Opinion
B329152
07-30-2024
In re CHRISTIANA C., a Person Coming Under the Juvenile Court Law. v. CHRIS C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles Super. Ct. No. 22LJJP00184, Kristen Byrdsong, Juvenile Court Referee.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Chris C. (Father) appeals from the disposition order removing four-year-old Christiana C. from his care after the juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b)(1),alleging that Father and Angel H., Christiana's mother (Mother), had a history of domestic violence and that Father failed to protect Christiana from Mother's substance abuse. Father contends the court's finding under section 361, subdivision (c)(1), that there were no reasonable means to protect Christiana other than removal was conclusory and unsupported by substantial evidence. We affirm.
Further statutory references are to the Welfare and Institutions Code.
Christiana was also removed from Mother. Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
On April 21, 2022 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging Mother and Father were using drugs and frequently left Christiana and her six-month-old half-sister, R.W., with strangers who were also drug users. The caller stated that Mother used drugs in the presence of the children and left drug paraphernalia in the home accessible to them, and on one occasion Christiana carried a hypodermic needle to a neighbor. The night before the referral Father left the home angry, and Mother chased him in her car while the children were in the back seat.
On April 26 a Department social worker interviewed Father and Mother at the Lancaster motel where the family was living. Mother admitted she was a recent abuser of crystal methamphetamine and marijuana but claimed she had been sober for a month. Father told the social worker Mother had been sober "for a minute," but she never used drugs around the children. Father denied there was any substance abuse in the home. Both parents denied any domestic violence between them. However, Mother stated there had been domestic violence between her and R.W.'s Father, Ritchie W., who was incarcerated. Christiana was clean and appeared to be well cared for, and there were no visible signs of abuse. The parents stated they were willing to drug test.
Early on April 28 a social worker made an unannounced visit to the family. After the social worker knocked on the motel room door several times, a woman with a disheveled appearance and a facial injury emerged. The woman was "incoherent," and when the social worker asked about the family, the woman walked away and got into a car. Sometime later Father came out of the room and told the social worker that Mother was in the shower. Father then realized he had locked himself out of the room and knocked on the door several times. A woman with ground-down black teeth, consistent with methamphetamine use, opened the door, gathered her belongings, and left the room.
The social worker observed that Christiana and R.W. were lying on the bed. When Mother came out of the bathroom, she told the social worker the first woman, whom she identified as "Cookie," had been hit by her boyfriend and came to the room to borrow a charger, and the other woman, "Brandi," was Mother's hairdresser. Mother repeated that she had not used drugs in a month and added that Father had never used drugs in his life. Father stated that since he was released from jail, he had been encouraging Mother's sobriety, and she never used drugs around him. He acknowledged he had been in prison for robbery and assault with a deadly weapon, and he denied (inaccurately) that he was on probation. Father was playful with Christiana, and the social worker observed Christiana displayed "normal bonding with both parents, especially Father." Christiana did not respond to questions about her welfare, but there were no signs of abuse or neglect. The parents again agreed to drug test, but they failed to show up for a test on April 28, and on May 2 the parents showed up, but Mother failed to provide a sample and Father was rejected for testing because he did not provide proper identification.
Father's criminal record included offenses related to robbery, criminal threats, assault, and controlled substances; Father was on probation at the time of the referral.
On May 4 an anonymous caller who knew the family contacted the Department. The individual stated Christiana was seen running around the motel parking lot at 11:30 p.m., and Father and Mother were "always fighting in the car and punching each other in front of their kids. They leave their kids with anyone. I saw Christiana go inside someone else's motel .... They all look like drug users. [Father] has lost a lot of weight since he's been out of jail. He is doing meth and powder [cocaine]." Father had been "hanging out" at another motel nearby that was a known location for people engaging in drug use and criminal activity.
On May 10 the social worker visited the family at the motel and again asked Father and Mother to drug test, explaining to Father that he could present a document the Department created for him as identification. Father began to challenge the social worker's questions about the family, arguing it was not legal for the social worker to ask him those questions. Father stated "he was done talking to this [social worker] and there is nothing else to say and he is not doing anything wrong."
The Department obtained several police reports pertaining to Father and Mother. A July 6, 2018 incident report stated that Father and Mother engaged in a violent altercation that was captured on video: Mother struck Father on his upper body and kicked him, and she told the responding police that Father had strangled her in the car and there was a history of unreported domestic violence between them. In June 2020 Father was arrested for possession of a controlled substance and drug paraphernalia after he was found nonresponsive inside his car at a gas station pump. After rousing him, police recovered from Father's pocket a hypodermic needle containing a crystalline substance resembling methamphetamine; Father said he found the needle in a bathroom.
On May 11, 2022 the Department removed Christiana and R.W. from Father and Mother and placed the children with maternal great-aunt Aisha B.
B. The Petition and Detention
On February 3, 2023 the Department filed a petition on behalf of Christiana and R.W. under section 300, subdivisions (a) and (b)(1), asserting that Mother and Father had a history of engaging in violent altercations in front of Christiana, including an incident when Father strangled Mother and Mother kicked and struck Father (the 2018 incident), as well as prior unreported incidents. The petition alleged under section 300, subdivision (b)(1), that Mother had a history of substance abuse and was a current abuser of methamphetamine and marijuana, and Father knew of Mother's substance abuse and failed to protect Christiana.
The petition also alleged under section 300, subdivisions (a) and (b)(1), that Ritchie and Mother had a history of domestic violence in the home, and Ritchie had been convicted of inflicting corporal injury on a spouse.
Father did not appear at the May 16, 2022 detention hearing. The juvenile court ordered Christiana and R.W. detained from their parents and granted Father and Mother separate, three-hour monitored visits, three times per week. The Department was ordered to provide free or low-cost referrals for services.
On June 6, 2022 the Department provided Father with resources and referrals for parenting education, individual counseling, drug treatment, and domestic violence. Father acknowledged that he received the referrals and was expected to provide the Department with verification of enrollment, although his participation was voluntary.
C. The Jurisdiction and Disposition Report
The June 16, 2022 jurisdiction and disposition report stated Father had not visited with Christiana since she was removed from her parents on May 11. The report did not reflect any contact the Department had with Father since the May 10 visit by the social worker at the motel. On June 15 the social worker called Father at two numbers and left him messages to call the social worker. The social worker stated in the report that the Department had "immediate concerns" regarding Father and Mother, explaining both "display a chronic pattern of both reported and unreported domestic violence incidents"; both "have a long-standing history of engaging in illicit use of methamphetamine[]"; and both failed to drug test on three separate occasions. The social worker expressed a concern that drugs and drug paraphernalia were within reach of the children in light of the report that Christiana carried a hypodermic needle into another motel room and Father in 2020 was arrested for possession of a hypodermic needle containing methamphetamine. Further, both parents minimized the issues alleged in the case, and the Department was concerned the family would flee based on Mother's statement on May 10 that she planned to move to a different city. The Department conducted an assessment of Christiana's future safety in the home and concluded "[b]ased on the [M]other and [F]ather's history of domestic violence, [the] family does not have a safe home, and parenting skills are negatively affected by unresolved substance abuse." Under the heading "Reasonable Efforts" (boldface omitted), the report listed, among other actions the Department had taken, that it made referrals to a children's health clinic; ensured that the children received appropriate medical and dental services; made referrals to community resources; assessed the family for future risk of abuse; ensured that visitation was scheduled; and obtained necessary documentation and records.
On June 17, 2022 Father made his first appearance in the juvenile court and was appointed counsel. His attorney asked the court to release Christiana to Father, stating that although Father was still living with Mother in the motel, he would be willing to leave if Christiana could be placed with him. The attorney argued the domestic violence between Father and Mother occurred "a long time ago." Further, Father never saw Mother use drugs in front of Christiana and was unaware Mother was using drugs.
The juvenile court ordered the Department to assess Father and to report on his current circumstances prior to the continued jurisdiction and disposition hearing set for June 30. The jurisdiction and disposition hearing was subsequently continued several times over the following nine months due to issues pertaining to Ritchie, who remained incarcerated.
In mid-July the social worker interviewed Father, who stated that when Christiana was six months old (in mid-2018), Father made a joke, and Mother, who was suffering from postpartum depression, started screaming and crying and striking him, but it was not a serious attack. Father denied that he had strangled Mother, explaining that Mother reported to the police officers that he had strangled her after the officers told Mother they were taking her to jail. Father added that they "never had anything like that [happen] since [then]." Father described Mother as his best friend, like a wife, and noted everything was "good between [them]." However, Father and Mother recently separated because they were advised that separating would be best for Christiana. With respect to Mother's drug use, Father stated, "I have never seen these things" and "[s]he has never done drugs in my face." Mother told Father she was not using drugs, and none of her friends or family ever told Father that Mother was using drugs.
In her July 26, 2022 interview, Mother stated she did not remember being strangled in 2018, and "the police put whatever they wanted in their reports."
In the last minute information for the court dated August 15, 2022, the Department reported that it was unable to reach Father because his voicemail box was full, and Mother stated she could not reach Father. Mother had not visited with Christiana, tested for drugs, or enrolled in programs.
In the March 10, 2023 last information for the court, the Department reported that Father was arrested on January 4, 2023 for an unspecified felony in Manhattan Beach but was released on February 27 after the District Attorney declined to prosecute. The Department left several messages for Father, but he did not return the calls. Aisha reported to the Department that Father and Mother never contacted her to ask about Christiana or to schedule visits or video calls with Christiana.
D. The Jurisdiction and Disposition Hearing
Father and Mother did not appear at the March 17, 2023 jurisdiction hearing. Father's attorney argued the allegations against Father should be struck from the petition because the last known report of domestic violence was in 2018 and the parents were no longer together. Further, Father had not seen Mother use drugs and had no knowledge of her drug abuse. Father also objected to the Department's recommendation that his case plan include a full drug program because "there is no sustaining allegation or any evidence that [Father] has a drug problem." Father likewise objected to the recommendation he complete a domestic violence program because there was no evidence of ongoing domestic violence between the parents. Father did not specifically object to Christiana's removal.
The Department's attorney argued that Father was not credible in denying he had knowledge of Mother's drug use given his statements that he had been encouraging Mother to stop using drugs. Further, Father only stated that Mother had been sober "for a minute," and two days later the children were in the motel room with a disheveled incoherent woman and another woman who had ground-down blacked-out teeth. Neither parent had submitted to drug testing, and on May 4 a reporter said Father was using methamphetamine and cocaine. In addition, on May 4 Christiana was in the motel parking lot around 11:30 p.m., and Father and Mother at the time were fighting in the car and punching each other in front of the children.
After hearing argument from all parties, the juvenile court sustained the allegations of the petition in their entirety and declared Christiana and R.W. dependents of the court. The court found the allegations were supported by a preponderance of the evidence "given the very lengthy history of domestic violence between Mother . . . and [Father], . . . given the video footage of the domestic violence, given Mother's own admission of domestic violence, given the history of chronic drug use and locations where parents were found in the activities they were engaged in."
As to disposition, the juvenile court found "by clear and convincing evidence the children remaining in the home of parents would pose a substantial danger to the children's physical health, safety, protection, physical, and emotional well- being. The Department has provided reasonable means to prevent removal and no reasonable means exist despite the Department's numerous attempts to reach parents. They've been nonresponsive and continue to engage in domestic violence and substance abuse activity." The court ordered reunification services for Father, and it ordered Father to participate in a full drug and alcohol program with aftercare, random and on-demand testing, a domestic violence program for perpetrators, individual counseling to address case issues, and conjoint counseling with Mother if they planned to reunify. The court granted Father monitored visitation, separate from Mother, with the Department to prepare a visitation schedule and having discretion to liberalize visitation.
The transcript and minute order do not reflect the amount of visitation granted to Father. He previously was allowed monitored visitation with Christiana on Fridays for two hours each visit.
Father's notice of appeal states he is appealing from the juvenile court's March 17, 2023 jurisdiction findings, the declaration of dependency, Christiana's removal, and "other orders." However, in his appellate briefs Father does not challenge the jurisdiction findings or any aspect of the disposition order besides his challenge regarding Christiana's removal. He has therefore abandoned any other issues. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal "deemed waived"]; Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 ["'"Issues not raised in an appellant's brief are [forfeited] or abandoned."'"].)
DISCUSSION
A. Governing Law and Standard of Review
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child.'" (In re D.P. (2020) 44 Cal.App.5th 1058, 1065 (D.P.); accord, In re L.O. (2021) 67 Cal.App.5th 227, 246; In re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F.); see § 361, subd. (c)(1).)
The juvenile court must determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e); see D.P., supra, 44 Cal.App.5th at p. 1065.) "To aid the court in determining whether 'reasonable means' exist for protecting the children, short of removing them from their home, the California Rules of Court require [the Department] to submit a social study which 'must include' among other things: 'A discussion of the reasonable efforts made to prevent or eliminate removal[.]'" (Ashly F., supra, 225 Cal.App.4th at p. 809; see Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) "In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B. (2018) 26 Cal.App.5th 320, 332 (D.B.); accord, In re M.D. (2023) 93 Cal.App.5th 836, 856.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.'" (In re N.M. (2011) 197 Cal.App.4th 159, 169-170; accord, M.D., at pp. 856-857.)
"On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence." (Ashly F., supra, 225 Cal.App.4th at p. 809; accord, In re I.R. (2021) 61 Cal.App.5th 510, 520; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 ["when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof"].) We "must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B., at pp. 1011-1012; accord, In re Nathan E. (2021) 61 Cal.App.5th 114, 123 ["'"'We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.'"'"].)
We review the entire record to determine whether a removal order is supported by substantial evidence. (In re V.L., supra, 54 Cal.App.5th at p. 155; accord, D.B., supra, 26 Cal.App.5th at p. 328; see In re I.R., supra, 61 Cal.App.5th at p. 521 ["'"'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.'"'"].)
B. The Juvenile Court's Removal Findings Were Sufficient, and Substantial Evidence Supported Christiana's Removal from Father
Father contends the juvenile court erred in removing Christiana from him because the court did not state the basis for its conclusory finding that there were no reasonable means to protect her health and safety without removal, and the order removing Christiana was not supported by substantial evidence. There was no error.
Father is correct that a juvenile court's failure to make findings showing the need for removal and whether there are reasonable means to prevent removal, as required under section 361, subdivisions (c)(1) and (e), may be grounds for reversal. (See, e.g., Ashly F., supra, 225 Cal.App.4th at p. 810 [remand was necessary for juvenile court to consider whether there were reasonable means to protect children from mother's excessive corporal punishment other than removal, including unannounced visits, in-home counseling, and removing mother from the home where father and children lived]; see D.P., supra, 44 Cal.App.5th at p. 1068 ["if the court had considered the evidence in light of section 361's mandated factual findings, . . . there is a reasonable chance the court would have concluded reasonable alternatives to removal [from mother] were available" where the child lived with father and a restraining order protected child from mother].)
The juvenile court's findings in this case, although briefly stated, complied with the requirements of section 361, subdivisions (c) and (e), and, unlike the orders in Ashly F. and D.P., reflect that the court considered whether there were any reasonable alternatives to removal. Contrary to Father's assertion the juvenile court "recited boilerplate findings," the court found by clear and convincing evidence that the parents' home at the motel was dangerous, and despite the Department's numerous attempts to reach the parents, they had "been nonresponsive and continue to engage in domestic violence and substance abuse activity."
Further, substantial evidence supported the juvenile court's finding there were no reasonable alternatives to protect Christiana other than removing her from Father. There was significant evidence that Father was using drugs and exposing Christiana to drug users and drug paraphernalia. Despite Father's general denial of a drug problem, he was arrested in 2020-when Christiana was two years old-after he was found nonresponsive at a gas pump with a hypodermic needle containing methamphetamine in his pocket. Christiana was found carrying a hypodermic needle on April 20, 2022, and Father and Mother frequently left her with strangers who were drug users. When the social worker made an unannounced (second) visit on the morning of April 28, two women-Cookie, who was incoherent, bruised, and disheveled, and Brandi, whose teeth were black and ground down, likely from drug use- emerged from the motel room where Christiana and R.W. were lying on the bed. On May 4 a caller reported that Christiana was wandering around the motel parking lot at 11:30 p.m., and Father was using methamphetamine and powder cocaine and hanging out with drug users at a site known for drug activities. There was also evidence Father and Mother's domestic violence was not limited to the 2018 incident and prior unreported incidents. One caller reported that on April 20, 2022 Mother chased Father with her car while the children were inside. And the May 4 caller reported that Father and Mother were always fighting and punching each other in front of the children. Although Father denied both drug use and recent domestic violence (by Father or Mother), he lacked credibility given his earlier admission he knew Mother was a drug addict who had stopped using drugs a short time before the social worker's April 26 visit.
Moreover, the Department in its reports documented its concerns supporting Christiana's removal, and it described its efforts and the services it offered to avoid removal, including, among other things, health and community resource referrals; referrals for services including parenting, education, counseling, drug treatment, and domestic violence; unannounced visits; a home risk assessment; and facilitation of visitation. Father argues based on Ashly F., supra, 225 Cal.App.4th at page 810 and In re Henry V. (2004) 119 Cal.App.4th 522 at page 527 that the Department could have offered additional alternatives to prevent removal, such as "intensive therapy," in-home counseling, unannounced visits, and public health nursing, or it could have released Christiana to Father after he stated he was willing to have no contact with Mother. It may be that if Father had engaged with the Department, it could have offered additional services that were more narrowly tailored to the family's circumstances. But on May 10 Father informed the social worker "he was done talking" and "there is nothing else to say and he is not doing anything wrong." The Department was unable to reach Father despite repeated attempts both at the time Christiana was removed and in the months before the jurisdiction/disposition hearing, when Father did not return the Department's messages. Father failed to drug test on three occasions, despite his agreement to test, and there is no evidence Father enrolled in any of the services for which he acknowledged he received Department referrals. (Cf. Henry V., supra, 119 Cal.App.4th at p. 529 ["The social worker credited [mother] for being fully cooperative in taking advantage of the services that had been offered to her."].)
In In re Henry V., supra, 119 Cal.App.4th at pages 529 to 530, the Court of Appeal found clear and convincing evidence did not support removal of a four-year-old boy after his mother burned him with a curling iron on one occasion, where the juvenile court did not mention alternatives to removal in its order despite the social worker's report that in-home bonding services were available and unannounced visits and public health nursing services were potential methods of supervising an in-home placement with the mother.
Father also never called or visited Christiana during the nine months between her removal and the jurisdiction/disposition hearing, despite ordered visitation, and, according to Aisha, Father never asked about Christiana. In light of Father's lack of engagement with the Department or Christiana, ongoing substance abuse issues, refusal to recognize the severity of the case issues, and false denials of his own role in endangering Christiana, substantial evidence supported the juvenile court's finding there were no reasonable alternatives to removal from Father that would adequately protect Christiana. (See D.B., supra, 26 Cal.App.5th at p. 332 ["the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention"].)
Father notes that at the time of the removal, Christiana appeared healthy, clean, and properly cared for, showed no signs of neglect or abuse, and had a good relationship with Father. But as discussed, the minor need not be harmed before removal is appropriate. (In re N.M., supra, 197 Cal.App.4th at pp. 169-170.)
DISPOSITION
The juvenile court's March 17, 2023 disposition order is affirmed.
We concur: MARTINEZ, P. J. STONE, J.