Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK80224 Stephen Marpet, Commissioner.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
The juvenile court sustained a four-count petition in which the Los Angeles County Department of Children and Family Services (DCFS) alleged three minors were put at risk of physical harm by (1) Teresa A.’s (Mother) inappropriate use of physical discipline, (2) domestic violence perpetrated by David A. (Father) against Mother, and (3) both parents’ use of alcohol. Father and Mother had separated, and the juvenile court, finding Father presented the lesser danger, detained the minors from Mother and placed them with Father pursuant to Welfare and Institutions Code section 300, subdivision (b) (serious physical harm). Father challenges one of the four jurisdictional findings made by the juvenile court, specifically that “father’s alcohol use endangers the children’s physical and emotional health and safety and places the children at risk of physical harm, and damage.” Father contends the court’s finding that his alcohol use endangers the minors is not supported by substantial evidence. We disagree.
Unspecified section references are to the Welfare and Institutions Code; unspecified subdivision references are to section 300.
BACKGROUND
In November 2009, DCFS removed Destiny A. (age 16), Antonio A. (age 14), and Gabriel A. (age 13) from Mother and placed them with Father after it was reported that Mother was emotionally abusing the minors. A review of the family history revealed that the family had a brief Voluntary Family Maintenance (VFM) case with DCFS that had ended two months earlier, with Mother and Father agreeing to attend a domestic violence program and general counseling. Prior to the VFM case the family had several child abuse referrals involving domestic violence and issues of excessive drinking.
As related by DCFS in its detention report, Antonio A. reported that Father and Mother had separated, and before the VFM case closed Mother began drinking to excess, staying out late, neglecting the home, and acting depressed. Antonio reported Father did not drink anymore and had never abused him.
Gabriel A. reported that Mother drank to excess, stayed out late, and was depressed. He reported Father had stopped drinking and does not hit, and he is not afraid that either parent will harm him or each other.
Destiny A. stated that Mother was reportedly suicidal, neglected the home, drank to excess, and in one incident pushed, slapped and choked her, and on another occasion called her a “bitch, ” pulled her hair, and tore her blouse. She stated Father had stopped drinking and was doing well.
Father reported that he and Mother were in the process of getting a divorce and that he was attempting to obtain custody of the minors. He had completed parenting classes, he attended therapy sessions and Alcoholics Anonymous (AA) meetings, and he had taken his last drink in October 2009. Father admitted that in August 2009 he and Mother had an altercation in which he pushed her and threw a glass cup into the sink. He said the minors lived with him at his parents’ house most of the time.
Mother reported that Father had been verbally and physically abusive toward her for more than 19 years, culminating in an extended episode of abuse and vandalism in August 2009. She said, “‘I was a good mother for 19[ ]years and was abused. I decided not to take it anymore and have been a bad mother for 4 months and this happens. I don’t have to drink, I can stop when I want to. Ask David Jr. [an adult son] I have not been drinking lately.’”
Father’s sister told a social worker that Father was an alcoholic who had been abusive to Mother.
Father had suffered three convictions for being under the influence of a controlled substance, the last in 1993, and DCFS had received six prior referrals regarding the parents’ alcohol abuse and domestic violence.
DCFS recommended that the children be detained with Father.
In its January 21, 2010 jurisdiction report, DCFS noted that Mother, Antonio A., Destiny A., and David Jr. (the adult son) reported that domestic violence between Mother and Father had been ongoing for years. Father admitted, “‘We did have a 19 year history of hitting each other. Sometimes the kids were there and sometimes they were not. We had not been hitting each other for about two years now.’” Mother reported that in August 2009, Father hit her twice in the face. Mother admitted the children were sometimes present when she and Father fought.
Gabriel A. reported that Father had stopped drinking, he had never acted “stupid” when he drank, and the children were not afraid of him. Antonio A. reported Father had been sober since October or November 2009 and he never drank too much. Destiny A. reported Father stopped drinking as a result of DCFS’s involvement with the family, he “‘has always been a bad dad, ’” and “‘Right now he is doing the right thing, but as soon as this is all over he will start drinking again.’” She denied being fearful of Father when he drinks but stated Father and Mother used to get into verbal altercations when he drank. Father claimed he went to Narcotics Anonymous in 1993 and has not used any type of illicit drug since. He stated he “‘used to drink two or three beers, ’” “‘never drank too much, ’” and stopped drinking on his own in October 2009. But David Jr. reported Father “‘drank a lot. He would get depressed when he drank.’” He would become unhappy and would avoid the children. David Jr. denied that Father became violent when drinking. Father would drink one or two beers and become unhappy.
Mother alleged Father drank excessively from the time they were married. “‘[H]e would always drink tequila, and he would have little bottles of E & J Brandy.’” “‘Sometimes he would be so loaded that he could not even put food in his mouth. We would all be eating here on the table and he would miss his mouth because he was so drunk.’” She felt she could not talk to him about his drinking for fear that he would verbally abuse her. Even after 1993, Mother reported, Father “‘used to keep [Vicodin] in the trunk of his car.’” From December 2009 to April 2010, Father missed two drug and alcohol tests, provided diluted samples twice, and tested negative seven times.
DCFS again recommended that the minors remain with Father.
On January 21, 2010, the juvenile court ordered the minors to remain released to Father.
In its supplemental reports of March 3 and April 27, 2010, DCFS reported the minors continued to reside with Father and were “adjusting well.” Their behavior and academic performance had improved, and Father had tested negative for drugs several times and continued to attend AA meetings.
At the jurisdiction and disposition hearing Father argued no evidence suggested the children were at risk of harm based on his drug or alcohol use. The juvenile court disagreed. It sustained the petition under subdivision (b) on the grounds that: (1) Mother inappropriately physically restrained Destiny A., (2) Father has a 19-year history of domestic violence against Mother, (3) Mother is a frequent abuser of alcohol, and (4) Father’s “alcohol use endangers the children’s physical and emotional health and safety and places the children at risk of physical harm, and damage.” It ordered that the minors be detained from Mother and placed with Father with family maintenance services, and that Father participate in individual counseling and random alcohol testing.
DISCUSSION
Father contends the juvenile court’s finding that his alcohol use endangers the minors is not supported by substantial evidence. We disagree.
We review jurisdictional and dispositional orders for substantial evidence, viewing the record as a whole in the light most favorable to the juvenile court’s order and indulging every inference and resolving all conflicts in favor of the court’s decision. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Evidence from a single witness can be sufficient to support the trial court’s findings. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Father does not challenge the juvenile court’s finding that it has jurisdiction over the minors because of his history of domestic violence. He challenges only the finding that his alcohol use endangers the minors.
When a dependency petition alleges multiple grounds for jurisdiction, a reviewing court can affirm the juvenile court’s order if any one of the statutory bases for jurisdiction enumerated in the petition is supported by substantial evidence. “In such a case, the reviewing court 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.)
Here, because there is substantial evidence to support the jurisdiction finding based on Father’s history of domestic violence, we need not hear Father’s contention regarding the finding of risk based on his alcohol use. But because the jurisdictional findings could affect the parents in the future in these or other dependency proceedings, or in the parents’ divorce proceedings, we conclude that Father’s challenge to the court’s finding is not moot. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547 [an appeal in a dependency matter is not moot if the purported error is of such magnitude as to affect the outcome of subsequent proceedings]; see also In re J.K. (2009) 174 Cal.App.4th 1426, 1432 [father’s challenge to the jurisdictional findings was not moot because they could affect him if dependency proceedings were initiated in the future with respect to the minor or any other of his children].)
“Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco M. (1991)1 Cal.App.4th 814, 823.) The substantial risk of physical harm must result from “the failure or inability of [the child’s] parent or guardian to adequately supervise or protect the child, ” the “failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness... or substance abuse.” (§ 300, subd. (b).) “Cases finding a substantial physical danger tend to fall into two factual patterns. One group involves an identified, specific hazard in the child’s environment-typically an adult with a proven record of abusiveness. [Citations.] The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. [Citations.]” (In re Rocco M., supra, 1 Cal.App.4th at p. 824 [11-year-old subject to risk of harm if placed in home allowing access to drugs].)
The mere use of alcohol by a parent will not support a finding of risk to minors. (See In re David M. (2005) 134 Cal.App.4th 822, 829–830 [use of marijuana by a parent does not itself pose a risk to minors]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345–1346 [same].)
Substantial evidence supports the juvenile court’s finding that Father’s alcohol abuse endangers the minors. Father admitted to a 19-year history of Father’s and Mother’s hitting each other, sometimes in the presence of the minors. Father and Mother got into arguments when he drank. Father drank excessively, to the point of being unable to place food in his mouth. Father has suffered three convictions of being under the influence of a controlled substance, the last being in 1993. Father’s claim to have quit drinking in October 2009 is belied by his having missed two drug and alcohol tests and provided diluted samples twice since then. In the words of his daughter, “Right now he is doing the right thing, but as soon as this is all over he will start drinking again.”
Simply put, given Father’s history of drug and alcohol abuse, his continued drinking as evidenced by his missing tests and providing diluted samples, and the episodes of domestic violence which were connected with his drinking, we conclude that substantial evidence supports the juvenile court’s finding that Father’s alcohol abuse endangers the minors.
Accordingly, we affirm the juvenile court’s orders in their entirely. Father will be provided the assistance of the DCFS, and the minors will be monitored to ensure their protection while Father receives assistance to deal with his addictions.
DISPOSITION
The orders of the juvenile court are affirmed.
I concur: JOHNSON, J.
CHANEY, J., Dissenting.
Nothing in the record suggests Father’s drinking physically endangers the minors. Although in the past Father and Mother had physical altercations in the minors’ presence, nothing suggests alcohol was a factor. (And at any rate, they no longer live together.) Mother reported that Father’s alcohol abuse sometimes left him incapacitated. Gabriel A. reported Father does not hit the minors and never acted “stupid” when he drank. Destiny A. acknowledged Father’s drinking problem but denied being fearful of him. She also said that he and Mother would get into verbal altercations when he drank. David Jr. denied that Father became violent when drinking. Even DCFS, which alleges Father has a substance abuse problem, placed the minors with him.
Today’s ruling purports to give Father DCFS’s help in dealing with his addictions. That is not subdivision (b)’s function. It also sends the message that if you drink, your children can be taken away from you. That is not subdivision (b)’s function either.
I therefore would reverse.