From Casetext: Smarter Legal Research

Los Angeles Cnty. Dep't of Children & Family Servs. v. Christopher K. (In re Robert K.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 17, 2012
No. B230832 (Cal. Ct. App. Jan. 17, 2012)

Opinion

B230832

01-17-2012

In re ROBERT K. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHRISTOPHER K., Defendant and Appellant.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK81640)

APPEAL from orders of the Superior Court of Los Angeles Patricia Spear, Judge. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minors.

Christopher K. (Father) appeals from the juvenile dependency court's jurisdictional findings and dispositional orders. He contends that insufficient evidence supports the juvenile court's findings under Welfare and Institutions Code section 300, subdivision (b). He also argues that the juvenile court abused its discretion in ordering him to complete drug testing and comply with psychotropic medication.

All further statutory references shall be to the Welfare and Institutions Code unless otherwise noted.

Sufficient evidence supports the juvenile court's jurisdictional findings, and we find no abuse of discretion with respect to the dispositional orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Robert K. (born July 2009) and C.R. (born June 2010), the subjects of this appeal, have two half-siblings, E.R. (born August 2007) and A.R. (born November 1998). Mother is the mother of all four children. Mother is not a party to this appeal, nor are the fathers of E.R. and A.R.

This case came to the attention of the Department of Children and Family Services (DCFS) when mother was arrested on suspicion of child endangerment, possession of a controlled substance, and possession of drug paraphernalia. According to the DCFS detention report dated March 26, 2010, police on patrol at approximately 1:30 a.m. on March 24, 2010, in an area known for high drug activity, observed E.R. wandering around outside a car. Further investigation revealed Robert K. in the back seat of the car alone. Mother who was approximately 50 feet from the car, stated that she was the mother of E.R. and Robert K. and it was her car. A wanted persons inquiry disclosed that mother was on parole for receiving stolen property, had a no bail parole hold, and was a methamphetamine addict. Mother was arrested and a glass pipe commonly used for smoking methamphetamine and a baggie containing a substance resembling methamphetamine was recovered from her front right pants pocket.

A.R. was born methamphetamine positive and mother's sister had legal guardianship.

Mother told the social worker that she had not used drugs in weeks and was in the area to meet a friend who owed her money. Mother stated that Father was Robert K.'s biological father. She said that Father was homeless, she had not seen him in three months, and he had not been a part of Robert K.'s life. Mother indicated that she would like both children to be placed with Father's mother, Janet B., because she provided care for E.R. and Robert K. every week from Friday through Sunday.

I.G. is E.R.'s biological father and remained incarcerated throughout these proceedings.

Janet B. informed the social worker that she wanted E.R. and Robert K. placed with her so that she could provide for them. She believed that Father was Robert K.'s biological father. She stated that Father was involved in drugs and had an extensive criminal record. Father's criminal record revealed the following: (1) on April 12, 2004, he was sentenced to three years in prison for two counts of vandalism and one count of obstructing or resisting an executive officer; (2) on June 11, 2007, a misdemeanor conviction for contributing to the delinquency of a minor; (3) on September 12, 2007, a misdemeanor conviction for violation of a municipal code prohibiting the wearing or carrying of a knife or dagger in public; (4) on May 8, 2009, an infraction conviction for appropriation of lost property with knowledge or means of inquiry as to true owner; and (5) on September 23, 2009, a conviction for possession of a controlled substance and paraphernalia.

At C.R.'s detention hearing on June 22, 2010, Father stated, "I mean, this is not my criminal history. My criminal history is a little more extensive."

Father was homeless and used Janet B.'s mailing address. He was being treated for pneumonia at Kaiser Hospital at the time the children were detained. He stated he was Robert K.'s biological father. He informed the social worker that he was homeless and could not take care of Robert K., and that he would like both children to be placed with his mother, Janet B.

Section 300 Petition on Behalf of E.R. and Robert K.

On March 26, 2010, DCFS filed a dependency petition (§ 300, subds. (b) and (g)) on behalf of E.R. and Robert K. The petition alleged that mother left the children alone in a vehicle at 1:30 a.m. without adult supervision; mother had a history of substance abuse and was a current user, and was incapable of providing the children with care; Father was unwilling and unable to provide care to Robert K.; and E.R.'s father's whereabouts were unknown and he had failed to provide E.R. with the necessities of life. At the hearing that same day, the juvenile court ordered E.R. and Robert K. detained, and placed with Janet B. The court ordered monitored visitation for the parents after they contacted DCFS. At the arraignment hearing on April 2, 2010, the court found Father to be Robert K.'s presumed father.

DCFS submitted a jurisdiction/disposition report dated April 20, 2010. It stated that mother was six months pregnant and that Father was the father of the unborn child. Mother told the social worker that she and Father never lived together and their relationship never worked out. Father visited the children when mother left them at Janet B.'s house. Mother said that Father had "mental problems like ADHD and that is why he self-medicates with drugs."

Janet B. stated that Father had a drug problem and was detoxing. Father's stepfather Desirey B. confirmed that Father had a drug problem and stated that he and Janet B. had to "padlock all the rooms" in the house when Father visited because he would "take things that were not his to sell for drugs." Desirey B. also indicated that in the past, Father threatened to kill Janet B., and was arrested.

The report noted that on April 15, 2010, Father was in an inpatient rehabilitation residential drug treatment and drug detoxification program. By telephone he told the social worker that he and mother lived together for a year but he did not know that she used drugs. Father denied he had a drug problem and said he was in the drug rehabilitation program because he was sick. He stated that his family did not like him and did not speak well of him. Referring to Desirey B., he stated, "My step dad had his dick cut off. Your [sic]gonna believe him?"

Amended Section 300 Petition on Behalf of E.R. and Robert K.

On May 18, 2010, DCFS filed an amended section 300 petition, adding subdivision (b) allegations that Father was arrested on prior occasions "for possession of narcotics controlled substance" had "a history of substance abuse" and was a "current abuser of Methamphetamines and Amphetamines" which rendered him "incapable of providing [Robert K.] with regular care and supervision." The petition also was amended to add that Father had "a history of mental health and emotional problems" which rendered him "incapable of providing regular care and supervision of [Robert K.]." At the hearing that same day, the court ordered DCFS to serve Father with a copy of the first amended petition, and the matter was continued to June 7, 2010.

In a last minute information for the court, filed June 7, 2010, DCFS reported that it was unsuccessful in serving father with the amended petition because they could not find him. Father had not responded to several messages left on his cell phone. Janet B. and Desirey B. reported that he showed up at their home on one occasion and was "perched" outside in the backyard. He was given his cell phone and was asked to leave.

Section 300 Petition on Behalf of C.R.

On June 10, 2010, C.R. was born premature with respiratory distress. She was placed on a ventilator to help her breathing. DCFS filed a section 300 dependency petition on behalf of newborn C.R. on June 22, 2010, alleging that Father had a history of illicit drug use, and a history of mental and emotional problems, which rendered him incapable of providing regular care and supervision of C.R.

The petition also contained allegations that mother had a history of illicit drug use, and created a detrimental and endangering situation for E.R. and Robert K.

In the June 2010 detention report, DCFS reported that in the time since C.R.'s siblings E.R. and Robert K. had been detained in March 2010, mother had cooperated minimally with DCFS but Father had remained evasive, refusing to submit for assessments of his ability to care for his children, and failing to comply with the DCFS case plan and court orders. Father's recent drug rehabilitation history included the completion of a detoxification program at Redgate Memorial Center on April 18, 2010, substance abuse treatment at Allen House, which he reportedly left on May 3, 2010, but could not be confirmed by DCFS, and enrollment in the Positive Steps Substance Abuse Program on May 12, 2010. DCFS tried to contact Father at the Positive Steps facility but was unsuccessful because Father had not signed a release of information.

Father made telephonic contact with DCFS on May 27, 2010. Father was informed by the social worker that in order to see his children, he had to come to the DCFS office to discuss his case plan and provide verification of enrollment in a substance abuse program. Father refused to cooperate, and denied that he had a drug or substance abuse problem. When informed by the social worker that he would have to complete a substance abuse program, undergo random drug testing, and participate in counseling and parenting education, he stated, "Then keep the fucking kids Bitch!" and hung up the telephone.

Based in part on Father's unresolved substance abuse problem, his unresolved mental health history, and his failure to make himself available to DCFS for assessments, the report recommended the continued detention of C.R.

On June 18, 2010, Father filed an objection to hearsay statements pursuant to section 355, subdivision (c), regarding the statements made by Janet B. and Desirey B., in the DCFS reports.

At the detention hearing on June 22, 2010, the juvenile court found Father to be the presumed father of C.R. The court sustained the section 300 petition and ordered C.R. to be detained in hospital care. The court ordered monitored visits and reunification services. DCFS was ordered to make best efforts to place C.R. with Janet B., where her siblings resided. Father did not agree with the court ruling and stated that C.R. should be with mother. He told the court "I was in a program, because I have a disease." Father questioned the competency of his lawyer and stated "I'm a—I mean, look at me. I'm not the person that really gives a fuck about any of this. But I love my child, and I want my child to be healthy, you know. I'm just upset. I'm just pissed. This is not right." An adjudication hearing was set for August 5, 2010.

The jurisdiction/disposition report dated July 19, 2010 reported that C.R. was placed with Janet B. where her siblings E.R. and Robert K. resided. In a telephone call on June 18, 2010, DCFS stressed the importance of Father submitting to a mental health evaluation and random drug testing. Father objected and stated, "I mean, maybe I do have mental health issues. No, I don't have substance abuse and I don't have any mental health problems." Father denied having any drug criminal history. In a further telephone call on June 24, 2010, Father initially agreed to drug test on demand, but then said he needed to consult his attorney. Janet B. informed DCFS that she no longer wanted either mother or Father visiting the children in her home. She stated that Father had been inappropriate during visits and often showed up to the visits under the influence of drugs and displayed erratic and dangerous behavior. During one visit, Father threatened to take a needle and stick it in his arm and infect everyone as he reportedly has a life-threatening disease.

At the July 19, 2010 arraignment hearing, DCFS contended that Father's section 355 hearsay objections were improper because the code required specific objections. The juvenile court agreed and instructed Father's counsel to "be more pointed" as to what part of the statements constituted hearsay. Father's counsel agreed to file objections with more specificity than the original general objections previously filed. The court stated the objections would then be considered as to both children.

The record contains only the original objections filed on June 18, 2010.

In a last minute information for the court, filed August 5, 2010, DCFS reported that on July 19, 2010, Janet B. observed Father physically assault a female companion he had "[p]icked up off of the street." Father was described as being in a state of rage. Father's female companion required hospitalization for her injuries. Father was arrested on July 31, 2010, and released later that same day. Janet B. informed DCFS that she had initiated proceedings to obtain a restraining order against Father to prevent him from coming to her home. DCFS supported Janet B.'s request in light of Father's erratic, irrational, and unsafe behavior.

It was noted that Father refused services from DCFS, failed to comply with DCFS recommendations and the case plan, and has never made face to face contact with DCFS. DCFS concluded that Father's failure to adequately address his mental and emotional problems and his substance abuse posed a risk to the children and the court should assess if it is in the best interests of the children to continue the visits.

In a last minute information for the court, filed September 23, 2010, DCFS reported that Father's whereabouts were unknown and he had made no contact with DCFS since the last hearing date.

At the September 23, 2010 hearing, Father's counsel stated that Father was in prison. Mother pled no contest to the section 300 petition as amended regarding E.R. and Robert K., and also to the petition regarding C.K. The juvenile court sustained the following allegations regarding E.R. and Robert K. against mother: (1) on March 23, 2010, mother placed the children in an endangering and detrimental situation in that the mother left the children alone in a vehicle at night without adult supervision, E.R. was outside of the vehicle while mother was approximately 50 feet away, endangering the children and placing them at risk of harm; and (2) mother had a history of substance abuse including methamphetamine, which rendered her periodically unable to provide the children with regular care and supervision, and on March 23, 2010, mother possessed methamphetamine and a pipe while the children were in mother's care, placing them at risk. With respect to C.R., the court sustained the allegation that mother left E.R. and Robert K. alone in the vehicle as described in the other petition, and mother was arrested for child endangerment, and such an endangering and detrimental situation created for C.R.'s siblings endangered C.R. and placed her at risk of physical and emotional harm, damage and danger. The court held all of the remaining counts in abeyance for the fathers to be brought into court, and continued the adjudication hearing to November 19, 2010.

Father did not appear at the November 19, 2010 hearing. In the first amended section 300 petition on behalf of E.R., the juvenile court sustained the allegation that I.G. failed to provide the necessities of life for her, thereby placing her at risk of physical and emotional harm. DCFS was ordered to serve notice on Father at his last known address and at his alleged rehabilitation facility. A last minute information for the court, filed December 16, 2010, indicated that the notice was returned as undeliverable from the rehabilitation facility.

Adjudication Hearing

At the February 2, 2011 adjudication hearing, the juvenile court without objection received into evidence the DCFS detention report dated March 26, 2010, and the jurisdiction/disposition report dated April 19, 2010 pertaining to Robert K.; the DCFS detention report dated June 9, 2010 and the jurisdiction/disposition report dated July 19, 2010 pertaining to C.R.; and the last information for the court reports dated June 7, 2010, August 5, 2010, September 23, 2010, December 16, 2010, and February 2, 2011. Children's counsel joined with DCFS in arguing that there was evidence supporting the allegations against Father. Father's counsel argued that the allegation that he failed to provide should be stricken because he bought the family milk and diapers. He also argued that Father had repeatedly denied any drug problem and DCFS had failed to provide a positive test for him. Likewise, DCFS had not produced any documentation showing that Father had mental health issues.

The February 2, 2011 DCFS report pertained to mother's failure to remain in treatment programs and is not relevant to this appeal.

The court stated that having read the reports it was clear Father had some mental health issues as evidenced by Father's erratic behavior described by relatives, and the fact that Father admitted and then denied having mental health problems. The court also found the numerous reports of Father's drug use from many people, including mother, to be ample evidence to sustain the substance abuse allegations. The court sustained the failure to provide allegation as pleaded.

As to Robert K., the juvenile court sustained the following allegations in the first amended petition, filed May 18, 2010, against Father: (1) Father was unable to provide Robert K. with ongoing care and supervision, and with the necessities of life, including food, clothing, shelter and medical care, and Father's unwillingness and inability to do so endangered Robert K.'s physical and emotional health and safety and placed him at risk of physical and emotional harm and damage; (2) Father had a history of mental and emotional problems, which rendered him incapable of providing care and supervision to Robert K., and Father failed to take the prescribed psychotropic medications and failed to comply with mental health services placing Robert K. at risk of physical and emotional harm and damage; and (3) Father was arrested for possession of a controlled substance, had a history of substance abuse and was a current abuser of methamphetamines and amphetamines, which rendered him incapable of providing Robert K. with regular care and supervision, and father's abuse of illicit drugs created a detrimental home environment and endangered Robert K.'s physical and emotional health and safety and placed him at risk of physical and emotional harm and damage.

As to C.R., the juvenile court sustained the following allegations against Father: (1) Father had a history of illicit drug use including marijuana and was a current abuser of methamphetamines and amphetamines, which rendered him incapable of providing C.R. with regular care and supervision, Father was previously arrested for possession of a narcotic controlled substance, and C.R.'s sibling Robert K., is a dependent of the juvenile court due to Father's illicit drug use; and (2) Father had a history of mental and emotional problems, which rendered him incapable of providing care and supervision to C.R., and Father was treated for his mental and emotional problems but failed to take the prescribed psychotropic medications and failed to comply with mental health services placing C.R. at risk of physical and emotional harm and damage.

The juvenile court ordered Father to provide 10 clean random drug tests, and if he missed a test or tested positive, he would have to complete a full rehabilitation drug program with random testing and Father was also ordered to participate in parent education and individual counseling, and remain compliant with psychotropic medications. Father informed the court that he already had a therapist stating, "It's for my disease." Father timely appealed.

DISCUSSION

Father challenges the jurisdictional orders, arguing that substantial evidence did not support the court's conclusion that Robert K. and C.R. were persons described under section 300, subdivision (b). Specifically, Father contends that (1) there was no evidence that he was unable to provide for Robert K.; (2) he is not a current drug user, nor does he have a recent history of drug use; and (3) he does not have mental health problems. Further, Father contends that the juvenile court abused its discretion requiring him to complete drug testing and comply with psychotropic medication treatment because he is not a drug user and does not have mental health issues.

I. Mootness

The question of prejudice arises because Father has not challenged the allegations concerning mother's failure to protect the children. Here, the court sustained allegations that mother had a history of substance abuse that periodically rendered her incapable of providing regular care for Robert K. and C.R., and that leaving the children alone at night in a vehicle put them at risk of harm. We observe that "a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citations.]" (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)

Father contends that the sustained jurisdictional findings against him impact his custody rights. The jurisdictional findings could affect Father in the future with regard to Robert K. and C.R., or Father's other children, if any. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547 [appeals in dependency matters are not moot if "'the purported error is of such magnitude as to infect the outcome of [subsequent proceedings]'"].) The purpose of the dependency proceeding is to "protect the child, rather than prosecute the parent." (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) Thus, we address the merits of Father's appeal.

II. Substantial Evidence Supports the Court's Jurisdictional Findings

A. Standard of Review

Challenges to a juvenile court's jurisdictional findings are reviewed for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649; In re Clara B. (1993) 20 Cal.App.4th 988, 1000.) 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 Christina A. (1989) 213 Cal.App.3d 1073, 1080.) "We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court's conclusions." (In re Kristin H., supra, at p. 1649.) "'All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.'" (Ibid.) Issues of fact and credibility are questions for the trial court and it is not our function to redetermine them. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.)

B. Analysis

Section 300, subdivision (b) provides, in relevant part, that a child may fall within the jurisdiction of the juvenile court if that "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, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left." (§ 300, subd. (b).) Three elements are necessary for a jurisdictional finding under section 300, subdivision (b): "(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 Rocco M. (1991) 1 Cal.App.4th 814, 820.)

DCFS bears the burden of proof by a preponderance of the evidence. (In re Chantal S. (1996) 13 Cal.4th 196, 210.)

1. Father Was Unable to Provide for Robert K.

Father acknowledges his homeless status and his inability to provide housing for Robert K. but contends that Robert K. was healthy and not at risk of harm because he was in his mother's care. Father told DCFS that he lived with mother for one year. He believed that mother was a "good mom" and he did not know that she used drugs. But Father's belief that Robert K. was in a safe environment is not supported by the facts. Mother had a history of drug use dating back to 1998, when her daughter, A.R., was born addicted to methamphetamine. When arrested on March 24, 2010, she was in possession of a glass pipe and methamphetamines. Mother admitted using drugs two weeks prior, and police records indicated that mother was a methamphetamine addict. The record supports an inference that Robert K. was exposed to drugs and drug abuse. Therefore, there was a substantial risk of harm to Robert K. being in the presence of a known drug user, and particularly so when left unattended in a car at 1:30 a.m. in an area known for high drug activity. A home environment pervaded by the use and exposure to drugs creates a risk of detriment for Robert K. in that it provides him with the means, opportunity, and at least the potential motives to begin abusing substances himself. (In re Rocco M., supra, 1 Cal.App.4th at pp. 825-826.)

When given the opportunity to take a greater role in Robert K.'s physical and emotional well-being, Father chose not to do so. He was not prepared to take custody of Robert K. once the child was removed from mother. When Father was notified in March 2010, that Robert K. had been detained, he told DCFS that he could not take care of Robert K. and asked that his son be placed with Janet B. Father's inability and unwillingness to take care of Robert K. was not surprising because Father was homeless, and at the time mother was arrested she said she had not seen him in three months and he had not been a part of Robert K.'s life. Father acknowledged as much at the arraignment hearing on June 22, 2010, when he stated, "This is the first time I'm putting myself to be part of this child's life." When ordered by the court to provide proof that he was enrolled in a substance abuse program in order to see Robert K. he refused to cooperate and told the social worker "Then keep the fucking kids Bitch."

Father's readiness to overlook mother's drug use while she was caring for Robert K., his desire to have Robert K. placed with family members that he stated did not like him and spoke badly of him, and his lack of cooperation with DCFS, supported the court's finding that he was unable and unwilling to care for Robert K.

2. Father Had a History of Substance Abuse

Father contends that the only evidence of his drug use was the unsworn and unconfirmed allegations by mother, Janet B., and Desirey B., which he flatly denied. But, ample evidence supports the juvenile court's finding that Father had a history of substance abuse, not least of which was his admission to DCFS of marijuana use, and his September 23, 2009, conviction for possession of a controlled substance and paraphernalia. Additionally, Father had participated in a number of drug rehabilitation programs. He completed a detoxification program at Redgate Memorial Center, received substance abuse treatment at Allen House, and enrolled in a Positive Steps Substance Abuse Program.

Mother informed DCFS that Father self-medicated with drugs. Subsequent to Robert K.'s detention by the juvenile court, Janet B. stated that Father was in a drug treatment facility because he had a drug problem. Desirey B. also stated that Father had a drug problem and they had to "padlock all the rooms because he would come [to their home] and take things that were not his to sell for drugs." Father was under the influence of drugs during monitored visits with his children and displayed such erratic and dangerous behavior that Janet B. requested that he not be allowed to visit the children at her home.

Father contends that the statements of Janet B. and Desirey B should not have been relied upon by the court because he filed timely section 355 hearsay objections. But the record before us does not contain specific section 355 objections to the statements, as the juvenile court instructed Father's counsel to file on July 19, 2010. Furthermore, Father did not object when the statements were submitted into evidence by DCFS counsel. Father's failure to object or raise those issues in the juvenile court prevents him from raising this issue on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.)

Father's reliance on In re Sergio C. (1999) 70 Cal.App.4th 957 is misplaced. In In re Sergio C., a father challenged the sustaining of a dependency petition against him and the order requiring him to drug test. The appellate court found merit to his claims and reversed both. The only evidence of the father's drug use was the unsworn and unconfirmed allegation of the mother, an admitted drug addict who abandoned her children. The father flatly denied all involvement with drugs. The appellate court found that where "the custodial parent has flatly denied all involvement with drugs and has otherwise cooperated fully with all of the court's orders, there must be some investigation by DCFS to warrant the kind of invasive order that was made here." (Id. at p. 960.)

Father's situation is distinguishable. Here there was much more than an uncorroborated allegation to support the court's suspicion that Father was a drug abuser. Father admitted marijuana use. He was treated at numerous drug rehabilitation facilities. He had a drug conviction. Mother, Janet B., and Desirey B., all stated that he used drugs. He exhibited erratic behavior, and refused to drug test or cooperate with DCFS. Taken together, this evidence was sufficient to support the court's finding.

3. Father Had Mental Health and Emotional Problems

Father asserts that there is insufficient evidence to support a finding that he has mental health problems. The record shows that Father made statements and exhibited behavior indicative of mental health issues. In a telephone conversation with DCFS, Father admitted having problems as a child and as an adult and stated, "I mean, maybe I do have mental health issues." When Robert K. was detained, mother informed DCFS that Father had mental problems. When the juvenile court ordered counseling for Father he stated that he already had a therapist for his "disease." Previously he had informed the court, "I was in a program, because I have a disease." He told DCFS that his stepfather should not be believed because he "had his dick cut off." When told by DCFS that he would have to comply with the court order to undergo random drug testing he stated, "Then keep the fucking kids Bitch."

His erratic behavior was observed by family members during visits to their home. On one occasion Father was "perched" in the backyard, another time while allegedly suffering from a deadly disease, he threatened to take a needle and stick it in his arm and infect the people present. He threatened to kill his mother and was convinced she and his stepfather did not like him and spoke badly of him. His mother obtained a restraining order to prevent him from coming to her home. His unpredictable behavior escalated when he assaulted a woman he had "[p]icked up off the street." The woman was hospitalized for her injuries.

In enacting section 300, subdivision (b), the Legislature omitted evidentiary requirements respecting proof of "mental illness" and it does not contain a described formal procedure to determine if a parent suffers from a mental illness. (In re Khalid H. (1992) 6 Cal.App.4th 733, 736.) Father contends that DCFS's failure to establish any professional diagnosis of a mental health condition is critical. He ignores the fact that this was caused by Father's refusal to cooperate with DCFS. In this case, experienced social workers trained to recognize erratic behavior recommended that Father undergo mental health assessments. But Father did not provide his medical records, and refused to submit to psychological evaluation and testing.

Father contends that no nexus was demonstrated to show any current risk of harm, or reasonably foreseeable risk of future harm to the children resulting from the speculated mental health problems sustained against him. Father argues that the facts of this case are far less compelling than In re David M. (2005) 134 Cal.App.4th 822, or In re James R. (2009) 176 Cal.App.4th 129, both of which ruled that the mental illness of a parent, standing alone, is insufficient to establish a substantial risk to the child. For the reasons discussed below, neither case requires a reversal of the juvenile court's jurisdictional finding under the circumstances presented here.

a. In re David M.

In In re David M., supra, 134 Cal.App.4th 822, the juvenile court found the child to be a dependent under section 300, subdivision (b) based on evidence that both parents had a history of mental illness and that the mother had abused marijuana prior to her children's birth. The appellate court reversed, explaining that "the evidence of mother's mental and substance abuse problems and father's mental problems was never tied to any actual harm to [the child], or to a substantial risk of serious harm." (In re David M., supra, at p. 829.) Instead, risk had been improperly "'presumed from the mere fact of mental illness of a parent. [Citations.]' [Citations.]" (Id. at p. 830.) The court noted that, although the social services agency had identified "many possible harms that could come to pass" from the parents' condition, the record lacked "any evidence of a specific, defined risk of harm." (Ibid.) The court also found that the social service agency had "failed to investigate or report on a current basis." (Id. at p. 831.) Instead, the agency's findings were based on information it had gathered during an investigation conducted three years earlier. At the jurisdictional hearing, a social worker admitted that she had conducted no "independent investigation" in support of the current petition. (Ibid.)

The evidentiary problems identified in In re David M. are not present here. The record before us contains evidence of a substantial risk of harm. The escalation of Father's behavior to physical violence presented a risk to the safety and well-being of the children. DCFS reported that Father got angry during telephone calls, and acted irrationally during visits to see his children. He threatened to stick a needle in his arm and infect everyone with a life threatening disease. On a later visit it was reported that Father was in a state of rage, and physically assaulted a female companion to the point she needed hospitalization for her injuries. Father had threatened to kill his mother Janet B., and his outbursts forced her to obtain a restraining order to prevent him from coming to her home. The court's decision was based on evidence of some past, but mostly current violent conduct that created a substantial risk to Robert K. and C.R.

Nor was DCFS's investigation of Father predicated on outdated information. The record shows that DCFS conducted extensive investigation in relation to both petitions. In the 11 months between the filing of the first petition in March 2010, through the adjudication hearing in February 2011, DCFS interviewed mother, Janet B., and Desirey B. on numerous occasions. Father refused to follow the case plan, did not cooperate with DCFS, and never agreed to meet with any social worker face to face. While the record was not clear as to when Father threatened to kill Janet B., all of the other information DCFS provided in its reports concerning Father's escalating violent behavior occurred after his children had been detained.

b. In re James R.

In In re James R., supra, 176 Cal.App.4th 129, the mother was admitted to a hospital "after she consumed alcohol and took prescription ibuprofen" while caring for her three children. (Id. at p. 131.) Although the mother said she was not intentionally trying to harm herself, a hospital social worker reported that mother had a history of suicide attempts. Shortly after mother's hospitalization, the San Diego County Health and Human Services Agency "filed petitions in the juvenile court under section 300, subdivision (b), alleging [the children] were at substantial risk of harm because [mother] had a mental illness, developmental disability or substance abuse problem, and [father] was unable to protect them." (Id. at p. 132.)

At the contested jurisdiction hearing, a psychological evaluator testified that although mother had attention deficit disorder, she was not suicidal and "did not pose a risk to her children and she was not a danger to herself or others." (In re James R., supra, 176 Cal.App.4th at p. 133.) In addition, a social worker testified that because the father "monitored the minors' welfare" and had "support from extended family," she was "not concerned about the minors' safety." (Ibid.) A second social worker noted that mother "had been consistently participating in therapy and substance abuse treatment for three months" and believed that "the minors were safe with [father], who ensured their needs were met" and "would intervene to protect [them]." (Id. at pp. 133, 134.)

Despite this evidence, the agency argued that, without court intervention, the children were at risk because: (1) if mother did not follow through with her mental treatments, she might want to hurt herself, thereby exposing the minors to her suicide attempt; (2) if mother had a substance abuse problem or continued to drink alcohol she would not be capable of caring for the minors; and (3) father might leave the minors with mother, who might then drink or use drugs in the presence of the children. (In re James R., supra, 176 Cal.App.4th at pp. 134, 136-137.) The juvenile court declared the children dependents of the court.

The appellate court reversed, ruling that the record contained "no evidence of actual harm to minors from the conduct of either parent and no showing the parents' conduct created a substantial risk of serious harm to the minors." (In re James R., supra, 176 Cal.App.4th at p. 136.) The court explained that there was no evidence suggesting that mother was actually suicidal or regularly abused drugs or alcohol in the presence of her children. As a result, the agency's speculations about what might occur if the mother began to engage in such conduct were merely "[p]erceptions of risk, rather than actual evidence of risk." (Id. at p. 137.) The court further noted that the "uncontradicted evidence showed [father] was able to protect and supervise the minors." (Ibid.)

The facts of this case have little in common with In re James R. The future risk of substantial harm to Robert K. and C.R. was not based on speculation about what might occur if Father stopped his treatment. Rather, it was based on the fact that Father had exhibited erratic, irrational, and violent behavior, and then refused to engage in court ordered treatment that was intended to remedy the causes of that conduct. The record here contained more than just evidence of father's past violent conduct when he threatened to kill his mother. It contained evidence of current escalating violent tendencies, and that Father refused to participate in counseling to address such conduct, which was sufficient to support the juvenile court's finding.

III. Substantial Evidence Supports the Court's Disposition Orders

Father contends that the requirements regarding drug testing and psychotropic medications were an abuse of the juvenile court's discretion.

The court ordered Father to undergo 10 random drug tests and to remain compliant with prescribed psychotropic medications.

Pursuant to section 362, subdivision (c), "[t]he juvenile court may direct any and all reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out the provisions of this section . . . . The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300." "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." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)

Given Father's admitted drug use, his treatment at drug rehabilitation facilities, his drug conviction, and witness statements regarding his erratic behavior and drug use, it was not unreasonable for the juvenile court to order Father to demonstrate that he was not continuing to use drugs.

With respect to the court's order regarding psychotropic medications it should be noted that the juvenile court did not order Father to initiate psychotropic medications, but rather to remain compliant with them. There was no evidence in the record that Father was being prescribed psychotropic medications because he refused to provide his medical records to and refused to comply with DCFS recommendations regarding mental health evaluations. But, given the numerous rehabilitation programs Father had attended and his own references to receiving treatment including the fact that he stated he "already [had] a therapist" for his "disease" it was not unreasonable for the court to assume that he may be taking such medications. Therefore, the juvenile court's order that he remain compliant was appropriate and not an abuse of discretion.

DISPOSITION

The jurisdictional and dispositional orders pertaining to the section 300 petition are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________, J.

DOI TODD
We concur:

______, P. J.

BOREN

_________, J.

ASHMANN-GERST


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. Christopher K. (In re Robert K.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 17, 2012
No. B230832 (Cal. Ct. App. Jan. 17, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. Christopher K. (In re Robert K.)

Case Details

Full title:In re ROBERT K. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 17, 2012

Citations

No. B230832 (Cal. Ct. App. Jan. 17, 2012)