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In re J.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 31, 2012
No. B234043 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B234043

01-31-2012

In re J.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.B., Sr., Defendant and Appellant.

Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK86334)

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Mackel, Judge. Affirmed and remanded.

Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Father, J.B., Sr., appeals from a dispositional order removing his son, J.B., Jr. (J.B.), from his custody. His principal contention is that the dependency court's order was not supported by substantial evidence. He also claims that the dependency court failed to comply with the Indian Child Welfare Act (ICWA). We conclude sufficient evidence supported the trial court's removal order, but agree that the case must be remanded for ICWA compliance.

FACTS AND PROCEDURAL HISTORY

At the center of these proceedings is a case of marijuana poisoning suffered by two children living with father and mother, V.S. We briefly identify the members of the household and then proceed to the facts that brought the family to the attention of the Department of Family and Children Services.

Father and mother lived together with five children. At the time dependency proceedings were commenced, the children's ages ranged from 14 months to 11 years. Father was the biological father of only one, 14-month-old J.B. Albert O. was the biological father of three of the children: E.O., A.O., and M.O. The whereabouts of the biological father of the fifth child, D.S., were unknown. The present appeal is taken only by Father and only as to the dispositional order for J.B., his biological child. Other family members, however, play important roles in the events of this case, as we shall explain.

In the evening on January 24, 2011, 11-year-old D.S. and 10-year-old A.O. each consumed part of a chocolate chip cookie that, unknown to them, had been laced with marijuana. After they had gone to bed, D.S. complained of shaking and not being able to feel her legs and arms. A while later, A.O. also became symptomatic. Both girls were taken to the hospital, where they were diagnosed with marijuana poisoning. They were treated and released to mother.

Over the next few days the circumstances under which D.S. and A.O. obtained the cookie began to unfold. Initially, mother told D.S. to tell school authorities that D.S. had removed the cookie from her backpack, the inference being the source of the cookie was unknown. D.S. told that story at school and repeated it to police officers investigating the incident. After police interviewed D.S. separately and then confronted mother, mother admitted she had told D.S. to lie and that the real events were different. Mother explained that on January 24th she left D.S. and A.O. at home, under the care of the children's maternal grandfather. Mother was pulling out of the driveway when a friend stopped by and handed her a marijuana cookie in a ziplock baggie. She understood that the cookie was for maternal grandfather who also lived in the household. She returned to the house and put the cookie on the kitchen counter. When father arrived and saw the cookie, he put it on top of the refrigerator. Mother did not know how the girls got the cookie. Father generally corroborated mother's description but added that he put the cookie and some other sweets on the refrigerator because it was too late for D.S. and A.O. to be eating "sweets."

Still another version emerged: A.O. told a social worker that the cookie and some pretzels were on a kitchen counter. A.O. said that D.S. asked the maternal grandfather if she could have the cookie and he gave permission. D.S. gave a similar account to the social worker but added that the cookie and pretzels were on top of a loaf of wheat bread on the counter.

The next day mother was arrested. (She eventually pled no contest to child endangering and dissuading a witness.) While under arrest, she called Father and advised him that social workers were coming to the house to take the children away. Father took J.B. and D.S. and ran out the back door.

On January 31st, the Department filed a petition under Welfare and Institutions Code section 300 subdivision (b): count b-1 alleged that mother and father's conduct constituted child endangerment, and count b-2 alleged that father's history of drug abuse created a risk to the children. Eventually the second count was dismissed. At the detention hearing on January 31, J.B. and D.S. were detained, and the three other children were released to their biological father. Family reunification and family maintenance services were ordered.

In a report prepared for the jurisdiction hearing on March 10, 2011, the Department reviewed the series of events described above and also added information concerning parents' drug usage. As it relates to father, mother stated that he had a medicinal marijuana license but it had expired. He suffered from seizures, and the marijuana was used medicinally. Father would usually smoke two times a week before bed, the last time shortly before the children were detained. Father generally agreed with mother's description and said he was no longer using marijuana. The court found jurisdiction, continued reunification and maintenance services, and set the matter for a disposition hearing. Father does not complain about the orders issued at the original detention or jurisdiction hearings.

At the disposition hearing, the court terminated jurisdiction over E.O., A.O. and M.O. whose biological father was given custody under a family law order. As to J.B. and D.S., the court found by clear and convincing evidence that a substantial danger existed to the physical health of the minors if they were returned home. The court also found that reasonable efforts were made to avoid removal. D.S. and J.B. were placed with the Department.

Father appeals from the dispositional order as to J.B., only.

DISCUSSION

A. Substantial Evidence Supported the Dependency Court's Dispositional Order Removing J.B. from Father and Mother's Care

1. Standard of Review

Father's principal contention is that the dependency court erred in removing J.B. from his parents' care. A dependency court's determination that a child will suffer a substantial risk of harm if returned to a parent is reviewed by the appellate court under the substantial evidence test. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Although the Department must demonstrate by clear and convincing evidence to the dependency court that removal of the child is justified because of a danger to the child's health (Welf. & Inst. Code, § 361, sub (c)), that is not an appellate standard of review. On appeal from a judgment that must be based upon clear and convincing evidence, "'"the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to respondent's evidence, however slight, and disregarding appellant's evidence however strong." [Citation.]'" (In re E.B. (2010) 184 Cal.App.4th 568, 578.)

2. Analysis

Father's contention is predicated on the following: the cookie was not father's, mother had possession, the cookie was intended for the maternal grandfather, father put the cookie out of the children's reach, father had no positive drug tests, and this was an isolated incident about which both mother and father had expressed profound regret. The children were not in fact at risk.

Although the dependency court did not expressly address each of these facts, the court emphasized the extreme seriousness of marijuana poisoning. This was not a case where drugs were theoretically in reach of a minor but no physical harm had occurred; rather, here the marijuana was actually ingested by pre-teenagers, with attendant hospitalization, police involvement, and school intervention. In addition to the court's express findings, we also imply findings which support the trial court's determination that J.B. could not be safely returned to father when those findings reasonably are supported by the evidence. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 289 ["[G]iving full deference to the trial court's implied findings under the venerable substantial evidence rule, we must ask ourselves: What was the evidence [the child] could not be returned safely?"].)

Here there was substantial evidence that father knew more about what was happening than he let on, and at a minimum was not fully candid with the social worker. Although he said that he placed the cookie on top of the refrigerator, this was debunked by both D.S. and A.O. who said it was on the kitchen counter, apparently with pretzels and wheat bread. Even if the top of the refrigerator story was credited, the dependency court could have disbelieved that father placed the cookie there to prevent the girls from eating sweets. Instead, the dependency court could have reasonably found that father knew very well the cookie contained marijuana, that it was intended either for mother or maternal grandfather, and then allowed it to remain in the house in harm's way. Father's admitted use of marijuana on the property up to the time of the incident also suggested father knew more about the situation than he had acknowledged, and that father did not protect his children on this occasion and would be unable to do so in the immediate future.

In his reply brief and at oral argument Father cited In re Rocco M. (1991) 1 Cal.App.4th 814, for the proposition that past conduct alone is insufficient to remove a child from a parent's custody. Father is correct in his statement of the law but we disagree with its claimed application here. Rocco tells us: "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (Id. at p. 824.) Rocco also involved a child with access to drugs. The court found substantial evidence of future harm of drug ingestion because mother had placed or left "drugs in a location . . . where they were available to Rocco." (Id. at p. 825.) That description fits the present case and we agree with Rocco in affirming the dependency court's jurisdictional order: "In sum, we believe a trial court is entitled to infer that a child of Rocco's age is subject to a substantial risk of serious physical harm when he or she is placed in an environment allowing access to drugs, with nothing to prevent him from succumbing to the temptation to ingest them." (Ibid.) Rocco was 11 at the time of the incident, the same age as D.S. was here. Rocco did not ingest any drugs. D.S. - and A.O. - did. Under all the circumstances the trial court reasonably inferred that J.B. was currently at risk of serious physical harm in the absence of removal from the parents.

B. The Case Must Be Remanded for ICWA Compliance.

Father argues, the Department concedes, and we agree that the case must be returned to the dependency court for compliance with ICWA. We need not reverse under those circumstances, but only remand for the limited purpose of compliance. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385-386, contra, Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781 .)

DISPOSITION

The dispositional order removing J.B. from his parents' custody is affirmed, and the matter is remanded to the dependency court with directions that the dependency court direct the Department to comply with the notice provisions of ICWA. After proper notice under ICWA, if J.B. is determined to be an Indian child and ICWA applies to these proceedings, father is then entitled to petition the dependency court to invalidate any orders issued in violation of title 25 United States Code sections 1911, 1912, and 1913. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486.)

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

FLIER, J.


Summaries of

In re J.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 31, 2012
No. B234043 (Cal. Ct. App. Jan. 31, 2012)
Case details for

In re J.B.

Case Details

Full title:In re J.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

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

Date published: Jan 31, 2012

Citations

No. B234043 (Cal. Ct. App. Jan. 31, 2012)