Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Los Angeles County Super. Ct. No. CK75951 Stephen Marpet, Commissioner.
Kennedy Law Offices and Michael L. Kennedy, for Petitioner A.V.
Office of the County Counsel, Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest.
MOSK, Acting P. J.
INTRODUCTION
Petitioner, A.V., as mother, petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. Mother seeks review of orders issued by the juvenile court dated February 16, 2011, which sustained the Department of Children and Family Services’ (DCFS) petition under Welfare & Institutions Code section 387 and removed petitioner’s two 4-year old daughters from her home pursuant to section 361(c), terminated family reunification services to petitioner under section 366.22, and set a hearing for June 15, 2011 under section 366.26 for terminating petitioner’s parental rights.
All statutory references will be to the Welfare & Institutions Code unless otherwise stated.
In denying the petition we hold that substantial evidence supports the juvenile court’s findings and order sustaining the section 387 petition and removing the children from mother’s custody, and the juvenile court did not abuse its discretion denying mother additional reunification services and setting a section 366.26 hearing for terminating her parental rights.
FACTS AND PROCEDURAL HISTORY
On January 16, 2009, the DCFS filed a juvenile dependency petition under section 300, subd. (b), alleging, inter alia, that “mother [of children K.V. and N.V.] is a current abuser of alcohol which renders the mother incapable of providing regular care for the children. [This] endangers the children’s physical and emotional health and safety and places the children at risk of physical and emotional harm and damage.”
On January 13, 2009, mother’s 4-year old daughters K.V. and N.V. were removed from mother’s custody based upon a referral alleging general neglect, ongoing alcohol abuse, and caregiver absence, incapacity and exposing children to a detrimental environment.
There was evidence of alcohol abuse. There was also evidence that mother would leave the children unsupervised or in the care of their teenage paternal uncle, while she worked nights as a stripper. The children’s aunt saw the uncle in the garage drinking beer, with drug paraphernalia. The children’s aunt stated mother drank alcohol from the time she would awaken and drive intoxicated with the children in the car. Mother said she had to drink alcohol to perform her job as a stripper, but denied drinking was a problem. The mother’s garage was filled with trash and bottles of alcohol. The mother would lock herself in her bedroom with her boyfriend and sleep. The children were dirty and hungry.
On December 19, 2008, mother tested positive for hydrocodone (vicodin) for which she had a prescription. In 2003, the mother was arrested for having a methamphetamine lab in her maternal grandmother’s home in Orange County, in violation of Health & Safety Code section 11379.6. The mother is on probation with the Orange County Probation Office for the 2003 arrest.
Mother’s husband and the children’s father, M.V., was a member of a motorcycle gang, was arrested in September 2008 for possession of a controlled substance for sale, and is incarcerated in the California State Prison system. Father’s expected release date is February 5, 2015.
On April 15, 2009, mother entered into a mediation agreement that provided for the dependency petition to be amended and sustained as follows: “The children’s mother [A.V.] is a current user of alcohol to such a degree as to periodically interfere with her ability to provide appropriate care and supervision for the children. Mother’s alcohol use places the children at risk of harm.”
Mother agreed to the disposition case plan, which provided for: (1) a substance abuse program and after care program including Alcoholic’s Anonymous (AA) with a sponsor, (2) random drug and alcohol testing, (3) parenting classes, (4) individual counseling dealing with case issues, (5) DCFS to provide family reunification services, (6) the children to be suitably placed, and (7) mother to have monitored visits no less than twice a week. On May 5, 2009, the juvenile court adopted the mediation agreement, sustained the dependency petition, declared the children dependents of the court, and ordered reunification services, setting a progress hearing for August 5, 2009.
On August 5, 2009, DCFS reported that mother was enrolled in Twin Palms Recovery Center, where she participated in a parenting course and individual counseling. Mother was visiting her daughters consistently, and the visits were going well. Mother’s drug testing had resulted in 11 negative drug tests, 11 positive tests for opiates and hydrocodone, and one test positive for hydocodone only. On January 5, 2010, the Twin Palms Program Coordinator reported mother had attended 23 counseling sessions, 25 recovery discussion group sessions and 22 self help group sessions and needed one group session and four self help meetings to complete the program.
On January 12, 2010, the juvenile court found mother in compliance with the court-ordered case plan, and ordered the children placed in the home of the mother, under DCFS supervision with family maintenance services. On April 13, 2010, DCFS reported concern for the children’s well being because mother was not complying with the court’s orders or following up with the safety plan she agreed to on January 6, 2010. The plan provided that mother would participate in family preservation, individual counseling, Alcoholic’s Anonymous (AA) and random drug testing. Mother failed to attend the progress hearing on April 13, 2010 and to take scheduled drug tests on three occasions during January to March, 2010. On April 20, 2010, mother agreed that the children would remain with her and that she would contact the DPSS Liaison about her lack of compliance with her safety plan.
Family preservation services were set up with an agency, but mother began cancelling appointments. On April 23, 2010, the agency terminated mother’s family preservation services. Family preservation services were subsequently provided by another agency.
On April 27, 2010, the court ordered mother to comply with the court’s orders, cooperate with family preservation services, take the children to all medical appointments, and to continue random drug testing. On July 13, 2010, the DCFS reported that mother had not completed her individual counseling or her AA sessions.
On September 14, 2010, the social worker was informed by the family preservation counselor that she had found the children unsupervised in the home. The counselor arrived for a scheduled visit at 8:50 am and found the mother and a male friend passed out in the mother’s bed. The counselor called paramedics. The counselor believed mother was under the influence of a controlled substance because she was unable to speak properly.
On September 15, 2010, the Sheriff’s department received two calls that gun shots were heard from mother’s house. The Deputy Sheriffs surrounded the house and called for the occupants to come out. Mother’s boyfriend exited the house after 20 minutes. After another 10 minutes mother’s roommate’s boyfriend exited. Both men were intoxicated, and one had two live 357 bullets in his pocket. Both were active members of the Puente 13 gang. Mother and the children were in the house. The deputies entered and found a loaded 12 gauge shotgun on the floor. The mother and children were in another bedroom. A search uncovered a bag with eight tattoo machines and a loaded 357 revolver with one expended round. The tattoo machines and revolver had been burglarized from a tattoo shop that evening.
The roommate told the deputies that she had driven the men to get laundry detergent and toilet paper, and she did not know they were going to rob anybody. She stated she drove the men to purchase the items and they told her to park in an alley behind the tattoo shop, which she did. They exited the vehicle and then returned a few minutes later and yelled “Go Go Go get the ---- out of here!” In contradiction, she also told the deputies that mother was the driver of the car. After the men returned to mother’s house from the burglary, one of other men pointed his pistol at the roommate and fired at least one round into the air.
On September 24, 2010, mother was arrested by the Orange County Probation Department, with whom she was on probation for manufacturing methamphetamine. Mother violated her probation by having guns and stolen property in her home and associating with people on probation and parole.
Mother acknowledged that the two men came to her house at about 6:30 p.m. and began drinking heavily until about 12 midnight, then left and returned with firearms, continued drinking, and shot the revolver in the backyard.
On September 24, 2010 DCFS detained the children in a foster home. On September 27, 2010, mother tested positive for opiates. On September 29, 2010, DCFS filed a supplemental petition under section 387. The petition as amended alleged, “S-1: On or about September 24, 2010, the children... mother, [A.V.] established a detrimental and endangering home environment for the children in that... firearms were found in the children’s home.... Such a detrimental and endangering home environment established for the children by the mother potentially places the children at risk; and [¶] “S-2: On September 16, 2010 the children…mother, [A.V.]... had a positive toxicology screen for opiates.... The mother’s abuse of opiates... places the children at risk.”
On September 29, 2010, the juvenile court held a hearing under section 387, and found that a prima facie case for detaining the minors under section 300, subdivision (b) was established, substantial danger existed to the physical or emotional health of the minors, and continuance in the mother’s home was contrary to the children’s welfare. The juvenile court modified the order for Home of Parent, (mother) dated January 12, 2010, and ordered that the minors be detained in shelter care. The court directed that DCFS was to look into placement of the children with either D.B. or the paternal great uncle, R.M., and set a progress hearing for October 18, 2010.
Mother denied drug use other than vicodin for back pain and xanax for anxiety, denied involvement in the burglary of the tattoo shop, and denied that she was aware of stolen property and guns were in her home. On October 18, 2010, the court modified the order for Home of Parent (mother) and placed the children with the paternal great uncle R.M.
After mother’s arrest on September 24, 2010, she was incarcerated for 45 days until she was released from jail on November 7, 2010. Mother also received an additional year of probation. The roommate wrote DCFS about mother, reporting that every night mother would “party, ” drink heavily, have different men over, and did not take care of the girls.
On January 20, 2011, the social worker informed mother she had tested positive for drugs. Mother said she had taken Adderall by prescription. DCFS reported that mother had a positive test result for ecstasy (MDMA), and the social worker was informed that Adderall would not cause a positive test for ecstasy.
On February 16, 2011, DCFS recommended that mother receive no additional reunification services and that the juvenile court set a section 366.26 hearing to terminate parental rights. At the February 16, 2011, hearing mother’s attorney requested a continuance to retest mother’s urine sample that had tested positive, which request the juvenile court denied.
The juvenile court sustained count S-1 of the section 387 petition, as amended. Mother’s attorney stated he wanted to argue about count S-1, and then asked that it be read to him. After the reading, the attorney stated he was in agreement with the S-1 language.
The court sustained count S-2 as amended. The attorney stated, “we do want to challenge that, but we will accept the language.” The court instructed the attorney he could either accept the language, in which case the court would sustain the count, or argue it. Counsel stated he would argue.
Counsel argued mother’s positive test result was caused by her use of vicodin, for which she had a prescription. DCFS stated that it was not disputing vicodin use would cause a positive for opiates, but said that at a hearing on August 5, 2009, the court told mother she needed to stop using vicodin. DCFS said the court also lectured mother on April 27, 2010, about her need to test “clean.” DCFS argued the initial problem was alcohol abuse, then a prescription for adderall, and then a positive test for ecstasy. DCFS said mother had an ongoing substance abuse problem and did not have a prescription for vicodin in September 2010. Mother’s attorney argued mother had proof she had a prescription for vicodin and that vicodin and adderall were the only two drugs she had taken. Mother’s attorney contended mother was told she could take prescription drugs.
At the hearing, the juvenile court said it remembered telling mother to stop taking vicodin, and that it was normal to prohibit mothers from taking medication. The juvenile court noted there appeared to be a substantial danger to the children, mother had not complied with the case plan, and the recommendation was to terminate reunification services. The juvenile court reminded Mother’s attorney that mother was arrested, violated probation, and spent time in jail. Mother had not completed everything in her case plan, and there was a risk to returning the children to her. The juvenile court stated it was sustaining the petition as amended and proceeded with setting the section 366.22 hearing. The section 366.26 hearing for a permanent plan for the children was scheduled for June 15, 2011
DISCUSSION
Mother asserts the gun incident was isolated, the drugs she takes are prescribed, and the children have not been placed in any danger. She says the tests were inaccurate and the juvenile court abused its discretion by denying a request for continuance for another test and by considering a questionable evidence of tests.
I. Mother’s Stipulation to Count S-1 Compels the Affirmance of the Order Under Section 387
The ultimate jurisdictional fact necessary to modify a previous placement with a parent or relative is that the previous disposition has not been effective in the protection of the minor. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) Counsel expressed agreement with the language of the allegations of count A-1. Counsel therefore agreed that the prior order for home-of-parent was no longer effective for the protection of the children because the firearm incident put the children at risk. Thus, there is no basis for challenging the juvenile court’s removal of the children from the placement, denying her additional services, and setting the section 366.26 hearing.
II. Substantial Evidence Supports the Juvenile Court’s Findings
In any event, substantial evidence supports the juvenile court’s finding. The court must view the evidence in the light most favorable to the trial court’s order, drawing every reasonable inference and resolving all conflicts in support of the judgment.” (In re Marina S. (2005) 132 Cal.App.4th 158, 165.) If any substantial evidence, contradicted or uncontradicted, supports the judgment, no matter how slight, the judgment must be affirmed. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631)
Count S-1 provides that mother established a detrimental and endangering home environment for the children because of the firearms in the home. Mother contends the issue is whether the firearms were hers and whether they placed the children in danger.
It is not necessary to prove the firearms belonged to the mother. The record shows the firearms were stolen from a tattoo shop by gang members mother allowed to stay in her home and drink alcohol, and the mother was aware of the burglary and the stolen firearms and contraband brought to her home. Either the roommate or mother drove the men to the tattoo shop and waited for them to burglarize it. One of the men was mother’s boyfriend. The mother knew or was charged with knowledge that the men stole the shot gun and the revolver, along with the eight tattoo machines, and brought the stolen goods back to her home. There is no explanation in the record how the shotgun or revolver could have been concealed from the mother’s observation, especially once the men started discharging the revolver in the backyard. Mother had responsibility for the weapons being in her home, and whether they were legally hers is irrelevant.
Mother admitted the men arrived at her house at 6:30 pm and they began to drink alcohol heavily. Mother stated that when she heard the gunshots she told everyone to leave and went to bed and to sleep, with her children in the house. Mother allowed two heavily intoxicated gang members in her house with loaded firearms who had just burglarized a local business and discharged a firearm in her backyard. Any reasonable parent would have never allowed the gang members to drink liquor heavily at her home and burglarize a store for weapons and contraband, and would have taken the children from the home and called law enforcement. But all mother purportedly did was tell the gang members to leave after they shot off the weapons, and went to sleep, while the men were still in the home with their alcohol and guns. Mother claims she was unaware what happened after she went to sleep. It is not credible that mother slept through the deputy sheriffs’ announcement of their presence by loudspeaker, and demands that occupants come out with their hands up.
The loaded shot gun was located on the floor of roommate’s bedroom, which was accessible to the children. The most obvious risk was that weapons were in the hands of two intoxicated gang members who had just burglarized a business and had discharged a revolver in a populated area. The presence of the weapons was a violation of mother’s probation and resulted in her 45 day jail sentence and her resulting inability to care for her children during her incarceration. Substantial evidence supports the juvenile court’s finding that the order placing the children in mother’s custody was no longer effective for their protection.
Likewise, count S-2 is supported by substantial evidence. There is evidence that mother initially tested positive for hydrocodone on December 19, 2008. She had a prescription for vicodin. There was additional evidence of drug use. From February 4, 2009 to July 8, 2009, mother tested positive for opiates and hydrocodone 11 times and once for hydrocodone only. During this time mother missed three drug tests.
On September 15, 2010, mother tested positive for opiates (test results were received September 27) It was not until November 1, 2010 that mother claimed her positive test for opiates was because she was taking vicodine and xanax. There is no evidence in the record that mother produced any verification she was prescribed either medication during this period.
Moreover, the court had previously ordered mother to stop taking vicodin. In addition to vicodin, mother was taking xanax and adderall, and tested positive for ecstasy. There is evidence that mother was also using alcohol to excess and mixing it with xanax. Substance abuse was the problem that initially resulted in the children being removed from mothers’ custody. After two years of child welfare services, mother’s substance abuse problem persisted. Mother’s ongoing problem with substance abuse supported the juvenile court’s finding that the order placing the children with her was no longer effective for their protection, and supported the removal of the children from her custody. There is substantial evidence supporting the juvenile court’s findings.
III. The Orders Were Supported by Substantial Evidence and Were not an Abuse of Discretion
After the juvenile court found the factual allegations of the supplemental section 387 petition true and the prior order placing the children with the mother was no longer effective, the juvenile court was required to conduct a disposition hearing under the procedures of the original hearing. (Rule 5.565(e); In re Jonique W., supra, 26 Cal.App.4th, at p. 691)
A. The Removal Order
Section 361, subdivision (c) provides that: “ a dependent child may not be taken from the physical custody of his or her parents... with whom the child resided at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence: [¶] (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... physical custody.” Removal from the physical custody of parents may be based on providing a home environment free from the negative effects of substance abuse. (In re Heather A. (1996) 52 Cal.App.4th 183, 193;In re E.B. (2010) 184 Cal.App.4th 568, 575.)
A juvenile court order removing a child from his parents’ custody is reviewed for substantial evidence (In re Heather A., supra, 52 Cal.App.4th at p. 193.) There is evidence that mother’s substance abuse problem persisted and rendered her incapable of providing appropriate care for the children. There is also evidence that the mother is also incapable or unwilling to provide the children with a safe environment. The initial problem that required the children to be removed from mother’s custody was substance abuse. When the children were initially detained mother was on probation for manufacturing methamphetamine.
There is evidence that mother continued to associate with gang members, and married the children’s father, who was a member of a gang. Evidence shows that when the children were originally detained, mother worked as a stripper and “partied” at night, slept most of the day, and drank alcohol heavily. For at least a two and one-half month period the children’s teenage uncle cared for them, and the children were observed to be dirty and hungry. Although mother modified her behavior enough to have the children returned to her custody after 12 months of reunification services, there is evidence that mother’s changes did not last.
In April 2010, DCFS became concerned for the children’s well-being, because mother was not complying with the court’s orders or following up with the safety plan of January 6, 2010. In June 2010, the roommate moved into mother’s home. Mother began a relationship with an active member in the Puente 13 gang. On September 14, 2010, the Family Preservation counsel arrived at mother’s home at 8:50 a.m. for a scheduled visit, found the children in the home unattended and mother and her male friend passed out in mother’s bed. Mother was under the influence of a controlled substance and was unable to speak properly. Mother provided a diluted urine sample that voided the drug test.
As noted, there was evidence that on the evening of that same day, mother allowed M.C. and his brother to consume alcohol in her home from 6:30 p.m. to midnight; either the roommate or mother then drove the two men to a tattoo shop, which the men burglarized; the men returned to mother’s home with the stolen items including a loaded 12 gauge shotgun and a loaded 357 caliber pistol, where the men resumed drinking alcohol; one of the men threatened the roommate with a pistol, which he shot in the air several times; and as a result of these probation violations, mother was arrested for violating her probation and sentenced to 45 days in jail and an extra year of probation.
There is evidence that during 2010 mother drank alcohol heavily and had different men over nearly every night. She was also taking vicodin, adderall, xanax and ecstasy. After receiving two years of child welfare services, mother still had not addressed the issues that required DCFS and juvenile court intervention. There is evidence that mother had not completed individual counseling, her therapy was terminated because of absences, she was no longer attending AA., and she was missing drug tests and providing diluted urine samples. The evidence of substantial danger to the children if returned to mother’s custody supported the juvenile court’s order removing the children from mother’s custody.
B. Reunification Services and Section 366.26 Hearing
Mother had received 24 months of child welfare services, services she did not challenge. When services have exceeded 18 months, the juvenile court is required to set a section 366.26 hearing (§ 366.22, subd. (a)). Based on the facts, the juvenile court did not abuse its discretion in not ordering additional reunification services (see Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166) and in setting the section 366.26 hearing.
DISPOSITION
The petition for writ of mandate is denied. This opinion shall become final immediately upon filing.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.