Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct.
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK 84616, Sherri Sobel, Referee.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Objectors and Appellants.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata and William D. Thetford, Deputy County Counsels, for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
FLIER, J.
Minors Aliyah G., Paul G., and Amira G. appeal from a judgment of December 2, 2010, declaring them dependents of the court under Welfare and Institutions Code section 300, subdivision (b) and placing the children in the home of their father, Paul G. (father), pursuant to section 361.2. The children contend that (1) the jurisdictional findings under section 300, subdivision (b) must be reversed because the juvenile court erred in striking allegations against father, and (2) the placement order must be reversed because placing the children with father is detrimental to their well-being. We disagree and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On June 22, 2010, the Los Angeles County Department of Children and Family Services (department) received a referral alleging general neglect of Aliyah, Paul, and Amira by their mother, Jacqueline G. (mother). The allegations were that mother was abusing cocaine and had cocaine and paraphernalia laying out and accessible to the children. At the time, Aliyah was 17 years old, Paul was 15 years old, and Amira was eight years old. Father is a physician and mother is a homemaker. Mother and father had been married for 17 years and had separated in 2007, and mother had filed for divorce in February 2010. They had an upcoming court date to determine legal custody of the children. The children were living with mother, and father had visitation every other weekend and after school one day a week.
1. Detention Report and October 2010 Hearing
On June 25, 2010, the department contacted mother at her home and interviewed all three children and mother. Amira stated that she did not see mother drink or use drugs and did not see drugs around the house. She loved her mother and liked living with her. She felt the visits with her father went well. Paul stated that he did not see mother drink or use drugs and did not see paraphernalia around the house. He stated that father drank and used marijuana, though not in front of Paul. He felt happy and comfortable in mother’s care. He did not feel happy in father’s care, but he did feel safe in father’s care. He did not visit with father often because he and father did not get along. Aliyah stated that she did not see mother drink or use drugs and did not see drugs around the house. She loved living with her mother and felt that mother took great care of her and her siblings. She stated that father drinks and uses marijuana, but not around the children. She felt happy and comfortable in both mother’s and father’s care.
Mother denied all allegations of neglect. She stated that she was not currently using cocaine but had used it in the past. Mother stated that father introduced her to cocaine, and she used it because he brought it to her and she wanted to please him and save their marriage. She said she never used around the children and never had paraphernalia accessible to the children. She stated that father used cocaine previously but had stopped because of a heart issue. She and father would use only on weekends, when the children were at relatives’ homes. The family law court was requiring mother to submit to drug testing, and because she had positive tests, it was also requiring her to participate in weekly Narcotics Anonymous meetings.
Mother completed an on-demand drug test on June 28, 2010, and tested positive for cocaine. On July 15, 2010, the department contacted mother to discuss the positive test results. Mother stated she was not using and someone must have “messed with the test.”
When interviewed by the department, father stated that mother was a great mother but had “gone down the wrong path.” Father had access to the family home where mother was living with the children until March 2010, when the family law court ordered him to stay out of the home. Until that time, father was “managing mother’s drug issue” because he was around daily to check on things at the home. After he lost access to the home, father felt that mother was not parenting the children. Father stated that mother was out at night until 3:00 a.m. while Aliyah took care of Amira, and Paul was depressed and had been expelled from school. Father wanted the children to be in his care while mother went to a facility to address her drug use. Father was attempting to get custody of the children in the family court. Mother had tested positive for cocaine in the family court and also had several tests for which she did not show.
Father has a medical marijuana license, but stated he does not use around the children and is not high while supervising the children. Father stated that he drinks alcohol, though not excessively, and it does not impair his functioning. He has never been arrested on drug or alcohol charges. The family law court required him to complete four Alcoholics Anonymous meetings and have seven clean tests.
On October 7, 2010, the department held a “team decisionmaking” meeting at which both mother and father were present. Mother acknowledged that she needed treatment and expressed willingness to complete an outpatient program. However, mother was unwilling to complete a residential program. Father stated that he had tried to get mother into a program when he found out mother was using cocaine, but she refused. Father left the home three years prior because mother had become violent with him. He left even though he knew she had a drug problem because he still had access to the home and was monitoring the situation, and he did not believe mother was a threat to the children. Father denied ever using cocaine with mother and he used marijuana only for medical purposes. He also provided the department with a valid medical marijuana certificate and test results from the family-court-ordered random drug testing. From April 2010 to June 2010, he tested six times for marijuana, all with positive results. From June 2010 to August 2010, he tested seven times for alcohol, all with negative results. He had one positive test for alcohol on October 7, 2010, with an alcohol level of 0.07 percent, below the legal limit of 0.08 percent for driving under the influence. (See Veh. Code, § 23152.)
The department filed a petition under section 300, subdivision (b), on October 13, 2010, alleging that (1) mother had a history of abusing cocaine and was currently abusing it, and father had failed to protect the children when he knew of mother’s drug use, and (2) father had a history of cocaine abuse and was currently abusing marijuana and alcohol, and mother had failed to protect the children when she knew of father’s drug use. At the October 13 detention hearing, the court found a prima facie case for detaining the children and that they were persons described by section 300, subdivision (b). Both mother and father denied the allegations of the petition. The court ordered a multidisciplinary assessment of the whole family. The family law court had already ordered a psychiatric evaluation of the family pursuant to Evidence Code section 730, which was to be provided to the juvenile court.
Father asked that the children be released to his care. Instead, the court ordered all three children detained in mother’s home under the supervision of a relative, Cathy B. Mother was not to reside in the home. The children had already been residing in the home with Cathy B. at the time of the hearing. If for some reason Cathy B. was unable to care for the children, they were to be released to father in his home. Mother was to complete a drug treatment program with random testing. Father was to complete random drug testing. The court ordered monitored visitation for mother and unmonitored visitation for father. The matter was continued to November 3, 2010, for the contested adjudication hearing.
2. Adjudication/Disposition Report and November 2010 Hearing
The children were released to father’s care on October 13, 2010, as Cathy B. was unable to remain in mother’s home with the children. The department interviewed the family again on October 20 and 28, 2010. Mother reported to the department that, in October 2010, Amira called her upset on two different occasions. In one instance, Amira was upset because father had left her with her paternal grandfather, and grandfather had gone into his room and closed the door. The older siblings were not at home then. On the second occasion, Amira was upset because Paul was teasing her and father was not at home. The children had tried to reach father on his cellular phone several times and could not reach him. Mother reported that father did not arrive home until approximately 12:00 a.m. Mother also reported that father brought Amira to mother’s home twice in October 2010, so that mother could dress Amira before school and do her hair. On both occasions, mother helped Amira, and then father took Amira to school.
Paul stated that the situation was “a lot worse” and that he was “ready to be put in foster care.” He stated that father yelled at him, made him mad, and called him names like “stupid, idiot and all that junk.” Paul felt that if he could move back to mother’s home, “that would be perfect.” Paul knew mother used cocaine but never saw her use it. He definitely noticed a difference in her behavior. He felt sure that mother would not use again because she had seen what it had done to the family. Paul heard that father did cocaine a long time ago, but he has since stopped. He stated that father used marijuana and alcohol, but he does not drink as heavily as he did previously.
Aliyah reported that she did not like living in father’s home and she “personally enjoyed having [her] own room and things like that, ” and she missed mother. Aliyah felt that the problem was not father’s “yelling and stuff, ” but that the situation was a major change and she did not think it should be. She thought both parents were able to parent and were good parents, and the child should decide with which parent he or she wanted to live. She had never seen mother use drugs but father had told her mother uses. Aliyah had never seen her father use cocaine and has never seen him drunk. She stated that he used to drink often but drinks less now, and his drinking did not affect his ability to care for her and her siblings.
Amira felt that living with father was “pretty good so far, ” but she would rather live with mother and visit father. As to mother’s drug use, Amira denied seeing mother use, but stated, “Sometimes my brother would wake up and catch her doing stuff but you have to ask him.... I know my mom quit and then started again.... I really don’t’ [sic] know about my mother because I am usually sleeping when everything is going on.” Amira stated that she had seen father drunk before, and described how during one visit, he kissed her and his breath smelled like liquor. On one occasion, she saw her dad “making a cigarette and he said go back to sleep.”
Mother reported that the children were “miserably unhappy” at father’s home. She felt that he intimidated the children and that he was verbally abusive, especially to Paul. She stated that father would not let Paul go out with his friends and was trying to “isolate” him. She also reported that father often stays out late into the evening, leaving the children unattended. She stated that father has been mentally and verbally abusing her for years, and he physically abused her in the beginning of the marriage, though she never reported anything. Father refused to provide a statement without his attorney present.
On November 3, 2010, the department filed a first amended petition under section 300, subdivision (b), alleging only that father created a detrimental home environment for the children by emotionally abusing Paul, specifically by yelling at him and calling him names like “stupid” and “idiot, ” to the extent that Paul felt depressed and unfairly treated and did not want to remain in the home. At the hearing on the same date, father demurred to the first amended petition. The court noted that the amended petition did not “rise to the level of a removal for children this age.” The court stated that it had “no information about physical abuse” and “no information about any other kind of abuse except that the father is being tough and maybe inappropriate. But I don’t know that yet.” The court ordered the department to interview father and reinterview the children, and the matter was continued to a later date.
3. Supplemental Report and Adjudication/Disposition Hearing
When the department again interviewed father, he denied ever supplying mother with cocaine and stated that he became aware of mother’s cocaine use only two years before he moved out of the house when she began experiencing mood swings. Father said that he tried to get mother into therapy and a residential drug treatment program when he found out about it. For awhile Father felt that mother’s use did not affect the children, but then it became a problem. He bought back jewelry that mother had pawned. Mother was supposed to chaperone Aliyah’s birthday party, but did not, and the teenage girls were left unchaperoned. Paul was not getting up for school in the morning, and Amira was arriving late to school. Paul had no curfew and would sometimes come home at 4:00 a.m. or play video games until late in the evening.
Father denied again having any problem with marijuana. He reported using medical marijuana for chronic back pain caused by radiculopathy and osteophytes. He was disabled and not working due to his condition. He also denied any problem with alcohol and stated that he only drinks socially and during Lakers basketball games.
When interviewed this time, Aliyah stated that father was “[n]ot really” staying out late and that “[n]othing out of the ordinary” had happened while living with father. She knew that father drank alcohol but said that it has not impacted his ability to care for her. Father yelled sometimes, though she did not feel he was emotionally abusive, and she felt father was “a good dad.” Paul reported that father had stopped yelling so much and calling him names after the last court appearance, but he still did not like living with father. Paul was not sure if father stayed out late. He had seen bottles and cups of alcohol around the house, but he had not seen father actually drinking. Amira reported that father “sometimes” leaves the children at night. Amira stated that she got into arguments with father and she got “really angry” when he made her do things like sleep alone. She had seen him with a drink in his hand two or three times since the children had been living with him. She stated that father acted “differently” when he was drinking.
As of the department’s supplement report dated December 1, 2010, father had not tested positive for alcohol on any of his tests, except for the October 7, 2010, test discussed above. He had completed an outpatient substance abuse treatment program. From October 22, 2010, to November 15, 2010, he had tested positive for marijuana on four dates. Mother’s last positive test for cocaine was on September 7, 2010. Mother tested on November 15, 2010, with negative results.
Dr. Suzanne M. Dupee was the expert who conducted an extensive psychiatric evaluation of the family and submitted a written report to the court. Dr. Dupee reported that mother has been the primary caretaker of the children but that she became less involved with the children’s lives when her drug dependency worsened. Paul was in trouble at school and failing while in mother’s care before moving in with father, and mother often “let Paul slide by.” Dr. Dupee reported that all the children are struggling and that much of the trouble they were experiencing was present before custody had changed from mother to father. While she noted that father’s visits had not been regular previously, she praised father for “stepp[ing] up to the plate in the time of crisis, ” taking on important tasks like dealing with Paul’s serious school issues, becoming more involved in all three children’s lives, and doing things like horseback riding with the girls. She noted that father is more involved with Paul despite Paul’s trying to push him away, and that father drives Paul to school to ensure that he arrives on time. Dr. Dupee did not feel that there were any safety concerns with the children residing with father, but she felt that “another set of eyes on the children and father would be in the children’s best interest.”
Dr. Dupee’s ultimate recommendation was that mother seek immediate inpatient rehabilitation for her cocaine addiction, and because father had been compliant with all court orders, had been abstaining from alcohol, and had completed a drug treatment program, he should be the primary custodial parent while mother was in treatment. She recommended that the children reside in the family home with father while mother was in treatment. She further recommended that mother have frequent supervised visits with the children while in treatment and for at least three months after discharge, with later visits unsupervised contingent upon mother providing a negative drug test. She felt that both parents should complete a parenting course and father should continue to randomly drug test for alcohol and marijuana. Dr. Dupee proposed that once both parties have maintained their abstinence and sobriety, mother should have primary custody, with father having regular visitation. She thought that a 50-50 custody arrangement might be appropriate in the interim.
At the December 2, 2010 adjudication/disposition hearing, the court struck the single count, b-3, contained in the first amended petition regarding father’s emotional abuse of Paul. The court incorporated by reference counts b-1 and b-2 of the original petition and also struck count b-2, which alleged that father abused cocaine, marijuana, and alcohol, and mother failed to protect the children when she knew about father’s illicit drug use. The court sustained count b-1 with amendments so that it read as follows: “The children Aliyah G[.], Paul G[.], and Amira G[.’s] mother, Jacqueline G[.], has a history of illicit drug use including cocaine, and [o]n 6/28/10, the mother had a positive toxicology screen for cocaine.... The mother’s use of drugs places the children at risk of harm.” The court deleted the allegations that father failed to protect or was unable to protect the children when he knew of mother’s illicit drug use.
It then declared the children dependents under section 300, subdivision (b) and found by clear and convincing evidence that return to mother would create a substantial risk of danger to the physical and emotional well-being of the children. The children were removed from mother and placed under the care, custody, and control of the department. The department recommended that the children be placed with father. Pursuant to section 361.2, the court placed the children in the home of father, ordered family maintenance services for father, and denied reunification services to mother. It ordered weekly on-demand testing for alcohol for father and ordered him to abstain from alcohol entirely. The court ordered drug counseling and random drug testing for mother. Mother was given visitation rights. Although the court denied reunification services to mother, the court stated: “I’m going to keep the case open for about 90 days, and at that point, if mom’s prepared to file a 388 that she’s clean and sober, I may go back to Dr. Dupee’s plan of either moving the children back to the mother or doing a 50/50. I don’t know. I have no idea. What I need to see right now is that both parents are clean and sober.” The court set a six-month review hearing pursuant to section 366 for June 1, 2011.
The children’s timely appeal followed.
STANDARD OF REVIEW
In reviewing the jurisdictional findings of the juvenile court, “we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, we must uphold the judgment or findings, even though substantial evidence to the contrary may also exist, and the juvenile court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 [“If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm”].)
We will not reverse the juvenile court’s dispositional orders except for a clear abuse of discretion. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Therefore, we will not disturb a juvenile court’s custody determination unless it has exceeded the limits of its broad discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) An abuse occurs when the court exercises its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
DISCUSSION
The children contend that substantial evidence did not support striking count b-2 of the petition and the allegations against father in count b-1 of the petition. They further contend that the court abused its discretion in placing the children with father. The children’s contentions are unavailing.
1. Substantial Evidence Supports the Juvenile Court’s Jurisdictional Findings Under Section 300, Subdivision (b)
A child may be determined a dependent of the juvenile court 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.” (§ 300, subd. (b).) A finding under section 300, subdivision (b) requires (1) neglectful conduct by the parent; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
When one parent is unsuitable, the juvenile court properly may find a child comes within the jurisdiction of section 300, even if the other parent claims to be a suitable parent. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16 [mother’s admitted conduct in endangering children found sufficient for jurisdiction notwithstanding father claimed he was nonoffending]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554 [juvenile court may take jurisdiction over a minor even if only one parent is unsuitable; social services department “‘is not required to prove two petitions, one against the mother and one against the father’”].) Such a rule is consistent with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
Moreover, a reviewing court may affirm a juvenile court judgment when, as here, the evidence supports the decision on any one of several grounds. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) “‘We uphold judgments if they are correct for any reason, “regardless of the correctness of the grounds upon which the court reached its conclusion.” [Citation.] “It is judicial action and not judicial reasoning which is the subject of review....”’” (Id. at p. 876, quoting United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 933.)
Here, the children do not dispute that the juvenile court correctly asserted jurisdiction based on the allegations against mother. Ordinarily, our inquiry into the court’s jurisdictional finding would end here—it is sufficient that at least one parent has been found unsuitable. But because the children argue that father should have been an offending parent, rendering placement with him improper (see part 2, post), we consider whether substantial evidence supported striking the allegations against father. We hold that it did.
The stricken allegations against father in count b-1 alleged that he failed to protect the children when he knew of mother’s cocaine use. Regarding these allegations, the court stated: “I am taking out that father failed to protect or was unable to protect when he knew of mother’s illicit drug use. I agree with [father’s counsel]. This father did everything he could.” There was substantial evidence to support this finding. Father left the family home when he separated from mother in 2007. He was aware of mother’s cocaine use and tried to get mother to go to a residential drug treatment program, but she refused. He continued to visit the home and check in on the children daily, until the family court ordered him to stay away from the home in March 2010. He had been attempting to get custody of the children in the family court and requested that the children be released to him at the detention hearing.
The stricken allegations of count b-2 alleged that father abused cocaine, marijuana, and alcohol and was incapable of providing regular care to the children. There was also substantial evidence to support the striking of these allegations. None of father’s drug tests were positive for cocaine. Father stated that he did not use cocaine. Although father admitted to drinking alcohol, he stated that his drinking was not excessive. He had tested positive for alcohol only once in the eight months leading up to the adjudication hearing, and that positive test was before the children were released to his care. None of the children reported that father’s drinking or marijuana use adversely affected his ability to care for them, and Paul and Aliyah both reported that father does not drink or use marijuana around them. Father presented evidence of a valid medical marijuana certificate. This evidence was sufficient to support the implicit finding that father’s use of marijuana and alcohol did not cause the children to suffer, or put them at substantial risk of suffering, serious physical harm or illness. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 452-453 [noting that “the mere use of marijuana by a parent will not support a finding of risk to minors, ” but holding that father’s use of marijuana supported such a finding because he used around his children, and it had a negative effect on his demeanor towards the children].)
In sum, the dependency court did not err in striking the allegations against father.
2. The Evidence Is Sufficient to Support the Placement Order
The children do not challenge the order removing them from mother’s custody, but contend that the juvenile court abused its discretion in placing them with father. They argue that placement with father was detrimental to them and not in their best interest. We disagree that the juvenile court abused its discretion.
The court placed the children with father pursuant to section 361.2. Section 361.2, subdivision (a), provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” This section “gives effect to the Legislative preference for placement with [the nonoffending, noncustodial] parent.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.)
The children maintain that father was an offending parent and thus placement with him was detrimental to their well being. We have already determined that sufficient evidence supported the court’s striking the allegations against father and, therefore, the court’s implicit finding that father was not an offending parent. We need not repeat all the evidence and analysis set forth above regarding father’s use of marijuana and alcohol. It suffices to say that sufficient evidence also supports a finding that his use of marijuana and alcohol is not detrimental to the children’s well being. Furthermore, the expert in this case, Dr. Dupee, recommended temporary placement in the home of father, and Dr. Dupee’s report evidences that she was fully aware of all allegations against father. The children expressed a preference for living with their mother in their interviews with the department, but this appears to be based on an understandable attachment to the parent who has been their primary caretaker and the home in which they have primarily lived, not any abuse or neglect by father. Amira said that living with father was “pretty good so far, ” and Aliyah thought that father was a “good dad” and a good parent. Even Paul, who has had difficulties getting along with father, stated that he feels safe in father’s home. Finally, while not evidence, it is notable that the department also recommended placement with father.
The juvenile court clearly was aware of father’s alcohol and marijuana use and took the allegations of alcohol abuse into particular consideration in crafting its disposition order. The court ordered him to refrain from drinking altogether and complete weekly testing for alcohol. The placement with father was not permanent, and the court retained jurisdiction and scheduled a six-month review hearing. The court expressly stated that it would entertain a section 388 petition by mother to change, modify, or set aside its orders at a later date. Under these circumstances, the court’s placement order was not an abuse of discretion.
disposition
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.