Opinion
B298057
04-03-2020
In re A.J., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALFRED J., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. 19CCJP01564) APPEAL from orders of the Superior Court of Los Angeles County, Harry A. Staley, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
____________________
Alfred J. (father) appeals from the dependency court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1), as well as dispositional orders under section 361, subdivision (c)(1), removing Aiden J., his infant son, from his custody. Father contends the orders are not supported by substantial evidence. The Los Angeles County Department of Children and Family Services (Department) contends the findings and orders are supported by substantial evidence. We affirm the jurisdictional findings and the removal order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
For the present summary, consistent with the substantial evidence standard of review, "we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
Father and A.O. (mother) are the parents of Aiden, born January 2019. They have been in a relationship for four years, but they do not live together, in part because mother's housing does not permit her to have someone live with her. Father did not have housing during the time relevant to this appeal, although he was waiting for an apartment as part of a voucher program through the Veteran's Administration (V.A.). Father has at least two other children; his five-year-old daughter was living with his adult daughter. Mother has a son, age 13, who has lived with maternal grandmother in Florida under a guardianship since the age of two.
Mother filed a notice of appeal as well. On October 31, 2019, mother's appointed counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 raising no contentions of error. Only father's appeal is now before us for decision.
Mother is diagnosed with depression, bipolar, borderline personality disorder, and schizophrenia. She stopped taking her psychotropic medications during her pregnancy. Mother tested positive for marijuana when Aiden was born. She admitted to smoking marijuana three times weekly to deal with anxiety, depression, and appetite. Mother claimed her obstetrician/gynecologist, psychiatrist, and therapist were all aware that she had stopped taking her psychotropic medications and that she was smoking marijuana.
Initial investigation
The Department began its investigation in January 2019, the day after Aiden was born. A nurse who was in mother's room heard father being verbally aggressive towards mother, calling her a bitch. The nurse took the phone from mother and tried to calm father down, but he said "you fucking nurse get the fuck out of the phone" and she ended the call. The nurse took Aiden from mother's arms, as mother was inconsolable and suicidal. Father came to the hospital later and continued cursing at mother, accusing her of turning off his phone. When a hospital social worker asked father to calm down, he did. The social worker told father that the infant was taken from mother because she was inconsolable after getting off the phone with him. He asked where his son was, but left without asking to visit his son. When mother was asked if she would talk to the Department social worker, she became angry and refused. Mother spoke with a social worker the following day, confirming that she smoked marijuana during her pregnancy. Mother said she was receiving housing, mental health, and case management services through "the Village" for the past two years, and before that she had been homeless. Mother denied any domestic violence with father, except for one instance early in their relationship where she hit father and was arrested. She acknowledged they have disagreements like any couple, but denied any additional physical violence. Mother and Aiden were discharged from the hospital on January 25, 2019 with no concerns.
On February 6, 2019, a social worker visited mother and Aiden at home. Both were doing well; mother had not resumed her psychotropic medications, but was taking marijuana edibles to control her anxiety. She told the social worker that father was caring for his sick mother in Pomona and had not visited since she had returned home from the hospital.
Father spoke with the social worker by phone on February 13, 2019, and reported he had visited mother a day earlier, and had no safety concerns for his son. Father recalled having a disagreement with mother while she was in the hospital, but denied cursing at mother or the hospital staff. He admitted to having disagreements with mother during the course of their relationship, but denied ever having a physical altercation with her. He was aware that mother used marijuana throughout her pregnancy.
On February 26, 2019, the Department social worker learned that Aiden's meconium tested positive for marijuana, amphetamine, and methamphetamine. The results stated that meconium drug testing can detect maternal drug use during the last four to five months of pregnancy. Mother denied using any drugs other than marijuana. The Department detained Aiden on March 7, 2019, and filed a petition based on mother's substance use and her failure to take medications for her mental illness.
At the March 13, 2019 detention hearing, the court found father to be a presumed father, ordered reunification services including monitored visitation for mother and father, and ordered the Department to investigate possible placement with paternal relatives.
Additional Investigation
The Department continued its investigation after Aiden was detained. A request for father's criminal history records revealed a domestic violence incident in 2017, where father was intoxicated, and mother claimed he hit her on the back of the head and bit her on the cheek, leaving visible injuries. Father was arrested. He was taken to the hospital with small puncture wounds in his back, from tweezers.
A social worker interviewed mother and father on March 26, 2019. Mother reported that she had not experienced any mental health symptoms until Aiden was detained. Towards the end of mother's interview, with father present, mother started yelling, screaming, and cursing at the social worker. Mother was unable to control her anger, and left the apartment. The social worker began interviewing father. Father stated that before Aiden was born, mother was angry and yelled a lot, but there was a big change for the better after Aiden's birth. She was attentive and nurturing. He also said mother had been very upset since Aiden was detained. Father said he was surprised by mother's drug test results. He acknowledged that he saw her "smoke a lot of weed" but did not suspect that she had used methamphetamine. Mother returned about a half hour later, went into a different room than father and the social worker, and resumed yelling comments at the social worker. Father began yelling at mother, but his efforts to calm her only infuriated her more. Mother continued cursing and demanded that the social worker leave her apartment. When the social worker agreed to leave, mother initially blocked the door, and then followed the social worker out of the apartment, continuing to yell, scream, and act in an intimidating manner. While father was most likely aware of mother's continued behavior, he did not leave mother's apartment.
At a child and family team meeting (CFT) on March 27, 2019, mother was very angry and aggressive towards the social worker, continuing to curse and yell at the social worker, who felt that mother might attack her. Father was not able to calm mother down, and mother only seemed to grow angrier when father tried to tell mother to stop. When security guards entered the room, mother yelled and screamed at them. The CFT was halted, and initially mother agreed to try to calm herself, but when the social worker said that the CFT would only continue with security present, mother continued yelling and cursing. She also threatened to kidnap the social worker's daughter, identifying the daughter by name even though the social worker had not shared her daughter's name with mother. Mother said she "googled" all of her social workers and obtained photos of the workers with their children from social media. Mother displayed a family photo of another social worker, at which point the CFT was terminated.
Paternal grandmother reported that before Aiden was born, mother and father lived with her. Mother would become very angry and yell and scream. More than once, mother punched and hit father in the very early mornings while he was still sleeping. Mother also held a bottle of hairspray and a cigarette lighter up to paternal aunt and threatened "I'm going to burn your pretty face off." Paternal aunt stated she has a good understanding of mental illness; she questioned mother's mental stability and expressed concerns about mother's ability to care for Aiden.
Mother's mental health deteriorated significantly in April 2019. In early April, mother threatened the foster mother, calling and texting multiple times, with information that led foster mother to believe mother knew her address. Foster mother filed a police report after mother texted her "yall think this is a fucking game, you should be settled by 8:00pm, I've should've been popping at this mother fucker."
On April 9, 2019, mother's case manager informed the Department social worker that mother's mental health was deteriorating. Mother had violated her housing program agreement and placed her housing arrangement in jeopardy by refusing to permit her case manager and therapist into her home. Father had answered the door when the case manager and the therapist had tried to visit mother, and the case manager heard mother in the background yelling obscenities. Mother did not want her therapist or her case manager to attend an upcoming CFT, stating they were not helping her get her baby back. Mother also called the social worker, yelling and screaming that the social worker had not provided her with information on how to get her baby back. Afterwards, father called the social worker to ask what he needed to do to get his son, and mother could be heard in the background yelling and screaming at father, telling him what to say to the social worker.
On April 18, 2019, mother was unable to control her angry outbursts during a monitored visit at the Department offices. She was holding Aiden, and her incessant screaming and cursing caused him to scream and cry. Mother threatened to "shoot" the social worker, and "shoot up" the building. Father could not calm mother down. He told the supervising social worker that mother had not taken her medication that day and that mother "acts like this all the time, but y'all have her baby, so she's mad." The visit was cut short, mother was escorted out of the building, and law enforcement was called.
Mother also began showing signs of paranoia, accusing the social worker of filing a warrant for her arrest and claiming the social worker had the power to make a phone call and have the baby returned to her care. The social worker never gave mother her personal phone number, but on April 20, 2019, mother began calling the social worker's personal phone incessantly and sending threatening text messages, including one text message containing personal information (the date of a baby shower) that the social worker had not shared with mother.
Mother's former therapist (her current case manager) confirmed that mother was not taking her psychotropic medications on a regular basis. The case manager said that she was working with mother on getting her medication schedule back on track. Mother was refusing her therapy appointments and was in danger of losing her housing at "the Village" due to ongoing domestic violence incidents with father.
On May 2, 2019, the Department filed an amended petition, adding two identical allegations under section 300, subdivisions (a) and (b)(1). The new allegation stated: "[Mother] has exhibited violent, hostile behavior and there is an unresolved history of domestic violence between the mother and father, Alfred [J.] On or about, 08/13/2017, [father] was arrested for corporal injury to a spouse. Further, the mother, . . . has a criminal history of a Force/adw not firearm; GBI (2001); taking a vehicle w/o own consent; battery, burglary, and threatening a crime with intent to terrorize. She has displayed threatening and abusive behaviors, including but not limited to, threatening to shoot the social worker and shoot the [Department's main] office. The mother's propensity for criminal acts, and violence remains unresolved and impairs her ability to adequately parent and protect [Aiden J.] and places the child at substantial risk of harm. The domestic disputes between the parents remains unresolved and places the child at substantial risk of emotional and physical harm."
Adjudication hearing
The juvenile court held its jurisdiction and disposition hearing in May 2019. It admitted into evidence the Department's reports and attachments, and heard testimony from the social worker and father. The social worker testified that she had concerns about father based on the history of domestic violence between mother and father, father's reluctance to meet with the Department, and his homelessness. Father denied that he lived with mother or was in a relationship with her. He was staying with his sister, but would have an apartment after final approval from the VA. He denied knowing mother was using marijuana during her pregnancy, and did not believe a pregnant woman should use drugs. He denied that mother ever hit him. He had taken parenting classes at the VA in March and April of 2019. He admitted he was arrested for domestic violence in 2017.
Arguing in support of the jurisdictional allegations, the Department highlighted father's verbal aggression towards mother at the hospital, his earlier statements denying any domestic violence, and his statements minimizing his 2017 arrest for domestic violence. The Department argued that father lacked insight into mother's abusive behavior and was not able to calm mother down. Father's attorney argued that the allegation of failure to protect was not applicable because father testified he had never seen mother use drugs. On the dangers posed by domestic violence, father's attorney argued that the statement by paternal grandmother and the record of father's 2017 arrest were inadequate to support jurisdiction. The attorney argued the court should give more credence to mother's case manager, who found father to be polite and did not suspect domestic violence.
The juvenile court sustained the petition allegations without elaboration of its reasons on the record, and proceeded to consider disposition. Father requested that the court place Aiden with him, arguing that because father was the victim of domestic violence, and did his best to protect the child from mother, there was no safety issue because father did not live with mother. Father's attorney explained that father knew how to parent and had good judgment, as demonstrated by the fact that he made appropriate plans for his five-year-old daughter to live with his adult daughter. It would be reasonable to protect Aiden by ordering that parents were not to live together, father was to participate in programs, and the Department could make unannounced visits. The Department argued against placement with father, pointing to the contradictions in father's statements about mother's drug use, his inability to control mother's behavior, and the likelihood that if Aiden was placed with father, he would not be able to protect the child from mother. The court found a substantial danger to Aiden's physical health and well-being if he was returned home, and that there were no reasonable means to protect him without removing him from mother and father.
DISCUSSION
Father contends the court's jurisdictional findings against him are unfounded. He also contends the court's dispositional order removing Aiden from his custody was not supported by substantial evidence. The Department argues that there was sufficient evidence to support the court's order sustaining the allegations under section 300, subdivision (b)(1), and the order removing Aiden from father's custody.
Justiciability of father's challenge to jurisdictional findings against him
The Department initially argues that father's appeal to the jurisdictional findings against him should be dismissed as non-justiciable, because even if we find insufficient evidence to support those findings, the juvenile court will retain jurisdiction based on mother's mental illness and substance use.
"'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.]" (In re I.J. (2013) 56 Cal.4th 766, 773; In re I.A. (2011) 201 Cal.App.4th 1484, 1492 ["an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence"].) However, when the challenged jurisdictional findings serve as the basis for dispositional orders that are also challenged on appeal, we may exercise our discretion to review the merits of the challenge. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; In re Alexis E. (2009) 171 Cal.App.4th 438, 454.) We elect to exercise our discretion here, because father has also appealed the order removing Aiden from his custody.
Standard of review
"[W]e review both the jurisdictional and dispositional orders for substantial evidence. [Citation.] In doing so, we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders. Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment. [Citation.] But substantial evidence 'is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] . . . "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." [Citation.]' [Citation.]" (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Substantial evidence can be based on inferences that are grounded in logic and reason, but not speculation or conjecture alone. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093.) To obtain reversal, the appealing party must show there is no evidence of a sufficiently substantial nature to support the findings or order. (In re D.C. (2015) 243 Cal.App.4th 41, 52.)
Jurisdictional findings
Father contends there is insufficient evidence to support the court's jurisdictional findings based on the risk of harm stemming from domestic violence and father's failure to protect Aiden from mother's drug use. Father does not deny that he was arrested on domestic violence charges in 2017, but argues that his arrest alone, without any charges being filed and without any credible evidence of ongoing domestic violence, is inadequate to support a jurisdictional finding under subdivision (b)(1) of section 300. He further argues that while he knew mother was using marijuana during pregnancy, his knowledge does not amount to neglect, particularly when mother's doctors were also aware that she was using marijuana during her pregnancy.
The record contains ample evidence to support jurisdiction under section 300, subdivision (b)(1). Considered against the backdrop of mother's untreated mental illness and both parents' denials of ongoing domestic violence, the evidence of father's inability to protect Aiden from risk of substantial harm provides support for the court's jurisdictional findings.
Dependency jurisdiction is warranted 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)(1); In re R.T. (2017) 3 Cal.5th 622, 625.) Section 300, subdivision (b)(1) "authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child." (In re R.T., supra, at pp. 624, 627-633, 636-637, fn. 6 [disapproving In re Precious D. (2010) 189 Cal.App.4th 1251, and rejecting the reasoning requiring parental neglect for jurisdiction as set forth in In re Rocco M. (1991) 1 Cal.App.4th 814, 820].) To sustain an allegation based on risk of future harm to the child, that risk must be shown to exist at the time the court makes the jurisdictional finding, but the court need not wait until the child is seriously injured to assume jurisdiction. (In re Yolanda L., supra, 7 Cal.App.5th at pp. 987, 993.) "To establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]' [Citation.]" (In re D.L. (2018) 22 Cal.App.5th 1142, 1146; see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 ["[a] parent's '"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue'"].)
A single incident of potentially harmful conduct may be sufficient to establish jurisdiction. (In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026.) "In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim . . . ." (Ibid.) It is well established that exposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b)(1). (See In re R.C. (2012) 210 Cal.App.4th 930, 941; In re Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.); In re E.B. (2010) 184 Cal.App.4th 568, 576.)
The record before the trial court contains evidence that father minimized the parents' history of domestic violence and lacked insight into how verbal aggression—whether by him against mother or by mother against social workers and other individuals—posed a serious risk to Aiden's safety. Mother reported being arrested for hitting father early in their relationship. Paternal grandmother also reported that mother would hit father and threatened to harm paternal aunt. The police report from the 2017 arrest stated that father was taken to the hospital with puncture wounds on his back that appeared to be stab wounds from tweezers. Nevertheless, at the adjudication hearing, father insisted that mother never hit him. During the Department's investigation, father had denied any domestic violence until the Department discovered his 2017 arrest. Father was verbally aggressive towards mother while she was in the hospital, to such an extent that mother was described as inconsolable and suicidal. While father acknowledged mother used to scream and yell earlier, he insisted that mother was "cured" after Aiden was born. Rather than taking steps to calm mother when she became angry and aggressive towards the social worker, father yelled at mother, causing her to escalate her anger. When mother was holding Aiden during a visit and started screaming and cursing, father told the supervising social worker that mother had not taken her medication and said she "acts like this all the time," justifying her behavior by pointing out that the Department had taken her baby.
Father argues paternal grandmother's reports of mother's violent statements and behavior were speculative. Instead, he points to mother's case manager's description stating that father was polite and she did not have any concerns about domestic violence. We decline father's invitation to consider evidence that would support a contrary finding. If supported by substantial evidence, the dependency court's judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency 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.) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)
Having found substantial evidence to support count b-4, we need not reach father's argument that the court's other jurisdictional findings were in error. "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the [trial] court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E., supra, 171 Cal.App.4th at p. 451, see also In re Ashley B. (2011) 202 Cal.App.4th 968, 979 ["As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate"].)
Removal order
The decision to remove a child from parental custody is only authorized when a dependency court finds, by clear and convincing evidence, that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's, guardian's, . . . physical custody." (§ 361, subd. (c)(1).) "A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent." (In re T.W. (2013) 214 Cal.App.4th 1154, 1163 [focus of the statute is on averting harm to the child].)
"'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus . . . is on averting harm to the child. [Citation.]' [Citation.]" (In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) "The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 170.) "[C]ourts have recognized that less drastic alternatives to removal may be available in a given case including returning a minor to parental custody under stringent conditions of supervision by the agency such as unannounced visits." (In re Hailey T. (2012) 212 Cal.App.4th 139, 148.)
We agree with authorities holding that "[t]he clear and convincing standard was adopted to guide the trial court; it is not a standard for appellate review. [Citation.] The substantial evidence rule applies no matter what the standard of proof at trial." (In re E.B., supra, 184 Cal.App.4th 568, 578; see In re Alexzander C. (2017) 18 Cal.App.5th 438, 451 [substantial evidence review applies on appeal, even for issues the trial court decides on clear and convincing evidence].)
The record before us supports the court's determination that there was clear and convincing evidence that without removing Aiden from father's custody, he would be at risk of harm. Father first argues that because the court's jurisdictional findings were erroneous, the court's removal order should also be reversed, as father was a non-offending parent. Alternatively, he argues that because he was attending parenting classes, was close to getting an apartment through the V.A. voucher program, and had the support of family members, it would not be detrimental to place Aiden in father's care. On the second point, he argues that mother's unbalanced and histrionic behavior "is irrelevant to the issue of [father's] fitness." We disagree.
Father's argument ignores the fact that on multiple occasions, father showed that not only was he unable to control mother's erratic behavior, he made statements that came close to justifying her threats of violence. Mother threatened to "shoot up" the Department offices during a visit, and the record demonstrates that father is either unwilling or unable to recognize how mother's behavior poses a risk to Aiden. Moreover, despite father's claims diminishing the issues of domestic violence and danger to Aiden because father could not live with mother, the evidence in the record shows that father did not separate from mother and was often at mother's apartment. As recently as April 24, 2019, less than a month before the removal order, mother's case manager reported that mother was at risk of losing her housing because of the domestic violence. We find substantial evidence to support the court's removal order.
DISPOSITION
The court's jurisdictional findings and dispositional orders are affirmed.
MOOR, J. We concur:
RUBIN, P. J.
KIM, J.