Opinion
E069736
06-04-2018
In re S.B. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.B., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Michael A. Markel, Principal Assistant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J272333, J272334) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Michael A. Markel, Principal Assistant County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, J.B. (father), appeals from the juvenile court's dispositional order removing his sons, S.B. and S.H., from his physical custody. (Welf. & Inst. Code, § 361, subd. (c).) Father contends the evidence did not support removal and reasonable alternatives to removal existed. We conclude substantial evidence supported the court's order and affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURE
A. The Prior Dependency Matter
K.H. (mother) began using methamphetamine in 2014 with father. In April 2015, the court found true that the parents had failed to protect one-year-old S.H. (§ 300, subd. (b)) and adjudged him a dependent of the court. The court granted the parents reunification services. In February 2016, the court adjudged one-month-old S.B. a dependent of the court based on the parents' substance abuse and general neglect. Father completed a treatment program in 2015 as part of his case plan. Mother also completed a treatment program in August 2016. The parents progressed to family maintenance services, lived in separate households, and shared time with the children. The prior case terminated in March 2017 with family law orders giving father sole custody of the children and mother supervised visitation twice weekly for two hours. Father's delegate or a professional monitor was to supervise the visits. B. The Present Matter
Father is the biological father of S.B. but not S.H., although he holds both children out as his. During the prior case, the court found father to be the presumed father of both children, and it made the same finding in the present case.
The present matter began in June 2017, when plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received a referral alleging father was using methamphetamine and not properly supervising the children. By this time, S.B. was one year old and S.H. was three years old. CFS received a second referral in July 2017 alleging general neglect and emotional and physical abuse. Father had allegedly picked S.B. off the ground by his arm and partially dislocated S.B.'s arm.
When CFS investigated, mother reported that she had recently spent the night at father's home to watch the children while he completed a drug deal, even though she was only supposed to have supervised visitation. When father returned, he used methamphetamine in S.H.'s presence. Father dislocated S.B.'s arm after he got "high." Mother admitted to using methamphetamine in the past and was in a treatment program. Father also admitted to using methamphetamine and said he had last used on July 21, 2017. He tested positive for amphetamines on August 2, 2017.
The court found a prima facie case for detaining the children, and CFS placed the children with their maternal aunt. The court ordered weekly supervised visitation for both parents and drug testing.
In CFS's jurisdictional/dispositional report, mother admitted to staying in father's home after the prior dependency case terminated, even though she was only supposed to have supervised visits with the children. She also admitted to relapsing in March 2017. Since CFS's last report, mother was a "no show" for one drug test and tested negative on two other occasions.
Father denied jerking S.B.'s arm and dislocating it. He was holding S.B.'s hand while S.B. was having a tantrum, and S.B. dropped his legs out from under himself. He took S.B. to the hospital, where the doctor diagnosed him with "nursemaid's elbow." Father denied being under the influence of drugs during this incident, but he admitted to relapsing three times since the prior case's closure. He began using methamphetamine when he was 22 years old (and he was now 38 years old). He said he did not use around the children, and each relapse had occurred while he was on a date and maternal grandmother was watching the children. Father was attending Narcotics Anonymous meetings sporadically. He did not understand why he had tested positive for amphetamines because he had last used two weeks before the test. He thought the test might have been a false positive. Since that test, he was a "[n]o [s]how" for one drug test and tested negative on two more dates.
Father denied letting mother spend the night at his home, but reported that he fell asleep while supervising one of mother's visits in April 2017, and when he awoke, mother had absconded with the children. He contacted law enforcement and mother eventually returned with the children two weeks later.
Both mother and father had recently attempted to obtain temporary restraining orders against each other in family court. They both reported a history of domestic violence between them. The family court denied both of their applications.
CFS recommended that the court remove the children from their parents' custody and grant reunification services. CFS opined that the parents needed to learn to coparent and make decisions that were in the children's best interests.
At the jurisdictional/dispositional hearing, father testified that he did not allow mother to have unsupervised visits. He allowed her to have overnight visits in the home when he could supervise the visits, but he no longer allowed her to stay overnight after she absconded with them. He had been using methamphetamine "[o]n and off" for five years, and "[v]ery rarely" before that. Since he had obtained custody of the children, he had not used methamphetamine in their presence. He used three times when they were at their grandmother's house. He had just completed a 30-day residential treatment program six days before the hearing, and he had twice drug tested clean for the program. He understood that it was not "right" to use even outside the children's presence, and he wanted the children returned to him with family maintenance services. He thought mother "calling and making false allegations" was responsible for CFS's and the court's intervention in their lives.
The court found true (1) that mother and father had substance abuse problems, placing the children at serious risk of harm, and (2) that father had failed to protect the children by allowing mother to have unsupervised visits with them, in violation of a court order. (§ 300, subd. (b).) The court also found clear and convincing evidence that both children should be removed from the physical custody of the parents, in that there was a substantial danger to the children's physical health and safety and no reasonable means to protect them absent removal. The court commented: "I remain perplexed as to the lack of insight as to what the issues are that exist in this case. The children were in dependency for a very long period of time. Frankly both of them have at this point mainly been raised by the aunt who takes very good care of them as the parents continue to battle with their addiction. [¶] Each of you has an addiction problem. The children have been removed because each of you has a long-standing addiction problem. And relapse will continue to be a risk, so it's not going to be okay to occasionally use with a girlfriend or on a date. That is a risk to the children. [¶] . . . [¶] . . . I also remain struck how as during the last case there were time periods where the parents were aligned, there were time periods where the relationship was clearly dysfunctional, and all of that continues and it is clearly a risk to the children. [¶] I find it shocking that the children were taken against family court orders and absconded with, that law enforcement had to get involved, and that that seems to be minimized by all parties as not a risk to the children." The court recognized how much both parents loved their children but "need[ed] to do some soul searching and get a long period of sobriety and stability." The court ordered reunification services for both of them. For father, this included an assessment for further treatment services (likely outpatient and then aftercare treatment), individual therapy, random drug testing, and weekly supervised visits.
III. DISCUSSION
Father contends the court erred in removing the children from his physical custody because there were reasonable means to protect them absent removal. We disagree the court erred.
"Before the court may order a child physically removed from his or her parent's custody, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); [citation].) The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home. [Citations.] 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." (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.) The court may consider present circumstances as well as the parent's past conduct. (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
"We review the court's dispositional findings for substantial evidence." (In re T.V., supra, 217 Cal.App.4th at p. 136.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In this case, substantial evidence supported the court's order removing the children from father's home. The evidence showed father had a longtime substance abuse problem. He had started using methamphetamine when he was 22 years old and was in his late 30's at the time of these proceedings. The prior case had terminated only three months before the referral in this case. While he had completed a treatment program during the prior case, he had admittedly relapsed since then and used methamphetamine while he was on dates. As the court characterized it, he was an addict, and the risk of relapse was real. His short period of sobriety after completing another 30-day program right before the dispositional hearing did not establish the danger was over. (See In re J.C. (2014) 233 Cal.App.4th 1, 7 ["Given [the father's] years-long struggles with drug abuse, his seven months of sobriety did not mean that he was no longer at risk of relapsing."]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform."].) And during this period when he relapsed, father's judgment and ability to adequately supervise the children were impaired (as the court found true). He allowed mother overnight visits in violation of the court's visitation order, and during one of these visits, she absconded with the children for two weeks, after he fell asleep. Given these facts, there was more than sufficient evidence that the children were at substantial risk of harm if they returned to his home.
Father asserts removal was unnecessary because he had shown his ability to safely care for the children—there were no concerns about his housekeeping or his attention to their medical and educational needs. He misunderstands the scope of our review. The question is not what evidence supported a different order placing the children with him. Our only concern is whether substantial evidence supported the court's order, and it did. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947 [holding that we "affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion."].)
He also asserts there were reasonable means to protect the children short of removal, such as random drug testing coupled with unannounced home visits and an express order that he not supervise mother's visits. "Unannounced visits can only assess the situation and [father's] sobriety at the time of the visit. Substance abuse testing can only detect use after the fact—which would be after [father] had already placed the minor[s] at risk again." (In re A.F. (2016) 3 Cal.App.5th 283, 293.) And father had already shown he was willing to violate court visitation orders when he permitted mother to spend the night. In light of these recent experiences with father, the court did not err in determining there were no reasonable means to protect the children without removal.
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.