Filed 11/4/20 L.N. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
L.N.,
F081498
Petitioner,
(Super. Ct. No. 01CEJ300383-3)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M.
Arax, Judge.
Nicole M. Verville for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Detjen, Acting P.J., Franson, J. and Meehan, J.
At a contested jurisdictional and dispositional hearing in July 2020, the juvenile
court adjudged now five-year-old T.S. a dependent child under Welfare and Institutions
Code section 300, subdivisions (b)(1) and (j),1 ordered her removed from her mother,
L.N. (mother), under section 361, subdivision (c)(1) and set a section 366.26 hearing on
November 17, 2020. Mother contends the evidence was insufficient to support the
court’s findings and orders and seeks an extraordinary writ (Cal. Rules of Court,
rule 8.452)2 vacating the section 366.26 hearing and directing the juvenile court to
terminate dependency jurisdiction and return T.S. to her custody, return T.S. to her
custody with family maintenance services or order family reunification services. We
deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
On July 15, 2019, the Fresno County Department of Social Services (department)
requested a welfare check on mother and then four-year-old T.S. after receiving a report
of possible neglect. Mother had a significant child welfare history that included T.S. She
received family maintenance services to retain custody of her from May 2016 to
October 2017 and was granted sole physical and legal custody. She lost custody of T.S.’s
half siblings, Christopher and B.B., in 2000 and 2001, respectively, and her parental
rights were terminated. She also had a 14-year-old son and a 12-year-old daughter, N.B.,
who were placed in their father’s care.
A social worker met with police officers at mother’s apartment. An adult male
opened the gate to the apartment complex for the social worker and said it was about time
child protective services did something about mother and T.S. He said mother always
used drugs, acted crazy and left T.S. alone. The officers found mother in front of her
residence holding T.S. and behaving erratically. She was speaking very rapidly, making
1 Statutory references are to the Welfare and Institutions Code.
2 References to rules are to the California Rules of Court.
2.
incoherent statements and refused to hand T.S. over to law enforcement. She admitted
using methamphetamine. Concerned she was going to harm T.S., the officers
involuntarily detained mother under section 5150 and the social worker took T.S. into
protective custody. The whereabouts of T.S.’s father, Troy S., were then unknown.
T.S. told the social worker she got scared sometimes when mother left her alone at
night but not “too scared.” When she misbehaved, she was hit with a belt but denied that
it hurt. She had food to eat and clean clothes to wear. N.B., her 12-year-old sister, did
her laundry for her by taking her to the laundromat.
Mother denied stating she used methamphetamine. She told the social worker he
had better return T.S. to her custody or she would make sure everyone knew he was a
kidnapper. She reminded him she was “ ‘only one step away from being crazy.’ ”
Mel S.,3 the girlfriend of mother’s cousin and an approved foster parent, took
custody of T.S. She was surprised the department had not removed T.S. sooner. She did
not have much of a relationship with mother but had seen T.S. a couple of months before.
Yvonne M., a maternal aunt, and Deborah P., 4 the maternal grandmother, also expressed
interest in placement. Yvonne adopted Christopher and B.B. Yvonne and Deborah were
given instructions about completing the orientation and the necessary paperwork.
The department filed a dependency petition on T.S.’s behalf, citing the incident on
July 15, 2019, and alleging under section 300, subdivision (b)(1) that mother’s mental
health issues and methamphetamine use placed T.S. at a substantial risk of harm. The
petition further alleged under subdivision (j) that T.S.’s half brother Christopher was
removed from mother’s custody in December 2000 because of her cocaine and marijuana
use and incarceration. She was ordered to participate in reunification services but did not
3 “Mel” is a nickname, which we use for nondisclosure purposes because her legal
name is uncommon.
4 Deborah is referred to in the reporter’s transcript by her maiden name, which
begins with the letter “S.” but everywhere else in the record as “Deborah P.”
3.
comply. Her parental rights were terminated, and Christopher was adopted. In
December 2001, T.S.’s half sister, B.B., was removed after mother was arrested for not
complying with her probation drug treatment. She was denied reunification services and
B.B. was adopted.
The juvenile court ordered T.S. detained in July 2019 pursuant to the petition and
offered mother supervised visitation and random drug testing. The court ordered the
department to assess Troy for services if he made contact and set a
jurisdictional/dispositional hearing (combined hearing) for August 2019. The hearing
was continued and conducted as a contested, combined hearing in July 2020. During that
year, mother participated in services to reunify and completed some of them. However,
the department recommended the juvenile court exercise its dependency jurisdiction over
T.S. and deny mother reunification services based on her untreated drug abuse and failure
to reunify with T.S.’s half siblings. (§ 361.5, subd. (b)(10), (11) & (13).)
In recommending the juvenile court deny mother reunification services, the
department detailed mother’s child welfare history in its report for the combined hearing.
In December 2000, eight-month old Christopher was taken into protective custody after
mother was arrested for petty theft and a probation violation. She was also using cocaine
and marijuana. Mother was ordered to participate in reunification services, including
drug treatment, but did not comply. She was also exhibiting mental health problems. In
January 2001, she was evaluated in the emergency room after she was found running
naked in the street holding Christopher and talking about giving him tranquilizers. She
was pregnant and tested positive for cocaine and marijuana. She was placed on an
involuntary detention under section 5150. In January 2001, mother gave birth to B.B. at
25 weeks gestation and tested positive for cocaine. B.B. was placed with a relative as a
safety plan while mother received residential drug treatment. However, mother was
noncompliant. The court denied mother reunification services and terminated her
parental rights as to both children. In October 2016, the juvenile court adjudged T.S. a
4.
dependent while mother was court-ordered in a criminal matter to complete substance
abuse treatment as a condition of probation. The court allowed mother to retain custody
of T.S. while participating in family maintenance services, which included inpatient drug
treatment. Mother successfully completed residential treatment and moved in with her
family. However, in February 2017, she tested positive for methamphetamine, cocaine
and benzoylecgonine. Mother agreed to attend outpatient substance abuse treatment and
was placed on family maintenance. Fresno County accepted the case in May 2017 and
dependency was dismissed in October 2017.
The department also reported on mother’s efforts to address its concerns about her
substance abuse and mental health. She registered for random drug testing in July 2019
and tested positive for marijuana from July through September. She began outpatient
substance abuse treatment in September 2019 and actively participated. She completed
treatment in December 2019. During that time and continuing into January and February,
she attended Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings. She
consistently tested negative for all drugs from late September 2019 through April 2020,
except for positive test results for creatinine in January and March 2020. However, she
refused to participate in mental health therapy. She was referred to a therapist by her
substance abuse counselor because of her history of involuntary detentions but declined
to complete the assessment and denied symptoms of anxiety and/or depression. She told
the therapist she was released from involuntary detention in July 2019 without a
psychiatric diagnosis or psychotropic medication. The therapist explained in a letter that
she felt ethically bound to respect mother’s decision to refuse therapy. Mother completed
a 12- to 15-week parenting class in January 2020 and enrolled in “Beyond Trauma,” a 12-
week class for women who experienced trauma.
Despite mother’s efforts, the department advised against providing mother
reunification services. Although she had a good relationship with T.S. and interacted
well with her, mother made bizarre statements to the staff during a visit in July 2019.
5.
She said she had a 23-year-old daughter who was hit by a train. She also said she paid
$1,000 a week for shots so that she could get pregnant with T.S., who she said died when
she was two months old. T.S. meanwhile remained in Mel’s care and was doing well
there. Mel, however, was only willing to provide her a permanent plan of legal
guardianship. Nevertheless, the department did not believe it would serve T.S.’s best
interest to provide mother services to reunify.
In an addendum report, the department informed the juvenile court Troy was in
custody in county jail for threatening someone with brass knuckles. The department
recommended the court deny him services because he was not seeking placement of T.S.
If he sought placement, it recommended the court deny him services because of a violent
felony conviction. (§ 361.5, subd. (b)(12).) The department also reported T.S.
consistently expressed her desire not to reunify with mother. She was afraid of mother
and disclosed mother hit her and did not feed her. She felt loved and cared for by Mel
and her uncle. She thought mother was nice to her during visits because she wanted her
to return home. T.S. no longer considered mother part of her family but wanted to
continue visiting her.
In May 2020, mother gave birth to a daughter, M.M. The department took her into
protective custody and the juvenile court ordered her detained pursuant to a dependency
petition. The court ordered the department to offer mother random drug testing and
arrange visitation. The court set the jurisdictional/dispositional hearing (initial, combined
hearing) for July 27, 2020.
The juvenile court conducted the contested, combined hearing as to T.S. and the
initial, combined hearing as to M.M. on July 27 and 28, 2020. Troy appeared through his
attorney, who stated Troy was available to take custody of T.S. and objected to the court
setting a section 366.26 hearing. Mother attempted to show there was insufficient
evidence she had drug abuse or mental health problems.
6.
Tyrone J., mother’s uncle, testified he and mother lived in the same apartment
complex. He saw mother with T.S. on July 15, 2019, and did not see any signs mother
was under the influence. He was not aware mother had a history of methamphetamine
use.
Deborah, the maternal grandmother, testified she took care of T.S. the week before
the July 15 incident. She had dropped T.S. off with mother and was on her way home
when she received a telephone call that the police and department were at mother’s
apartment. She regularly took care of T.S., twice during the weekdays and every
Saturday. Sometimes she spent the night. She was aware mother was having difficulty
with the neighbor who told the police mother left T.S. alone. Mother told her the man
flirted with her. However, Deborah did not believe the man would know if she was in
mother’s apartment taking care of T.S. She did not get a chance to tell anyone that she
could take care of T.S.
Deborah acknowledged mother previously used drugs “off and on” but said she
was not currently using drugs. She denied mother ever had any mental health problems.
Asked whether she applied for placement, she said she tried. She went to a school and
received a certificate, but it was “too much” for her.
Social worker Fatima Castillo Rosales was assigned T.S.’s case after detention.
When she received the case, T.S. was already placed with Mel. T.S. went through a
period of adjustment in Mel’s care but had since adjusted well and was afraid she would
be taken out of her care. When T.S. got into trouble at school, she would say “I don’t
want to go back home.” “I love you guys.” She told Rosales she wanted to stay with
Mel every time Rosales visited her. Rosales believed it would be detrimental to T.S. to
remove her from Mel’s care.
Social worker Kenia Gonzalez was assigned T.S.’s case in May 2020. She
supervised two telephone visits between mother and T.S. The visits were short because
T.S. wanted to terminate the call. T.S. did not want to visit mother and had to be urged to
7.
visit by Mel. T.S. said she did not have anything to say to her mother. T.S. told
Gonzalez she did not want to go home. She wanted to stay with “auntie Mel” and start
calling her “mom.”
R.M., mother’s 22-year-old nephew, testified he asked about placement sometime
in January or February 2020 but was told T.S. was in the process of being adopted by
another family and happy where she was. He could not remember the name of the social
worker, but she did not tell him about the resource family approval process. He never
requested visitation.
Yvonne, mother’s older half sister, testified she adopted Christopher and B.B. and
obtained legal guardianship of mother’s 13- and 15-year-old sons. She provided in-home
supportive services and worked with people who had mental illness. She took a couple of
classes and sat in on private counseling sessions. She also worked with her brother, who
was a paranoid schizophrenic, for 20 years beginning when he was 16. She never
observed mother display behavior related to a mental health problem. She and mother
were close, and she interacted with her often. She had never been around mother when
mother was misusing any sort of illegal substance. She interacted with mother once or
twice when she believed she was under the influence of marijuana. She never suspected
mother of being under the influence of methamphetamine or cocaine.
Mel testified she participated in therapy with T.S. and T.S. never talked about
going home to mother.
Mother testified she contacted the police on July 15, 2019, because her 15-year-
old son was threatening to run away and was acting out of character. The police told her
they received a phone call from a neighbor and wanted to talk to her and walk through
her apartment. She did not know which neighbor called but had problems with a
neighbor who was standing at the front gate with a camera videotaping. She denied being
under any mind-altering drugs at the time. She used marijuana two days before but T.S.
was not in her care when she used it. She denied ever using marijuana with T.S. present.
8.
She denied telling the officer she used methamphetamine. She stayed at the psychiatric
facility two nights. The doctor told her she did not need to be there and released her.
The court took judicial notice that the maximum allowable detention under section 5150
was 72 hours.
Mother claimed a sobriety date of sometime “around the 13th of July” 2019.
Marijuana is her drug of choice. She did not believe she was addicted to it because she
did not use it daily. She quit using marijuana on her own and tested positive for it until it
cleared her system. She continued to attend NA/AA meetings. She denied ever having a
problem with methamphetamine. She acknowledged testing positive for creatinine.
However, she attributed the result to being pregnant and drinking a lot of water. She did
not pursue mental health counseling because she did not believe she had mental health
problems. During visits, T.S. always asked mother if she could come home.
Deneen D., a family friend, testified she supervised visits between mother and T.S.
and observed them play and interact well. She never asked for placement.
Mother’s attorney argued there was insufficient evidence mother had a substance
abuse problem or untreated mental health problems that affected her ability to safely
parent T.S. She pointed to evidence mother had not tested positive for any elicit
substance except marijuana initially and creatinine while she was pregnant. Mother’s
behavior on July 15 could be explained by her confusion as to why the police were asking
about T.S. and the stress of her neighbor filming her rather than by mental illness. She
also pointed out that mother was not detained for the full 72 hours, indicating the
psychiatrist did not believe she was dangerous to herself or others. Counsel also argued
the juvenile court should provide mother reunification services because she was making
efforts to address the department’s concerns and it was in T.S.’s best interest to reunify
with her. They enjoyed positive visitation and had a parent-child relationship.
The juvenile court exercised its dependency jurisdiction over T.S. after finding
true the section 300, subdivision (b)(1) and (j) allegations. The court cited mother’s
9.
history of mental illness and substance abuse and failure to acknowledge the problems.
The court did not find Deborah and Yvonne’s testimony concerning mother’s substance
abuse and mental illness credible. The court ordered T.S. removed from parental custody
and declined to deny mother reunification services under section 361.5, subdivision
(b)(10) and (11), finding she made reasonable efforts in the year following detention to
resolve her problems. However, the court found subdivision (b)(13) of section 361.5
applied because mother resisted court-ordered drug treatment by relapsing in 2017. The
court also found providing mother reunification services would not serve T.S.’s best
interest, given the unstable life she experienced with mother and multiple removals from
mother’s custody. The court denied Troy services under 361.2, subdivision (a) because
he was not requesting placement or services, set a section 366.26 hearing as to T.S. for
November 17, 2020, and a contested, combined hearing for M.M. on November 10, 2020.
DISCUSSION
On appeal, we review jurisdictional and dispositional findings and orders under
the substantial evidence standard of review. (In re A.S. (2011) 202 Cal.App.4th 237,
244.) Substantial evidence exists when the evidence is “reasonable in nature, credible,
and of solid value,” so that “a reasonable mind would accept [it] as adequate to support
[the] conclusion.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard
of review, we consider the record as a whole, in a light most favorable to the juvenile
court’s findings and conclusions, and we defer to the juvenile court on any issues of
credibility of the evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733–734.) The
existence of evidence of some support for a contrary finding will not defeat the finding.
(In re Manuel G. (1997) 16 Cal.4th 805, 823.) Moreover, “[w]hen the sufficiency of the
evidence to support a finding or order is challenged on appeal, even where the standard of
proof in the trial court is clear and convincing evidence, the reviewing court must
determine if there is any substantial evidence—that is, evidence which is reasonable,
credible and of solid value—to support the conclusion of the trier of fact.” (In re Jasmine
10.
C. (1999) 70 Cal.App.4th 71, 75.) However, we bear in mind that the juvenile court was
required to make the finding on the heightened clear and convincing evidence standard of
proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996.)
I. Jurisdictional Findings
Mother contends there was insufficient evidence to support the section 300,
subdivision (b)(1) findings and a subdivision (j) finding alone cannot support jurisdiction.
We disagree the evidence was insufficient.
At the jurisdictional stage of a dependency proceeding, the department must prove
by a preponderance of the evidence that the child is a dependent of the court as described
by section 300. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Section 300,
subdivision (b)(1), authorizes a juvenile court to exercise dependency jurisdiction over a
child if the “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
… to adequately supervise or protect the child, or … by the inability of the parent … to
provide regular care for the child due to the parents … mental illness, developmental
disability, or substance abuse.” (§ 300, subd. (b)(1).)
The department alleged two counts under section 300, subdivision (b)(1), one
alleging mother’s mental health issues and the other alleging her methamphetamine use
negatively affected her ability to provide T.S. adequate care, supervision and protection.
As factual support, the department cited her behavior on July 15, 2019, when she was
observed speaking very rapidly, moving continuously, making incoherent statements, and
refusing to physically hand T.S. over to law enforcement and her statement she used
methamphetamine.
Mother contends her demeanor and statements on July 15, 2019, are insufficient
alone to support a true finding under section 300, subdivision (b)(1). Rather, she argues,
it required evidence she was using drugs or experiencing mental illness at the time of the
jurisdictional hearing, which the department did not present. There was, for example, no
11.
evidence she required involuntary detention during the year following T.S.’s removal.
Further, she asserts, the only drug found in her system was marijuana and only during the
first several months of the case. Nevertheless, she argues, the juvenile court considered
her marijuana use as ongoing drug use and prejudiced her when it took judicial notice,
stating “I think the [c]ourt can take judicial notice it’s not subject to dispute but you are
taught in drug treatment once an addict that’s it. No alcohol, no marijuana, no mind[-]
altering substances or sobriety substances.” Mother acknowledges testing positive for
creatinine, which she attributes to her pregnancy and additional water consumption.
Mother’s assertions concerning her ongoing substance abuse and mental illness
was scant at the time of the jurisdictional hearing but has some merit. What she fails to
acknowledge, however, is the probative value of her mental health and substance abuse
history and denial she ever used methamphetamine or suffered mental health problems.
“Although ‘the question under section 300 is whether circumstances at the time of
the hearing subject the minor to the defined risk of harm’ [citation], the court may
nevertheless consider past events when determining whether a child presently needs the
juvenile court’s protection. [Citations.] A parent’s past conduct is a good predictor of
future behavior. [Citation.] ‘Facts supporting allegations that a child is one described by
section 300 are cumulative.’ [Citation.] Thus, the court ‘must consider all the
circumstances affecting the child, wherever they occur.’ ” (In re T.V. (2013) 217
Cal.App.4th 126, 133.) Further, a parent’s denial of wrongdoing or failure to recognize
the negative impact of her conduct is also a relevant consideration in the court’s
determination of risk under section 300. (In re Tania S., supra, 5 Cal.App.4th at p. 735,
fn. 4; see also In re A.F. (2016) 3 Cal.App.5th 283, 293 [“ ‘[D]enial is a factor often
relevant to determining whether persons are likely to modify their behavior in the future
without court supervision.’ ”].)
Here, mother’s history of mental health problems and substance abuse is
significant and longstanding, dating back to 2000 when she was pregnant with B.B. and
12.
using cocaine. She had to be involuntarily detained because she was running naked in the
street while holding then eight-month-old Christopher and talking about giving him
tranquilizers. There is a long gap in her subsequent history until approximately 16 years
later when she was court ordered to complete substance abuse treatment as a condition of
probation. Though she completed the program, she quickly relapsed, testing positive for
methamphetamine, cocaine and benzoylecgonine in early 2017. By her own admission,
she was again using methamphetamine in July 2019 when officers responded to her home
and apparently it had been going on for some time based on the comments of mother’s
neighbor and Mel. Mother was also acting erratically, which prompted her involuntary
detention.
Despite mother’s history of involuntary detention, she denied having any mental
health problems. She denied suffering from depression and anxiety and declined to
complete the mental health assessment. Nevertheless, one could infer from the
therapist’s letter she thought mother may have some mental health problem but was
unable to identify or treat it. She felt compelled to explain ethical reasons required her to
honor mother’s refusal for treatment. In addition, mother testified she did not believe she
had a problem. Two involuntary detentions are compelling evidence, however, that she
did. There are also the statements she made to the staff during visitation in July 2019 that
would indicate she was not accurately perceiving reality.
Mother also denied having any problem with methamphetamine and she did not
believe she was addicted to marijuana because she did not use it every day. The juvenile
court considered her continuing use of marijuana inconsistent with recovery on a theory
that an addict should avoid any mind-altering substances. Even if, as mother argues, the
court erred in taking judicial notice of that concept, it does not undermine the court’s
assumption of jurisdiction. Mother’s denial of having mental health problems
considering her history was sufficient evidence she posed a substantial risk of harm to
T.S. “ ‘[D]enial is a factor often relevant to determining whether persons are likely to
13.
modify their behavior in the future without court supervision.’ ” (In re A.F., supra, 3
Cal.App.5th at p. 293.)
II. Removal Order
Mother contends the juvenile court’s finding mother made reasonable efforts to
treat the problems necessitating the removal of T.S.’s siblings by extension proved T.S.’s
removal from her custody was unnecessary. We disagree.
The juvenile court must decide at the dispositional hearing whether to remove the
child from parental custody and whether to provide the parent(s) reunification services.
If the juvenile court finds the minor child is described under any one of the subdivisions
of section 300, it may remove the child from the parent but only if it finds, by clear and
convincing evidence, there is or would be a substantial danger to the child’s physical or
emotional well-being if the child were returned home and there are no reasonable means
by which the child’s physical health can be protected short of removal. (§ 361,
subd. (c)(1).) If the court orders the child removed, it must order services for the parent
to reunify with the child, unless any one of the exceptions listed in section 361.5,
subdivision (b) apply.
Here, the juvenile court declined to apply section 361.5, subdivision (b)(10) and
(11) to mother. These exceptions apply to the parent whose parental rights or
reunification services were terminated in the case of a sibling or half sibling of the child
under consideration and the parent failed to subsequently make reasonable efforts to
address the problems leading to removal of the sibling or half sibling. The juvenile court
found the exceptions did not apply to mother because in the year following T.S.’s
detention, she made efforts to treat her drug abuse.
Mother’s efforts, however, do not undermine substantial evidence T.S. would be at
a substantial risk of harm if returned to her custody. Though she was making efforts to
treat her drug abuse, she refused to address her mental health condition, which was
potentially serious. Twice it required her to be involuntarily detained. Further, T.S. had
14.
been removed from mother’s custody twice and she was fearful of being returned to her.
To remove T.S. from a home where she felt safe to place her in a precarious situation
with mother would not best serve and protect her interest. We find no error.
We conclude substantial evidence supports the juvenile court’s exercise of its
dependency jurisdiction over T.S. and its order removing her from parental custody.
Since mother does not challenge the court’s order denying her reunification services, we
need not review it. We thus affirm the court’s findings and orders and deny the
extraordinary writ petition.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as to this court pursuant to rule 8.490(b)(2)(A).
15.