Opinion
B311944
03-30-2022
In re D.S. et al., Persons Coming Under the Juvenile Court Law. v. O.S., Defendant and Appellant; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L., Respondent.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Deputy County Counsel, for Plaintiff and Respondent. Karen B. Stalter, under appointment by the Court of Appeal, for Respondent V.L.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Nos. 21LJJP00029A, 21LJJP00029B Stephanie M. Davis, Judge Pro Tempore. Affirmed.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Deputy County Counsel, for Plaintiff and Respondent. 1
Karen B. Stalter, under appointment by the Court of Appeal, for Respondent V.L.
LIPNER, J. [*]
O.S. (father) appeals from the juvenile court's orders declaring his two minor children dependents of the court under Welfare and Institutions Code, section 300, subdivision (b). He argues the evidence was insufficient to support the jurisdictional finding that his substance abuse issues placed the children at a substantial risk of harm. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
A. Dependency referral and petition
Father and V.L. (mother) are the parents of D.S. (born March 2014) and C.S. (born January 2017). The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in December 2020 based on a referral alleging neglect of another child while in father's care. At that time, father and mother were no longer in a relationship and the children resided with mother. Father lived with his girlfriend and her then two-year-old daughter.
On December 16, 2020, father was caring for his girlfriend's daughter while his girlfriend was at work. After father failed to pick up his girlfriend from her workplace or to respond to her repeated attempts to reach him, she contacted father's parole agent, who tracked father to a motel via his global positioning system (GPS) monitor. When a multi-agency law enforcement team responded to the scene, they found father and the child in a car in the motel parking lot. At one point, father exited the 2 vehicle to vomit and then returned to the driver's seat. After detaining father, the officers safely recovered the child from the rear passenger seat. While father admitted to taking an opioid pill, the officers suspected he may have used methamphetamine because there was vomit inside and outside the car. As father was being transported to a detention facility, the supervising parole agent observed that father appeared to be "incredibly high" and in a near "catatonic" state. He was moaning, his speech was slurred, and his head would drop down and then bounce back up. Father appeared to be unaware of the child's whereabouts and asked whether her mother had come for her.
Father's parole agent reported to DCFS that father was on parole for carrying a loaded firearm and vandalism. He was a member of a criminal street gang. Father was released from prison in January 2018, and previously had violated the terms of his parole by cutting off his GPS device. While incarcerated for that parole violation, he was convicted of assaulting another inmate at the direction of his gang. Father was currently incarcerated for a parole violation based on the December 2020 incident, and he was scheduled to be released in February 2021. The criminal court had ordered father not to have contact with any children without the parents' consent.
Following the December 2020 incident, DCFS met with mother. She reported that father had resided with her and their two children until they ended their relationship in July 2019. At that time, father told mother that he was "on pills, [o]pioids." On another occasion, mother took father to the emergency room because he was experiencing withdrawal symptoms. Mother lost contact with father after their breakup, but in March 2020, she allowed father to start taking the children again because she 3 believed he was sober. The children last saw father about two weeks before the December 2020 incident. While mother never saw father use drugs, he told her he would use drugs when the children were asleep. Mother denied that she used any drugs, or had any criminal or child welfare history. She agreed to a safety plan in which she would not allow father to have unrestricted access to the children when he was released. Mother said that she intended to seek full custody of the children.
On January 12, 2021, DCFS filed a dependency petition on behalf of D.S. and C.S. under section 300, subdivision (b). The petition alleged that father had a history of substance abuse and was a current abuser of opiates, which rendered him incapable of providing the children with regular care and supervision. It also alleged that mother knew of father's substance abuse, and failed to protect the children by allowing father to have unlimited access to them. DCFS later amended the petition to remove the allegations against mother, making her a nonoffending parent in this case.
At a January 15, 2021 detention hearing, the juvenile court ordered the children detained from father and released to mother under the supervision of DCFS. The court granted father monitored visitation with the children outside the family's home once he was released from incarceration. The matter was set for an adjudication hearing.
B. Jurisdiction and disposition report
In its jurisdiction and disposition report, DCFS indicated that both D.S. and C.S. were doing well in mother's care. The children appeared to be healthy and well-bonded with mother and their maternal relatives. While C.S. was too young to give a meaningful statement, D.S. said that he liked living with mother 4 and his sibling, and that "[w]e're safe here." D.S. recalled that his most recent visit with father took place before Christmas, and prior to that, he last saw father when he turned six years old. D.S. did not know whether any members of his family used drugs or alcohol.
In mother's interview with DCFS, she reported that father had not been around the children and did not provide for them. After father moved out of the home, he occasionally came to visit the children, but the maternal grandparents were always present for those visits. Father did not appear to want to spend time with the children, and instead attempted to reunite with mother. When mother rejected him, father stopped visiting for months.
Mother stated that she began dating father when she was 14 years old. Father was three years older than her and was living on the streets. After father moved in with mother and her family, mother became pregnant with D.S. Father was incarcerated in 2016 when mother was pregnant with C.S., and he was not released until 2018. Mother knew father occasionally smoked marijuana, but she never saw him using drugs. Mother recalled that after father moved out in 2019, he called her because he was having withdrawal symptoms from taking a pill. Mother believed the pill contained heroin. She took father to the emergency room where he received treatment.
Following the emergency room incident, mother did not allow father to see the children for a period of time. Father later told mother that he was "clean." Mother thought father was no longer using drugs because he seemed fine and had started a new relationship with a woman whom mother believed would not tolerate drug use. Mother told DCFS, "I'm not sure I would know even now if he was using. But there's no being around the kids 5 again for him. If I could do it over, I wouldn't just believe he was clean. I would want to see he'd done something like rehab." Mother also said she wanted full custody of the children because father "isn't around anyway." She noted that, since March 2020, he had only seen the children once in late November 2020 when she allowed them to go with the paternal grandmother.
DCFS reported that father was released from incarceration in February 2021. Despite efforts to reach father directly and through the paternal grandmother, DCFS had not received any contact from him since his release. Father had not made any attempt to participate in services or to attend monitored visits with the children. DCFS noted that there was no family law custody or visitation order in place that would limit father's access to the children.
DCFS recommended the children be removed from father's custody and remain released to the home of mother. The agency noted that mother had not been in a relationship with father for about two years, and that when she became aware of father's drug use, she took appropriate action by restricting his contact with the children. Because DCFS had not identified any current risks to the children's safety or well-being in mother's care, the agency also requested the juvenile court terminate its jurisdiction with a family law order granting joint legal custody to the parents, sole physical custody to mother, and monitored visitation to father.
C. Jurisdiction and disposition hearing
On April 6, 2021, the juvenile court held the combined jurisdiction and disposition hearing. Both mother and father appeared at the hearing with their respective counsel. Father's counsel argued the petition should be dismissed because the 6 evidence did not establish that father had a substance abuse problem, but rather showed that he took an opioid pill on one occasion. Counsel for the children and counsel for DCFS joined in requesting the court sustain the petition because any child in father's care would be at serious risk of harm due to his substance abuse. Counsel for DCFS noted that the severity of father's symptoms suggested that he had not taken a single opioid pill, and that father had a history of substance abuse, including an incident where mother had to take him to the emergency room for care.
During the argument of DCFS's counsel, father interrupted, stating, "Why can I not fight it? If she's trying to fight it, then I can fight it." He later injected, "No substance abuse. What the fuck? Where is all this proof at?" The court repeatedly admonished father to stop talking during the proceedings.
After hearing argument, the juvenile court sustained the amended petition as pleaded under section 300, subdivision (b). In finding the substance abuse allegations against father to be true, the court noted the severity of father's drug symptoms as observed by his parole officer, his admission to taking opiates, and his history of drug abuse as reported by mother.
Turning to disposition, the juvenile court ordered the children removed from father's custody and released to mother. The court also found that the conditions which justified the initial assumption of jurisdiction no longer existed and were not likely to exist if jurisdiction were terminated. The court ordered the termination of jurisdiction over the children pending receipt of a custody order that granted sole legal and physical custody to mother, and monitored visitation to father a minimum of nine 7 hours per week. On April 9, 2021, the court signed the custody orders and terminated its jurisdiction.
Father filed a timely appeal.
DISCUSSION
On appeal, father solely challenges the sufficiency of the evidence supporting the jurisdictional finding under section 300, subdivision (b). Father specifically contends the evidence was insufficient to support the juvenile court's exercise of jurisdiction because the children were safe in mother's care and any custody dispute between the parents should be addressed in family court.
I. Standard of review
We review challenges to the sufficiency of the evidence underlying jurisdiction findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.)" 'Substantial evidence is evidence that is "reasonable, credible, and of solid value"; such that a reasonable trier of fact could make such findings.'" (In re L.W. (2019) 32 Cal.App.5th 840, 848.)"' "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "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." '" (In re I.J., at p. 773.)
II. Substantial evidence supported the jurisdictional finding based on father's substance abuse
Section 300, subdivision (b)(1) provides, in relevant part, that a child comes within the jurisdiction of the juvenile court if the "child has suffered, or there is a substantial risk that the 8 child will suffer, serious physical harm or illness, as a result of the failure or inability of the child's parent or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's . . . substance abuse." A finding of jurisdiction under section 300, subdivision (b)(1) requires the child welfare agency to prove three elements by a preponderance of the evidence:" '(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness.'" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.) The juvenile court "may consider past events in deciding whether a child currently needs the court's protection. [Citation.] A parent's' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.'" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.)
Generally, a parent's use of drugs or alcohol, standing alone, is insufficient to support jurisdiction under section 300, subdivision (b). (In re L.W., supra, 32 Cal.App.5th at p. 849; In re Drake M. (2012) 211 Cal.App.4th 754, 764.) Rather, to support a finding of jurisdiction based on a parent's drug or alcohol use, the child welfare agency must "present evidence of a specific, nonspeculative and substantial risk to [the child] of serious physical harm." (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003, accord, In re L.C. (2019) 38 Cal.App.5th 646, 653-654.) A parent's drug or alcohol use can place a child, particularly a young child, at substantial risk of harm if it interferes with the parent's ability to provide proper care or supervision. (In re J.M. (2019) 40 Cal.App.5th 913, 922 [children age three and under were at substantial risk of harm based on mother's positive test 9 for methamphetamine and cocaine and use of marijuana]; In re Kadence P., supra, 241 Cal.App.4th at pp. 1384-1385 [mother's substance abuse problem and attempts to conceal it placed her young child at substantial risk of harm]; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1220 [father's drug use rendered him incapable of providing regular care for his infant child].)
In this case, the juvenile court reasonably found that father's substance abuse placed his two children, D.S. and C.S., at substantial risk of serious harm. The evidence showed that father used drugs while his girlfriend's two-year-old daughter was under his exclusive supervision and care. He then refused to respond to his girlfriend's repeated attempts to reach him. When law enforcement located father and the child in a car in a motel parking lot, he appeared to "incredibly high" and in a near "catatonic" state. The evidence also showed that father's use of drugs on this occasion was not an isolated incident. Mother reported that, when father still resided with her and the children, he admitted that he was taking opioid pills. He also admitted to mother that he used drugs when the children were asleep. Even after mother ended their relationship in 2019, father sought her help when he had drug-withdrawal symptoms that required emergency medical treatment. Moreover, there was no evidence that father had made any effort to address his substance abuse issues. He failed to respond to any of DCFS's attempts to contact him following his release from incarceration, and then repeatedly disrupted the adjudication hearing to deny the allegations in the petition. Given the substantial evidence of father's unresolved substance abuse problem, jurisdiction over the children was proper under section 300, subdivision (b). 10
In his briefing, father acknowledges that his substance abuse problem "is well-supported by the information in DCFS's reports," and that the children "are arguably of such tender years that father's substance[ ] abuse presumptively poses a risk to them." Father nevertheless argues that jurisdiction was "unwarranted here because the children were getting the constant care and supervision they needed from mother." Father's argument lacks merit.
Section 302, subdivision (a) provides that the "juvenile court may assume jurisdiction over a child described in Section 300 regardless of whether the child was in the physical custody of both parents or was in the sole legal or physical custody of only one parent at the time that the events or conditions occurred that brought the child within the jurisdiction of the court." Thus, once "the child is found to be endangered in the manner described by one of the subdivisions of section 300[, ] . . . the child comes within the court's jurisdiction, even if the child was not in the physical custody of one or both parents at the time the jurisdictional events occurred. [Citation.] For jurisdictional purposes, it is irrelevant which parent created those circumstances." (In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.) It "is necessary only for the court to find that one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child." (Id. at p. 1491; accord, In re H.R. (2016) 245 Cal.App.4th 1277, 1285-1286.) Accordingly, the fact that the children were safe in mother's care at the time of the adjudication hearing did not preclude the juvenile court from asserting jurisdiction based solely on father's conduct.
Citing In re A.L. (2017) 18 Cal.App.5th 1044 and In re A.G. (2013) 220 Cal.App.4th 675, father contends that he did not pose 11 a current risk of harm to the children because mother sufficiently protected them from his substance abuse issues prior to DCFS's involvement, and would be able to do so in the future. In both of these cases, the appellate court reversed a jurisdictional finding based on one parent's mental illness where the other parent was able to provide adequate care and supervision such that there was no risk of harm to the children. In In re A.L., at pages 1046 and 1050 to 1051, the court found that the mother's mental illness did not pose a risk of harm to her 15-year-old son and 11-year-old daughter because the nonoffending father resided in the same home, the children were older, and the family had shown the ability to successfully manage the mother's condition. In In re A.G., at pages 683 to 684, the court found that, while the mother's mental illness rendered her unable to provide the children with regular care, the father, who resided in the same home, was capable of protecting the children and ensured there was always a responsible adult present to care for them.
Father's reliance on these cases is misplaced. These cases concern mental health issues, not substance abuse issues, and "the law is settled that harm may not be presumed from the mere fact of a parent's mental illness." (In re A.L., supra, 18 Cal.App.5th at p. 1050.) Unlike a finding of mental illness, however, a "finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm" if the children are" 'of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.'" (In re Drake M., supra, 211 Cal.App.4th at p. 767.) As father concedes, "both four-year-old C.S. and seven-year-old [D.S.] are 12 arguably of such tender years that father's substance[ ] abuse presumptively poses a risk to them."
Furthermore, unlike the nonoffending parents in father's cited cases, mother does not reside in the same household as father. Therefore, she would not be able to protect the children from the risk of harm posed by father's substance abuse while the children were in his care. While father asserts that mother has always been able to protect the children from his substance abuse issues, the evidence showed that, after father moved out of the family's home, mother allowed him to have custodial time with the children because she believed his assurances that he was no longer using drugs. Indeed, mother admitted to DCFS that she never knew father was using drugs until he told her he was taking opiates, and that she was not sure she would be able to tell if he was currently under the influence of any substances. As DCFS also points out, at the time of the adjudication hearing, there was no court-ordered custody plan in place that restricted father's access to the children, and in the absence of a court order or decree, each parent has an equal right to custody of a minor child. (Fam. Code, § 3010.) Without court intervention, mother could not ensure "there was always a responsible adult present to care for the [children]" while they were in father's custody. (In re A.G., supra, 220 Cal.App.4th at p. 686.)
Lastly, we reject father's claim that the family court is the appropriate venue for addressing the risk of harm that his substance abuse posed to the children. As explained in In re Nicholas E. (2015) 236 Cal.App.4th 458, 465, "[n]othing in In re A.G.[, supra, 220 Cal.App.4th 675] . . . purported to authorize a juvenile court to skip the evidentiary hearing on jurisdiction or to apply a rule of abstention just because a nonoffending parent 13 could gain custody of the child in an ongoing family court proceeding." Such a result would be "inconsistent with the longstanding principle that dependency proceedings have primacy over family court proceedings when it comes to child custody matters." (Ibid.) In sum, the juvenile court properly asserted jurisdiction in this case to protect D.S. and C.S. from father's unresolved substance abuse issues. Then, after finding that the children could be safe in mother's physical and legal custody, the court properly terminated its jurisdiction. On this record, the jurisdictional finding based on father's substance abuse was supported by substantial evidence.
DISPOSITION
The orders are affirmed.
We concur: EDMON, P. J., EGERTON, J. 14
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.