Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK 00541. Jacqueline Lewis, Judge.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Appellant Murray S. appeals from the orders made under Welfare and Institutions Code sections 300 and 361 asserting dependency court jurisdiction over his daughter, M.S. (born in 2003), and removing M.S. from Murray’s custody. Murray contends the evidence was insufficient to sustain the section 300 petition counts regarding him, the order sustaining the petition as to either M.S.’s mother or him, and the court’s dispositional order requiring him to complete a sex abuse counseling program. We disagree and affirm.
All undesignated code section references are to the Welfare and Institutions Code.
BACKGROUND
On April 11, 2007, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that M.S. was a victim of general neglect due to drug use by her parents, Murray S. and Brenda V., who is not a party to this appeal. The caller also alleged that M.S. was at risk of sexual abuse because of a substantiated allegation in an earlier dependency proceeding that Murray had molested M.S.’s half-sibling, Murray’s stepson Roy. The DCFS caseworker who visited the family’s home found M.S. to be well-bonded with her parents and found the family home to be neat and clean, well stocked with food, and free of visible safety concerns. Both parents initially said they had not used drugs or alcohol for approximately 2-3 years, but Murray later admitted to having used marijuana two weeks earlier. Both parents agreed to undergo drug testing the following day. The caseworker also privately interviewed M.S., who denied any knowledge of drug use by her parents or of having been touched inappropriately.
Both parents’ drug test results the next day were diluted. A week later, Brenda’s test again was diluted, but Murray tested positive for marijuana. On May 10, 2007, Brenda tested positive for cocaine. On May 17, the caseworker detained M.S. from her parents based on Brenda’s positive test results. M.S.’s preschool teacher reported that M.S. always came to school clean and well-groomed, but that she had missed as many as 15 school days in a single month. Brenda and Murray explained that they did not always have transportation to get M.S. to school. The caseworker determined that Brenda and Murray were neglecting M.S., adding, “In addition, parents[’] previous[] failure to reunify with M.S.’s siblings due to [the parents’] drug use and a substantiated allegation against [Murray] for sexual abuse is of imminent concern.”
On May 22, 2007, DCFS filed a petition pursuant to section 300, which included allegations pursuant to subdivisions (a) [child has suffered or is at risk of suffering nonaccidental serious physical harm inflicted by the child’s parent or guardian], (b) [failure or inability to protect causing serious physical harm or illness or risk thereof], and (j) [abuse of a sibling]. Count a-1 alleged that Brenda and Murray “established a detrimental and endangering home environment for [M.S.] in that [they] knew that [Murray] sexually abused and physically abused the child’s sibling, Roy [W.] . . . and [Brenda] failed to take action to protect [M.S.] in that [Brenda] allowed [Murray] to reside in [M.S.’s] home and have unlimited access to [M.S.]. [Roy] received permanent placement services due to [Murray’s] sexual . . . and . . . physical abuse.” Counts b-3 and j-1 closely paralleled the language in count a-1. As to the other two counts in the petition, count b-1 alleged that Brenda had a seven-year history of substance abuse and was a current user of cocaine, and that three of M.S.’s siblings had received permanent placement services due to Brenda’s substance abuse; count b-2 alleged that Murray “is a current user of marijuana, which renders [him] unable to provide regular care for the child. [Murray’s] substance abuse endangers [M.S.’s] physical and emotional health and well being and places the child at risk of physical and emotional harm and damage.” Brenda and Murray both denied the petition’s allegations. The court ordered M.S.’s detention, specifically ordered “[n]o visitation with [M.S.] by anyone if under the influence of drugs or alcohol,” continued the hearing to May 31, 2007, and set a contested jurisdiction/disposition hearing for June 21, 2007.
All undesignated code subdivision references are to Welfare and Institutions Code section 300.
In its report for the June hearing, DCFS described interviews with both parents conducted during a parental visit with M.S. on Wednesday, May 30, 2007. The interviewer asked Brenda whether she knew that Murray had sexually and physically abused Roy. Brenda stated that Roy, 25 years old in 2007, had made that allegation when he was nine, but Brenda did not believe him. She said that Murray never had inappropriately touched any of the other children. Brenda acknowledged that she had never reunified with Roy. Brenda and Murray both denied endangering M.S.’s physical or emotional health. Asked whether he had sexually and physically abused Roy, Murray answered, “[N]o, this is not true. He was 9 years old. He just came to live with us about 3 months ago.” Asked whether Roy received permanent placement services due to sexual and physical abuse, Murray replied, “[Y]es, that is true.” The DCFS interviewer reported that both parents, who were visiting M.S. at the time of the interview, “reeked of alcohol” yet denied drinking alcohol. M.S.’s foster mother confirmed the DCFS interviewer’s observation.
The DCFS report also described that Brenda and Murray, both then unemployed, were subject to pending dependency proceedings regarding three of their older children, and that the dependency court had terminated jurisdiction over Roy and another older child of Brenda’s after she failed to reunite with them. Brenda insisted that she was not a current cocaine user, took good care of M.S., and had done everything the court told her to do to get back her older children. Murray, asked whether Brenda had a seven-year history of substance abuse, said, “[Y]es, to my knowledge,” but denied that she was a current cocaine user. Both parents said they would do whatever the court required to get M.S. back, and Murray stated, “I am no longer willing to use marijuana or illegal substances.” Both parents denied that they posed any danger to M.S..
After several continuances of the jurisdiction/disposition hearing, on August 6, 2007, the dependency court heard testimony from a DCFS supervising dependency investigator who confirmed, to the extent of her knowledge, the statements in reports by the dependency investigator on the case, who was on vacation. On August 9, all parties stipulated that if called to testify, a representative from Brenda and Murray’s counseling program would testify that they both were participating in counseling and in regular drug testing.
On August 27, 2007, Brenda and Murray testified. Brenda stated that she had never seen Murray abuse M.S. physically or sexually; M.S.’s three older full-brothers had unmonitored visits in her and Murray’s home; and she had no issues regarding drugs or alcohol during the dependency proceedings involving M.S.’s brothers. Brenda specifically denied ever having used cocaine and questioned the drug testing laboratory’s handling of her urine sample that tested positive for cocaine. Brenda denied that she or Murray had any current problem with alcohol and stated that she was drug testing for DCFS as well as for her counseling program and would be willing to continue testing as the court required.
Murray testified that he never had physically or sexually abused M.S.’s half-brother Roy; he had participated in drug and sexual offender counseling in 2002 or 2003 in connection with the dependency proceedings involving M.S.’s three brothers; and he had attended 68 or 70 classes that were intended primarily to address Roy’s allegations against him. Murray stated that he had not participated in the dependency hearings regarding Roy’s allegations because he did not know about them. Murray admitted that he had the one recent positive test for marijuana, but no others since then, and he stated that he had attended all of his counseling sessions and his visits with M.S. and would be willing to continue testing for drug and alcohol use as required by the court. In response to a questionable drug test on August 14, 2007, Murray presented documentation to the court showing that he recently had been taking a prescription painkiller for his dental problems. Regarding Brenda, Murray agreed with her testimony that she had never used illegal drugs and that the only reason her other children had come into the dependency system was because of false allegations by relatives.
In closing argument, DCFS requested no reunification services for both Brenda and Murray. Counsel for M.S. accepted the drug-use counts but argued that the sexual abuse allegations based upon the earlier proceeding involving Roy were “too remote” in time to sustain and requested reunification services for both parents. Brenda’s and Murray’s respective counsel concurred with M.S.’s counsel as to counts a-1, b-3, and j-1 involving the allegations of physical and sexual abuse of Roy, challenged counts b-1 and b-2 involving drug use, and also requested reunification services.
On August 29, 2007, the dependency court found counts a-1, b-3, and j-1 true as alleged and found counts b-1 and b-2 true as amended after deleting “current” from the allegations that Brenda and Murray were current users of cocaine or marijuana. The court found by a preponderance of the evidence that there continued to be a risk to M.S. of sexual abuse. The court stated that the allegations in the earlier petition involving Roy were sustained and that the letter Murray offered into evidence from the treatment center where he attended 68 to 70 sex abuse counseling sessions only demonstrated that Murray remained in denial regarding his sexual and physical abuse of Roy. The court referred to the record from the proceedings regarding the petition involving Roy, stating that contrary to Murray’s testimony that he had not known of the petition involving Roy, “[N]ot only did he know about it, he was noticed for that petition and interviewed in the reports for that petition.” Regarding Brenda’s record of drug abuse, the court quoted from the record from the petition involving Roy: “I would note that the statements in the original report, statements by Roy indicate, ‘If her and my aunty get together they go over and get drunk over at my grandfather[’s] house. They were sitting at a big table [using drugs].’ Roy was 10 when he made those statements.’” The court noted that M.S. was the sixth child of Brenda to be involved in the dependency system. The court declared that “the parents[’] sworn testimony is incredibly full of holes and not credible.” It found by clear and convincing evidence that M.S. faced substantial danger requiring her removal from her parents’ home. The court granted both parents reunification services; Murray’s were to include drug rehabilitation with random testing, parenting classes, individual counseling, and sexual abuse counseling.
After a further dependency hearing on September 26, 2007, involving only M.S.’s elder brother D.V. and not M.S., Murray, in propria persona, filed a notice of appeal on October 3, 2007, that purported to appeal from “the sexual offender program 9/26/07[.]” Because there was no discussion of any sexual offender program on September 26, and the notice of appeal specified the name of the child concerned as “[M.S.],” Murray’s notice of appeal apparently was intended to challenge the court’s findings and orders from the August 29, 2007 hearing regarding M.S.
DISCUSSION
I. Notice of Appeal
Murray contends although his notice of appeal was ambiguous as to which hearing and which findings and orders he was appealing from, the rule of liberal construction in California Rules of Court, rule 8.100, subdivision (a)(2), requires that we construe his notice of appeal to include the dependency court’s findings that M.S. was at risk because of Murray’s earlier record with Roy, the order sustaining the petition, and the dispositional order requiring Murray to complete a program of sexual abuse counseling. DCFS concedes the point, and we agree.
II. Insufficient Evidence—Sexual or Physical Abuse
A. Count j-1
Murray contends the evidence was insufficient as to count j-1 because DCFS failed to establish that the allegations regarding Murray’s sexual and physical abuse of Roy were sustained in the earlier proceeding either by attaching minute orders from those proceedings or by requesting that the dependency court take judicial notice of the earlier proceedings. We agree that the court did neither but disagree that the failure requires reversal.
A dependency court’s findings at a jurisdictional hearing are reviewed for substantial evidence. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.) Under that standard, a reviewing court will affirm a trial court’s factual findings if there is any substantial evidence that is reasonable, credible, and of solid value to support those findings. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.) We review the evidence in the light most favorable to the dependency court’s orders, drawing all reasonable inferences and resolving doubts in favor of upholding the court’s rulings. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Subdivision (j) provides that the dependency court may assume jurisdiction over a child if “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in each of those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
Murray contends DCFS could not meet its burden of proving an allegation under subdivision (j) because it did not offer into evidence any portion of Roy’s case and did not ask the court to take judicial notice of Roy’s case. Murray cites In re David M. (2005) 134 Cal.App.4th 822, a case in which the child welfare agency provided nothing more than allegations to establish jurisdiction under subdivision (j). (Id. at p. 832.) The court in In re David M. cited In re Ricardo L. (2003) 109 Cal.App.4th 552, for the proposition that to support jurisdiction under subdivision (j), the child welfare agency “should have ensured that the court either took judicial notice of [records from prior dependency proceedings involving siblings] or stated on the record that it had considered those documents, or the Agency should have attached the documents to the social worker’s reports and incorporated them by reference.” (In re Ricardo L., supra, 109 Cal.App.4th at p. 569.)
Here the court gave notice to the parties that it was considering the record from Roy’s case, and the circumstances surrounding Roy’s case, by reciting facts from that record and by quoting from it verbatim. That recitation was equivalent to stating on the record that it was considering Roy’s case file. Nothing more was required. Furthermore, Murray did not object to the court’s consideration of the earlier record. Nor did the court base its jurisdictional decision solely on the findings in the earlier case: it also expressly considered probative that Murray had never completed a sex abuse counseling program, that Murray remained in denial, that Murray and Brenda had other children in the dependency system, that they both were untruthful in their testimony, and that they both had significant substance abuse problems. All of these constitute risk factors cumulatively adding up to a substantial risk that M.S. might be abused as Roy had been.
Murray cites In re Rubisela E., supra, 85 Cal.App.4th 177, in maintaining that where siblings are of different genders, a child welfare agency, to support jurisdiction under subdivision (j), must demonstrate that there is a substantial risk that the sexual abuser will abuse the sibling who is of a different gender from the sibling that was abused. (Id. at pp. 197-199.) Since the time In re Rubisela E. was decided, however, our Legislature enacted section 355.1, subdivision (d), which states that a sustained allegation of sexual abuse of a child in a dependency proceeding constitutes prima facie evidence of substantial risk of abuse to that child’s siblings. Section 355.1 thus “evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts,” regardless of gender. (In re P.A. (2006) 144 Cal.App.4th 1339, 1347.)
B. Counts a-1 and b-3
Murray contends that the evidence was insufficient to support the dependency court’s findings that his alleged earlier sexual and physical abuse of Roy put M.S. at risk of physical harm. As we have discussed in the preceding section, however, the court considered evidence that Murray had sexually abused Roy, that Murray had never completed a sex abuse counseling program, that Murray remained in denial, that Murray and Brenda had other children in the dependency system, that they both were untruthful in their testimony, and that they both had significant substance abuse problems. As with count j-1, these risk factors cumulatively provide substantial evidence to support counts a-1 and b-3.
III. Insufficient Evidence—Substance Abuse
Murray contends that the evidence regarding his substance abuse was insufficient to support count b-2. We disagree.
As a preliminary matter, we agree with DCFS that the finding of jurisdiction over M.S. based upon Brenda’s alleged cocaine use is sufficient to establish jurisdiction as to both Brenda and Murray. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“[T]he minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent.”].) The allegation in count b-1 regarding Brenda’s cocaine use, however, even though it provides a basis for dependency jurisdiction over M.S. that Murray does not challenge in this appeal, is not, standing alone, a ground for removing M.S. from Murray’s custody. Count b-1, significantly, does not allege that Murray knew of Brenda’s drug abuse and failed to take action to protect M.S., or that he did anything else wrong in connection with Brenda’s substance abuse.
Count b-1, as sustained, alleges, “[Brenda] has a seven-year history of substance abuse, including cocaine, and is a user of cocaine, which renders [her] unable to provide regular care for [M.S.]. [M.S.’s] siblings . . . received permanent placement services due to [Brenda’s] substance abuse history. [Brenda’s] substance abuse endangers [M.S.’s] physical and emotional health, safety and well being and places [her] at risk of physical and emotional harm and damage.”
Count b-2, the only count that refers to Murray’s substance abuse, alleges, as sustained, “[Murray] is a user of marijuana, which renders [him] unable to provide regular care for [M.S.]. [Murray’s] substance abuse endangers [M.S.’s] physical and emotional health, safety and well being and places [her] at risk of physical and emotional harm and damage.”
Murray invokes In re W.O. (1979) 88 Cal.App.3d 906. In that case, although the evidence showed that the children in question were “‘happy, content, clean, [and] overall very well cared for,’” the child welfare agency detained the children after finding cocaine and marijuana at the parents’ residence. (Id. at p. 907.) The agency maintained that the presence of the drugs in the home posed a risk to the children, and the dependency court agreed. (Ibid.) The Court of Appeal reversed, holding that the possibility that the young children would find and ingest the drugs was too remote to support jurisdiction over or removal of the children, and that mere evidence of drug use, without a showing that the drug use produced parental incapacity, also did not support jurisdiction or removal. (Id. at p. 910.) Here, the evidence shows that like the situation in In re W.O., Brenda and Murray kept M.S. generally content, clean, and reasonably well cared for in a home that was neat, clean, and safe.
Murray contends under In re W.O., M.S. cannot be declared a dependent child based upon his use of marijuana alone. Unlike In re W.O., however, the record here shows that Murray, like Brenda, came to a visit with M.S. “reeking of alcohol” after being specifically ordered not to visit while under the influence of drugs or alcohol. This, together with Murray’s testing positive for marijuana even after coming to the attention of DCFS, distinguishes In re W.O. and provides substantial evidence of a risk of physical harm.
DISPOSITION
The orders are affirmed.
We concur: MALLANO, P. J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.