Opinion
B307163
03-26-2021
In re R.H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.H., Defendant and Appellant.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. 20CCJP01068B APPEAL from an order of the Superior Court of Los Angeles County. Lisa A. Brackelmanns, Judge Pro Tempore of the Juvenile Court. Affirmed. Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
____________________
Father appeals from the jurisdictional findings and order of the juvenile court made under section 300 of the Welfare and Institutions Code. Father asserts the section 300 petition was insufficient on its face, and the single incident on which the petition was based—father's intoxication while caring for his five-year-old son followed by a physical altercation with mother—was insufficient to support a finding that his son was at current or future risk of serious physical harm. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's order, if possible. (In re R.T. (2017) 3 Cal.5th 622, 633.)
The family consists of father, mother, their son R.H. (born November 2014), and R.H.'s older half-brother, R.J. (born February 2010).
Mother is not a party to this appeal. R.J., who has a different father, also is not the subject of this appeal. We do not include facts relating to mother and R.J. unless relevant to father's appeal.
1. Incident leading to dependency and police report
In January 2020, the Los Angeles County Department of Children and Family Services (the Department) received a report alleging father, who had been drinking, had an argument with mother that escalated into some pushing and shoving, resulting in mother's arrest. At the time of the incident, parents had been in a dating relationship for about eight years and had been living together.
According to the police report, on January 11, 2020, father and the two children were dropped off at the apartment after attending a party. Mother said they were lying on their bed when she told father to shower because he smelled of alcohol. Father became upset and stood over mother, yelling at her. Mother pushed father away and he fell backward because he was too drunk to maintain his balance. Mother said she ran to the front door and yelled out to the children to leave the apartment. Father shoved mother to keep her from re-entering, but the children walked around him and sat outside. Mother also said that, after the children had left, father pushed her and they fell to the ground. Mother got up, called her cousin, and waited outside for police. At the police station, the officer observed mother's thumbnail was broken and bleeding.
It is unclear from the police report who exactly was lying on the bed—mother and father, mother and the children, or the entire family.
When the officer spoke to father inside the apartment, he could smell alcohol on father's breath from about three feet away. The officer reported father's speech was slurred; father said he had drunk one alcoholic beverage. He told the officer mother became upset with him because he had been drinking and started pushing him in the chest area. She kicked him and he fell and hit his head on the front door. Father said mother kicked him repeatedly in the stomach while he was on the ground. Mother then ran out of the apartment and yelled for someone to call the police. Father had a quarter-inch laceration and large bump on his forehead, and two quarter-inch lacerations on his right foot. After the officer arrested mother, father said he no longer wanted her prosecuted. He also said he may have been confused and may have fallen against the door on his own.
Before arresting mother, the officer spoke to R.J., who was not quite ten years old. R.J. told the officer father arrived home drunk, began yelling at mother, and pushed and shoved her while they argued. Mother took him and R.H. into the bedroom and tried to lock the door. R.J. said father came into the bedroom and placed a knife on the dresser, but did not point it at anyone. R.J. said mother was trying to defend herself "the whole time." R.H., who was only five years old, could not give a statement.
The district attorney's office declined to file charges against mother due to insufficient evidence.
2. Initial investigation
The Department's detention report recounts its initial interviews of parents, the children, and others. Mother told the social worker the police "misconstrued the situation," and there had been no pushing or shoving. Mother was upset because father was drunk while the children were with him at the party. She said they were arguing, and she pushed father's chest to get him "out of her face," but he stumbled and fell back, hitting his head on a table. Father became "enraged," and mother called her cousin to come pick her and the children up. Mother repeatedly said the police " 'blew it out of proportion.' " Mother claimed the children did not see the altercation because they were in their bedroom. According to mother, father called the police station and said he had exaggerated what had happened. He posted mother's bail, and she was released that night. Father told mother he had fallen at the party, resulting in the cuts on his leg.
R.H. told the social worker he didn't remember anything about the party, the police coming to the home, or his mother's arrest. When asked about his parents' argument, R.H. said he didn't hear any yelling because he was in his bedroom with the door closed and music playing. Upon further questioning, R.H. said he was in mother's bedroom and parents " 'were fighting and saying sorry to each other.' " When asked, he said there was no pushing, and he didn't hear anything. After the interview, the social worker overheard R.H. tell mother, " 'I told her I don't know anything,' " and mother responded, " 'good[,] you should be honest.' "
The social worker also spoke to R.J. He "immediately" wanted to tell her that he went to a party with father and R.H. before arriving home that night. He said he saw father fall at the party. He fell because " 'he had too much to drink.' " R.J. was scared when he saw father fall. R.J. said his uncle drove them all home, and he and his brother went to the bedroom. He heard parents arguing, so he closed the door and turned up the television so that R.H. would not hear them. R.J. said he heard father pushing his mother—he " 'heard things falling.' " He said he heard a big thud, and when he went outside, he saw a plant pot tipped over by the front door. He believed the noise he heard could have been the plant falling.
Mother denied any domestic violence in the family. She said this was the first physical altercation between her and father. Mother noted she and father had been separated for a few months, but said they had a "great co-parenting relationship." She said father did not live in the home but visited at least three times a week. Both children denied any violence or corporal punishment, denied any physical altercations between parents, and said parents did not argue. R.J. had never seen mother drink and saw father drink only once—at the party. R.H. said father lived in the home. R.J. said father did not live there but sometimes slept over.
The social worker inspected the home and did not see any alcohol "that would be indicative of alcohol use/abuse in the home." There were no concerns or dangers in the home that would affect the children. Mother denied she or father abused any substances. She said she drinks alcohol on special occasions and father will have a "few beers and shots of liquor" at family gatherings.
The social worker also interviewed maternal grandmother and mother's cousin. They had no concerns for the children's safety, about domestic violence, or drug or alcohol use by either parent. Maternal grandmother described the incident as a " 'fluke[,]' . . . . made into a bigger deal than what it was."
After the social worker received the police report, she contacted mother to discuss discrepancies in it and for father's contact information. The Department was having a hard time reaching father. Mother was frustrated that he was not cooperating. The social worker told mother the Department was proceeding with a removal order—it was concerned about parents' inconsistent statements and minimization of the domestic violence.
Father called the social worker that same day. The next day, the social worker met parents at the Department's office to interview father. Father said he had been at a friend's birthday party that night without the children. He said he had two drinks at the party, and explained it was his first time drinking in 20 years. He told the social worker, " 'I can't hold my liquor,' " and said he tripped and fell, sustaining the lacerations on his foot. After his friend dropped him off at home, mother became upset because he "reeked of liquor." At that point, mother interjected and clarified the children were with father at the party and said father's "old age makes him forget things." Father became upset, but then calmed down and agreed he did not always remember things.
At the time, father was 67 years old.
Father then described parents' altercation. He became upset when mother accused him of being drunk. He described himself as "in mother's face," while she was trying to leave the apartment. He said he fell forward and hit his head on the floor when mother reached her hand out, and he reached his hand out to move hers out of the way. He denied that mother pushed him or that any pushing or shoving had occurred between them. He also said the children were in the back room and did not see him fall. Father admitted he lied to the police about sustaining injuries from mother because he was upset and wanted to hurt her. When he sobered up, he contacted the police station to explain nothing had happened between them and that he did not want mother arrested.
The social worker went over some inconsistencies in the police report. Father denied the altercation began in the bedroom as stated in the police report. Father and mother also denied mother kicked him. Father "appeared confused" when the social worker asked him about the knife R.J. had said father placed on the bedroom dresser. He denied having a knife on him.
Father said the incident was an isolated one and denied having a history of domestic violence with mother. He also denied having a history of substance abuse. He said he rarely consumed alcohol and had not had a drink since that night. He admitted he was on probation until 2021, but described his criminal history as including "fraud and 'nothing else.' " Father agreed to drug test.
Father's probation officer (PO) confirmed father was in compliance with his probation terms and was required to drug test through a federal program.
Father also said he was not living in the home with mother. He lived in Barstow, but visited the home to see the children. He and mother separated a few months earlier. Mother explained father would update his address soon when their lease expired.
The PO also confirmed father listed his address at the same location as mother's address.
When the social worker called father for his updated address, he became upset and did not understand why the children were being removed from him. The social worker reiterated the Department was concerned that domestic violence had occurred in the home while the children were present and that the family had made inconsistent statements about the incident. Father responded, " 'a lot of that I didn't remember.' " Father ultimately gave the social worker his Barstow address. Father's drug test from the day before came back negative for all substances.
The removal order detaining the children from parents was granted on February 19, 2020. The children were placed with maternal great-uncle.
3. Petition and initial hearing
On February 24, 2020, the Department filed a juvenile dependency petition on behalf of the children under section 300, subdivision (a) (serious physical harm) and subdivision (b) (failure to protect). The subdivision (b) counts alleged the children were at substantial risk of suffering serious physical harm because (1) parents had a history of engaging in domestic violence in the presence of the children and had engaged in a physical altercation on January 11, 2020, resulting in parents' injuries (count b-1); and (2) father's history of substance abuse and current alcohol abuse made him unable adequately to care for and supervise the children, father cared for the children while under the influence of alcohol, and mother failed to protect the children from father's substance abuse (count b-2). In its concurrently filed detention report, the Department stated its concern that parents continued to deny domestic violence occurred. The Department believed father continued to live in the home and did not believe parents would address the Department's concerns without court intervention given they failed to take immediate action to protect themselves or the children. The Department recommended the children be removed from both parents.
The juvenile court ultimately dismissed the subdivision (a) count.
As we will discuss, the juvenile court sustained amended versions of the subdivision (b) counts.
At the February 25, 2020 detention hearing, mother's counsel informed the court that mother had signed a lease for a home in Bakersfield and had separated from father. The court removed the children from parents and placed them with maternal grandmother. The court ordered parents were to have monitored visitation (separately) but set a second hearing to determine if the children should be returned to mother.
4. Continued investigation
On March 10, 2020, the Department spoke to father on the phone. He had no concerns with the children in mother's care and described her as a "good mother." He wanted them returned to mother. When asked about the domestic violence incident, father said he wanted "to clear the record and that mother . . . was not a perpetrator, the children were not in danger, and he was not hurt." Father was living in Barstow but said he would try to meet with the Department. He wanted to look the social worker " 'in the eye' " to show her the incident was " 'a one-time thing,' " and the children were not in danger.
On March 11, 2020, the Department interviewed mother at her new residence in Bakersfield. Mother described the January 2020 incident to the social worker in substantially the same terms as she had earlier but clarified some details. In response to questioning, she added that father did not drive under the influence and does not own a car—his brother drove father and the children to the party, and a friend drove them home. On their return from the party, the children went into their bedroom with "goody bags" they had received. Mother said the altercation began in her bedroom. She again said father " 'got in my face.' " He stumbled and fell backward when she pushed him out of her face. Mother clarified that when she asked the children to leave with her she was not worried father would hurt them, but wanted them to go with her. Mother said the police arrested her because father lied and told police she had kicked and punched him when she had not. She reiterated, " 'It was a one-time incident that was blown up.' " She noted that, after the incident, father told her he was ashamed of what had happened and had had too much to drink.
Mother agreed to comply with the court-ordered case plan and to facilitate court-ordered reunification between the children and father. She was willing to do whatever was asked of her to regain custody of her children. The social worker inspected mother's new home and found no safety concerns or male clothing.
The Department did not recommend the children be returned to mother at that point. Based on the Department's negative recommendation, the court ordered the children remain detained with relatives, but gave the Department discretion to release them to mother.
5. Adjudication
The Department filed its jurisdiction/disposition report on April 22, 2020. On March 26, 2020, the investigating social worker interviewed the children outside of maternal grandmother's home. R.J., who had since turned 10, primarily responded, " 'I don't remember,' " to the social worker's questions. When asked, he said the night of the incident was the first time parents fought, and when they get upset with each other, one parent will leave. He replied he had not witnessed parents say mean things to each other or hit each other. R.H. also responded " 'I don't know,' " and " 'I don't have a memory,' " to the social worker's questions about the incident. He replied parents " 'just say sorry' " when they argue, and there was " 'no hitting.' "
We include only new or different information provided in the report.
Beginning in mid-March 2020, the Department was required to conduct interviews outside or by telephone due to the COVID-19 pandemic.
That same day the social worker interviewed father by telephone. Father provided additional details about the incident. He said he was celebrating a friend's birthday that night and everyone was handed a glass for a toast. Father did not know what he drank, but remembered it was a brown liquid. He said he had one drink. He said he slipped and tripped over speaker wire, and the " 'guys' " helped him up. He did not want to provide their names because he didn't " 'want them knowing.' " Father responded, " 'This is hurtful and damaging my name. It was a one-time incident . . . . It is an isolated incident.' "
Father repeated that when mother pushed him " 'off her face,' " he lost his balance and fell, sustaining a knot on the back of his head. He again denied mother had hit, pushed, or kicked him. He admitted he had lied to the police because he was angry. He was ashamed.
Later in the interview, he said he sustained his injuries at the party.
As for his substance abuse history and current abuse of alcohol, father said he had " 'no record of alcohol.' " The social worker asked father if he was willing to drug test, but father said he already was testing for his PO. He argued his compliance with his probation conditions "should cover anything that he would have to do." Father said he did not have a history of substance abuse because he did not use drugs. He tried marijuana once for his arthritis, but that was years ago.
The social worker interviewed maternal grandmother by phone on April 6, 2020. She was "surprised and shocked" to hear father had been drinking. She thought it was a " 'big mistake' " to remove the children, and there was " 'no truth' " to the police report. Maternal grandmother has known father for five years. She described him as a "good father" who " 'spends time with the kids.' " She said neither parent physically disciplined the children.
On April 20, 2020, the investigating social worker spoke to father's PO by phone. The PO confirmed father was on probation for three years from his August 2018 release date. Father's conditions of probation were: to abstain from alcohol, register as a narcotics offender, submit to search and seizure, and support his dependents. The PO did not know why abstention from alcohol was a probation condition. Father was required to register as a narcotics offender because he had been convicted of possession of drugs for sale. The PO said father was compliant. She had not seen anything of concern during home visits, and she was unaware of current alcohol use.
According to the PO, father had to drug test for his federal PO, but she had no access to those drug tests. We presume father had convictions in both federal and state court, but the record does not include details.
The jurisdiction report added to mother's March 5, 2020 statements. Mother said father does not have a history of substance or alcohol abuse. She asserted the night of the incident was the first time father had been "heavily intoxicated." When asked, she replied she did not believe it was okay for father to care for the children while under the influence of alcohol. She noted the police believed father could care for the children because they released them to him that night. Mother also stated she would not allow father to visit if he were under the influence of any substance.
The Department noted that although parents "provided appropriate care for the children," it was evident parents engaged in a physical altercation. The Department was concerned about parents' minimization of the domestic violence and their inconsistent statements, and believed the children had been coached. As to father specifically, the Department concluded his alcohol use and "poor decision" to drink while caring for the children led to the "domestic violence altercation," and noted father's intoxication violated a condition of his probation.
The Department found that, until parents could "acknowledge the domestic violence, mother's anger[,] and the fact that father's drinking is causing a direct impact to the family functioning and safety of the children, then mother will not be able to make the necessary changes required of her to keep the children safe in her care. . . . Both mother and father appear to have underlying issues that need to be worked through before the children can safely remain in their care."
The Department concluded the children's "safety and well-being cannot be ensured without continued supervision by the Department." It recommended the children be declared dependents, removed from both mother and father, and remain with maternal grandmother. The Department also recommended transferring the case to Kern County—where mother now lived.
6. Jurisdiction hearing
Due to the pandemic, the April 23, 2020 adjudication hearing was continued to June 29, 2020. In the interim, father had enrolled in an alcohol and drug awareness program on May 29, 2020. He also completed a 12-lesson parenting course on June 2, 2020. Mother completed an 18-lesson parenting course on May 28, 2020, and a 12-lesson anger management course on June 14, 2020. The court received into evidence father's letter of enrollment, parents' certificates of completion, and the Department's report.
Mother also provided the following stipulated testimony: In the eight years she and father have been together, she has never seen father "exhibit the drinking problems" he did on January 11, 2020. She plans to continue living in Bakersfield with the children and has no intention of seeing or reuniting with father. She also completed eight sessions of domestic violence counseling.
Mother's counsel asked that the allegations against mother be dismissed. Alternatively, counsel proposed removing mother from the b-2 count and modifying the b-1 allegations.
Father's counsel argued that—outside the physical altercation in January 2020—there was no evidence of domestic violence between parents in the eight years they had been together. In that time, father also had never been drunk or drinking. Father recognized he should not have drunk that night and it had affected his judgment. Counsel noted father's PO was very surprised because there had never been an issue of father using alcohol during his probation. Father's counsel also argued the allegation that parents' conduct occurred "in the presence of the children" was inaccurate because the children were in another room.
Father's counsel asserted there was no risk of future harm to the children because the evidence demonstrated parents' January altercation was an isolated incident, any issues father had with drugs or alcohol had been years ago, and there was no indication that alcohol abuse led to any problems between parents. Father's counsel noted the Department was trying to use father's 2017 criminal conviction to demonstrate a current risk of harm when that had occurred years earlier, and there was no evidence—save the one-time incident—of father abusing alcohol. Father's counsel then asked the court to dismiss both counts.
The 2017 conviction was based on a 2014 arrest.
Minors' counsel shared the Department's concern that the children may have been coached. Counsel noted father had an "extensive history" related to driving under the influence and to possession of narcotics for sale. Counsel believed mother's fear of father the night of the incident and her desire to leave immediately with the children indicated there may have been a history of violence "at play."
Both the minors' counsel and the Department's counsel believed the police report "is probably the most accurate reflection of what occurred during the incident." The Department's counsel argued, "the parents then deny everything, minimize father's alcohol issues, and the kids won't talk to us anymore. So that right there is why there's still current risk today." Counsel recognized parents' enrollment in programs as a "good first showing," but argued they needed to "understand what occurred so it doesn't happen again."
The Department's counsel also asserted father would not be a registered narcotics offender if he had no history with drugs. Counsel argued alcohol must be an issue based on father's probation condition to abstain from it. Counsel continued, "He's on probation and still chooses to drink; then comes home so intoxicated, the mother calls him out, and a physical altercation ensues. That points to the Department the fact that there is an ongoing issue with alcohol in this family, with the father."
After hearing argument, the juvenile court dismissed the section 300, subdivision (a) count. The court sustained the remaining counts based on section 300, subdivision (b), amended to conform to proof to adopt some of mother's counsel's proposed language, as follows:
Count b-1: "On January 11, 2020, [parents] engaged in physical and verbal altercations in the presence of the children. . . . [M]other in self-defense pushed . . . father's chest, causing . . . father to fall backwards and . . . father struck [his] head on a television stand. . . . [F]ather and mother pushed each other and mother sustained bleeding to [her] fingernail. Such conduct between the mother and . . . father in the presence of the children places the children at risk of serious physical harm."
Count b-2: "[F]ather . . . has a history of substance abuse and is a current abuser of alcohol which renders [him] incapable of
providing the children with regular care and supervision. On January 11, 2020[,] . . . father was under the influence of alcohol while the children were in [his] care and supervision. . . . [M]other . . . knew of . . . father's substance abuse and . . . mother failed to protect the children. . . . [M]other allowed . . . father unlimited access to the children. . . . [F]ather has a criminal history of convictions for Possession/Purchase for Sale/Narcotic/Controlled Substance and is a Registered Controlled Substance Offender. . . . [F]ather's substance abuse and . . . mother's failure to protect the children endangers the children's physical health and safety [and] places the children at risk of suffering serious physical harm."
At the hearing the court noted it was retaining the failure to protect allegations. The court bracketed these two sentences with a margin note to "keep in." The following, crossed-out sentence was not bracketed; it is unclear if the court intended to strike it: "The child [R.H.] is of such a tender age as to require constant care and supervision."
As originally pleaded, the last sentence ended with, "damage, danger and failure to protect." The juvenile court noted it was retaining language mother's counsel had proposed to omit, but it is unclear if the court intended to retain this final phrase given it struck the reference to "damage and danger" in the b-1 count.
The court released the children to mother, subject to certain conditions, pending the disposition hearing on July 24, 2020. Father was to have monitored visits.
7. Disposition and transfer
At the July 24, 2020 disposition hearing, the court released the children to home of mother, ordered R.H. removed from father, and ordered monitored visits for father, but gave the Department discretion to change his visits to unmonitored.
The Department asked the court to transfer the case to Kern County. On father's request, we took judicial notice of the juvenile court's September and October 2020 minute orders showing the case was in fact transferred to Kern County after father filed this appeal. As father noted, we have jurisdiction to consider his appeal, and our ruling will be binding on the Kern County Superior Court. (See In re Lisa E. (1986) 188 Cal.App.3d 399, 404-405 [appellate court had jurisdiction to hear appeal from order in subsequently transferred dependency matter, noting dependency appeals have "the highest priority," and finding a request to the California Supreme Court to transfer venue would "thwart the expeditious resolution of this class of cases"].)
DISCUSSION
Father contends the section 300 petition was legally insufficient and substantial evidence does not support the juvenile court's jurisdictional findings as to R.H. He does not contest the dispositional order.
1. Father's challenge to the sufficiency of the petition
Father first contends the petition, as sustained, was facially insufficient. Father argues the petition cannot support dependency jurisdiction because it was based on a single instance of domestic violence and substance abuse. The Department argues father forfeited this claim because he did not bring "a 'motion [in the juvenile court] akin to a demurrer' " to challenge the legal sufficiency of the petition. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036.) At the adjudication hearing, father's counsel asked the court to dismiss the petition, but he did so after arguing the evidence was insufficient to establish a substantial risk of future harm to R.H. Thus, we can infer father's counsel was challenging the sufficiency of the evidence when he asked the court to dismiss the petition.
Even if we were to construe father's oral request as a motion attacking the face of the allegations akin to a demurrer, we reject his contention as moot. " ' "[I]f the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant." ' " (In re John M. (2012) 212 Cal.App.4th 1117, 1123.) " 'The only exception occurs when a parent claims a petition fails to provide actual notice of the factual allegations. Unless the alleged factual deficiencies result in a miscarriage of justice, the reversal of a jurisdictional order supported by substantial evidence is unwarranted.' " (Ibid.)
Below, we conclude substantial evidence supported the juvenile court's assertion of jurisdiction over R.H. Father does not claim he had inadequate notice of the allegations against him. Accordingly, we need not consider father's challenge to the sufficiency of the petition. (In re Athena P. (2002) 103 Cal.App.4th 617, 627-628 [any failure of petition to state a cause of action was harmless error where parent did not claim she had prejudicially inadequate notice and evidence was sufficient to support jurisdiction].)
2. Substantial evidence supports jurisdiction
a. Standard of review and applicable law
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. . . . "[W]e 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. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' " ' " (In re I.J. (2013) 56 Cal.4th 766, 773.) Substantial evidence is " 'evidence which is reasonable, credible, and of solid value.' " (In re I.C. (2018) 4 Cal.5th 869, 892.)
Section 300, subdivision (b)(1) (section 300(b)(1)) authorizes dependency jurisdiction over a child if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." A juvenile court's exercise of dependency jurisdiction under section 300(b) is proper when a child is " 'of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] physical health and safety.' " (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216 (Christopher R.).)
To support a jurisdictional finding under section 300(b)(1), the Department must prove "three elements by a preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re L.W. (2019) 32 Cal.App.5th 840, 848.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child presently 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.' " (Christopher R., supra, 225 Cal.App.4th at pp. 1215-1216.)
b. We do not presume R.H. was at risk of harm
Generally, a parent's substance abuse, "without more," is an insufficient basis to assert dependency jurisdiction. (In re L.W., supra, 32 Cal.App.5th at p. 849.) Rather, the Department must show the parent's substance abuse harms the child or places the child at substantial risk of harm. (In re Drake M. (2012) 211 Cal.App.4th 754, 766-767 (Drake M.); see L.W., at p. 850 [mother engaged in dangerous behavior due to substance abuse placing child at risk of harm].) When a child is of " 'tender years,' " 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 physical harm." (Drake M., at pp. 766-767, italics omitted.) The Department seems to argue this presumption applies here. At age five, R.H. was a child of " 'tender years.' " (Christopher R., supra, 225 Cal.App.4th at p. 1219 [defining " 'tender years' " as six years old or younger].) Although father clearly abused alcohol on January 11, 2020, the evidence does not support finding that father had a current substance abuse problem.
Except for the January 2020 incident, there was no evidence that—during R.H.'s life—father repeatedly used alcohol, used alcohol while caring for R.H., or engaged in any of the repeated behaviors indicative of a current substance abuse problem. (See Drake M., supra, 211 Cal.App.4th at p. 766 [applying definition of substance abuse from the DSM-IV-TR as recurrent substance use leading to " 'clinically significant impairment' "]; Christopher R., supra, 225 Cal.App.4th at pp. 1218-1219 & fn. 6 [finding mother's repeated use of cocaine and use during pregnancy constituted substance abuse and noting updated DSM-5 identified relevant criteria of substance abuse more broadly to include, among others, cravings, spending "a lot of time" using or recovering from use of substance, giving up important activities because of use, not managing what should be done at home or work due to use].) By all accounts, father never had a problem with alcohol use until the January 2020 incident. Father was drug testing for his federal PO stemming from his 2017 conviction—there was no evidence those tests were positive—and father's state PO had not had any issues with father using alcohol.
The DSM-IV-TR refers to the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000)," and DSM-5 refers to the "Diagnostic and Statistical Manual of Mental Disorders [(5th ed. 2013)]." (Christopher R., supra, 225 Cal.App.4th at pp. 1217-1218 & fn. 6.)
The Department refers to father's "lengthy criminal history" of drug-related arrests and convictions. Except for father's 2017 conviction for possession for sale of a controlled substance (stemming from his 2014 arrest), father's drug- or alcohol-related arrests and convictions took place in the 1970s, more than 40 years before the incident. They do not constitute evidence of a current substance abuse problem.
Because we have concluded the tender-years presumption of a risk of serious harm does not apply, we must determine if the evidence supports finding R.H. was at a current, substantial risk of serious physical harm as a result of father's abuse of alcohol and conduct on January 11, 2020. R.H.'s young age and father's substance abuse and criminal histories remain relevant to that determination, however.
c. Substantial evidence supports the finding that R.H. was at a current risk of serious physical harm
Father argues there is no evidence to support finding R.H. was at risk of harm at the time of the jurisdiction hearing based on the isolated events of January 11, 2020, when father had no history of intoxication or domestic violence with mother.
A section 300(b) jurisdictional finding may not be based on a single episode of endangering conduct in the absence of evidence that such conduct is likely to recur. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 (Yolanda L.); In re J.N. (2010) 181 Cal.App.4th 1010, 1026 (J.N.).) Accordingly, a parent's past substance abuse alone is insufficient to satisfy a jurisdictional finding under section 300(b). (See, e.g., In re Destiny S. (2012) 210 Cal.App.4th 999, 1001, 1004 [no evidence of "current risk of serious physical harm" where, at the time of hearing, mother had tested clean for three months, there were no drugs in the home, and no evidence of neglect].)
Although evidence of past conduct may be probative of current conditions, "[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.' " (Yolanda L., supra, 7 Cal.App.5th at p. 993; In re James R. (2009) 176 Cal.App.4th 129, 135-136; In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Whether a child is still at risk due to a parent's past conduct turns on whether that conduct "is ongoing or likely to continue." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; Yolanda L., at p. 993.)
"In evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances. It should also consider the present circumstances, which might include, among other things, evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim, and probationary support and supervision already being provided through the criminal courts that would help a parent avoid a recurrence of such an incident. The nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances." (J.N., supra, 181 Cal.App.4th at pp. 1025-1026.)
Father put R.H. at substantial risk of serious physical harm on January 11, 2020 when he became extremely intoxicated while supervising R.H.—a child of tender years—and then, as a result of his drinking, engaged in a verbal and physical altercation with mother while R.H. and his brother were home. (Christopher R., supra, 225 Cal.App.4th at p. 1216 [child of tender years faces an inherent risk of harm to his health and safety when not adequately supervised]; In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved of on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4 [domestic violence in same home where child lives puts child at " 'substantial risk of encountering the violence and suffering serious physical harm or illness from it' . . . because, 'for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg' "].)
As we have described, father literally was falling-down drunk at a party where he alone was caring for R.H. R.J. said he was scared when he saw father fall and recognized father had fallen because he had too much to drink. Father was so inebriated that, after police arrived at the home, the responding officer could smell the alcohol on father from three feet away and noted his speech was slurred. Father's judgment also clearly was impaired. The verbal and physical altercation between parents, while the children were nearby, was a direct result of father's intoxication. Father admitted the situation was his fault and he had had too much to drink. The question is whether the evidence supports a finding that there was some reason R.H. continued to face a substantial risk of harm by the time of the jurisdiction hearing.
As we discussed, mother, her relatives, and father's probation officer all stated father had no issues with alcohol and were surprised by his intoxication on January 11, 2020. Nor was there evidence of prior domestic violence. As father notes, he expressed shame and regret over the incident. He contends there was simply no evidence that R.H. was at risk of harm by the time of the jurisdiction hearing. The Department, in turn, argues father's recent actions, prior history, and attitude following the incident gave the juvenile court reason to find R.H. (and his brother) faced a current risk of harm.
We are sympathetic to father's argument. Nevertheless, viewing the evidence in the light most favorable to upholding the juvenile court's order—as we must—we conclude substantial evidence supports the court's finding that R.H. was at risk of harm.
The Department distinguishes father from the parents in J.N. There, a father drove under the influence with his three children and intoxicated wife and crashed into a light pole, injuring two of the children. Both parents were taken into custody. (J.N., supra, 181 Cal.App.4th at p. 1014.) The Court of Appeal reversed the juvenile court's jurisdictional finding that the children were at risk of harm from the incident. Parents had no prior criminal history or history of substance abuse, there was no pattern of past risk, and there was no finding of an ongoing substance abuse problem. (Id. at pp. 1020-1022, 1027.) Parents also expressed regret, were cooperative, and willing to change. (Id. at pp. 1018-1019.)
The reviewing court recognized the "profound seriousness of the parents' endangering conduct," but concluded there was no evidence from which to infer a substantial risk that their behavior would recur. (J.N., supra, 181 Cal.App.4th at p. 1026.) In addition to the lack of evidence of past substance abuse, the court noted there was no evidence or allegation that either parent's "understanding of the risks of inappropriate alcohol use" was "so materially deficient" to render the parent "unable 'to adequately supervise or protect' the children." (Ibid.) And, by the time of the jurisdiction hearing, the criminal court had ordered mother to complete substance abuse and parenting programs and placed her under supervised release, while father remained incarcerated. (Ibid.)
We acknowledge the drunk driving incident in J.N. was more serious than father's conduct. There also was no evidence here—as we have discussed—that father had a current substance or alcohol abuse problem, and father expressed remorse over his drinking. Unlike the parents in J.N., however, father had a criminal history relating to drugs and alcohol and was a registered narcotics offender. And, there was substantial evidence father did not recognize how his drinking on January 11, 2020 endangered R.H., in significant contrast to the evidence in J.N. The juvenile court reasonably could conclude R.H. remained at risk of harm—despite father not having had recent issues with alcohol—due to father's apparent lack of understanding of the seriousness of his conduct. (J.N., supra, 181 Cal.App.4th at pp. 1025-1026 [court should consider parent's "understanding of and attitude toward the past conduct that endangered a child"].)
First, the juvenile court reasonably could conclude father minimized (or refused to recognize) his alcohol use that night and in the past. More than once father said he had only one drink at the party, and he expressed surprise over the effects. Yet, father was so drunk he fell down at the party, still "reeked" of alcohol from three feet away after he got home, and had slurred speech. Father also claimed that, until that night, he hadn't had a drink in 20 years. But, mother said father would have a few beers and shots at family gatherings. We can infer the juvenile court discredited father's assertions that January 11 was the first time he had had a drink in two decades and he had only one or two drinks at that. Father also claimed he had "no record of alcohol," despite a probation requirement that he abstain from alcohol.
Second, the evidence shows father did not recognize the danger his drinking posed to R.H. (and R.J.). Father stated the children were not harmed, but—at only five years old—R.H. required adequate supervision to ensure his safety. Yet, during his initial interview with the Department, father didn't even remember his son or his son's brother had been with him at the party. The physical altercation with mother also began as a direct result of father's impaired judgment due to his intoxication. He reacted with anger to mother accusing him of being drunk—which he was—despite knowing the children were in the apartment. Father repeatedly asserted the children did not witness the physical altercation. Given father's inconsistent statements about the incident, however, we can infer the juvenile court credited R.J.'s statements to police that father had come home drunk, yelled at mother, and pushed and shoved her. Even if R.H. did not see father and mother push each other, he was at risk of physical harm by his presence in the home. Based on father's continued minimization of the issue, the court reasonably could conclude father did not recognize how his physical altercation with mother as a result of his drinking placed the children in danger.
Moreover, although father was ashamed of the incident and expressed regret that he drank that night, he did not cooperate with the Department as did the mother in J.N. Father would not return the Department's messages for an initial interview until he learned R.H. was being removed. Father also was not entirely forthcoming about his criminal history, describing it as based only on fraud. He was upset the Department had removed R.H., yet he would not give the Department the names of his friends at the party to corroborate his version of events because it would harm his reputation. And, he claimed he did not understand why he had to participate in programs or drug testing for the Department, asserting his compliance with his probation conditions should be sufficient.
True, father had completed a parenting class and enrolled in an alcohol awareness class by the time of the jurisdiction hearing. The juvenile court reasonably could conclude, however, that—until father completed his programs under supervision of the Department—R.H. remained at risk of harm due to father's minimization and unawareness of the risk his drinking posed to a young child. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["[o]ne cannot correct a problem one fails to acknowledge"].) And, the juvenile court reasonably could conclude that—unlike the circumstances in J.N.—the probationary supervision already provided through the criminal courts was insufficient to help father prevent another incident of intoxication, given father was required to abstain from alcohol but had not.
Although there is evidence from which the juvenile court could have drawn a different conclusion, for these reasons, substantial evidence supports the juvenile court's finding there remained a risk to R.H., and court supervision was needed to help mitigate it.
Having concluded there is substantial evidence to support finding R.H. was at substantial risk of harm due to father's abuse of alcohol on January 11, 2020 (count b-2), we need not consider whether substantial evidence also supports count b-1 (domestic violence). (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
LAVIN, J.