Opinion
D048926
12-4-2006
In re VALERIE W. et al, Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GREGORY W., Defendant and Appellant.
Gregory W. (Father), the father of Valerie W. and Gregory W., Jr. (Gregory Jr.), appeals orders adjudicating his children dependents of the juvenile court and removing them from his custody. Father claims that the jurisdictional and dispositional orders were not supported by substantial evidence, and that the juvenile court did not consider lesser alternatives to the removal of the children from his custody.
FACTS
Father and the childrens mother lived together from 1999 until they separated in January 2005. A month later, the family court awarded custody of the children to Father. At that time, Valerie was two years old, and Gregory Jr. was five months old.
The mother is not a party to this appeal and will be discussed only when relevant to Fathers appeal.
On April 28, 2006, the San Diego County Health and Human Services Agency (Agency) took Valerie and Gregory Jr. into protective custody after a paternal aunt reported that Father had fondled Gregory Jr. while giving him a bath. Father vehemently denied that he had molested either of his children. However, he admitted that he had used heroin and that the last time he had done so was two months previously. Father said that he was currently using methadone as a treatment for his heroin problem. Father disclosed that he started using marijuana when he was 15 years old and that in addition to using heroin, he had used methamphetamine and PCP. Father suffered from amnesia, which was caused by a heroin overdose in 2001.
In 2005 the mother told a family court counselor that Fathers amnesia adversely affected his ability to care for the children by himself. Father often forgot whether he had fed the children. The mother also said that Father neglected Gregory Jr. by leaving him in a swing for many hours. According to the mother, Father allowed Valerie to cry for long periods of time.
On May 2, the Agency filed dependency petitions on behalf of Valerie and Gregory Jr., alleging that they were at substantial risk of harm because Fathers substance abuse rendered him unable to provide regular care for them. (Welf. & Inst. Code, § 300, subd. (b).) Gregory Jr.s petition also included an allegation that Father had sexually abused him (§ 300, subd. (d)), and Valeries petition included a sibling abuse allegation (§ 300, subd. (j)).
All statutory references are to the Welfare and Institutions Code.
A second paternal aunt reported that her sister, who had reported the sexual abuse of Gregory Jr., was not a reliable source because she has serious mental health problems. However, the second aunt reported that Father told her that he had used heroin in March. She also complained that Father had allowed people to inject drugs while they were in his garage.
The court subsequently dismissed the allegations of sexual abuse under section 300, subdivisions (d) and (j).
Vanessa W., Fathers 13-year-old daughter from another relationship, observed two transients using drugs in Fathers garage. Vanessa told the social worker that the last time she saw Father use drugs was a couple of months previously. According to Vanessa, Father was more likely to use drugs when experiencing stress. Vanessa also said that she had watched Father cook his drugs in the kitchen and then go to the bathroom, where he stayed for a long time.
Father told the social worker that his pattern was to use heroin for several days in a row and then abstain from using the drug for a few months. On April 10, Father enrolled in a methadone program after testing positive for heroin. The program requires a positive test for heroin to enroll. On May 17 the program tested Father, but he diluted the specimen with water, and his test was rejected. The program requested that Father test on June 15, but he failed to appear for testing.
Methadone is used as a treatment for heroin addiction because it staves off the withdrawal symptoms of heroin without providing euphoric effects.
Jennifer Frascino, who had been monitoring Fathers amnesia for four and one-half years as part of a research study, characterized Fathers amnesia as mild; she likened it to forgetfulness. According to Frascino, Fathers amnesia is permanent, but does not affect his decisionmaking ability, judgment or ability to pay attention. Frascino said that Father used strategies, such as writing things down, to help him keep track of things.
Frascino, who administered neuro-psychological tests to Father on the average of once a month, never observed anything inappropriate in Fathers home. Frascino said that Father appeared to have a good relationship with his children; they always seemed happy.
The contested jurisdictional/dispositional hearing was held over three days in June.
The social worker testified that Father was in denial about the level of his drug problem, recalling that he once told her that he used methadone as a painkiller for his broken heels rather than to attempt to stop using heroin. The social worker was concerned that Father had tampered with a drug test in May. She did not know whether that indicated that he was continuing to use heroin. The social worker opined that anyone using heroin would have problems providing care for a three-year-old child and a one-year-old child. Before the social worker would be willing to recommend that the children be placed with Father, he would have to have abstained from heroin for a substantial period of time.
On June 27, the director of the methadone clinic testified that earlier in the day, Father had undergone a drug test, and the preliminary results were negative for heroin.
Nineteen-year-old Jessica F., whom Father had befriended when he and Jessicas family were in a homeless shelter at the same time, took care of Valerie and Gregory Jr. every weekend, alternating between Fathers home and her home. Jessica took care of the children because she loved them.
In Agencys rebuttal presentation, the social worker testified that Father had been observed leaving the children alone in the yard with only a lock on the gate. Father also had been seen giving Gregory Jr. a bottle with juice in it and not feeding him again for several hours.
The Agency also reported that two weeks before the children were taken into protective custody, Father had a syringe in the home. He said that he kept the syringe in a toolbox for "`good memories," and also to eliminate the need for him to use a shared needle and risk exposure to AIDS. A woman who had lived in Fathers home in January 2006 told the social worker that she had observed Father give Gregory Jr. a bottle of milk before she left for work in the morning and that the child had the same bottle when she returned in the early evening hours. This same woman also said that for "hours at a time" Father left Valerie to play by herself in the locked backyard, in which there were hazardous objects scattered around.
The court sustained the petition as amended. (See fn. 4, ante.) The court declared Valerie and Gregory Jr. dependent children, removed them from Fathers custody, and placed them in the approved home of a non-relative extended family member. The court ordered Father to comply with his case plan, as amended. The court gave the Agency discretion to lift supervision of Fathers visits with the children, permit overnight and weekend visits, and allow a 60-day trial visit.
DISCUSSION
I
Jurisdictional Finding
Father contends substantial evidence did not support the juvenile courts jurisdictional finding under section 300, subdivision (b). This contention is without merit.
In a dependency proceeding, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the courts jurisdiction. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
Section 300, subdivision (b) provides that jurisdiction may be assumed if:
"The 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 . . . to adequately supervise or protect the child, or the willful or negligent failure of the childs parent . . . 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 . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parents . . . mental illness, developmental disability, or substance abuse."
The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 357-358; In re Luwanna S. (1973) 31 Cal.App.3d 112.) Accordingly, the court may consider past events in deciding whether a child presently needs the courts protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 736, 748, fn. 6; see also In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
We review the evidence most favorably to the courts order—drawing every reasonable inference and resolving all conflicts in favor of the prevailing party—to determine if the order is supported by substantial evidence. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.) If it is, we affirm the order even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing that there is insufficient evidence to support the order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Evidence in this case supporting jurisdiction under section 300, subdivision (b) included: Fathers admission that he used heroin and his lack of candor as to when he last did so; Fathers tampered drug test in May 2006 and his no-show for a test in mid-June; Fathers possession of a syringe in the home, which he kept for the "`good memories" it provided him; Fathers "cooking" his drugs in the kitchen of the family home; and Fathers allowing transients to use his garage to use illegal drugs.
There also was substantial evidence that Fathers substance abuse adversely affected the care he provided to the children. Fathers permanent amnesia from a heroin overdose in 2001 compromised his ability to adequately parent Valerie and Gregory Jr. Based on Fathers excessive reliance upon his older daughter, Vanessa, and his friend, Jessica F., to act as substitute caregivers for the children, the court also could reasonably question Fathers ability to parent Valerie and Gregory Jr. Additionally, the court could reasonably draw negative inferences about Fathers ability to properly care for Valerie and Gregory Jr. from evidence that he left three-year-old Valerie unattended for hours in a locked backyard in which there were potentially dangerous objects strewn about, and gave one-year-old Gregory Jr. nothing but a bottle—sometimes filled with milk, sometimes filled with juice—to last the entire day. These children were particularly vulnerable because of their young age, and their concomitant limited ability to communicate and to fend for themselves.
The social worker opined that Father was in denial regarding the seriousness of his drug problem. Fathers adulterated drug test, followed by a failure to appear for drug testing, indicated that he was continuing to use heroin even though his counsel stipulated at trial that he had not used heroin since April 10, 2006. The social worker testified that anyone who was using heroin would have problems parenting a three-year-old child and one-year-old child.
These circumstances were more than sufficient to warrant intervention by the juvenile court. Additionally, the court could reasonably believe that Fathers use of heroin could recur, absent court intervention. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The court could also properly consider Fathers minimization and denial of his drug problem in determining the risk to Valerie and Gregory Jr. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
It was within the purview of the juvenile court, sitting as trier of fact, to determine credibility issues and apportion what weight to give to the evidence presented. We conclude that the court acted reasonably when it gave less weight to Jessica F.s testimony because of her lack of sophistication, and to Frascinos testimony because her exposure to Fathers home life was limited. As an appellate court, we do not reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
We conclude that there is substantial evidence supporting the courts assumption of jurisdiction of Valerie and Gregory Jr. under section 300, subdivision (b).
II
Dispositional Order
Father contends that there was insufficient evidence to support the removal of Valerie and Gregory Jr. from his custody. The contention is without merit.
After the juvenile court determines that a child is within its jurisdiction, the court must conduct a dispositional hearing. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.) At the dispositional hearing, the court must decide where the child will live while under the courts supervision. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.
A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The court may consider a parents past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)
Before the court issues a removal order, it must find that the childs welfare requires removal because of a substantial danger, or risk of danger, to the childs physical health if he or she is returned home, and that there are no reasonable alternatives to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; § 361, subd. (c)(1).) There must be clear and convincing evidence that removal is the only way to protect the child. (See e.g., Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.)
Whether the conditions in the home present a risk of harm to the child is a factual issue. Again, we apply the substantial evidence test. (In re Kristen H., supra, 46 Cal.App.4th at p. 1654.)
The removal order in this case is amply supported by evidence that there was a substantial danger or risk of danger to the safety of Valerie and Gregory Jr. if they were returned to Fathers custody. The court found that the same evidence that supported the jurisdictional order supported the removal order. We agree. Father had only begun to address his substance abuse. At best, Father had not used heroin for two and one-half months. This is a short period of time within which to conquer a long-standing drug problem. Furthermore, it was Fathers pattern to use heroin for several days and then abstain for a few months. Fathers minimization of the severity of his drug problem coupled with the incidents in which the children were neglected—be it because of amnesia or simply poor judgment—constituted sufficient evidence from which the court could reasonably infer that Valerie and Gregory Jr. would be at risk if they were returned to Fathers custody at the time of the contested hearing.
Father also asserts that the court did not consider lesser alternatives to removing the children, as is required by section 361, subdivision (d). We disagree.
To justify removal, there must be substantial evidence to show that removal is necessary to ensure the safety of the child. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) There was ample evidence in this case that demonstrated both an "identified, specific hazard" and that the children were "of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety." (Ibid., italics deleted.) Fathers long-standing substance abuse was an identified problem that presented a substantial danger to Valerie and Gregory Jr., whose young ages made them particularly vulnerable if they were not properly supervised. Father had just begun his substance abuse treatment. Furthermore, Valerie repeatedly said she did not want to live with Father. The court could reasonably have concluded that less intrusive alternatives to removal were not possible until Father made progress as to his substance abuse.
In deciding whether to remove a child from home, the childs best interests are paramount. (In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.) There was substantial evidence in this case from which the court could have found, by clear and convincing evidence, that removal was the only way to protect the children, and that doing so was in their best interests.
DISPOSITION
The orders are affirmed.
We Concur:
BENKE, Acting P. J.
NARES, J.