Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. CK66600, Jan G. Levine, Judge.
Marilyn M. Mordetzky, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Gregory M. (father) appeals from the juvenile court’s jurisdiction and disposition order pertaining to minor Sierra M. (now age 6). We agree with father that there is insufficient evidence to support the court’s jurisdictional finding of concealment of the minor, but find sufficient evidence of endangerment based on father’s use of drugs, and affirm the dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2007, the Los Angeles County Department of Children and Family Services (the department) filed a petition under section 300 of the Welfare and Institutions Code on behalf of Sierra M. The petition alleged in count b-2 that father had a history of substance abuse and was a current user of illicit drugs, which rendered him incapable of providing regular care for the minor and endangered her physical and emotional health and safety and placed her at risk of physical and emotional harm and danger. The petition made the same allegations against Sierra’s mother, Debbie A. (mother), in count b-1 and also alleged that mother had been arrested on January 10, 2007 for being under the influence of a controlled substance.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
The petition was also brought on behalf of Sierra’s 16-year-old half-sibling, who is not a subject of this appeal.
Mother is not a party to this appeal.
In its detention report, the department reported that at the time of mother’s arrest Sierra was in the home of her paternal grandparents. When a background check revealed that the paternal grandfather had a criminal history, the department instructed the grandmother to bring Sierra to the police station so that she could be placed in another placement. The grandmother first took Sierra to mother’s home to gather a change of clothes. Father, who was on parole from a drug-related conviction, appeared and took Sierra from the grandmother. The grandmother had not had contact with father since his release from custody and assumed the only way he could have known about the situation was from mother.
At the detention hearing on January 16, 2007, Sierra’s paternal aunt appeared and stated that she had had contact with father the previous evening and he informed her that he would not return Sierra unless she was released to the aunt or the paternal grandmother. The aunt had a notarized letter from the paternal grandfather stating that he would move out of the house so that Sierra could be placed there. The court informed the aunt that father’s behavior was not appropriate and that father should return Sierra voluntarily. The court ordered Sierra detained and issued a protective custody warrant for her and an arrest warrant for father.
For the disposition and jurisdiction hearing originally scheduled for February 7, 2007, the department reported that the whereabouts of father and Sierra were still unknown. Father had an extensive criminal history, including arrests for attempted murder and use of force causing great bodily injury, and convictions for grand theft, evading a peace officer and drug-related crimes. His probation had been revoked twice and he had violated his parole. The social worker interviewed mother, who stated that although father used methamphetamines, he did not do so at home, and that she had not seen him under the influence of drugs for three years. The social worker also privately interviewed Sierra’s half-sibling, who thought father was a good father and denied knowledge of his drug use. She said that she had never seen him with drugs or drug paraphernalia or under the influence of drugs.
On the date of the hearing, the department filed an amended section 300 petition adding count b-3 against father, which alleged that father “abducted and intentionally concealed” Sierra from the court and the department and that “[s]uch abduction of the child by the child’s father endangers the child’s physical and emotional health and safety, creates a detrimental home environment and places the child at risk of physical and emotional harm and damage.”
Mother appeared at the February 7, 2007 hearing and testified that she had seen father and Sierra the day before and that father refused to return Sierra because he feared she would be placed in foster care like McLaren Hall. Mother spoke to Sierra, who was “fine.” Mother testified she did not know their whereabouts or how to reach father. The court emphasized that father needed to appear in court and that he was risking arrest. The matter was continued to February 21, 2007, at which time mother informed the court that father had been arrested and that she still did not know Sierra’s whereabouts. The matter was again continued.
Father appeared in court on February 26, 2007 and the court recalled the arrest warrant. He testified that on the day he was arrested, he left Sierra with his girlfriend in order to do an errand. He was unsure if Sierra was still with his girlfriend because he had instructed her to take Sierra to the paternal grandmother or mother if he were arrested. He stated that the girlfriend lived in Norwalk, but he did not know her address, though he knew the first name and telephone number of a friend who could get in touch with her. According to father, he would be in custody for “a long time.” The court ordered that he be provided any reunification services available to incarcerated parents, and that he be given referrals for substance abuse and parenting programs and random drug testing upon his release from custody.
Mother, father and Sierra appeared in court on March 1, 2007. Sierra was in the custody of the paternal grandmother. The court recalled the protective custody warrant and ordered that father be granted visitation with Sierra while he was in custody at the local jail. The court also declared father to be Sierra’s presumed father. The matter was once again continued to March 28, 2007.
For the continued hearing, the department interviewed father, who admitted using drugs a week prior to his February 16, 2007 arrest. His drug of choice was marijuana and he did not use drugs at home. He admitted taking Sierra against the paternal grandmother’s wishes because he was worried she would be placed in foster care and he thought the paternal grandmother had his cell phone number in order to reach him.
The disposition and jurisdiction hearing was held on March 28, 2007. Mother submitted to the court’s jurisdiction and signed the disposition report. The department dismissed the count against mother. The matter proceeded as to father.
Father’s attorney moved to dismiss the petition under section 350, subdivision (c) on the ground that the department had failed to meet its burden of producing sufficient evidence to prove the allegations against father. Father’s attorney argued that father did not abduct Sierra because he took her from the paternal grandmother before the petition was filed by the department and that he did not intentionally conceal her because he gave information to the court on how to reach his girlfriend, who was caring for Sierra. Father’s attorney also argued that there was no nexus between father’s drug use and risk of harm to Sierra.
The department’s attorney reminded the court that it had admonished the paternal aunt and mother, both of whom had seen father, that he needed to return Sierra to the department’s custody, and that father had a long history of drug use, had used drugs a week before his arrest and was then incarcerated on another drug charge. The court denied the motion to dismiss and instructed father’s attorney “to put on a case.” Father’s attorney responded that she was not going to offer any evidence or witnesses and was instead relying on her arguments. Sierra’s attorney agreed that the drug count should be sustained against father, but disagreed that father had abducted Sierra.
The court sustained the amended petition as alleged on the drug count (count b-2). As to count b-3, the court amended the petition by deleting one of two references to abduction, and found that the evidence supported the finding that father intentionally concealed Sierra from the department. The court declared Sierra to be a dependent of the court and returned her to mother’s custody. The court ordered that family maintenance services be provided to mother and that reunification services be provided to father, that father participate in a parenting class and in a drug rehabilitation program with random drug testing. The court ordered that father have monitored visits with Sierra after his release from custody, and gave the department discretion to liberalize the visitation. This appeal followed.
DISCUSSION
Father contends there is insufficient evidence to support the juvenile court’s jurisdictional findings. As discussed below, we agree with father in part.
Section 300, subdivision (b) provides that a child comes within the jurisdiction of the juvenile court and may be adjudged a dependent child of the court if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent’s failure or inability to adequately supervise or protect the child or inability to provide regular care for the child due to the parent’s substance abuse.
With respect to count b-2, father argues that because he did not use drugs in front of Sierra and was never seen under the influence of drugs in her presence, the record is devoid of any nexus between his substance abuse and harm to Sierra.
Father is correct that a parent’s past conduct by itself is not sufficient to establish a basis for jurisdiction. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) But the petition was sustained not only on the basis of father’s substance abuse history, but on his current use of illegal drugs. Indeed, father admitted that he had been using drugs just one week prior to his arrest on another drug-related charge while Sierra was in his care and custody. The fact that father did not use drugs in Sierra’s presence does not assist him because clearly he cannot care for a five-year-old child while he is off somewhere taking drugs. Father’s use of drugs and his arrest on drug-related charges while Sierra was in his care and custody supports the court’s jurisdiction over Sierra.
Father argues that we must also consider whether substantial evidence supports the second count against him. Contrary to father’s position, a reviewing court may affirm a decision of the juvenile court if the evidence supports the decision on any one of several grounds. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Father does not explain how he will be prejudiced by an erroneous jurisdictional finding. Nevertheless, we will consider whether substantial evidence also supports count b-3 against father.
The trial court modified count b-3 by striking the first reference to father’s abduction of Sierra. As father points out, the court left intact the second reference to abduction. This appears to be an editing error by the court because it is clear from the court’s comments at the March 28, 2007 jurisdiction and disposition hearing that the court intended only to find father intentionally concealed Sierra. But we find the evidence does not support a jurisdictional finding on the basis that father’s intentional concealment of Sierra placed her at risk of harm. Even assuming the evidence supported the inference that father intentionally concealed Sierra from the department, there is no evidence that she was harmed by such action. Mother represented to the court that she had spoken to Sierra while she was in father’s custody and that Sierra appeared to be “fine.” At the time of the jurisdiction and disposition hearing, Sierra had been safely returned to her paternal grandmother—the same circumstances that existed when the petition was first filed and father took Sierra. “[T]the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Father was incarcerated at the time of the hearing and there was nothing to suggest that he would attempt to conceal Sierra again upon his release from custody, especially since Sierra was returned to mother at the hearing. Moreover, father’s conduct in taking Sierra was not the reason for the referral to the department in the first place nor the reason for the initial petition. Accordingly, that part of the court’s order sustaining count b-3 of the amended petition against father is reversed.
In light of our conclusion, we need not address father’s argument that the juvenile court’s failure to advise him of his right to trial prejudiced his ability to offer a defense against count b-3.
Because we conclude that the jurisdictional finding on count b-2 is supported by substantial evidence, there is no basis for finding the dispositional order moot, as father urges.
DISPOSITION
The court’s March 28, 2007 jurisdiction and disposition order is affirmed, except that part of the order sustaining count b-3 of the amended petition is reversed.
We concur: BOREN, P. J., ASHMANN-GERST, J.