Filed 2/25/14 In re Jermaine W. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 JERMAINE W., a Person Coming
Under the Juvenile Court Law.
                                                                 D064691
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J518430)
         Plaintiff and Respondent,

         v.

N.H.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Kenneth J.

Medel, Judge. Affirmed.



         Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
      N.H. appeals following the 12-month review hearing in the dependency case of

her son, Jermaine W. N.H. contends no substantial evidence supports the juvenile court's

finding that returning Jermaine to N.H.'s home would create a substantial risk of

detriment to him. We affirm.

                                    BACKGROUND

      In early June 2012, the San Diego County Health and Human Services Agency

(the Agency) filed a dependency petition (Welf. & Inst. Code, § 300, subd. (b))1 for 10-

and-one-half-year-old Jermaine, alleging as follows: In April, N.H. agreed to participate

in voluntary services after Jermaine's toddler brothers2 were found to have healing burn

scars. She did not participate in those services and was only allowed supervised contact

with the brothers. She twice failed to drug test and declined family counseling offered by

Jermaine's school. When she took Jermaine and a young sibling panhandling door to

door, Jermaine begged for money and burglarized a home. N.H. accepted a stolen cell

phone from Jermaine and used the phone. Jermaine was on the streets, unsupervised, late

at night and was arrested for assault with a deadly weapon (throwing rocks at homeless

persons), criminal gang activity and curfew violations. In May, during an assessment at

county mental health, N.H. tested positive for marijuana.




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

2      N.H. had three minor children who were younger than Jermaine, two who were
older and one adult child. N.H.'s child welfare history began years before Jermaine's
birth.
                                            2
       After being released from juvenile hall, Jermaine was detained in Polinsky

Children's Center, then in a group home. N.H.'s whereabouts were unknown until June

19, 2012, when the Agency discovered she had been arrested and jailed on charges of

second degree burglary, forgery and various theft offenses.3 N.H. was convicted of the

charges and placed on probation. In July, she tested positive for marijuana and claimed

she had a medical marijuana card.4

       In the group home, Jermaine was prone to verbal and physical outbursts. He was

defiant and encouraged defiance in his peers. He left the group home without permission

and encouraged other residents to join him. During one of his absences, Jermaine and his

companions threw rocks at passing cars, hit cars with sticks and hid until the police

arrived and returned them to the group home. This behavior led to Jermaine's transfer to

a different group home in July 2012. Approximately two weeks later, at 3:00 a.m.,

Jermaine began yelling in an attempt to wake up other group home residents. He spit at

staff members; attempted to punch, bite and "head butt" them; and threatened to kill

residents and staff members.

       In July 2012, the court made a true finding on the petition. In August, the court

ordered Jermaine removed from N.H.'s custody and placed in a group home and ordered

reunification services.




3      N.H.'s criminal history began before Jermaine was born.

4      Later, N.H. said the card expired in December 2012.
                                             3
       By November 2012, Jermaine was allowed eight-hour unsupervised visits with

N.H. away from the group home. In December, N.H. tested positive for marijuana and

methamphetamine. She claimed she had not used methamphetamine since 2009 and said

marijuana alleviated the fatigue caused by her prescribed psychotropic medication.5 In

January 2013, N.H. tested positive for marijuana at a low level.

       By January 2013, Jermaine's behavior had improved, as had his academic

performance. He benefited from the structured group home environment and weekly

therapy. He received psychiatric care and was prescribed medication to treat his

disruptive behavior, temper outbursts, verbal and physical aggression and insomnia. In

January, the group home closed and Jermaine was moved to another group home.

       In April 2013, N.H. stopped participating in services without having completed

any of the objectives of her case plan. In June, she refused to drug test. She repeatedly

lost the bus passes the Agency provided, repeatedly lost her cell telephone and said this

was why she could not participate in services. She forfeited her public assistance for

approximately one month because she was angry with staff members at the family

resource center and would not return to have her application processed. As of June, she

had not followed up on the Agency's housing referrals. Instead, she stayed with various

friends and family members, and in motels. Her communication with the Agency was

inconsistent.




5      N.H. suffered from depression and anxiety.
                                             4
       In June 2013, N.H.'s visitation was limited to the grounds of Jermaine's group

home, in part because of N.H.'s lack of communication with the Agency. After this, his

disruptive and defiant behavior increased rapidly. He physically assaulted group home

staff members, verbally threatened staff members and residents, destroyed property and

refused to follow rules. Despite being intelligent, he often failed to complete school

work. The social worker believed Jermaine was "motivated when he knows [N.H.] is

improving"; group home staff and school personnel had not found any other way to

motivate him.

       In July 2013, N.H. tested positive for marijuana and amphetamines. The social

worker noted that during various meetings, N.H. had appeared as though she might be

under the influence of amphetamines; she fidgeted, had difficulty maintaining eye

contact, often did not answer questions and exhibited scattered thoughts and speech

patterns. Jermaine's siblings reported that N.H. had asked for their urine to submit for

testing. Later in July, N.H. obtained a phone to replace one she had lost and Jermaine

was again allowed eight-hour unsupervised visits with N.H. away from the group home.

N.H. did not take advantage of all the visits she was allowed, often cancelled visits at the

last minute and failed to appear for one visit. This upset Jermaine and he acted out with

physical aggression, but N.H. believed he should not be upset if she cancelled a visit.

       In August 2013, N.H. was arrested, charged with second degree burglary and

jailed. She had also failed to appear in court on a drug charge.

       At the contested 12-month review hearing in September 2013, the court found, by

clear and convincing evidence, that Jermaine's return to N.H. would create a substantial

                                             5
risk of detriment to his physical and emotional well-being. The court continued

Jermaine's group home placement and ordered a permanent plan of another planned

permanent living arrangement.

                                        DISCUSSION

       At the 12-month review hearing, "[t]he court shall order the return of the child to

the physical custody of his or her parent . . . unless the court finds, by a preponderance of

the evidence, that the return of the child to his or her parent . . . would create a substantial

risk of detriment to the safety, protection, or physical or emotional well-being of the

child. The social worker shall have the burden of establishing that detriment. . . . The

failure of the parent . . . to participate regularly and make substantive progress in court-

ordered treatment programs shall be prima facie evidence that return would be

detrimental." (§ 366.21, subd. (f).)

       N.H. raises several challenges to the detriment finding. First, she contends this

case resulted principally from Jermaine's incorrigible behavior, for which she was not to

blame, and he would not be at a significantly greater risk of harm if he were moved from

foster care to her care. Second, N.H. contends the record does not set forth the details

and dates of her alleged criminal acts and she did not solicit Jermaine to burglarize a

home as the detention report suggested. Third, N.H. contends there is no evidence she

was addicted to methamphetamine, used drugs in Jermaine's presence or that any use

affected her parenting ability, and suggests alternate causes for her positive tests and

symptoms of illicit drug use. Fourth, N.H. contends the detriment finding cannot be

based on her homelessness and poverty, and notes two of her children were living with

                                               6
her.6 Fifth, N.H. contends there was no evidence her anxiety or depression presented a

substantial risk of detriment. N.H. concludes Jermaine could have been returned to her

care with family maintenance services, or treated in the juvenile delinquency system.

       There are many flaws in N.H.'s arguments. Contrary to her suggestion, the

detriment finding was not based simply on her poverty or homelessness, and her claim

that she is not responsible for Jermaine's behavior is a simplistic view of a complicated

situation. Regardless of the genesis of Jermaine's disruptive and violent behavior, he is

troubled and in need of supervision, stability and structure that N.H. is unable to provide.

       According to reports preceding the filing of the dependency petition, N.H. sent

Jermaine into a home to steal property, or at least accepted a stolen cell phone from him

after he told her he had stolen it. N.H. engaged in criminal behavior during the pendency

of this case. She has a long-standing history of drug abuse, including giving birth to a

child who tested positive for marijuana at birth in 1999. During this case, N.H. used

illegal drugs, including methamphetamine, and appeared to be under the influence in

meetings with the social worker. N.H. was offered services to address a myriad of

concerns, but did virtually nothing. Sadly, she was not reliable even in visiting Jermaine.

All of these circumstances constitute substantial evidence (In re Alvin R. (2003) 108

Cal.App.4th 962, 974) supporting the finding that placing Jermaine with N.H. would




6       N.H.'s nine-year-old and 15-year-old children, who were in her care under a
voluntary case plan, had histories of truancy. Jermaine also was truant while in N.H.'s
care. When he did attend school, the instability in N.H.'s home and her lack of parenting
skills led to Jermaine's disruptive behavior at school. This, in turn impeded his learning.
                                             7
have created a substantial risk of detriment to his safety, protection, or physical or

emotional well-being (In re Joseph B. (1996) 42 Cal.App.4th 890, 899).

       N.H. relies on In re Precious D. (2010) 189 Cal.App.4th 1251, which held

"parental unfitness or neglectful conduct must be shown in order to assert dependency

court jurisdiction under that part of section 300[ subdivision] (b) providing for

jurisdiction based on the parent's 'inability . . . to adequately supervise or protect the

child.' " (Id. at p. 1254.) That case is distinguishable. It is too late for N.H. to challenge

dependency jurisdiction, and there is ample evidence of her "parental unfitness or

neglectful conduct." (Id. at p. 1251.)

                                         DISPOSITION

       The order is affirmed.



                                                                          MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



O'ROURKE, J.




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