Opinion
B231876
10-31-2011
In re STEVEN L., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CONNIE A., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant Deputy Counsel, and O. Raquel Ramirez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85630)
APPEAL from an order of the Superior Court of Los Angeles County. Marguerite Downing, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant Deputy Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Connie A. (Mother) contends substantial evidence does not support the juvenile court's order asserting jurisdiction over her son, Steven L., under Welfare and Institutions Code section 300, subdivision (b). Mother contends her position is supported by the fact that the court initially placed Steven with her and, one month after issuing the jurisdictional order, terminated jurisdiction. Finding the court's orders appropriate under the circumstances and fully supported by the evidence, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Steven, born in June 2007, came to the attention of the Department of Children and Family Services (DCFS) in December 2010, when law enforcement personnel conducted a parole compliance search of the home where his father, also named Steven L. (Father), was residing. Officers found marijuana, drug paraphernalia, and an empty baggie containing methamphetamine residue on top of a dresser, as well as marijuana in the refrigerator. They also found a weapon-style knife in a place accessible to three-year old Steven. The home was in "poor condition[]" and had a "bad odor." The living room was in "disarray" with "tools, clothes, and toys all over." The items strewn about included pornographic magazines. The bathroom was dirty and smelled of urine, and the toilet had not been recently flushed. The kitchen was dirty and the sink was filled with unwashed dishes. The shirt Steven was wearing was dirty and he said he was hungry. Father said he had been caring for his son for two days. He admitted the marijuana found in the home was his and that he had smoked marijuana that morning. The caseworker noted that Father had multiple tattoos denoting gang membership. Father was taken into custody. As Father was the only person home with Steven, the boy was taken into protective custody.
Father was living with his mother and brother in his mother's home.
The search took place during morning hours.
Father remained incarcerated throughout the proceedings and was expected to remain in prison until at least February 2012. He is not a party to this appeal.
Mother, who lived separately from Father, was located and questioned. She stated Father had recently been released from serving a prison sentence and informed her of his desire to spend time with his child. Mother had left Steven with Father, intending that he stay a week. Asked if she knew about Father's current drug usage, Mother said "not really," although she admitted she was aware he had been arrested in the past for possession of illegal drugs. She claimed ignorance of the current state of the grandmother's home and Father's living conditions. She said if she had been aware of Father's current drug use and the condition of the home she would not have allowed Steven to visit. The caseworker released Steven to Mother.
Mother was living with a paternal aunt at the time of the detention and moved in with her sister in January 2011.
At the December 2010 detention hearing, the court found prima facie evidence that Steven was a person described by Welfare and Institutions Code section 300, subdivision (b). DCFS was granted temporary care of the child and directed by the court to place him with Mother.
Interviewed for the jurisdictional report, Mother denied knowing about Father's current marijuana use, his possession of marijuana or the presence of a weapon in his home. Although she and Father had been together for approximately five years (2005 to 2009), she claimed to have no knowledge of Father's criminal record, other than a stolen vehicle charge. Mother said that when she had last lived in the grandmother's home in 2009, she was the only person who kept it clean. She stated the home was clean when she last visited in October 2010, and Father subsequently told her it remained clean. Mother admitted she "desperately wanted to believe that [Father] had changed and that his time in prison had reformed him." The caseworker expressed skepticism about Mother's ignorance of Father's drug use, as he had been arrested numerous times during the period they were together. Father's record for the period between 2005 and 2009 included multiple arrests and/or convictions for, inter alia, grand theft auto, possession of a controlled substance, possession of drug paraphernalia, possession of burglary tools, and possession of marijuana. DCFS recommended that Steven remain with Mother and that Mother receive family maintenance services.
Mother informed the caseworker that she used Xanax for panic attacks and that she was depressed about her situation. Mother's possible mental health issues were not the subject of the jurisdictional allegations.
Father's extensive criminal history also included arrests and/or convictions for burglary, vandalism, taking a vehicle without the owner's consent, assault with a firearm on a police officer, evading a peace officer, disorderly conduct, carrying a concealed dirk or dagger, and manufacture or possession of a dangerous weapon.
At the February 2010 jurisdictional hearing, Mother testified that after Father was released from incarceration in November 2010, he expressed interest in spending time with his son. They agreed Steven would spend every other week with Father. Steven visited Father twice. Mother had not noticed anything amiss when he was returned. Mother had not personally dropped Steven off at the house for the visits. The grandmother (Father's mother) picked him up. When she and Father were involved in a romantic relationship, Mother lived in the house and was the only person who cleaned. Father did not help and was "never there." Father had used marijuana when he and Mother were together, but she had not observed him use it around Steven. She was unaware that Father had continued to use marijuana after his release. She was aware of his gang affiliation.
It was unclear from Mother's testimony whether she meant twice before the December 2010 visit or twice including that visit.
After the close of evidence, Father's and Steven's counsel argued that there was insufficient evidence of a substantial risk of future harm to support jurisdiction. Mother's counsel asked the court to strike all allegations pertaining to Mother, contending she had no knowledge of Father's wrongful activities or living conditions and had only been trying to foster a relationship between the boy and his Father. Counsel for DCFS argued in favor of the petition, which contained allegations related to both Father and Mother under section 300, subdivision (b) (failure to protect). The court made the following jurisdictional findings with respect to Father: "[Father] created a detrimental and endangering home environment for the child in that marijuana and a knife were found in the child's home within access of the child"; "[Father] is a current user of marijuana which renders [him] incapable of providing regular care for the child"; "[o]n 12/02/2010, [Father] possessed, used, and was under the influence of marijuana while the child was in [Father's] care and supervision"; and Father's home "was found to be in a filthy and unsanitary condition." With respect to Mother, the court found that she "knew or reasonably should have known of [Father's] substance abuse and failed to take action to protect the child" and that she "knew or reasonably should have known of the condition of the home and failed to take action to protect the child."
With respect to disposition, counsel for Mother asked the court to terminate jurisdiction and issue an order giving Mother sole legal and physical custody, with monitored visits for Father. Counsel for Steven agreed with the recommendation. Counsel for DCFS asked that the matter be put over so that his client could address termination of jurisdiction. The court continued the dispositional phase of the hearing to permit DCFS to submit an additional report.
Under section 362.4, the juvenile court, when it terminates jurisdiction over a case, may issue an order "determining the custody of, or visitation with, the child." The juvenile court's section 362.4 order may be enforced or modified by the family court. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196, 208-209; In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) Custody orders issued under section 362.4 are sometimes referred to as "exit" orders (In re Kenneth S., Jr., supra, at p. 1354) or "family law" orders.
In the March 2011 addendum report, DCFS recommended against terminating jurisdiction and issuing an exit order. The caseworker reported Mother described Steven's behavior as "hyper and fearless" and reported that Mother appeared overwhelmed by caring for him. The report noted that Mother had suffered an anxiety attack a week earlier.
At the March 2011 dispositional hearing, counsel for Mother renewed the request to terminate jurisdiction. She reported that Mother did not need or want DCFS services and that Mother believed continued DCFS involvement would only cause her further stress. Counsel for Steven deferred to Mother's counsel's recommendation. Counsel for Father disagreed, arguing termination of jurisdiction would deprive Father of the opportunity to obtain reunification services. Counsel for DCFS argued that both parents would benefit from services. The court, concluding that failure to provide services to the parents would not be detrimental to Steven, terminated jurisdiction, issuing an exit order giving the parents joint legal custody, Mother sole physical custody, and Father monitored visits. Mother appealed.
DISCUSSION
Mother contends on appeal that the court's finding of jurisdiction was unsupported. Mother points to the court's actions at the dispositional hearing terminating jurisdiction and issuing an exit order -- as "an implied finding there was never a current or future risk of harm to the child." We conclude that under the facts of the case, there was nothing inconsistent in the court's decision to assert jurisdiction in February and terminate it a month later, after issuance of the exit order.
In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving by a preponderance of the evidence that the minor comes under the juvenile court's jurisdiction. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) On appeal from a jurisdictional order, "we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings." (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)
The court found jurisdiction appropriate under section 300, subdivision (b). This provision permits the court to adjudge a child a dependent of the juvenile court where: "The 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, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's . . . substance abuse." A true finding under subdivision (b) requires proof of: "(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.) "The third element . . . effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future." (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) "[T]he consensus of the courts . . . has been that a court cannot exercise dependency jurisdiction under this subdivision where the evidence shows a lack of current risk." (In re J.N. (2010) 181 Cal.App.4th 1010, 1023.)
The evidence here established that Father endangered Steven by maintaining his home in an unsanitary state and leaving a weapon and drugs in places accessible to the child. In addition, by using marijuana at a time when the boy was under his sole care, Father impaired his own mental faculties and hampered his ability to look after Steven, who was at an age when he needed constant supervision. Mother did not dispute those facts below and does not dispute them now. Nor does she dispute that Father would continue to be an unreliable caretaker and a danger to the child whenever Steven visited. As "'[a] jurisdictional finding good against one parent is good against both'" and a minor may properly be adjudged a dependent "'if the actions of either parent bring [him] within one of the statutory definitions of a dependent'" (In re X.S. (2010) 190 Cal.App.4th 1154, 1161, quoting In re Alysha S. (1996) 51 Cal.App.4th 393, 397), Steven's status as a dependent child would not be changed whether or not the allegations pertaining to Mother were well-founded.
Several courts have said that a parent's occasional use of marijuana, standing alone, does not support the finding of serious harm or serious risk of harm required for jurisdiction under section 300, subdivision (b). (In re Alexis E. (2009) 171 Cal.App.4th 438, 452-453; In re David M. (2005) 134 Cal.App.4th 822, 829-830; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346.) The court in Alexis E. upheld a finding of jurisdiction based in part on substantial risk of harm from the father's use of marijuana, however, because the father smoked marijuana twice a day and the evidence established that his habit caused him to neglect his children. The court had "no quarrel" with the father's assertion that "his use of medical marijuana, without more, cannot support a jurisdiction finding." (In re Alexis E., supra, at p. 453, italics omitted.) However, the record in that case "set out the 'more' that supports the [juvenile] court's finding that [the father's] use of medical marijuana presents a risk of harm to the minors." (Ibid.)Similarly here, the court could reasonably find that Father's marijuana use led him to neglect Steven based on the evidence that when police searched the home, Steven was hungry and dirty and the child's environment and surroundings were in an unhealthy and unsanitary condition.
Moreover, we believe the allegations pertaining to Mother did support the court's jurisdictional findings under the applicable risk of future harm standard. The evidence established that Mother had been involved in a five-year relationship with Father and was living with him at a time when Father was arrested and/or convicted multiple times for possession of drugs and drug paraphernalia. Mother admitted having seen Father use marijuana. She knew of his gang ties. She was aware that he and the grandmother made no effort to keep their home in a suitable condition for a toddler. Despite this background, when Father was released from incarceration, Mother not only agreed to allow him visitation with his son, but entered into what was effectively a shared custody arrangement where the child was left with Father for a week at a time, every other week. The court could reasonably find that Mother was aware or should have been aware that Father, a regular drug user, could not be trusted to supervise a three-year old for such an extended period. The court could further reasonably conclude that absent Mother's presence, conditions in Father's residence were likely to be unsuitable for a child, and that she should have undertaken efforts to ensure she was not placing the boy in an unsafe and unsanitary environment.
As Mother contends, evidence of a risk of future harm is absent where a parent unknowingly leaves a child with an irresponsible caretaker, and the evidence indicates he or she will not make that same mistake again. This is illustrated by the court's decision in In re Savannah M., where the parents had twice left their twin girls in the care of a family friend during an evening of drinking and socializing. When they returned the second time, they caught the man in the process of sexually abusing one of the girls and immediately called the authorities. The court found that "reasonable parents should be permitted to trust, and have faith in, a family friend they have known for two years who had otherwise never given them any reason to doubt his good intentions toward their or other children." (In re Savannah M., supra, 131 Cal.App.4th at pp. 1396-1397.) Moreover, the agency "could not reasonably find" the parents "would ever allow [the abuser] to care for their daughters in the future." Accordingly, the court held that there was no evidence to support a finding that either daughter was at substantial risk of future serious physical harm from being placed in the care of the abuser or another custodian who would sexually abuse them. (Id. at pp. 1397, 1399; accord, In re Rocco M., supra, 1 Cal.App.4th at p. 824, quoting In re Jennifer P. (1985) 174 Cal.App.3d 322, 326 ["[T]he past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; '[t]here must be some reason to believe the acts may continue in the future'"].)
Here, in contrast, Mother had reason to be aware before she left Steven with Father that Father could not be trusted to care for a child for an extended period. She also had reason to be aware that the home in which Father lived was not generally kept in a condition suitable for a young child. Nevertheless, she allowed Steven to stay with Father for a week at a time, choosing to believe Father when he said the home was clean because she "desperately wanted to believe he had changed" his criminal behavior. When confronted with the conditions in which her son was being kept, she attempted to justify her actions and gave inconsistent stories concerning her knowledge of Father's past illegal activity, at one point admitting she was aware he had been arrested for drug-related offenses and later denying it. The court could reasonably conclude that despite Mother's expressed intentions, she would be unable or unwilling to insist that Father's future contact with his son be monitored if the court did not assert jurisdiction and put a custody order to that effect in place.
Mother contends the court's decision to leave Steven in her care is proof that there was no risk of future harm. In determining disposition, the court is precluded from taking custody from a parent unless "[t]here is or would be 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).) Here, the risk centered around the likelihood that Mother would be persuaded to place Steven in the care and custody of Father at some future point. As long as Father was imprisoned, that could not occur. The danger would not resurface until he was released, apparently in 2012 at the earliest. Accordingly, the court's decision to leave Steven in Mother's custody and put in place an exit order precluding Father from having unmonitored contact with Steven was appropriate. The court's decision to terminate jurisdiction did not constitute an implied finding inconsistent with its factual findings and its assertion of jurisdiction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: EPSTEIN, P. J. WILLHITE, J.