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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 SOCIAL 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, for Real Party in Interest Orange County Social Services 

Agency. 

 Law Office of Harold LaFlamme and Jess Ann Hite for the Minor. 

* * * 

 Petitioner contends substantial evidence 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 Welfare and Institutions Code section 387 

supplemental pleading. (All statutory references 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 methampthetamine. 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 evidence 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, marijuana, 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 the 
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child in that excessive pornographic materials, including videos and magazines belonging 

to the maternal grandfather, were found in the child’s home. . . .” Petitioner “has an 

unresolved history of substance abuse and is an abuser of methamphetamine . . . .” 

Petitioner and M.L.’s father Marc L. have a history of “domestic violence in the child’s 

presence . . . .” After family reunification in the case involving M.L. was terminated in 

2011, the juvenile court ordered a guardianship and permanent placement services for 

M.L. 

 With regard to petitioner and the minor, the juvenile court ordered family 

reunification services for petitioner. No reunification services were ordered for the 

father. 

 On June 3, 2013, the Los Angeles juvenile court ordered the minor placed 

with petitioner. Shortly thereafter, when the minor was 13 months old, petitioner moved 

into the home of the relative caregiver and the minor in Orange 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. Then on August 19, 2014, “the 

mother submitted a diluted test.” On July 3, 2014, a protective custody warrant was 

issued by the juvenile court to remove the minor from the custody of petitioner. The 

social worker was also concerned 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 residential treatment program. The therapist 

reported “the mother refrained from answering questions about the past” and the therapist 

expressed if there were no improvements, petitioner would have to move on to a different 

therapist. With regard to petitioner’s visitations with the minor, the caregiver stated to a 
4

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 appropriate for the child, [A.C.], to remain in 

out-of-home care. It is respectfully recommended that the Court continue dependency, 

with no Family Reunification services offered to the child’s mother . . . .” 

 Petitioner was sent to a new therapist who reported petitioner’s insight was 

limited. Later, the therapist stated about the petitioner: “On 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 interlineated 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 she had on May 13, 2014, and believed that 

was the cause of her positive test for methamphetamine. The mother’s prescription 

medication would not cause a positive result for methamphetamine. In the evening of 

July 3, 2014, the mother admitted she used methamphetamine on one occasion, and that 

she missed her drug test that day. [¶] The mother has missed the following 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 gallstones); 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 preponderance of evidence “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 tests.” The court also commented: “One of 

the concerns that the court had in listening to testimony was a certain amorphous or a 

fuzziness regarding mother’s present living situation.” Further, the court found that both 
5

petitioner and the maternal aunt lacked credibility, particularly with regard 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 evidence that section 361, 

subdivision (c)(1) applies. A hearing pursuant to section 366.26 is calendared 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 the 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 findings 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 decision to remove a child from a relative 

caretaker under the substantial evidence test. (In re H.G. (2006) 146 Cal.App.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 substantial nature to support the finding or order. 

[Citation.]” (Id. at p. 13.) 

 In the jurisdictional phase of a section 387 proceeding, the court determines 

whether the factual allegations of the supplemental petition are true and whether the 

previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); Cal. 

Rules of Court, rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a 

dispositional hearing to determine whether removing 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 grounds for dependency because a basis for juvenile 

court jurisdiction already exists. (In re John V. (1992) 5 Cal.App.4th 1201, 1211; In re 

Joel H. (1993) 19 Cal.App.4th 1185.) The only fact necessary to modify a previous 
6

placement is that the previous disposition has not been effective in protecting the child. 

(Id. at p.1200; § 387, subd. (b).) 

 “When a juvenile court sustains a supplemental petition pursuant to section 

387, the case does not return to ‘“square one”’ 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 interim review between 12 and 18 months and a 

387 petition is sustained and the child removed once again, the 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 time remains before the expiration of the maximum 18-month 

period.” (Cal. Rules of Court, rule 5.565(f).) 

 Section 387 provides that a supplemental 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 disposition has not “been effective 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 taken from the physical custody of his or 

her parents or guardians with whom the child resides at the time the petition was initiated, 

unless the juvenile court finds clear and convincing evidence of any of the following 

circumstances . . . : [¶] (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 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 marijuana 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 the 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 exercised its jurisdiction over two children in order to 

ensure their safety and well-being after their mother tested positive 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 tested negative for any drugs at birth. (Ibid.) 

Of course the situation in the 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 labor began, explaining she was well aware of 

the danger she posed to her baby, but that she was “tired of being tired.” Also, petitioner 

had already lost custody of her first child partially due to her use of methamphetamine. 

 Just after the minor turned two years old, following significant services, 

programs and therapy provided to petitioner, she returned to using methamphetamine. 

From the court’s statements that petitioner’s “unresolved 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 was still willing to risk the minor’s safety and 

health. Further, the court had therapists’ reports that petitioner had limited insight and 

was unable to “connect the dots.” 

 Petitioner began using methamphetamine when she was 18 years old, and 

she is now almost 39 years old. We can hardly question the juvenile court’s apparent 

determination petitioner is not committed to stop her use of methamphetamine and the 
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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 danger to the minor’s older sibling and that 

placement with them was not sufficient to protect the minor. Under the circumstances we 

find in this record, we conclude the juvenile court’s findings and orders are supported by 

substantial evidence. 

III 

DISPOSITION 

 The petition is denied. 

 

 MOORE, J. 

WE CONCUR: 

O’LEARY, P. J. 

THOMPSON, J.