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In re L.K.

California Court of Appeals, Second District, Eighth Division
Feb 24, 2011
No. B223910 (Cal. Ct. App. Feb. 24, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK 77129 Albert Garcia, Referee.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.


FLIER, J.

The trial court found that 10-week-old L.K. was a child as described in subdivision (b) of Welfare and Institutions Code section 300, and the court also removed L.K. from her parents’ custody. Appellant Johnny K., L.K.’s father, challenges both orders in this appeal. We affirm.

All further statutory references are to the Welfare and Institutions Code. In pertinent part, subdivision (b) of section 300 describes a “child [who] 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.”

FACTS

L.K.’s mother (not a party to this appeal), whom we will refer to as mother, had a prior child, Evan, who was detained in May 2009. As of that date, mother had an 11-year history of drug abuse and had tested positive for amphetamines and methamphetamines a few days prior to Evan’s detention.

When L.K. was born in January 2010, mother agreed to participate in a “Voluntary Family Maintenance” agreement but shortly after L.K.’s birth mother missed two drug tests and was unable to explain why. As a result, the social worker went to mother’s home to detain L.K. When appellant learned why the social worker was there, he took L.K. and ran away with her.

The police who assisted in looking for appellant informed the Los Angeles County Department of Children and Family Services (DCFS) that both of L.K.’s parents had warrants out for their arrest and that mother had until recently lived at a house that was shut down because of narcotics activity.

Mother agreed to place L.K. with the same person who was taking care of Evan. She was afraid of contact with the police because she thought she would be arrested.

Both mother and appellant have criminal histories. Appellant was charged over a period of two years with seven incidents of inflicting corporal injury on a spouse, as well as kidnapping and drug charges. He has served a two-year prison term for spousal abuse. His prison record contains the warning “mentally disturbed keep away.”

The trial court initially detained L.K. on February 18, 2010, under subdivision (b) of section 300.

On March 2, 2010, DCFS reported to the court that mother’s home appeared to be inappropriate for L.K. and that appellant, who had come in for an interview, walked out when asked about his mental condition. During this interview, which lasted 15 minutes, and before he walked out of the interview, appellant was short tempered and irritated at every question DCFS asked; he refused to be fingerprinted and tested for drugs. He accused DCFS of building a case against him.

DCFS reported that on one occasion when mother left L.K. with appellant while she attended a parenting class, he called her back after 11 minutes because he was unable to deal with L.K.

Other than the single 15-minute interview, DCFS was unable to locate and speak with appellant.

During the hearing that led to the orders on appeal, the court had to admonish appellant for his disrespectful behavior.

THE HEARING AND THE TRIAL COURT’S ORDERS

In addition to two DCFS case workers, both mother and appellant testified at the hearing that led to the two orders on appeal. Appellant’s testimony was very brief and uninformative.

The trial court cut off argument by appellant’s trial counsel. We return to this topic below, in that it is one of the issues raised on appeal.

The court found by clear and convincing evidence that a substantial danger existed as to L.K.’s physical and emotional health and that no reasonable means existed to protect L.K. without removing her from mother’s home and the physical custody of her parents. The court ordered appellant to submit to six random drug tests and to complete a parent education course.

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion When It Terminated Counsel’s Argument

Appellant contends that the court erred when it terminated closing argument by his counsel. Appellant contends that there is “no authority” for the trial court’s view that there is no unqualified right to present closing argument.

As Witkin notes, there is no statutory right to argue cases tried to the court, and “it is consequently within the court’s discretion to grant or deny the privilege.” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 163, p. 199.) When there is no doubt about the outcome, argument may be a waste of time, and the court can deny counsel the opportunity to argue. (Engineering Service Corp. v. Longridge Inv. Co. (1957) 153 Cal.App.2d 404, 420.) Even in criminal cases, the court is given great latitude in controlling the duration and scope of closing arguments. (Herring v. New York (1975) 422 U.S. 853, 862.)

In this case, after mother’s counsel’s argument began to wander afield, the trial court warned counsel that they should keep their arguments short and advised them that the court had the power to terminate arguments entirely. After further argument by mother’s counsel, appellant’s counsel commenced his argument with the observation that no one thought that mother was using drugs. At this point, the trial court appears to have had enough and terminated oral argument by appellant’s counsel. Considering that the line of argument appellant’s counsel was embarking on was wrong on its facts and of dubious relevance, at least from the perspective of appellant’s case, one tends to agree with the trial court’s ruling. But the question is not whether we think the ruling was correct, the inquiry is whether there was an abuse of discretion.

The answer is that there was no abuse of discretion. Although a trial court generally should be reluctant to cut off oral argument, counsel was on notice that the trial court wanted the arguments to be concise and to the point and appellant’s counsel’s argument promised to be neither. Moreover, given the facts, the reality is that argument would have been futile. As we discuss below, there was hardly any evidence that would have supported rulings contrary to the ones made by the court.

Appellant is mistaken in stating that closing argument is “as necessary as the evidence itself” and that he was deprived of this important right. Argument that veers off course is not helpful to the court and does not serve the ends of justice. While conceivably the court could have let counsel argue a little longer, one can understand that counsel’s efforts to deny an 11-year history of drug abuse sorely tested the court’s patience. The trial court was faced with the serious problems of a mother who was an out-and-out drug addict, a father who acted irresponsibly throughout, and a very young baby; attempts to deny that these problems existed were of no use to the court.

2. The Section 300 Petition States a Cause of Action

The section 300 petition alleges that appellant failed to protect L.K. Mother’s 11-year history of drug abuse “renders the mother incapable of providing regular care for the child.” Specifically, mother’s “use of illicit drugs and [appellant’s] failure to protect the child endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm.”

Appellant contends that the section 300 petition did not state a cause of action because it is “impossible to imagine how [appellant’s] knowledge of [mother’s] history of drug abuse placed L.K. at substantial risk of physical or emotional harm.”

The section 300 petition must contain a “concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f).) The petition in this case conforms to this standard. The petition alleges two facts: (1) Mother is incapable of caring for L.K. because of her long history of drug abuse. (2) Appellant has failed to protect L.K. from the consequences of mother’s addiction.

It is plain common sense that a mother with an 11-year history of drug abuse poses a huge risk to a baby. In the first place, the baby must be protected from this danger; secondly, there must be someone who can take care of the child. The petition alleges these self-evident propositions. We therefore disagree with appellant’s suggestion that it cannot be “imagined” from the petition how mother’s drug addiction places L.K. at risk. It is not necessary to invoke one’s imagination to see the perils to L.K.’s physical survival if DCFS had not acted quickly and vigorously. In short, the section 300 petition states a cause of action.

3. The Court’s Orders Are Supported by Substantial Evidence

Appellant selects portions of DCFS worker O’Neill’s testimony wherein O’Neill testified that mother did not test positive for drugs and that mother was in compliance, was doing well and was a good mother. Appellant omits O’Neill’s testimony that she suspected mother was abusing drugs on several occasions because of mother’s irritable and hostile behavior and that mother often missed drugs tests.

It is basic that, under the substantial evidence test, appellant is not free to ignore facts that support the judgment. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) “When a party challenges on appeal the sufficiency of evidence, the party must discuss all the evidence supporting the court’s ruling or the party waives the point.” (Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1374.)

Not only is the point waived that there is no evidence to support the finding that mother abused drugs, there is evidence that she was abusing drugs and alcohol while pregnant with L.K., there is also evidence that mother missed two drugs tests after L.K.’s birth and that she missed many more drug tests before L.K.’s arrival. The trial court could hardly gamble that mother would be drug-free and sober when there was substantial evidence that pointed the other way.

But none of this addresses a matter that appellant ignores. And that is appellant himself. There is literally no evidence that appellant will (or has) behaved responsibly as a parent. When DCFS attempted to detain L.K., appellant ran away with the baby, which is an eloquent demonstration of his lack of maturity and responsibility. He walked out of the only interview with DCFS to which he submitted and was hostile and uncooperative while the interview lasted. He could not care for L.K. for more than 11 minutes before calling for help. And his personal and criminal record is daunting. Given all of this, one would think that during the hearing he would at least make an effort to put facts before the court that favored him as a parent and a father. But he did nothing of the sort. Instead, he testified very briefly that he never threatened the DCFS workers, that he has not been locked up in a mental institution, that he was not using drugs and that he completed a course in the prevention of domestic violence.

The long and the short of it is that L.K. was in great peril as soon as she was born and that there is not a shred of evidence that appellant could behave as a responsible parent; in fact, all the evidence is to the contrary. The trial court could not do anything other than what it did do.

4. Ordering Appellant to Undergo Six Drug Tests Was Appropriate

The trial court ordered that appellant submit himself to six random drug tests. He contends that there is no evidence that he had or has a drug problem.

“The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court’s determination in this regard absent a clear abuse of discretion.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Drug or alcohol testing may be appropriate dispositional orders. (Ibid.)

We see no abuse of discretion here, much less a clear abuse of discretion. DCFS reported that appellant had refused to submit to drug testing. Appellant had been charged at one point in time with a drug offense. This aside, drugs were unfortunately a major theme in this case. The court did not err in taking the safe course and acting to ensure that drugs would be eliminated as a factor in L.K.’s life.

DISPOSITION

The orders asserting jurisdiction over L.K. and removing her from her parents’ custody are affirmed.

We concur: BIGELOW, P. J., RUBIN, J.


Summaries of

In re L.K.

California Court of Appeals, Second District, Eighth Division
Feb 24, 2011
No. B223910 (Cal. Ct. App. Feb. 24, 2011)
Case details for

In re L.K.

Case Details

Full title:In re L.K., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Feb 24, 2011

Citations

No. B223910 (Cal. Ct. App. Feb. 24, 2011)