Opinion
B229908
10-19-2011
In re S.Y., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JEFFREY Y., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK83832)
APPEAL from a judgment of the Superior Court of Los Angeles County. Anthony Trendacosta, Juvenile Court Referee. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
Jeffrey Y. ("father") appeals the juvenile court's jurisdictional and dispositional findings and orders relating to his daughter S. He maintains that substantial evidence does not support the court's jurisdictional finding that S. was at substantial risk of harm from his marijuana use and his physical altercations with his wife, Julia Y. ("mother"). He also challenges the removal of S. from his custody, and the orders requiring random drug tests, domestic violence counseling, and monitored visitation. Finding no error, we affirm.
Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The family consists of mother, who is deaf and communicates by reading lips and writing, father, 12-year-old S., and her two adult siblings, Cindy and Tiffani.
The family participated in a Voluntary Family Maintenance plan with the Los Angeles County Department of Children and Family Services ("DCFS") from March 2008 through June 2009, due to a referral of emotional abuse of S. and her then-minor sister, Tiffani. The voluntary plan was implemented because mother attempted to kill herself, and the parents constantly argued in front of the children, which greatly affected them. The family participated in counseling and family preservation services, and the case was closed on June 25, 2009.
A year later, on June 21, 2010, DCFS provided Emergency Response Services due to mother's threatened suicide three days earlier, and father's allegation that mother was hitting S. In investigating this family's situation, DCFS learned that mother was a pharmacist and the sole financial provider for the family; that father had been unemployed for a substantial period of time, had been fired often, and could not hold down a job. Mother was overwhelmed by financial pressures and frustrated that father kept demanding that she give him money. Mother and father were preparing to file for divorce. Mother responded to these financial and family pressures by attempting to take, or taking, Ativan. S. took the Ativan bottle from mother and called 911. Mother was placed on a Welfare and Institutions Code section 5150 hold at BHC Alhambra Hospital.
Further statutory references are to this code unless otherwise specified.
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S. reported that she loves her mother but did not like what happened, and was afraid of her. S. denied that mother hit or beat her, but felt that mother was emotionally abusive, saying things like "you are worthless" and "good for nothing." S. was worried that her mother might hurt herself.
Father accused mother of beating up S. and her sisters. He claimed that mother's drug abuse was the reason he had not been able to keep a job. When the social worker suggested to father that S. might have to go with her for placement because she would not be safe in the home upon mother's return, father became upset and started screaming at the social worker, and told her to get out of the house. S. was visibly upset by the incident.
S. reported that she was comfortable with each of her parents, but "not together." The paternal aunt believed that S. would be better off living with mother, as father lacked "life skills." She believed that mother would never hurt S., stating that mother's issues were with father. She opined that it would be easier if father moved out of the home.
On June 25, 2010, mother returned to the family home; thus as of that time, mother, father, S., Cindy and Tiffani resided together, although mother and father planned to separate.
During a subsequent interview, mother told the social worker that she and father had gotten into a fight in the car and had tried to get each other's cell phones; she may have scratched father. Father responded to the incident by filing for a restraining order, which was issued on August 26, 2010.
A Team Decision Meeting was held on August 17, 2010 for father, and a separate Team Decision Meeting was held for mother the following week. It was decided at the meetings that the family would participate in counseling, mental health intervention, parenting classes, family preservation services, and domestic violence intervention. Also discussed at the meetings was where S. should be placed if she were detained. Participants of both meetings agreed that placement should be with the father's sister, and on August 25, 2010, S. was detained and placed with her paternal aunt.
On August 30, 2010, DCFS filed a section 300 petition alleging that the parents had a history of engaging in physical altercations, mother had mental and emotional problems and a history of substance abuse, and father failed to provide for the child. The court ordered S. detained, ordered monitored visits at least twice a week, and set the matter for an adjudication hearing.
In the September 27, 2010 jurisdiction/disposition report, the social worker reported that the parents were separated. Cindy and Tiffani resided with father. The Multidisciplinary Assessment Team ("MAT") assessor informed the social worker that mother was in therapy, and that father was a user of medical marijuana. According to the social worker, mother was receiving psychiatric care and taking psychotropic medication.
S.'s caregiver, the paternal aunt, told the social worker that father was residing in the family home, which mother paid for; mother was residing at a motel while she looked for housing. Mother wished to remove father from the home so that she could live there. The paternal aunt stated that father had attempted to have a visit with S. approximately three weeks earlier, but he was unwilling to meet in a neutral location or to visit S. outside of her home.
The social worker reported that the parents appeared to have substantial financial problems, and issues with domestic violence, anger management, and co-dependency. The social worker noted that father exhibited poor impulse control and had contributed to creating a detrimental environment for S.
On October 20, 2010, DCFS filed an amended petition, adding allegations that father had a history of substance abuse, and the parents created a detrimental home environment by failing to provide S. with a clean home. In an addendum report dated November 2, 2010, the social worker reported that mother had returned to live in the family home, even though father had obtained a restraining order prohibiting mother's presence at the home while father was present. Mother explained that Cindy needed her, and that when she and father were both in the home, they just went about their business.
Mother acknowledged that she and father still had domestic violence issues, saying that father had abused her in the past. She also stated that father used marijuana on a daily basis, explaining that he smoked marijuana "in the morning, just like a cigarette, he needs it, but it's not like it was an addiction."
S. told mother that she did not want to see father. Mother opined that S. felt safe with her, but not with father, and thought that therapy would make S. feel safe.
During an interview with the social worker on October 21, 2010, father stated that mother was living in the home because S. was not placed in the home. Father indicated that the restraining order had been amended so that he and mother could be together in court and during exchanges for visits with the children.
Father believed that S. was very unhappy about not living with him, which worried him. He explained that he had not visited S., even though visits had been arranged, because mother only provided him with $70, and he did not know what to do with $70 in the Hollywood area, where S. was living. Father claimed that mother spent $400 on visits with S.
Father stated that mother was responsible for the domestic violence and drug abuse, and indicated that he could support S. He also stated that S. was not attending school.
Father admitted that he used marijuana before or after every meal, stating that he needed the marijuana "to cope" after having had intestinal surgery in which he received 9,000 stitches. Father denied that he was abusing marijuana.
The MAT assessor contacted S.'s school after father reported that she had not been attending school. The school personnel stated that S. did not have an attendance issue, and that she had only one absence, which was excused.
Cindy, who lived with father, informed the social worker that she was aware of and could smell marijuana when father used it.
At the November 2, 2010 adjudication hearing, mother submitted a Waiver-of-Rights form, pleading no contest to the agreed upon allegations. Evidence admitted in connection with the contested counts concerning father included the August 30, 2010 detention report, the September 27, 2010 jurisdiction/disposition report, and the November 2, 2010 Last Minute Information for the Court. The child's counsel joined with DCFS in arguing that the juvenile court should sustain the allegations that the parents engaged in domestic altercations and that father abused marijuana.
The juvenile court sustained the following allegations of the amended petition: (1) mother had a history of substance abuse and was a current abuser of prescription medication, which periodically rendered her incapable of providing the child with regular care and supervision, and on or about June 18, 2010, mother was under the influence of prescription medication while the child was in mother's care and supervision, which placed the child at current risk; (2) mother and father had a history of engaging in physical altercations, and in 2010, the parents engaged in a physical struggle with each other, resulting in scratches, which conduct placed the child at current risk; and (3) father had a history of substance abuse and was a current abuser of marijuana, which rendered father incapable of providing the child with regular care and supervision, and his substance abuse endangered the child's physical and emotional health and safety and placed the child at current risk of physical and emotional harm and damage.
The court ordered reunification services for father, including individual counseling, parenting education, domestic abuse counseling, and random drug testing. The juvenile court also ordered that since father's marijuana use was medically approved, DCFS was to try and locate an alternate testing site to conduct the tests. The court thought that father should drug test to see if the levels were constant, or if his drug use increased. Father was granted monitored visits.
Father timely appealed the court's order.
DISCUSSION
Father contends that the juvenile court's jurisdictional findings are not supported by substantial evidence. In reviewing such a challenge on appeal, this court views the record in the light most favorable to the juvenile court's order. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1297.) We do not reweigh the evidence, but decide only whether sufficient evidence supports the findings of the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone; this court determines only "whether there is substantial evidence, contradicted or uncontradicted, which will support the conclusions reached by the trier of fact." (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)
Section 300, subdivision (b) provides that a minor comes within the jurisdiction of the juvenile 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, 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 . . . ." Three elements are necessary for a jurisdictional finding under this statute: "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Father argues that there was no evidence that he abused marijuana, that he had a history of marijuana abuse, or that his marijuana usage presented a risk to S. We disagree.
Father admitted that he used marijuana before or after every meal, and that he needed marijuana to cope. Mother stated that father smoked marijuana in the morning just like a cigarette, and that he needed the marijuana. Cindy, who lived with father, could smell marijuana when he smoked it. Thus, father smoked marijuana every day, throughout the day, because he needed it to cope. This evidence supports the conclusion that father abused marijuana. Relying on In re Alexis E. (2009) 171 Cal.App.4th 438, the court sustained the petition as to father based on his use and abuse of marijuana.
Father answers this evidence by referring to his medical marijuana card. However, having a prescription for an addictive drug does not inoculate one from abusing the drug - indeed, all adult alcoholics have a legal right to possess and consume alcohol.
Father also maintains that In re Alexis E., supra, is distinguishable from the facts of this case. In that case, the father challenged the jurisdictional order based on his use of medical marijuana, maintaining that there was insufficient evidence that he abused drugs in the past, or that his current medical use of marijuana presented a risk of harm to his children. Father argues, "There the children stated they smelled the marijuana. . . . Under those facts the trial court could reasonably find that the father's use of marijuana constituted a risk of harm to the minors because of father's failure to protect the minors from the marijuana smoke. [¶] By contrast, here the court had no evidence of [S.] reporting any smell of marijuana smoke and no evidence that she had seen her father smoking marijuana." There was, however, evidence that father smoked marijuana in the house while his children were present; Cindy so stated, and father did not deny it. Thus, like the children in Alexis E., father's marijuana use subjected S. to the negative effects of second hand marijuana smoke. In sum, the juvenile court's jurisdictional finding was supported by substantial evidence.
The juvenile court also found that the parents had a history of engaging in physical altercations, including a struggle in 2010 resulting in scratches, which the court found put S. at current risk of harm. However, because we have determined that S. comes within the jurisdiction of the dependency court, we 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; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)
Father also argues that since the jurisdictional findings should be reversed, the dispositional orders should be as well. Because we affirm the jurisdictional findings, we do not address this argument.
Finally, father contends that even if the juvenile court's jurisdictional findings and orders are proper, the orders concerning random drug testing, counseling and visitation must be modified. This is so, father avers, because the reunification plan which the court ordered was not appropriate for this family and based on the unique facts relating to the family, as required by section 362, subdivision (c). (See also In re Basilio T. (1992) 4 Cal.App.4th 155, 172; In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.) Father relies on the fact that this family came to the attention of the DCFS due to mother's mental health and substance abuse issues to argue that the court's dispositional orders directed at father are not warranted. However, a juvenile court has broad discretion to decide what is in the child's best interest and to fashion orders accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) A juvenile court's authority in fashioning dispositional orders is not limited to the issues raised by its jurisdictional findings. (Id. at p. 1008.) "[W]hen the court is aware of other deficiencies that impede the parent's ability to reunify with his child, the court may address them in the reunification plan." (Ibid.)
The juvenile court did not abuse its discretion in forming its dispositional orders by requiring random drug tests, domestic violence counseling, and monitored visits. The court had before it evidence of father's substance abuse, the parents' contentious relationship which had recently erupted in a physical altercation, father's deficient "life skills," and S.'s wish that she not see her father. The dispositional orders constituted a reasonable attempt to address the issues facing this family.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
KRIEGLER, J.