Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court No. DP017983 of Orange County, Salvador Sarmiento, Judge.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
O’LEARY, J.
M.J. was taken into protective custody after her birth because she tested positive for drugs. She was removed from her parents’ custody and placed in foster care. Her mother, Stacy S. (Mother), is not a party to this appeal. Her father, Raymond J. (Father), appeals from the juvenile court’s order removing M.J. from his care. We conclude the appeal lacks merit because there was evidence Father had a history of substance abuse and his efforts at reunification before the disposition hearing were insufficient. We affirm the order.
I
M.J. tested positive for benzodiazepines, amphetamine, and methamphetamine at her birth in December 2008. Due to signs of fetal distress in the womb, M.J. was delivered by a cesarean section. She was a sickly baby with respiratory and gagging problems, and she was placed in the intensive care unit. Mother admitted using methamphetamine the day before she gave birth. Mother said she had cut back on her normal smoking and drug use after she found out she was pregnant. Father told the social worker he suspected Mother was using drugs, “‘but it was like a don’t ask don’t tell thing.’” Father admitted to the social worker he had used methamphetamine in the past, last using it about two months ago. He said he smoked marijuana just the day before speaking with the social worker. The petition alleged Mother and Father had unresolved drug use issues, and Father knew or should have known Mother was taking drugs while pregnant and did nothing to protect M.J.
The social worker’s pretrial report dated January 30, 2009, stated the Orange County Social Services Agency (SSA) had denied placement with the child’s paternal aunt and uncle. The aunt had a prior dependency case involving domestic violence. In the same report, Father stated he did not know about Mother’s drug use and he believed she was a great mother to her other daughter, Sara. He explained Sara was currently living with her biological father because Mother was having housing issues. He stated their home was ready for M.J. and Mother was willing to do whatever it took to get her baby back.
Father stated he had completed a drug program and was “‘exonerated by the court.’” He said he started smoking marijuana when he was 14 years old, but he decided to stop smoking the night he heard his daughter cry in the hospital. He stated he quit drinking 16 years ago, and he had not relapsed. Father stated his substance abuse case was expunged when he completed a 15-week course. He reported an accusation of vandalism was cleared from his record. Father worked as an independent contractor, loading trucks for moving companies. He had never been married and he did not have any other children. Father denied having a drug problem, and opined M.J. should have already been released to him. However, he also stated he was willing to drug test and attend parent education classes.
The social worker stated Father had a criminal history dating back to 1993. It included a 1994 diversion for an assault and battery arrest, and a 1994 diversion for possession of controlled substance and paraphernalia arrest. In 1995, Father was convicted of possessing a controlled substance and was sentenced to 90 days in jail. Also in 1995, he was convicted for assault of a person. Two bench warrants were issued for him, and his probation was revoked. In 2000, Father successfully deferred judgment on a possession of a controlled substance charge. But in 2003, Father was convicted of possessing controlled substance paraphernalia, driving with a suspended license, and possessing less than one ounce of marijuana. The record shows a 2008 vandalism arrest, but there is no information about what happened to the case.
The social worker opined Father had anger management issues. On January 2, Father told the social worker he was upset M.J. had not been placed with his sister. The social worker explained the reasons for this decision were confidential and suggested he contact the placement division. Father raised his voice, used profanity, and demanded to speak with “someone in charge.” He stated he was “highly opposed” to placement with any foster family. A few days later, after a monitored visit, the caretaker reported Father was “a very angry person,” and he found fault with everything. Father asserted he was upset the caretaker had more than one child in her care and he believed M.J. was not getting enough attention. The caretaker reported Father used “foul language” during the visit, and Mother “had to keep quieting the child’s father.”
On January 9, 2009, M.J. was placed in the Olive Crest Foster Family Agency (FFA) foster home of Tim and Rebecca. It was reported the first “icebreaker” visit went well. However, the next few visits were not good. During one visit, Father talked excessively about the case, accusing the social worker of falsifying reports. At the next visit, Father spent his time trying to contact the social worker supervisors and he could be heard loudly swearing on the telephone. During these visits, Father sat away from M.J. and Mother, stating he wanted them to bond.
In early January, the social worker submitted a referral for Father to complete drug testing. She gave Father referrals for residential and drug treatment programs, sober living homes, parent education classes, counseling, Narcotics Anonymous meetings, and family resource centers. She also mailed bus passes to both parents. One week later, she left a voicemail message for Father providing information about how to begin drug testing.
In the next social worker’s report, dated February 17, 2009, it was noted Father’s anger management issues were upsetting the foster mother, Rebecca. On February 5, an employee at the FFA expressed concern about Father’s continuing hostility and that he now appeared to be directing it towards the foster mother, Rebecca. During a visit, he told M.J. “don’t listen to the lies these people tell you.” Mother cried during visits. Rebecca stated she did not feel comfortable having Mother and Father attend M.J.’s medical visits due to Father’s hostility. Between January 13 and February 14, the parents cancelled four of the 12 possible visits.
In a report prepared in March 2009, the social worker stated the FFA’s regional director observed a visit in late February. She stated Father did not interact with the child, and Mother held the child the whole visit. Father brought up DNA testing for the child and requested a different monitor. In early March, Rebecca asked for assistance with a visit because Father’s sister and husband were being “very rude, confrontational, and asking her all kinds of questions that she did not feel comfortable answering.” Father’s sister accused Rebecca of abusing M.J. because the infant had a bald spot on the back of her head. (M.J.’s pediatrician later concluded the hair loss was normal.)
Father requested a referral for drug testing, claiming the drug testing company said he needed a new one. The social worker stated the referral was still valid and Father simply needed to call the drug testing telephone number to test and do an on demand test that day. Father stated SSA had violated his constitutional rights, and he threatened to file a lawsuit.
In mid-March, the social worker reported Father had called her about issues with visitation. He was upset that Rebecca was making medical decisions for his daughter, and he was distressed to learn she had authorized the doctor to snip M.J.’s tongue without permission. He was certain Rebecca was trying to adopt his daughter. He requested Rebecca be told she could not call M.J. “sunshine” because that was his pet name for her.
A few days later, a new FFA case manager was assigned to the case. She stated Father was extremely disrespectful and spoke so loudly to her that a sheriff special officer came over to see what was going on. He threatened to have the child moved out of her foster care placement.
Later in the month, Father called the social worker again and wanted to know why his daughter was not moved out of the foster home. He accused Rebecca of lying, and restated she was lying because she wanted to adopt M.J. When the topic of the tongue snipping came up again, Father began to yell at the social worker. The social worker reported Father complied with her request he calm down and speak more quietly.
Father requested photographs of M.J. be provided on a continuous basis for he and Mother. On March 19, Rebecca reported things were going better with Mother and Father, and Father seemed calmer after a new social worker was assigned to the case. Rebecca agreed to provide photographs for the parents. Father was loving and acted appropriate with M.J. during visits in March.
Despite being given referrals for services in January, Father missed all drug testing dates from January through March. The social worker stated she repeatedly instructed Father on how to complete on demand drug testing, but Father was unable to submit a single drug test. Father missed the first parenting class on March 10, and it was rescheduled to the beginning of April. He missed his initial counseling sessions in March, and those were rescheduled.
In the final addendum report prepared for the jurisdictional and dispositional hearing on March 25, 2009, the social worker recommended the court sustain the petition and provide reunification services to the parents. The hearing started on April 2, and continued on April 6, 8, and 9. The court made its order on April 20.
During the hearing, social worker Margaret Vaneck testified. She confirmed that despite her referrals to Father for drug testing, Father had never tested. The social worker stated she recommended a drug treatment program, parent education, 12-step meetings, and counseling with anger management be completed before M.J. could be safely placed in his custody. She explained the recommendation of anger management counseling was due to Father’s tendency to become agitated and his criminal history of arrests for assault and battery. The social worker stated Father missed half of his scheduled visits, and he claimed it was due to work conflicts. She concluded Father had not participated in any part of his case plan.
Vaneck also noted Father believed Mother’s substance abuse problem was “slight” and would not interfere with her ability to be a good parent. This gave her cause for concern given Mother’s dismal progress with her service plan. Mother admitted using an assortment of drugs during her pregnancy. She had not yet enrolled in a drug treatment program or attended a parent education class. Mother had come to only two visits without Father, and on those visits she left early. During visits Father was loving with M.J. but aggressive with everyone else. The social worker noted that during the two weeks prior to the hearing, Mother and Father had failed to confirm or attend any visits with M.J. She had not received any complaints they were being denied visits.
Senior social worker Mariana Swenson was assigned to the case at M.J.’s birth. After interviewing Mother, Swenson could not locate Father. She interviewed him a few days later on the telephone. She recalled he initially denied knowing Mother was using drugs, but then later admitted it was a “‘don’t ask, don’t tell’” situation. Father admitted to Swenson that he used drugs.
Mother testified she and Father met two years earlier and they were now living together. When they first met, they used marijuana together. She denied using methamphetamine with Father, and claimed he was unaware of her drug problem. She claimed Father had not used any drugs in the past year, except for marijuana. Mother attempted to recant many of the statements she gave during her interview at the hospital. She stated that if M.J. was placed in Father’s custody, they would separate and Father would live with M.J. in his sister’s home. She believed M.J. would be safe with Father. She opined that during visits Father was not acting angry or being difficult but rather he was frustrated.
Cathy R. testified next. She stated Father and Mother had been living with her and her mother since June or July 2008. She was willing to allow M.J. to live there too. Cathy said she was unaware of Mother or Father’s drug usage, and she had never smelled marijuana. Cathy explained her mother was against drugs, and she would not allow Father or Mother to live there if she knew they were taking drugs. Casey recalled Mother and Father told her that M.J. was removed due to “some weed, it was in her system....” She understood the baby was removed due to drugs, but she was not concerned as long as they were not using drugs in her house.
Father testified he was not notified M.J. had tested positive for drugs when she was born. He disagreed with the doctor’s assessment of M.J.’s distressed condition at her birth. He opined she did not have difficulty breathing or have a high pitched first cry. He denied speaking on the telephone with Swenson or being interviewed. He denied telling a social worker he had a “don’t ask, don’t tell” attitude about Mother’s drug usage. He adamantly denied knowing she was using methamphetamine. He said they only once smoked marijuana together while she was pregnant.
Father admitted his past criminal record contained arrests for drug paraphernalia and drug possession. He was incarcerated for an assault conviction, and his driver’s license was revoked in 2003 due to possession of marijuana in his car. Father minimized his marijuana usage. He claimed he completed a 15-week drug treatment program in 1995 but resumed using marijuana after that. Father claimed he had not used methamphetamine in 10 years, and he did not have a drug problem related to marijuana use. He asserted he no longer was going to use marijuana because M.J.’s birth had inspired him to be a better man. Father did not want his daughter to look at her dad as being a drug addict.
Father stated Vaneck did not provide any referrals for services. He stated that during a three-hour meeting in January Vaneck gave him a list of things she thought were necessary to get his daughter back. Father said that after explaining his work schedule would conflict with many of the items, Vaneck said she only needed him to drug test. He explained the difficulties he encountered when trying to make arrangements to drug test. He claimed the first time it was his turn to test, he was out of town. Then he learned he was dropped from the program and needed a new referral. He had trouble contacting Vaneck, and he believed it would have been futile to call the testing center again.
In conclusion, Father expressed dismay his daughter was already four months old and looked to her foster mother as being her mother. He claimed he could have taken a year off work to care for M.J. and they would have lived off his savings. He claimed he had plenty of baby supplies and furniture to care for M.J. He wanted to build a bond with his daughter and spend the rest of his life with her. When questioned about his demeanor when interacting with Rebecca and the monitors, Father stated he tried to be as nice as he could.
Father’s sister, Janet G., testified she asked for placement of M.J. soon after her birth. She and her husband were married seven years and they had a six-year-old daughter. Janet described the incident that was used by SSA to deny placement. Over one year ago, she and her husband had a fight and the Los Angeles Social Services Agency was called. Janet’s daughter was taken into protective custody while Janet was taken to the hospital for alcohol poisoning. Janet’s husband was arrested, but the charges were dropped and he was released. They had to attend parenting classes and family counseling. Janet attended Alcoholics Anonymous for several months. Her husband attended anger management classes. Janet stated that night was the first and last time she consumed alcohol. She did not feel her husband needed anger management classes. The dependency case closed a year ago. Janet stated she was prepared to care for M.J. She said if the court ordered family maintenance, Father could live in her home with M.J. Janet would be willing to allow Mother to visit if the court permitted it.
The juvenile court stated it found credible the social workers’ testimony but found the parents were not credible witnesses. The court sustained the petition, and finding Welfare and Institutions Code section 361, subdivision (c)(1), applied, it took custody of M.J. from the parents. It adopted SSA’s case and visitation plans, and scheduled a six-month review hearing.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
II
A. Applicable Law and Standard of Review
Section 361, subdivision (c)(1), provides, in relevant part, that to remove a child from his or her parents, the juvenile court must find by clear and convincing evidence that: “There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parents’... physical custody.” We review the juvenile court’s order for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
B. Substantial Evidence Supports the Juvenile Court’s Order
The evidence submitted at the disposition hearing indicated Father was not a credible witness, he had an unresolved history of illegal drug use, he was uncooperative, he was hostile towards SSA, and he had a criminal history that reflected drug use and a violent temper. The juvenile court adopted the petition’s allegations, which Father does not challenge on appeal, that Father was aware Mother used drugs while she was pregnant and failed to protect M.J. Substantial evidence supports the court’s order.
Father complains SSA never linked his drug usage, or his failure to prevent Mother from taking drugs, to a post-birth risk to M.J. Not so. SSA pointed out Father’s long-term substance abuse problem led to many of his arrests, convictions, and the loss of his driver’s license. He completed a drug treatment program but continued to use illegal drugs thereafter. Yet under oath he denied having a drug problem and essentially blames the court for not accepting his testimony as proof enough. Very telling is Father’s failure to take a single drug test in four months, despite his claims he could afford to take a year off work to care for M.J. The juvenile court reasonably determined Father’s testimony, including the many different excuses he gave for failing to test or take a single parenting class, were not credible. It suggests Father had something to hide. As aptly stated by SSA, how could the court entrust an infant to a parent under a family maintenance plan when that parent was clearly in denial (or lying under oath) about his own drug problem? His apparent failure to understand the harmful nature of Mother’s methamphetamine addiction is also troubling. If M.J. was placed in his custody, Father would be responsible for reporting truthfully about M.J.’s contact with Mother, and how M.J. was progressing. His past failure to recognize when Mother was under the influence, and his ongoing failure to appreciate how Mother’s methamphetamine use would affect her ability to parent, shows an extreme lack of good judgment. Can Father be trusted to recognize when Mother’s judgment is impaired, placing M.J. at risk of accidental harm or neglect?
Another valid reason for denying Father’s request for custody was his violent nature and anger management problems. While we recognize navigating the dependency system can at times be frustrating, we find Father’s unfettered display of continuous hostility and anger towards the social workers and his own child’s caretaker were signs of impending danger. We are not suggesting Father would harm M.J., but his criminal history of assaults with other adults, the amount of swearing, yelling, and aggressive behavior reported in just four short months, gave the court reason to conclude placement with Father would put the child at risk for witnessing, or worse yet, being accidently harmed during a violent altercation. Given Father’s history of being uncooperative and hostile to the social workers, it is questionable whether he would reach out to SSA for additional services or other help if he or M.J. needed it.
Father argues that other reasonable means existed by which M.J. could have been protected, namely, she could have lived with Father in the home of Father’s sister under close supervision by SSA. However, there was a prior dependency case concerning the sister’s home. The fact Mother and Father would have separate residences does not compel the conclusion M.J. would be protected. Father attempted to minimize the danger to M.J. posed by a methamphetamine addicted mother rather than acknowledge the potential problems. He lacked credibility with the juvenile court, he used illegal drugs, he had a history of violent criminal conduct, and he exhibited extreme hostility towards social services and the caretakers. At the time, in-home services would not have been appropriate.
Father’s reliance on In re Henry V. (2004) 119 Cal.App.4th 522, is misplaced. In that case, the Court of Appeal reversed a removal order because (1) the physical abuse suffered by the child was a single occurrence that neither SSA nor the juvenile court considered to be an obstacle to reunification, and (2) the juvenile court did not consider the existence of alternatives to out-of-home placement. (Id. at p. 529.) In contrast, here the court did not believe Father’s claims to be drug free or his excuses for failing to comply with any aspect of his service plan. As discussed above, there were other impediments to reunification. Finally, the court did consider and rejected in-home services because there is no evidence they would have been appropriate.
Similarly, In re Jeannette S. (1979) 94 Cal.App.3d 52, is inapposite. In that case, a five-year-old girl was removed from her mother’s home and found to be a dependent based on the home’s filthy condition. On appeal, the court determined her removal was improper in part because the minor could have been returned home under “stringent conditions of supervision by the welfare department,” with a warning that if the mother let the house get filthy or failed to keep the minor clean, she would lose custody of the child. (Id. at p. 60.) Here, the risk of harm to a four-month-old child was substantially greater. Unlike the messy-house mother in Jeannette S., Father’s unresolved drug usage, violent outbursts, criminal history, refusal to drug test, and refusal to cooperate (in addition to Mother’s issues) led to dependency jurisdiction over M.J. It was not a single occurrence that led to M.J.’s removal, and SSA determined there were several obstacles to reunification. In short, Father’s current turbulent lifestyle, and his denial the family needs some help, puts M.J. at risk of damaging emotional harm.
III
The order is affirmed.
WE CONCUR, BEDSWORTH, ACTING P. J., IKOLA, J.