Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County CK 61249, CK 69848, Jacqueline Lewis, Referee.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, Plaintiff and Respondent.
FLIER, J.
In these consolidated cases, father appeals from the jurisdictional and dispositional orders of the juvenile court as to C.V., his son by Y.R., and as to his daughter A.L., and sons A.L.2 and J.L., his children by E.B. Father contends (1) no reasonable efforts were made to prevent or eliminate the need for detaining the children from his care, (2) the juvenile court erred in sustaining allegations under Welfare and Institutions Code section 300 as to father, (3) there was no sufficient evidence to support the court’s declaring the children dependents of the court or the orders removing them from father’s custody, and (4) the children should have been returned home to father, rather than suitably placed. We affirm, finding the juvenile court properly exercised jurisdiction over the children and substantial evidence supports the juvenile court’s orders removing the children from father’s care.
Neither mother is a party to this appeal.
All further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
C.V. was born positive for methamphetamines, and father gained custody of him in June 2007, after his mother Y.R. failed to comply with court orders. Before the events in question, father also obtained custody of daughter A.L. (12), and sons A.L.2 (8) and J.L. (7) (sometimes the older children) after E.B. failed to reunify with them.
On September 4, 2007, police officers investigating a murder went to a home belonging to the older children’s maternal grandparents (the B. home) for a safety check of the older children’s cousins. The B. home was known to the officers as a residence unfit for children and a place where gang members congregated. The officers found E.B. at the home, and they took her into custody for an outstanding narcotics warrant. A short while later, the officers observed father riding a bike near the B. home, towing two-year-old C.V. in a cart with the child lacking a safety helmet, apparently overheated and dressed only in a diaper despite scorching temperatures. They arrested father for child endangerment and took C.V. into protective custody. Following the arrest, C.V.’s older half siblings, A.L., A.L.2 and J.L., were also taken into protective custody after the officers ascertained the children had slept over at the B. home on prior occasions.
The older children’s aunt, R.C., had been arrested as an accessory to the murder. Upon her arrest, R.C. had expressed concern telling officers her parents (the B.’s) were unable to provide proper care for her children due to the grandparents’ poor health and unfit living conditions. C.V.’s half-sibling and the older children’s full sibling, A., was arrested as an accessory to murder at the same time as her aunt, R.C.
Father was released a few days afterwards with no charges being filed based on this incident.
A referral was made to the Department of Children and Family Services (the Department), which filed section 300 petitions for the children. As to C.V., an amended petition alleged: (1) C.V.’s mother, Y.R., had a history of substance abuse that periodically rendered her incapable of providing regular care for the child, and prior services and intervention had failed to resolve the problem; (2) father endangered C.V. by allowing the child to be towed in the cart wearing no safety helmet and inappropriately dressed for the extremely hot and humid weather; and (3) father created a detrimental situation for C.V. by repeatedly allowing him to stay in the filthy and unsanitary B. home, where C.V. was exposed to E.B.’s substance abuse and mental problems, and to numerous gang members. (§ 300, subd. (b).)
An amended petition for the older children alleged: (1) their mother, E.B., had a history of chronic mental illness, demonstrated numerous mental and emotional problems, was noncompliant with her psychotropic medications and psychiatric treatment, and was unable to regularly care for her children; and (2) father created a detrimental and endangering situation by (a) allowing the children to stay in the home of their maternal grandparents (the B. home), which was filthy and unsanitary, (b) allowing them to be exposed in the B. home to E.B., who had a history of substance abuse and severe mental problems, including a pattern of violent, assaultive behavior, and (c) exposing the children to numerous gang members who congregated at the B. home.
The juvenile court ordered the children detained. C.V. was placed with his maternal grandmother, who was then in the process of adopting C.V.’s half-sister. The older children were placed in foster care with the Department to have discretion to detain them in the home of an appropriate relative.
The Department prepared a jurisdiction and disposition report.
In relation to the present peitition, father told the social worker he was aware the B. home was dirty and that he was not supposed to leave his children with E.B. He acknowledged E.B. is bi-polar, refuses to take her medication and had failed to comply with court-ordered treatment. He stated the court had awarded him custody of the older children because of E.B.’s many problems and failure to reunify with her children. However, he denied his children ever stayed overnight at the B. home. He also denied his daughter A. was affiliated with a gang, saying she only “hangs out with” gang members. As to C.V.’s mother, Y.R., father stated the court gave him custody of C.V. because “she never did what the court ordered.” Father stated he regularly took his children out for bike rides, and Sergeant Lloyd of the Los Angeles Police Department had arrested him for no reason. Father asserted Sergeant Lloyd “has it out” for father and his family.
Father had an extensive criminal history dating back to 1985. He had several arrests for possession of a controlled substance. His most current arrest and conviction was in 2005, for being under the influence of a controlled substance and for possession of controlled substance paraphernalia. Father did not deny he had an extensive criminal record. He stated he completed a drug rehabilitation program in 2004.
The Department reported it had received several referrals in prior years regarding C.V. or the older children. In connection with those referrals, father had been interviewed concerning the children’s visiting the B. home. The referrals were closed after father agreed not to allow his children to visit the B. home or have unmonitored visits with E.B.
E.B. had a severe and extensive drug related mental health history and several psychiatric hospitalizations that sometimes caused her to react violently. Both father and E.B.’s parents indicated she refused to take her medication. The social worker had attempted to meet with E.B. However, E.B. never showed up for the meeting. The worker then attempted to speak with E.B. on the telephone, but she was incoherent. E.B. had several arrests and convictions for being under the influence of a controlled substance.
The children were also interviewed for the jurisdiction and disposition report. They initially denied living at the B. home. However, A.L. later disclosed to the social worker that all of the children had recently stayed at the B. home. She stated she spent several days at the B. home in August after a trip to Texas with her maternal grandparents and then stayed over a week at the home of her older brother’s 20-year-old ex-girlfriend. A.L. told the social worker that her older sister A., a member of the “BA” gang, sometimes lived at the B. home because A. did not have a permanent home. A.L. said gang members occasionally came to the B. home to pick A. up. A.L. further stated her mother, E.B., had psychological problems and that is why A.L. could not stay with her mother.
After speaking with A.L., the social worker re-interviewed the other children. A.L.2 said he had stayed at the B. home for two weeks. He lived with father at the paternal grandparents’ home, but they leave for a hotel whenever father argues with his mother. J.L. mentioned that he ate and slept at the B. home for a week and did not like it.
The children’s paternal grandmother (Mrs. M.) indicated her granddaughter A. associated with gang members, but she did not believe A. was “completely” gang affiliated. Mrs. M. stated the children were only visiting the B. home when they were detained in September 2007. Mrs. M. told the social worker that she and her husband had gone away for the long weekend. She does not allow anyone to live in her home when she is gone. When she goes away, she rents a hotel room for father and his children because “I just don’t like anyone to be in the home when I’m gone.”
For C.V., the Department recommended that Y.R. receive no reunification services because she had failed to reunify with his sibling. However, the Department recommended reunification services and monitored visitation with C.V. for father. For the older children, the Department recommended that both father and E.B. receive reunification services. However, it recommended that the older children remain suitably placed in foster care because father had continued to make poor parenting decisions and E.B. had not dealt with her drug and psychiatric problems.
The juvenile court initially scheduled a jurisdictional and dispositional hearing for both cases to occur on October 9, 2007. It commenced taking evidence in early October 2007 and continued to hear testimony over the course of several days.
Ofelia Soto, the dependency investigator, testified on cross-examination that she had no contact with father prior to investigating the current matter. She interviewed A.L., but not the boys. Ms. Soto admitted she should have interviewed the boys but did not do so. Although she understood father was disputing some of the information contained in the detention and police reports, she admittedly did not interview the authors of those reports. She testified Mrs. B. told her the older children visited the B. home regularly, as did C.V., and that C.V. calls Mrs. B. “Nana.”
Paternal grandmother Mrs. M. testified that father and the four children resided in her home, along with another grandson, Mrs. M.’s sister and the sister’s daughter. Mrs. M. testified that C.V. left her home with father on the date of arrest after taking a bath and being dressed in a diaper, shorts, shirt and sandals. It was a hot day, and father took off on his bicycle towing C.V., who was in a covered carrier and not wearing his helmet. Mrs. M. also stated that father’s older daughter had gang affiliations and was not welcome in her home.
Mr. B. testified he saw his grandchildren regularly. He frequently picked them up at school to bring them to their paternal grandparents’ home but the children never spent the night at his own home. The older children’s sibling, A., occasionally stayed at his home if she had nowhere else to go. He stated that in the 30 years he had lived there, the Department came to the B. home only once, when the police were looking for his son and found the house “cluttered and kind of dirty.” When asked if his home was in a safe condition for young children in September 2007, Mr. B. answered, “probably not.” Mr. B. understood his granddaughter A. had some writing tattooed on her lower lip, but he did not pay much attention to it and did not ask her what it meant. Mr. B. had a son who was killed in a drive by shooting in front of the B. home, but Mr. B. stated he did not think his son was in a gang.
Father testified he had custody of the four children, and before the children were detained they all lived at his mother’s home. He stated that the older children never spent the night at the B. home, nor did C.V. spend any time there. His mother, Mrs. M., would obtain a room for father and the children when she went out of town. He stated that none of the children was found at the B. residence on the date of his arrest. He and his children occasionally only briefly visited the B. home when passing by on their bikes.
Father acknowledged E.B. lived at the B. home, but he testified he never visited her. He did not think she was capable of taking care of the children, and he did not believe the children had any contact with her when the B.’s picked up the older children after school. He did not believe his children told the social worker they had stayed at the B. home for extended periods. A.L. must have been referring to an occasion when she had gone to a convention with the B.’s and stayed in a hotel room while the other children were with Mrs. M.
After an extended hearing, and after considering the Department’s reports, the testimony of witnesses and counsel’s arguments, the juvenile court sustained the petitions as amended. The court struck allegations stemming from the single incident of father’s towing C.V. on the bike, stating, “the fact that [C.V.], at age 2, was in an attachment to the bike, riding approximately a foot above the ground, I just don’t believe puts him at any risk.” The court concluded, however, that “this [case] is not merely about a child riding in a . . . bike seat without a helmet” but rather “has to do with the environment that . . . all of the children were exposed to.”
Based on a preponderance of the evidence, the court found that C.V.’s mother, Y.R., had a history of substance abuse, which periodically rendered her incapable of providing care for him, endangered his physical and emotional health and safety, and placed him at risk of harm. (§ 300, subd. (b).) The court had previously sustained counts regarding Y.R.’s substance abuse and had unsuccessfully ordered her to do programs.
Y.R. had failed to reunify with C.V. in 2006. In 2007, her parental rights were terminated over C.V.’s half-sibling, J., who was in the process of being adopted by Y.R.’s mother.
As to the older children, the court found, again by a preponderance of evidence, that their mother, E.B. (1) has a history of chronic mental illness and has demonstrated numerous mental and emotional problems, (2) has a history of substance abuse and drug related criminal activity, which periodically renders her incapable of providing regular care for her children, (3) is noncompliant with her psychotropic medications and her psychiatric treatment plan, and (4) is unable to regularly care for the children due to her mental and emotional limitations and substance abuse, thereby endangering their physical and emotional health and safety and placing them at risk of serious harm. (§ 300, subd. (b).)
The juvenile court found by a preponderance of evidence that father had created a detrimental and endangering situation, placing all four children at risk of serious physical and emotional harm by (1) repeatedly allowing the children to stay at the B. home, which was unfit to live in, extremely dirty and filled with trash and other debris; (2) exposing the children to E.B., who has a history of substance abuse and severe mental problems including combative and accusative behavior; and (3) exposing the children to numerous gang members at the B. home. (§ 300, subd. (b).) The court found father’s testimony lacked credibility and the preponderance of evidence showed the children were repeatedly at the B. home where they were exposed to gang members. Although father had no legal obligation under his agreement with the Department to keep the children away from the B. home, “common sense” indicated it was not an appropriate home for them to visit.
The court then proceeded directly to the dispositional hearing.
For that hearing, the older children’s attorney indicated that, if called as witnesses, they would testify they wanted to return to father. However, counsel stated she did not believe following their wishes would promote their best interests. Father briefly testified that he was willing to comply with court orders.
By clear and convincing evidence, the court found there was or would be a substantial danger to the children if they were returned home and there was no reasonable means to protect them without removal from father’s physical custody. (§ 361, subd. (b).) The court ordered the children removed from father’s custody, granted no reunification services for Y.R., ordered services for E.B. and father, and directed that father participate in parent education and individual counseling. The court decided that before the children can be returned, father had to demonstrate an ability to meet the physical and emotional needs of the children and provide stable and appropriate housing. The court allowed father monitored visits with the children, but gave the Department discretion to liberalize the visits.
The juvenile court ordered the Department to explore placing the older children in the paternal grandparents’ home and set the matter for subsequent progress hearings to address the issue.
Father timely appealed the juvenile court’s jurisdictional findings and dispositional orders.
STANDARD OF REVIEW
“When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) All conflicts in evidence are to be resolved in favor of the court’s findings and orders. (Ibid.) We examine the entire record and view the evidence in the light most favorable to the court’s findings and conclusions. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) On appeal from an order based upon clear and convincing evidence, the clear and convincing standard disappears and the customary rule of conflicting evidence is applied, giving full weight to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) We do not judge the effect or value of the evidence, weigh the evidence or consider the credibility of the witnesses. (In re Mark L., supra, at pp. 580-581.)
DISCUSSION
1. Substantial Evidence Supports the Court’s Exercise of Jurisdiction
A child may be determined to be a dependent of the juvenile court 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).) A finding under section 300, subdivision (b) requires (1) neglectful conduct by the parent; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
We initially review the juvenile court’s assumption of jurisdiction and its determination that custody must be taken from the parents, at least for the time being, because one or both parents pose a sufficient risk of harm to the child. Here, father’s argument centers on the contention that he was a nonoffending parent and there is no evidence any of the four children at issue suffered injury or detriment from his conduct. But, the court is not required to find the minors have been harmed, only that they are at substantial risk of harm. (§ 300, subd. (b).)
In this case, there was sufficient evidence that C.V. was at substantial risk of serious harm because of his mother’s substance abuse. There was also sufficient evidence that the older children were at substantial risk because of their mother’s chronic mental illness, mental and emotional problems and failure to take her psychotropic medication or to comply with her psychiatric treatment plan, as well as her substance abuse and drug related criminal activity.
Although the juvenile court found all of the children were at further risk of serious harm due to father’s failure to appreciate the seriousness of exposing the children to dangers inherent in the B. home (discussed, post), those findings were not necessary for the court to assert jurisdiction over these four children. Both mothers had unresolved problems of substance abuse and, in the case of E.B., additional mental health and other issues. Y.R., moreover, had failed to reunify with C.V.’s half-sibling, whose adoption was imminent. When one parent is unsuitable, the juvenile court properly may find a child comes within the jurisdiction of section 300, even if the other parent claims to be a suitable parent. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16 [mother’s admitted conduct in endangering children found sufficient for jurisdiction notwithstanding father claimed he was nonoffending]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554 [juvenile court may take jurisdiction over a minor even if only one parent is unsuitable; social services department “‘is not required to prove two petitions, one against the mother and one against the father’”]; see In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both”].) Such a rule conforms with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. (In re Alysha S., supra, at p. 397.)
We find substantial evidence supports the court’s determination that the children came within the jurisdiction of the juvenile court.
2. Substantial Evidence Supports Placement Outside Father’s Home
“Parents have a fundamental interest in the care, companionship, and custody of their children. [Citation.] . . . ‘Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.’ [Citation.]” (In re Gladys L. (2006) 141 Cal.App.4th 845, 848; see also In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210.) “‘After the State has established parental unfitness . . ., the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.’ [Citation.]” (In re Gladys L., supra, at p. 848; see also In re G.S.R., supra, at pp. 1210-1211.)
Under section 361, subdivision (a), when a minor is found to be a dependent child under section 300, “the court may limit the control to be exercised over the dependent child by any parent or guardian . . . .” Subdivision (c) of section 361 states that “[a] dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of [certain listed circumstances].” Such circumstances include a finding of substantial danger to the child’s physical health, safety, protection, or physical or emotional well being if the minor were returned home and no reasonable means by which the child’s physical health can be protected without removal from the parent’s physical custody. (§ 361, subd. (c)(1).)
In this case, the juvenile court went on to find, by clear and convincing evidence, the children were at substantial risk of serious harm if they were returned to father’s home. Substantial evidence supports such a finding. The court dismissed the allegations regarding father’s supposed endangerment of C.V. by towing the child with a bike. The remaining sustained allegations against father centered on his “repeatedly” allowing C.V. to stay in the “filthy and unsanitary” B. home, where the child was exposed to E.B. and “numerous gang members.” Similar allegations were sustained as to the older children.
Father argues that none of the four children was physically or emotionally injured and that both father and the children lived at the home of the paternal grandparents. Further, in opposing removal of the children, father testified he was willing to follow any orders of the court to safeguard the children’s well being.
Notwithstanding father’s protestations, there is substantial evidence supporting removal of the children from father’s care and custody. Father showed abysmal judgment in allowing the children to stay at the B. home. Even if father’s informal agreement with the Department did not oblige father to keep his children away from the B. home, common sense should have alerted father that the B. home was not an appropriate place for his children to frequent or stay. It was undisputed the B. home was filthy, unsanitary and unfit for children. Moreover, the evidence showed the children were exposed to gang members, including family members involved in a gang-related murder at the B. home. The B. home itself was the target of drive by shootings and the site of a gang-related murder. There was substantial evidence from the children and the maternal and paternal grandmothers that the children frequented the B. home and stayed overnight there as well. The court found father was not credible in denying his children visited the B. home or were exposed to E.B. His testimony was sufficiently established a failure to appreciate the dangers and seriousness of risks to the children posed by the B. home.
In addition, the evidence indicated father had no safe or permanent place for the children to live. An inference could reasonably be drawn from the children’s statements that they and father had no stable residence. A.L. stated some of her siblings resided with “various relatives,” not father, and that she and her two younger brothers had often stayed at the B. home. Although father and the children purported to live at the paternal grandparents’ home, the evidence showed they lived there only intermittently -- father left the home whenever he argued with his mother, and he and the children were required to move to a hotel room whenever his mother left on a trip.
We accordingly find substantial evidence also supports the court’s dispositional order. (See In re G.S.R., supra, 159 Cal.App.4th at p. 1215.)
Father additionally contends the juvenile court should have granted preferential consideration to placing the children with their paternal grandparents. (See § 361.3.) However, the paternal step-grandfather had suffered a DUI conviction in the past. Pursuant to section 361.4, subdivision (b), “[w]henever a child may be placed in the home of a relative . . . or other person who is not a licensed or certified foster parent,” the Department or the court is required to check criminal records for any person living in the home over the age of 18. Further, section 361.4, subdivision (d)(2) provides that “[i]f the criminal records check indicates that the person has been convicted of a crime that would preclude licensure under Section 1522 of the Health and Safety Code, the child may not be placed in the home” unless an exemption is granted. Health and Safety Code section 1522 prohibits licensing when an applicant has any conviction other than a minor traffic violation. The juvenile court has no discretion or authority to disregard these provisions, which are mandatory. (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 1161, 1166.) Although section 361.4, subdivision (d)(2) allows for a criminal records exemption, the power to confer such a waiver is not given to the court but to the state Department of Social Services and its delegates. (Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, at pp. 1166, 1168; In re S.W. (2005) 131 Cal.App.4th 838, 848.) In this case, the juvenile court ordered the Department to address the obtaining of a criminal waiver. The court set the matter for progress hearings and gave the Department discretion to place the older children with relatives. The juvenile court did not commit error in this regard.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: COOPER, P. J., BIGELOW, J.