Opinion
D074010
10-19-2018
In re A.M. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.M., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Georgia Gebhardt, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J516829BC) APPEAL from orders of the Superior Court of San Diego County, Ana L. Espana, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Georgia Gebhardt, Deputy County Counsel, for Plaintiff and Respondent.
G.M. (Father) appeals the jurisdiction and disposition orders declaring his minor children, A.M. and R.M., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). Father contends that substantial evidence does not support the juvenile court's findings and orders. We disagree and, therefore, affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
I
STATEMENT OF THE CASE
A. Background and Agency Investigation
Father and M.L. (Mother) are the unmarried parents of two minors, A.M. and R.M. Father and Mother have a lengthy relationship with the San Diego Health and Human Services Agency (the Agency). Between February 2006 and May 2014, the Agency received 12 referrals relating to A.M., Mother's older child, and/or Father's three older children. Those referrals alleged that Father had engaged in physical and emotional abuse and Mother had engaged in drug use and physical abuse. Voluntary cases were opened for two of the children, one of which was closed and one of which resulted in the termination of Mother's parental rights over her older child.
In March 2016, Father took then-two-month-old R.M. to a health clinic for a cough and, during the visit, reported that Mother was on parole, Mother had left a drug treatment facility in violation of her parole, and the family had been staying in hotels. Although the health clinic recommended that R.M. be taken to the hospital to test for whooping cough and offered to transport R.M. to the hospital, Father declined the offer and did not take R.M. to the hospital until the next day. Based on Father's statements and his decision not to allow R.M. to be taken to the hospital immediately, the Agency received a referral alleging general neglect of A.M. and R.M. by Father and Mother.
The Agency opened an investigation and interviewed Mother, who had been detained for violating parole. Mother reported that she had a history of using methamphetamine as much as "three or four times a day." Mother also reported that Father regularly used methamphetamine. According to Mother, she and Father had used methamphetamine the day before he took R.M. to the health clinic and were with the children while under the influence. Mother further reported that Father and the minor children had been staying with the paternal grandmother, who was a drug user as well.
The social worker also interviewed Father, who did not cooperate with the investigation. When asked about the children's whereabouts, Father grew angry, shouted expletives, and told the social worker, "I'm not telling you shit. You don't need to know shit about me or my kids, I know what you're trying to do and I don't need to tell you shit." He warned the social worker to stop calling and stated he would tell Mother not to speak with the Agency. Further, he told the social worker he would take the children to Tijuana to evade the Agency. A few days later, he sent the social worker a text message that stated: "Hello, me and my kids are not staying in San diego [sic] anymore. I rent [sic] an apartment in Tijuana. It was the best option for me and the kids."
After Mother's release from detention, the social worker interviewed Mother at the maternal grandmother's home. Mother admitted she had used methamphetamine twice since her release from detention, once with Father and once in R.M.'s presence. Mother also informed the social worker that Father was currently with A.M. at the residence in which she and Father had recently used methamphetamine. Mother and the social worker went to retrieve A.M. from Father and a confrontation ensued. Father screamed, "Stop harassing us," "You're a little bitch," and "Fuck you, bitch, you just stay out of it" at the social worker. Father also instructed Mother not to cooperate with the Agency. The social worker asked Father to submit to a voluntary drug test, which he refused. Despite the confrontation, Mother and the social worker successfully retrieved A.M.
On April 27, 2016, the Agency filed juvenile dependency petitions under section 300, subdivision (b) for A.M. and R.M., alleging the children had suffered or were at substantial risk of suffering serious physical harm or illness based on Mother's and Father's substance abuse. The juvenile court issued protective custody warrants for the children.
The next day, at the detention hearing, the juvenile court found the Agency had made a prima facie showing that A.M. and R.M. were minors described in section 300, ordered the detention of A.M. and R.M., and scheduled a jurisdiction and disposition hearing. Although Mother and Father had notice of the detention hearing, they did not appear.
In anticipation of the jurisdiction and disposition hearing, the social worker made numerous attempts to locate Mother, Father, and the children. After several unsuccessful attempts, the social worker succeeded in contacting Father and told him about the upcoming hearing. The social worker also asked Father whether the children were with him and he stated that the children were not in California and were not coming back. B. The Initial and Continued Jurisdiction and Disposition Hearings
On May 19, 2016, the juvenile court held a jurisdiction and disposition hearing at which Father (but not Mother) appeared. Father testified he had last seen the children on May 7, 2016, and they were with Mother at that time. Father testified he did not know the children's whereabouts or whether they were still in Mother's care. When questioned about his statements that the children were not in California, he testified he "was lying" to the social worker "to keep her at bay." At the close of the hearing, the court ordered Father to report any new information regarding his children's whereabouts to the social worker and surrender the children to the Agency if they came into his custody.
During two continued jurisdiction and disposition hearings, the juvenile court issued an arrest warrant for Mother and elevated Father's paternity status from alleged father to presumed father. Under questioning from the court at one of the hearings, Father testified he had not had any communication with Mother since before the initial jurisdiction and disposition hearing and had no information regarding the whereabouts of his children. Several times, the court reiterated its prior order that Father must notify the Agency if he obtained information regarding his children's whereabouts. The court also asked Father whether he would submit to a voluntary drug test, which he declined.
Between June 2016 and November 2017, the juvenile court held two special hearings and 11 continued jurisdiction and disposition hearings. Mother did not appear at any of the hearings and Father appeared at only four of them, twice after being involuntarily detained on a bench warrant. Throughout this period, the Agency called Father and Mother, visited their last-known locations of employment and residence, and interviewed relatives, but could not determine the whereabouts of Mother or the children. For much of this time, the Agency was also unaware of Father's whereabouts.
At the four hearings that Father attended (either voluntarily or involuntarily), Father testified he had no information regarding the then-current whereabouts of Mother or his children. At one hearing, on November 9, 2017, Father testified that the children had recently been in his custody for six days. However, Father did not call the social worker when they came into his custody and, according to Father, Mother took the children from him before he could take them to the juvenile court at the next-scheduled hearing. The court ordered Father to notify the police and social worker within two hours if he were to learn anything about the whereabouts of Mother or the children. C. The Agency Locates the Children
On December 9, 2017, Father took the children to United States Customs and Border Protection officials at the Port of Entry between Mexico and the United States. Father told the social worker he had located Mother and the children in Tijuana two days before and, over her objection, brought them to the United States to turn them over to the appropriate government officials. When they were turned over, A.M. appeared happy and healthy, while R.M. had a fever that was likely the result of an ear infection.
In an interview with the social worker, Father initially denied using any substances and discussed a series of goals he hoped to achieve for himself and his children. However, a few days later, Father admitted to using methamphetamine, did not show up for a scheduled intake session with an inpatient drug treatment center, and did not appear for a voluntary drug test requested by the substance abuse specialist. The following month, Father began and completed a 15-day drug detox program, but did not complete a substance abuse treatment program that was offered to him. On January 31, 2018, Father failed to appear at a voluntary drug testing and, in March 2018, declined another request from the social worker that he submit to a voluntary drug test. According to the social worker, Father consistently visited his children on a weekly basis during this timeframe and exhibited effective parenting skills during his visits. Father also participated in a housing assistance program for homeless veterans.
Meanwhile, Mother was arrested and detained on a bench warrant. Mother admitted she had recently used methamphetamine and, therefore, entered into an outpatient drug treatment program. As the weeks passed, Mother stopped attending the program, demonstrated signs of continued drug use, and showed up to a supervised visit with her children while under the influence of methamphetamine. D. The DEA Incident
On April 13, 2018, a detective from the Drug Enforcement Agency (DEA) called the social worker and informed him that a truck registered to Father had been impounded and two kilograms of cocaine valued at $45,000 had been found inside. The detective called Father a "very dangerous man" who was "clearly involved with transporting narcotics" into the United States. The detective stated that he had interviewed Father, who—in order to avoid arrest—had led the detective to drug smugglers waiting outside the police station. Father also led the DEA to a hotel room, in which a kilogram of methamphetamine, a pay/owe sheet reflecting drug sales, the belongings of Father and two other individuals, and documentation on "how to beat" child protective services were recovered. The detective informed the social worker he wanted to arrest Father but had not done so because he believed the district attorney would not prosecute the case. E. The Contested Jurisdiction and Disposition Hearings
On May 7, 2018, the juvenile court held a contested jurisdiction and disposition hearing, at which Father and Mother were present. At the hearing, the Agency submitted the detention report, the jurisdiction and disposition report, and 15 addendum reports, while Father submitted a letter from his case manager at the housing assistance program and a certificate of completion from a parent education and family stabilization course.
Based on these submissions, the juvenile court sustained the jurisdictional allegations under section 300, subdivision (b) by clear and convincing evidence, removed the children from the custody of Father and Mother, and placed the children in a licensed foster home. The court lauded Father for participating in a 15-day detox program and consistently visiting his children. However, it concluded that a number of other factors weighed in favor of sustaining the jurisdictional allegations, including, inter alia, Mother's initial absconding from her drug treatment facility in violation of her parole, Mother's admission that she and Father used methamphetamine, the history of Agency referrals involving Father and Mother, Mother's admitted history of drug abuse and failure to successfully complete a drug treatment program, Father's noncooperation with the Agency, Father's failure to notify the Agency when the children came into his custody, Father's December 2017 admission that he used methamphetamine, and the DEA's recovery of cocaine and methamphetamine from Father's truck and motel room.
The court struck certain allegations of domestic abuse from the petition, but sustained the remainder of the allegations.
Father appeals.
II
ANALYSIS
A. Justiciability
Father asks us to review the sufficiency of the evidence supporting the jurisdictional findings regarding his conduct. The Agency contends that Father's appeal is nonjusticiable because Father does not challenge the jurisdictional findings regarding Mother's conduct and, therefore, any decision we might render would not deprive the juvenile court of its authority to assert jurisdiction over the minors. (In re I.A. (2011) 201 Cal.App.4th 1484, 1490 (I.A.) ["An important requirement for justiciability is the availability of 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status."].)
The purpose of dependency law is the protection of the child. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) In accordance with the law's purpose, the juvenile court overseeing a dependency proceeding takes jurisdiction over the child whenever one of the statutory prerequisites in section 300 has been satisfied. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Because a finding that one parent's conduct has created circumstances triggering section 300 is sufficient to assert jurisdiction over the child, an appellate court may decline to review jurisdictional findings based on the other parent's conduct. (I.A., supra, 201 Cal.App.4th at pp. 1491-1492.)
Nonetheless, an appellate court may exercise its discretion to reach the merits of an otherwise-nonjusticiable challenge to a juvenile court's jurisdictional finding if the finding: (1) serves as the basis for dispositional orders that are also challenged on appeal; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings; or (3) could have consequences for the appellant beyond jurisdiction. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).)
Father requests that we reach the merits of the jurisdictional findings, arguing that they will "feature prominently" in these proceedings and possible future cases. Father's argument is thin. Nevertheless, we conclude that there is at least a colorable claim that the jurisdictional findings have already impacted these proceedings, as evidenced by the juvenile court's orders removing A.M. and R.M. from Father's custody. (Drake M., supra, 211 Cal.App.4th at p. 763 ["[T]he outcome of this appeal is the difference between father's being an 'offending' parent versus a 'non-offending' parent. Such a distinction may have far-reaching implications with respect to future dependency proceedings in this case and father's parental rights."].) Further, the Agency's emphasis on Father's prior referrals in its detention report, as well as the juvenile court's reliance on Father's history of referrals at the jurisdiction and disposition hearing, lends credence to Father's concern that the jurisdictional findings will adversely impact him in future proceedings. (In re D.P. (2015) 237 Cal.App.4th 911, 917 ["[T]he finding on the section 300, subdivision (c) allegation could potentially affect future dependency proceedings."].)
Accordingly, we exercise our discretion to reach the merits of Father's challenge to the jurisdictional findings. (Drake M., supra, 211 Cal.App.4th at p. 763; In re D.M. (2015) 242 Cal.App.4th 634, 638-639 [exercising discretion to decide merits of appeal challenging jurisdictional findings involving one of two parents].) B. Sufficiency of the Evidence
On the merits, Father argues that substantial evidence does not support the juvenile court's jurisdictional findings insofar as those findings are based on Father's conduct. For the reasons discussed post, we reject Father's argument and conclude that sufficient evidence supported the challenged findings.
The Agency contends we should dismiss the appeal under the disentitlement doctrine based on Father's noncooperation with the Agency and the juvenile court, as well as his failure to immediately notify the juvenile court of the minor children's whereabouts. (See, e.g., In re A.K. (2016) 246 Cal.App.4th 281, 284-286.) Because we resolve the appeal in favor of the Agency on the merits, we need not reach this issue.
1. Governing Law
At the jurisdiction hearing, the juvenile court considers only the question whether the child is described by one or more subdivisions in section 300. Under section 300, subdivision (b), the Agency must show that the 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 of his or her parent to adequately supervise or protect the child. (§ 300, subd. (b).) The three elements for a section 300, subdivision (b) finding are: "(1) one or more of the statutorily specified omissions in providing care for the child (inability to protect or supervise the child, the failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment, or inability to provide regular care for the child due to mental illness, developmental disability or substance abuse); (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.) For purposes of determining whether a substantial risk of harm or illness exists, the relevant question is whether such a risk exists at the time of the hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.), abrogated on another ground in In re R.T. (2017) 3 Cal.5th 622.)
We review the entire record to determine whether there is substantial evidence in the record to support the findings. (In re T.V. (2013) 217 Cal.App.4th 126, 133.) Evidence is substantial if it is reasonable, credible, and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) In conducting a substantial evidence review, we do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Marquis H. (2013) 212 Cal.App.4th 718, 726-727.) Further, we draw all legitimate and reasonable inferences in support of the judgment. (Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 408). The appellant has the burden to demonstrate there is no evidence of a sufficiently substantial nature to support the findings or orders. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
2. Application
Father argues that substantial evidence does not support the juvenile court's jurisdictional findings for three reasons: (1) the only evidence of Father's drug use involved incidents that occurred two or more years ago; (2) there was no evidence that Father ever cared for his minor children while he was under the influence of methamphetamine; and (3) Father took various positive actions in his life prior to the contested hearing. For the following reasons, Father does not meet his burden to show that there was insufficient evidence to support the jurisdictional findings.
As an initial matter, the record does not support Father's argument that the only evidence of his drug abuse involved incidents from two or more years ago. According to the record, Father admitted using methamphetamine in December 2017 and entered a 15-day drug detox program as recently as January 2018. Further, there is no evidence establishing Father's sobriety as of the date of the contested hearing, nor is there evidence that Father has ever completed an inpatient drug treatment program. On the contrary, Father refused or failed to show up for numerous voluntary drug tests requested by the Agency and failed to complete a substance abuse treatment program that was offered to him. (In re E.A. (2018) 24 Cal.App.5th 648, 663 ["ample evidence" for jurisdiction where parents "refused to demonstrate sobriety (by repeatedly refusing to drug test without adequate explanation)"]; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 [substantial evidence supported jurisdiction because parent "avoided or refused to take drug tests"].) On this record, we cannot accept Father's claim that the evidence in the record involves old and outdated instances of drug abuse only.
The record also disproves Father's contention that there was no evidence he cared for his children while under the influence of methamphetamine. Contrary to Father's claim, the record reflects that Mother told the social worker she and Father cared for their children after using methamphetamine. As Mother explained, "she and [Father] left the children with the paternal grandmother when they went to use, but returned high and were around the children." A detention report submitted into evidence also stated that Mother "allow[ed] [Father] to care for the children while she was incarcerated [for violating parole] knowing that he used methamphetamine with her and was under the influence of drugs while around the children."
Father cites Rocco M., supra, 1 Cal.App.4th 814, for the proposition that a parent's illegal drug abuse, standing alone, is typically insufficient to bring a child within the jurisdiction of the juvenile court. We do not dispute Father's claim, nor does the Agency. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 450-451.) However, as just noted, the record reflects that Father not only abused methamphetamine; rather, he cared for his children while under the influence. Further, as Rocco M. recognized, the exercise of jurisdiction is proper when the child is "of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety." (Rocco M., supra, 1 Cal.App.4th at p. 824.) In cases involving children of "tender years," a "finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm." (Drake M., supra, 211 Cal.App.4th at p. 767; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [evidence of mother's use of cocaine sufficient to support jurisdiction over children under the age of six].) Here, A.M. and R.M. were under the age of five when the jurisdiction and disposition hearing took place. Father's methamphetamine abuse, combined with the children's "tender years," constituted prima facie evidence of Father's inability to care for his children—evidence that Father did not rebut.
Father also contends that the juvenile court's exercise of jurisdiction over A.M. and R.M. was improper due to several positive developments that took place in Father's life in the months preceding the jurisdiction and disposition hearing, including the fact that Father brought the children from Mexico to the United States Border, consistently visited his children, sought housing assistance, and completed a parent education service program. We support Father in his efforts to improve his parental relationship with his children and stabilize his living situation. However, these developments do not ameliorate the risks presented by the substantial evidence of Father's past and present use of methamphetamine. As noted, Father repeatedly denied the Agency's requests to submit to voluntary drug testing, which the Agency had explained could help him to prove his ability to care for his children. Moreover, it is not our role as an appellate court to reweigh conflicting evidence; instead, we draw all reasonable inferences in support of the juvenile court's findings and view the record in the light most favorable to those findings. (In re Cole C. (2009) 174 Cal.App.4th 900, 916, 918.)
In addition to the evidence just discussed, the Agency has directed us to ample other evidence that independently supports the juvenile court's exercise of jurisdiction. Just three weeks prior to the jurisdiction and disposition hearing, the DEA recovered two kilograms of cocaine from a truck registered to Father and one kilogram of methamphetamine from a motel room containing Father's belongings. In connection with these events, a DEA detective informed the social worker that Father was a "very dangerous man" who was "clearly involved with transporting narcotics" into the United States. It was reasonable for the juvenile court to conclude, based on this evidence, that Father's conduct subjected A.M. and R.M. to a substantial risk of serious physical harm. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 994 [evidence that father trafficked narcotics supported jurisdictional finding].)
Based on the foregoing, we conclude that substantial evidence supported the juvenile court's exercise of jurisdiction over the minor children, A.M. and R.M.
III
DISPOSITION
The juvenile court's findings and orders are affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.