Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK82232, Deborah B. Andrews, Judge.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
A. M. (father) appeals from the dispositional order in the dependency proceedings concerning his children, B., P., J., and A., removing his children from his care. We affirm.
FACTS
When this matter arose in May 2010, there were four children, ages five and under, in the custody of mother and father. Mother and father were not married. Mother had a substance abuse problem, and the family had just completed a DCFS voluntary family maintenance plan that began in January, 2009. There had been two prior reports. DCFS found “general neglect by mother and father were substantiated.... The parents were not adequately supervising the children....” During the plan, the children remained in their home with their parents.
On May 7, 2010, while father was at work, mother observed that A. was unresponsive and “out of it.” She took him to the emergency room, as suggested by father, where it was determined that A. had either ingested marijuana or inhaled its smoke. By the time the social worker arrived at the hospital, later the same day, A. was alert and responsive and ready to be discharged.
Both mother and father believed that mother's brother, who had been staying in the home, had brought the marijuana into the home. When confronted by mother and interviewed by the social worker, the brother said that unbeknownst to mother and father, he uses marijuana. Neither mother nor father knew of his drug use. When the social worker went to the family home on the day of A.’s hospitalization, she observed that the older children were appropriately dressed, well-nourished, and healthy, and had no marks or bruises.
Immediately after the incident, both parents were tested for drugs. Mother tested negative for marijuana, although she tested positive for methamphetamines and failed to appear for her next random drug test. Father tested negative for all drugs.
DCFS detained the children and placed them in foster homes, with B. in one home and the three other children in another. The children remained in separate foster homes. Later B. was placed with his siblings.
Father initially told DCFS that mother was no longer using drugs and had successfully completed the DCFS requirements. Later, apparently after being informed of mother's drug test results, father told DCFS that he was “not in agreement with” with mother's drug use, and, because she was pregnant, feared that she was harming the new baby. DCFS reported he “is minimizing mother’s substance abuse.”
On May 12, 2010, DCFS filed a Welfare and Institutions Code section 300 petition. It alleged, under subdivisions (b) and (j), that both parents placed the children in a situation which endangered them, in that A. had ingested marijuana, and as alleged, under subdivision (b), that mother's history of illicit drug use rendered her incapable of providing regular care for the children and endangered them.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
By the jurisdictional/dispositional report filed on June 18, 2010, mother told the social worker that she needed help. That report also states that a referral for sexual abuse was under investigation, based on a June 3, 2010 report by the foster mother for the children that she saw three-year-old P. kiss her little brother A. on the lips. This caused the foster mother to question P. about sexual abuse. DCFS wrote that on questioning by the foster mother, P. “disclosed that when she was in the home of her parents she saw them engage in sexual activity.” In an August 10, 2010 “last minute information, ” DCFS explains that on questioning by the foster mother, P. said that “she saw her father kiss her mother on the cheek, chest, and inner thigh, ” and that the allegations “have been determined to be inconclusive.”
On June 25, 2010, both parents pled no contest to the petition. The case was continued until August 12 for disposition.
DCFS, in the August 10, 2010 “last minute information, ” reported that mother had moved out of the family home, father had enrolled in parenting classes and alcohol and drug awareness classes, and father had reported that mother was harassing him at work. DCFS wrote that it had asked father to seek a restraining order, but father “refused to follow through.”
This report also recounts another referral by the same foster mother, who reported that she had seen three-year-old P. and two-year-old J. playing naked and “fondling each other's body parts.” When asked, P. said that they were playing, and that she played the same game with her brother B.
At the August 12 hearing, through counsel, father represented that he had stable housing, had childcare planned, and even had a potential babysitter fingerprinted. As to the restraining order, father represented that he had gone to court to obtain an order, only to be told that jurisdiction was with the dependency court. Both mother and father asked that the children be released to father.
The juvenile court found that it was not credible that father had no idea about mother's continued drug use, that the real issue was whether father was able to protect the children from mother's drug use, and that he “was not really in a position” to do so. The juvenile court found that there was no reasonable means to protect the children without removing them from their home, and ordered that the children remain in foster care, with monitored visits for both parents. Father was ordered to participate in parent education and in individual counseling to address case issues, including co-dependency and enabling a drug user.
After the juvenile court made its orders, father asked the court to issue a restraining order against mother, telling the court “I don't want to be with her. I want to separate from her.” After further inquiry, the juvenile court ordered mother to stop contacting father at work. The juvenile court ordered father’s visits to be monitored. On appeal, father challenged the dispositional and visitation orders.
DISCUSSION
A. Standard of Review
“A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances... [¶] (1) There 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 or guardian's physical custody.... The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home.” (§ 361, subd. (c).)
Other enumerated circumstances include parents unwilling to have physical custody of the child, children suffering from severe emotional damage, children who have been sexually abused by a member of the household, or whose sibling has, and children left without any provision for support.
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for... the... dispositional findings. [Citations.] The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) We draw all reasonable and logical inferences in support of the findings, but inferences that are the result of mere speculation or conjecture cannot support a finding. (In re B.T. (2011) 193 Cal.App.4th 685, 691.) Despite the heightened burden of proof, we review the juvenile court’s findings in support of removal using the substantial evidence test, but bear in mind that elevated burden of proof. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; see also Nat. Auto & Cas. Co. v. Ind. Acc. Com. (1949) 34 Cal.2d 20, 25 [“‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal’”].) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
The standard of review for visitation orders is either abuse of discretion (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095-1096; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465; see In re Julie M. (1999) 69 Cal.App.4th 41, 48-49) or substantial evidence (In re Mark L. (2001) 94 Cal.App.4th 573, 581, fn. 5.) An abuse of discretion occurs when the court makes “‘“‘“an arbitrary, capricious or patently absurd determination.”’”’” (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806; see In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
B. Substantial Evidence Supported Dispositional Order
In making custody orders, juvenile courts must consider the best interests of the child. (See § 202, subd. (d).) The juvenile court was obligated to return the children to the parents’ custody at the disposition hearing, unless it found, by clear and convincing evidence that “there is or would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home....” (§ 361, subd. (c)(1).)
The following constitute substantial evidence supporting the juvenile court’s dispositional order: the children were very young—12 months old to five years old; the youngest child was harmed by parents’ neglect in that he ingested marijuana; father was aware of mother’s drug use; both mother and father gave equivocal explanations on how A. ingested marijuana; there was no evidence that the uncle caused this—only that he possessed the drug; a hospital staff member stated that the timeline given by parents in connection with this event was not consistent; father had failed to protect his children; there had been prior referrals and substantial neglect; father’s denial about mother’s drug use indicated he was unable to protect the children; notwithstanding prior family reunification and family maintenance services; father did not take steps to protect the children from the presence of drugs; and sexual abuse allegations were still under investigation.
The juvenile court concluded, “it is not credible to believe father had absolutely no idea anything was going on in the home with regard to mother’s drug use.... The court has real concerns about placing the children with father and does not believe he’s really in a position to protect them at this point.” The juvenile court added, “The court is expecting and optimistic that father will become in a position to be able to protect his children, but a V.F.R. didn’t do it, and family maintenance services didn’t do it before.” There may be facts and inferences that support the father’s position. But we are required to consider the evidence in the light most favorable to respondent, and we consider only whether there is substantial evidence supporting the finding. As there is substantial evidence to support the juvenile court’s conclusion, we affirm the dispositional order.
C. The Juvenile Court did not Err with its Visitation Order
Father complains that the juvenile court provided no reason why father had to have monitored visits. Counsel for father, however, did not ask for a reason, nor did he provide any argument why unmonitored visits were appropriate.
Given the age of the children, the evidence of father’s failure to protect them from mother’s drug use notwithstanding the extensive services that had been provided, and the evidence that he had not yet addressed the issue the family faced through individual therapy, an order for monitored visits was a reasonable and appropriate exercise of the juvenile court’s discretion and was based on substantial evidence. Accordingly, the order for monitored visits is affirmed.
DISPOSITION
The orders are affirmed.
I concur: KRIEGLER, J.
ARMSTRONG, Acting P. J., Dissenting
I would reverse. Appellant was a sober and competent parent. He was employed, had stable housing, and understood the importance of reliable child care. He had never harmed his children, and he wanted to care for his children. I see no reason for the government to interfere with that.
We are concerned here with a dispositional order, which means that DCFS bore the burden of proving, by clear and convincing evidence, that there would be a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being if they were placed with their father, rather than in foster care, and that there were no reasonable means to protect the children without removing them from their father. I do not see substantial evidence for either finding.
The so-called evidence cited by DCFS in its brief and the majority in its opinion cannot bear even the slightest objective scrutiny.
The majority writes that "the youngest child was harmed by the parents' neglect in that he ingested marijuana." But we are not concerned, in this appeal, with "the parents, " but with Father. What did he do wrong? The evidence was that the marijuana belonged to the uncle, and there is no evidence that Father knew or should have known that the uncle used marijuana and would bring it into a house full of small children. Indeed, the evidence was to the contrary, that Father did not know and that if he had, he would not have allowed the drug into his home. There is no evidence that Father was neglectful.
The majority writes that Father gave an "equivocal" explanation on what had happened. I find it curious that the majority believes DCFS can carry its burden through a flaw in a parent's statement about what might have happened. DCFS never argued that the marijuana belonged to Father, and it was undisputed that he was not at home when A. ingested the drug, so why would he be able to precisely account for the incident?
Father told DCFS that he believed that the uncle had brought the marijuana into the house, but that he did not believe that the uncle had smoked marijuana, because he did not smell it. Instead, Father believed that the uncle had dropped some of the drug, and that A. was exposed at a later time. What is equivocal about that? Is the majority relying on a statement by a hospital social worker, who, according to DCFS, said that the parents' timetable appeared to be a little off? Even aside from the imprecision of the statement, there is no indication that the social worker was qualified to opine on the effect of an unknown quantity of marijuana on a young child, and the statement proves nothing.
The majority writes that Father was aware of Mother's drug use and that his denial of her drug use indicated that he would be unable to protect the children. I do not understand. Does the majority believe that the evidence established that Father knew of Mother's drug use? or that it established that he did not know, when he should have, and was thus "in denial?"
The evidence before the court consisted of DCFS reports that Father initially stated that (as DCFS itself must have believed when it closed the family maintenance case) Mother was not using drugs, and his statement, once her drug test showed that he was wrong, that he did not want her to use drugs and believed that it was dangerous for her to do so. I cannot find in these facts any indication of a failure to protect, past or predicted. On the very day that A. was detained, the other children were appropriately dressed, well-nourished, and healthy, and free of marks or bruises. DCFS, which had been intimately involved in the family, had allowed the children to remain in the home. If the experts at DCFS did not believe that Mother posed a threat to her children, how was Father to know?
Nor was there any evidence that Father would fail to protect the children from Mother in the future. He had separated from her and sought a restraining order against her. He told the court that he did not want to be with her. The court ordered monitored visits for her, and given that Father had cooperated with DCFS in the past, and apparently had never violated a court order or indeed a DCFS suggestion, there is no evidence that he would behave differently in the future.
Finally, the majority cites the on-going sexual abuse allegations. One of those referrals had already been investigated, with a finding that the allegations were "inconclusive." The other referral was based on the foster mother's observation that two toddlers, aged two and three, were undressed and touching each other. The foster mother did not describe the acts she saw, and neither she nor DCFS indicated how those acts, in the context of very young children, were indicative of sexual abuse, rather than normal play. The foster mother's vague description of her observation does not constitute clear and convincing evidence that the children would have been at risk in Father's home.
The dependency law does not allow the courts to separate children and parents unless there is evidence, to the standard specified in the statute. Where there is no such evidence, we must reverse. (In re Frank R. (2011) 192 Cal.App.4th 532; In re Daisy H. (2011) 192 Cal.App.4th 713; In re V.M. (2010) 191 Cal.App.4th 245.) That is what I would do here.