Filed 11/13/13 In re Benjamin S. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


In re BENJAMIN S., a Person Coming                                   B247164
Under the Juvenile Court Law.                                        (Los Angeles County
                                                                     Super. Ct. No. CK96444)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

HEIDI S.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Philip L. Soto, Judge. Affirmed.
         Carlson & Greenberg, John E. Carlson for Defendant and Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Kimberly A. Roura, Deputy County Counsel, for Plaintiff and Respondent.
                  ___________________________________________________
          Heidi S. challenges an order declaring her son a dependent of the juvenile court,
arguing that “the evidence did not establish that [she] was a substance abuser, nor that she
could not protect or provide for her son.” She also challenges the disposition order
because it lacks findings that the boy’s health and safety cannot be assured unless he is
removed from her custody. Substantial evidence supports dependency jurisdiction, and
the court’s failure to state findings during the disposition hearing is harmless error. We
affirm.
                                            FACTS
          Heidi S. (Mother) is the mother of Benjamin S., born in 2011. In November 2012,
the police were summoned to a public park by concerned citizens who saw an intoxicated
woman with a baby. The police were met by eyewitnesses who stated that they saw
Mother drink beer and nearly drop the child as she stumbled around the park. Mother
staggered over to speak to the police: her speech was slurred, she smelled of alcohol, her
eyes were bloodshot, she swayed, and she could not find her belongings. Mother
displayed two prescription drug containers and said that she drove her son to the park.
The police determined that Mother was unable to take care of Benjamin or herself. She
was arrested for child endangerment and Benjamin was taken into protective custody.
Following her arrest, Mother registered a blood-alcohol level of .11 and .12 in two tests.
After being Mirandized, Mother said she drank several beers and took two “Norcos” (a
prescription narcotic) within a two-hour period.
          An emergency referral was made to the Department of Children and Family
Services (DCFS). A social worker determined that Mother and David H. (Father) share
joint legal and physical custody of Benjamin under a family law order. Father met
Mother only a month before she became pregnant. They are not in a relationship. He
does not know whether Mother abuses alcohol or drugs, but described her as “erratic,”
sometimes friendly and sometimes hostile. She recently sent him “hundreds of hostile
and threatening text messages” in two days. He has concerns about Mother’s mental
health due to her erratic behavior. Father is willing and able to care for the child, and he
and Mother have a nanny for Benjamin. DCFS released Benjamin to Father’s custody on

                                               2
November 5, 2012. The officers who arrested Mother said that she admitted to driving
under the influence and taking the painkiller Norco; they found Norco and Ambien
(sleeping pills) in Mother’s purse.
       Mother was interviewed in jail. She did not remember what occurred when she
was arrested, saying, “I just remember being very confused and out of it.” She had a few
beers at the park, and claimed that her friend “Tim” drove her there. She felt disoriented
when the officers came to talk to her, believing that an antipsychotic medication she had
taken the night before (Seroquel) was still having an effect on her 15 hours later. She
uses Norco for pain relief. Mother understood that she made a terrible mistake by mixing
alcohol with medication. She was suffering from postpartum depression, for which her
physician prescribed Zoloft and Wellbutrin. Mother “feels safe and comfortable with the
child being with the father” although she and the baby are bonded and she would like him
to come home with her. She denied abusing drugs or alcohol, and promised to cooperate
with DCFS to ensure Benjamin’s safety.
       Benjamin’s nanny told the social worker that she has worked with the family for a
year and has never seen any indication that Mother abuses alcohol, describing both
parents as responsible and caring. One day after her initial interview with the social
worker, Mother called to say that she had posted bail. She had very little memory of
what she said to the social worker the day before. Mother now stated that she drove
herself to the park with Benjamin: when they arrived, she developed a migraine, reached
in her purse for Norco and by accident took Ambien, which caused confusion and
amnesia. Mother does clinical research at UCLA. She admitted sending threatening text
messages and saying terrible things to Father because she was angry.
       Mother’s psychiatrist, Dr. Genen, confirmed a diagnosis of postpartum depression,
for which he prescribed two antidepressants, plus Seroquel and Ambien for insomnia.
Ambien can cause temporary confusion and amnesia. Mother’s behavior at the park
seemed uncharacteristic to Dr. Genen, though he admittedly was unaware that Mother
sent many threatening text messages to Father.



                                             3
       The social worker observed that Mother makes unreasonable demands for
visitation, telling Father she would visit the child at his home for eight hours every day.
Mother wanted Father to present a united front with her in court, which suggests that she
is not taking responsibility for her actions and wants others to help her out of the situation
she created. Father wants Mother to be with Benjamin, so long as there is certainty that
the child is safe with her. The social worker feels Benjamin is at high risk in Mother’s
care due to her apparent overconsumption of prescription drugs and failure to
appropriately supervise and care for her child.
       On November 14, 2012, DCFS filed a petition on Benjamin’s behalf, alleging that
he is at risk of harm because (1) Mother placed Benjamin in a detrimental and
endangering situation by becoming incoherent and confused in a public park under the
influence of alcohol and prescription drugs, and (2) Mother is a current user of alcohol
and prescription drugs, rendering her unable to provide regular care and supervision of
Benjamin. The court found a prima facie case for detaining Benjamin from Mother and
vested placement with DCFS, finding that “release to Father is appropriate.” Mother was
given three monitored visits per week.
       DCFS filed its jurisdiction/disposition report on December 12, 2012. Benjamin is
living with Father, who has no criminal history. Mother has a recent arrest for child
endangerment; a 2007 DUI conviction that required completion of a three-month alcohol
and drug program; and a conviction for theft in 2000 for which she was ordered to
undergo psychological counseling. Under a family law judgment dating from April 2012,
Mother had primary custody of Benjamin and Father had physical custody two days per
week. The report repeats the circumstances leading to Mother’s arrest and Benjamin’s
detention, when Mother was found intoxicated at a public park and admitted to police
that she drank four beers and drove under the influence.
       In an interview, Father opined that Mother has mental illness, perhaps borderline
disorder, narcissism, or bipolar disorder. She does not take responsibility for her actions
and always blames others; because she is unable to see that she has done something
wrong, she is apt to repeat mistakes. He has had conversations with Mother in which

                                              4
“her body [was] awake and her mind asleep” and she had no recollection of the
conversation one day later. Mother regularly takes prescription drugs. Her story about
the day of her arrest changed repeatedly. When Father asked her to take a hair follicle
test, Mother volunteered that she has been “leaning more heavily” on the narcotic Norco
for the last six months. She did not admit wrongdoing, but complained about Father and
the supposed incompetence of the DCFS social worker.
       Father is a musician and does voice work. He has a seven-year-old son from a
marriage: he and his ex-wife have 50/50 custody of the boy. He met Mother online in
2010, and she became pregnant shortly after they met. They have an amicable
relationship, and Father has been involved in Benjamin’s life since birth. Father tested
negative for drugs on December 5, 2012.
       Mother was interviewed. She stated that she picked up Ambien, Vicodin and
migraine medications at the pharmacy, then took Benjamin to the park. The last thing
she remembers is getting a horrible headache. She reached for her medication and took
Ambien instead of her migraine medication. After that, she was in a fog and only
vaguely remembers the police talking to her. “Apparently I drank alcohol in the park. I
have no idea how I drank alcohol. I have no idea what happened. I didn’t take any
alcohol to the park and I didn’t talk to anyone in the park. I drove Benjamin to the park.
When the police came to me, I was holding a beer can in the park around the children,
drinking obviously.” Mother blames herself for taking the wrong medication. She takes
antidepressants; Xanax; Ambien (for insomnia); and Vicodin for her migraines. Mother
had a seizure during the detention hearing and was taken to the hospital. The seizure was
attributed to taking Zoloft and Wellbutrin, stress, and not eating. She described her
conduct as “an honest mistake” and is willing to do everything necessary to regain
custody. Mother tested negative for drugs on December 7, 2012.
       In a letter, Dr. Genen stated that he has been treating Mother since September
2012, and does not believe she has a personality disorder, a psychotic disorder, bipolar
disorder, or substance abuse problems. She has symptoms of anxiety and depression but
continues to function at a very high level, excelling at her job and maintaining social

                                             5
friendships. She is dedicated to Benjamin’s welfare. He believes that Mother
accidentally took Ambien, causing amnesia and bizarre, uncharacteristic behavior. He is
forming a medication plan to redress Mother’s symptoms, including insomnia. She uses
antidepressants; she no longer uses Ambien and has discarded medications she is not
currently taking in order to avoid any future mistakes. Dr. Genen does not believe that
Mother would ever intentionally endanger Benjamin, and recommended that he be
returned to Mother’s care. Mother’s friends and colleagues submitted letters attesting to
her love for Benjamin.
       DCFS recommended that the court sustain the petition. Mother initially told
officers that she took two painkillers, drank alcohol, and drove Benjamin to the park. She
showed the officers prescription drug containers. She tested above the legal blood
alcohol limit after her arrest. Later, Mother changed her story and claimed mistaken use
of a sleeping pill. Father has previously observed Mother take prescription medication,
act bizarrely, and not remember past events. Mother admitted to Father that she was
leaning heavily on painkillers for the last six months.
       The jurisdiction hearing was held on December 14, 2012. At the outset, Mother’s
attorney indicated that “[w]e are not really concerned with jurisdiction with the DCFS.
We are concerned about disposition more than anything. We have a plan that we think is
reasonable which is in the best interest of the parties. So we would like the court to order
DCFS to do a further investigation in regards to the mother’s plan to see whether or not
it’s feasible.” No argument was offered with respect to jurisdiction. The court sustained
the allegations in the petition without amendment. Mother was ordered to have weekly
random and on-demand drug and alcohol testing, and was authorized to have monitored
visits three times per week for three hours per visit.
       On January 3, 2013, the court issued a temporary restraining order against Mother,
after she became hostile and uncooperative while retrieving Benjamin from Father’s
home, as Father was trying to tell her what Benjamin had eaten, whether he had a nap and
where he was in his schedule. Father announced that he was cancelling the visit and
began removing Benjamin from Mother’s car. Mother began yelling and grabbed

                                              6
Benjamin’s legs, causing the child to cry. Father explained that it was not safe for
Mother to take the child if she refused to hear about his basic needs. The maternal
grandmother threatened to “sock” Father in the mouth. Mother called the police claiming
that Father “assaulted” Benjamin. Father called the Child Abuse Hotline and was told
not to worry because he had custody. When the police arrived, they told Mother to take
Benjamin and leave, and they refused to take a criminal report. The police advised
Father to take an independent witness when he went to collect Benjamin, and to have all
future exchanges occur at a police station. Mother was barred from approaching Father’s
home or workplace.
       A letter was submitted from Timothy Sanchez, who has known Mother since the
seventh grade and has periodically shared a house with her. Sanchez obtained a
restraining order against Mother in 2000, when she became unstable and irrational after
he advised her that he was moving out. Sanchez lived with Mother from mid-September
2012 until the end of November 2012. He saw that she was “intoxicated” (drunk or
medicated) daily, and was disoriented, tripping, falling and slurring, sometimes driving
Benjamin in this state. According to Sanchez, Mother consumes as much as a 12-pack of
beer every day. Sanchez twice caught her and Benjamin in his arms to prevent them
from hitting the floor. He witnessed her give beer to Benjamin on a daily basis, which
disrupted Benjamin’s moods, sleep, and eating habits. Mother did not feed Benjamin
regularly, and did not cook him meals, giving him only delicatessen meat and string
cheese. On a day that Mother was ordered to drug screen, she asked Sanchez for his
urine, but he refused. Mother regularly awakens with no memory of her behavior the
night before, but refuses to accept that there is a problem. She told Sanchez that she
planned to have Father killed, and would rather kill herself and Benjamin than allow
Father to have full custody of the child. Mother repeatedly told Sanchez that she has
been a physician since 1999 and is the chief of staff at UCLA’s pediatric oncology
department.1 In fact, Mother does not have a medical license.


1      Mother also told the police and a social worker that she is a physician.

                                             7
       The contested disposition hearing was held on January 25, 2013. Dr. Genen
testified that Mother has been his patient for four months and has major depressive
disorder. Her initial postpartum depression was exacerbated by other stressors, such as
her tumultuous relationship with Father. Dr. Genen attributed Mother’s seizure during
the detention hearing to her use of the antidepressant Wellbutrin, and attributed her arrest
to a bad reaction to the sleeping medication Ambien. Mother and Father indicated to the
court that they have no intention of becoming a couple again. The court did not allow
evidence showing whether Mother posed a threat to Benjamin because “I’ve got the child
with the father.”
       The court placed Benjamin with Father. Mother was given referrals to licensed
therapists and to a drug and alcohol program with weekly random testing. The court
emphasized that it was not ordering Mother to complete any programs, but warned her
that if she did not show satisfactory progress, she would not obtain custody in the future.
The court made a “mutual no harm, annoy or molest order” and directed the parties to
cooperate peacefully when Benjamin is going for visits. Mother was given monitored
visitation. She appeals from the disposition. (Welf. & Inst. Code, § 395.)2
                                       DISCUSSION
1. Jurisdiction
       Mother contends that the record does not support dependency jurisdiction.
Reviewing jurisdictional findings, we see if substantial evidence, contradicted or
uncontradicted, supports them. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “‘“In
making this determination, we draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.”’” (In re I.J. (2013) 56 Cal.4th 766, 773.)




2      Statutory citations in this opinion are to the Welfare and Institutions Code.


                                              8
       Sustained findings under section 300, subdivision (b) require (1) neglectful
conduct by the parent; (2) causation; and (3) a substantial risk of physical harm or
illness.3 (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “[P]roof of current risk of
harm is not required to support the initial exercise of dependency jurisdiction under
section 300, subdivision (b), which is satisfied by a showing that the child has suffered or
there is a substantial risk that the child will suffer, serious physical harm or abuse.”
(In re Adam D. (2010) 183 Cal.App.4th 1250, 1261.) Evidence of past conduct may be
used to establish dependency jurisdiction, to the extent that it is probative of current
conditions. (In re J.K. (2009) 174 Cal.App.4th 1426, 1438; In re Savannah M. (2005)
131 Cal.App.4th 1387, 1394.) The juvenile court need not wait until the child is actually
harmed before intervening. (In re Eric B. (1987) 189 Cal.App.3d 996, 1003.)
       The courts afford special protection to “children of such tender years that the
absence of adequate supervision and care poses an inherent risk to their physical health
and safety.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) While an older child may
able to avoid physical danger and seek care from responsible adults if neglected by a
parent, infancy is “an inherently hazardous period of life” with special vulnerability. (Id.
at p. 825; In re Drake M. (2012) 211 Cal.App.4th 754, 767; In re Destiny S. (2012) 210
Cal.App.4th 999, 1004 [11-year-old child could avoid the physical dangers that make
infancy hazardous].) The primary concern is the child’s best interests and the provision
of a safe home free from the negative effects of substance abuse. (§ 300.2; In re B.T.
(2011) 193 Cal.App.4th 685, 692.)
       The evidence is sufficient to sustain dependency jurisdiction. Multiple concerned
eyewitnesses contacted authorities because they saw Mother stumbling around a public
park, drinking beer, and nearly dropping Benjamin. When the police arrived, Mother


3        The court may exercise jurisdiction if “[t]he 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 [ ] 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
parent’s . . . substance abuse.” (§ 300, subd. (b).)


                                               9
staggered over to speak to them, smelling of alcohol and slurring her speech. Mother
admitted to driving with Benjamin while under the influence of alcohol and painkillers,
and testing showed she had a blood-alcohol level in excess of the legal limit for driving.
Mother was arrested for child endangerment. In addition, the record shows that Mother
pleaded no contest to criminal charges of driving under the influence in 2007. Both
Father and Mother’s former housemate observed that Mother is regularly unable to recall
recent conversations, an observation borne out by Mother’s inability to recall what she
told the DCFS social worker from one day to the next.
       The juvenile court could reasonably find that Mother is a substance abuser. As a
medical researcher at a university, Mother must know the danger of mixing prescription
painkillers or sleeping pills with alcohol. Yet she saw fit to take two painkillers and
consume alcohol while driving and supervising Benjamin, at high risk to the child’s
safety. There is evidence that Mother suffers from amnesia as a result of her substance
abuse. While admitting that she was “obviously” drinking in the park and was carrying a
beer, she added, incongruously, “I have no idea what happened. I didn’t take any alcohol
to the park.”
       The court did not have to believe Mother’s after-the-fact story that she mistook the
sleeping pill Ambien for the painkiller Norco. Mother’s story changed from moment to
moment: she told the police she took two painkillers, she told the social worker she was
suffering from the aftereffects of Seroquel taken 15 hours earlier, then she said she took
Ambien by mistake. Either way, she mixed opiates and/or soporifics with alcohol, a
combination that is well-known to be dangerous. The fact that Mother admittedly sent
hundreds of angry, threatening messages to Father because she was annoyed with him
suggests an ongoing substance problem, because it is not sober behavior.
       DCFS sustained its burden of proof. First, it showed that Benjamin suffered a
substantial risk of serious physical harm because Mother admittedly drove him while
intoxicated and was seen nearly dropping him due to her state of intoxication. Mother
could not possibly protect Benjamin from harm—such as toddling or crawling in front of
traffic, or from abduction if she lost consciousness—by frequenting a public park while

                                             10
not in control of her actions. Second, DCFS showed that Mother has a history of
substance abuse that includes a DUI conviction and her recent arrest for endangering a
child due to intoxication from alcohol and prescription drugs. Mother told Father that she
leans heavily on Norco. Her use of drugs and alcohol causes blackouts or amnesia.
       In cases involving children of tender years, “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.” (In re Drake M., supra, 211 Cal.App.4th
at p. 767.) At the age of one, Benjamin required Mother’s constant attention. Her
conduct demonstrated that she was unable to provide him with an appropriate level of
supervision and protection, negatively impacting her ability to parent.4
2. Disposition
       A dependent child may not be removed from the physical custody of a parent with
whom he resides unless the juvenile court finds, by clear and convincing evidence, 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.” (§ 361, subd.
(c)(1).) DCFS concedes that the court failed to make findings under section 361.
       The court should find that it would be detrimental to leave the child with the
custodial parent, before awarding custody to the nonoffending parent. (In re Robert P.
(1976) 61 Cal.App.3d 310, 320.) “However, cases involving a court’s obligation to make
findings regarding a minor’s change of custody . . . have held the failure to do so will be
deemed harmless where ‘it is not reasonably probable such finding, if made, would have
been in favor of continued parental custody.’” (In re Jason L. (1990) 222 Cal.App.3d




4      Mother frankly conceded dependency jurisdiction at the outset, making no effort
to challenge the allegations in the petition with evidence or argument, and indicating that
her only concern was the disposition.


                                             11
1206, 1218.) We may imply the facts from the record on appeal. (In re Corienna G.
(1989) 213 Cal.App.3d 73, 83.)
       Although the juvenile court did not make an express finding that Mother’s custody
poses a substantial danger to Benjamin’s health, safety, protection and well-being, the
court made it abundantly clear that it saw Mother as an unfit parent who could not have
custody until she completed a drug and counseling program. During the disposition
hearing, the court stated to Mother, “If you don’t do a drug program, you know what?
Then you don’t. But I’m going to tell you this: if you don’t do a drug program with the
testing and demonstrate that everything is clean and you are doing your mental services
with your doctor . . . and everything is working out with your meds and everything else,
if all of that isn’t cleared up by the time we come back in the middle of the summer, we
are going to close this case out with a family law order [in] which we’ll leave the baby
with dad and just monitored visits with you, nothing more, unless and until you show that
all of these things have been done.”
       Under the circumstances, remanding the case for the trial court to make findings
under section 361 would be a meaningless exercise, because there is no reasonable
probability that such a finding would have been in favor of giving Mother custody.
Because the court refused to allow Mother to have unmonitored visits with Benjamin,
there is no way that the court would have allowed Mother to retain custody. A threat to
Benjamin’s safety is implicit in the court’s order that a third party must monitor all of
Mother’s visits.
       There is more than sufficient evidence to support a finding that returning
Benjamin to Mother’s custody would pose a substantial risk of harm to the child. As
described in the preceding section, Mother drove the child while intoxicated, drunkenly
staggered around a park with a beer in hand, nearly dropping the child, causing members
of the public to alert authorities that Benjamin was at risk of harm. Mother apparently
intended to drive Benjamin home in a state of near blackout. She mixed alcohol with
opiates and/or sleeping pills, yet denies that she misuses intoxicants. Her consumption of
alcohol in the middle of the day, in public, while driving and supervising an infant,

                                             12
disproves her claim that she is not a drinker. Mother’s statement to the social worker that
she did not take alcohol to the park on the day of her arrest defies belief, since Mother
tested above the legal blood-alcohol level for driving.
       As the juvenile court firmly advised Mother, she cannot take custody of Benjamin
without proof that she is free of alcohol and other substances that impair her ability to
provide a safe environment for a toddler. The juvenile court’s failure to make formal
findings is harmless error, because a finding that a danger to Benjamin exists is implicit
in everything the court said to Mother during the hearing and is supported by substantial
evidence.

                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




                                             13
