Opinion
E066406
02-07-2017
In re A.R. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.R., Defendant and Appellant.
Jasmine Turner-Bond, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J265771 & J265772) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Jasmine Turner-Bond, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel for Plaintiff and Respondent.
The juvenile court found M.R. and A.R. (the children) of defendant and appellant F.R. (Father) came within the juvenile court's jurisdiction. (Welf. & Inst. Code, § 300, subd. (b).) Father contends (1) substantial evidence does not support the substance abuse finding; (2) substantial evidence does not support the mental illness finding; (3) substantial evidence does not support the violence finding; (4) substantial evidence does not support removal of the children; (5) the juvenile court abused its discretion by requiring Father to participate in substance abuse treatment; and (6) he can challenge the jurisdictional findings, despite S.R. (Mother) not challenging the findings made against her. We affirm the judgment.
All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
M.R. is female and was born in December 2008; A.R. is male and was born in April 2013. Mother and Father (parents) are not married but have been in a relationship for nine years. Parents, the children, the children's aunt, and the children's grandfather lived together.
B. DETENTION
On June 3, 2016, parents yelled at one another. Father punched Mother, causing her to fall to the floor. Mother suffered a "busted lip," as a result of the punch. Mother attempted to overdose with pills; she was taken into custody for evaluation. (§ 5150.) Father was arrested.
Parents are both bipolar and have been prescribed mental health drugs. Parents abused their prescribed psychotropic medications, marijuana, and cough syrup. For "many years" parents have had "domestic violence issues consisting of physical altercations and verbal altercations."
The children witnessed the violence on June 3. M.R. said parents "were fighting with their hands. [M.R.] stated parents were grabbing each other's pants, her mother broke her father's pants and he started fighting her harder."
The children were detained by plaintiff and respondent San Bernardino Children and Family Services (the Department).
The Department filed a petition alleging (1) Father abused controlled substances, which limited his ability to provide adequate care for the children (§ 300, subd. (b)); (2) Father suffered from a mental illness and was not complying with his recommended treatment, which limited his ability to provide adequate care for the children (§ 300, subd. (b)); (3) Father had a history of engaging in violence in front of the children, which placed the children at risk of physical and emotional harm (§ 300, subd. (b)); and (4) Father was in jail and unable to care for the children (§ 300, subd. (g)). The juvenile court ordered the children be detained.
C. JURISDICTION
Father was diagnosed as suffering from both bipolar disorder and chronic anxiety. Father was prescribed Xanax and Prozac. Father had been smoking marijuana for approximately nine years. Father said he smoked marijuana "as needed," and had last smoked one week prior. Father's prescription for marijuana expired. A June 8 drug test ordered by the court showed Father tested positive for marijuana.
Father denied that Mother's lip was injured by his punch. Father also denied that parents were grabbing at one another. Father said the charges against him were dropped. Father said the June 3 incident resulted from him mixing his medication with alcohol, which caused him to become angry.
M.R. said parents were screaming at one another because they could not find something. Parents then ripped each other's clothing. M.R. does not know what parents smoked because they sent the children to their rooms when they smoked.
The police report from the June 3 incident reflected parents were yelling in front of the children. Father "became aggressive and he approached the children." Mother pushed Father away from the children. Father went into his bedroom; Mother followed, and they continued arguing. Father struck Mother, causing her to fall to the ground. Mother suffered a swollen bottom lip with a quarter-inch laceration.
At the jurisdiction hearing on July 7 Father disputed the controlled substance allegation against him. Father asserted that his use of marijuana was recommended by doctors and "[i]t's just merely a matter of not getting that card renewed in a timely fashion." Father asserted that his failure to renew his medical marijuana prescription did not place the children at risk of harm. Father asserted he did not need substance abuse treatment as part of his reunification services. Father suggested he be subjected to testing for controlled substances, and if he were to test positive for something other than marijuana, then the court could order substance abuse treatment. Father also objected to the other allegations against him, but did not raise any specific arguments.
The juvenile court said that Father had mixed alcohol with his prescription medications prior to striking Mother. The court said it would be willing to find Father abused "substances," rather than "controlled substances." Minors' counsel agreed with the changed wording. The Department asserted Father was not testing positive for his prescribed medications; his drug tests showed a positive result for marijuana, but not for Xanax and Prozac. The Department asserted Father was not taking his prescription medication appropriately—he was mixing the drugs with alcohol and then not taking them at all. The Department requested Father be required to participate in a substance abuse treatment program.
The juvenile court found true the allegations that (1) Father abused substances, which limited his ability to provide adequate care for the children; (2) Father suffered from a mental illness and was not following his recommended treatment, which limited his ability to provide adequate care for the children; and (3) Father engaged in violence in front of the children, which placed the children at risk of harm. (§ 300, subd. (b).) The court dismissed the allegation regarding Father being jailed and not providing support for the children. (§ 300, subd. (g).) The court ordered Father to participate in outpatient substance abuse treatment. The court ordered the children be removed from parent's custody.
DISCUSSION
A. JURISDICTIONAL FINDINGS
1. CONTENTION
Father contends the jurisdictional findings against him are not supported by substantial evidence.
2. LAW
Section 300, subdivision (b), provides 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 failure or inability of his or her parent or guardian to adequately supervise or protect the child."
"'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.'" [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 . . . ." [Citation.]' [Citation.] Jurisdiction may be exercised 'based on . . . a current or future risk.'" (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1452.)
At the juvenile court, the Department bears the burden of proving by a preponderance of the evidence that the children come within the juvenile court's jurisdiction. On appeal from an order making jurisdictional findings, we uphold the court's findings if they are supported by substantial evidence. In conducting our review, we view the record in the light most favorable to the findings by resolving all conflicts in favor of the findings and making all reasonable inferences in favor of the findings. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
3. SUBSTANCE ABUSE
The juvenile court found Father abused substances, which limited his ability to provide the children with adequate care and supervision, creating a detrimental home environment.
The record reflects, "The grandparent's [sic] reported that the parent's [sic] abuse their prescribed psychotropic medications, marijuana and cough syrup. The grandparent's [sic] stated that the parents have been having ongoing domestic violence issues consisting of physical altercations and verbal altercations for many years." Father stated that the June 3 incident was caused by his ingesting medication and alcohol, which then led to anger issues. The police report reflects that when Father became angry on June 3, he "became aggressive and approached the children," but Mother pushed him away. Father punched Mother's face, causing a laceration on her lip. Father denied causing the laceration. The children witnessed the violence.
The neglectful conduct by Father was (1) ingesting alcohol with medication, and (2) punching Mother in front of the children. Causation exists because Father abused substances by mixing alcohol with medication, which triggered anger issues, which led to Father punching Mother. Father himself stated that the violence was caused by his mixing substances. The risk of harm to the children is supported by the evidence reflecting Father has been abusing substances and engaging in violence for years; Father approaching the children when aggressive and having to be stopped by Mother; and Father's denial that he harmed Mother. The evidence reflects a substantial risk to the children because (1) Father does not acknowledge that he harmed Mother, indicating an unwillingness to change his behavior; (2) Father has been engaging in this behavior for years, indicating a likelihood that the behavior will continue; and (3) Father aggressively approached the children, such that Mother had to intervene, indicating Father would act violently toward the children.
In sum, there is substantial evidence the children will suffer serious physical harm as a result of Father's failure to adequately supervise or protect the children due to Father's substance abuse. (§ 300, subd. (b).)
4. MENTAL ILLNESS
The juvenile court found Father suffered from mental illness and was not following his recommended mental health treatment, which limited his ability to provide the children with adequate care, endangered the children's safety, and created a detrimental home environment. (§ 300, subd. (b).)
Father stated that he suffered from bipolar disorder and chronic anxiety. Father said he takes 30 milligrams of Prozac, and would be increasing his dosage to 60 milligrams the following week. Father said he takes Xanax as needed. Father also said he would be "coming off the medication pretty soon." Father's drug tests did not show he was taking his prescribed medication. Father said the June 3 incident was caused by ingesting medication and alcohol, which caused him to become angry. Father said his anxiety caused anger issues.
The neglectful behavior by Father is (1) not taking his prescribed medications as directed; and (2) being violent with Mother in front of the children. The causation evidence is Father's statement that he "stupidly" mixed prescription medication with alcohol, which triggered anger issues, which led to the violence. Father's statement that the mixture of substances was "stupid," permits a reasonable inference that he knew his mental health medication was not supposed to be taken with alcohol. Additionally, it reflects Father has anger issues that are going untreated as shown by the lack of medication in his system. Father has directed his anger at the children in the past by approaching them in an aggressive manner, and being stopped by Mother, who was eventually punched in the face by Father. This evidence reflects the children are at a substantial risk of serious physical harm due to the anger issues that are caused by Father's mental illness, which is not being properly medicated.
5. VIOLENCE
The juvenile court found Father had a history of engaging in acts of violence in front of the children, thereby placing the children at serious risk of physical and emotional harm. (§ 300, subd. (b).)
The record reflects "[t]he grandparent's [sic] stated that the parents have been having ongoing domestic violence issues consisting of physical altercations and verbal altercations for many years." M.R. said she saw parents ripping one another's clothing and then Father "started fighting [Mother] harder." Father approached the children aggressively, but was stopped by Mother. Father punched Mother in the face, causing her to fall to floor, and causing a laceration on her lip. M.R. said parents were "screaming at each other" because they could not find something, which had happened in the past, but this was the first time law enforcement responded.
Father's neglectful act is engaging in domestic violence. M.R. witnessed the June 3 violence and was aware of prior arguments between parents. The causation evidence concerning violence is that Father approached the children aggressively on June 3, indicating his violence would be directed at them but for being stopped by Mother. The risk of harm to the children is that (1) Father's violence will be directed at them; and/or (2) they will continue to witness Father's violence toward Mother. In sum, substantial evidence supports the juvenile court's finding that the children are at a substantial risk of suffering serious physical harm or illness, as a result of Father's violence. (§ 300, subd. (b).)
B. REMOVAL
Father contends substantial evidence does not support removal of the children.
"Under section 361, subdivision (c)(1), a dependent child may not be taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by 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 minor's parent's . . . physical custody.'" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
"'The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.]' [Citation.] '"The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]' [Citation.] We review a dispositional order removing a child from parental custody for substantial evidence." (In re John M., supra, 212 Cal.App.4th at p. 1126.)
As explained ante, there is substantial evidence supporting the juvenile court's jurisdictional findings that Father suffered substance abuse issues, mental health issues, and episodes of violence. Father stated that he was taking 30 milligrams of Prozac, which was supposed to increase to 60 milligrams the following week. Father was also prescribed Xanax as needed. Father's drug tests did not show he was taking his medication. This evidence reflects Father is not following directions to resolve his mental health issues.
Additionally, Father said he "stupidly" mixed his medication with alcohol. The inference to be drawn is that Father was not supposed to mix alcohol with his medication. Thus, not only is Father not taking his medication, but when he does take his medication, he still fails to follow the directions. Additionally, Father denied causing a laceration on Mother's lip. This evidence indicates Father is unwilling to take responsibility for his actions, and thus will not accept that his behavior needs to change.
The foregoing evidence and inferences support a finding that it will take time before Father's substance abuse, mental health, and violence issues are resolved because Father (1) does not follow directions given to him; and (2) does not take responsibility for his actions. Given (1) the substance abuse, mental health, and violence issues pose a substantial risk of danger to the children, and (2) the evidence reflects a likelihood that those issues will take time to resolve, there is substantial evidence supporting the juvenile court's finding that there would be a substantial danger to the physical health, safety, or physical or emotional well-being of the children if they were returned to Father's custody; and there are no reasonable means by which the children's physical health can be protected without removing them from Father's custody.
C. SUBSTANCE ABUSE TREATMENT
Father contends the juvenile court erred by requiring him to participate in substance abuse treatment as part of his case plan.
When "a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) The court may also "direct any reasonable orders to the parents . . . of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section . . . . That order may include a direction to participate in a counseling or education program . . . . The program in which a parent . . . is required to participate shall be designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300." (§ 362, subd. (d).)
"The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion. [Citation.] We cannot reverse the court's determination in this regard absent a clear abuse of discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
As set forth ante, there is substantial evidence supporting the finding that Father's substance abuse places the children at risk of harm. The record reflects Father has abused prescription medication, alcohol, cough syrup, and marijuana. Father blamed the June 3 violence on a mixture of alcohol and prescription medication. Given that substance abuse is one of the bases for the children coming within the juvenile court's jurisdiction, it was within reason for the juvenile court to order Father to participate in substance abuse treatment. The treatment will give Father the opportunity to obtain the tools necessary to resolve his substance abuse issues, and thereby resolve one of the issues that led to the dependency. In sum, the juvenile court did not abuse its discretion.
D. FATHER-ONLY APPEAL
Father contends he can challenge the jurisdictional findings, despite Mother not challenging the findings made against her.
When a dependency case is based upon multiple jurisdictional findings, the juvenile court's jurisdiction over the minors can be affirmed if any one of the findings is correct. (In re Drake M. (2012) 211 Cal.App.4th 754, 762.) So, if we determined the findings against Father were not supported by substantial evidence, we could still affirm the juvenile court's jurisdiction over the children based upon the findings made against Mother, which have not been challenged on appeal.
Father asserts that despite this court's ability to affirm the juvenile court's jurisdiction based upon the findings against Mother, we should still address the issues he raises on appeal. We have chosen to address the issues raised by Father in order to determine if he was incorrectly found to be an offending parent and to determine if the juvenile court made dispositional errors. As explained ante, we have concluded the juvenile court did not err.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.