Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. JUVMSJ08-02014
Margulies, J.
T.B. was removed from his parents’ custody after his mother (Mother) reported she had been assaulted by his father, appellant C.B. (Father), in T.B.’s presence. T.B. was initially permitted to remain in Father’s custody under an order barring the couple from living together. After two months, however, the Contra Costa County Bureau of Children and Family Services (Bureau) found Father had violated this provision of the order and removed T.B. After a contested dispositional hearing, the juvenile court found custody with Father would subject T.B. to a substantial danger as a result of Father’s irresponsible conduct and the continued threat of domestic violence. Father contends the juvenile court’s decision to deny him custody was not supported by substantial evidence. We affirm.
In a recent decision, we also denied Father’s writ petition challenging a subsequent order terminating reunification services. (C.B. v. Superior Court (A127479, Apr. 15, 2010) [nonpub. opn.].) Our decision on this appeal is based solely on the evidence before the juvenile court at the dispositional hearing, without regard to any subsequent proceedings.
I. BACKGROUND
T.B. is a Down’s syndrome child, now over two years old. In a juvenile dependency petition filed on December 23, 2008, under Welfare and Institutions Code section 300, subdivision (b), the Bureau alleged Mother placed him in danger by engaging in domestic violence with Father in T.B.’s presence, failing to provide him adequate health care, and allowing Father to drive T.B., despite Father’s license suspension after several DUI convictions. T.B. was detained under an order prohibiting Mother and Father from residing together. On that condition, the order authorized the Bureau temporarily to release T.B. to Father’s care, pending a further hearing. Subsequent amendments added allegations that Father and Mother have a history of substance abuse and Father had endangered T.B. by engaging in domestic violence and continuing to allow Mother to live with them. In stipulating to jurisdiction, Mother did not contest the allegations she had engaged in domestic violence in T.B.’s presence and had a history of drug abuse, and Father did not contest the allegation of domestic violence.
All statutory references are to the Welfare and Institutions Code.
A contested dispositional hearing was held on June 9, 2009. The Bureau’s formal dispositional report, written two months before the hearing, recounted Mother’s long history with the child welfare authorities in connection with T.B. and his older half-sister and the criminal histories of both parents, largely involving substance abuse. Father also had an arrest for domestic violence, incurred about a month prior to the filing of the dependency proceedings. In discussions with a social worker, Father had confirmed more than one incident of domestic abuse, although he minimized their severity, and acknowledged three convictions for driving under the influence. Mother admitted to a lengthy history of drug abuse and was actively abusing drugs at the time of T.B.’s detention. At the time of the report, Mother was in a drug treatment program.
The report stated T.B. had been in Father’s custody for two months after the initial detention, but he was removed when it was discovered Mother was living in the same home, in violation of the court order requiring the couple to live separately. At the time of the report, Father was unemployed and claimed to be living with friends, but he had not provided the Bureau with their identities or address. Like Mother, Father was inconsistent in appearing for scheduled drug tests, although he tested negative on those occasions when he appeared. In the six weeks between T.B.’s removal in February and the date of the report, Father had visited T.B. only once, even though the Bureau had offered assistance to arrange and finance visits.
In subsequent memoranda filed prior to the dispositional hearing, the Bureau reported Father continued to drive despite a suspended license and Bureau warnings. He had visited T.B. one additional time and was participating in private therapy. Although he had completed the intake process for a domestic violence program, he had not actually attended classes, and he had missed three more drug tests in May 2009. His relationship with Mother continued. A particular concern of the Bureau was Mother’s apparent minimizing and outright denial of the incidents of domestic violence with Father. A police report associated with Father’s arrest described a vicious beating that caused visible injuries, but Mother claimed to have lied to the police about the incident. She also denied her reports to the police of other violent incidents.
At the contested dispositional hearing, the social worker involved in T.B.’s case testified that during the two months T.B. stayed with Father, Father maintained a “livable” home and appeared to stay sober. However, the social worker said, since T.B. was removed Father continued to drive without a valid license, failed to cooperate fully with the Bureau, missed the four most recent on-demand drug tests, and saw Mother on a regular basis. In the social worker’s opinion, nothing in the couple’s relationship had changed. The court also heard testimony from the friend in whose home Father was living, a retired woman with substantial experience in child care who was willing to assist Father in caring for T.B.
Following the hearing, the juvenile court found return of T.B. to Father’s home would create a substantial risk to T.B.’s well-being and continued T.B.’s removal from his custody. The court explained its ruling by noting Father’s nine missed substance abuse tests, which suggested to the court Father was continuing to consume alcohol, and his persistent failure to take the steps necessary to obtain reinstatement of his driver’s license. From these, the court concluded Father lacked the personal responsibility necessary to care for a Down’s syndrome child. The court was concerned the couple’s lack of attention to T.B.’s health had already caused him hearing loss through neglect of an ear infection. The court also noted Father had not begun anger management classes and Father and Mother had done nothing to address the violence in their relationship, which the court characterized as “the underlying reasons as to why you’re here.”
II. DISCUSSION
Father contends the juvenile court erred in removing T.B. from his custody. Father argues (1) a single act of domestic violence cannot constitute clear and convincing evidence of a substantial danger to T.B.’s well-being; (2) the juvenile court’s order was inconsistent because it permitted overnight visits, despite finding a substantial danger to T.B.’s well-being; and (3) there were means short of removal to protect T.B.
Section 361, subdivision (c), which governs removal of a child from the parental home, “embodies ‘an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent’s homes where it was safe to do so.’ ” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) “Removal of a child from a parent’s custody requires a finding, by clear and convincing evidence, of at least one circumstance set out in subdivision (c) of section 361, including (c)(1): ‘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 parent’s... physical custody....’ ” (In re H.E. (2008) 169 Cal.App.4th 710, 718.) The “substantial danger” required by subdivision (c)(1) can be a risk to the child’s physical or emotional well-being. (In re H.E., at pp. 720–721.)
“Our review on appeal follows the ordinary rules for substantial evidence, notwithstanding that the finding below had to be made by clear and convincing evidence. [Citations.] Viewing the evidence in the light most favorable to the finding, and presuming in its support the existence of every fact the trier could reasonably deduce, we ask whether any rational trier of fact could have made the finding by the requisite standard.” (In re H.E., supra, 169 Cal.App.4th at pp. 723–724.)
Father’s contention the juvenile court erred in removing T.B. on the basis of a single act of domestic violence is based on a false premise. The court’s order was not based only on the domestic violence reported to police. As the court stated, its order was based on (1) Father’s missed drug tests, which suggested continued problems with alcohol; (2) his irresponsibility, manifested in a failure to attend properly to T.B.’s ear infection or his own driver’s license; and (3) Father’s continued relationship with Mother, which resumed at a time when Mother was actively abusing drugs and in violation of a court order. The court concluded there was no reason to believe the violent nature of the relationship had changed because neither party was willing to acknowledge the extent of Father’s violent conduct. The threat from these factors is increased by T.B.’s vulnerability as a Down’s syndrome child. Together, they constitute substantial evidence to support the juvenile court’s finding of substantial danger.
Father relies almost exclusively on In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), in which a child was removed from his parents after unexplained burn marks were found on his buttocks. (Id. at pp. 525–526.) The two cases are significantly different. Although the proceeding in Henry V., like this one, was instituted on the basis of a single incident of abuse, the child abuse in Henry V. was an isolated event and could not be traced clearly to the mother, unlike Father’s acknowledged involvement in several incidents of domestic violence. In addition, the court reversed and remanded the dispositional order in Henry V. because it was not clear the juvenile court understood the requirement that substantial danger be proven by clear and convincing evidence (id. at pp. 530–531), a factor not present here, and the mother in Henry V. had cooperated with the Bureau, completed the prescribed program, and improved her child care skills (id. at p. 527). Father’s mixed record of cooperation and his failure to make progress on the one issue of most concern, his violent relationship with Mother, are in marked contrast.
There was nothing inconsistent in the juvenile court’s finding of a substantial danger and its grant to the Bureau of discretion to permit overnight visits with Father and Mother. Following the dispositional hearing, the Bureau’s efforts to reunify T.B. and his parents would continue. The juvenile court’s order was presumably intended to give the Bureau discretion to begin re-introducing T.B. to his parents’ custody if those efforts were successful. Such authority is not inconsistent with a present finding of substantial danger, since the court could presume the Bureau would not grant overnight visitation unless circumstances had changed.
Finally, Father contends the juvenile court ignored the testimony of the friend with whom Father was staying, who said she would protect T.B. by, among other things, preventing Father’s cohabitation with Mother. While the friend appeared to be a responsible, competent person who was genuinely concerned for T.B.’s well-being, she did not constitute a reasonable alternative to foster care. So long as T.B. was placed in Father’s custody, the juvenile court had no authority over the friend and therefore could not ensure she would keep her commitments. Nor was the use of unannounced visits to check on Father, one of the alternatives suggested in Henry V., adequate to protect T.B., since these would not cure Father’s irresponsible conduct, which posed a continuing threat.
III. DISPOSITION
The order of the juvenile court is affirmed.
We concur: Marchiano, P.J. Banke, J.