant part, as follows: "Any child who comes within

any of the following descriptions is within the jurisdiction of the juvenile court which

may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b)(1) The child

has suffered, or there is a substantial risk 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

disability, or substance abuse." " 'The basic question under section 300 is whether

circumstances at the time of the hearing subject the minor to the defined risk of harm.' "

(In re J.N., supra, 181 Cal.App.4th at p. 1022.) The juvenile court must find that the

9
child is a person described in section 300 by a preponderance of the evidence. (§ 355,

subd. (a).)

In the first count of the amended petitions, the Agency alleged that A.S. and I.A.

were at substantial risk of harm as a result of Shauna's failure or inability to supervise and

protect them. The evidence supported the juvenile court's finding sustaining this

allegation. Shauna subjected the minors to numerous hazards in their trailer and the

surrounding property, including a dilapidated fence where she allowed A.S. to play, raw

sewage near the minor's play area, an axe, a baseball bat with a nail stuck in the top, other

sharp objects, and empty liquor bottles. Under Shauna's care, A.S. crawled underneath

the porch of the trailer, where there were exposed nails, and sustained at least one open

wound. Shauna admitted that the trailer was "not safe" and that A.S. would not have

received so many cuts if they lived in better conditions. Shauna also left A.S. and I.A.

alone in the trailer, where holes and other dangers confronted the minors. Although

Shauna claimed to have left the minors in the care of their father, the evidence showed

that Shauna's trust in him was misplaced.

Despite Shauna's recognition that the trailer was "not safe" and the Agency's safety

plan requiring the minors to stay elsewhere, Shauna violated the plan by sleeping with

A.S. in the trailer overnight. Shauna also allowed the minors' paternal grandfather's

girlfriend to babysit them. The girlfriend cared for the minors at the property where the

trailer was located, a violation of the Agency's second safety plan.

10
By the time of the jurisdiction and disposition hearing, there was no evidence the

trailer had been made safe for the minors. Given Shauna's past pattern of allowing the

minors to stay at the trailer or the surrounding property, despite significant hazards and

the Agency's safety plans, the juvenile court could reasonably find the minors were at

substantial risk of serious harm at the time of the hearing. There was a substantial risk

Shauna would again seek to reside at the trailer, the surrounding property, or similarly

dangerous housing. Shauna's drug use, discussed further below, supports this finding as

well.

Shauna's contrary position is unpersuasive. She emphasizes facts and inferences

contrary to the court's finding, which we may not credit. (See Rocco M., supra, 1

Cal.App.4th at p. 820.) She claims that she and the minors could have stayed at another

location, either at Betty's house or with the minors' paternal aunt (where the minors were

eventually placed). However, Shauna cites no evidence that Betty or the paternal aunt

would have allowed Shauna to stay with them at that time. More importantly, the ability

of Shauna to secure other housing is not dispositive. Shauna had other housing available

to her while the safety plan was in effect, but she chose to stay in the trailer with A.S.

The danger to the minors is not merely the condition of the trailer and surrounding

property, but Shauna's willingness to place the minors at risk by residing there.

Substantial evidence supports the court's finding that the minors remained at risk at the

time of the hearing.

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C

The second count of the Agency's amended petitions alleged that A.S. and I.A.

were at substantial risk of suffering serious physical harm or illness as a result of

Shauna's abuse of illegal drugs and her consequent failure to protect and supervise the

minors. The evidence supports the juvenile court's true finding on this allegation as well.

Shauna had a long history of illegal drug use. Despite her claim that she stopped using

drugs after her older son Damian's birth, she tested positive for methamphetamines

during the initial voluntary case for A.S. and again during this dependency case. She also

missed several tests. After the latest positive test, Shauna admitted smoking marijuana

every three months and using methamphetamines periodically. Shauna's history of drug

treatment was also unsatisfactory. She did not participate in any services during

Damian's dependency case, and she attended only a few drug treatment sessions during

the initial voluntary case for A.S. At the time of the jurisdiction and disposition hearing,

Shauna's drug problem remained untreated.

Given the minors' young ages, Shauna's substance abuse posed a substantial risk to

their physical well-being. (See Drake M., supra, 211 Cal.App.4th at p. 767.) At their

ages, "the absence of adequate supervision and care poses an inherent risk to their

physical health and safety." (Rocco M., supra, 1 Cal.App.4th at p. 824.) "[I]n cases

involving [such children], the finding of substance abuse is prima facie evidence of the

inability of a parent or guardian to provide regular care resulting in a substantial risk of

physical harm." (Drake M., at p. 767.) Moreover, the juvenile court could reasonably

12
find that Shauna's drug use had contributed to her neglect of A.S. and I.A., including their

dangerous living arrangements described above.

These facts therefore distinguish this case from In re Destiny S. (2012) 210

Cal.App.4th 999, 1003-1004, on which Shauna relies, where the court found a parent's

sporadic use of marijuana and methamphetamines was not sufficient to support a finding

under section 300, subdivision (b). In re Destiny S. involved an older, 11-year-old child

who did not suffer any substantial ill effects from her mother's drug use. (In re Destiny

S., at pp. 1003-1004.) Unlike the minors involved in this case, "11-year-old Destiny 'was

old enough to avoid the kinds of physical dangers which make infancy an inherently

hazardous period of life.' " (Id. at p. 1004.)

Shauna also relies on Drake M. to argue that the court's jurisdictional finding

required a showing of drug abuse, as opposed to mere drug use, based on the definition of

substance abuse contained in the American Psychiatric Association's Diagnostic and

Statistical Manual of Mental Disorders. (Drake M., supra, 211 Cal.App.4th at p. 766.)

However, the Drake M. definition "is not a comprehensive, exclusive definition

mandated by either the Legislature or the Supreme Court . . . ." (In re Christopher R.

(2014) 225 Cal.App.4th 1210, 1218; see In re Rebecca C. (2014) 228 Cal.App.4th 720,

726.) Here, Shauna's history of drug use (including while pregnant with Damian), her

repeated positive drug tests (during her children's dependency cases), her false statements

regarding her drug use, and the substantial evidence of her neglect of A.S. and I.A.

adequately demonstrates drug abuse within the meaning of the statute. (See In re

Christopher R., at pp. 1218-1219; In re Rebecca C., at pp. 726-727.) This drug abuse

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remained untreated at the time of the hearing, creating a substantial risk of serious

physical harm to the minors. (See Drake M., at p. 767.) Substantial evidence supports

the juvenile court's finding.

III

Shauna next challenges the juvenile court's dispositional order removing A.S. and

I.A. from her custody. "A dependent child shall not be taken from the physical custody

of his or her parents . . . with whom the child resides at the time the petition was initiated,

unless the juvenile court finds clear and convincing evidence" (§ 361, subd. (c)) that

"[t]here is or would be a substantial danger to the physical health, safety, protection, or

physical or emotional well-being of the minor if the minor were returned home, and there

are no reasonable means by which the minor's physical health can be protected without

removing the minor from the minor's parent's . . . physical custody." (Id., subd. (c)(1).)

"By requiring clear and convincing evidence of the risk of substantial harm to the

child if returned home and the lack of reasonable means short of removal to protect the

child's safety, section 361, subdivision (c) demonstrates the 'bias of the controlling statute

is on family preservation, not removal.' " (In re Hailey T. (2012) 212 Cal.App.4th 139,

146.) However, " ' "[t]he 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." [Citation.] The court may consider a parent's past conduct as well as

present circumstances. [Citation.]' " (In re John M. (2012) 212 Cal.App.4th 1117, 1126

(John M.).)

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The evidence here supports the juvenile court's removal order. As we have

discussed, at the time of the jurisdiction and disposition hearing, Shauna's conduct placed

A.S. and I.A. at substantial risk of serious physical harm. Based on Shauna's history of

violating the Agency's safety plans, her noncompliance with reunification services in

Damian's case, and her recent positive drug test, the juvenile court could reasonably

conclude that removal was the only reasonable means to protect the minors' safety. (See

John M., supra, 212 Cal.App.4th at p. 1126.)

Shauna argues that reasonable means short of removal existed to protect the

minors' safety, again claiming that she could have stayed with the minors at the paternal

aunt's home. As we have already noted, however, there was no evidence the paternal

aunt would have allowed Shauna to reside there. Shauna's remaining contentions are

similarly unpersuasive. The fact that A.S. and I.A. had not yet been seriously injured

does not mean that removal was inappropriate. (See John M., supra, 212 Cal.App.4th at

p. 1126.) Nor are the court's findings undermined by Shauna's allegedly improving

parenting style during supervised visits. The juvenile court was entitled to make its

findings notwithstanding such improvement. Substantial evidence supports the court's

dispositional order.

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DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.