Opinion
E070178
10-03-2018
In re A.R., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.R., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant E.R. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J273285) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant E.R. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
E.R. (father) challenges the juvenile court's order asserting jurisdiction over his daughter, A.R., under Welfare and Institutions Code section 300, subdivision (b). He contends the evidence is insufficient to support dependency jurisdiction and removal, and the trial court erred in terminating jurisdiction and awarding sole physical custody to mother. We reject his contentions and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
I. PROCEDURAL BACKGROUND AND FACTS
A. Family History.
M.R. (mother) and father ended their eight-year marriage in 2015. The parents do not have a formal custody agreement because, mother stated, father constantly told mother that he could take the child from her because of her immigration status. They informally agreed that mother would have primary physical custody of A.R. (born in 2007), and father would have visitation three days per week, four to five hours each day.
B. Original Report and Detention Hearing.
On August 9, 2017, the family came to the attention of the San Bernardino County Children and Family Services (CFS) by way of a referral alleging that father "drinks, texts and speeds with [A.R.] in the car." A second referral on September 22, 2017, alleged that father "is emotionally abusive to [the child] causing her to be afraid of him." In an interview with the social worker, A.R. confirmed her fear of father, explaining that he drinks and drives, fights with his current girlfriend, fought with mother when they were together, and he threatens to take A.R. away from mother so she will never see mother again. The social worker contacted father, who refused to answer any questions. On October 12, 2017, CFS obtained a detention warrant to remove A.R.
On October 16, 2017, CFS filed a petition under section 300 subdivision (b) (failure to protect), alleging that father has a current substance abuse issue and there is a substantial risk that the child will suffer serious physical harm, and that mother knew or reasonably should have known about father's substance abuse issues. The detention report recommended that the child be detained with mother and that father be restricted to supervised visitation. At the hearing on October 17, 2017, the court ordered father to submit to random and same-day testing for controlled substances, and it authorized supervised visitation.
The petition also alleged that father's whereabouts were unknown (§ 300, subd. (g)); however, this allegation was dismissed at the contested jurisdiction/disposition hearing, and it is not an issue in this appeal.
C. Jurisdictional and Dispositional Hearing.
A social worker interviewed mother and A.R. on November 7, 2017. Mother indicated that father was verbally abusive during their marriage, threatening to have her deported. After the two separated, she noticed a change in his behavior. Although mother was unaware of any drug abuse by father during their marriage, the paternal grandmother reported that father "is using substances." Mother stated that during the previous few months, A.R. indicated that she did not want to go to father's home because she felt scared. A.R. had told the social worker that she felt safe at father's house, but not when he drives, because he often speeds and texts or drinks beer while driving. A.R. wished that her father would not "force her to go with him." The social worker left telephone messages for father, but he did not return her calls. Father had a decade-long alcohol abuse problem with numerous driving under the influence (DUI) convictions, for which he completed a mandatory multiple offender DUI program. CFS recommended that the court grant custody to mother, and that the dependency be dismissed. On November 20, 2017, the court set a contested jurisdiction/disposition hearing.
The social worker met with father on December 18, 2017. Father denied any substance abuse issues, stating that since his last arrest in 2015 he had not driven under the influence, and he had not driven under the influence with A.R. in the car. Father's on-demand drug test results were negative.
At the January 19, 2018, contested jurisdiction/disposition hearing, CFS introduced its reports and father testified. He acknowledged his DUI convictions, but claimed that he no longer had an alcohol problem. He stated that his last conviction was in 2015, that he had completed an 18-month alcohol abuse program, and that he was no longer on probation. He denied drinking while driving with A.R. in the car. He believed that mother persuaded A.R. to accuse him of drinking while driving her. He claimed that after the birth of his new child with his current girlfriend, mother attempted to gain sole legal and physical custody of A.R. in order to flee to a different state.
The juvenile court amended the section 300, subdivision (b) allegations to state that father has a history of substance abuse, which mother knew or reasonably should have known, and found them to be true. The court ordered joint legal custody to both father and mother, physical custody to mother, and supervised visitation for father. The dependency action was dismissed.
II. DISCUSSION
A. Substantial Evidence Supports the Jurisdictional Findings.
Father contends the evidence is insufficient to support the jurisdictional finding under section 300, subdivision (b). We disagree.
"The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)
"Section 300, subdivision (b) provides a basis for assertion of dependency jurisdiction 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 . . . to adequately supervise or protect the child . . . .'" (In re Jesus M. (2015) 235 Cal.App.4th 104, 111.) A jurisdictional finding under section 300, subdivision (b) requires "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the [child], or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) "Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness." (Id. at p. 823.) However, "[t]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re N.M. (2011) 197 Cal.App.4th 159, 165.) Rather, the court may consider past events in deciding whether a child currently needs the court's protection. (Ibid.; In re S.O. (2002) 103 Cal.App.4th 453, 461 [a parent's "'past conduct may be probative of current conditions' if there is reason to believe that the conduct will continue"].)
Here, the jurisdictional finding was based on the allegation that father's history of substance abuse poses a substantial risk to A.R. Substantial evidence shows not only a history of alcohol abuse that could lead to physical harm, but the risk that A.R. could suffer that harm. There were at least five occasions, namely the incidents giving rise to his five DUI convictions through 2015, when father was driving under the influence of alcohol or drugs. The social worker interviewed A.R., who said she does not feel safe with father when he drives because he often speeds, texts, or drinks beer while driving. Mother told the social worker that she was unaware of any drug abuse by father during their marriage; however, the paternal grandmother reported that he was using substances after the marriage.
Father dismisses A.R.'s statements to the social worker, claiming they are a fabrication rooted in mother's jealousy of his new family and her influence over A.R. to be biased against him. Acknowledging his prior DUIs, father declares that he no longer has an alcohol problem, pointing out that his drug test was negative for all substances and he had completed a DUI multiple offender program. However, father suffered a series of DUI convictions from 2003 through February 2015 and was ordered in 2012 to complete an 18-month "Multiple Offender Program." He then failed to enroll in the program until February 6, 2014, completing it on October 1, 2015. Thereafter, while the section 300 petition was pending in this case, father spent three months avoiding contact with the social worker. His evasive conduct with the social worker and his delayed enrollment in the multiple offender program indicate he is resistant to acknowledging his problem and seeking treatment. Moreover, the record lacks any evidence that father is currently participating in any program to maintain his sobriety. This history provides a substantial basis to discount father's single negative drug test, taken two months after same-day testing was ordered by the court, during much of which time father was avoiding social worker calls.
Notwithstanding the above, father cites In re David M. (2005) 134 Cal.App.4th 822, 828, 830, in support of his claim that the record "lacks any evidence of a specific, defined risk of harm" to A.R. He argues that while there are many possible harms that could present themselves, "such harms are merely speculative" absent more evidence. In In re David M., the Court of Appeal reversed a jurisdiction finding where the record contained insufficient evidence to demonstrate the mother's mental and substance abuse problems and the father's mental problems were tied to any actual harm or to a substantial risk of serious harm to the minors. (Id. at pp. 829-830.) The facts in this case differ. Here, father's history of substance abuse demonstrates an ongoing pattern of driving while intoxicated that presents a substantial risk of harm to A.R. if he should drive under the influence with her again, as she stated he recently had done. (See In re T.V. (2013) 217 Cal.App.4th 126, 133 ["A parent's past conduct is a good predictor of future behavior."].) Although defendant denied A.R.'s claims, the trial court chose to believe her. (In re I.J. (2013) 56 Cal.4th 766, 773 [issues of fact and credibility are for the trial court to decide].) We conclude that substantial evidence supports the court's jurisdictional finding.
B. Substantial Evidence Supports the Removal Order.
Father asserts that even if jurisdiction over A.R. were proper, the juvenile court lacked "clear and convincing evidence" for removal under section 361, subdivision (c). We reject his assertion.
Section 361, subdivision (c), in relevant part, provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that] . . . [¶] (1) [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 minor's parent's . . . physical custody." "We review a removal order for substantial evidence notwithstanding the clear and convincing standard used by the juvenile court." (In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.)
According to father, the juvenile court's removal order must be reversed, because CFS failed to meet its burden of showing that A.R. was at risk of substantial danger if placed in father's home because A.R. told the social worker that she felt safe when staying with father, but not when she is a passenger in his car. Father also contends that the court failed to consider any possibility of a less restrictive order, "such as unannounced home visits and/or condition the release order on father testing clean, not driving the minor and not discussing the case or saying anything derogatory about the mother," or ordering "the minor and father to participate in conjoint or family therapy."
Contrary to father's assertions, substantial evidence supports the juvenile court's findings that A.R.'s well-being and safety were at risk in the custody of father. Although A.R. denied feeling unsafe when staying with father, she also stated that she wished father would not force her to visit him. On the facts here, the possibility of injury through intoxicated driving is substantial evidence of a substantial danger to A.R.'s safety. Moreover, the record lacks any evidence that father's housing is appropriate or safe, because father refused to provide a physical address of his residence (providing only a post office box number) or any identifying information about his new baby and her mother. Even if the court could have fashioned a less restrictive order, such an order would require father's cooperation with CFS. Unannounced visits can only happen if the social worker knows the address of father's residence. Participation in family or conjoint counseling with A.R. requires that father engage in services offered by CFS, instead of refusing to sign consent forms or participate in predisposition services. And drug testing requires that father not deny any substance abuse issues or avoid the social worker's attempts to contact him. While the court could have placed restrictions on father's driving, the court reasonably concluded that not only an order, but supervision, was necessary to ensure that father did not drive with A.R. in the car.
C. The Court Properly Terminated Jurisdiction.
Father contends the juvenile court erred when it terminated jurisdiction because it "should have ordered [A.R.] placed with her mother and father subject to the supervision of the juvenile court, under section 364." He asserts that "jurisdiction was necessary to ensure [her] protection and safety." We disagree.
Section 364, subdivision (c), in relevant part, provides: "[T]he court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction [absent] a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." "[W]hen the child remains in a parent's home, the court reviews the status of the case every six months under section 364; under such review, the court is not concerned with reunification, but in determining 'whether the dependency should be terminated or whether further supervision is necessary.' [Citations.] This is so because the focus of dependency proceedings 'is to reunify the child with a parent, when safe to do so for the child. [Citations.]' [Citation.] The goal of dependency proceedings—to reunify a child with at least one parent—has been met when, at disposition, a child is placed with a former custodial parent and afforded family maintenance services." (In re Pedro Z. (2010) 190 Cal.App.4th 12, 20.) In other words, section 364, subdivision (c) establishes a "statutory presumption in favor of terminating jurisdiction and returning the children to the parents' care without court supervision." (In re Shannon M. (2013) 221 Cal.App.4th 282, 290.)
"Family reunification services shall only be provided when a child has been placed in out-of-home care, or is in the care of a previously noncustodial parent under the supervision of the juvenile court." (Welf. & Inst. Code, § 16507, subd. (b).) Here, the parents did not have a formal custodial agreement at the time of dissolution; instead, they "shared [a] mutual agreement, mutual visits, mutual time with [A.R.]." As such, under Family Code section 3080, there was a presumption that both parents shared joint custody of A.R., as joint custody is presumptively in her best interests. This presumption was rebutted when the juvenile court found that returning A.R. to father's custody was detrimental and ordered her removed. Because A.R. was placed with one custodial parent, her mother, and not in out-of-home care or that of a former noncustodial parent, father was not entitled to reunification services under Welfare and Institutions Code section 16507, subdivision (b). Termination of jurisdiction was appropriate.
D. The Court Did Not Abuse Its Discretion by Awarding Sole Custody of the Child to Mother.
Father contends that the juvenile court abused its discretion when it ordered sole physical custody of A.R. to mother with supervised visitation for him, because the order unduly restricts his rights, creating a prejudicial presumption in future family law court proceedings in favor of maintaining the status quo. We find no abuse of discretion.
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court. [Citation.]" (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123; see §§ 364, subd. (c), 362.4, subd. (a) [upon termination of jurisdiction over a child, the court on its own motion, may issue an order determining custody of, or visitation with, the child].) We review an order terminating dependency jurisdiction and determining custody for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
As previously discussed, father's history of substance abuse evidences an ongoing pattern that presented a very real risk to A.R. because it suggests that father may drive under the influence with A.R. in the car. Therefore, the juvenile court acted within its discretion by awarding sole physical custody of the child to mother and supervised visitation to father. By having the order filed in the family law court, the juvenile court provided a remedy to father, namely, modification of the order upon a showing of a significant change in circumstances and best interests of the child.
III. DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P.J. FIELDS
J