Opinion
C091587
03-24-2022
In re A.M., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, V.M., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. JD240329)
MAURO, J.
Shortly after her birth, the juvenile court took dependency jurisdiction of A.M. under Welfare and Institutions Code section 300 after K.K. (mother) tested positive for methamphetamine during a prenatal screening. Appellant V.M. (father) challenges the sufficiency of the evidence supporting the allegation that he failed to protect A.M. from mother's drug abuse while pregnant, which was the sole allegation involving him, and also challenges the sufficiency of the evidence supporting the physical removal of A.M. from his custody and care. He further argues the juvenile court failed to consider reasonable alternatives to removal.
Undesignated statutory references are to the Welfare and Institutions Code.
While father's appeal was pending, respondent Sacramento County Department of Child, Family and Adult Services (Department) notified this court that dependency jurisdiction over A.M. had been terminated. We requested supplemental briefing from the parties on what effect, if any, the order terminating dependency jurisdiction has on the pending appeal. The parties disagree on whether the termination order renders father's appeal moot.
After considering the parties' supplemental briefs, we conclude father's appeal is not moot even though the juvenile court has terminated dependency proceedings over A.M. We further conclude sufficient evidence supports the juvenile court's orders, and we will affirm those orders.
BACKGROUND
A.M. was born in December 2019, to mother and father who were not married. The next day, the Department received a referral from a mandated reporter alleging general neglect against mother based on a positive drug test while pregnant with A.M.
On December 19, 2019, the Department filed a section 300 petition on A.M.'s behalf alleging in count (b)(1)-1 that mother had a substance abuse problem from which she failed or refused to rehabilitate which impaired her judgment and ability to provide adequate care, support, and supervision for A.M. Mother had tested positive for methamphetamine at a prenatal appointment in October 2019. Both mother and A.M. tested negative for the presence of all substances at the time of delivery, and mother tested negative at a follow up test on December 16, 2019. Despite the negative drug tests, the petition alleged A.M. was at substantial risk of physical harm, abuse or neglect because mother refused to complete additional drug tests or to engage in services, and had had limited prenatal care.
Count (b)(1)-2 alleged father failed to protect A.M. in that he knew or reasonably should have known mother was using illicit substances during her pregnancy and failed to take adequate steps to protect A.M. from mother's drug use. According to the petition, father was present with mother in a car in April 2019 when law enforcement found mother to be in possession of a clear glass pipe and a substance later identified as heroin. Father's failure to protect A.M. from mother's substance abuse issues, the petition alleged, placed the child at substantial risk of physical harm, abuse, or neglect.
The Department recommended that A.M. be detained pending a jurisdiction and disposition hearing given mother's ongoing substance abuse issues, father's failure to protect, and the parents' unwillingness to engage in services aimed at mitigating future risk to A.M. According to the detention report, mother had admitted participating in a drug rehabilitation program when she was younger, but was not forthcoming with details about the program. Other evidence in the record shows mother attended a residential treatment program in Oregon for two months when she was 16 years old, but that she did not complete the program. She admitted using drugs on and off prior to finding out she was pregnant, and said that using methamphetamine while pregnant was a "one-time thing" because she was stressed. Mother stated father did not use drugs or alcohol. Mother initially agreed to engage in drug testing and to reside with the maternal grandparents, who were actively involved with mother and child at the hospital during the birth. After passing a drug test on December 16, however, mother stated she was unwilling to engage in services, including ongoing drug testing or participating in alcohol or other drug treatment programs aimed at mitigating risk to A.M.
Mother was not interested in receiving services from the Department and reported she did not want to participate in Preventative Child Family Team meetings. She was not willing to accept Informal Supervision services given difficulties in arranging transportation to services, despite the social worker's offer to provide bus passes. She was willing to have her parents' home assessed for placement should the Department move forward with court intervention to remove A.M. based on mother's refusal to voluntarily participate in services.
Father denied knowing much about mother's drug use and said she never used drugs in front of him. Although he knew mother had used drugs in the past, father claimed he thought she had stopped using while pregnant. Father admitted to a history of drug use, but said he had not used since 2018; he did not attend any group meetings to maintain sobriety. Father originally agreed to drug test for the Department, but then rescinded, arguing it was the mother's drug issue that got the Department involved and not his. Father did not test as requested.
Both father and mother have previous criminal convictions, including convictions for drug-related offenses. Father's numerous prior convictions included a 2009 conviction for transporting a controlled substance and a 2013 conviction for driving under the influence.
The juvenile court initially granted the Department's request for a protective custody warrant for A.M., and she was temporarily removed from her parents' custody on December 19. At the detention hearing on December 23, the juvenile court recalled the protective custody warrant after finding that allowing A.M. to remain in the home was not contrary to her well-being. The juvenile court ordered that A.M. remain in the custody of her parents pending a jurisdiction and disposition hearing with a safety plan that mother and A.M. reside with the maternal grandmother, and all visits by mother and father were to be supervised by a Department approved relative or Department representative. The juvenile court also ordered mother to submit to random drug testing. Father was not ordered to drug test.
At a subsequent hearing, the juvenile court lifted the requirement that contact between mother and A.M. be supervised by the maternal grandmother so long as mother continued to reside with A.M. at the maternal grandmother's house, and continued to drug test. Father apparently became aggressive with a social worker during his interview to investigate the allegations and refused to discuss the matter further without his attorney present. His visits were subsequently changed from the maternal grandmother's house to a Department-chosen location.
In January 2020, the Department filed a jurisdiction/disposition report which recounted that mother denied having a drug problem but admitted she "messed up one time" when testing positive for methamphetamine while pregnant. She said she attended more than three prenatal appointments, and she denied ever stating that she used methamphetamine or heroin the day before her delivery. Mother claimed she did not need continued drug testing because she was not currently using drugs. She also did not feel the need to engage with voluntary services, although she was willing to comply with services and additional drug testing to ensure her daughter was not removed from her custody again. Mother had been completing her random drug testing, which results were negative, had attended an intake appointment with the Bridges Program, and started outpatient treatment classes at Strategies for Change.
Mother first used methamphetamine and heroin at the age of 16. She said she stopped using methamphetamine before getting pregnant, and used it only once during pregnancy when stressed; she further claimed it had been years since she had used heroin despite being located by police sitting in a car with father in April 2019 with a glass pipe and heroin nearby. During the incident, mother told officers the heroin was hers and that she was pregnant and needed to get into a drug diversion program. Mother refused to discuss the April 2019 incident, which resulted in a drug conviction under Health and Safety Code section 11350, as she did not want to incriminate herself; she also refused to discuss her past criminal history, claiming her past was her past.
As for father, the report noted that the social worker attempted to interview him but that he declined to be interviewed without his attorney present. It was father's position that because the allegations arose from mother's drug use, the Department should work with mother and not him.
The report also detailed a March 2019 law enforcement investigation to determine whether father was selling drugs and in possession of a stolen firearm. Officers found a large amount of narcotics in father's vehicle, including substances that tested presumptively positive for 25 grams of methamphetamine, 64 grams of heroin, and six grams of cocaine. A handgun was later recovered after father called someone and told them to leave the gun in a specified garbage can. Father had been involved in many calls for police service and was thought to be a known narcotics dealer in the Antelope and North Highlands area. During the last several calls for service, mother was present with father.
In an addendum report filed January 15, 2020, the Department noted that father had not completed any drug testing (although he had not been ordered to drug test by the juvenile court). According to the addendum, mother was slow to engage in services or to show a commitment to changing her behaviors, which increased the risk to A.M. The report questioned father's statement that he had no knowledge of mother's drug use given his presence in the car in April 2019 when she was found to be in possession of heroin.
The addendum recommended that it was in the best interest of A.M. to remain living with mother, as mother was currently participating in substance abuse services and was residing with the maternal grandparents, who were actively involved in A.M.'s care. The report noted that child welfare services were available that would prevent the need to remove A.M. from mother, and that father should have regular visitation, the time, place, and manner of which should be determined by the Department.
The Department filed a second addendum report on February 23, 2020. The Department conducted a home visit at father's three-bedroom, two-bath residence on January 13, which was clean and free from hazards. Father explained that he would purchase a crib and set it up in his room if A.M. was permitted to stay at the home; the paternal grandmother was also present and showed the social worker an available changing table.
At the conclusion of the home inspection, the social worker asked the paternal grandmother about the current matter in order to assess if she was able to supervise contact between the father and A.M. Father became angry when the social worker asked the grandmother whether she was aware of the current allegations; father said the grandmother could not speak to the social worker without an attorney present. The paternal grandmother said she would like to discuss the matter with an attorney. Father asked the social worker to leave, and she complied.
That same day, the social worker attempted to interview the maternal grandmother over the phone. During the interview, mother took the phone and said she was aware she had a right to have an attorney present and wanted to retract any information she had previously provided; she also stated that the maternal grandmother would not participate in the interview without an attorney. After mother handed the phone back to the maternal grandmother and the grandmother requested an attorney, the social worker terminated the interview.
On February 10, 2020, social workers met with the parents and a family service worker in order to conduct a child family team meeting, but father refused to proceed without an attorney present. The social worker unsuccessfully tried to contact the attorney, and the meeting was postponed. Father visited with A.M. that day, and it was reported that he was attentive and appropriate during the visit. The social worker tried to arrange earlier visits, but had trouble contacting father to make arrangements. Father admitted he kept his voicemail box full to prevent further voicemail messages.
At a combined jurisdiction and disposition hearing on February 18, 2020, the juvenile court received the jurisdiction/disposition report and the addenda into evidence and considered the arguments of counsel. No party called any witnesses. The juvenile court sustained both allegations in the petition. It amended the petition to reflect that mother had a substance abuse problem from which she had "refused" to rehabilitate. The juvenile court found that there were services available to maintain A.M. in her mother's home. Although mother originally refused to participate in services or to accept informal supervision, after the petition was filed mother tested negative for drugs on multiple occasions and was participating in services. Mother and A.M. also resided with the maternal grandparents, who provided additional support.
The juvenile court found that there was a substantial danger to A.M.'s physical health if she remained in the physical custody of father, and no reasonable means by which her health and safety could be protected absent removal from his custody. In so finding, the juvenile court noted that father admitted using methamphetamine until at least 2018, that there were reports of father dealing drugs and that father had a prior narcotics-related conviction, and that less than a year ago father was found in possession of methamphetamine, heroin, and cocaine. The juvenile court also cited father's failure to drug test for the Department, his criminal history, and his refusal to participate in the dependency process when finding it had no confidence father would abide by juvenile court orders that could otherwise be used to protect A.M. in his care. The juvenile court therefore removed A.M. from father's physical custody and ordered reunification services. Father appealed, but mother did not.
DISCUSSION
I
Father contends the juvenile court's termination of dependency jurisdiction does not render his appeal from the jurisdictional findings and dispositional order moot. He argues that dismissing the appeal would have the undesirable result of insulating erroneous or arbitrary juvenile court rulings (see e.g., In re Marquis H. (2013) 212 Cal.App.4th 718, 724), and that the adverse findings and order negatively impacted the subsequent custody and visitation orders entered on October 21, 2020, in which the juvenile court ordered that mother would have legal and physical custody of A.M., with supervised visits for father, based on father not having completed court-ordered programs at disposition.
The Department counters that father's appeal is moot because father did not appeal from the subsequent dismissal and custody orders, and those orders were not based on any jurisdictional finding related to father. In the Department's view, the custody order, including supervised visitation, was based on father's failure to complete parenting classes, a drug and alcohol treatment program, and drug testing as ordered at disposition.
In general,"' "an appeal presenting only abstract or academic questions is subject to dismissal as moot." '" (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547; see In re N.S. (2016) 245 Cal.App.4th 53, 58 [an appellate court has a general duty to decide actual controversies by a judgment that can be carried into effect; it is not the court's duty to offer opinions on moot questions or abstract propositions, or to declare principles or rules of law, that cannot affect the matter before it].) However, a dependency appeal is not moot where the contentions implicate the outcome of subsequent proceedings or the asserted error would undermine the juvenile court's initial jurisdictional finding. (In re Joshua C., at p. 1547.) Thus," 'questions of mootness must be decided on a case-by-case basis.'" (Ibid.)
Here, the sustained jurisdictional findings may have an adverse effect on father's custody rights in the future if dependency proceedings are ever reinitiated as to A.M. And while father may, upon a showing of changed circumstances, secure modification of the custody and visitation orders in the family law court, such a proceeding does not provide a forum for challenging errors made in the jurisdictional hearings in juvenile court. (In re Joshua C., supra, 24 Cal.App.4th at p. 1548.) Consequently, we conclude father's appellate challenge is not moot, and we proceed to the merits of his appeal.
II
Father contends substantial evidence does not support the juvenile court's sustaining of the failure to protect allegation, which was based on his conduct. While he acknowledges that the unchallenged findings as to mother will continue to support dependency jurisdiction under section 300, subdivision (b) since mother has not appealed the allegation sustained against her, he asks this court to exercise its discretion to reach the merits of his jurisdictional claim.
When a dependency petition alleges multiple grounds for asserting a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the lower court's jurisdictional finding over the minor if substantial evidence supports any one of the statutory bases for jurisdiction alleged in the petition. (In re Drake M. (2012) 211 Cal.App.4th 754, 762; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) "In such a case, the reviewing court need not consider whether any and all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E., at p. 451.)
In a dependency proceeding, the social services agency must prove by a preponderance of the evidence that the minor who is the subject of a dependency petition comes within the juvenile court's jurisdiction. (§ 355, subd. (a); In re Isabella F. (2014) 226 Cal.App.4th 128, 137.) As relevant here, section 300, subdivision (b)(1) authorizes dependency jurisdiction when "[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 the child's parent . . . to adequately supervise or protect the child, . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability or substance abuse."
We review a jurisdictional challenge for substantial evidence, asking whether the record contains evidence that is reasonable, credible, and of solid value sufficient for a reasonable trier of fact to find jurisdiction. (In re Isabella F., supra, 226 Cal.App.4th at p. 137.) In doing so, we consider the record as a whole, resolving all conflicts and drawing all reasonable inferences to support the juvenile court's findings; we may not reweigh the evidence or consider the credibility of witnesses. (Id. at pp. 137-138.) We affirm the order even if other evidence supports a different finding. (Ibid.)
Juvenile dependency proceedings are intended to protect not only children who are currently being abused or neglected, but also "to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2; see In re T.V. (2013) 217 Cal.App.4th 126, 133.)" 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.'" (In re T.V., at p. 133.)
In this case, the Department identified father's failure to protect A.M. from mother's drug abuse as the basis for father's alleged inability to provide safe and appropriate care for the child and to protect A.M. from mother. It cited mother's positive drug test in October while pregnant with A.M., and also the April 2019 incident where father was found in a car with mother with heroin and drug paraphernalia as evidence that father knew or reasonably should have known that mother was using drugs.
The juvenile court found there was no dispute that father was present in a car with mother when she was found in possession of drug paraphernalia and heroin, contradicting his representation that he was unaware of mother's drug use. The record supports the inference drawn by the juvenile court that father was not credible in denying his knowledge of mother's substance abuse while pregnant. The juvenile court could also reasonably disbelieve father's claim that he had not used drugs since 2018 given the evidence that father had a prior conviction for transporting narcotics and had been found with multiple illegal substances, including cocaine, heroin, and methamphetamine in March 2019, only a month before he was found in the car with mother while she possessed heroin and drug paraphernalia.
The juvenile court could reasonably infer from such evidence that father was aware of, and enabling, mother's drug use.
Whether other evidence in the record can support the opposite inference does not change our analysis as the reviewing court determines only if there is" 'substantial evidence, contradicted or uncontradicted'" to support the trial court's findings. (In re I.J. (2013) 56 Cal.4th 766, 773; see In re M.R. (2017) 8 Cal.App.5th 101, 108 ["we do not consider whether . . . the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw"].) Father's interpretation of the evidence fails under the applicable standard of review; it is the trial court's province to decide issues of credibility, and the juvenile court decided the credibility issue against him. (In re I.J., at p. 773.)
While father argues that the petition did not allege his past drug abuse or trafficking conviction as a basis for jurisdiction, and claims that concerns involving such matters amounted to nothing more than mere speculation, the juvenile court could consider past events when determining whether A.M. presently needed the juvenile court's protection. (In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170.) "Facts supporting allegations that a child is one described by section 300 are cumulative." (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the circumstances affecting the child, wherever they occur." (Id. at p. 1048.)
Evidence showing father admitted having a prior drug problem, and had prior drug-related convictions or arrests, including an arrest a month before the April 2019 heroin incident with mother, and that mother was often with him when officers responded to many calls for service where father was thought to be selling and using narcotics, were circumstances tending to show that father was involved with drugs, and aware of, mother's own drug use. Such circumstances were relevant to show father knew or reasonably should have known mother was using illegal substances while pregnant. Contrary to father's contention, such evidence was not mere speculation.
The evidence was sufficient to support, by a preponderance of the evidence, that father knew or reasonably should have known mother was using drugs while pregnant and that he failed to protect A.M. from mother's drug use. The juvenile court thus appropriately sustained the failure to protect allegation based on father's conduct.
III
Father contends that even if sufficient evidence supports the juvenile court's jurisdiction finding that he failed to protect A.M. from mother's drug use, the juvenile court erred when it removed A.M. from his physical custody while maintaining her with mother. He also argues the Department failed to make reasonable efforts to prevent A.M.'s removal from his custody as legally required.
To support an order removing a child from parental custody, the juvenile court must find clear and convincing evidence "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the . . . guardian's . . . physical custody." (§ 361, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.)"' "The elevated burden of proof for removal from the home . . . reflects the Legislature's recognition of the rights of parents to the care, custody and management of their children, and further reflects an effort to keep children in their homes when it is safe to do so. [Citations.] By requiring clear and convincing evidence of the risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety, section 361, subdivision (c) demonstrates the 'bias of the controlling statute is on family preservation, not removal.'" '" (In re E.E. (2020) 49 Cal.App.5th 195, 217-218.)
Here, sufficient evidence supports the trial court's orders maintaining A.M. with mother but not allowing father to share physical custody. The record shows that father admitted using methamphetamine at least until 2018, and that in March 2019 officers found methamphetamine, heroin, and cocaine in his possession. Yet he claimed the drug problem was mother's, not his. He had prior drug-related convictions or arrests, including an arrest a month before the April 2019 heroin incident with mother. As we have explained, the record further shows that he was with mother when she was found in possession of drugs and yet he represented that he had no such knowledge. In addition, he repeatedly declined to engage in the dependency process. On this record, the juvenile court's orders are supported by sufficient evidence.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: ROBIE, Acting P. J., DUARTE, J.