In re Priscilla G.

Filed 11/30/05 In re Priscilla G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re PRISCILLA G. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. ANGELA C., Defendant and Appellant.	E037379 (Super.Ct.No. J108633) O P I N I O N

APPEAL from the Superior Court of Riverside County. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part and reversed in part with directions.

Richard Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

William C. Katzenstein, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor Priscilla G.

Stephen S. Buckley, under appointment by the Court of Appeal, for Minor Mercedes C.

INTRODUCTION

Angela C. (mother) appeals from orders made by the juvenile court at jurisdictional and dispositional hearings concerning her two children, Priscilla G. and Mercedes C. Mother contends: (1) the evidence was insufficient to support the court’s jurisdictional findings; (2) the evidence was insufficient to support the removal of the children from mother; and (3) minors’ counsel had an impermissible conflict of interest.^[1] We hold that there was sufficient evidence to support jurisdiction over the children, but that the evidence was insufficient to support, at the time of the dispositional hearing, their removal from mother’s custody. We reject mother’s conflict of interest argument.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

A. Background

Priscilla was born in July 1992. Her father is Peter G. (father). When Priscilla was about four years old, mother and father split up, and mother and Priscilla began living with Priscilla’s maternal grandmother (grandmother). According to father, mother then “started getting into trouble.” During the next eight or nine years, mother used heroin “off and on” and was “in and out of jail.”^[2] Most recently, she had been in prison for about five years, ending in her release in 2003.

Grandmother was Priscilla’s primary caregiver while mother was in prison. Although father has joint legal and physical custody of Priscilla pursuant to family law orders, he stated that he did not take Priscilla from the grandmother “because she was so close to her grandmother.” Father visited with Priscilla occasionally on weekends and during school vacations, and gave her clothes for school. He provides approximately $480 in child support per month.

After mother’s release from prison in 2003, mother and Priscilla lived with grandmother. Mother started using heroin again during the latter part of 2003. According to the social worker, “[s]he was around people that were using, and she made a mistake.” Approximately three months later, she learned she was pregnant with Mercedes. When grandmother learned of the mother’s heroin use, “she kicked [mother] out of the home and took care of Priscilla.” Mother enrolled in a treatment program and stopped using heroin by the end of the third month of the pregnancy. As part of her treatment, mother took methadone and received counseling. After mother enrolled in the treatment program, the grandmother allowed her to move back into her home.

In August 2004, Mercedes was born.^[3] Although she tested negative for controlled substances, she was treated at the hospital for withdrawal from methadone. The infant was given morphine “to help her through the withdrawal symptoms.”

Ten days after Mercedes was born, a social worker with DPSS met with mother. Mother told the social worker about her drug use and agreed to submit to a drug test. The test showed positive results for “opiates,” in addition to methadone. The type of opiate detected was morphine. When the social worker was questioned about this report at the jurisdictional hearing, she indicated that mother was given morphine in the hospital and that the drug “stayed in her system for a few weeks” after the birth of Mercedes.

On August 25, 2004, the social worker informed mother that she needed to enroll in the MOMS program. Mother made an appointment to enroll in the program, but failed to keep the appointment because her car broke down. She enrolled in the program within the next few days and, in the social worker’s opinion, made reasonable efforts to enroll in the program.

A nurse in the hospital caring for Mercedes expressed concern to the social worker that mother was not taking the infant’s illness seriously and that mother and grandmother were suggesting that the nurses were elevating the infant’s distress scores. Mother indicated that she was considering removing the child from the hospital because she felt that Mercedes should be given methadone, not morphine. Nurses also reported that mother would visit for only short periods of time, then leave, saying that she would return right away; mother would then either not return or “return after a very long period of time.”

The social worker spoke with mother’s drug treatment counselor on August 25, 2004. The counselor confirmed mother’s participation in the program since March 2, 2004. The counselor also faxed a letter dated March 15, 2004, to the social worker, stating that drug test results for mother indicate “sporadic use of heroin.”

While Mercedes was in the hospital, the social worker met with Priscilla, who was then in the seventh grade. Priscilla denied having knowledge of drugs or alcohol being used in the home, and stated that she felt safe at home. She “appeared to be clean, healthy, and taken care of,” and “denied any other issues or concerns.” She did report, however, that mother is often “sick” with “stomach aches” and sleeps a lot during the daytime.

On September 14, 2004, DPSS placed Mercedes and Priscilla in protective custody. The social worker placed Priscilla with father and father’s girlfriend. When Mercedes was released from the hospital on October 5, 2004, she was placed in foster care. In rejecting the grandmother for placement, the social worker stated: “[The grandmother] is either naïve to the signs and symptoms of drug use, or she is not being honest about her knowledge of [mother’s] drug history. [The grandmother] was also asked about the whereabouts of [father] and did not cooperate in providing [the social worker] with the requested information. In 1997, Priscilla was exposed to a sexual predator (who was a member of the family) while in [the grandmother’s] care. It should also be noted that after conducting a criminal background check on [the grandmother], the results were not favorable.”

B. Dependency Petition.

DPSS filed a dependency petition regarding Priscilla and Mercedes on September 16, 2004, under subdivisions (b) and (g) of Welfare and Institutions Code section 300.^[4] As to Mercedes, the petition (as amended at the jurisdictional hearing) included the following allegations: “The mother has neglected the health and safety of the infant in that while the mother was pregnant with the infant, she knowingly abused controlled substances; the mother continued to use Heroin until the end of her third month of pregnancy and the infant is currently in NICU withdrawing from methadone which necessitates the child being given Morphine; such conditions place[] this child at risk of suffering from serious physical harm” (allegation b‑1; § 300, subd. (b)); Mercedes’s father is not a member of the child’s household and has failed to make himself available to provide the child with adequate food, clothing, shelter, medical treatment, and/or protection (allegation b‑4; § 300, subd. (b)); and that Mercedes’s father’s whereabouts are unknown and he has failed to provide care and support to the child (allegation g‑1; § 300, subd. (g)).

As to both Mercedes and Priscilla, the petition alleged: “The mother has failed to protect the health and safety of her children in that she is currently abusing controlled substances and she has failed to enroll in the required drug treatment program as requested by the social worker and failed to make her appointment even after telling the social worker at least three times she intended to enroll; such actions place her children at serious risk of serious physical harm.” (Allegation b‑2; § 300, subd. (b).) This was the only allegation pleaded in the petition to support jurisdiction as to Priscilla.

Approximately six weeks after Priscilla was placed with father, and prior to the jurisdictional hearing, the social worker met with Priscilla. Priscilla reported that she wanted to go home to her grandmother and does not like staying with father. When asked why, she “shrugged her shoulders and stated that she does not know him very well.” She said father treats her well and she has her own room at his house. According to the social worker, “Priscilla appears to be having a difficult time with the recent transition. She does not want to stay with her father and appears very sad when the subject is even mentioned. She wants to return to her grandmother’s care.”

The social worker met with mother on September 28, 2004. Mother said that she has done everything she was asked to do by the social worker. She enrolled in the MOMS program, and stated that all of her drug tests are negative. The social worker reported that “mother is now very motivated to have her children back in her care. According to her substance abuse counselor, [mother] is doing very well and is testing negative at this time.” Nevertheless, the social worker reported that “it is a bit premature to consider placing the children back in her care at this time. If the children are placed prematurely, it could be setting up the mother to fail. [DPSS] will need to see continued participation in services. In addition to the mother’s heroin use, the mother has not taken responsibility for her older child who has been raised mainly by the maternal grandmother.”

C. Jurisdictional Hearing

A contested jurisdictional hearing was held on November 17, 2004. The social worker’s reports were admitted into evidence. The social worker testified that mother needs to complete her treatment program before the children can be placed with her. When asked to identify any risk of returning the children to mother, the social worker explained: “She needs to continue to benefit from her programs. She is completing it. She’s doing everything she’s supposed to, testing negative; but we need to see more feedback. They are saying, yes, she is doing well; but we want to be sure there isn’t anymore risk to the children. How do we know she’s not going to continue to go back and use until she’s completed [her programs].” She admitted, however, that she was “speculating that there may be a problem.” The social worker also expressed concern about the possibility of a relapse of drug use based upon her history of being on and off drugs, the lack of stability in mother’s life, her criminal history, and her dependency upon grandmother. Returning the children “too soon,” the social worker stated, “increases her risk of relapse.”

The following exchange took place under questioning by mother’s counsel:

“Q. Do you have any reason to believe that if the children were placed with mother, that she would not continue to test [for drugs]?

“A. No, I don’t.

“Q. So do you believe, feel that if we have updated drug testing on mother, that there’s no risk to the child of mother using controlled substance[s], going back to using controlled substances?

“A. If she continues to test.

“Q. But you have no reason to believe that she won’t?

“A. Not at this time.

“Q. Under family maintenance we can assure that, can’t we?

“A. We can.”

When asked whether “it would be safe for Priscilla to return home to her mother’s care,” the social worker answered: “I don’t believe that Priscilla is at risk. I believe her mother needs some time to continue in her programs. I do believe that Priscilla needs time to actually get to know her father and live with her father.” She clarified this response by stating that the lack of risk in returning Priscilla to mother is because of grandmother’s presence in the home. If mother was the sole caretaker, she would believe there was a risk because mother has “never cared for her on her own before. She loves her daughter. But I think trying to raise her on her own and trying to continue in her programs it could be a stressor on her as well.”

The court found true the allegation that mother knowingly used a controlled substance while pregnant, placing Mercedes at risk of serious harm. (Allegation b‑1.) The court also found true the allegations concerning Mercedes’s father’s failure to provide for the infant and his unknown whereabouts. (Allegations b‑4 & g‑1.) The court found not true the allegation that mother is currently abusing controlled substances and failed to enroll in the required drug treatment program. (Allegation b‑2.) Because the allegations that the court found true pertained only to Mercedes, the court stated: “[I]f that were it, there would be no . . . allegations or facts . . . that would permit me to detain [Priscilla] from mother. But I believe simply turning Priscilla over to her mother would place her at risk.” The court then, on its own motion, amended the petition to include an allegation under subdivision (j) of section 300, “that Priscilla’s sibling, Mercedes, has been abused or neglected as defined in subdivision (b) of Section 300 . . . and that there is a substantial risk that the child Priscilla will be abused or neglected as defined in those subdivisions.”^[5] The court found this allegation true.

The court then set a dispositional hearing for January 4, 2005, and ordered DPSS “to file an addendum regarding disposition addressing the various alternatives to include family maintenance, family reunification, [section] 361.2[, subdivision] (b)(1) and [section] 361.2[, subdivision] (b)(2) and express opinions regarding, amongst other things, the emotional well-being of the child, Priscilla.”

D. Disposition

The requested addendum report, filed December 29, 2004, states that Priscilla informed the social worker that “she just wants to go home to her mom and her grandma.” It further states that mother “continues to do well in her case plan and it appears that she can reunify with her children soon. The mother continues to test negative and she will be graduating from her substance abuse program in January and has been approved for housing. This will enable her to locate a larger home for herself and her children. She is visiting with both children unsupervised on a regular basis and there have been no problems thus far.”

Other than the December 29, 2004, addendum report, no additional evidence was presented at the dispositional hearing. Following argument by counsel, the court stated that it “does make [section] 361 findings pursuant to [section] 361[, subdivisions] (a), (c)(1), (d) and (e)(1).” The court further stated that it found that “there is a substantial danger to the physical health, safety, protection or physical or emotional well-being of the children if they were returned home and there are no reasonable means by which the children’s physical health may [be] protected without removing the children from the mother and father’s physical custody. Continuance in the home of the mother and father is contrary to the children’s welfare.”

ANALYSIS

A. Sufficiency of the Evidence to Support Jurisdictional Findings

As is relevant here, subdivision (b) of section 300 provides that a child may be adjudged a dependent of the court if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical 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, . . . by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, 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.” Whether a substantial risk of harm to the child exists must be determined as of the date of the hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) “Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) The social services agency has the burden of presenting evidence to support the juvenile court’s jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196, 210.)

“‘“In reviewing the sufficiency of the evidence, our review requires that all reasonable inferences be given to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. [Citation.]”’ [Citations.] ‘Evidence sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.]’ [Citation.] ‘[W]e . . . must uphold the trial court’s findings unless it can be said that no rational factfinder could reach the same conclusion. [Citation.]’ [Citation.]” (In re Athena P. (2002) 103 Cal.App.4th 617, 628-629.)

1. Jurisdiction as to Mercedes

There was sufficient evidence to support jurisdiction as to Mercedes. Mother admitted using heroin while pregnant with Mercedes. “[P]renatal drug use is probative of future neglect and indicates that the child is in need of the court’s protection.” (In re Monique T. (1992) 2 Cal.App.4th 1372, 1379.) The drug use resulted in Mercedes needing treatment for withdrawal from methadone involving the use of morphine. Moreover, mother had not completed her methadone treatment, and courts have recognized that “relapses are all too common for a recovering drug user.” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) Mother’s own history of relapses, unfortunately, confirms this view. The court could reasonably conclude that Mercedes had suffered, or that there is a substantial risk that she will suffer, serious physical harm or illness resulting from mother’s substance abuse. (See, e.g., In re Stephen W. (1990) 221 Cal.App.3d 629, 638-639.)

In addition, the court found true the jurisdictional allegations that Mercedes’s father failed “to provide the child with adequate food, clothing, shelter, medical treatment and/or protections,” and that his whereabouts are unknown. These jurisdictional facts are not challenged on appeal and provide an independent basis for jurisdiction over Mercedes.

2. Jurisdiction as to Priscilla

The court found that allegation b-1 (that mother used controlled substances while pregnant with Mercedes) did not apply to Priscilla. In order to find such jurisdiction, the court amended the petition to assert a sibling abuse allegation under section 300, subdivision (j). In finding this allegation true, the court stated, “Priscilla’s sibling, Mercedes, has been abused or neglected as defined in subdivision (b) of Section 300 . . . and that there is a substantial risk that the child Priscilla will be abused or neglected as defined in those subdivisions.”

Section 300, subdivision (j), provides for juvenile court jurisdiction when “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.” The subdivision has two prongs. (In re Ricardo L., supra, 109 Cal.App.4th at p. 566.) The first prong ‑‑ that a sibling has been abused or neglected, as defined in one of the specified subdivisions ‑‑ is satisfied here because, as explained above, there was sufficient evidence of such abuse or neglect as to Mercedes. We thus focus on the second prong: whether there is a substantial risk that Priscilla will be abused or neglected. Although we consider the question to be close, we hold that the evidence was sufficient to support the court’s jurisdictional finding.

Initially, we address DPSS’s reliance upon language in a social worker’s report about a conversation between the social worker and mother’s drug treatment counselor to show that mother used heroin after Mercedes was born. The report states: “On August 25, 2004 [17 days after Mercedes was born], I spoke with [mother’s] counselor, Idonia Davis. . . . She stated that [mother] attends individual counseling as needed and is randomly drug tested once a month. . . . Ms. Davis sent me a fax stating that [mother] began participating at the facility on March 2, 2004. She stated that [mother’s] random drug screen results indicate ‘sporadic use of heroin.’ (See Attachment B.)” The referenced “Attachment B” is a letter from Ms. Davis dated March 15, 2004, confirming mother’s participation in the drug treatment program since March 2, 2004. The letter states, “it is required that [mother] provide random urinalysis tests monthly. Urine results indicate sporadic use of heroin.”

DPSS interprets the social worker’s statement in the report as evidence that mother was testing positive for heroin use as of August 25, 2004. We do not believe that conclusion can be reasonably drawn from the evidence. The social worker’s reference to the drug counselor’s phrase, “sporadic use of heroin,” is followed immediately by the parenthetical that directs the reader to “[s]ee Attachment B.” The referenced attachment is dated March 15, 2004 -- less than two weeks after mother entered the drug treatment program and approximately five months before Mercedes was born. Reading the two documents together, it is clear that the reference to “sporadic use of heroin” in the social worker’s report pertains to mother’s drug test in March 2004, not August 2004.^[6]

Indeed, the juvenile court rejected DPSS’s interpretation, stating: “The evidence presented in front of me [indicates that] mother might have had sporadic use of heroin in the early to mid part of March. So I had to consider the sporadic use of heroin in the early part of March, and is she currently abusing. It doesn’t matter whether it’s measured from the time of the filing of the petition or today. I just can’t find that that’s current . . . .”

Nevertheless, even in the absence of evidence that mother was abusing drugs at the time of the jurisdictional hearing, there is sufficient evidence in the record to support the court’s jurisdiction over Priscilla. Mother had been in and out of jail, and “off and on” heroin, for many years. After five years in prison and eight months following her release, mother began using drugs again. Because of her drug use, she was “kicked . . . out of the home” and could not directly care for Priscilla. Mother had not yet completed her methadone treatment and was (according to Priscilla) often sick with stomachaches and sleeping a lot during the day. She was dependent upon grandmother for support and Priscilla’s care. As explained above as to Mercedes, mother’s history of drug relapses are some evidence of a future relapse and of a current risk of harm to Priscilla. Although we consider the question to be a close one, the juvenile court could reasonably conclude that there was a substantial risk of harm to Priscilla if she was not made a dependent of the court. Accordingly, we conclude that the evidence was sufficient to support jurisdiction over Priscilla.

B. Sufficiency of the Evidence to Support Removal at Dispositional Hearing

Mother further contends that the evidence was insufficient to support the court’s dispositional order authorizing the children’s removal from mother’s custody. We agree.

As is relevant here, subdivision (c) of section 361 provides: “A dependent child may not be taken from the physical custody of his or her parents or guardian 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: [¶] There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be 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 parents’ or guardians’ physical custody. . . .” (§ 361, subd. (c)(1), italics added.) Under section 361, subdivision (d), the court is required to “state the facts on which the decision to remove the minor is based.”

Here, the court did not state any facts supporting its decision to remove the children. It merely recited the statutes that authorize removal and stated the conclusion that there is a substantial danger to the children if they are returned home, and that no reasonable services would prevent the children from returning home. Although the court failed to make the required factual findings, appellate courts will find that such error is harmless if “it is not reasonably probable such findings, if made, would have been in favor of continued parental custody.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) Because we find no substantial evidence in the record to support the court’s finding that there are no reasonable means to protect the children without removing them from mother’s custody, we conclude that the error was not harmless.

“A child may not be taken from a parent’s physical custody during juvenile dependency proceedings, except for a temporary detention period, unless clear and convincing evidence supports a ground for removal specified by the Legislature. Removal on any ground not involving parental rejection, abandonment, or institutionalization requires a finding that there are no reasonable means of protecting the child without depriving the parent of custody. [Citations.] [¶] These basic guidelines establish that out-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts. It is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent. The law requires that a child remain in parental custody pending the resolution of dependency proceedings, despite the problems that led the court to take jurisdiction over the child, unless the court is clearly convinced that such a disposition would harm the child. The high standard of proof by which this finding must be made is an essential aspect of the presumptive, constitutional right of parents to care for their children.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525, fn. omitted; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 171 [“under section 361 a minor can be removed from a parent’s custody only in extreme cases of parental abuse or neglect”], limited on other grounds by In re Cindy L. (1997) 17 Cal.4th 15, 31-35.)

Although there is, as explained in the previous part, a risk of a relapse of drug use and other concerns sufficient to support jurisdiction over the children, there is no evidence that reasonable means other than removal could not adequately address such risks and concerns. Initially, we note that evidence of a substantial risk of harm to the children (while sufficient to support jurisdiction) was weak. By the time of the dispositional hearing, mother had not used drugs illegally for 10 months, she was employed, and she was “do[ing] well in her case plan.”

To the extent that there might be a relapse of drug use by mother, the social worker testified that the risk created by a relapse did not exist so long as mother continued to test for drugs, that there was no reason to believe mother would not continue to test, and that a family maintenance plan (rather than removal) could assure continued testing. There was no evidence to the contrary. Moreover, the social worker testified that there was no risk to Priscilla if she were returned to mother’s custody so long as grandmother resides in the home. There is no evidence to indicate that grandmother, who has been Priscilla’s primary caregiver during much of the child’s life, would not be residing with mother and the children. Supervision by the social worker could ensure grandmother’s presence. A plan of family maintenance and supervision of mother’s custody, rather than removal, would have therefore protected the children from any risk of danger. More importantly, there was no substantial evidence that such reasonable means would not have protected them.

In addition to the evidence of mother’s previous drug use and its effect on Mercedes, DPSS relies upon evidence of grandmother’s failure to “provide a safe environment for Priscilla.” For this assertion, DPSS points to two examples. First, mother allowed Priscilla to be exposed to a family member who was a “sexual predator” in 1997. The contention is based upon the following statement in a report by the social worker: “On August 8, 1997 allegations of sexual abuse as to the child Priscilla . . . were inconclusive. It was reported that Priscilla was in contact with a sex offender while in the care of [grandmother], while [mother] was incarcerated.” This seven-year-old inconclusive allegation does not constitute sufficient evidence of a substantial risk of danger to the children as of the dispositional hearing.

Second, DPSS questions grandmother’s judgment in requesting that mother contact “family members who were drug addicts.” For this contention, DPSS relies upon the following testimony by the social worker concerning the relationship between grandmother and mother: “[Grandmother] is supportive of mom in her programs. But in speaking with [mother’s] counselor, I was told [grandmother] has asked mom on occasion to assist family members that are known drug users. And [mother] says they are still knowing that she’s trying to be sober. So I believe that . . . grandmother needs to think about what she is asking of [mother] when she is asking her to help out the relatives.” From this double hearsay, it is unclear what grandmother was asking mother to do regarding assisting the family members. Nevertheless, it appears that the social worker is concerned that such assistance could be detrimental to mother by putting her in contact with family members who use drugs. Even so, such concern does not constitute evidence of substantial danger to the children sufficient to justify their removal from mother. Supervision of mother’s custody by the social worker could adequately address this concern.

Finally, DPSS contends that continued removal is proper because mother has not yet completed the MOMS program and the court thus cannot be assured of “her success in overcoming her drug dependence.”{RB 16} The question is not whether DPSS is assured that mother will remain off drugs after she completes her program, but whether there exists at the time of the dispositional hearing a substantial danger to the children that cannot be reasonably dealt with except by removal. Rather than constitute evidence of such danger, mother’s current participation in a drug treatment program is some evidence that the children can be protected from the risk presented by mother’s prior drug use by means other than removal.

Accordingly, because there is no substantial evidence to support the court’s conclusion that there were no reasonable means ‑‑ such as supervised custody and drug testing under a family maintenance plan ‑‑ to protect the children without removal, we conclude that the court’s failure to state facts to support its order removing the children from mother’s custody was not harmless.

C. Conflict of Interest by Minors’ Counsel

Mother contends that the representation of her two children by one attorney constituted an impermissible conflict of interest and the ineffective assistance of their counsel. The dual representation of the children by one attorney, she argues, “prevented trial counsel from representing the independent and conflicting interest of a 12-year old who has grown up with Mother, requesting to go home where she was well-cared for, with the vulnerability of a newborn child who cannot be vocal.” DPSS contends that mother does not have standing to assert this claim and, if she does have standing, that she has failed to show that a more favorable result would have been reached if different counsel had represented the two children.

We need not decide whether mother has standing to assert her conflict of interest argument. Even if she does have standing, mother’s argument, as we understand it, does not point to any conflict of interest at the jurisdictional stage. Nor does she assert that separate counsel would have resulted in different jurisdictional findings. Rather, she suggests that the joint representation of both children at the dispositional hearing presented an actual conflict of interest because Priscilla wanted to return home, while Mercedes could not express an opinion. Even if such a conflict existed, our reversal of the court’s removal orders renders this argument moot.

DISPOSITION

The court’s order that it has jurisdiction over the children is affirmed. The court’s dispositional orders that the children be removed from, or not returned to, mother’s custody are reversed. We direct the court to hold a hearing to determine whether removal of the children, or either of them, from mother’s custody is appropriate under section 361, subdivision (c). While we conclude that the record at the time of the dispositional hearing does not include sufficient evidence to support removal, we recognize that “‘we cannot simply unwind a juvenile case and presume that circumstances cannot have changed in the interim. They always do.’ [Citation.]” (See In re Isayah C. (2004) 118 Cal.App.4th 684, 701.) Accordingly, at the hearing, the court shall take into account facts and circumstances that may have occurred since the entry of the initial dispositional orders, the current situation of the children and other interested parties, and the views expressed in this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

I concur:

/s/ Gaut

J.

RICHLI, J., Concurring and dissenting.

I concur in the majority opinion, except in one respect. While I agree that the dispositional order removing Priscilla should be reversed, I believe that the dispositional order removing Mercedes should be affirmed.

The majority concludes ‑‑ as do I ‑‑ that there was a sufficiently substantial risk of harm to both Priscilla and Mercedes to justify the juvenile court in taking jurisdiction. The mother had been incarcerated for more than half her adult life. She had never acted as a mother to Priscilla or to anyone. Indeed, she had never supported herself or lived on her own.

Most important, the mother had been using heroin, “off and on,” for her entire adult life. Although she had been drug-free for 10 months, her risk of relapse was significant. For example, in January 2003, she had been released from custody, and around July or August 2003, she had started using again. Thus, she had relapsed at least once before after a similar (or, if her incarceration is included, an even longer) period of sobriety.

The mother had even used heroin while pregnant, physically endangering Mercedes. Although she claimed “she did not know that she was pregnant,” she did not explain why the usual indicia of pregnancy failed to tip her off. Moreover, although she tried to make it sound as if she stopped using heroin because she learned she was pregnant, she admitted that it was really because her mother discovered that she was using heroin and kicked her out of the house. Inferably, if her mother had not kicked her out, she would have gone on using.^[7] To put it bluntly, she chose heroin over her unborn child.

The majority’s inquiry regarding disposition is focused on whether at the time of the dispositional hearing a substantial danger to the children existed that could not be reasonably dealt with except by removal. They posit that the mother’s current participation in a drug treatment program is some evidence of means other than removal that the children can be protected from the risk presented by her prior drug use.

The evidence of danger at disposition, however, was essentially the same as at jurisdiction ‑‑ the mother was still a recent drug addict who had neglected her children and had put one of them at actual physical risk. The passage of less than two months between the hearings does not substantially alter that assessment, given the mother’s long-term drug use and criminal history. While her current participation in a drug treatment program was not additional evidence of danger, it also was not necessarily proof that the original danger had been eliminated.

The majority therefore relies on its conclusion that the children could be protected by reasonable means short of removal. At least with respect to Mercedes, I disagree. An infant requires continuous hands-on care, day and night. The risk was not only that the mother might relapse but also, more generally, that she would continue to put her own needs ahead of her children’s. The juvenile court could reasonably find that drug testing plus occasional visits from a social worker were insufficient to protect an infant from a neglectful parent.

Nor was the juvenile court required to conclude that there was no risk because the grandmother was “resid[ing] in the home.” (Maj. opn., ante, at p. 19.) The grandmother was not residing in the mother’s home; the mother was residing in hers. The grandmother, however, had kicked the mother out before, and if the mother got custody, she would be free to leave, taking the children with her. Ideally, Mercedes should have been removed from the mother and placed with the grandmother. Apparently this was not possible because the grandmother had some unspecified criminal history. If so, however, it would be disingenuous to effect a prohibited and unenforceable placement with the grandmother under the guise of returning Mercedes to the mother.

With respect to Priscilla, however, the question is a closer one. As far as the record reflects, the mother had never actually physically endangered her. Also, Priscilla was no infant; she was 12 years old. She had a greater ability to protect herself. Finally, against the background of our overall concern for the best interests of the child (see Welf. & Inst. Code, § 202, subd. (b)), I note that, if Priscilla was removed at all, then by law, she had to be placed with her father (Welf. & Inst. Code, § 361.2, subd. (a)); however, she had already been placed with him for four months, and she was manifestly miserable

there. For these reasons, I am willing to agree with the majority that the juvenile court erred by removing Priscilla from the mother.

RICHLI

Acting P.J.

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^[1] Appellate counsel for Mercedes filed a “letter brief” joining in the brief of the Riverside County Department of Public Social Services (DPSS). Priscilla joins with DPSS as to the court’s jurisdictional orders, and joins with mother as to the dispositional order, contending that the evidence was insufficient to support removal.

^[2] During this time, she was convicted on different occasions of crimes, including burglary (Pen. Code, § 459), driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)), driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11350).

^[3] Mercedes’s alleged father, Donnie A., was unaware of the birth, and his whereabouts were unknown.

^[4] All statutory references are to the Welfare and Institutions Code unless otherwise indicated

Section 300, subdivision (b), provides for juvenile court jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical 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 the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, 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.”

Section 300, subdivision (g), provides, in part: “The child has been left without any provision for support; . . . or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.”

^[5] At the jurisdictional hearing, following the close of evidence and arguments by counsel, the court questioned the attorneys as to whether, if the court found allegation b‑2 not true, there was anything in the petition that points to risk to Priscilla and permit a finding under section 361 in the absence of an allegation under section 300, subdivision (j). Counsel for DPSS responded by stating that the court “on its own motion can provide us with a [section 300, subdivision] (j) allegation that would include Priscilla.” Counsel for the minors and father agreed that the court could add a section 300, subdivision (j), allegation on its own motion. Counsel for mother did not address the issue directly, and argued that there was no basis for a finding under section 361 in any event. On appeal, no party raised any issue concerning the timing of the amendment in their briefs. Mother raised the issue for the first time in her reply brief, arguing that the amendment “change[d] the course of the trial” and violated her right to due process. Because this argument was raised for the first time in the reply brief, we do not consider it. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)

^[6] Nor do the August 23, 2004, drug test results showing positive levels of morphine, without more, support a conclusion that mother was abusing drugs at that time. Mother was apparently given morphine while she was in the hospital. According to the social worker, the “morphine stayed in her system for a few weeks” after the birth of Mercedes. There was no evidence that the morphine in mother’s system was from a source other than the hospital.

^[7] The mother also tried to minimize her drug use during pregnancy by suggesting that it lasted only three months. However, she admitted that it might have lasted four months. Inasmuch as she started on methadone almost exactly five months before Mercedes was born, it is apparent that four months is the correct figure.