Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J210040. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, Acting P.J.
Appellant John C. (father) contends that the juvenile court made several erroneous findings with regard to the dependency case involving Christopher and Jeremy (the children). Father claims that: 1) there was insufficient evidence to support the court’s jurisdictional findings; 2) the court erred in finding that he was an alleged father, rather than a presumed father; and 3) the court erred in finding that the children could not be placed in his custody, since he was a nonoffending parent. We disagree and affirm.
Counsel for the children filed a letter brief on August 30, 2007, joining in respondent’s brief and urging us to affirm the court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
On August 23, 2006, the San Bernardino County Department of Children’s Services (the department) filed Welfare and Institutions Code section 300 petitions on behalf of the children, alleging that they came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Christopher was six years old at the time, and Jeremy was five. The petition alleged that the children’s mother (mother) had problems with substance abuse and violence, and that she was arrested for abandoning the children’s brother. The detention report stated that mother abandoned her 13-year-old son, Travis, at a Salvation Army office. After the police arrested her, the department took protective custody of the children. Father was listed in the petitions as the children’s alleged father, but his whereabouts were unknown.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
Mother is not a party to this appeal.
At the detention hearing, the court detained the children and placed them in the temporary custody of the department.
Jurisdiction/Disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on September 14, 2006, and recommended that father remain an alleged father, not entitled to reunification services. Mother had filled out a paternity questionnaire and stated that father was the children’s father, but she was not married to him, and did not live with him at the time of conception or birth. She said that no court had ever entered a judgment regarding paternity, that there was no child support order, and that the father had never supported the children. Father’s whereabouts remained unknown.
The department’s search efforts for father produced two addresses and one phone number. Father was served with notice of the jurisdiction/disposition hearing set for December 4, 2006.
The social worker later reported that she visited father’s home on November 15, 2006. Father lived in a trailer that was located in a small, very low-income trailer park that was full of trash, broken glass, and boarded up trailers. Outside of father’s trailer, the social worker observed a chained-up pit bull, trash, and broken glass. His trailer was sparsely furnished, with only one plastic chair, a desk, a few boxes, and a mattress on the floor. The carpet was filthy and malodorous. The kitchen floor had splintered wood that did not appear safe to hold the weight of an adult. The roof apparently leaked, and some windows were inoperable.
Father appeared at the jurisdiction/disposition hearing on December 4, 2006. At his request, the court ordered paternity testing on both children. The court also ordered father to drug test that day, and it warned father that a failure to test would be deemed a positive test.
The court held a hearing on January 30, 2007, and ordered father to drug test again that day. The court reminded father that a failure to test would be deemed a positive test. Father failed to complete any drug tests.
On February 14, 2007, the social worker filed an addendum to the detention and jurisdiction/disposition report. She reported that, on February 8, 2007, she called father to inform him that he was the biological father of the children. A few hours later, the maternal uncle called the social worker and stated that he had received a call from a person he believed to be father. The person attempted to disguise his voice and screeched and yelled, “‘We are taking Chris and Jeremy away from you. They are mine.’” The next day, mother called the social worker and stated that the maternal grandmother had received 15 to 20 harassing phone calls from father. The social worker also received a message from father, who stated that he did not drug test on February 8, 2006, because he was too busy, but that he would be in on Monday morning to drug test. Father stated that he called the maternal grandmother, and mother’s boyfriend answered the phone and threatened him.
The social worker recommended that father remain an alleged father. She surmised that he had not seen the children in two years. She opined that he had not held out the children to be his own, he had not provided for their support, and he had failed to maintain a nurturing parental relationship. The children did not identify father as a father and did not call him “dad.”
On February 20, 2007, the department filed first amended section 300 petitions on behalf of the children. The amended petitions added allegations against father under section 300, subdivisions (b) and (g), including that he had a substance abuse problem which interfered with his ability to care for the children, that he had a problem with violence, which placed the children at risk of abuse, that he was “suffering from psychological and social functioning” that rendered him incapable of providing care for the children, and that his ability to parent was unknown. In an addendum report, the social worker stated that father told her on November 15, 2006, that he had been on disability since 1996, but he did not know the reason why he was on disability. However, he did explain that he had sex with a girl who told him she was 18 years old, but really was not, so he went to jail. While in jail, he was suicidal and was sent to a state mental hospital. Father said he has been on disability since then. Father added that he was not on any medication or under a doctor’s care. Mother told the social worker that father was on Social Security Disability Income (SSI) for the mental illness of “‘psychopathy or something like that.’”
Father further told the social worker that he and mother were together as a couple, off and on, from 1996 through 2000. They got together again for about one year in 2004. Father stated that he knew mother was “‘doing drugs’” when they were together, but he denied doing any drugs, except that he smoked marijuana in the 1980’s, until he was arrested after selling marijuana to an undercover cop.
In addition, the social worker reported that father had an extensive criminal history which spanned from 1969 to 1997. He had been arrested over 20 times for a myriad of crimes, including lewd and lascivious acts with children, attempted murder of law enforcement, possession and cultivation of marijuana, burglary, robbery, assault with a deadly weapon, grand theft, and battery.
The social worker also discovered that in the years 2000 to 2004, when father and mother were together, the department received several referrals and established a voluntary family maintenance plan with regard to Christopher. Mother had tested positive for methamphetamine at Christopher’s birth. An August 24, 2004, referral stated that the police had been to the home of father and mother seven times in the previous three weeks, due to domestic violence between them. The referral stated that father threatened to have a social worker killed, and that he had been seen kicking the children, pulling their hair, and pulling them across the street by their arms.
The social worker continued to recommend that father remain an alleged father, not entitled to reunification services.
On February 21, 2007, the court held a pretrial settlement conference. Mother’s attorney informed the court that father was harassing mother. The court addressed father and noted that he appeared to have been drinking. Father denied it. The court also noted that father caused problems every time he was in court, and reprimanded father for his poor attitude.
On February 28, 2007, the court held the jurisdiction/disposition hearing. Father’s counsel did not present any evidence, but argued that there was insufficient evidence to support the allegations against father in the amended petitions. Father’s counsel argued that the department relied on outdated facts for its allegations that father had substance abuse and psychological problems. He also said that father adamantly denied having a problem with violence. Counsel for the children and the department responded that father had been asked to drug test on four occasions and refused each time. They also referred to his extensive criminal history. Counsel for the department referred to father’s mental health issues and asserted that he was receiving SSI, that he had made threatening calls to relatives, and that his behavior in court spoke for itself.
The court found the allegations concerning father to be true and found that the children came under section 300, subdivisions (b) and (g). It then declared them dependents of the court. The court also adopted the findings in the social worker’s report dated February 21, 2007, including that father was not a presumed father and was not entitled to reunification services, and that there was clear and convincing evidence that placement with him would be detrimental to the safety, protection, or physical or emotional well-being of the children, in that he suffered from mental health issues and was not under a doctor’s care, he had not sought treatment for violence and substance abuse issues, he did not have a bond with the children, and he maintained unsafe living conditions. The court specifically found that family reunification services were not in the children’s best interests.
ANALYSIS
I. There Was Sufficient Evidence to Support the Court’s Jurisdictional Findings
Father contends there was insufficient evidence to support the allegations concerning him in the section 300 petitions. He specifically contends that since the evidence was based on his past history, it did not show that he posed a current risk of serious harm to the children. We disagree.
A. Standard of Review
We review the trial court’s jurisdictional findings under the substantial evidence standard. Substantial evidence is “evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
B. The Court Had Jurisdiction Over the Children Based on Mother’s Conduct
At the outset, we note that the court had jurisdiction over the children based upon the true findings on the allegations regarding mother. “[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the child] within one of the statutory definitions of a dependent. [Citations] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. [Citation.]” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Father does not dispute the true findings as to mother.
C. Substantial Evidence Supported the Court’s Findings as to Father
In evaluating the evidence, the emphasis must be on circumstances existing at the time of the jurisdictional hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) However, evidence of past problems may be relevant to current circumstances and thus may be considered. (In re Michael S. (1981) 127 Cal.App.3d 348, 358, superseded by statute as stated in In re Kristin H. (1996) 46 Cal.App.4th 1635, 1664-1666.)
1. Substance Abuse Allegation
Father first argues that there was insufficient evidence to support the finding that he had a substance abuse problem that interfered with his ability to care for the children. However, the evidence showed that father admitted smoking marijuana in the 1980’s, and that he had been arrested for possession of marijuana and cultivation of marijuana. Accordingly, since father was seriously involved with drugs in the past, it was reasonable to infer that he had a substance abuse problem. Furthermore, the court ordered him to drug test, and warned him twice that the failure to test would be deemed a positive test. By the time of the jurisdictional hearing, father had been asked to drug test on four occasions, and had refused each time. Therefore, the record before the court showed four positive drug tests. In addition, at one hearing, when father was harassing mother, his appearance led the court to believe that he had been drinking. In sum, there was sufficient evidence for the court to find that father had a substance abuse problem that would interfere with his ability to take care of the children.
Father contends that neither the department nor the court had the authority to order him to drug test since there were no grounds upon which to make the order. He asserts that the department must have some evidence that there is a substance abuse problem before it can order a parent to drug test. The court has the authority to make any order that it deems necessary and proper for the best interests of the child. (§ 245.5.) Given father’s criminal involvement with marijuana, it was reasonable for the court to order him to drug test. Moreover, the drug tests provided father with the opportunity to show that he did not use drugs. Instead of taking advantage of the opportunity, he chose not to comply with the court’s orders and to mark his record with four positive drug test results.
2. Allegations of Psychological and Social Problems
Father argues that the allegation that he suffered from “psychological and social functioning” which rendered him incapable of providing appropriate care for his children was nonsensical. He further contends that it did not allege any condition that would create a risk of harm to the children. Common sense dictates that the allegation simply meant that father had psychological problems that rendered him unable to provide regular care for the children. There was sufficient evidence to support this allegation. Father informed the social worker that he had been on disability since 1996, but stated that he did not know the reason why he was on disability. The fact that he was not aware of the reason he was on disability was some indication of a mental defect. Father was clearly on disability because of a mental deficiency. He admitted that he went to jail for having sex with a minor, and was sent to a state mental hospital because he was suicidal in jail. Father has been on disability since that time, which indicates that he still suffers from some mental health problems. However, he is not under a doctor’s care or on any medication. These circumstances definitely warranted concern on the part of the court.
Furthermore, father’s conduct during the dependency proceedings demonstrated that he had psychological and social problems. As soon as the social worker told him he was the children’s biological father, he called the maternal uncle, disguised his voice, and threatened to take the children away. He also called the maternal grandmother 15 to 20 times and harassed her. In addition, father’s standard of living warranted doubt as to whether father would provide adequate care for the children. The social worker observed that father maintained unsafe living conditions. He lived at a trailer park that was full of trash, broken glass, and boarded up trailers. His trailer was sparsely furnished, with only one plastic chair, a desk, a few boxes, and a mattress on the floor. The carpet was filthy and malodorous. The kitchen floor had splintered wood that appeared unsafe. The roof leaked, and some of the windows were inoperable.
In view of the foregoing, there was sufficient evidence for the court to find that father would not be able to adequately care for the children because of his psychological and social problems.
3. Allegation Concerning Problems With Violence
Although father concedes that he has been arrested for violent crimes, he argues that there was no current risk of harm to the children since his last arrest was in 1997. We disagree. Father had an extensive criminal history, spanning nearly 30 years, from 1969 to 1997. He has been arrested for violent crimes, such as attempted murder of law enforcement, robbery, assault with a deadly weapon (three times), and battery (two times), not to mention carrying a concealed firearm (two times) and lewd and lascivious acts with children. This record indicates that he has an abnormally violent personality. The fact that he has not been arrested (or caught) in a few years does not necessarily mean that he has changed.
In August 2004, the department received a referral stating that the police had been to the home of father and mother seven times in three weeks, due to domestic violence. The referral stated that father threatened to have a social worker killed, and that he had been seen kicking the children, pulling their hair, and pulling them across the street by their arms. Father argues that there was no evidence that the department acted on the referrals or filed a petition. However, father told the social worker, he and mother were not together after 2004. Thus, there was no need for the department to file a petition at that time since mother protected the children by moving away from father.
In sum, the record showed that father had a violent past, which included criminal acts of violence, as well as violent acts toward mother and the children. There was no evidence that father had ever participated in any type of counseling, or had been rehabilitated in any way. Thus, even though none of the arrests or reported acts were current, the court properly concluded, out of an abundance of caution, that there was sufficient evidence to show that father’s violent conduct placed the children at risk of abuse.
II. The Court Properly Found That Father Was Not a Presumed Father
Father argues that the court erred in not finding that he was a presumed father entitled to reunification services. We disagree.
A. Standard of Review
In reviewing a court’s finding on the issue of the status of a father, we “review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. ‘We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent.’ [Citation.]” (Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118.)
B. Father Failed to Meet His Burden
“Presumed fatherhood, for purposes of dependency proceedings, denotes one who ‘promptly comes forward and demonstrates a full commitment to his paternal responsibilities—emotional, financial, and otherwise[.]’” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802 (Jerry P.), fn. omitted.) One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) Family Code section 7611 “sets out a number of ways a father can obtain ‘presumed father’ status. He can marry or attempt to marry the child’s mother, he and the mother can execute a declaration of paternity or he can ‘receive[] the child into his home and openly hold[] out the child as his natural child.’” (Jerry P., supra, 95 Cal.App.4th at p. 802, fns. omitted.)
Here, father rests his claim to presumed-father status on the fulfillment of the Family Code section 7611, subdivision (d) requirement that he “receive[d] the child[ren] into his home and openly h[eld] out the child[en] as his natural child[ren].” Father asserts that he lived with mother when Christopher was born, that he lived with mother and both children off and on during the next few years and in August 2004, that he “said that he continued his relationship with the boys until a year prior to the dependency proceedings,” that he was ordered to pay child support at some point, that he appeared in court as soon as he was given notice of the proceedings and attended every hearing from that point forward, that he submitted to paternity testing, and that he told the social worker that he wanted custody of the children. None of these contentions show that father has demonstrated a full commitment to his parental responsibilities. Father has not even claimed that he provided emotional or financial support to the children. In fact, mother reported that father never supported the children.
At most, father has merely asserted his desire to have custody of the children. However, he has provided no evidence that he has held out the children as his own. Thus, the court properly found that he was not a presumed father.
III. The Court Properly Denied Father Custody of the Children
Father argues that he was entitled to custody of the children under section 361.2, since he was the nonoffending parent. We disagree.
Section 361.2, subdivision (a), provides: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
In In re Zacharia D. (1993) 6 Cal.4th 435, the California Supreme Court interpreted section 361.2, subdivision (a) to be applicable only at the time that the child is removed from the custodial parent’s home. (In re Zacharia D., supra, at p. 453.) Moreover, only a presumed father, and not a biological father, is entitled to assume immediate custody of his child. (Id. at p. 454.) The statute assumes the existence of a competent parent able to immediately assume custody. (Ibid.) Thus, if a nonoffending parent requests custody, “the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).)
When the children were removed from mother’s custody, father’s whereabouts were unknown, and therefore no determination under section 361.2 was made at that time. Moreover, father was not a presumed father. At the jurisdiction/disposition hearing, the court clearly found that placement of the children with father would be detrimental to the safety, protection, and physical and emotional well-being of the children. The evidence clearly supported this finding. Father suffered from mental health issues and was not under a doctor’s care, he had not sought treatment for violence and substance abuse issues, he did not have a bond with the children, and he maintained unsafe living conditions.
Accordingly, the court properly denied father’s request for custody of the children.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., MILLER J.