Filed 5/13/15 Melinda C. v. Super. Ct.CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


MELINDA C.,

     Petitioner,

                   v.

THE SUPERIOR COURT OF ORANGE                                           G051618
COUNTY,
                                                                       (Super. Ct. No. DP023872)
     Respondent;
                                                                       OPINION
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,

     Real Parties in Interest.



                   Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied.
              Law Office of Patricia Smeets Rossmeisl and Patricia Smeets Rossmeisl for
Petitioner.
              No appearance for Respondent.
              Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio
Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services
Agency.
              Law Office of Harold LaFlamme and Jess Ann Hite for the Minor.
                               *             *             *
              Petitioner contends substantial evidence does not support the juvenile
court’s orders to remove the minor from her custody and set a hearing to terminate her
parental rights following the filing of a Welfare and Institutions Code section 387
supplemental pleading. (All statutory references are to the Welfare and Institutions
Code.) We deny the petition.
                                             I
                                         FACTS
              The minor, A.C., now three years old, was born with a positive toxicology
screen for amphetamine and methampthetamine. The Los Angeles Superior Court
declared A.C. a dependent child of the juvenile court. She was put under the care of the
Department of Children and Family Services, placed in a licensed foster home at first and
later in the home of a maternal aunt.
              The minor’s mother Melinda C., the petitioner here, argues the juvenile
court lacked substantial evidence the minor would be at risk if returned to her. The
minor’s father, Adrian R., has a history of substance abuse and as of June 2012 “is a
current abuser of methamphetamine, marijuana, alcohol and pain medication.” Both
parents have long criminal histories.
              A dependency petition filed on behalf of the minor’s half sibling M.L. was
sustained in 2009 because petitioner “created an endangering home environment for the

                                             2
child in that excessive pornographic materials, including videos and magazines belonging
to the maternal grandfather, were found in the child’s home. . . .” Petitioner “has an
unresolved history of substance abuse and is an abuser of methamphetamine . . . .”
Petitioner and M.L.’s father Marc L. have a history of “domestic violence in the child’s
presence . . . .” After family reunification in the case involving M.L. was terminated in
2011, the juvenile court ordered a guardianship and permanent placement services for
M.L.
              With regard to petitioner and the minor, the juvenile court ordered family
reunification services for petitioner. No reunification services were ordered for the
father.
              On June 3, 2013, the Los Angeles juvenile court ordered the minor placed
with petitioner. Shortly thereafter, when the minor was 13 months old, petitioner moved
into the home of the relative caregiver and the minor in Orange County, and the case was
transferred to Orange County. On June 25, 2013, the minor was declared a dependent
child of Orange County juvenile court.
              A few weeks after the minor’s second birthday, the mother missed some
drug tests. Shortly thereafter, she tested positive for methamphetamine. The mother
admitted to a social worker she used methamphetamine. Then on August 19, 2014, “the
mother submitted a diluted test.” On July 3, 2014, a protective custody warrant was
issued by the juvenile court to remove the minor from the custody of petitioner. The
social worker was also concerned the child had been taken by petitioner and the maternal
aunt to the home of her maternal grandfather, the man who endangered the welfare of the
minor’s half sibling.
              Petitioner was sent to a new residential treatment program. The therapist
reported “the mother refrained from answering questions about the past” and the therapist
expressed if there were no improvements, petitioner would have to move on to a different
therapist. With regard to petitioner’s visitations with the minor, the caregiver stated to a

                                              3
social worker: “They’re going alright. Melinda plays with her, but if [A.C.] cries, I’ll
have to tell her to comfort her. She won’t do it on her own.” Petitioner claimed she was
“too tired” to comfort the minor. In August 2014, the social worker reported: “[T]he
prognosis for this case is poor. It appears appropriate for the child, [A.C.], to remain in
out-of-home care. It is respectfully recommended that the Court continue dependency,
with no Family Reunification services offered to the child’s mother . . . .”
              Petitioner was sent to a new therapist who reported petitioner’s insight was
limited. Later, the therapist stated about the petitioner: “On the surface, everything is
there. She’s on time. She talks. It might not be possible for her to connect the dots on a
deeper level . . . I feel she means well. We just aren’t getting there.”
              On July 8, 2014, a supplemental petition pursuant to section 387 was filed.
Some of the allegations in the supplemental petition, as interlineated by the juvenile
court, state: “On June 21, 2014, the mother, Melinda [C.], tested positive for
methamphetamine. On July 3, 2014, the mother, Melinda [C.], initially reported she is
still taking Oxycodone from a surgery that she had on May 13, 2014, and believed that
was the cause of her positive test for methamphetamine. The mother’s prescription
medication would not cause a positive result for methamphetamine. In the evening of
July 3, 2014, the mother admitted she used methamphetamine on one occasion, and that
she missed her drug test that day. [¶] The mother has missed the following drug tests:
January 31, 2014; February 22, 2014 (due to being out of town); February 28, 2014; May
13, 2014 (due to having surgery for gallstones); June 3, 2014; and June 24, 2014.”
              On March 5, 2015, the juvenile court found the allegations in the
supplemental petition to be true by a preponderance of evidence “bringing the child
within the provisions of section(s) 387 of the W&I Code.” The juvenile court expressed
concern about petitioner’s “series of missed tests.” The court also commented: “One of
the concerns that the court had in listening to testimony was a certain amorphous or a
fuzziness regarding mother’s present living situation.” Further, the court found that both

                                              4
petitioner and the maternal aunt lacked credibility, particularly with regard to going to the
maternal grandfather’s house. The court found the time for reunification services had
lapsed. The juvenile court found by clear and convincing evidence that section 361,
subdivision (c)(1) applies. A hearing pursuant to section 366.26 is calendared for July 6,
2015.
                                              II
                                        DISCUSSION
               Petitioner contends she “had a one-time relapse after almost two and a half
years of sobriety. Adoption should not be the punishment for a relapse especially when
mother immediately re-enrolled in services and maintained an extended period of
sobriety at the time of the hearing.”
               We review the court’s jurisdictional and dispositional findings in a section
387 hearing for substantial evidence. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.)
And we also review a juvenile court’s decision to remove a child from a relative
caretaker under the substantial evidence test. (In re H.G. (2006) 146 Cal.App.4th 1, 12.)
“The burden is on the party or parties challenging the findings and orders of the trial
court to show there is no evidence of a substantial nature to support the finding or order.
[Citation.]” (Id. at p. 13.)
               In the jurisdictional phase of a section 387 proceeding, the court determines
whether the factual allegations of the supplemental petition are true and whether the
previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); Cal.
Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a
dispositional hearing to determine whether removing custody is appropriate. (Cal. Rules
of Court, rule 5.565(e)(2).) A section 387 petition need not allege any new jurisdictional
facts, or urge different or additional grounds for dependency because a basis for juvenile
court jurisdiction already exists. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re
Joel H. (1993) 19 Cal.App.4th 1185.) The only fact necessary to modify a previous

                                              5
placement is that the previous disposition has not been effective in protecting the child.
(Id. at p.1200; § 387, subd. (b).)
              “When a juvenile court sustains a supplemental petition pursuant to section
387, the case does not return to ‘“square one”’ with regard to reunification efforts.
[Citations.]” (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166.) “If a
dependent child was returned to the custody of a parent or guardian at the 12-month
review or the 18-month review or at an interim review between 12 and 18 months and a
387 petition is sustained and the child removed once again, the court must set a hearing
under section 366.26 unless the court finds there is a substantial probability of return
within the next 6 months or, if more than 12 months had expired at the time of the prior
return, within whatever time remains before the expiration of the maximum 18-month
period.” (Cal. Rules of Court, rule 5.565(f).)
              Section 387 provides that a supplemental petition seeking to remove a child
from the physical custody of a relative may be filed based upon a statement of facts
showing that the previous disposition has not “been effective in the rehabilitation or
protection of the child.” (§ 387, subd. (b).) A section 387 hearing is bifurcated into “(1)
an adjudicatory hearing on the merits of the allegations in the petition and (2) a
disposition hearing on the need for the removal of the [children] from [their] current level
of placement.” (In re Javier G. (2006) 137 Cal.App.4th 453, 460.)
              “A dependent child shall not be taken from the physical custody of his or
her parents or guardians with whom the child resides at the time the petition was initiated,
unless the juvenile court finds clear and convincing evidence of any of the following
circumstances . . . : [¶] (1) There 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 or
guardian’s custody.” (§ 361, subd. (c)(1).)

                                              6
              In Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, cited by
petitioner, the basis for the juvenile court’s finding of detriment to a child was the
mother’s missed, diluted and positive drug tests. (Id. at p. 1346.) But in that case, “no
one offered testimony linking Mother’s marijuana and alcohol use to her parenting
judgment or skills.” (Ibid.) Here, circumstances are quite different. Petitioner’s
methamphetamine use and the risks she posed to the minor were the principal reasons the
court exercised its jurisdiction over the minor shortly after her birth.
              Petitioner also cites In re David M. (2005) 134 Cal.App.4th 822 to support
her position. In that case, the court exercised its jurisdiction over two children in order to
ensure their safety and well-being after their mother tested positive for marijuana
metabolites at the time of the younger child’s birth. (Id. at p. 825.) Despite mother’s use
of marijuana during pregnancy, the baby tested negative for any drugs at birth. (Ibid.)
Of course the situation in the instant case is quite different. Here, both petitioner and the
minor had positive toxicology screens when the minor was born. Petitioner admitted
using methamphetamine 10 hours before labor began, explaining she was well aware of
the danger she posed to her baby, but that she was “tired of being tired.” Also, petitioner
had already lost custody of her first child partially due to her use of methamphetamine.
              Just after the minor turned two years old, following significant services,
programs and therapy provided to petitioner, she returned to using methamphetamine.
From the court’s statements that petitioner’s “unresolved issue of substance abuse is
significant,” and “the child cannot be safely returned to the home,” we assume it became
obvious to the juvenile court that petitioner was still willing to risk the minor’s safety and
health. Further, the court had therapists’ reports that petitioner had limited insight and
was unable to “connect the dots.”
              Petitioner began using methamphetamine when she was 18 years old, and
she is now almost 39 years old. We can hardly question the juvenile court’s apparent
determination petitioner is not committed to stop her use of methamphetamine and the

                                              7
court’s statement the minor cannot be safe with petitioner. Nor can we question the
court’s concern about the maternal aunt and petitioner taking the minor to the home of
the maternal grandfather who presented danger to the minor’s older sibling and that
placement with them was not sufficient to protect the minor. Under the circumstances we
find in this record, we conclude the juvenile court’s findings and orders are supported by
substantial evidence.
                                            III
                                        DISPOSITION
              The petition is denied.



                                                  MOORE, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




                                             8
