Opinion
B232816
02-10-2012
In re C.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MICHAEL B., Defendant and Appellant.
Gerard McCusker, 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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85240)
APPEAL from orders of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Affirmed.
Gerard McCusker, 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.
Michael B. (Father) appeals from the juvenile court's jurisdictional and dispositional orders of April 21, 2011, adjudging minors C.B. and G.B. dependents of the court pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect). Father contends that the allegation as to him under subdivision (b) is not supported by substantial evidence because there is no evidence that Father's use of marijuana rendered him unable to provide regular care to the minors resulting in a substantial risk that the minors will suffer serious physical harm or illness. Jessica S. (Mother) is not a party to this appeal. We conclude the evidence is sufficient to support the court's jurisdictional and dispositional orders as to Father and affirm the orders of the court.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
The Department of Children and Family Services (DCFS) opened and closed five referrals with respect to Mother's care of C.B. and G.B. from 2006 to 2010. A sixth referral opened in September 2010 regarding an allegation of general neglect by Mother was pending when the family came to the attention of DCFS on November 16, 2010. On that day, Mother was arrested by police for child endangerment after she was reported to the Los Angeles Police Department for using excessive force on C.B.
On November 17, 2010, 26-year-old Father told DCFS that C.B. and G.B. were his daughters; he had been separated from Mother for several years; Mother moved from place to place, so it was hard for him to maintain regular contact with the minors; he last had contact with the minors the previous month; and when he had lived with Mother they had not physically disciplined the minors, but used time-outs. Father denied knowing that Mother used physical discipline. Father admitted that he had been arrested for possession of marijuana as a juvenile, but stated that the last time he had used marijuana was when he was 17 years old. He denied current drug usage and agreed to drug test.
Later, after test results came back positive for marijuana, Father changed his story and told DCFS that he had started smoking marijuana when he was 14 years old. He smoked marijuana three times a week until he was 25 years old. He told DCFS that he had not used marijuana for the past nine months except for one incident a week before the minors were detained when he unknowingly drank marijuana tea at a party. He also stated that in 2002 he had used methamphetamine 10 times in one month but had never used it again. Father stated that he would be willing to complete Narcotics Anonymous and any other court-ordered programs to ensure the safety and well-being of the minors. Father told DCFS that Mother had mental health issues, had been hospitalized, and took Prozac. Father said that when he was living with Mother, they had spanked the minors on their buttocks as a form of discipline, but had never left marks on them. After they separated, the minors had told him that Mother would lock herself in the bathroom for hours when she was "'stressed out,'" and she had hit the minors, including once on C.B.'s face with a spoon. When Father asked Mother about marks on the minors, she told him they had hurt themselves while playing. He said Mother constantly moved, he argued with Mother on July 4, 2010, the last time he saw the minors, and Mother never wanted to accept his help.
On November 19, 2010, DCFS filed a petition pursuant to section 300, subdivision (a) (serious physical harm); subdivision (b) (failure to protect); and subdivision (j) (abuse of sibling) on behalf of C.B., born in 2003, and G.B., born in 2005. The petition alleged under section 300, subdivision (a); subdivision (b), count 1; and subdivision (j) that on November 16, 2010, Mother struck C.B.'s legs and back, pushed her to the ground, picked her up from the ground by her hair, and had struck C.B. on previous occasions.
At the detention hearing on November 19, 2010, the juvenile court found that Father was the presumed father of C.B. and G.B. Mother told the court that Father had not offered support or help for the minors in the past four years, that he did not have a steady job or residence, and that he "smokes dope." The court detained the minors from Mother and ordered them released to Father that day. Father tested positive for marijuana on November 17, 2010, and December 8, 2010.
Maternal grandfather told DCFS that Mother had been institutionalized when she was young because she was "'very violent.'" He said that when the minors and Mother were visiting him two months earlier, G.B. had dropped a plate. Mother then yelled at G.B., called her "'stupid,'" hit her, and had taken her outside and beaten her. Maternal grandfather believed Mother needed psychiatric help.
C.B. told DCFS that on November 16, 2010, Mother had hit her while she was in the shower and on the way to school and had picked her up by her hair. The minors reported that Mother had hit them many times in the past with belts, spoons, shoes, and other objects. Mother had struck C.B. in the face with a belt, causing her nose to bleed. On another occasion, Mother had pushed C.B. on the couch, causing her to fall and her nose to bleed. The minors told DCFS Mother called them names, cursed at them, and told them she does not want them. C.B. was afraid of Mother and did not want to go back home with her. The minors said that they wanted to stay with Father.
DCFS reported that Father was living at the home of paternal grandfather and his wife, that he has the financial and emotional support of paternal grandfather and his wife, and that he "appears to be dedicated to making sure that his children are provided with the basic necessities as well as the emotional stability." DCFS noted that although Father had not been forthcoming about his current marijuana use, he was cooperative with DCFS and had complied with all its requests, and that the minors were doing well in his care. Subsequently, DCFS reported that Father missed tests or submitted diluted or positive tests for marijuana in December 2010 and January 2011 on four occasions, and that he continued to deny marijuana use even though the test results showed that he continued to use after the minors were released to his care.
On January 4, 2011, DCFS filed a first amended petition, which as sustained by the juvenile court at the jurisdictional hearing on February 14, 2011, alleged under section 300, subdivision (b), count 2, that on November 17, 2010, and December 8, 2010, Father tested positive for marijuana; Father is a recent user of marijuana which renders him incapable of providing regular care and supervision of the minors; and Father's illicit drug use, if continued, endangers the minors' physical and emotional health and safety and places the minors at risk of physical and emotional harm and damage. At the February 14, 2011 jurisdiction hearing, Mother submitted a waiver of rights that was accepted by the juvenile court. The court ordered Father to complete a parenting education program, to submit to random drug tests, to drug test on demand, not to use marijuana, and to complete a drug program if he missed a test or tested positive. On February 22, 2011, the court granted Father's subsequent application for rehearing and order. On March 7, 2011, Father filed a notice of appeal from the court's February 14, 2011 orders, which appeal was subsequently dismissed on his request.
On March 25, 2011, the juvenile court dismissed the first amended petition. DCFS filed a second amended petition, adding to the section 300, subdivision (b), count 2 allegation that Father tested positive for marijuana on January 20, 2011, and February 18, 2011. DCFS later reported that Father tested negative for drugs three times in February 2011 and five times in March 2011.
On April 21, 2011, DCFS filed a third amended petition, adding to the section 300, subdivision (b), count 2 allegation that Father tested positive for marijuana on November 17, 2010, December 8, 2010, January 7, 2011, January 19, 2011, and February 18, 2011; that he has a history of illicit drug use, which includes methamphetamines and marijuana; that he is a "current recent" user of marijuana that renders him unable to care for the minors; and that Father's illicit drug use "if continued" endangers the minors' physical and emotional health and safety and places them at risk of physical and emotional harm and damage.
At the jurisdictional and dispositional hearing, Father's counsel submitted evidence of a hair follicle test taken on March 18, 2011, that showed a negative result for marijuana use for the previous 60 to 90 days. Father's counsel argued that Father had also tested negative six times from February 2011 to April 2011. DCFS argued and submitted test results that showed that Father's marijuana level spiked up from the January 19, 2011 to the February 18, 2011 test, and that he was a "no show" for the March 9, 2011 test. After hearing argument, the juvenile court sustained the allegations of the third amended petition against Father and ordered family maintenance services for Father, including a drug rehabilitation program with random drug testing and parent education, with Father retaining physical custody of the minors.
Father filed an appeal from the jurisdictional and dispositional orders of the juvenile court.
DISCUSSION
Father challenges the sufficiency of the evidence as to the juvenile court's finding of jurisdiction under section 300, subdivision (b). We conclude that sufficient evidence supports the court's finding of jurisdiction.
The juvenile court's jurisdictional finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule 5.684(f).) "'"When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]"' [Citation.] While substantial evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation or conjecture cannot support a finding. [Citation.]" (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258-1259.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction 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 . . . inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse."
"A jurisdictional finding under section 300, subdivision (b) requires: '"(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the child, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.] 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 (e.g., evidence showing a substantial risk that past physical harm will reoccur).' [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135.)
"Section 300.2 provides that the purpose of the provisions in the Welfare and Institutions Code relating to dependent children is to provide protection for children being harmed or who are at risk of being harmed." (In re Alexis E. (2009) 171 Cal.App.4th 438, 452.) Section 300.2 further provides that "[t]he provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child."
Father contends that there was insufficient evidence of serious harm or substantial risk of serious harm to support jurisdiction under section 300, subdivision (b) because his use of methamphetamine in 2002 before the minors' births did not subject them to a risk of harm, and his recent intermittent use of marijuana was not a source of actual or potential harm to the minors because there was no evidence that he used marijuana in the minors' presence or that they were aware of his marijuana use. Father also argues that the juvenile court placed the minors with him even though it was aware of his drug history and ordered him to submit to drug testing. Father cites In re Alexis E., supra, 171 Cal.App.4th 438; In re David M. (2005) 134 Cal.App.4th 822; and Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.) for the proposition that drug use, without more, does not support a finding of jurisdiction pursuant to section 300, subdivision (b). Thus, Father claims that because there was no evidence that he endangered the minors as he continued to use marijuana, it was error for the court to assert jurisdiction.
Here, regardless of the outcome of Father's appeal, the juvenile court's assertion of jurisdiction over the minors is warranted based on Mother's actions alone. (In re James C. (2002) 104 Cal.App.4th 470, 482 [the juvenile court can declare jurisdiction over minors based on the actions of one parent].) In any event, we conclude that the cases cited by Father do not assist him but instead support the court's finding of jurisdiction based on his continuing use of marijuana.
In In re Alexis E., the appellate court held that sufficient evidence supported section 300, subdivision (b) jurisdiction over three minors based on the father's use of medical marijuana because the evidence showed there was more than just "the mere use of marijuana" by the father. (Alexis E., 171 Cal.App.4th at pp. 451-453.) The father had a history of drug abuse; the father exposed the minors to secondhand marijuana smoke; and the father's marijuana use made him irritable and impatient and negatively affected his demeanor toward the minors and his girlfriend. (Ibid.)
Similarly, here, there was more than just evidence of mere marijuana use by Father. Father has not been forthcoming with DCFS, changing his story several times. At first he denied current drug use and claimed he had stopped using when he was 17 years old. Later, when confronted with positive drug tests, he admitted to increasing usage until he stopped at the age of 25. Then, in what appeared to be an attempt to avoid responsibility for his actions, he claimed that he had been clean for the past nine months but inadvertently imbibed marijuana tea a week before the minors were detained. Father appeared to acknowledge his need for help, agreeing to complete Narcotics Anonymous and other court-ordered programs to ensure the safety and well being of the minors. But on appeal he minimizes his drug use, arguing that it is, at the most, "intermittent," even though he has had five positive tests beginning in November 2010 and a recent spike in February 2011. And the evidence showed that he did not support the minors while he lived with or after separating from Mother; used physical discipline on the minors when he lived with Mother; was aware that Mother had mental health issues, but did nothing to help the minors when they told him that Mother hit them and showed him marks on their bodies; did not have a full-time job; and did not have a permanent residence.
In re David M., supra, 134 Cal.App.4th 822, also does not forward Father's argument. In that case, the appellate court reversed the juvenile court's jurisdictional order because there was no evidence tying the mother's marijuana use to actual harm or a substantial risk of serious harm to the minors. The evidence showed that the mother had an "unresolved" substance abuse problem in that she had used marijuana on at least one occasion while pregnant with the minor and had failed to obtain prenatal care at an early date in her pregnancy. (Id. at p. 829.) But the minor was healthy and tested negative for marijuana at birth, and the older son was healthy, well cared for and loved, and was being raised in a clean, tidy home. And the mother and father had been cooperative and compliant with services offered to the family. Before the jurisdictional hearing, the mother had tested negative for drugs 18 times over four and one-half months and any missed tests had been excused. (Id. at p. 830.) Here, unlike the mother in In re David M., who consistently tested clean before the jurisdictional hearing, there is evidence of a continuing, if not escalating, drug problem.
In Jennifer A., the appellate court concluded the evidence was insufficient to support the finding that returning the minors to the mother's custody would create a substantial risk of detriment pursuant to section 366.22. (Jennifer A., supra, 117 Cal.App.4th at p. 1346.) At the section 366.22 hearing, the evidence showed that the mother had complied "substantially" with the reunification plan, completed parenting courses and counseling and a drug treatment program, had been fully employed for two years and recently received a promotion, was cooperative with DCFS, had always acted appropriately, had displayed appropriate parenting skills, and had a close, loving relationship with the minors. (Jennifer A., supra, at pp. 1326-1327.) There was no evidence of a history of mental illness, incarceration, or a substance abuse problem affecting her parenting skills. The court found that the mother's one positive drug test and several missed or diluted tests between the 12-month review report/hearing and the 18-month review report/hearing did not mean that "the children's return to [her] would create a substantial risk of detriment to the physical or emotional well-being of the children in light of the factors in this case militating in favor of their return." (Id. at p. 1346.) DCFS testified that it did not "'see any danger to the children based upon that one positive test,'" that the mother had never appeared under the influence of drugs, and that she "did not have a drug problem that affected her parenting skills." (Ibid.) And the minors had not been removed from the mother's custody in the first place due to the mother's drug use, but because she had left them alone on one occasion to go to work, believing that the father would arrive shortly to care for them. (Id. at pp. 1343-1344.)
Section 366.22, subdivision (a) provides that after the child has been removed from the custody of his parent the permanency review hearing shall occur. It further states that: "The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child."
Here, on the other hand, the allegation against Father was based on his chronic drug use, which was continuous and possibly escalating. And DCFS continued to recommend that the amended petition be sustained, that Father be ordered to submit to weekly drug tests, and that he be ordered to complete an outpatient substance abuse program. Unlike the mother in Jennifer A., Father does not yet have a history of compliance with reunification services, including completion of parenting, drug testing, and drug programs.
We conclude that the juvenile court reasonably could find that Father still was struggling with drug issues that rendered him unable to provide regular care to the minors resulting in a substantial risk that the minors will suffer serious physical harm or illness.
DISPOSITION
The juvenile court's jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. I concur:
CHANEY, J. ROTHSCHILD, J., Dissenting.
I respectfully dissent.
As to Father, the petition alleged as the sole ground for jurisdiction that: "On 11/17/10, 12/08/10, 01/07/11, 1/19/11, and 02/18/11 the [children's father] tested positive for marijuana. The children's father has a history of illicit drug use which includes methamphetamines and marijuana. The father is a current recent user of marijuana; which renders the father incapable of providing regular care and supervision of the children. The father's illicit drug use if continued endangers the children's physical and emotional health and safety and places the child at risk of physical and emotional harm and damage."
The record contains no evidence of a substantial risk of serious physical or emotional harm to the children resulting from their father's marijuana use. There is, for example, no evidence that Father ever used marijuana in the children's presence or that he was ever under the drug's influence when the children were in his care. Since marijuana use was the only ground for jurisdiction alleged as to Father, the jurisdictional order as to Father should be reversed.
ROTHSCHILD, J.