Opinion
E072134
09-16-2019
In re T.D. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.D., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1800730) OPINION APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
A.D. (Father) and B.D. (Mother) are the parents of four-year-old T.D. and two-year-old N.D. Father appeals from the juvenile court's jurisdictional and dispositional findings and orders pursuant to Welfare and Institutions Code over his children. Father requests this court's review of only a portion of the jurisdictional allegations pertaining to his conduct even though independent, unchallenged grounds exist for the court's dependency jurisdiction over the children based on Mother's conduct. Father argues (1) there was insufficient evidence to support the court's finding his error in judgment in November 2018 posed a current risk to the children in February 2019; and (2) there was insufficient evidence to support the court's order removing the children from his care. For the reasons explained, we reject Father's contentions and affirm the juvenile court's findings and orders.
Mother is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family first came to the attention of the Riverside County Department of Public Social Services (DPSS) on August 8, 2018, after it was reported that law enforcement responded to a store regarding a person shoplifting. Law enforcement made contact with Mother who had N.D. in her care. Mother was in possession of stolen merchandise, and a search of Mother's car revealed "significant" amounts of methamphetamine therein. Mother appeared to be under the influence and was described as being extremely uncooperative. She banged her head against the floor and car, and screamed "'Kill me, kill me.'" Due to concerns regarding Mother's mental health and substance abuse issues, Father agreed to seek family law orders for full legal custody of T.D. and N.D.
On August 28, 2018, Father filed for custody of his two children.
On September 19, 2018, a stipulated agreement was filed. Father was granted sole physical and legal custody of the children. Mother was granted supervised visitation and ordered to complete a drug and alcohol treatment program. The family law order also reflected that Father "shall not leave the children alone" with Mother.
On September 13, 2018, the maternal grandmother filed for temporary custody of the children's half sibling, M.E., and there was a hearing on the matter calendared for November 15, 2018. It was alleged Mother was having some health issues and was not able to provide proper care for the children's half sibling. The court ordered DPSS to prepare a report pursuant to Probate Code section 1513, subdivision (b).
On November 8, 2018, the family again came to the attention of DPSS when Mother and the children presented to an emergency room. Mother was acting erratically and appeared to have mental health issues or was under the influence of a controlled substance. Hospital staff reported that Mother "presented with racing thoughts" and "paranoia." In addition, Mother was "making circle eight patterns in front of her face" and speaking incoherently. The children were dressed in dirty clothing. Mother claimed to be homeless and living in a motel. She had dirty bottles and asked the hospital staff to fill them. The bottle had black mold on the inside lid. Mother became upset when the staff told Mother she needed a new bottle. Mother eventually left the hospital with the children, and there were concerns Mother was driving under the influence with the children.
In an attempt to locate Mother, the social worker went to Mother's hotel but Mother had checked out that morning. A hotel clerk stated that Mother checked in on November 2, 2018, and checked out on November 8, 2018. The clerk reported that Mother left the room "extremely messy and dirty upon check out" and that there were a few times she saw two young children with Mother along with an older woman. The clerk observed Mother over the course of her six-day stay to be often "sweaty, unkempt, seemingly out of breath, and upbeat." The clerk also stated that Mother seemed to talk to herself at times and suspected Mother was possibly under the influence.
The social worker located the children at the maternal grandmother's home. The maternal grandmother stated that a maternal cousin picked up the children after the cousin received a call from a DPSS office that Mother had been detained due to concerns about her behavior. The maternal grandmother contacted Father about the children, and he stated he would pick up the children the next day. The maternal grandmother noted that the children had previously lived with her, but Father "took the children on September 1, 2018, from the home at night" while the grandmother was asleep. Father only took some of the children's clothing and provisions and left the rest. The maternal grandmother did not call law enforcement, and Father would not answer his phone when she tried to call him.
The incident at the DPSS office apparently occurred prior to or after, but on the same day, as the hospital incident.
Mother had gone to a DPSS office in Jurupa on November 8, 2018, to apply for cash aid. After being denied cash aid, Mother asked for another set of hotel vouchers but she was denied those as well and became irate. Mother was asked to control her children because they were running around the office. She presented "with a dry mouth and a white substance ring around her mouth." She was acting erratic, jerking her body, and "was circling her head in a circle eight pattern." When questioned if she was using drugs, Mother became belligerent. Mother's behavior caused an officer to handcuff her. Mother's car keys were taken away and she was not allowed to drive from the facility. Mother called her cousin to pick up the children, and a sheriff's deputy drove Mother's car to the maternal grandmother's home.
On November 9, 2018, the social worker spoke with Father on the phone. The social worker introduced herself, and Father sounded upset. He did not want to talk to the social worker and became "belligerent." He stated he was not concerned for the children while in Mother's care, and believed Mother could be left alone with the children. Father asserted he was out of town and would call the social worker when he returned. He then ended the call.
The social worker met with Mother at the Riverside DPSS office on November 9, 2018. She appeared to be under the influence and submitted to two oral saliva drug tests. Both tests were positive for methamphetamine. She stated she was diagnosed with attention deficit hyperactivity disorder (ADHD), depression, and anxiety, and took the medications Wellbutrin and Prozac. She also reported that she stopped taking her medication because she did not like the way it made her feel. She acknowledged that she was homeless, but declined services for a shelter. Mother also stated that she received the children from Father on November 6, 2018, at an undisclosed location, and was adamant that she did not have to be supervised around the children. Due to the children's safety and concerns of Mother's unresolved mental health and substance abuse issues and Father's report he was out of town and unwilling to discuss the issues of the children's safety, the children were taken into protective custody.
On November 14, 2018, a petition on behalf of the children was filed pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). As to Father, the petition alleged that Father had demonstrated a limited ability to protect the children from Mother's ongoing mental health and substance abuse issues in that he failed to comply with the family law court custody orders by allowing Mother to have unsupervised contact with the children. The petition also alleged that Father had a criminal history including arrests and/or convictions for "inflict corporal injury to a spouse, assault with a deadly weapon non firearm or by force to cause great bodily injury, force inflict injury, rape spouse by force, and battery." The petition further alleged that the exact whereabouts of Father were unknown, and he failed to make himself available to provide care and support for the children. The allegations against Mother concerned her chronic and unresolved substance abuse history, her unresolved mental health issues, her failure to benefit from pre-placement services, and her lack of appropriate resources to provide the children with a safe and stable home.
At the November 15, 2018 detention hearing, the children were formally detained from parental custody. The hearing was continued to allow the social worker to interview Father. On November 16, 2018, the juvenile court adopted the temporary detention findings made on November 15, 2018, and authorized services for the parents pending the jurisdictional/dispositional hearing.
The social worker interviewed Father on November 15, 2018, after the detention hearing. Father stated that he had just started a new job as an HVAC construction technician and that he resided in the maternal grandmother's home along with the maternal cousin. He vigorously denied that he snuck out of the house as the maternal grandmother had reported. He claimed that, although he had sole legal and physical custody of the children, he was told by the social worker that he could allow Mother to visit for two hours in the community. Father apologized to the social worker for previously being rude and not taking her call. Father asserted that the children were in Mother's care because he brought the children to Mother's hotel for a visit, and he left the children in her care because T.D. did not want to leave at the end of the visit. Father had no concerns with leaving the children with Mother because he believed Mother appeared to be appropriate and was not exhibiting any erratic or weird behaviors. He thought the children were safe in Mother's care, but subsequently realized that it was not a good idea to leave the children with her.
During the social worker's interview with Father, Mother banged on the interview room door and yelled to Father not to speak with the social worker. Father asked Mother several times to go away from the door because she was jeopardizing him from getting the children back. Father stated that he wanted a restraining order against Mother and claimed that he had never previously witnessed Mother's erratic behavior. He did not know Mother was using methamphetamine until he read it in the social worker's report. He apologized again for not calling the social worker back, and stated he was remorseful that his children were no longer in his care. He submitted to a drug test and the results were negative for all substances. The father of the children's half sibling reported that Mother always had mental health issues that caused her to lose focus and act erratically.
On November 21, 2018, a first amended petition was filed to add the children's half sibling, M.E., and allegations concerning M.E.'s father. All three children were placed with the maternal grandmother.
On November 21, 2018, a Core Services referral was submitted on behalf of Father to include parenting education and individual counseling. On November 29, 2018, the social worker attempted to contact Father by phone and left a message. Father left the social worker a voicemail message on November 30, 2019, and the social worker returned his call and left another message that same day. Telephone contact was made with Father on December 3, 2018, and a phone interview was scheduled for the following day.
The social worker interviewed Father on December 4, 2018. He minimized the concerns about Mother's substance abuse and mental health issues, and stated Mother's actions and the events leading to Mother's arrest in August 2018 had nothing to do with him. In addition, he continued to deny having any knowledge of Mother's risky and erratic behaviors that led to the incidents in November 2018, and again stated that the family was not aware of Mother's issues. He also informed the social worker that he only filed for custody of the children because the assigned investigator in August 2018 made him do it. Father further reported that he was arrested in 2000 for domestic violence and spousal rape, and that he served time in prison for these crimes. However, he denied he committed these crimes and did not want to talk about the incident with the social worker.
On January 2, 2019, Father reported that he moved to Phoenix, Arizona, and had permanent employment. He claimed that he was confident he would remain stable at his location. Father also stated that he was looking for services for himself, and the social worker informed him that DPSS would look for services in his new area as well. Father visited the children on Christmas day as he was in the area for the holidays. He also visited during long weekends and made regular video chat communication during the week with the children. The children listened to Father and were happy when they saw him.
On January 16, 2019, Father reported he enrolled in individual counseling with Family Services Agency and was to begin sessions on January 30, 2019. The social worker provided Father with contact information for Valle De Sol Counseling that offered counseling and parenting education services. The social worker attempted to contact Father's counselor to discuss payment options as DPSS would assist him in payment. On January 28, 2019, the social worker again attempted to contact Father's counselor to verify enrollment and discuss payment. The following day, the social worker contacted Father regarding reimbursement for services, and informed Father she had information regarding family resource centers in Phoenix that may offer free or low cost services. Father responded that he did not think he should be required to participate in parenting classes, because he had already completed parenting classes in 2015 and had adult children he had successfully parented. He believed he learned his lesson already regarding his poor decision to allow the children to be in Mother's care.
On February 4, 2019, a second amended petition was filed removing the section 300, subdivision (g), no provision for support allegation as to Father. On that same day, the contested jurisdictional/dispositional hearing was held. At that time, Father's counsel called the social worker and the maternal grandmother to testify.
In relevant part, the social worker testified that Father allowing Mother unsupervised visitation in November 2018 violated the family law court orders which granted Father sole legal custody and Mother two hours of supervised visits a week. The social worker acknowledged that Father was cooperative with her, responded to her, interacted appropriately with the children, and there were no negative reports about Father from the children's caretaker (the maternal grandmother). The social worker explained that it was recommended Father participate in services to include parenting and counseling. Father was already engaged in counseling and had attended one session. However, Father did not believe parenting classes was critical because he had already raised adult children. The social worker attempted to contact Father's therapist, but had been unsuccessful thus far. The social worker agreed that she had recommended that the juvenile court grant Father reunification services with an authorization to have the children returned home on family maintenance services as long as he continued to participate in his case plan. The social worker explained that she had based her recommendation on Father's failure to protect the children, since the children had been found in Mother's care even after he was ordered by the family law court that Mother was not to have unsupervised visits due to her substance abuse and mental health issues. The family law court orders were made in August 2018 and finalized in September 2018, yet in November 2018, the children were with Mother unsupervised. The social worker spoke with Father that she wanted Father to participate in individual counseling so that he could have a better understanding of Mother's substance abuse history and struggles she faced with her mental health and substance abuse. The social worker noted that counseling would aid Father in better understanding Mother's issues and the risk the children faced when left unsupervised with Mother. Father's services were to help him obtain a better understanding so he would not put the children at risk again. Mother entered an inpatient treatment program the week prior to the hearing. The social worker believed that if Mother stayed in her program, there was less of a risk if the children were returned to Father, but that it was premature to return the children to Father at that time.
The maternal grandmother testified that she introduced Father to Mother and believed he would be a good role model for the children's half sibling M.E. and Mother. M.E. saw Father as a parental figure. The maternal grandmother also stated that Father showed appropriate parenting skills to the children and was affectionate towards them. She supported T.D. and N.D. being placed with Father, and believed Father knew it was a mistake to allow Mother to have unmonitored contact with the children. The maternal grandmother explained that Mother had mental illness all of her life, but the grandmother did not see her as being any different. The maternal grandmother also asserted that Mother had previously received treatment and had been placed on medication.
Father testified as well. In pertinent part, he testified that he resided in a two-bedroom apartment in Arizona which he obtained in October 2018, and explained that his father, cousins, best friend, and uncle all lived in Arizona. Father was directed by a DPSS social worker in August 2018 to a family law court and that he and Mother had agreed to the family law court orders. He explained that he left the children with Mother in November 2018 because his son was crying and wanted to stay with Mother. Father lived with Mother for about three years, and described Mother's behavior as highly emotional at times and being hardheaded and irrational. He believed Mother had symptoms of ADHD. He did not have any concerns about leaving the children with her based on this behavior. However, he also testified that "later on" he started to have some concerns with leaving the children with Mother, and even talked to the paternal grandmother about it, but it was not until he was called at 2:30 a.m. to get his daughter from the police station that he realized there were "some issues." He claimed that he was not aware of Mother's substance abuse issues because he had never done drugs. Father had only one counseling session, so he could not say if he would benefit from counseling and asserted that he did not know everything. In treatment, he was going to learn more about Mother's addiction and mental health issues, and noted that he had a "very limited knowledge of both." He asserted that he would benefit by spending time with the therapist and "learning the cues, the signs, things like that."
Following oral argument, the juvenile court found true the allegations in the second amended petition and declared the children dependents of the court. Physical custody of the children was removed from the parents' care and the parents were provided with reunification services.
On February 8, 2019, Father filed a timely notice of appeal.
III
DISCUSSION
A. Jurisdictional Findings
Father contends that the juvenile court committed reversible error because there was insufficient evidence to support the jurisdictional findings against him. Specifically, he claims substantial evidence does not support the court's finding his "error in judgment" in allowing Mother unsupervised visits with the children in November 2018 posed a current risk to the children. Father does not address the remaining jurisdictional allegations, e.g., those relating to Mother's unresolved substance abuse and mental health issues, which the court found clearly endangered the children and created a substantial risk of harm. As it is, the primary basis for the court's dependency jurisdiction stands unchallenged.
DPSS contends that the issue Father raises is nonjusticiable because the juvenile court's jurisdiction over the children was not based on Father's conduct alone. As explained, we conclude Father's challenge fails because there is overwhelming evidence of the allegations against Mother to establish the juvenile court's jurisdiction. Even if justiciable, we find substantial evidence supports the allegations as to Father.
The petitioner in a dependency proceeding must prove by a preponderance of evidence that the child who is the subject of the petition comes under the juvenile court's jurisdiction. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329 (Shelley J.).) We review jurisdictional findings under the substantial evidence standard. (In re E.B. (2010) 184 Cal.App.4th 568, 574-575; In re A.S. (2011) 202 Cal.App.4th 237, 244.) Under this standard, we determine whether there is any substantial evidence, contradicted or uncontradicted, which supports the conclusion of the trier of fact. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) All evidentiary conflicts are resolved in favor of the respondent, and where more than one inference can reasonably be deduced from the facts, we cannot substitute our own deductions for those of the trier of fact. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
1. Justiciability
Justiciability refers to whether an issue is an existing controversy and not a moot question or abstract proposition. An important requirement of justiciability is a court's ability to grant "effective" relief—that is, a remedy that can have a practical, tangible impact on the parties' conduct or legal status. It is our duty to decide actual controversies by a judgment that can be carried into effect, and not to give opinions upon moot questions or abstract propositions. (In re Madison S. (2017) 15 Cal.App.5th 308, 328-329; In re I.A. (2011) 201 Cal.App.4th 1484, 1490 (I.A.).)
Generally, to acquire jurisdiction under subdivision (b) of section 300, the juvenile court was obliged to find 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 specified forms of parental neglect, including substance abuse, physical abuse, and failure to protect the child. (§ 300, subd. (b).) It "is commonly said that the juvenile court takes jurisdiction over children, not parents. . . . The law's primary concern is the protection of children. [Citation.] The court asserts jurisdiction with respect to a child when one of the statutory prerequisites listed in section 300 has been demonstrated. [Citation.] The acquisition of personal jurisdiction over the parents through proper notice follows as a consequence of the court's assertion of dependency jurisdiction over their child." (I.A., supra, 201 Cal.App.4th at p. 1491; see In re A.R. (2014) 228 Cal.App.4th 1146, 1150.)
To secure jurisdiction over a child under section 300, the juvenile court is not obliged to make jurisdictional findings against both a father and a mother, only one of them. Because the focus of the statutory scheme governing dependency is the protection of children, "the minor is a dependent if the actions of either parent bring [him or] her within one of the statutory definitions of a dependent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397, italics added, disapproved on another ground in Shelley J., supra, 68 Cal.App.4th at p. 328.) DPSS "is not required to prove two petitions, one against the mother and one against the father, in order for the court to properly sustain a petition [pursuant to section 300] or adjudicate a dependency." (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) "A petition is brought on behalf of the child, not to punish the parents. [Citation.] The interests of both parent and child are protected by the two-step process of a dependency proceeding, with its separate adjudication and disposition hearings. Thus, when [the department] makes a prima facie case under section 300 by proving the jurisdictional facts at the adjudication hearing, it is not improper for the court to sustain the petition; not until the disposition hearing does the court determine whether the minor should be adjudged a dependent." (Ibid.; see In re X.S. (2010) 190 Cal.App.4th 1154, 1161.)
In this case, Father does not challenge the jurisdictional findings based on Mother's conduct, and there is more than substantial evidence to support jurisdiction of the children based on Mother's conduct alone. I.A., supra, 201 Cal.App.4th 1484 is instructive. In that case, the jurisdictional allegations included the mother's drug abuse, domestic violence between the parents, and the parents' criminal histories. (Id. at p. 1488.) The father there also challenged the jurisdictional findings based on his conduct, but not the findings based on the mother's conduct. The court dismissed the appeal as moot because the father's "contentions, even if accepted, would not justify a reversal of the court's jurisdictional ruling." (Id. at pp. 1487-1488.) The court explained: "[I]t is necessary only for the court to find that one parent's conduct has created circumstances triggering section 300 for the court to assert jurisdiction over the child. [Citations.] Once the child is found to be endangered in the manner described by one of the subdivisions of section 300—e.g., a risk of serious physical harm (subds. (a) & (b)), serious emotional damage (subd. (c)), sexual or other abuse (subds. (d) & (e)), or abandonment (subd. (g)), among others—the child comes within the court's jurisdiction, even if the child was not in the physical custody of one or both parents at the time the jurisdictional events occurred. [Citation.] For jurisdictional purposes, it is irrelevant which parent created those circumstances." (Id. at pp. 1491-1492.)
Here, DPSS established jurisdiction based on Mother's unresolved history of substance abuse and mental health issues. Because DPSS established jurisdiction based on Mother's substance abuse and mental health issues, the juvenile court properly found that the children came within the jurisdiction of section 300, subdivision (b). (I.A., supra, 201 Cal.App.4th at pp. 1491-1492.) Accordingly, because Father does not challenge the sufficiency of the evidence to support the jurisdictional allegations as to Mother, the juvenile court properly exercised jurisdiction over the children even if Father's conduct were not an independent basis for jurisdiction. (See, e.g., In re Maria R. (2010) 185 Cal.App.4th 48, 60, disapproved on another ground in In re I.J. (2013) 56 Cal.4th 766, 780-781; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554; In re John S. (2001) 88 Cal.App.4th 1140, 1143.)
Father acknowledges that jurisdiction over a child is established if the conduct of either parent places the child at risk under the criteria of section 300. Citing In re Drake M. (2012) 211 Cal.App.4th 754, 763 (Drake M.), Father argues nonetheless that this court should reach the issue because the court's findings under section 300, subdivision (b), as it related to him, formed the basis for the dispositional order. He also asserts that if the appeal is decided favorably to him, he would be a nonoffending parent and could assume immediate custody of the children under a plan of family maintenance. Finally, he argues that the sustained petition could have legal ramifications for him in future dependency or family law proceedings.
The general rule notwithstanding, there are some circumstances in which a reviewing court may exercise its discretion to address additional jurisdictional findings as to one parent. These include: (1) when the finding "serves as the basis for dispositional orders that are also challenged on appeal [citation];" (2) when the finding "could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations];" and (3) when the finding "'could have other consequences for [the appellant], beyond [dependency] jurisdiction' [citation]." (Drake M., supra, 211 Cal.App.4th at pp. 762-763.)
In Drake M., supra, 211 Cal.App.4th 754, the court exercised its discretion to consider the custodial father's challenge to jurisdiction because he was seeking custody of the child and the outcome of the appeal would mean the difference between the father being an "offending" versus a "non-offending" parent (id. at p. 763), a distinction that could affect the father's custody rights under section 361, subdivision (c)(1), when there is clear and convincing evidence that a child would be in substantial danger if returned home, the "court shall consider, as a reasonable means to protect the minor . . . [¶] . . . [¶] [a]llowing a nonoffending parent [or] guardian . . . to retain physical custody." (§ 361, subd. (c)(1).)
Here, unlike in Drake M., neither Father nor the record suggest any "far reaching implications" of the section 300, subdivision (b) allegations justifying our discretionary review of that issue. (Drake M., supra, 211 Cal.App.4th at p. 763.) In fact, Father does not suggest "a single specific legal or practical consequence" of the section 300, subdivision (b), finding. (See I.A., supra, 201 Cal.App.4th at p. 1493.) General allegations that the findings could impact future court orders are insufficient; the parent must identify specific legal or practical consequences arising from the dependency findings. (Ibid.) The record does not suggest any such consequence. Moreover, as explained below, Father's challenge to the dispositional order removing the children from his care was supported by substantial evidence. Because Father has not established any actual or threatened prejudice from the jurisdictional finding he seeks to challenge, we decline to exercise our jurisdiction to review it. (Id. at pp. 1493-1495.)
2. Jurisdictional Findings as to Father
Notwithstanding the foregoing, were we to consider the merit of Father's contention, we would hold that substantial evidence supported the juvenile court's jurisdictional findings as to Father. Here, the juvenile court found that Father's decision to allow Mother unsupervised visits with the children in violation of the family law court orders under allegation b-5 and Father's criminal history placed the children at substantial risk of abuse and neglect under allegation b-6.
Section 300, subdivision (b), provides, in pertinent part, that a child comes within the jurisdiction of the juvenile court 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, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (§ 300, subd. (b).)
"Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) Thus, the juvenile court "may consider past events in deciding whether a child presently needs the court's protection." (Id. at p. 1216.)
While "evidence of past conduct may be probative of current conditions, the court must determine 'whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citations.] Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135-136, italics omitted, abrogated on another ground in In re R.T. (2017) 3 Cal.5th 622, 628.)
Contrary to Father's argument, the record shows that Father violated the family law court orders by allowing Mother unsupervised contact with the children, thereby placing the children at risk of harm. Prior to the November 2018 incident, DPSS had previously conducted an investigation into the family in August 2018 due to concerns about Mother's mental health and substance abuse issues. Due to these concerns, Father agreed to file, and obtained, family law orders requesting sole custody of the children. At the jurisdictional/dispositional hearing, he testified that the August 2018 incident made him realize Mother had problems. However, despite this realization, in November 2018 Father left the children in Mother's care while she was under the influence and suffering from mental health issues. The social worker's investigation in November 2018 revealed that the children had been left with Mother for two days and Father was out of town. When the social worker spoke with Father on the telephone, he stated he was not concerned with the children being in Mother's care and continued to minimize the incident. By December 2018, he continued to deny knowledge of Mother's erratic and risky behaviors and informed the social worker that he only filed for custody of the children because the assigned investigator in August 2018 made him do it. Although Father argues otherwise, by the time of the jurisdictional/dispositional hearing, a risk of harm or neglect to the children still remained. At the hearing, Father testified that he continued to know very little about Mother's addiction and mental health issues and had attended only one counseling session and not attended any parenting classes.
Father argues that there was no longer a risk to the children because he was remorseful, it was a one-time lapse in judgment, and he would never make this same mistake again. He also asserts that he lived in Phoenix and there was a slim chance of Mother coming to his house. However, Father was aware in August 2018 of Mother's issues and even obtained sole custody of the children with Mother to have supervised visits, yet two months later he left the children with Mother while he went out of town. Although Father may not make the same mistake again, there was still a concern in February 2019 that he did not understand the severity of leaving an infant and toddler in the care of Mother. Father had only taken one counseling session and testified that he continued to know very little about Mother's addiction and mental health issues. Furthermore, whether or not Mother can show up at Father's residence is irrelevant. According to the record, Father brought the children to Mother's hotel and left the children with her in November 2018. Mother did not seek out Father at his place of residence to visit the children.
Moreover, we disagree with Father's characterization that what occurred in November 2018 was a "one-time incident." The November 2018 incident was not the first time a referral was made to DPSS concerning Mother's erratic behaviors. The first incident occurred in August 2018 which resulted in Father obtaining sole physical and legal custody of the children with no juvenile court intervention. Yet, just two months later and despite Mother's unstable substance abuse and mental health history, Father left the children with Mother for two days and went out of town. Father left the children in Mother's care unsupervised, despite being aware of Mother's issues since at least August 2018. By ignoring the family law custody orders, Father demonstrated that the children continued to be at risk of harm while in his care.
In any event, when reviewing a record for substantial evidence, as we are required to do here, we do not reweigh evidence or substitute our judgment for that of the finder of fact. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451 (Alexis E.).) The fact that Father lived in Arizona or whether it was a one-time mistake to leave the children with Mother does not diminish the juvenile court's finding that Father allowing Mother unsupervised contact with the children in violation of the family law custody orders placed the children at substantial risk of physical harm under section 300, subdivision (b). The juvenile court specifically found Father's mistake was "huge" and that Father knew of Mother's serious issues but "still felt it best or felt it okay to have the kids in her care unsupervised." The court acknowledged Father's love for the children and his progress but believed Father required "more therapy" and parenting classes in order to manage two small children. Based on the circumstances, the court found that at the time of the hearing in February 2019, the children continued to be at risk for harm or neglect while in his care.
We conclude, based on Father's history, that there is substantial evidence to support the juvenile court's finding as to Father under allegation b-5.
The juvenile court also found true the allegation b-6 that Father "has a criminal history to include arrests and/or convictions for inflict corporal injury to a spouse, assault with a deadly weapon non firearm or by force to cause great bodily injury, force inflict injury, rape spouse by force, and battery." After finding the allegation true, the court stated, "I am not basing my decision solely on (b)(6) [Father's criminal history allegation]. It is remote. There's no question about it. But it is a true fact that criminal activity occurred, but that has no bearing on my decision whatsoever." Relying on the italicized portion of the court's comments, Father believes this allegation is not an issue on appeal as it is unsustainable on its face.
Because we conclude substantial evidence supports the juvenile court's exercise of jurisdiction over the children as to Father under allegation b-5, we need not reach the issue of whether Father's criminal history posed a risk of harm to the children. (Alexis E., supra, 171 Cal.App.4th at p. 451.)
B. Dispositional Orders
Father also argues, at length, that the court's order removing the children from his care is not supported by substantial evidence and that DPSS and the court failed to consider whether removal was the only reasonable way to protect the children. We disagree.
To remove children from a parent's custody, the juvenile court must find by clear and convincing evidence that (1) there is a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if the child is returned home, and (2) there is no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361., subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th 900, 917.) "The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations]." (Id. at p. 917.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We review a juvenile court's dispositional findings for substantial evidence even where the burden of proof in the lower court is by clear and convincing evidence. (Cole C., at p. 916; see Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880 ["'[C]lear and convincing' standard . . . is for the edification and guidance of the trial court and not a standard for appellate review."].)
In the present case, there was substantial evidence to support the juvenile court's finding that removal of the children from Father's custody at the time of the dispositional hearing was the only reasonable means to protect the children from harm. The juvenile court found that the children should be removed from Father based on him allowing Mother unsupervised contact with the children in violation of the family law custody orders, Father's knowledge of Mother's unresolved mental and substance abuse issues, and Father having had only participated in one therapy session by the time of the contested jurisdictional/dispositional hearing on February 4, 2019. Father was to participate in services to help him not place the children at risk again and to gain a better understanding of Mother's struggles with mental health and substance abuse. However, by the time of the February 4, 2019 hearing, about three months after the children were formally detained, Father had only completed one individual counseling session and had not enrolled in parenting classes, believing he did not need parenting classes. The social worker believed that counseling would aid Father in understanding Mother's issues and the risk the children faced when left unsupervised with her. Father testified that he only had a very limited knowledge about Mother's addiction and mental health issues. The court acknowledged that Father was "progressing" but "hoped" he "would have availed [himself] of therapy and parenting classes prior" to the February 4, 2019 hearing. By the time of the dispositional hearing, Father had not made progress toward alleviating or mitigating the causes necessitating intervention. Accordingly, substantial evidence supports the juvenile court's dispositional order removing the children from Father's custody at the time of the contested jurisdictional/dispositional hearing.
Citing numerous cases, Father argues that DPSS should have considered other alternatives beyond removing the children from Father's custody. He also contends that DPSS did not discuss in its reports the reasonable efforts it made to prevent removal of the children from his care in violation of California Rules of Court, rule 5.690, subdivision (a)(1)(B)(i). He further asserts that the court did not make a determination whether reasonable efforts were made to prevent the need for removal.
Initially, we find Father forfeited these claims. Father did not object below to the juvenile court's dispositional findings or argue that DPSS failed to pursue reasonable alternatives to removal or assert that DPSS failed to report its efforts to prevent removal. The forfeiture doctrine (previously described as a waiver) has been repeatedly and consistently applied in dependency cases. (E.g., In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [mother waived objection to Department of Children and Family Services report]; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1484, fn. 5 [objection to removal order waived by failure to challenge below]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [by only seeking placement with herself in superior court, mother waived right on appeal to contend child should be placed with grandmother]; In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [no objection to inadequacy of social study]; In re Wilford J. (2005) 131 Cal.App.4th 742, 754 [father forfeited right to challenge jurisdictional order]; In re S.O. (2002) 103 Cal.App.4th 453, 459-460 [failure to raise issue of sufficiency of dependency petition]; see In re S.B. (2004) 32 Cal.4th 1287, 1293 [dependency matters are not exempt from forfeiture rule], superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 961-962.)
In any event, even if Father had not forfeited the above-referenced contentions on appeal, we find Father's claims lack merit. First, there is no evidence to suggest that DPSS did not consider or research alternatives to removal. Rather, based on this record, it is likely that DPSS found no alternative but to remove the children from Father's care and custody. Second, the record indicates that DPSS had previously made efforts to develop a safety plan for the children with Father having custody of the children following the August 2018 incident. When DPSS first investigated the family in August 2018, it did not detain the children and seek court intervention but guided Father to seek sole legal and physical custody of the children in family court. Those efforts resulted in Father obtaining family law custody orders with Father having sole legal and physical custody of the children and Mother having supervised visits. However, Father violated those orders, and failed to protect the children by allowing them unsupervised contact with Mother for a significant period of time even though he was aware of Mother's issues and admitted he had limited knowledge of Mother's mental illness and drug addiction.
Further, although the juvenile court did not expressly state there were no reasonable alternatives to removal, it did find there had been reasonable efforts to eliminate the need for removal. When the court does not state the factual basis for an order, we may infer the basis from the evidence. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219.) In the present case, we infer that the court considered less drastic alternatives to removal and the record supports the finding that removal was the only reasonable means of protecting the children from Father's custody. Father was aware of Mother's serious mental health and substance abuse issues (at least by August 2018), as well as, the family law custody orders, and did not protect the children by allowing Mother unsupervised contact with two small children. Father minimized his actions by asserting it was a lapse in judgment or a one-time mistake. He lacked insight into the problems that caused the children's removal from his custody. It was reasonable for the juvenile court to conclude that removal was necessary until Father had sufficient time to address the problem and gain insight.
In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), cited by Father, is distinguishable. Henry V. involved a child who was removed from his parents because he had three burns likely caused by a curling iron. (Id. at pp. 525, 527.) The juvenile court removed Henry from the home, and the Court of Appeal held that this was in error because there were reasonable means to protect Henry without depriving his parents of custody. (Id. at pp. 528-530.) The physical abuse was a single occurrence, and neither the child protective services agency nor the juvenile court considered the incident to be an obstacle to the mother's reunification with Henry in the near future. (Id. at p. 529.) Appropriate services could be provided to the mother and Henry in the family home including in-home bonding services, public health nursing services, and unannounced visits. (Ibid.) "Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures." (Id. at pp. 530-531.) Finally, the court reversed because it was unclear whether the juvenile court applied the clear and convincing standard in making its dispositional findings. (Id. at pp. 529-530.)
Father asserts that, like in Henry V., DPSS and the court "did not explore out-of-home alternatives to removal such as a plan of family maintenance in conjunction with [Father's] therapy." However, the court and DPSS did consider placing the children on family maintenance but believed placement with Father at the time of the February 4, 2019 contested jurisdictional/dispositional was premature. The court ordered the parties to come back in six weeks to see how "everything is progressing, the ICPC [for the children's placement with Father in Arizona] is moving forward, because it is the hope that [Father] is going to get his kids back real quick on family maintenance." The court thereafter authorized placing the children with Father on family maintenance should DPSS "find that father is progressing well." Further, unlike Henry V., here, the juvenile court found, based on clear and convincing evidence, that there were no reasonable means of protecting the children from a substantial risk of physical and emotional harm without removing them from Father's custody at the time of the February 4, 2019 hearing, and for the reasons discussed, substantial evidence supports this finding.
Father also relies on In re A.E. (2014) 228 Cal.App.4th 820 (A.E.), where the court reversed an order removing a child from her father's custody after he spanked her with a belt on a single occasion. (Id. at p. 822.) A.E. is distinguishable. In that case, unlike here, the risk of future abuse was minimal, and the father expressed remorse and was committed to learning better discipline methods. (Id. at p. 826.) The appellate court found that it was "clear that this was an isolated incident that was unlikely to recur." (Ibid.) Moreover, the mother affirmed that she would not allow the father to strike the child with a belt, and the department credited the family for being "cooperative, motivated to solve problems, willing to accept service from [the department], and willing to change." (Id. at p. 827.)
Here, unlike in A.E., the incident was not isolated as explained above. Although Father expressed remorse similarly to the father in A.E., Father did not take immediate steps to participate in services as the father in A.E. The father in A.E. purchased a book on parenting within eight days of the petition being filed and testified he would be taking parenting classes. (A.E., supra, 228 Cal.App.4th at pp. 823-825.) In contrast, after almost three months since the children were detained, Father only began to participate in one therapy session and continued to believe he did not need to participate in parenting classes. Also, unlike the father in A.E. who testified about his understanding of a toddler's behavior and other methods of discipline, Father here testified that he had very limited knowledge about Mother's substance abuse and mental health. (Id. at p. 826.)
Father's comparison of this case to In re Ashly F. (2014) 225 Cal.App.4th 803 (Ashly F.) is also unavailing. In that case, the mother physically abused two children. (Id. at p. 806.) The father was not aware of the beatings. (Ibid.) In its dispositional report, the department stated, without citing any evidence, that it made "'reasonable efforts'" to prevent the children's removal and there were no "'reasonable means'" to protect them. (Id. at p. 808.) The appellate court concluded that there was ample evidence of "'reasonable means'" to protect the children. (Id. at p. 810.) The court focused on the mother's remorse and the parents' enrollment in parenting classes and stated that the department should have considered "unannounced visits . . . , public health nursing services, in-home counseling services and removing Mother from the home. [Citation.]" (Ibid.) Thus, the dispositional order was reversed. (Id. at p. 811.)
This case is distinguishable from Ashly F. Here, Father's lack of urgency to attend counseling and parenting classes is in stark contrast with the actions of the parents in Ashly F., who quickly attempted to remedy the situation. (Ashly F., supra, 225 Cal.App.4th at p. 810.) Moreover, unlike in Ashly F., cases in which the department immediately removed the children after a single referral, Father was provided with an opportunity to remedy the protective issues prior to the children's removal but failed to do so by violating the family law custody orders and allowing Mother unsupervised contact with the children. (Id. at p. 805.) In Father's case, there was substantial evidence to establish the ineffectiveness of alternative measures. Furthermore, unlike in Ashly F., here, DPSS's reports documented the prior efforts of DPSS in August 2018 to assist the family alternative to removal. In addition to the efforts made in August 2018 to work with Father, DPSS's reports also showed the attempts the social worker made to inform Father about services in Arizona and to work out payment options with Father's counselor.
Notwithstanding our conclusion that there is substantial evidence to support the court's dispositional orders removing the children from Father's custody at that time, we note that Father has made progress in this dependency, which the juvenile court also recognized. Therefore, based on the record, although the court recognized that Father is headed in the right direction, the court wanted to give Father more time in therapy and in parenting classes to grow and understand Mother's mental health and substance abuse issues, to better care for his two children under the age of five. We agree with the juvenile court.
IV
DISPOSITION
The juvenile court's orders and findings are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.