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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MELINDA C.,
Petitioner,

v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;

ORANGE COUNTY SO CIAL SERVICES AGENCY et al.,

Real Parties in Interest. G051618 (Super. Ct. No. DP023872)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied.2 Law Office of Patricia Smeets Rossmeisl and Patricia Smeets Rossmeisl for
Petitioner. No appearance for Respondent. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, fo r Real Party in Interest Ora nge County Social Services Agency.
Law Office of Harold LaFlamme and Jess Ann Hite for the Minor.
* * *
Petitioner contends substantial evid ence does not support the juvenile
court’s orders to remove the minor from her custody and set a hearing to terminate her parental rights following the filing of a We lfare and Institutions Code section 387 supplemental pleading. (All statutory refe rences are to the Welfare and Institutions Code.) We deny the petition.
I
FACTS The minor, A.C., now three years old, was born with a positive toxicology screen for amphetamine and methamptheta mine. The Los Angeles Superior Court declared A.C. a dependent child of the juvenile court. She was put under the care of the Department of Children and Family Services, placed in a licensed foster home at first and
later in the home of a maternal aunt. The minor’s mother Melinda C., the petitioner here, argues the juvenile
court lacked substantial eviden ce the minor would be at risk if returned to her. The minor’s father, Adrian R., has a history of substance abuse and as of June 2012 “is a current abuser of methamphetamine, marijuan a, alcohol and pain medication.” Both parents have long criminal histories. A dependency petition filed on behalf of the minor’s half sibling M.L. was sustained in 2009 because petitioner “created an endangering home environment for the3 child in that excessive pornographic materi als, including videos and magazines belonging to the maternal grandfather, we re found in the child’s home . . . .” Petitioner “has an unresolved history of s ubstance abuse and is an abuser of methamphetamine . . . .”
Petitioner and M.L.’s father Marc L. have a history of “domes tic violence in the child’s presence . . . .” After family reunification in the case involving M.L. was terminated in 2011, the juvenile court ordered a guardians hip and permanent placement services for
M.L. With regard to petitioner and the mino r, the juvenile court ordered family reunification services for petitioner. No re unification services were ordered for the
father. On June 3, 2013, the Los Angeles j uvenile court ordered the minor placed with petitioner. Shortly thereafter, when th e minor was 13 months old, petitioner moved
into the home of the relative caregiver and the minor in Ora nge County, and the case was transferred to Orange County . On June 25, 2013, the minor was declared a dependent child of Orange County juvenile court.
A few weeks after the minor’s second birthday, the mother missed some drug tests. Shortly thereafter, she tested positive for methamphetamine. The mother
admitted to a social worker she used methamphetamine. Th en on August 19, 2014, “the
mother submitted a diluted test .” On July 3, 2014, a pr otective custody warrant was issued by the juvenile court to remove th e minor from the custody of petitioner. The
social worker was also concer ned the child had been taken by petitioner and the maternal aunt to the home of her maternal grandfather, the man who endangered the welfare of the minor’s half sibling.
Petitioner was sent to a new residen tial treatment program. The therapist reported “the mother refrained from answering questions about the past” and the therapist expressed if there were no improvements, petiti oner would have to m ove on to a different therapist. With regard to petitioner’s visitati ons with the minor, the caregiver stated to a4 social worker: “They’re going alright. Melinda plays with her, but if [A.C.] cries, I’ll
have to tell her to comfort her. She won’ t do it on her own.” Petitioner claimed she was
“too tired” to comfort the minor. In August 2014, the social worker reported: “[T]he prognosis for this case is poor. It appears ap propriate for the child, [A.C.], to remain in out-of-home care. It is respectfully reco mmended that the Court continue dependency, with no Family Reunification services offered to the ch ild’s mother . . . .” Petitioner was sent to a new therapis t who reported petiti oner’s insight was limited. Later, the therapist st ated about the petitioner: “O n the surface, everything is there. She’s on time. She talks. It might not be possible for her to connect the dots on a deeper level . . . I feel she means well. We just aren’t getting there.” On July 8, 2014, a supplemental petition pursuant to section 387 was filed. Some of the allegations in the supplemental petition, as interlin eated by the juvenile court, state: “On June 21, 2014, the mother, Melinda [C.], tested positive for methamphetamine. On July 3, 2014, the mother, Melinda [C .], initially reported she is still taking Oxycodone from a surgery that sh e had on May 13, 2014, and believed that was the cause of her positive test for me thamphetamine. The mother’s prescription medication would not cause a positive result fo r methamphetamine. In the evening of July 3, 2014, the mo ther admitted she used methampheta mine on one occasion, and that she missed her drug test that day. [¶] The mother has missed the fo llowing drug tests: January 31, 2014; February 22, 2014 (due to being out of town); February 28, 2014; May 13, 2014 (due to having surgery for gallstone s); June 3, 2014; and June 24, 2014.” On March 5, 2015, the juvenile court found the allegations in the supplemental petition to be true by a pr eponderance of eviden ce “bringing the child within the provisions of section(s) 387 of the W&I Code.” The juvenile court expressed concern about petitioner’s “series of missed test s.” The court also commented: “One of
the concerns that the court had in listening to testimony wa s a certain amorphous or a fuzziness regarding mother’s present living situ ation.” Further, the court found that both5 petitioner and the maternal aunt lacked credibility , particularly with re gard to going to the maternal grandfather’s house. The court found the time for reunification services had lapsed. The juvenile court found by clear and convincing ev idence that section 361, subdivision (c)(1) applies. A hearing pursuant to section 366.26 is ca lendared for July 6,
2015.
II
DISCUSSION
Petitioner contends she “had a one-time relapse after almost two and a half years of sobriety. Adoption should not be th e punishment for a relapse especially when mother immediately re-enrolled in services and maintained an extended period of sobriety at the time of the hearing.” We review the court’s jurisdictional and dispositional findi ngs in a section 387 hearing for substantial evidence. ( In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) And we also review a juvenile court’s de cision to remove a child from a relative caretaker under the substantial evidence test. ( In re H.G. (2006) 146 Cal.A pp.4th 1, 12.) “The burden is on the party or parties challenging the findings and orders of the trial
court to show there is no evidence of a substa ntial nature to support the finding or order. [Citation.]” ( Id. at p. 13.) In the jurisdictional phase of a secti on 387 proceeding, the court determines whether the factual allegations of the supp lemental petition are tr ue and whether the previous disposition has been ineffective in pr otecting the child. (§ 387, subd. (b); Cal. Rules of Court, rule 5.565(e)(1).) If the cour t finds the allegations are true, it conducts a dispositional hearing to determine whether rem oving custody is appropriate. (Cal. Rules of Court, rule 5.565(e)(2).) A section 387 petition need not allege any new jurisdictional facts, or urge different or additional ground s for dependency because a basis for juvenile court jurisdiction already exists. ( In re John V. (1992) 5 Cal.Ap p.4th 1201, 1211; In re
Joel H. (1993) 19 Cal.App.4th 1185.) The only fact necessary to modify a previous6 placement is that the previous disposition has not been effec tive in protecting the child. ( Id. at p.1200; § 387, subd. (b).) “When a juvenile court sustains a su pplemental petition pursuant to section 387, the case does not return to ‘“square on e”’ with regard to reunification efforts. [Citations.]” ( Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166.) “If a dependent child was returned to the custody of a parent or guardian at the 12-month
review or the 18-month review or at an in terim review between 12 and 18 months and a 387 petition is sustained and th e child removed once again, th e court must set a hearing
under section 366. 26 unless the court finds there is a substantial probability of return within the next 6 months or, if more than 12 months had expired at the time of the prior return, within whatever tim e remains before the expira tion of the maximum 18-month period.” (Cal. Rules of Court, rule 5.565(f).) Section 387 provides that a supplement al petition seeking to remove a child from the physical custody of a relative may be filed based upon a statement of facts showing that the previous di sposition has not “been effec tive in the rehabilitation or protection of the child.” (§ 387, subd. (b).) A section 387 hearing is bifurcated into “(1) an adjudicatory hearing on the merits of the allegations in the petition and (2) a disposition hearing on the need for the removal of the [children] from [their] current level of placement.” ( In re Javier G. (2006) 137 Cal.App.4th 453, 460.) “A dependent child shall not be take n from the physical custody of his or her parents or guardians with whom the child resides at the time th e petition was initiated, unless the juvenile court finds clear and c onvincing evidence of any of the following circumstances . . . : [¶] (1) There is or wo uld be a substantial danger to the physical health, safety, protection, or physical or em otional well-being of the minor if the minor were returned home, and there are no reas onable means by which the minor’s physical health can be protected w ithout removing the minor from the minor’s parent’s or guardian’s custody.” (§ 361, subd. (c)(1).)7 In Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, cited by petitioner, the basis for the juvenile court’ s finding of detriment to a child was the mother’s missed, diluted and positive drug tests. ( Id. at p. 1346.) But in that case, “no one offered testimony linking Mother’s mari juana and alcohol use to her parenting judgment or skills.” ( Ibid. ) Here, circumstances are quite different. Petitioner’s methamphetamine use and the risks she posed to the minor were the principal reasons the court exercised its jurisdiction over th e minor shortly after her birth.
Petitioner also cites In re David M. (2005) 134 Cal.App. 4th 822 to support her position. In that case, the court exercise d its jurisdiction over two children in order to ensure their safety and well-being after th eir mother tested po sitive for marijuana
metabolites at the time of the younger child’s birth. ( Id. at p. 825.) Despite mother’s use of marijuana during pregnancy, the baby te sted negative for any drugs at birth. ( Ibid .)
Of course the situation in th e instant case is quite different. Here, both petitioner and the minor had positive toxicology screens when the minor was born. Petitioner admitted using methamphetamine 10 hours before labo r began, explaining she was well aware of the danger she posed to her ba by, but that she was “tired of being tired.” Also, petitioner had already lost custody of her first child pa rtially due to her use of methamphetamine. Just after the minor turned two year s old, following significant services, programs and therapy provided to petitioner, she returned to usi ng methamphetamine.
From the court’s statements that petitioner’s “unr esolved issue of substance abuse is significant,” and “the child cannot be safely returned to the home,” we assume it became obvious to the juvenile court that petitioner wa s still willing to risk the minor’s safety and health. Further, the court had therapists’ re ports that petitioner had limited insight and
was unable to “connect the dots.” Petitioner began using me thamphetamine when she was 18 years old, and she is now almost 39 years old. We can ha rdly question the juveni le court’s apparent determination petitioner is not committed to stop her use of methamphetamine and the8 court’s statement the minor cannot be safe with petitioner. Nor can we question the
court’s concern about the maternal aunt and petitioner taking the minor to the home of the maternal grandfather who presented dange r to the minor’s older sibling and that placement with them was not sufficient to pr otect the minor. Under the circumstances we find in this record, we conclude the juvenile court’s findings and or ders are supported by
substantial evidence.
III
DISPOSITION The petition is denied.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.