Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK83272, Sherri Sobel, Juvenile Court Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
SUZUKAWA, J.
In this dependency proceeding, appellant Ismael F., the presumed father of Isaac F., seeks review of the juvenile court’s initial jurisdiction and disposition orders. In light of our determination that the orders are supported by substantial evidence, the orders are affirmed.
BACKGROUND
Eugenia F. and Ismael F. (jointly, the parents), an unmarried couple, lived with their son, Isaac F., who was born in early 2010, and Eugenia’s son from a prior relationship, Owen A. (jointly, the children). Ismael was employed and Eugenia stayed home with the children.
Owen’s presumed father, Anderson A., whose address is unknown, has not appeared in this proceeding.
During the early morning hours of July 18, 2010, the parents were arrested for drunk driving by the California Highway Patrol. The parents were returning from a party in a five-passenger car that contained seven people-five adults (Ismael, Eugenia, Eugenia’s mother Roxanna, and two male friends) and the children, only one of whom was in a car seat (Isaac). All of the adults had been drinking alcohol, including Eugenia, who is under the age of 21.
According to Officer Chavez’s statement, on “‘July 18, 2010 at approximately 0325 hours... on I-110 southbound (Harbor Freeway) at the 6th Street on ramp... I observed a white Honda Accord and two males at the rear passenger door in what seemed to be an altercation. Both males were detained and placed inside patrol vehicles. I walked to the driver side and made contact with a female [Eugenia].... [¶]... [Eugenia] related that her mother was sitting in the back seat and got upset because she wanted to go home. [Eugenia] related her boyfriend stopped the vehicle and got out of the car. At this time [Eugenia] related her mother exited the vehicle and began to “act crazy.” [Eugenia] related her boyfriend and her mother’s boyfriend were attempting to put her back in the car. [Eugenia] related she got into the driver seat of the car so she could drive the car home. As I continued to speak with [Eugenia], I smelled the odor of alcoholic beverage emitting from her person. I noticed [Eugenia’s] speech was slurred and her eyes were red and watery. I explained and demonstrated a series of field sobriety tests (FST’s). [Eugenia] was unable to perform the tests as explained and demonstrated. Based upon my observations, [Eugenia’s] admission to consuming alcohol, [Eugenia’s] poor performance on the FST’s and the objective symptoms of intoxication, I determined that [Eugenia] had been driving while under the influence of alcohol....’”
According to Ismael’s statement, “‘I was driving. We were coming back from a birthday party. Eugenia’s mother was drunk and she tried to get out of the car on the freeway. She was going crazy. I stopped the car and she got out, and she began running down the ramp (of the 110 freeway onramp). We were trying to take her back with us and by the time we all got in the car, the police arrived.’”
According to Eugenia’s statement, “‘Around 1:30am, 2:00am, my mom wanted to leave the party so we left. I was in the back seat carrying Owen. I had the seat belt over Owen in the back. Eric, Ismael’s friend, was in the front. Ismael was driving. [¶] I was asleep. I woke up because my mom was arguing with Ismael. Ismael said we were gonna go to our house which was closer. He didn’t want to get stopped or get into an accident. My mom said she wanted to go to her house. He told her this isn’t your car. My mom opened the door (while the car was in motion). My mom was drunk. She pushed her boyfriend and she got out of the car. [¶] We were getting on the freeway (onramp of the 110 freeway) and my mom started running the wrong way. “Where are you going?” They didn’t want her to get hurt. The cars were gonna hit her. [Eugenia] described that their car was partially blocking the onramp of the 110 freeway so oncoming cars had to swerve around their car. [¶] [Eugenia] continued, ‘I put Owen in the seat belt (in the back seat of the car) and I went to the driver’s seat. I was waiting for them to push my mom in and when everybody got in and we were about to leave, the cops saw us.’”
Both parents were arrested for driving while under the influence of alcohol. Because the parents could not arrange for the care of the children, the children were taken into protective custody by the Los Angeles County Department of Children and Family Services (Department).
As a result of the July 18 incident, the Department filed a dependency petition on July 21, 2010. (Welf. & Inst. Code, § 300, subd. (b) [failure to protect].) As to Ismael, the petition alleged that he had endangered the children as passengers in the car by driving while under the influence of alcohol during the July 18 incident (count b-2), and that he was incapable of providing for their regular care because he is a current abuser of alcohol (count b-3). In support of the allegation that Ismael is a current abuser of alcohol, the petition cited the July 18 incident.
All further statutory references are to the Welfare and Institutions Code.
As to Eugenia, who is not a party to this appeal, the petition similarly alleged that she had endangered the children as passengers in the car by driving while under the influence of alcohol during the July 18 incident (count b-1), and that she was incapable of providing for their regular care because she is a current abuser of alcohol (count b-4). In support of the allegation that Eugenia is a current abuser of alcohol, the petition cited the July 18 incident.
The petition’s three remaining counts pertained to Owen. The petition alleged that Eugenia had endangered Owen by failing to place him in a car seat (count b-5); that Owen’s father, Anderson A., had endangered Owen by failing to provide the necessities of life (count b-6); and that Anderson, whose whereabouts are unknown, had abandoned Owen without providing for his support (count g-1).
At the July 21 and 22, 2010 detention hearing, the juvenile court determined that Ismael was Isaac’s presumed father. Over the parents’ objections, the court found a prima facie case to detain the children in foster care. The court granted monitored visitation and family reunification services to the parents, who were ordered to complete an alcohol treatment program with random testing.
After noting that Eugenia was only 18 years old and therefore was prohibited from consuming alcohol, the court warned the parents that “[a] missed test is a dirty test.” The court stressed the serious nature of the July 18 incident: “Detention will remain. I will not release the children back to either of the parents at this point. These are really horrible allegations, just horrible. How old are you? [¶] THE MOTHER: 18. [¶] THE COURT: 18. You have a one-year-old that’s almost two and a six-month-old with two different men. You, your mother, and four other people were drunk as they could be. Your mother tried to get out of the car in the middle of the freeway? No. No. No. No. The children will be detained - remain detained in foster care. Alcohol-treatment program including random testing for the mother and the father. A missed test is a dirty test.”
At the October 1, 2010 jurisdiction and disposition hearing, the Department presented the following evidence.
Both parents had enrolled in substance abuse counseling and parenting courses at People in Progress and were in compliance with that program. Eugenia had attended 14 group sessions, 6 individual sessions, and 5 parenting classes. Ismael had attended 9 group sessions, 4 individual sessions, and 5 parenting classes. All of the parents’ tests through the program were negative.
However, neither parent had complied with the random alcohol testing requirement. The parents had registered for random testing at Pacific Toxicology, but had missed three test dates on August 12, 27, and September 3, 2010.
Ismael provided a statement in the Department’s jurisdiction/disposition report explaining that the parents’ usual practice of selecting a designated driver had gone awry on the night of the July 18 incident: “Father stated that his blood alcohol level was 0.19% and he and the mother were placed under arrest for [driving] under the influence. Father stated that he was released after 12 hours in jail. Father explained that at the party, he consumed approximately 5 beers while mother drank about 3 beers. Father further explained that he and mother normally assign someone as the designated driver but they miscommunicated that evening and they both consumed alcohol. [¶] Father said there was a misunderstanding about who wasn’t going to be drinking. ‘I thought she would drink not as much.’ He said this was the first time that they did not come to decide who was going to be the designated driver.”
There were no reported issues concerning visitation. The parents were consistent and appropriate during the visits, and the children “seemed calm and responsive to the parents’ redirection, as well as comfortable and attached to the parents.”
The Department urged the court to sustain the petition because the parents “have not made testing through Pac Tox a priority, ” but concluded that, with proper supervision, the children could be placed with the parents. The Department pointed out that Ismael is employed, Eugenia is the children’s full-time caregiver, and both parents “are connected and participating in counseling, testing and parenting through People in Progress. At this time the Department feels a home of parents order is appropriate. However, as they have not been able to comply with testing through Pacific Toxicology it is recommended that court jurisdiction be in place to impress upon them the seriousness of the issues involved and ensure continued focus and compliance.”
The parents similarly requested that the children be placed at home. Ismael’s counsel argued: “The Department itself does not see any risk with the children going home today. They have no criminal histories. There is completely insufficient evidence that they have a substance abuse problem. And, while this was a bad incident, it was less egregious than the one in J.N., and the Department has no evidence that there’s been anything more than this one incident of poor judgment.” Similarly, Eugenia’s counsel argued: “[M]other’s a young mom. She has no criminal record, no history of arrests. The family doesn’t have DCFS involvement. Yes, they did a stupid thing. She’s 18. She shouldn’t be driving. She shouldn’t be drinking. If you look at the jurisdictional report, it’s not a substance abuse. These parents do not drink every day, every week, not even once a month. It’s once in a while when they go to parties. They did a completely horrific thing that night, but I don’t believe there’s current risk. I think, if we allow the kids to go home, mother can test; dad can test; they can do an alcohol treatment program; grandma can test if we have concerns about her.”
In re J.N. (2010) 181 Cal.App.4th 1010.
The children’s attorney, however, requested that the children be kept in their current foster care placement. Counsel cited the following factors as evidence of an existing risk of harm to the children: (1) the parents had missed three test dates at Pacific Toxicology, which should count as three “dirty” tests; (2) with the children present, the parents had engaged in unlicensed driving while intoxicated and had failed to put Owen in a car seat; (3) Eugenia admittedly engages in underage drinking; and (4) the maternal grandmother, who provides transportation for the parents and the children, had engaged in drunken and dangerous behavior during the July 18 incident.
The juvenile court sustained the petition and found, based on the factors cited by the children’s attorney, that there was clear and convincing evidence that returning the children to their home would place them at substantial risk of physical or emotional harm and there are no reasonable means to protect them short of removal. The court stated that even though the July 18 incident was the sole incident of substance abuse, “[t]he risk is current.”
“The tests that the parents were supposed to take - they missed the first two. Let’s see. They went to a birthday party. Owen was not [secured in a car seat] so that everyone could fit into the car. Mother consumed approximately three to four beers. Around 1:30 a.m. or 2:00 a.m., [maternal grandmother] wanted to leave the party. 2:00 a.m., with the babies, at a party, everybody drinking. ‘I woke up because my mom was arguing with Ishmael. He didn’t want to get stopped or get into an accident.’ Good for him. A brain. ‘[Maternal grandmother] said she wanted to go to her house. [Maternal grandmother] opened the door while the car was in motion.’ Kids in the car, one not in a car seat, drunken grandmother, drunken everybody. ‘[Maternal grandmother] was drunk. She pushed her boyfriend, and she got out of the car. We were getting on the freeway, and [maternal grandmother] started running the wrong way’ on the freeway at 2 in the morning with two kids in the car, everybody drunk. The court finds by a preponderance of the evidence these children are children described under... section 300(b)(1), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6), (g)(1), (j)(1). [¶]... [¶] Care, custody, and control are placed under supervision of DCFS. The court finds by clear and convincing evidence return would create a substantial risk of danger to the physical or emotional well-being of the children; no reasonable means to protect without removal from the parents’ physical custody. Custody is removed and placed with DCFS for suitable placement.”
The court ordered the parents to complete a parenting class with random alcohol testing. However, the court did not require the parents to attend a substance abuse program, stating, “I don’t have any information that [the parents] are abusers. They are certainly users. I want them testing, and a parenting class.” In light of this statement, Ismael’s attorney requested that the allegation of current alcohol abuse be stricken. The court denied the request.
DISCUSSION
I. Standard of Review
“On appeal, the ‘substantial evidence” test is the appropriate standard of review for both the jurisdictional and dispositional findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) 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. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
“Thus, ‘we must uphold the court’s [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.)’” (In re J.N., supra, 181 Cal.App.4th at p. 1022.)
II. The Jurisdiction Order Is Supported by Substantial Evidence
Under section 300, subdivision (b), a child may be adjudged a dependent of the court if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm... as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, ” or “the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s... substance abuse.” Subdivision (b) further states, “The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”
In this case, the facts of the July 18 incident were both egregious and undisputed. Eugenia, who has not appealed, engaged in underage drinking and unlicensed driving while under the influence of alcohol. Ismael, who was 24 years old, also engaged in unlicensed driving while under the influence of alcohol. Both parents failed to adequately supervise and protect the children by placing them in a five-passenger car without a car seat for Owen and without sufficient seating for seven persons. In addition, the parents failed to adequately supervise and protect the children by placing them in a car with a person who was so intoxicated that when she jumped out and ran into traffic, Ismael was compelled to stop the car in an unsafe location, which placed all of the passengers at risk of a collision.
These undisputed facts are clearly sufficient to support the jurisdictional finding that the children were at substantial risk of serious physical or emotional harm as a result of the parents’ failure or inability to adequately supervise or protect, or the parents’ inability to provide regular care due to substance abuse.
Ismael contends, however, that by the time of the October 1, 2010 jurisdiction hearing, Isaac was no longer at risk of serious physical or emotional harm and he therefore could no longer be adjudged a dependent child under section 300, subdivision (b). The contention lacks merit.
In determining whether there is a current risk of serious physical harm to a child, the evidence as a whole must be considered. (In re J. N., supra, 181 Cal.App.4th at p. 1025.) In this case, the evidence was undisputed that, as a result of the three missed test dates at Pacific Toxicology, the parents had failed to comply with the random alcohol testing requirement.
Given the severity of the July 18 incident, the parents’ compliance with the random alcohol testing requirement was a critical component of the juvenile court’s plan. Without a series of negative random alcohol test results, the juvenile court had no basis to rule out the risk that the July 18 incident might recur. Moreover, the parents were warned that a missed test would be considered a “dirty” test. (See In re Raymond R. (1994) 26 Cal.App.4th 436, 439 [parents were ordered to drug test, with the provision that a missed test would be considered a “dirty” test].) Accordingly, the fact that the parents had missed all three randomly scheduled alcohol tests supported a finding that they had three “dirty” tests.
The parents’ unsubstantiated denials of alcohol abuse presented an issue of credibility for the juvenile court to resolve. On this record, the juvenile court had ample reason to disbelieve the parents’ denials. Quite simply, any credibility of parents who engage in unlicensed/underage drunk driving in their children’s presence and who fail to provide a car seat for each child is undermined by their noncompliance with a court-ordered random alcohol testing requirement. The fact that these parents had a customary practice of selecting a designated driver strongly suggested that this was neither their first nor last incident of underage drinking, alcohol abuse, or unlicensed drunk driving. In short, the undisputed evidence in this case supports a reasonable inference that there is a substantial risk such behavior will recur.
Ismael’s reliance on In re J.N., supra, 181 Cal.App.4th 1010, is misplaced. In that case, the parents and children were involved in an automobile accident while both parents were intoxicated. The appellate court found that single incident did not establish that the children were at substantial risk of suffering serious physical injury. (Id. at pp. 1025-1027.) Unlike this case, there was no evidence that the parents had failed to comply with a court-ordered random alcohol testing program. Nor was there evidence of underage drinking or unlicensed drunk driving. Accordingly, the facts of J.N. are clearly distinguishable and the decision is therefore not relevant to this appeal.
Ismael contends that because the juvenile court made certain contradictory statements, the jurisdictional findings must be reversed. We disagree. The juvenile court’s statement-”It is conjecture. I’m allowed to do that”-does not reasonably suggest that its findings were based on conjecture. As we have discussed above, the findings are based on substantial evidence.
Ismael also argues that because they were not ordered to participate in an alcohol rehabilitation program, there was no evidence to support a finding that either parent has a substance abuse problem. The contention lacks merit because, as discussed above, the fact that the parents had missed all three scheduled alcohol tests supported a finding that they had three “dirty” tests.
After reviewing the entire record and drawing all reasonable inferences in support of the order, we conclude there is substantial evidence to support the jurisdictional findings.
III. The Disposition Order Is Supported by Substantial Evidence
“Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B. G. (1974) 11 Cal.3d 679, 699.) In this regard, the court may consider the parent’s past conduct as well as present circumstances. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
As discussed above with regard to the juvenile court’s jurisdictional findings, the record contains substantial evidence that the serious nature of the July 18 incident coupled with the parents’ failure to comply with the random alcohol testing requirement placed the children at substantial risk of harm. Given the parents’ noncompliance with the random testing requirement, both the children’s attorney and the juvenile court reasonably believed that the children were not safe and remained at risk. Under these circumstances, it was rational to conclude that returning Isaac to his parents would subject him to a substantial risk of harm. As previously mentioned, the juvenile court was entitled to find the parents’ denials of substance abuse not credible and to give greater weight to the missed test dates, which the parents had been warned would be considered “dirty” tests. In light of the purpose of section 361, subdivision (c), which is to prevent harm to children, the juvenile court’s decision to remove Isaac was both supported by substantial evidence and consistent with the statutory purpose.
DISPOSITION
The orders are affirmed.
We concur: WILLHITE, Acting P.J., MANELLA, J.