Opinion
B295413
03-24-2020
In re Dean D. et. al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSE V. and DANIEL D. Defendants and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendants and Appellants. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Aileen Wong, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 18CCJP08003 APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Juvenile Court Referee. Reversed in part. Konrad S. Lee, under appointment by the Court of Appeal, for Defendants and Appellants. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
This case arises out of dependency proceedings concerning Johanna S.'s three children, Joseph V., Dean D., and Leah D.
Daniel D., Leah and Dean's father, challenges the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b)(1). Daniel contends the record lacks sufficient evidence to establish Leah and Dean were at risk of serious physical harm due to his failure to protect them from Johanna's alcohol abuse. We agree and reverse the court's jurisdictional findings pertaining to Daniel.
All further undesignated statutory references are to the Welfare and Institutions Code.
Additionally, Jose V., Joseph's father, challenges the court's dispositional order. Jose contends the court abused its discretion when it declined to place Joseph with both of his parents and returned Joseph to Johanna's custody. We disagree and affirm the court's dispositional order.
BACKGROUND
Jose and Johanna are the parents of Joseph, born in July 2006. They were involved in a romantic relationship and lived together from 2004 to 2008. In August 2009, Johanna was granted sole physical and legal custody of Joseph. Jose last saw Joseph in 2011. Since then, although Jose claims he has tried to locate and reconnect with Joseph over the last four years, he has not been part of Joseph's life.
Johanna is not a party to this appeal.
Daniel and Johanna met shortly after she ended her relationship with Jose. They began dating in 2010 and their first child, Dean, was born in February 2014. Following a domestic violence incident that occurred later that year, Johanna ended her relationship with Daniel and obtained full legal and physical custody of Dean in 2015. While Johanna and Daniel later reconciled, they never sought modification of the family court order placing Dean solely in Johanna's custody.
Johanna and Daniel had two more children in September 2017, twins Leah and Zoey D. Zoey passed away in December 2017 due to SIDS. With respect to Leah, no custody order is currently in place.
In the last week of October 2018, Johanna and her three children moved into Daniel's residence. They previously resided with Johanna's mother.
On November 2, 2018, Daniel came home with the children and observed Johanna was drunk; she had already consumed two 24-ounce cans of beer and was halfway done with a third can. When Daniel poured out the rest of Johanna's third beer, they got into an argument. Eventually, Johanna walked out of the home, telling Joseph to go with her. Joseph refused, as he did not feel safe getting in the car with Johanna while she was drunk.
Johanna came back into the house and attempted to grab Joseph by the wrist, but he pushed her away. In response, Johanna "pushed [Joseph] to the floor, got on top of him, pinned him down, and placed her left arm across his neck." While Joseph was yelling at Johanna to get off him, she began to punch him on the chest. At that point, Daniel moved Dean and Leah into a different room. He then returned to the living room, pulled Johanna off Joseph, and told her to get out of the house. When Johanna asked Daniel for her car keys, he refused to give them to her because she was drunk.
Johanna left the house and called the police. Eventually, Johanna agreed to take an Uber to a motel and stay there for the night, and the police left. Rather than leaving and staying in a motel, however, Johanna slept in her car outside Daniel's house overnight. The next morning, Daniel observed Johanna no longer appeared to be drunk and gave her car keys back to her, at which point she left.
The November 2 incident prompted a referral to the Department of Children and Family Services (Department). After conducting an investigation, the Department filed a petition under section 300, subdivisions (a), (b)(1), and (j) on December 17, 2018. With respect to Johanna, the petition alleged the children were at risk of serious physical harm due to her physical abuse (counts a-1, b-1, and j-1), substance abuse (count b-2), and her "mental and emotional problems" (count b-3). With respect to Daniel, the petition alleged Leah and Dean were at risk of physical harm due to his failure to protect them from Johanna's substance abuse (count b-2) and his marijuana abuse (count b-4).
At the adjudication hearing held on January 28, 2019, the court sustained a version of the petition that the Department had amended by interlineation. Specifically, the court sustained counts a-1, b-2, and b-3, as amended; the amendments to count b-2 did not pertain to the allegations regarding Daniel's failure to protect Leah and Dean from Johanna's alcohol abuse. Moreover, the court dismissed counts b-1, b-4, and j-1.
Count a-1, as amended, alleged Johanna physically abused Joseph by pushing him to the floor and repeatedly striking his chest and arm with her fists; references to her straddling Joseph and placing her arm across his neck were removed. Count b-2, as amended, specifically alleged Johanna placed her children at risk of physical harm due to her unresolved history of alcohol abuse, which limited her ability to provide regular care for her children; references to Johanna's methamphetamine abuse and continuing alcohol abuse were removed.
Proceeding to disposition, the court denied Jose's request for Joseph to be placed with both parents. Instead, the court released Joseph to Johanna with monitored visits by Jose. The court placed Leah and Dean with both parents. In addition, all three parents were required to participate in family maintenance services.
Daniel and Jose timely appealed.
DISCUSSION
I. Daniel's Challenge to the Jurisdictional Findings
Daniel's Motion to Strike Argument II of his Opening Brief (dealing with the Indian Child Welfare Act), filed June 18, 2019, is granted.
Preliminarily, we address the Department's assertion that Daniel's challenges to the juvenile court's jurisdictional findings need not be addressed, as Daniel only disputes the findings relating to him and does not take issue with the findings pertaining to Johanna.
Ordinarily, "[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]" (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nevertheless, "we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding . . . could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations][.]" (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
As Daniel correctly notes, this appeal will determine whether he is considered an "offending" or "non-offending" parent under the Welfare and Institutions Code. This finding "could result in far-reaching consequences with respect to these and future dependency proceedings[.]" (In re Quentin H. (2014) 230 Cal.App.4th 608, 613.) Under these circumstances, we find it appropriate to consider Daniel's challenges to the disputed findings on the merits. (Ibid.)
Under section 300, subdivision (b)(1), the juvenile court may exercise jurisdiction over a child if it finds "[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 or guardian to adequately supervise or protect the child[.]" (§ 300, subd. (b)(1).) "[T]he purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing." (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397 (Savannah M.).)
We review a juvenile court's jurisdictional orders for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 (Yolanda L.).) Under this standard, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).)
"Substantial evidence must be of ponderable legal significance. It is not synonymous with 'any' evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value. [Citation.]" (Dakota H., supra, 132 Cal.App.4th at p. 228.) "A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.]" (Savannah M., supra, 131 Cal.App.4th at p. 1393.) "'. . . "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." [Citation.]' [Citation.]" (Yolanda L., supra, 7 Cal.App.5th at p. 992.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citations.]" (Dakota H., supra, 132 Cal.App.4th at p. 228.)
Daniel contends the juvenile court erred in sustaining count b-2 to the extent it pertains to him. He argues the record does not reflect that, at the time of the adjudication hearing, Leah and Dean were at substantial risk of serious physical harm due to his failure to protect them from Johanna's alcohol abuse. We agree.
Although Daniel reported he has always known Johanna to be a "'heavy drinker,'" who has consumed alcohol in the children's presence and taken care of the children while under the influence of alcohol, the record does not contain any evidence demonstrating Daniel ever permitted Johanna to be with the children unsupervised while she was intoxicated. Indeed, Daniel had only been living with Johanna for about a week when the November 2 incident took place. As noted above, Johanna and the children previously resided with her mother, who would take care of the children in the event Johanna drank too much.
Moreover, during the November 2 incident, Daniel acted appropriately to protect the children from Johanna while she was intoxicated. As discussed above, upon returning home with the children and discovering Johanna was already drunk, Daniel attempted to stop her from drinking more by pouring out the remainder of her third beer. When Johanna got physically aggressive with Joseph, Daniel moved Leah and Dean into a separate room and put the altercation to a stop by pulling Johanna off of Joseph. Ultimately, Daniel demanded that Johanna leave the house and continued to care for the children while she slept in her car.
Additionally, after the November 2 incident, Daniel continued to take reasonable measures to protect his children from Johanna's alcohol abuse. Daniel reported he did not plan to continue his relationship with Johanna following the November 2 incident. Three days after the November 2 incident, Daniel filed a motion in family court seeking full custody of Leah and Dean. Daniel kept both Leah and Dean in his care until November 13, 2018, when Johanna informed the family court Daniel had violated the family court's custody order pertaining to Dean. Although Daniel was required to return Dean to Johanna, Daniel kept Leah in his care until the adjudication hearing was held, as he was "uncomfortable with releasing Leah to [Johanna.]" And, despite Johanna's desire to resolve custody issues informally, Daniel has remained firm in his insistence on the Department's involvement to ensure he and Johanna arrive at a fair custody arrangement.
Lastly, the record reflects that, following the November 2 incident, Johanna acknowledged her alcohol abuse issues and took steps to address them. Johanna reported she has not consumed alcohol since the November 2 incident and has been attending AA meetings regularly. Moreover, on January 8, 2019, only a few weeks before the adjudication hearing, Johanna tested negative for alcohol. Johanna has also moved back in with her mother in order to receive additional support, and to "eliminate any potential safety issues with her remaining in [Daniel's] apartment."
We recognize that living with a parent who has unresolved substance abuse issues may cause significant emotional injury to a child, and could result in serious physical harm when the child is left in the parent's care unsupervised. (See § 300.2 ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child."].) Nevertheless, in this case, the evidence fails to demonstrate that at the time of the adjudication hearing, Daniel's children were at substantial risk of serious physical harm due to his failure to protect them from Johanna's alcohol abuse, or that there were further preventative measures he could but would not take. Accordingly, we reverse the court's jurisdictional findings with respect to Daniel. (See Savannah M., supra, 131 Cal.App.4th at p. 1396.)
II. Jose's Challenge to the Dispositional Order
Once a court finds a child falls within the purview of section 300, "the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).)
"'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.' [Citation.] In reviewing an order for abuse of discretion, we '"must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child."' [Citation.]" (In re Natalie A. (2015) 243 Cal.App.4th 178, 186-187.)
Jose contends the court abused its discretion in declining to place Joseph with both himself and Johanna while family maintenance services were provided. He emphasizes he has the resources to care for Joseph, that he does not have any prior referrals to the Department or any criminal convictions, and that he is committed to renewing his relationship with Joseph. While these facts may be true, we do not agree with Jose's conclusion.
While Jose may be qualified to care for Joseph, the record reflects Jose last saw Joseph when Joseph was about five years old, approximately two years after Jose agreed to give Johanna sole legal and physical custody of Joseph; since then, Jose has not been a part of Joseph's life. Indeed, Joseph reported he has no memory of Jose, and has consistently expressed he does not want to see or visit Jose because Jose had not made any efforts to be involved in his life. Rather, Joseph has reported he wants to continue residing with Johanna, as he feels more comfortable around her. Further, despite the November 2 incident, Joseph stated he feels safe around Johanna because she is no longer drinking and is addressing her alcohol abuse issues. On this record, the juvenile court could reasonably conclude placing Joseph with Jose while family maintenance services were being provided was not in Joseph's best interest, as placement with Jose would have been tantamount to placing him with a stranger during a challenging and vulnerable period of time.
Additionally, we reject Jose's contention the court abused its discretion by relying on Joseph's "personal preferences" in determining whether placement with Jose was appropriate. In support of his argument, Jose relies solely on cases acknowledging that a child's preferences alone should not be determinative of the nature and extent to which a parent may be afforded visitation. (See, e.g., In re Brittany C. (2011) 191 Cal.App.4th 1343, 1358; In re S.H. (2003) 111 Cal.App.4th 310, 319.) Jose, however, fails to explain why these cases should apply outside the visitation context to dispositional placement orders. In any event, Jose was, in fact, granted monitored visitation in this case.
Finally, the existing family court order gives sole legal and physical custody of Joseph to Johanna. As of the time of the dispositional order, Jose had taken no steps to modify the family court's order.
Accordingly, Jose has not shown the juvenile court abused its discretion in declining to place Joseph with both parents, and ordering Joseph placed with Johanna.
DISPOSITION
The jurisdictional findings with respect to Daniel D. are reversed. The dispositional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. WE CONCUR:
MANELLA, P.J.
COLLINS, J.