Filed 7/18/14 In re A.M. CA4/2

                    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                             DIVISION TWO



In re A.M. et al., Persons Coming Under
the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                         E059396

         Plaintiff and Respondent,                                 (Super.Ct.No. SWJ1300332)

v.                                                                 OPINION

E.J.,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. John M.

Monterosso, Judge. Affirmed.

         Pamela Rae Tripp, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Pamela J. Walls, County Counsel, and Anna M. Marchand, Deputy County

Counsel, for Plaintiff and Respondent.




                                                        1
       E.J. (mother) contends there was insufficient evidence to support the

juvenile court’s jurisdictional findings under Welfare and Institutions Code1

section 300, subdivisions (b) and (g), regarding her children, A.M. and J.M. (the

children). Mother argues those findings should be reversed, and the dispositional

order should accordingly be reversed, as well. We affirm.

               FACTUAL AND PROCEDURAL BACKGROUND

       On May 20, 2013, the Riverside County Department of Public Social

Services (the department) filed a section 300 petition on behalf of the children,

alleging that they came within subdivisions (b) (failure to protect) and (g) (no

provision for support). A.M. was four years old at the time, and J.M. was two

years old. The petition alleged, under section 300, subdivision (b), that mother

had extensive substance abuse issues, including marijuana and alcohol abuse,

which limited her ability to provide her children with adequate care and

supervision; and she neglected their safety and well-being and created a

detrimental home environment. The other allegations under subdivision (b) and

subdivision (g) concerned the children’s father, who is not a party to this appeal.2

       In a detention report, the social worker reported that on February 25, 2013,

a referral was received alleging general neglect. It was reported that each time


       1All further statutory references will be to the Welfare and Institutions
Code, unless otherwise noted.

       2 Since the children’s father is not a party to this appeal, we will not
discuss any allegations or findings regarding him.
                                          2
mother was seen, she was wearing sunglasses and “seem[ed] drugged up.” She

did not know the date, slurred her words, looked anorexic, and said she had no

energy. She was only 24 years old. Mother said her children were too heavy for

her to carry, although the children appeared to be underweight and short for their

ages.

        The social worker reported that she made an unannounced visit to mother’s

home on March 28, 2013. She was invited in by mother’s friend, who was

babysitting the children. Mother’s friend said mother had been in the hospital for

about one week with a swollen face, possibly caused by her liver problems.

Mother’s friend and parents were taking care of the children while she was in the

hospital.

        The social worker made a subsequent unannounced home visit, but no one

answered the door, even though there were cars in the driveway. The social

worker left her business card on the door with a request to contact her. A few days

later, mother’s sister, Irene, left the social worker a voicemail with her and

mother’s phone numbers. The social worker called back and left voicemails.

Over a week later, the social worker called mother again and spoke to her. When

asked if she had received the business cards left on the front door, mother said she

thought she did. When asked why she had not contacted the social worker, she

responded that she “[had not] gotten to them.” The social worker asked mother

why she was hospitalized, and she said, “I fell I guess.” Mother denied that her


                                          3
face was swollen and said she did not know if she was hospitalized due to her

alcohol usage. Mother also said the last time she drank alcohol was approximately

one year ago. Mother said that her parents had obtained guardianship of the

children.

       A few days later, the social worker had a brief telephone conversation with

mother’s sister, Irene. Irene explained that mother and the children are brought to

her home, and she or an adult supervises and assists mother with the children. The

children were never left alone in mother’s care.

       The social worker further reported that mother completed a urine drug test

on April 30, 2013, and tested negative for all substances. Regarding her medical

conditions, mother’s diagnoses were as follows: “alcoholic cirrhosis of liver,

gallstones, abnormal accumulation of fluid in the abdominal, liver encephalopathy,

malmution [sic], and acute non-traumatic [k]idney injury.” Mother reported that

she began using alcohol when she was 13 years old, and started drinking heavily

after her brother passed away from alcoholism three and one-half years ago. She

drank three cups of vodka everyday for two to three years. Mother’s parents and

sister stated they did not believe it had been a year since mother drank alcohol.

Her father said it may have only been seven months. Mother’s father was a

recovering alcoholic. In addition, mother’s parents said they had not applied for

legal guardianship of the children.




                                          4
       The social worker further reported that on May 16, 2013, she visited mother

at home. There was a babysitter there to watch the children and assist mother

around the house. The social worker observed that both children went to the

babysitter, and that J.M. came over to the social worker for her to hold him, twice.

When she attempted to redirect J.M. to mother, he stayed with her. When mother

verbally called him over, he did not respond to her. The social worker observed

that mother did not initiate any contact with the children verbally or physically.

The social worker had observed the same lack of interaction between mother and

the children at a previous visit.

       At the detention hearing on May 21, 2013, the court found a prima facie

showing had been made that the children came within section 300, subdivisions

(b) and (g). The court allowed the children to remain in mother’s custody upon

the conditions that she reside in her parents’ home and that there be no alcohol in

the home.

       Jurisdiction/Disposition Report

       The social worker filed a jurisdiction/disposition report on July 2, 2013,

recommending that the court find the allegations in the section 300 petition true as

alleged, and that mother be provided with family maintenance services. The social

worker stated there was sufficient evidence to support the allegation in section

300, subdivision (b), that mother had extensive substance abuse issues, which

limited her ability to provide the children with adequate care and supervision. The


                                          5
social worker reported that in July 2012, mother was admitted to the hospital for

excessive bleeding due to liver failure/liver disease. She was drug tested at that

time and tested positive for methamphetamine and marijuana. Her mother made a

statement that mother tended to drink a lot. Despite mother’s substance abuse, her

alcohol-related medical conditions, and her family’s history of abusing alcohol,

she failed to ever enroll in a program to address alcohol addiction. The social

worker opined that mother was at a high risk of relapse and/or continued use.

       The social worker interviewed mother’s father, who stated that his family

continued to support mother and the children. He reported that mother continued

to reside in his home, and that he hired a babysitter to be present in the home to

supervise mother and the children.

       As to the children, the social worker reported that they appeared to be

developing at an age-appropriate level, and they appeared to be happy.

       The social worker filed an addendum report on August 12, 2013. She

reported that the court ordered the department to assess the maternal grandparents

for legal guardianship of the children. When the social worker asked mother why

her parents did not previously follow through with filing for legal guardianship,

mother said it was her fault because she “thought this would just all go away.”

The social worker told mother she would benefit from a substance abuse treatment

program to address her addiction and educate her on relapse prevention. Mother

replied that she was attending Alcoholics Anonymous (AA) meetings once a


                                          6
week. When asked where she attended, she said she went to different locations,

and that she also participated in AA meetings at church. The social worker

stressed that mother was in need of intense substance abuse treatment, and stated

that, with continued supervision, the department could ensure the children’s safety

while mother participated in services. Thus, the social worker continued to

recommend that mother be provided with family maintenance services.

       The court held a contested jurisdiction hearing on August 12, 2013. The

department submitted on the petition and the reports filed. Mother’s counsel

stated that it submitted documentation to the court and also had some stipulated

testimony on behalf of mother. He stated that if she were called to testify, mother

would say she was currently attending AA meetings approximately once a week,

and that she had attended AA four times so far. She would also testify that she

had a patient-compliance agreement with regard to her medical issues, and that

part of the agreement required her to participate in AA meetings. Furthermore,

mother would testify that she had not drunk alcohol in approximately one year,

and she was currently able to care for her children. All counsel stipulated that was

what mother would testify to, and they waived cross-examination.

       Mother’s counsel proceeded to argue that although mother did not deny she

had a history of substance abuse, there was no indication she had been abusing

drugs or alcohol recently. He also claimed her medical issues were completely

separate from any current substance abuse. He further argued that there were no


                                         7
concerns about her ability to take care of the children, since she and her family

worked as a team.

       The children’s counsel asked the court to find the allegations in the petition

true and order family maintenance. Because of mother’s history and medical

conditions, she felt it would be better for the court to be involved to ensure that

mother was receiving the services needed.

       County counsel argued that mother’s family was taking care of the children

because mother was weakened by her liver failure. She asserted that it was the

alcohol that ruined mother’s liver. Counsel pointed out that it was only 12 months

ago that mother tested positive for methamphetamine and marijuana, and that

many family members said she drank a lot. Counsel pointed out that there was a

deep-rooted alcohol addiction in mother’s family, but mother lacked insight and

thought “this was all going to go away.” Although the social worker had been

asking mother for documentation of the AA meetings she attended, mother had not

produced any until that very day, and that documentation showed that she only

attended two meetings in the last 30 days.

       After hearing the arguments and reading the reports, the court noted

mother’s serious health issue involving cirrhosis of the liver, and its particular

concern with the evidence of some of mother’s conduct, such as, what it described

as her “suspicious fall” that led to this investigation. The court found by a

preponderance of the evidence that the allegations in the petition were true. The


                                           8
court noted that it only had proof of attendance at two AA meetings, and that

someone in mother’s position should have been going more than once a week.

The court set a review hearing date and addressed mother directly. The court told

mother that she needed to “get on the right road” so that it could see her being

diligent about staying alcohol free. The court added that if she could show the

court there was no suspicion that she was using alcohol or any illegal substance for

a period of time before the review hearing, it would be happy to terminate the case

prior to that date. The court wanted to see mother at least show a sustained

commitment to AA. It then wished her luck in getting her liver transplant. The

court ordered a plan of family maintenance services, which included an in-home

parenting program, regular attendance at AA, and completion of an alcohol

rehabilitation program, if recommended after assessment.

                                    ANALYSIS

             I. The Court Properly Took Jurisdiction of the Children

       In sustaining the jurisdictional finding alleged, the juvenile court effectively

determined that the children were subject to its jurisdiction because there was a

substantial risk they would suffer “serious physical harm or illness,” resulting

from mother’s inability to provide them with regular care due to her substance

abuse. (§ 300, subd. (b).) Mother argues there was insufficient evidence to

support the juvenile court’s jurisdictional finding under section 300,

subdivision (b). She contends that there was no evidence she was currently using


                                          9
alcohol or that her history of substance abuse placed her children at risk. She

asserts that, to the contrary, the evidence showed that the children were healthy,

happy, developing appropriately, and well cared for. We conclude that the court

properly took jurisdiction of the children.

       A. The Evidence Was Sufficient

       Section 300, subdivision (b), provides that the juvenile court may adjudge a

child a dependent of the juvenile court when the child has suffered, or there is a

substantial risk that the child will suffer, serious 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 standard of proof required in a section 300

dependency hearing is the preponderance of evidence. [Citation.]” (In re

Basilio T. (1992) 4 Cal.App.4th 155, 168 (Basilio T.).)

       “The issue of sufficiency of the evidence in dependency cases is governed

by the same rules that apply to all appeals. If, on the entire record, there is

substantial evidence to support the findings of the juvenile court, we uphold those

findings. [Citation.] We do not pass on the credibility of witnesses, attempt to

resolve conflicts in the evidence or evaluate the weight of the evidence. Rather,

we draw all reasonable inferences in support of the findings, view the record most

favorably to the juvenile court’s order, and affirm the order even if other evidence


                                           10
supports a contrary conclusion. [Citations.] The appellant has the burden of

showing the finding or order is not supported by substantial evidence. [Citation.]”

(In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)

       The petition here alleged that “mother [had] extensive substance abuse

issues, including but not limited to marijuana and alcohol abuse, thereby limiting

her ability to provide her children with adequate care and supervision, neglecting

their safety and well[-]being, and creating a detrimental home environment.”

There was substantial evidence to support the petition. The evidence showed that

on February 25, 2013, the department received a referral because each time mother

was seen, she was wearing sunglasses and appeared to be on drugs, she did not

know the date, she slurred her words, and she looked anorexic. Mother herself

said she had no energy and the children were too heavy for her to carry.

Furthermore, mother was recently hospitalized for one week, but she was not sure

why. Her discharge documents from the hospital showed that she had numerous

and serious medical conditions, including alcoholic liver cirrhosis, gallstones,

abnormal accumulation of fluid in the abdomen, liver encephalopathy, and acute

non-traumatic kidney injury. She was taking several medications, and was seeing

a liver specialist. Mother was on a waiting list for a liver transplant.

       The evidence further showed that mother had a history of substance abuse.

She began using alcohol when she was only 13 years old, and she said her

alcoholism was “really bad” approximately three and one-half years ago. She


                                          11
admitted that she drank three cups of vodka everyday for two or three years.

Although mother said she had not had alcohol in one year, her family did not

believe it had been that long. In 2011, mother was arrested for driving under the

influence of alcohol. In 2012, a referral was received alleging general neglect. It

alleged that mother was abusing alcohol and drugs and was not tending to the

children’s needs. At that time, she was admitted to the hospital because of

excessive bleeding due to liver failure/liver disease, and she tested positive for

methamphetamine and marijuana. Mother also had a family history of alcohol

addiction. Her father was a recovering alcoholic, and her brother died of

alcoholism.

       In addition, the evidence showed that mother was not serving in the

capacity of a parent to her children. While her testimony stated that she could care

for her children, the evidence demonstrated that she completely relied on others to

take care of them. The children were never left alone in mother’s care. When

mother and the children would go to her sister’s house, her sister or another adult

would supervise and assist her with the children. When mother and the children

were at the maternal grandparents’ home, the maternal grandmother was the

primary caregiver. When the grandparents were at work, they arranged for a

babysitter to be at home with mother. At one home visit, the social worker

observed that both children would go to the babysitter, rather than mother. When

the social worker asked mother to show her how she conducted a diaper change,


                                          12
she observed that mother had great difficulty pulling J.M. up to the couch. The

social worker also observed that mother did not initiate any contact with the

children verbally or physically.

       In sum, mother admittedly had a serious problem with alcohol that she had

not fully addressed. The current dependency was initiated because she was

recently seen numerous times appearing to be on drugs and/or alcohol. Her

alcoholism has clearly affected her health (e.g., alcoholic cirrhosis of the liver) to

the point where she has been hospitalized for liver failure, and she needs a liver

transplant. Despite her serious alcohol-related medical conditions and issues,

mother has never sought any type of substance abuse treatment on her own. Her

family has indicated that the only way she will seek treatment is if she is forced to

do so. Moreover, mother was limited in her ability to care for her children, as

shown by the fact that she always had to have another adult present to supervise

her and the children. Viewing the evidence in the light most favorable to the

juvenile court’s order, as we must, we conclude that there was substantial evidence

to support the court’s jurisdiction over the children. (Basilio T., supra, 4

Cal.App.4th at p. 168.)

       Mother claims that the issues raised in this case were based on speculative

concerns. She argues there was no evidence that her past alcohol consumption had

caused the children to suffer serious physical harm or that it created a risk of harm

in the future. In support of her argument she cites such cases as In re David M.


                                          13
(2005) 134 Cal.App.4th 822 (David M.) and In re Destiny S. (2012) 210

Cal.App.4th 999 (Destiny S.), but these cases are distinguishable. In David M., the

court reversed the trial court’s jurisdictional findings under section 300,

subdivision (b), concluding that the record lacked any evidence that the mother’s

substance abuse problem was tied to any actual harm or a risk of substantial harm

to the children.3 (David M., at p. 829.) The David M. court noted the appellate

record only showed that mother had a substance abuse problem with marijuana in

a “limited respect.” (Id. at p. 830.) The evidence showed that the mother used

marijuana “off and on” over 10 years before the children were detained. (Id. at

p. 826.) She tested positive for marijuana metabolites when she was pregnant with

her youngest child, A. (Ibid.) The social worker “never spoke to anyone who had

seen mother use drugs during her pregnancy with A., or had seen her in possession

of drugs or drug paraphernalia.” (Id. at p. 827.) The appellate court

acknowledged the mother’s use of marijuana on at least one occasion while

pregnant with A., but noted that “A. tested negative for any drugs at birth, was

healthy at birth, and showed no signs of withdrawal from any controlled

substances.” (Id. at p. 829.) Although the court accepted as true that the mother

continued to suffer from a substance abuse problem, it concluded there was no


       3  It was also alleged that the mother in David M. had mental health issues.
However, since mother here only cites this case with regard to the mother’s
problem with substance abuse, we will also only discuss this aspect of the court’s
jurisdictional findings.

                                          14
evidence presented that this problem caused, or created a substantial risk of

causing, serious harm to the children. (Id. at p. 830.)

       Unlike David M., supra, 134 Cal.App.4th 822, the evidence in the instant

case showed that mother had an extensive problem with alcohol. (See ante.)

Mother and her family members all reported that she abused alcohol.

Furthermore, the evidence showed that her problems with alcohol seriously

affected her health and limited her ability to care for her children. (See ante.)

Mother points out that the evidence showed her children were well cared for,

healthy, and happy. However, the evidence also demonstrated that the children

were only doing well because of the support from mother’s family. While the

mother in David M. took good care of her children by herself, it was reasonable to

infer from the evidence in the instant case that mother was not able to take care of

her children by herself. Mother’s family never left the children alone in her care.

       Mother also relies upon Destiny S., supra, 210 Cal.App.4th 999. In that

case, the evidence showed that the mother was currently using methamphetamine

and marijuana. (Id. at p. 1001.) The juvenile court took jurisdiction over the

mother’s child, a preteen, finding that “she was at risk of serious physical harm

because she had often been late to class in the previous school year and her mother

was in denial as to her drug habit.” (Id. at p. 1002.) The appellate court reversed

the jurisdictional finding because the record lacked any evidence that the child was

at risk of suffering physical harm as the result of the mother’s use of illegal drugs.


                                          15
(Id. at p. 1003.) The court noted that tardiness to school in the past could not

support a finding that there was a present “substantial risk” of suffering serious

physical harm. (Ibid.)

       Unlike Destiny S., supra, 210 Cal.App.4th 999, the children here were at

much more risk than just being tardy to school. Mother’s substance abuse and

medical condition apparently impaired her ability to function as a mother. She had

no energy, could not carry her children, and had difficulty trying to change J.M.’s

diaper. She also had no apparent bond with them. Mother asserts that there was

“no evidence that [she] was currently using drugs or alcohol which further

demonstrates the lack of causation in this case.” However, the evidence indicated

that she was using drugs at the time the dependency was initiated (e.g., she slurred

her words, did not know the date, had no energy, etc.). We further note that

mother admitted she started drinking alcohol at age 13 and that she drank heavily,

especially when her brother died. While evidence of past conduct is not sufficient

by itself to support a finding that circumstances at the time of the hearing subject

the children to a risk of harm, it is probative of current conditions. (In re

Rocco M. (1991) 1 Cal.App.4th 814, 824.) Moreover, there was “‘some reason to

believe the acts may continue in the future.’ [Citations.]” (Ibid.) Mother had a

nonchalant attitude about her problem, as shown by her failure to ever participate

in a substance abuse program and her minimal attendance at AA meetings.




                                          16
       It was reasonable for the social worker to infer from the evidence that

mother was at a high risk of relapse and/or continued use.

       Thus, contrary to mother’s claim, the court’s concerns were not based on

speculation. Given the nature of mother’s medical condition, and her apparent

lack of insight into the seriousness of her substance abuse problem, it was

reasonable to infer the children were at substantial risk of serious harm to support

the court’s order that the children be declared dependents of the court. (See

Basilio T., supra, 4 Cal.App.4th at p. 169.)

        II. The Juvenile Court’s Disposition Order for Family Maintenance Was

                                       Proper

       Mother simply claims that, since there was no evidence to support the

court’s jurisdiction over the children, the court’s dispositional order should

accordingly be vacated. In light of our conclusion that there was sufficient

evidence to support the court’s jurisdiction, we reject mother’s claim.

       We further note that “[t]he court has broad discretion to determine what

would best serve and protect the child’s interest and to fashion a dispositional

order in accord with this discretion. [Citations.] We cannot reverse the court’s

determination in this regard absent a clear abuse of discretion. [Citations.]” (In re

Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The court here ordered that

the children stay in mother’s custody under a plan of family maintenance. Her

case plan included an in-home parenting program, regular attendance at AA, and


                                          17
completion of an alcohol rehabilitation program if recommended after she is

assessed. This case plan is geared toward helping mother to gain and/or maintain

sobriety and to help improve her parenting skills. We see no abuse of discretion.

                                 DISPOSITION

      The orders are affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                       RAMIREZ
                                                                              P. J.


We concur:


RICHLI
                          J.


MILLER
                          J.




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