Opinion
E056805
04-03-2013
In re N.M., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant D.M. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. J243909)
OPINION
APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant D.M.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
At the July 24, 2012, contested jurisdiction/disposition hearing, the juvenile court declared N.M. to be a dependent of the court, after finding the allegations pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g), to be true. Defendant and appellant D.M., father of N.M., appeals, contending there was insufficient evidence to support the court's findings and the court erred in failing to consider placement with him under section 361.2. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
On April 25, 2012, the San Bernardino County Children and Family Services (CFS) initiated dependency proceedings pursuant to section 300, subdivisions (a), (b) and (g), on behalf of N.M. (N.), born in 2005, who was living with Mother and Mother's fiancé, G.M. According to the petition, N. was corporally punished by both Mother and G.M., resulting in bruising to her legs and buttocks; both Mother and Father failed to protect the child; Father had a substance abuse problem that interfered with his ability to parent; and Father's whereabouts were unknown. N. was interviewed and stated that G.M. spanked her because of her behavior at church. She said that G.M. used a switch and his hand, and that it was not the first time he had left bruises on her. Mother did not believe the bruising on N. was a "big deal" and kept referring to it as "'all this over a spanking." Mother informed the social worker that Father had had no contact with N. since the day she was born. Mother claimed he was "a drug addict and alcoholic who is extremely violent." At the detention hearing, the court found a prima facie case that N. came under section 300, placed her in a foster care home pending relative assessment for placement, and ordered weekly supervised visitation.
The child calls G.M. "dad."
The jurisdiction/disposition report filed on May 14, 2012, recommended sustaining the allegations of the petition, out-of-home placement for N., reunification services for Mother, and that Father remain an alleged father not entitled to services. The forensic assessment confirmed that N.'s bruises were consistent with physical abuse and neglect. Mother reported she was no longer living with G.M. She also reported that Father had had no contact with N. since the day N. was born, and his whereabouts were unknown. Although Mother claimed Father was a "drug addict and alcoholic who is extremely violent," there were no arrest records found in San Bernardino County to confirm her claims.
The jurisdiction/disposition hearing was held on May 17, 2012, and Father was present. Father's counsel entered a denial and asked the court to send the matter to mediation regarding the allegations against Father, as well as the recommendation not to offer him reunification services. Counsel informed the court that Father was on the child's birth certificate and that he had two other children in his care. Thus, counsel requested that the social worker meet with Father to discuss possible placement. The court authorized "placement on R-A-U approval for any relative," and set mediation for June 19, 2012.
Mediation was held on June 19, 2012. According to the report, Father contested allegations B-4 (failure to protect from physical abuse), B-5 (substance abuse history) and G-6 (whereabouts unknown), and there was no agreement with him regarding disposition. At the pretrial settlement conference, upon Father's counsel's request the trial court set the matter for a contested jurisdiction/disposition hearing.
The first addendum report prepared for the jurisdiction/disposition hearing recommended that services be provided to Father. According to the report, Father was listed on N.'s birth certificate and he held himself out as her father. On July 5, 2012, Father stated that when N. was born, his rights were removed by the court but he did not know why. He stated he had "suffered financially over the years due to child support payments and losing his driver's license." He entered into a child support agreement with Mother; however, when she went on public assistance, the state began "charging" him. His nonpayment caused the loss of his job, and his driver's license was revoked, which in turn kept him from contacting and visiting N. According to a November 28, 2006, family law court minute order, Father was not permitted to visit with N. until further order of the court. On May 17, 2012, Father requested that Mother sign a document stating he would make no attempts to gain custody of N. and Mother would stop child support collections and release him from all parental responsibility.
Although Father doubted he was N.'s father, after the first visit, he knew "she was his." Visits were going well. While Father acknowledged that his behavior looked bad to the court, he explained that he had another family to care for. He did not want what happened to N. to happen again and believed that if he was a part of N.'s life he could prevent it. He did not want to take N. away from Mother; he was willing to take random drug tests, attend counseling, and take parenting classes while building his relationship with N. The Department recommended that services be provided to Father; however, it was concerned that Father's "written actions demonstrate he is driven by financial means and would have never considered contact with [N.] had this situation not taken place . . . ."
At the contested jurisdiction/disposition hearing on July 24, 2012, the social worker's and mediator's reports were received into evidence. Father was not present. Mother testified regarding the November 28, 2006, family court order, explaining that Father had claimed that N. was not his, and thus, the court refused to order visitation to him. Whenever Father called to ask Mother to "'take off [his] child support,'" he declined talking to N. Father had last seen N. in 2006. Although Mother had physically seen Father use drugs and drink alcohol prior to N.'s birth, she was unable to say the same after N.'s birth. CFS did a criminal history check on Father, which revealed only a dismissal for a DUI allegation in 2004.
Father's counsel conceded the G-6 allegation was appropriate, because Father was not around and had not supported N. since her birth. However, as to the B-4 allegation, counsel argued there was no evidence showing that Father knew or should have known of the risk to the child. Regarding the substance abuse allegation (B-5), counsel indicated Mother's testimony was self-serving in that she probably did not want Father around N. Counsel further argued there was no evidence that, because Father had not been around, it meant he had a substance abuse problem or that it contributed to removal of N., and that there was no nexus between the B-4 and B-5 allegations and the removal of N.
In response, CFS argued that no nexus was necessary, because the removal of N. was not from Father. Thus, CFS claimed the focus as to the noncustodial parent is whether N. could safely be placed in Father's care, and in order to do that, the court had to look at the status of the noncustodial parent, which included any allegations against him. According to CFS, it was not safe to place N. with Father because N. did not know who he was, he had a history of substance abuse, and he had abrogated all responsibility as a parent.
Following argument, the court found: "[A]s to (b)4 and (b)5 that [CFS] has sustained its burden. The Court will find that based on his abrogating his responsibility to be sure her care and safety—that would suffice to create the safety issue, not a nexus issue. That is appropriate for the (b)4 allegation. [¶] And as to (b)5, the Court will amend that based on what it's heard. Instead of saying 'problem,' 'history,' and believes the evidence it's heard in evaluating the credibility of the mother, that is supported by the evidence." The court further found that placement of N. with Father "would be detrimental to her safety, protection, or physical or emotional well-being."
II. SUFFICIENCY OF EVIDENCE
Father contends there was insufficient evidence to support the section 300, subdivisions (b) and (g) allegations as to him.
The applicable legal principles are well settled. Under the facts of this case, a juvenile court has no authority to assume jurisdiction over a child unless the circumstances, at the time of the hearing, show by a preponderance of the evidence that the child is at substantial risk of serious physical harm (§ 300, subd. (b)) or has been left without any provision for support (§ 300, subd. (g)). (§ 355; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394, 1396.) On appeal, we review the record to determine whether there is any substantial evidence to support the juvenile court's jurisdictional findings. We resolve all conflicts and draw all reasonable inferences in favor of the court's findings. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022; In re David M. (2005) 134 Cal.App.4th 822, 828.)
We must be mindful, however, that substantial evidence is not synonymous with any evidence, and a decision that is supported by a mere scintilla of evidence should not be affirmed on appeal. (In re David M., supra, 134 Cal.App.4th at p. 828.) And, although substantial evidence may consist of inferences, "'"such inferences must be 'a product of logic and reason' . . . [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]." [Citation.] "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." [Citation.]' [Citation.]" (Ibid.)
"While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the [child] to the defined risk of harm. [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, fn. omitted.) "Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
As to the B-4 allegation, it was alleged that Father failed to protect N. from physical abuse while in Mother's care when he should have known of such physical abuse. Father contends that because of the no-visitation order from the family court, he could not have protected the child or known of the abuse, and thus, this allegation is unsupported. CFS contends the record shows that Father "was neglectful in his conduct towards [N.], by completely abandoning her resulting in his failure or inability to protect [her] from the abuse she suffered." CFS argues that while the order stated no visitation between Father and the child, it was only "until further order of the court." Father never attempted to change the order. Rather, he continued to deny paternity and, even after dependency proceedings were initiated, was willing to relinquish all parental rights in exchange for not having to pay child support. Moreover, when Father called Mother to discuss child support and she offered to let him speak to the child, he declined. Father's failure to protect the child was a result of his own willful failure to be a part of his daughter's life.
As to the B-5 allegation, it was alleged, as amended, that Father had a substance abuse history that interfered with his ability to parent the child. While the only evidence supporting this allegation is Mother's self-serving testimony, the lack of any contrary evidence is due to Father's failure to appear at the contested hearing and testify on his own behalf or to provide any evidence to challenge Mother's testimony. Mother testified that she did not approve of Father's drug and alcohol abuse while she was pregnant and that is why "he kept leaving to go elsewhere." During his interview with the social worker, Father never denied having a history of substance abuse. Rather, he offered to submit to random drug testing. As CFS contends, "[w]ithout any counter evidence to discredit or cast doubt upon [M]other's statements, the court was justified in relying upon her statements in finding that [F]ather had a substance abuse history that resulted in his failure to protect [N.]" We agree.
As to the G-6 allegation, it was alleged that Father's whereabouts were unknown. The court sustained the allegation with the finding that Father did not have a relationship with N., and as a result, his ability to provide care and support for her was unknown. Father's counsel conceded this allegation; however, on appeal, he challenges the court's finding on the grounds that it "is not jurisdictional, especially when, as here, [N.] was in her mother's sole physical and legal custody[,]" and that "[w]hen [N.] was detained, the social worker found 'more than adequate food and the utilities were working' in [M]other's home." Because the petition was filed due to physical abuse by Mother's fiancé, and not lack of adequate support, Father argues that substantial evidence did not support the findings against Father.
Relying on In re Richard K. (1994) 25 Cal.App.4th 580, 589-590, CFS argues this issue is waived because Father's counsel conceded it. We agree. (In re N.M. (2011) 197 Cal.App.4th 159, 167 ["An admission that the allegations of a section 300 petition are true . . . bars the parent from bringing an appeal to challenge the sufficiency of the evidence supporting the jurisdictional allegations. (Citations.)"].) Nonetheless, even if we reach the merits of the issue, we conclude that the record supports the court's finding. Regardless of the fact that the child lived with Mother who provided adequate support, and the fact that the parents agreed that Father did not have to pay support if he released all parental rights, the law provides that the right of the child to support may not be adversely affected by any agreement between the parents. (Fam. Code, § 3556 ["The existence . . . of a duty of support owed by a noncustodial parent for the support of a minor child is not affected by a failure or refusal by the custodial parent to implement any rights as to custody or visitation granted by a court to the noncustodial parent."]; see also § 3900 ["Subject to this division, the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child's circumstances."].) Thus, Father was obligated to support the child.
According to the record, Father never had a relationship with N., he never provided support for her, and until his first visit he denied that she was his child. Father did not appear at the hearing to testify, and the record is void of any evidence as to how Father would support N. As such, the trial court correctly found that Father does not have a relationship with N., and as a result, his ability to provide care and support for her is unknown.
III. SECTION 361.2
Father contends the court erred in failing to consider him as nonoffending and then failing to proceed under section 361.2.
Section 361.2, subdivision (a) provides: "When a court orders removal of a child pursuant to [s]ection 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of [s]ection 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." "A court's ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence. [Citation.]" (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
Additionally, section 361.2, subdivision (c) requires the court to "make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b)." "'[T]he noncustodial parent is presumptively entitled to custody,' when a request is made under section 361.2, subdivision (a). [Citation.]" (In re Austin P. (2004) 118 Cal.App.4th 1124, 1133.) "Unlike section 361.5, section 361.2 does not distinguish between an offending and nonoffending parent, and the court applies section 361.2 without regard to the characterization of the parent as offending or nonoffending." (In re V.F. (2007) 157 Cal.App.4th 962, 966, superseded on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58.)
Here, the court found that "placement of the minor with her noncustodial presumed father would be detrimental to her safety, protection, or physical or emotional well-being." Given the record before this court, we are satisfied that the court adequately explored whether placing N. with Father would be detrimental to her within the meaning of section 361.2, subdivision (a). Here, there was ample evidence of detriment to N.'s emotional well-being. Until the hearing, Father was an alleged father who had not been a part of N.'s life until a few months prior to the hearing. He had not provided support for her. He had denied being her father until after their first visit. And, when speaking with the social worker, he stated that he was "not trying to take [N.] away from her mother and feels like [N.] will most likely want to continue to live with her mother." At the time of the hearing, the maternal great grandmother was available for placement. In contrast, Father remained a stranger to the child. Although we recognize that the court's decision at the dispositional stage is critical to all further proceedings, N.'s emotional well-being outweighs Father's right to having her placed with him.
For the above reasons, we conclude that the record supports the court's finding, by clear and convincing evidence, that placement of the child with Father would be detrimental to her emotional well-being.
IV. DISPOSITION
The jurisdiction/disposition orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.