Opinion
B191575
12-12-2006
In re RICHARD S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROBERT S., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Jerry M. Custis, Deputy County Counsel.
Robert S. (Father), father of Richard S., appeals the dispositional and jurisdictional orders of the dependency court, contending there was insufficient evidence to support the allegations against him based upon past criminal conduct and drug use, and that as Richards presumed father and nonoffending parent, Richard should have been placed with him. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Deanna W. (Mother) is the mother of Richard S., born in February 2006. Richard was born with a positive toxicology screen for methamphetamines, and was detained and placed with his paternal grandmother, Patty S. Mother has a history of substance abuse, and her parental rights have been terminated to her five older children, who have either been adopted or have adoptions pending.
Father is not the father of any of Mothers other children.
Father also has a history of substance abuse, and numerous drug-related arrests, including a 1999 conviction on drug-related charges for which he served 16 months in prison; he also has a 2001 arrest for being a felon in possession of a firearm and a 2005 arrest for burglary. Father requested that Richard be placed with him, although Father did not have stable employment or housing, and concurred in Richards placement with Richards paternal grandmother. Fathers drug test on February 21, 2006, revealed a blood alcohol level of .06 percent.
The section 300 petitions allegations relating to Father alleged that he knew of Mothers substance abuse but failed to take action to protect the child; had a history of substance abuse and was a current abuser of alcohol; and had a criminal history of convictions for drug-related offenses, including, but not limited to, three convictions of possession for sale (counts b-1, b-3, b-4, and i-1).
The Department of Children and Family Servicess (Department) detention report recommended that no reunification services be provided to Mother, and that Richard be placed with his paternal grandmother. Father was to attend and successfully complete a substance abuse treatment program with random testing, complete parenting classes, and attend individual counseling.
Father told the Department he is 42 years old, that he had been seeing Mother for a little over a year, and had no housing. Father also told the Department he had a drug problem in the past, but had completed 130 days in a treatment program at Cider House. Father stated drugs were no longer part of his lifestyle, and that he was not an alcoholic. His February 21, 2006 dirty test was the result of a drink with a friend to celebrate his sons birth, and Father admitted he had three beers and a cigar. He also admitted his convictions and incarceration for drug-related crimes. Fathers mother Patty S. told the Department Father had given up drugs and had been clean for six years.
However, although Father told the Department he did not know Mother was using because he was out of the home for three weeks during Mothers pregnancy, the Department believed Father should have known, as a recovering addict, the signs and symptoms of drug use. The Department reported that Father had good family support and a good relationship with Patty S. and his sister, and that he contended he had maintained a drug-free lifestyle since his release from prison in 2000. Father told the Department he believed he would benefit from a parenting program.
The Department recommended visits for Father as he was a "non-offending" parent, and noted in its case plan that it would not be in the childs best interests to prevent Father from reunifying with him. The case plan goal was to return Richard home. However, the Department recommended that Richard remain in his current placement due to Fathers lack of stable housing, his lack of parenting skills, and concerns regarding his ignorance of Mothers drug use.
Patty S. indicated that if Richard could not be returned home to his parents, she would adopt him.
The interim review report prepared for the continued jurisdictional hearing of May 3, 2006, stated that the Department had heard from Fathers relatives that he had obtained work in Ventura County, but had failed to notify the Department concerning his whereabouts. He was contacting his relatives by pay phone. The Department interpreted Fathers "abrupt" departure to mean that he was not taking his parenting responsibilities seriously. Father had not been taking parenting classes or attending counseling, although he had been visiting with Richard. The Department was unable to verify Fathers completion of his program at Cider House. The Department recommended Richards continued placement with his paternal grandmother, and Fathers participation in random drug testing, parenting classes, and counseling. If Father was unable to demonstrate the ability to care for Richard, then the Department would recommend adoption.
At the May 3, 2006 hearing, Fathers counsel argued that with respect to the allegations of counts b-3 and b-4 that his substance abuse history was old, he had not been using, and he had not had any convictions in the last several years. The Department asserted that Father had not completed the program at Cider House. The court struck the language from count b-1 relating to Father, found the allegations under section 300, subdivision (b) relating to Father (counts b-3 and b-4) to be true, and dismissed the allegation under section 300, subdivision (i). This left two sustained allegations against Father, counts b-3 and b-4. The allegations against Mother were sustained under section 300, subdivision (b) and (j).
The interim report prepared for the continued dispositional hearing of May 18, 2006 stated that the Department had spoken to Fathers parole officer on May 15, 2006, regarding Fathers criminal history. While on parole, Father had been arrested on a weapons charge, had one dirty drug test for methamphetamine, but did complete the terms of his parole.
Father had told the Department he would provide it with a copy of his certificate of completion from Cider House, but he had not yet done so. Father reiterated that he wanted to raise Richard, but wanted Richard placed with his mother until he could find stable housing. Father denied he abused alcohol; however, he had not been randomly drug testing. Father continued working in Ventura and was on-call 24 hours a day, but hoped to be transferred to Santa Fe Springs. The Department recommended drug testing, counseling, and parenting classes.
The dependency court ordered that Richard be removed from his parents custody. The court ordered reunification services for Father, and ordered him to participate in drug rehabilitation with random testing, with any missed test requiring Father to complete a drug and alcohol program. Father was given unmonitored visitation as long as he was in compliance with the case plan.
DISCUSSION
I. JURISDICTION OVER RICHARD IS PROPER.
Robert contends that the dependency court erred in sustaining the jurisdictional findings as to him based upon a nearly seven-year-old drug conviction and the isolated incident of alcohol use after his sons birth. He contends there is no evidence that he is a current abuser of alcohol or drugs, or that such use rendered him incapable of caring for Richard.
To sustain a jurisdictional finding under subdivision (b) of section 300, the dependency court must find by a preponderance of the evidence that the parents neglectful conduct exposes the child to a substantial risk of serious physical harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) However, because a jurisdictional finding against one parent is good against both for purposes of bringing the child into dependency court, jurisdiction was properly based upon Mothers conduct. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Accordingly, we need not reach the issues raised by Father with respect to the jurisdictional findings specifically related to him.
II. THE DEPENDENCY COURTS DISPOSITIONAL ORDER WAS NOT IN ERROR BECAUSE THE RECORD SUPPORTS A SHOWING OF DETRIMENT TO RICHARD IF PLACED WITH FATHER.
Father contends that as Richards presumed father, he was entitled to custody under section 361.2, subdivision (a), and the dependency court was required to place Richard with him unless such placement would be detrimental to Richards safety, protection, and emotional well-being. Further, he challenges the dependency courts removal order because he contends he was a non-offending parent; he further contends that even if the jurisdictional findings are supported by substantial evidence, there was no evidence leaving Richard in fathers custody would be detrimental to him. Lastly, he contends the dependency court erred in failing to make an express finding whether reasonable efforts were made to prevent or eliminate the need for removal under section 361, subdivision (d), and ignored the obvious solution of placing Richard with Father so long as he resided with Patty S.
When the dependency court exercise jurisdiction over a minor, it must determine "whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child." (§ 361.2, subd. (a).) The court must first determine whether there is a nonoffending noncustodial parent who desires to assume custody of the child; then the court must determine whether detriment from the placement exists. (In re Janee W. (2006) 140 Cal.App. 4th 1444, 1451.)
The court did not believe Father was non-offending. Even if that finding was unsupported by the record, the finding of detriment was. The record does indicate he has yet to establish completion of a substance abuse program and has not been testing; further, the record indicates Fathers lack of employment stability and lack of a permanent residence. These factors are sufficient to support the courts findings that placement of Richard with him at this time would be detrimental to Richard, and the dependency court did not err.
We do not address Fathers arguments that Richard should not have been removed from his custody or that reasonable alternatives to removal should have been considered because Father never had custody of Richard. (See section 361, subds. (c), (d).)
DISPOSITION
The order of the superior court is affirmed.
We Concur:
PERLUSS, P. J.
JOHNSON, J.