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Nov 13, 2013
COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
In re BENJAMIN S., a Person Coming Under the Juvenile Court Law
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
HEIDI S., Defendant and Appellant
Heidi S. challenges an order declaring her son a dependent of the juvenile court, arguing that “the evidence did not establish that [she] was a substance abuser, nor that she could not protect or provide for her son.” She also challenges the disposition order because it lacks findings that the boy’s health and safety cannot be assured unless he is removed from her custody. Substantial evidence supports dependency jurisdiction, and the court’s failure to state findings during the disposition hearing is harmless error. We affirm.
Heidi S. (Mother) is the mother of Benjamin S., born in 2011. In November 2012, the police were summoned to a public park by concerned citizens who saw an intoxicated woman with a baby. The police were met by eyewitnesses who stated that they saw Mother drink beer and nearly drop the child as she stumbled around the park. Mother staggered over to speak to the police: her speech was slurred, she smelled of alcohol, her eyes were bloodshot, she swayed, and she could not find her belongings. Mother displayed two prescription drug containers and said that she drove her son to the park. The police determined that Mother was unable to take care of Benjamin or herself. She was arrested for child endangerment and Benjamin was taken into protective custody.
Following her arrest, Mother registered a blood-alcohol level of .11 and .12 in two tests. After being Mirandized, Mother said she drank several beers and took two “Norcos” (a prescription narcotic) within a two-hour period.
An emergency referral was made to the Department of Children and Family Services (DCFS). A social worker determined that Mother and David H. (Father) share joint legal and physical custody of Benjamin under a family law order. Father met Mother only a month before she became pregnant. They are not in a relationship. He does not know whether Mother abuses alcohol or drugs, but described her as “erratic,” sometimes friendly and sometimes hostile. She recently sent him “hundreds of hostile and threatening text messages” in two days. He has concerns about Mother’s mental health due to her erratic behavior. Father is willing and able to care for the child, and he and Mother have a nanny for Benjamin. DCFS released Benjamin to Father’s custody on November 5, 2012. The officers who arrested Mother said that she admitted to driving under the influence and taking the painkiller Norco; they found Norco and Ambien (sleeping pills) in Mother’s purse.
Mother was interviewed in jail. She did not remember what occurred when she was arrested, saying, “I just remember being very confused and out of it.” She had a few beers at the park, and claimed that her friend “Tim” drove her there. She felt disoriented when the officers came to talk to her, believing that an antipsychotic medication she had taken the night before (Seroquel) was still having an effect on her 15 hours later. She uses Norco for pain relief. Mother understood that she made a terrible mistake by mixing alcohol with medication. She was suffering from postpartum depression, for which her physician prescribed Zoloft and Wellbutrin. Mother “feels safe and comfortable with the child being with the father” although she and the baby are bonded and she would like him to come home with her. She denied abusing drugs or alcohol, and promised to cooperate with DCFS to ensure Benjamin’s safety.
Benjamin’s nanny told the social worker that she has worked with the family for a year and has never seen any indication that Mother abuses alcohol, describing both parents as responsible and caring. One day after her initial interview with the social worker, Mother called to say that she had posted bail. She had very little memory of what she said to the social worker the day before. Mother now stated that she drove herself to the park with Benjamin: when they arrived, she developed a migraine, reached in her purse for Norco and by accident took Ambien, which caused confusion and amnesia. Mother does clinical research at UCLA. She admitted sending threatening text messages and saying terrible things to Father because she was angry.
There is more than sufficient evidence to support a finding that returning Benjamin to Mother’s custody would pose a substantial risk of harm to the child. As described in the preceding section, Mother drove the child while intoxicated, drunkenly staggered around a park with a beer in hand, nearly dropping the child, causing members of the public to alert authorities that Benjamin was at risk of harm. Mother apparently intended to drive Benjamin home in a state of near blackout. She mixed alcohol with opiates and/or sleeping pills, yet denies that she misuses intoxicants. Her consumption of alcohol in the middle of the day, in public, while driving and supervising an infant, disproves her claim that she is not a drinker. Mother’s statement to the social worker that she did not take alcohol to the park on the day of her arrest defies belief, since Mother tested above the legal blood-alcohol level for driving.
As the juvenile court firmly advised Mother, she cannot take custody of Benjamin without proof that she is free of alcohol and other substances that impair her ability to provide a safe environment for a toddler. The juvenile court’s failure to make formal findings is harmless error, because a finding that a danger to Benjamin exists is implicit in everything the court said to Mother during the hearing and is supported by substantial evidence.