Opinion
G045270 Super. Ct. No. DP020771
01-03-2012
In re ANTHONY J., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. GABRIEL S., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed in part, reversed in part, and remanded.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
When cocaine was found in the immediate proximity of the bed of a 10-month-old child, the authorities removed the child from the mother's home. The out-of-state father then came to California to retrieve his child. However, the court not only declared the child to be a dependent child of the court, it also found, pursuant to Welfare and Institutions Code section 361.2, subdivision (a), that it would be detrimental to the child to be placed in his father's care.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise specifically stated.
The father challenges both the order sustaining the allegations of the dependency petition as to him and the order denying placement of the child with him. We reverse the order sustaining the allegations of the petition as to the father, but not the order sustaining the allegations of the petition as to the mother. We also reverse the order denying placement of the child with the father. The record does not contain substantial evidence from which a reasonable trier of fact could find by clear and convincing evidence that placing the child with the father would be detrimental to the child.
I
FACTS
A. Background:
The father of two-month-old Anthony J. was unable to find work in California. So, he packed up the child and the mother of the child, to whom he was not married, and the three moved to Kansas. There, the father was able to find work as a dishwasher and the family took up residence with a maternal aunt. However, the relationship between the father and the mother did not work out. Consequently, in September 2010, about four months after the family had gone to Kansas, the paternal grandmother picked up the mother and child and took them back to her California home. The father remained behind to work.
In addition to the mother, the child, and the paternal grandmother, there were several other persons who lived in the family home in California. A paternal aunt, a maternal aunt, and a longtime friend of the father's family were also members of the household.
The paternal grandmother would call the father from California to give him updates, and tell him how the mother was treating the child. The father was worried about the child. He remembered that when he and the mother were residing in Kansas together, the mother would put the child in an infant carrier and bang the carrier up and down on the ground when the child was crying. The father would then intervene and take the child from the mother.
On January 17, 2011, the mother left the child at home and went out to see her boyfriend. When the paternal aunt went in search of a bib for the child, she came across cocaine in the mother's dresser drawer—about 12 inches away from the bed where the child slept. The paternal grandmother called the police.
The police took the child into protective custody. The mother was arrested the next day for willful child cruelty and possession of a controlled substance. When she was arrested, the mother admitted that the narcotics in the drawer were hers. She also admitted to using methamphetamine and marijuana. The child was placed in the home of the paternal grandmother.
On January 19, 2011, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition based on section 300, subdivisions (b) and (g). The following day, the court ordered the child detained.
B. Jurisdiction/Disposition Report:
SSA developed concerns that the paternal grandmother should have taken earlier action to protect the child. So, by February 18, 2011, the child had been removed from her home and placed in an emergency shelter home.
In its Feb. 18, 2011 jurisdiction/disposition report, SSA stated: "The paternal grandmother explained that once the mother moved [back] to California she continuously stated that she did not want to care for the child and she was more interested in dating 'cholos.' The paternal grandmother stated that she reported her concerns to the father and the father instructed her to continue to watch the mother and help out with the child. The paternal grandmother also reported that the father asked her to call him if the problems continued and he would come and take the child. The paternal grandmother reported the father did not know who to believe since the mother was telling him one thing and the paternal grandmother was telling him something different. . . . The paternal [grandmother] reported that the mother would leave the child with a neighbor who was allegedly under the influence while she was caring for the child and the child would come back home with bumps and bruises." In addition, the paternal grandmother reported, inter alia, that the child often had dirty diapers for hours at a time and constantly suffered from diaper rash. The mother would change the child's diaper only when the paternal grandmother or another in the house told her to.
According to the paternal grandmother, on one occasion, the mother had left a hot iron on the floor while it was still plugged in and the child was crawling around in the room. He grabbed the iron and burned several of his fingers, resulting in blisters. The paternal grandmother further reported that she had seen the mother shaking the child rapidly; his head was moving back and forth violently and he was screaming and crying. The paternal grandmother had witnessed such episodes more than once and had told the mother not to treat the child that way because she could hurt him.
The family friend who rented a room in the home and the maternal aunt corroborated the reports about the mother's neglect of the child and said that the mother used drugs. The maternal aunt told the police that the mother had been using narcotics for years and that she spent most of her time with her boyfriend, purportedly a drug dealer. The paternal aunt, who had found the cocaine, reported that she had never seen the mother use narcotics. However, she had heard the mother talking on the telephone about purchasing the same.
The paternal aunt also said that once, while the mother was busy texting, the child pulled on the cord of a portable heater. The heater fell on his head, causing swelling and a bruise. In addition, she confirmed that the mother had left the child with an intoxicated neighbor, under whose supervision the child suffered a bloody nose.
C. Subsequent Events/Proceedings:
The assigned social worker made telephonic contact with the father on February 22, 2011. The father made clear that he wanted his child and he drove to California to tend to the matter.
The social worker met with the father on February 24, 2011 and discussed the petition, the detention report, and the jurisdiction and disposition report with him. The father acknowledged that he had smoked marijuana in the past, but stated that he had stopped using drugs when he learned the mother was pregnant with the child. According to the social worker, the father reiterated that he wanted his child back and said that he did not need any services from SSA.
The father appeared in court on March 8, 2011 and made a motion for presumed father standing. The court granted the motion.
In its second addendum report, filed March 21, 2011, SSA recommended that the petition be sustained, dependency be declared, and reunification services be offered to the parents. SSA was concerned that the father may have been aware of the ongoing neglect of the child, but had taken no action to protect him. SSA was also concerned that the father had used drugs in the past and that there had been an allegation that he had used them as recently as December 24, 2010. In addition, SSA emphasized that the father had provided no documentation of successful completion of a drug treatment program and that the father would benefit from services.
By the March 28, 2011 trial date, the father had left Kansas and taken up residence with the paternal grandmother in California. He argued that there was no evidence that he had had actual knowledge of what happened when the child was in the mother's care. The father further argued that there was no evidence he had a substance abuse problem, inasmuch has he had not used drugs after the mother became pregnant. In addition, he emphasized that there was no evidence of causation and he had no criminal history. He asserted there was simply no risk in placing the child in his care.
On the motion of SSA and the father, the court dismissed the section 300, subdivision (g) count of the petition. The court found the section 300, subdivision (b) allegations of the petition, as amended by interlineation and by the court, to be true by a preponderance of the evidence. Those included allegations that the father reasonably should have known about the mother's drug use and failed to protect the child, and that the father himself had an unresolved substance abuse history. It declared the child to be a dependent of the court. It found by clear and convincing evidence that section 361, subdivision (c)(1) applied and that to vest custody of the child with the parents would be detrimental to the child.
The court further found, pursuant to section 361.2, subdivision (a), that to place the child with the father "would be detrimental to the safety, protection, physical or emotional well-being of the child." In making this finding, the court made reference to the father's failure to protect the child and to sustained allegations of unresolved drug issues. The father filed a notice of appeal.
II
DISCUSSION
A. Jurisdictional Findings:
"A juvenile court may determine a child is subject to the court's jurisdiction if it finds by a preponderance of the evidence that '[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 a parent's failure or inability to adequately supervise or protect the child, a parent's failure to provide the child with adequate food, clothing, shelter, or medical treatment, or a parent's inability to care for the child due to the parents' mental illness, developmental disability, or substance abuse. (§ 300, subd. (b).)" (In re David M. (2005) 134 Cal.App.4th 822, 829.)
"'The statutory definition [of a person described in section 300, subdivision (b)] consists of three elements: (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.' [Citation.] The third element 'effectively requires a showing that at the time of the jurisdiction 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). [Citations.]' [Citation.]" (In re David M., supra, 134 Cal.App.4th at p. 829.)
"We review the juvenile court's jurisdictional findings for sufficiency of the evidence. [Citations.] We review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible. [Citation.] 'However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, "[w]hile substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]." [Citation.] "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." [Citation.]' [Citation.]" (In re David M., supra, 134 Cal.App.4th at p. 828.)
Here, the father does not challenge the sufficiency of the evidence to support the jurisdictional findings against the mother, who pleaded no contest to the section 300, subdivision (b) allegations against her. However, he argues there was no substantial evidence to show that his actions had caused the child to suffer serious physical harm or illness in the past or would put the child at a substantial risk of suffering such harm or illness in the future.
The father himself stated that when the mother and child lived with him, he would observe the mother banging the infant carrier, with the child inside, up and down against the ground. In such instances, he would intervene and take the child away from the mother. This shows that he knew that there were times when the mother did not treat the child properly and that the child should not be left alone in her care. However, it does not show that the father had been put on notice that the mother might expose the child to narcotics. Moreover, just as the father had been vigilant when the mother and child lived with him, his mother and sister were on hand to watch out when the mother and child then lived with them. Even though his mother, the paternal grandmother, informed him that she had concerns regarding the mother, he continued to rely on her to intervene and be of assistance as necessary in an extended family situation. He told her to call and let him know if problems persisted, in which case he would come out and get the child.
Although he did not submit on the petition, the father submitted on SSA's reports. In one of those reports, SSA stated that in an interview, the father replied "Yeah," to several allegations of the petition, including allegation b-1. Allegation b-1 as amended and interlined read: "On or about January 17, 2011, the child's mother's residence was found by the Santa Ana Police Department to contain narcotic substances in a bedroom drawer approximately 12 inches from the 10 month old infant child's bed placing the child at risk in the care of the child's mother. The child's father reasonably should have known of the aforementioned and failed to protect the child from the mother's substance abuse."
At the same time, the father said, "I didn't know," with respect to allegations b-3, b-4, and b-6. Those allegations had to do with the mother's drug use prior to January 17, 2011 and with her ongoing drug use. Looking at the record as a whole, a logical construction of the father's interview responses would indicate that, in discussing the petition with the social worker, the father acknowledged having learned about the events of January 17, 2011, but denied having known the mother had an ongoing drug use problem.
SSA says that the father has an unresolved drug history of his own that put the child at risk of future harm. As SSA points out, the father himself admitted to having used marijuana before the mother became pregnant. However, he also stated he stopped using marijuana once he learned she was pregnant. The only information to indicate that the father ever used drugs later on came from SSA's January 18, 2011 interview with the mother, who reportedly said she knew that the father used cocaine because her sister believed she had seen him using on December 24, 2010. Regarding that assertion, the court ruled that it was "hearsay upon hearsay, and the court [did] not . . . place any significant evidentiary value in . . . it." That being the case, there is no reliable evidence to indicate that the father used drugs after he learned the mother was pregnant. In any event, at least one court has stated "the mere use of marijuana by a parent will not support a finding of risk to minors [citations] . . . ." (In re Alexis E. (2009) 171 Cal.App.4th 438, 452.)
Even if the evidence would support a finding that the father's conduct contributed to a risk of harm to the child in the past, the father argues that it does not support a finding that his conduct would result in a substantial risk of serious physical harm to the child in the future. (See In re David M., supra, 134 Cal.App.4th at p. 829.) We must agree. By the time of the hearing, a criminal protective order had been issued prohibiting the mother's contact with the child or his guardians for a period of three years, and the father had returned to California to care for his child. The juvenile court ordered that the mother have only supervised visitation with the child, conditioned upon the modification of the criminal protective order. Absent such modification, the mother was completely out of the picture. There are no allegations that the father himself ever mistreated the child and there is no evidence to show that the child was at risk of future harm once the father had returned to take care of him.
Having reviewed the evidence, we conclude "the juvenile court's jurisdictional finding against father under section 300, subdivision (b), must be reversed.
Our decision in that regard, however, does not change the child's status as a dependent child of the juvenile court. Apart from the section 300, subdivision (b), finding against father, the child properly is a dependent of the juvenile court based on the sustaining of the section 300, subdivision (b), allegation against mother, which has not been challenged. '[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 [him] within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.' [Citations.] The child thus remains a dependent of the juvenile court." (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.)
B. Section 361.2:
Section 361.2, subdivision (a) provides: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." This provision "evidences 'the Legislative preference for placement with [the nonoffending noncustodial] parent.' [Citation.]" (In re John M. (2006) 141 Cal.App.4th 1564, 1569.)
"The juvenile court must make the detriment finding by clear and convincing evidence. [Citations.] 'We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the [child] would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]' [Citation.]" (In re John M., supra, 141 Cal.App.4th at pp. 1569-1570.)
Here, SSA says there was ample evidence to show detriment to the child, inasmuch as the father had demonstrated a failure to protect the child in the past. Indeed, the evidence shows that the father knew or should have known that the child should not be entrusted to the mother's exclusive care. He saw her bang the infant carrier against the ground in such a way that he felt he should intervene. At the same time, the father placed the child in the home of the paternal grandmother, where the mother and child lived within the extended family network. The paternal grandmother and the paternal aunt, together with the maternal aunt and a longtime friend of the family, were all available to look out for the child, much as the father himself had done in Kansas.
Although the record reflects that the paternal grandmother expressed some concerns to the father about the mother's behavior, it is unclear what particular concerns she expressed. On the one hand, the record could be construed to show that the paternal grandmother expressed no concern other than that the mother seemed more interested in dating than in taking care of her child. On the other hand, one could surmise that she relayed every bit of information available, including information regarding the mother's drug use, the hot iron left on the floor, the toppled heater, and the supervision by an intoxicated third party.
But in the context of section 361.2, subdivision (a), the evidence must be so clear as to leave no substantial doubt. That is not the case here. The father entrusted his child not only to the mother of the child, but also to his own mother—the paternal grandmother. He relied on the paternal grandmother and the paternal aunt to watch over the child and to help out. When the cocaine was located and the authorities were called, the father left his job in Kansas and took up residence in California in order to take care of his child.
SSA makes much of the father's admission that he used marijuana in the past. However, that was before the child was born. As we have already noted, the court stated the allegation that the father had done drugs on December 24, 2010 was based on hearsay upon hearsay and entitled to no evidentiary weight. That being the case, there is no substantial evidence to show either that the father was lying when he said he had stopped using marijuana before the child was born or that his view he did not need services was a red flag. Consequently, there is nothing in the father's own history to show that it would be detrimental to the child to place him in the father's care. We certainly cannot say that the evidence of the father's prior drug use constituted evidence so clear as to leave no substantial doubt that placing the child in his care would be detrimental to the child.
III
DISPOSITION
We reverse the jurisdictional order sustaining the allegations of the petition as to the father, but we affirm the order taking jurisdiction over the child. We also reverse the order denying placement of the child with the father. The matter is remanded to the juvenile court for further proceedings consistent with this opinion.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.