Opinion
D060261 Super. Ct. No. SJ11279A-E
12-16-2011
In re LA.S. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JEROME S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from judgments of the Superior Court of San Diego County, Richard E. Songer, Juvenile Court Referee, and Cynthia Bashant, Judge. Affirmed.
Jerome S. appeals judgments declaring his minor children La.S., A.S., J.S. and Lu.S. (collectively the minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing them from parental custody. Jerome contends that there was no substantial evidence to support the court's jurisdictional and dispositional findings. We affirm the judgments.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2011, the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b) alleging that nine-year-old A.S., seven-year-old La.S., four-year-old J.S. and three-year-old Lu.S. were at substantial risk of harm because their parents, Jerome and L.S., engaged in domestic violence involving the use of a deadly weapon while the minors were in the home; the parents had an extensive history of domestic violence; Jerome continued to allow L.S. to be in the home after obtaining a restraining order against her; Jerome abused alcohol and had been arrested for driving under the influence; Jerome had a mental illness for which he refused to take his prescribed medications; and Jerome minimized his alcohol abuse and mental health issues. The court detained the minors in out-of-home care.
According to Agency's reports, the parents had ongoing domestic violence issues and child welfare histories, including prior dependency cases and involvement with the criminal court. In February 2011, the parents had an altercation, during which L.S. threatened Jerome with a knife, while two of the minors and L.S.'s baby from another relationship were present. Although Jerome had requested a restraining order against L.S., he continued to allow her to be present in the home. Police were called to enforce the restraining order when L.S. tried to steal money from Jerome.
On March 9, 2011, Jerome went to the hospital because he was suicidal and was hearing voices. He was given prescription medications and was discharged the following day. However, he refused to take his medications and instead used alcohol to self-medicate. Later that month, Jerome took the minors to a medical clinic. Clinic staff called the police because Jerome smelled of alcohol. On April 2, police arrested Jerome for driving under the influence of alcohol after he had driven the minors to a park. The police found an open bottle of gin in the car and noticed that there were no car seats for the two younger children.
Following these incidents, Agency worked with Jerome to develop a safety plan for the children's protection and provided him with referrals to community resources. Agency intended to work with Jerome while he attended Alcoholics Anonymous (AA) meetings and complied with the restraining order. However, when Jerome continued to allow L.S. to be present in his home, Agency filed the dependency petitions based on its assessment that the minors were at risk of abuse and neglect and removed the minors from Jerome's custody.
At the settlement conference in June 2011, the court granted county counsel's motion to amend the petitions to eliminate language that Jerome was under the influence of alcohol when he drove the minors. Jerome waived his rights to a contested hearing and submitted on the basis of Agency's reports. The court sustained the allegations of the amended petitions and set a contested disposition hearing. At the July 1 disposition hearing, the court declared the minors dependents, removed them from parental custody, placed them with relatives and ordered Jerome to participate in reunification services.
DISCUSSION
I
Jerome contends that the evidence was insufficient to support the court's jurisdictional findings under section 300, subdivision (b). He asserts that there was no showing that the minors had suffered harm or were at substantial risk of suffering harm as a result of the parents' conduct.
A
Preliminarily, Agency asserts that Jerome's agreement to the "negotiated settlement" at the June 2011 settlement conference constituted an implied waiver of his right to appeal the sufficiency of the jurisdictional findings. We disagree.
A parent who submits on a social worker's recommendation for jurisdiction forfeits "his or her right to contest the juvenile court's decision if it coincides with the social worker's recommendation . . . ." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813; In re Richard K. (1994) 25 Cal.App.4th 580, 590.) In contrast, a parent who submits on the reports in evidence agrees to the court's consideration of the information in those reports as the only evidence in the matter. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1238.) "Notwithstanding a submittal on a particular record, the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved. [Citation.] In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. [Citation.] Thus, the parent does not waive for appellate purposes his or her right to challenge the propriety of the court's orders." (In re Richard K., at p. 589.)
Jerome did not submit on the social worker's recommendations for jurisdiction, nor did he negotiate a settlement with Agency as to the outcome of the hearing. (Cf. In re N.M. (2011) 197 Cal.App.4th 159, 167 [as part of a negotiated settlement agreement, father admitted to acts alleged in amended petition and agreed to participate in therapy to address physical abuse even though some of those acts had been stricken from original petition].) The record shows that Jerome signed a waiver of rights form by which he "submit[ted] the petition[s] on the basis of the social worker's . . . report and other documents, if any." He then initialed boxes indicating that he agreed to waive his rights to a contested hearing, and that he understood the consequences of doing so.
At the settlement conference, county counsel informed the court that the parties had reached an agreement as to the language in count 2 of the petitions, and asked the court to strike language alleging that Jerome was under the influence of alcohol when he drove the minors. None of the other parties objected, and the court made the requested amendment to the petitions. After questioning Jerome about the waiver of rights form that he had signed, the court found that his waivers were knowing and intelligent, and that he was freely and voluntarily submitting on the reports. The court then received in evidence Agency's various reports, which it had previously reviewed, and sustained the allegations of the amended petitions.
Contrary to Agency's position, there is nothing in the record to indicate that Jerome negotiated with Agency to obtain a result that "obviated the need for trial and criminal exposure." Rather, Jerome agreed to the amended language of the petitions and submitted the jurisdictional issues to be determined by the juvenile court on the basis of the information in the social worker's reports as the only evidence in the matter. Jerome thus did not waive his right to appeal the sufficiency of the evidence to support the court's jurisdictional findings. (In re Tommy E., supra, 7 Cal.App.4th at pp. 1237-1238.)
Even after count 2 was amended, it still contained allegations of Jerome's alcohol abuse, including that he drove the minors to the doctor's office where the staff smelled alcohol on him and had to call a relative to drive the minors home, and on another occasion, he was arrested for driving under the influence of alcohol.
B
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether there is substantial evidence to support the juvenile court's findings. Evidence is "substantial" if it is reasonable, credible and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Dakota H. (2005) 132 Cal.App.4th 212, 230.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the court's findings or orders. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
C
Section 300, subdivision (b), provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2, italics added.) The focus of section 300 is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536; In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)
The court may consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) Nevertheless, the question "is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)
D
Exposing children to recurring domestic violence may be sufficient to establish jurisdiction under section 300, subdivision (b). (In re Heather A., supra, 52 Cal.App.4th at pp. 193-194 [evidence of continuing violence between father and stepmother, where at least one incident occurred in presence of minors, was sufficient for jurisdictional finding]; see also In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [physical violence can support jurisdictional finding where violence is ongoing or likely to continue, and places child at risk of physical harm].) " 'Both common sense and expert opinion indicate spousal abuse is detrimental to children.' " (In re E.B. (2010) 184 Cal.App.4th 568, 576.) Domestic violence impacts children even if they are not the ones being physically abused, "because they see and hear the violence and the screaming." (In re Heather A., at p. 192.) Thus, " 'domestic violence in the same household where children are living is neglect; it is a failure to protect the [minors] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' " Such neglect causes the risk. (Id. at p. 194; accord In re S.O. (2002) 103 Cal.App.4th 453, 460-461.)
The evidence here showed that the parents had a volatile relationship and that they had engaged in domestic violence for many years. Between February 7 and April 1, 2011, police responded four times to domestic violence incidents. During a recent altercation, the parents physically fought and L.S. tried to stab Jerome with a knife while two of the minors and another child were present in the home. J.S. and Lu.S. saw the knife and described the physical fighting. J.S. heard the parents continue to argue. J.S. stated, "things are bad in the home," and said that he felt sad and scared when his parents fought. La.S. complained that the parents were mean to each other, and that they "hit and yell." She said that this makes her feel sad. On one occasion, La.S. saw Jerome punch L.S. in the face, causing L.S.'s lip to bleed. Jerome said that L.S. threw things at him, punched walls and made threats. He admitted that the minors were present whenever he and L.S. fought.
Although the minors had not been physically harmed, the cycle of violence between the parents constituted a failure to protect the minors "from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [children suffer secondary abuse from witnessing violent confrontations]; In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [minors were at substantial risk of serious harm due to violent confrontations in the family home].) Moreover, Jerome had obtained a restraining order against L.S., but nevertheless allowed her in the home. Based on these facts, one can reasonably infer that without juvenile court intervention, the violence was likely to continue, further exposing the minors to the risk of serious physical harm. (In re E.B., supra, 184 Cal.App.4th at p. 576 [experience shows that past violent behavior in a relationship is the best predictor of future violence]; cf. In re Daisy H., supra, 192 Cal.App.4th at p. 717 [evidence was insufficient to support jurisdictional findings where physical violence between parents occurred between two and seven years earlier].)
E
The evidence also showed that the minors were at substantial risk of harm as a result of Jerome's untreated alcohol abuse and his mental illness. The Legislature has emphasized that a child's well-being depends on a "home environment free from the negative effects of substance abuse . . . ." (§ 300.2.) In this regard, the 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 Heather A., supra, 52 Cal.App.4th at pp. 194-196.)
In April 2011, Jerome drove the minors, without proper car seats, to a park. The police intervened when they heard Jerome and another man arguing in the car. Jerome appeared to be under the influence of alcohol, and he admitted having consumed alcohol 30 minutes earlier. An open bottle of gin, partially empty, was found in the front seat of the car. Tests revealed Jerome's blood alcohol level was well above the legal limit. The police arrested Jerome and called the paternal aunt to pick up the minors, who were crying and upset. Two weeks earlier, the police called the paternal aunt to pick up the minors from a medical appointment because Jerome had taken them to the clinic while he was intoxicated. According to the aunt, Jerome was in denial about his alcohol abuse. According to A.S., her father was mean when he drank. Jerome refused to take responsibility for his alcohol abuse and did not recognize how his behaviors negatively impacted the minors.
Jerome's failure to manage his mental illness also placed the minors at substantial risk of harm. In March 2011, Jerome was voluntarily hospitalized because he was depressed, suicidal and was hearing voices. A doctor assessed him as having poor insight and judgment. Jerome was discharged from the hospital the following day with prescription medications, but he later admitted that he failed to take them and instead, was self-medicating with alcohol. Jerome's ongoing alcohol abuse and mental illness showed that the minors were at risk of future harm without juvenile court intervention. (See In re D.R. (2007) 155 Cal.App.4th 480, 486; cf. In re J.N. (2010) 181 Cal.App.4th 1010, 1022 [single episode of parents' drinking and driving with minors in the car was insufficient to sustain jurisdictional findings].) There is clearly substantial evidence to support the court's jurisdictional findings under section 300, subdivision (b).
II
Jerome contends that the court should have allowed him to retain custody of the minors according to the safety plan developed by Agency. In essence, Jerome is arguing that there is no substantial evidence to support the court's dispositional findings removing the minors from his custody.
We disagree with Agency's argument that Jerome has forfeited his right to assert this claim on appeal because he failed to raise it in the juvenile court. A party does not forfeit the right to challenge the sufficiency of the evidence on appeal as to the court's dispositional findings. (See In re Anthony G. (2011) 194 Cal.App.4th 1060, 1064 [parent did not forfeit right to argue sufficiency of the evidence as to jurisdictional findings].)
A
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M., supra, 134 Cal.App.3d at
p. 536.) We review the court's dispositional findings for substantial evidence. (In re Kristin H. , at p. 1654.)
B
The court removed the minors from Jerome's custody because the evidence showed that there was ongoing domestic violence, which the minors witnessed; Jerome continued to put the minors at risk by allowing L.S. to be present in the home after having obtained a restraining order against her; Jerome abused alcohol and had been arrested for driving under the influence; Jerome had a mental illness for which he refused to take his prescribed medications; and Jerome minimized his alcohol abuse and mental health issues. The evidence clearly supported a finding that the minors would be at substantial risk of harm if returned to Jerome's custody.
The evidence also supported a finding that there were no reasonable means by which the minors could be protected without removing them from Jerome's custody. Agency had worked with Jerome for several months before the petitions were filed, providing services to him in an effort to maintain the minors in his care. A safety plan was developed so that Jerome would not drive without a valid car registration and driver's license. The social worker gave Jerome a list of community resources and connected him with a parenting mentor. A placement and safety plan was developed and implemented, and Jerome agreed to attend AA meetings and to enforce the restraining order against L.S. by having no contact with her. However, the safety plan failed. By June 2011, Jerome was still allowing L.S. to be in his home, he did not understand the need to participate in therapy and he continued to blame his alcohol abuse on L.S. Because the evidence showed that Jerome had been unable or unwilling to prioritize the minors' safety and well-being despite having received numerous services in the past, the court could reasonably have concluded that returning the minors to Jerome's custody, even under a safety plan, was not a feasible alternative.
DISPOSITION
The judgments are affirmed.
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AARON, J.
WE CONCUR:
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McDONALD, Acting P. J.
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McINTYRE, J.