Opinion
B297888
02-18-2020
In re ISAAC Q., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NICHOLAS C., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP06517B) APPEAL from an order of the Superior Court of Los Angeles County, Steff R. Padilla, Juvenile Court Referee. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Nicholas C., Isaac Q.'s presumed father, appeals the jurisdiction findings and disposition order declaring his infant son a dependent child of the juvenile court, removing Isaac from the custody of both his parents and ordering monitored visitation and drug and alcohol testing and treatment for both parents. While acknowledging the propriety of dependency jurisdiction based on the actions of Isaac's mother, Nicholas contends the juvenile court's jurisdiction findings and disposition order relating to his alleged domestic violence and substance abuse are not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial and Amended Dependency Petitions
On January 29, 2019 the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of Isaac alleging Isaac's mother, Darcy Q., and Nicholas, with whom Darcy had been in a dating relationship since 2013, had a history of domestic violence in the presence of Darcy's then 10-year-old daughter, Janelle O., and Darcy had a history of abusing, and was a current abuser, of methamphetamine, which she used during her pregnancy with Isaac. The petition alleged the couple's domestic violence and Darcy's substance abuse placed Isaac at substantial risk of serious physical harm. An amended petition filed February 13, 2019 added the allegation that Nicholas also had a history of using, and was a current user, of methamphetamine and his substance abuse put Isaac at substantial risk of serious physical harm.
Statutory references are to this code.
Janelle is not Nicholas's child and was not a subject of these dependency proceedings.
2. The Jurisdiction Hearing
At the March 6, 2019 jurisdiction hearing Nicholas and Darcy submitted on the Department's reports. According to the Department, in September 2018 Janelle called the 911 emergency number to report that her mother and Nicholas had been fighting in her home and she heard Nicholas hit her mother. Darcy and Nicholas both told police officers who responded to the emergency call that their altercation was verbal and no physical contact had occurred. Both Darcy and Nicholas denied any history of domestic violence.
Following a referral, the Department conducted its own investigation of the September 2018 incident. Janelle reported to the Department that she did not actually see Nicholas hit Darcy, but that she often heard them fight and afterward noticed bruises on her mother's arm. Darcy insisted any bruises were self-inflicted and told this to Janelle. When Janelle got scared during Nicholas and her mother's arguments, Nicholas would apologize to Janelle and blame Darcy for "start[ing] it." Janelle was afraid of Nicholas's anger although he had never hit or otherwise harmed her.
In October 2018 the Department filed a section 300 dependency petition as to Janelle. Darcy was pregnant with Isaac at this time. Janelle was detained and placed in the custody of her father, Edward O.
In January 2019, while the dependency proceedings involving Janelle were continuing, Isaac was born with a positive toxicology screen for methamphetamine. Nicholas told social workers neither he nor Darcy used methamphetamine and speculated Isaac's positive toxicology test was the result of smoke that had penetrated the walls of Darcy's home when her next-door neighbor smoked methamphetamine. The Department reported that Nicholas had been arrested in August 2018 for possession of crystal methamphetamine and paraphernalia (a pipe) containing methamphetamine residue. He pleaded guilty to one count of possession of a controlled substance and was placed on probation.
Darcy and Nicholas denied any domestic violence had ever occurred between them. Nicholas refused to attend domestic violence classes or therapy, claiming he never hit Darcy. He also claimed he did not have a problem with drugs and was not a danger to Isaac. Darcy acknowledged her history of using methamphetamine but claimed she had stopped using when she found out she was pregnant with Isaac. Nicholas refused the social worker's request that he drug test, insisting he did not use methamphetamine.
The court found Isaac to be a person described by section 300 and sustained the allegations of domestic violence (§ 300, subds. (b), (j)) and substance abuse (§ 300, subd. (b)) as to both Nicholas and Darcy.
The court struck for lack of evidence an allegation that Nicholas had threatened Darcy with a knife.
3. The Disposition Hearing
At the April 25, 2019 disposition hearing the court declared Isaac a dependent child of the court and removed him from the custody of both parents. The court ordered family reunification services for both Darcy and Nicholas, including monitored visitation, individual counseling and a drug/alcohol program with weekly random or on-demand testing, individual counseling and parenting classes. In addition, the court ordered a 52-week domestic violence program for Nicholas (for perpetrators of domestic violence) and for Darcy (as a victim of domestic violence).
Nicholas filed a timely notice of appeal from the court's jurisdiction findings and disposition order. Darcy has not appealed.
DISCUSSION
1. Dependency Jurisdiction Was Proper Based on the Court's Findings Concerning Darcy
Nicholas challenges the jurisdiction findings pertaining to him, arguing there is no substantial evidence to support the court's findings he had committed domestic abuse or his current use of methamphetamine placed Isaac at substantial risk of serious physical harm when in his custody.
The findings regarding Darcy are sufficient to support dependency jurisdiction. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492 [jurisdiction finding involving one parent is good against both; "'"the minor is a dependent if the actions of either parent bring [the child] within one of the statutory definitions of a dependent"'"]; In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [same].) Accordingly, Nicholas's challenge to dependency jurisdiction based on findings relating to his conduct does not raise a justiciable controversy for our consideration. (In re Briana V. (2015) 236 Cal.App.4th 297, 310-311.)
2. Substantial Evidence Supports the Juvenile Court's Disposition Order Removing Isaac from Nicholas's Custody
Before the court may order a child removed from the physical custody of a parent with whom the child was residing at the time the dependency proceedings were initiated, it must find by clear and convincing evidence that the child would be at substantial risk of physical or emotional harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c); In re T.V. (2013) 217 Cal.App.4th 126, 135; see In re Anthony Q. (2016) 5 Cal.App.5th 336, 347.) "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 T.V., at pp. 135-136.) We review the court's removal order at disposition for substantial evidence. (Id. at p. 136; In re Lana S. (2012) 207 Cal.App.4th 94, 105.)
Nicholas contends removal was based on unsupported findings of substance abuse and domestic violence. However, the undisputed evidence established that Nicholas was arrested for possession of methamphetamine and a pipe containing methamphetamine residue in August 2018 just a few months before Isaac was born. Janelle's father, who was familiar with methamphetamine use, also reported he knew Nicholas to be a current user of methamphetamine. Isaac was born with a positive toxicology screen for methamphetamine, yet Nicholas insisted neither he nor Darcy consumed methamphetamine and blamed their neighbors for Isaac's positive drug test. The court did not credit Nicholas's account.
As an alternative argument, Nicholas contends removal is a last resort and, even if he had a history with methamphetamine, there was no evidence he was ever under the influence of methamphetamine near Janelle, let alone Isaac. However, a finding of substance abuse constitutes prima facie evidence of a parent's inability to provide regular care for a child of "tender years" like Isaac. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) Because Nicholas refused to drug test, Nicholas could not rebut that evidence by demonstrating he had stopped using drugs following his arrest. Both the Department and Isaac's counsel urged the court to remove Isaac from Nicholas's custody, quite properly asserting that Nicholas's refusal to acknowledge, let alone address, his drug use placed Isaac at substantial risk of serious physical harm and that, as a consequence, there was no other means to protect Isaac other than removal. Substantial evidence supports the court's order.
This evidence of Nicholas's methamphetamine use, of course, also supports the court's jurisdiction finding as to Nicholas.
3. The Court Did Not Abuse Its Discretion in Ordering Nicholas To Complete Domestic Violence Counseling for Perpetrators and a Substance Abuse Program
Nicholas also contends the court abused its discretion in ordering him to complete a substance abuse program and domestic violence counseling for perpetrators. (See § 362, subd. (d) ["[t]he juvenile court may direct any reasonable orders to the parents . . . as the court deems necessary and proper to carry out this section," including requiring participation in counseling, education and treatment programs]; In re Briana V., supra, 236 Cal.App.4th at p. 311 ["'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion'"]; In re Daniel B. (2014) 231 Cal.App.4th 663, 673 [same].)
Janelle reported that Nicholas and her mother argued, she heard a loud bang, and the next day her mother appeared with bruises on her arms. Although Janelle did not see Nicholas batter her mother, she heard it and saw evidence it had occurred. The court found Nicholas's refusal to acknowledge his acts of domestic violence placed Isaac at substantial risk of serious harm if the child remained in Nicholas's custody. To alleviate that risk and enhance the possibility of reunification, the court ordered Nicholas to engage in therapy for domestic violence perpetrators. That reasonable order was well within the court's discretion. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["[o]ne cannot correct a problem one fails to acknowledge"].)
Nicholas's contention the court's order requiring him to participate in a drug program was arbitrary and capricious because he did not use drugs is also without merit. As discussed, there was ample evidence he used methamphetamine. The court found Nicholas's completion of a drug treatment program was necessary to provide Nicholas with insight into the harmful effects of substance abuse and ensure Isaac's safety in his custody. There was nothing irrational or arbitrary about that order.
DISPOSITION
The court's jurisdiction findings and disposition order are affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.