Opinion
C082442
03-29-2017
In re D.S. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. K.W., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD237172, JD237173)
K.W., father of the minors, appeals from the judgment of disposition. (Welf. & Inst. Code, § 395 .) Father contends there was insufficient evidence to support the juvenile court's order removing the minors from his custody. We conclude substantial evidence supports the juvenile court's order removing the minors from father. We affirm the judgment.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTS
In April 2016, the Sacramento Department of Health and Human Services (Department) filed a petition to detain D.S., age 4, and E.S., age 6, from their parents due to parental substance abuse and neglect. The Department began focusing on the family in December 2015 due to a referral that mother, who failed to complete an informal supervision plan, had lost custody of the minors to father but had taken her newborn infant and returned to father and the two older children, all of whom were living in a motel. The referral suggested mother was currently using methamphetamine and breastfeeding the infant. In January 2016, another referral reported mother had returned to the father of her infant child, and K.W. went to the residence and became involved in an altercation with the father of the infant during which both men suffered significant injuries. In March 2016, the social worker received information mother was using methamphetamine and was again living with K.W.
In April 2016, the social worker spoke with mother who said she was ready to get help with her methamphetamine addiction and had been using methamphetamine for the last month. Mother told the social worker father supplied her with methamphetamine and her use escalated to the point where father could not pay his rent. Mother said she was under the influence of methamphetamine while caring for the minors. Mother also said E.S. had not been to school during the time they were living in motels. The school confirmed E.S. had not attended school during all of April 2016 and none of her absences were excused.
After unsuccessful attempts to locate the minors at two different motels, the minors were located at a paternal great-aunt's home and removed from parental custody pursuant to a protective custody warrant. At that time, the paternal grandmother, who acknowledged she had a "drinking problem," was drinking and unsteady, a marijuana pipe was in plain sight on the bed, and the minors were dirty and unkempt.
When the social worker spoke to the minors they said the parents smoked stuff in the car with them. D.S. identified the "stuff" as "weed." When the social worker told father part of the reason the minors were detained was that he left them with mother, who was using methamphetamine, he responded he could leave the children with anyone he wanted and it was not up to the social worker to tell him who was or was not appropriate. On May 2, 2016, the court ordered the minors detained pending the jurisdiction hearing.
The jurisdiction/disposition report stated mother admitted caring for the minors while under the influence of methamphetamine. Mother also stated father wanted her around and provided her methamphetamine or assisted her in getting it. Mother further acknowledged her drug use placed the minors at risk of harm. Father denied knowing mother was under the influence of methamphetamine while she was caring for the minors and did not know she had tested positive for methamphetamine in early April 2016. Father explained E.S. missed school because they were living in motels, the maternal grandmother had passed away, and transportation issues. Father agreed mother's drug use placed the minors at risk of harm. Father also agreed he should have known about mother's drug use but the minors were never harmed and he could see nothing wrong.
The report stated the social worker had interviewed the minors in May 2016. During the interview, E.S. stated her father "lied" to her about fighting with mother, he had previously said he would not fight with her anymore. E.S. said one time they were fighting in the car and turned up the music so the minors would not hear, but it only made it worse. Another time the family got kicked out of a campground after the parents were fighting and arguing too loudly. On yet another occasion, when D.S. was also present, the father hit the mother in the face. This made E.S. cry as she did not like it when people fought. Both minors had significant aggression issues, both physical and verbal, in the foster home, resulting in a seven-day notice for removal.
The report indicated mother was beginning her substance abuse treatment plan in May 2016 and had tested positive for marijuana several times in April 2016. Father also completed his assessment but had two positive tests for marijuana in May 2016. The last test result was high because father had been smoking a lot of marijuana.
The petition was amended in June 2016 to include allegations of mother's history of substance abuse and her current use of methamphetamine while caring for the minors; father's use of marijuana that impaired his ability to parent the minors; father's failure to protect the minors by leaving them in mother's care when he knew or should have known she was abusing methamphetamine; and domestic violence between the parents that placed the minors at risk.
At the contested jurisdiction/disposition hearing in June 2016, mother denied several of her prior statements and insisted she got methamphetamine from her parents, not father. Mother denied any domestic violence incidents with father. She also minimized the domestic violence incident where father hit her, claiming she could have been hit in the heat of the moment when she was trying to get past him to leave and he wanted her to stay with him, but she did not remember. Mother said the social worker twisted her earlier statements and wrote what she wanted in the report.
Father testified that after they separated in December 2015, mother continued to help him watch the minors. He admitted using marijuana to calm his nerves and straighten out his thought process but acknowledged he has not had a valid prescription for the past year although he had recently updated it for the next year. He did not recognize mother's substance abuse problem at first, but in the last couple of months saw signs she was using. In April of 2016 mother's lies and "tweaker" behavior made him suspect she was using. Father first insisted mother's drug use did not put the minors at risk because he trusted her with them and knew she would not harm them, but later agreed the fact she was under the influence of drugs when caring for the minors did place the minors at risk of harm. Father denied there was any domestic violence in the relationship and denied hitting mother although he admitted they did argue and raise their voices. Father recognized the allegations of domestic violence were partly based on the minors' statements but believed they misinterpreted the situations when he and mother were arguing and he was trying to calm her down. Father said he did not intentionally hit mother when she was upset and trying to run out the door.
The court sustained the petition as amended, finding both parents had substance abuse problems and father's continued marijuana use without a valid medical authorization led to his inability to properly supervise the minors as evidenced, in part, by E.S.'s lengthy absence from school. Further, father knew mother was using methamphetamine while she cared for the minors but permitted her to do so in spite of the risks. Finally, the court sustained the domestic violence allegation based on the minors' statements as well as the parents' testimony. The court removed the minors from parental care and ordered reunification services.
DISCUSSION
Father argues there was insufficient evidence of current risk to the minors to support the court's order removing them from his custody. Father asserts court supervision and a program of family maintenance services would be sufficient to protect the minors because neither the domestic violence nor his marijuana use presented a significant risk to them. We disagree.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence that is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize all conflicts are to be resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
To support an order removing a child from parental custody, the court must find clear and convincing evidence "[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 parent's . . . physical custody." (§ 361, subd. (c)(1).) Ongoing domestic violence in the minors' presence can constitute a substantial danger to their emotional well-being even if not to their physical well-being. (In re J.S. (2014) 228 Cal.App.4th 1483, 1493-1494.)
Even assuming the risks to the minors associated with father's use of marijuana were not sufficient to justify their removal, the risks associated with his domestic violence and his choice of caregivers were sufficient to justify removal. Father insists the conduct in this case of yelling, arguing, and hitting mother do not rise to the level of domestic violence as defined in Family Code section 6203 and his behavior did not create a risk to the minors. Section 6203 defines "abuse" for purposes of the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.). The statute does not purport to describe the range of conduct that may result in failure to protect a child from risk of harm for purposes of dependency jurisdiction or would create "a substantial danger to the physical health, safety, protection or physical or emotional well-being of the minor" for purposes of a removal order at disposition. (§ 361, subd. (c)(1).)
Family Code section 6203 defines "abuse" as follow: "(a) For purposes of this act, 'abuse' means any of the following: 1. To intentionally or recklessly cause or attempt to cause bodily injury. 2. Sexual assault. 3. To place a person in reasonable apprehension or imminent serious bodily injury to that person or to another. 4. To engage in any behavior that has been or could be enjoined pursuant to Section 6320. (b) Abuse is not limited to the actual infliction of physical injury or assault." --------
Here, the evidence established an ongoing pattern between the parents of yelling, arguing, and fighting and at least one episode where father hit mother. E.S. said she was upset father lied to her when he said he would not fight with mother anymore but continued to do so. E.S. described several specific incidents of fights: in the car when the parents tried to cover up the noise with music; when the family was evicted from a campground for the loud arguments; and when she and her brother D.S. saw father hit mother. E.S. was emotionally affected by the violence, as it made her cry and she did not like it when people fought. Mother testified father did try to keep her from leaving when she attempted to get away from him but stated he did not hit her "on purpose." Father minimized the violent incidents, dismissed E.S.'s statements as a misunderstanding of what had happened and said he did not intentionally hit mother when she was running out the door. It is apparent father does not recognize the ongoing fights that include both verbal and physical aspects constitute domestic violence. Further, father does not recognize the negative impact on the minors' emotional well-being caused by this behavior.
In addition to the domestic violence issue, father showed no ability or understanding of the need to protect the minors when he leaves them in the care of others. When first told the minors were being detained because he left them in mother's care when she was under the influence of methamphetamine, he responded he could leave the minors with whom he chose. While he later admitted mother's drug use did place the minors at risk of harm, he also minimized the risk by stating the minors were never harmed.
Father also left the minors at the home of the paternal great-aunt and paternal grandmother before the minors were placed in protective custody. At that time, the paternal grandmother, who was previously denied custody of the minors due to her drinking problem, smelled of alcohol and was unstable. Additionally, a marijuana pipe was readily accessible to the minors.
Based on the record, substantial evidence supports the juvenile court's order removing the minors from father. Until father had participated in services and began to understand adequate parenting meant he should not place the minors at risk and should act to protect them, the minors were not safe in his care. The juvenile court was not required to risk the health and safety of the minors by returning them to father before that occurred.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MURRAY, J.