Opinion
B302919
08-07-2020
In re R.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP06517AB) APPEAL from orders of the Superior Court of Los Angeles County, Kristen Byrdsong, Judge Pro Tempore. Affirmed. Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
J.S. (Father) appeals the juvenile court's jurisdiction and disposition orders. The court found that Father and N.T. (Mother) endangered their children by using the family home to store and sell drugs. (Welf. & Inst. Code, § 300, subd. (b).) Mother has not appealed the judgment.
Unlabeled statutory references are to the Welfare and Institutions Code.
The unchallenged finding against Mother, standing alone, allows dependency jurisdiction. Substantial evidence underpins the court's finding against Father, who possessed six pounds of methamphetamine when he was arrested; Mother described him as a "middleman" in the drug business. Father's illicit activities and refusal to acknowledge the risks they pose demonstrate his inability to protect the children and support the court's decision to remove him from the home for their safety. We affirm.
FACTS AND PROCEDURAL HISTORY
The parents' children R.S. and A.S. were born prematurely in 2018. They have suffered serious medical issues since birth, including brain bleeding and heart and lung problems. They utilize supplemental oxygen to assist their breathing.
In September 2019, Father was arrested while transporting six pounds of methamphetamine in his car. In recorded calls from jail, he instructed Mother to "get rid of the stuff" and asked a cohort to retrieve a gun and black bag from the family home. When officers searched the home, Mother told them that Father's friend Nick came by and took a safe containing a firearm, $15,000 in cash, and two pounds of marijuana in a sealed box.
A Department of Children and Family Services (DCFS) social worker (CSW) interviewed Mother, who said "she was aware that the father was a 'middleman' for transporting drugs" but denied knowing details about the drugs found in his car. Mother "understood the severity of the crime and stated that the father's actions were inappropriate." She "is aware that such crime involving drug trafficking may put the family's safety in jeopardy." Mother has a history of heroin abuse. She claims sobriety since 2016; an on-demand drug test was negative for all substances.
Upon his release from jail, Father spoke with CSW. He acknowledged possessing six pounds of methamphetamine and facing criminal punishment; he was remorseful. He explained that he sought to buy a house and "saw an opportunity to receive a substantial amount of money by distributing a large amount of methamphetamines. [He] reported that he understood that being involved in narcotics sales may involve dangerous people who may be violent and involved in organized crime."
Father does not believe his family is at risk because the drugs in his possession were "paid off and . . . he does not owe any monies to anyone." Father admitted "he did ask the mother to have his friend Nick pick up a safe from his home containing a handgun and a substantial amount of monies. [He] reported that he did not want law enforcement to take his money or firearm from his home as he was aware that law enforcement was going to follow-up with a raid to his home address. [He] reported that his intentions were to never put his children at risk of any dangerous home environment and acknowledged that his current criminal acts puts his family at immediate safety risks."
Father agreed to a drug test, which proved negative for all substances. His criminal history includes three juvenile arrests for possessing a weapon at school, vandalism, and possession of marijuana for sale.
The juvenile court issued an order to remove the children from the parental home on October 4, 2019. They were taken to a hospital.
DCFS filed a petition alleging that Mother and Father created a detrimental and endangering home environment for the children. Father engaged in illicit drug sales and stored drugs in the family home; Mother knew of Father's illicit activity but failed to protect the children from it. The petition alleges that their conduct endangers the children's health and safety and places them at risk of serious harm or danger. (§ 300, subd. (b).)
At the detention hearing, Mother and Father denied the allegations. The court found a prima facie showing that the children fall within section 300, with no reasonable means to protect them without removal from Father's custody; his activity "puts the children in extreme danger." The court was concerned that Mother knew of Father's illegal activity; however, because the children have special medical needs, the court ordered that they be placed in her care on condition that DCFS make frequent unannounced visits. Also, Mother must live with the paternal grandmother and test negative for drugs. Father was authorized to have monitored visits outside the home. Father completed a parentage statement and the court found him to be the children's presumed father.
In an interview for the jurisdiction hearing report, Mother said "no drugs were found in the home and she didn't know what was happening." Upon learning of Father's arrest, Mother "took precaution to get rid of [Father's] safe" without knowing what it contained. She denied that Father asked her to remove items from the house, saying that he called from jail to notify her of his arrest and asked to be bailed out.
CSW opined that Mother cannot maintain a protective home for the children. Initially, she admitted that Father is a "middleman" for drug transport and obeyed his request to get rid of drug trafficking evidence upon his arrest. She now claims ignorance of Father's criminal activity and denies that he asked her to remove incriminating items before officers searched the family home. Nonetheless, Mother is committed to her children and is trained to care for their medical needs.
In his interview, Father admitted that "he made a mistake [and] saw an opportunity to help his family overnight." He used marijuana and cocaine in high school, entered a rehabilitation program at age 19, has been sober for 12 years and attends sobriety meetings.
Father denied keeping illegal substances at the family home, noting that "there were no drugs found or confiscated in the home [and] he was arrested fifty miles away with the drugs." He said Mother did not know what he was doing that day. He feels that "his actions did not place the children in any harm." The drugs "were paid for [and] he is not part of a criminal enterprise or drug operation." He claimed this was his first attempt to transport drugs and that his jailhouse phone call to Mother was "to let her know about the arrest and to call his sister to help with bail."
Father said he is ambitious. He was intrigued by the idea of quick money he could save for a down payment but failed to consider the consequences. This was a "wake up call" and he does not plan to try "the easy way" again. He does not use drugs or sell them out of the home so his children are not in danger. He and Mother tested negative for substances in November and December 2019.
The petition was adjudicated on December 5, 2019. DCFS called Father as a witness; however, he invoked his Fifth Amendment rights and did not testify. His counsel asked for the petition to be dismissed, arguing that there was no risk of future harm because this was "an isolated incident that happened, roughly, 50 miles away from the father's residence" and no drugs were found in the home. DCFS responded that the parents' current position differs greatly from what they told investigators; they now deny everything they said. The risk to the children has not been eliminated. Minors' counsel joined DCFS because both parents refuse to admit anything and Mother's use of the word "middleman" to describe Father's drug activities suggests this was not a single incident.
The Court's Findings and Rulings
The court was "very concerned" about the children's safety owing to potential retaliation in the home for Father's activities. Mother was at first "forthcoming and honest and protective. How can she be protective if she can't even acknowledge a very serious situation when, initially, she had?"
The court found that this case involves drug transportation, a gun, and an excessive amount of money. Father called Mother to alert her that someone was going to pick up the money and drugs from the family home; Mother now claims she knew nothing about drug trafficking, though she admitted it when interviewed by CSW for the detention report. Because Father is not in prison and Mother is no longer cooperative or protective, the children are at risk. The court sustained the petition.
Moving to disposition, the court declared the children dependents of the court. The court left them in Mother's care because they are medically fragile, but she was admonished that she must put her children's needs ahead of Father. DCFS must make frequent unannounced home visits. The children were removed from Father's care because he poses a substantial danger to their physical health, safety and protection. He was given monitored visitation and ordered to participate in drug testing and counseling to address case issues. Father appeals.
DISCUSSION
Dependency Jurisdiction
Father contests the sufficiency of the evidence supporting the court's exercise of dependency jurisdiction. On appeal, we must uphold jurisdictional findings if they are supported by substantial evidence, based on a review of the entire record, resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment. (In re R.T. (2017) 3 Cal.5th 622, 633; In re Israel T. (2018) 30 Cal.App.5th 47, 51.) The court's determination will not be disturbed unless it exceeds the bounds of reason. (In re Francisco D. (2014) 230 Cal.App.4th 73, 80.)
There is an uncontested basis for dependency jurisdiction in this case. "Because the juvenile court assumes jurisdiction of the child, not the parents, jurisdiction may exist based on the conduct of one parent only." (In re J.C. (2014) 233 Cal.App.4th 1, 3.) The court assumed jurisdiction based on the conduct of both parents. Mother did not appeal; her conduct alone justifies jurisdiction. We may decline to address the evidence supporting the jurisdictional findings against Father. (Id. at p. 4.)
Although the sustained petition against Mother establishes a sound basis for dependency jurisdiction over the minors, we may exercise our discretion and reach the merits of Father's claims. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) After reviewing the record, we conclude that substantial evidence supports the court's findings against Father.
Jurisdiction lies 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 or guardian to adequately supervise or protect the child." (§ 300, subd. (b)(1).) A parent who transports methamphetamine places his children at risk because involvement in narcotics transactions is "inherently dangerous." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 991 [father was arrested with three pounds of methamphetamine].)
The evidence shows that Father was arrested with six pounds of methamphetamine; he admitted that he wanted to make easy money in the drug business. In recorded calls from jail, he instructed Mother to "get rid of the stuff" and a cohort to go the family home and remove evidence. He knew a raid was imminent and did not want officers to take his money or gun.
Mother and Father admitted that drug trafficking occurred and acknowledged that this activity involves violent, dangerous people who imperil the family's safety. After admitting that Nick rushed to remove evidence (drugs, a gun, and $15,000 in cash) from the family home, the parents claimed an illusory victory, arguing that there was no risk to the twins because police found no drugs in the house. The juvenile court refused to reward the parents for hiding incriminating evidence. We agree with the court's reasoning.
The court rejected Father's claim that he never put his children at risk because this was an isolated incident and he was far from home when arrested. Father said the drugs in his possession were paid off; the court could infer that if Father had funds to purchase six pounds of methamphetamine, he is not a one-time, bit player in the drug business. Mother said he is a "middleman," suggesting an ongoing criminal enterprise in which Father transacts business with drug producers and distributors.
In sum, "there was substantial evidence from which the juvenile court could infer that the conduct [of transporting large amounts of methamphetamine] was likely to recur and did not represent a momentary lapse in judgment." (In re Yolanda L., supra, 7 Cal.App.5th at p. 994.) The court could look to the parents' initial admissions—not their later, self-serving denials—to find that "father was more deeply involved in drug trafficking than he acknowledged." (Ibid.)
Father's conduct in transporting drugs and hiding the proceeds from his drug business in the family home poses a substantial risk of harm to the children and demonstrates parental inability to protect them. (§ 300, subd. (b).) The court need not wait until a child is seriously injured to assume jurisdiction and take protective steps. (In re I.J. (2013) 56 Cal.4th 766, 773.) Even " 'a low degree of probability' " can give rise to a substantial risk of harm if " 'the magnitude of the harm is potentially great.' " (Id. at p. 778.) As Father initially agreed, his business involves dangerous, violent people and organized crime, yet he refuses to accept that he has put his family at risk.
The Disposition Order
Father contests the disposition order removing the children from his custody and removing him from the family home for the children's safety, protection, and well-being. He did not object to the disposition but submitted on the DCFS recommendation. His acquiescence forfeits review. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.)
When a child has been adjudged a dependent child within the meaning of section 300, the juvenile court "may limit the control to be exercised over the dependent child by any parent" if necessary to protect the child. (§ 361, subd. (a)(1).) Children may be taken from the physical custody of parents with whom they reside at the time the petition was initiated if the court finds "a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).)
The court may protect children by removing an offending parent from the home. "Section 361, subdivision (c)(1)(A) clearly requires the court to consider the 'option' of removing an offending parent from the home as a possible alternative to removal of the child from the parent. However, that subdivision does not state that the option of removing a parent from the home will necessarily be sufficient to protect the child in all cases even if ordered. It does not, by its terms, preclude the possibility of ordering both removal of the parent from the home and removal of the child from the parent." (In re Michael S. (2016) 3 Cal.App.5th 977, 984.) "Flexibility" based on the facts is the key determinant. (Ibid.) A disposition is reviewed for substantial evidence. (In re R.V. (2012) 208 Cal.App.4th 837, 849.)
The parents risked their family's safety by conducting an illicit business from their home, storing drugs, a weapon, and a large amount of cash on the premises. Mother admitted that "drug trafficking may put the family's safety in jeopardy"; Father admitted that "being involved in narcotics sales may involve dangerous people who may be violent and involved in organized crime" and that "his current criminal acts puts his family at immediate safety risks." At the detention hearing, the court found that his conduct "puts the children in extreme danger."
After detention, the parents feigned ignorance. Mother denied awareness of Father's activities despite calling him a middleman for drug transportation. Seemingly unaware that jailhouse calls are recorded, Father claimed he called Mother to tell her about his arrest and arrange bail. In fact, he instructed her to hide incriminating evidence with the help of a cohort.
Removal of the children was justified, based on the parents' denials at adjudication about Father's conduct and the risk it poses. Far from seeing the DCFS case as a "wake up call," the parents doubled down by denying culpability. Their denials are relevant to determining whether they are likely to modify their future behavior. (In re A.F. (2016) 3 Cal.App.5th 283, 293.) The court exercised discretion by allowing the children to remain in Mother's care, owing to their fragility and her ability to meet their medical needs, but it properly removed Father from the home as he now refuses to admit he is exposing his children to a risk of retaliation for operating a drug business.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.