In re G.S.
In re G
In re G.S.
Filed 9/19/12 In re G.S. CA2/2
NOT TO BE PUBLISHED
IN THE 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
In re G.S., a Person Coming
Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPRARTMENT OF CHILDREN AND
Plaintiff and Respondent,
Defendant and Appellant.
from orders of the Superior Court
of Los Angeles
Timothy Saito, Judge.
F. Levine, under appointment by the Court of Appeal, for Defendant and
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel and
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
S. (father) appeals
from the juvenile court’s jurisdictional and dispositional orders finding
minor, three-year-old G.S., to be a dependent of the juvenile court pursuant to
Welfare and Institutions Code section 300 and ordering custody to be placed under the
supervision of the Department of Children
and Family Services (DCFS). Father contends that (1) there is
insufficient evidence to support the finding that G.S. was subject to the
jurisdiction of the juvenile court under section 300, subdivision (b), and
(2) there is insufficient evidence to support the removal order under
section 361, subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
G.S. was born in July 2008 and lived most of her life
in the home of her maternal grandparents, Ana C. (Ana) and Julio C. (Julio)
(collectively grandparents), with mother, father and mother’s sister Jessica C.
Father had a 2010 criminal conviction of misdemeanor
possession of marijuana and a bench warrant issued for vehicular hit and run.
G.S. was physically healthy,
had no known medical, developmental or behavioral problems and was current on
Referral and voluntary services
In October 2009, there was a
prior referral to DCFS, alleging that father assaulted mother, mother was
kicked out of her home because of domestic violence, father was using illegal
drugs and mother was drinking daily. The
allegations could not be substantiated and were therefore determined to be
On January 20, 2011, as the result of a call to the Child Abuse Hotline
alleging emotional abuse of G.S. by the parents and physical abuse by father,
DCFS investigated. Interviews confirmed
the emotional abuse but not the physical abuse.
As a result, parents entered
a voluntary maintenance agreement,
mother being provided with voluntary maintenance services and father with
voluntary reunification services. Mother
continued living with G.S. at the home of grandparents. Father was required to live elsewhere and
have monitored visitation. Because
mother left G.S. for long periods with grandparents and returned home under the
influence of alcohol, the voluntary maintenance agreement was invalidated.
April 2011, continuing allegations of emotional abuse of G.S. led parents to
enter another voluntary services agreement, whereby they were both given
voluntary reunification services. Mother
was to move out of grandparent’s house, and G.S. was to remain in their care. Mother and father were to participate in
parenting classes, domestic violence counseling and random drug and alcohol
testing and father in a substance abuse program. They had monitored visits with G.S.
Mother visited G.S.
regularly but did not enroll in the services in which she agreed to
participate. She subsequently entered a
substance abuse program and thereafter moved into a transitional living
center. Father failed to visit G.S.
consistently, attending only 10 of 21 scheduled monitored visits. But he interacted well with G.S. during those
visits. He too failed to enroll in the
agreed upon services.
Out of 11 toxicology tests
that were scheduled, father failed to appear for two, tested positive for
marijuana and alcohol on two, and tested positive for marijuana alone on the
rest. He said that he used marijuana for
detention report stated that mother was living with a friend, and father was
living with his brother. Mother denied
domestic violence and claimed the bruises she frequently received were from
bumping into things or falling. She said
father slapped her face and the back of her head with an open hand in the past,
but only playfully. She denied that
father ever hit her with a closed fist or ever hit G.S.
At an August 17, 2011 team decision
meeting, it was decided that DCFS would file a section 300 petition and detain
G.S. with grandparents, pending a detention hearing, because of parents’
noncompliance with the voluntary maintenance agreement, continued domestic
violence, and father’s continued substance abuse.
On August 22, 2011, DCFS filed a section 300 petition
(Petition) under subdivision (b), which, as subsequently amended, alleged
that: (1) parents had a history of violent
altercations resulting in bruising to mother (count b-1); (2) father had a
history of substance abuse, currently used marijuana, had nine positive
toxicology tests between February and August 2011, had a criminal conviction
for marijuana possession in 2010, and remedial services had failed to resolve
his problems, rendering father incapable of regularly caring for G.S.; and (3)
mother had an unresolved history of substance abuse, rendering her periodically
incapable of providing G.S. regular care (count b-3). Each of the counts alleged that the conduct
endangered G.S.’s physical health and safety and placed her at risk of physical
The August 22, 2011 detention hearing
the August 22, 2011 detention hearing, the juvenile court found a prima facie
case that G.S. was a person within section 300, subdivisions (a) and (b). It also found that her continuing to live
with the parents would create a substantial danger to her physical and
emotional health, and there was no reasonable means to protect G.S. without
removal. It ordered (1) temporary care
for and placement of G.S. vested in the DCFS, (2) G.S. to be detained with
the grandparents, (3) parents to be given monitored visitation, drug testing,
parenting classes and a drug program, and (4) G.S. to receive a mental health
and/or developmental assessment.
DCFS prepared a jurisdiction/disposition report, which
provided information obtained in interviews.
Ana reported that she saw mother and father enter their bedroom when
mother was pregnant and heard father screaming “bad words” at mother. Ana saw mother crying many times and saw
marks and bruises on mother’s arms. One
time, after G.S. was born, Ana walked into the room without knocking and saw
mother holding G.S. and father with raised hands as if he were about to hit
mother in the face. But Ana never
actually saw mother or father strike each other. At one time, mother called Ana to pick her up
and told Ana that she was tired of father hitting her. Ana reported that father smoked marijuana
when he was in the bedroom with G.S. at least three or four times but stopped
smoking it in the home after Ana objected.
Ana saw father drinking beer, but not excessively.
Mother’s sister, Jessica,
also observed bruises on mother’s arms and heard her screaming “all the time”
and fighting behind closed doors once or twice a week. Fearing that mother would try and protect
father from going to jail, Jessica recorded mother saying that father hit
her. When mother and father argued,
Jessica took G.S., so G.S. would not get hurt.
Jessica never directly observed physical violence between the
parents. She saw marijuana smoke coming
from father’s room when father lived with them and knew father was fired from
his job for smoking marijuana. In
January 2011, mother told Jessica that father was drinking excessively on a
and father’s version of events was quite different. Mother said that her relationship with father
was very supportive and that their only problem was that her family never
accepted him. She said that father would
never “really hit” her. He would just
pull her because she drank too much. He
tried to leave when she drank, but she would not let him go. She denied that father ever struck her in the
face, screamed or used profanity at her.
Mother estimated that altercations between her and father occurred once
a week. Mother said that father was a
marijuana user before she met him, that it affected his ability to parent and
that it was the reason he was fired from his job. She also said that he drank “about everyday
when we could.” Mother denied that
father smoked marijuana in the home or in the presence of G.S. She said that he smoked three to five times a
week and drank three or four cans of beer a day and more on weekends.
Father told interviewers
that he never hit or put his hands on mother and that he had never been
violent. He stated that he only smoked
marijuana three to four times a month with friends and never smoked it in front
of G.S. or in his house. He claimed to
have stopped smoking it. Father said
that his conviction for marijuana possession in 2010 was when he went to court
for a “fix it” ticket and they found a small amount of marijuana in his pocket
which had fallen there when he was smoking marijuana with a friend.
parents visited G.S., and the visits were going well.
October 3, 2011 Jurisdiction hearing
On October 3, 2011, at the jurisdiction hearing,
mother signed a waiver of rights and entered a no contest plea to the
allegations against her (count b-3). The
juvenile court admitted in evidence without objection the August 22, 2011
detention report, the September 26, 2011 jurisdictional/disposition report, the
September 29, 2011 last minute information, containing drug test results and
the October 3, 2011 last minute information, containing a letter from mother’s
substance abuse program.
juvenile court heard argument on the domestic violence and substance abuse
counts against father. Afterwards, it
dismissed the allegations under section 300, subdivision (a) and count b-4. It sustained the allegations: in count b-1, regarding the history of
violent altercations between mother and father, based upon mother’s bruising,
parents screaming at each other behind closed doors once or twice a week, Ana
seeing father about to strike mother in the face and mother’s statement to
others that father had hit her; in count b-2, relating to father’s marijuana
use, after deleting reference to alcohol, based upon recent positive toxicology
reports, father’s lack of a medical marijuana card, his long history of
marijuana use, Ana smelling marijuana smoke in the house when children were
present, mother saying she was subject to secondhand marijuana smoke from
father and G.S. being only three years old and unable to know to leave the room
if father was smoking marijuana; and count 3 relating to mother’s history of
December 5, 2011 disposition hearing
At the disposition hearing,
the same DCFS reports admitted at the jurisdiction hearing were admitted
without objection. Father’s counsel
argued that the DCFS had failed to meet its burden of establishing by clear and
convincing evidence that returning G.S. to father would create a substantial
risk of danger to her physical or emotional health. Counsel for DCFS and counsel for G.S. argued
that father had failed to do anything to address his problems and should be
required to complete the case plan requirements before G.S. should be returned
to his custody.
The juvenile court “[found]
by clear and convincing evidence, pursuant to Welfare and Institutions Code
section 361(c), that there’s a substantial danger, or would be if the children
were returned home, to the physical health, safety, protection, or physical or emotional
well-being of the child. There are no
reasonable means by which the child’s physical health or emotional health could
be protected without removal.” The court
noted that while father had made a start toward completing the requirements of
his case plan, he had not made enough progress given the history to justify
returning G.S. to his custody. Over
father’s objection, it declared G.S. to be a dependent of the court, ordered
that her care, custody and control be placed under the supervision of the DCFS,
confirmed that DCFS had placed her with Ana, ordered monitored visitation for
parents, to be liberalized within the discretion of the DCFS, and ordered that
parents participate in drug and alcohol rehabilitation program with random drug
testing, individual counseling and a parenting program. It also ordered father to participate in a
52-week domestic violence counseling
I. Sufficiency of evidence to support
The juvenile court found
that G.S. was subject to its jurisdiction because her parents had a history of
domestic altercations (count b-1), father had a history of substance abuse and
currently used marijuana (count b-2), and mother had an unresolved history of
substance abuse (count b-3), all of which endangered G.S.
Father contends that
evidence of his conduct is insufficient to support juvenile court jurisdiction
over G.S. under section 300, subdivision (b).
He argues that there was no evidence of domestic violence at the time of
the jurisdiction hearing because the parents had been living apart for at least
six months, with no evidence they intended to live together again. There was also no evidence that father had
any history of domestic violence with anyone other than mother or that G.S. was
hurt when her parents were living together.
Father also argues that there was no evidence of any substantial risk of
danger to G.S. from his marijuana use.
Father’s contention that his conduct did not provide a basis for
jurisdiction is without merit, and, in any event, jurisdiction was proper based
upon mother’s conduct.
C. Standard of review
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.)
We review jurisdictional findings under the substantial evidence
standard. (In re E.B. (2010) 184 Cal.App.4th 568, 574; 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
Substantial evidence supports the domestic
Section 300, subdivision (b) authorizes dependency
jurisdiction where a 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. This reflects that
the focus of dependency proceedings is to avert harm to the child. (In re
A.S., supra, 202 Cal.App.4th at p. 247.)
Physical violence between a child’s parents may support the exercise of
dependency jurisdiction under the failure to protect from risk of serious harm
factor, if there is evidence the violence is ongoing or likely to continue and
that it placed the child physically at risk of physical harm. (In re
Daisy H. (2011) 192 Cal.App.4th 713, 717; In re Heather A. (1996) 52 Cal.App.4th 183, 194–195.)
The gravamen of father’s argument here, that the
evidence of domestic violence does not support jurisdiction, is that there was
no showing that G.S. was at substantial risk of serious physical injury from
that violence at the time of the
jurisdiction hearing. He cites In re Rocco M. (1991) 1 Cal.App.4th 814,
824 (Rocco M.), which states that
“the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of
harm.” (Rocco M., supra, at p. 824.) Father argues that G.S. had not lived in a
house where domestic violence was occurring for over six months, as her parents
were living apart with nothing in the record to suggest that they planned to
resume living together. “In short, the
court had no evidence . . . of incidents occurring sufficiently
close to the time of the hearing to establish that [G.S.] was at substantial risk of future harm.”
While Rocco M. states
that it is the circumstances at the time of the hearing that determine
jurisdiction, it did not conclude that past conduct was irrelevant to that
determination, but rather that “evidence of past conduct may be probative of
current conditions.” (Rocco M., supra, 1 Cal.App.4th at p.
824.) There must be reason to believe
the prior acts may continue in the future.
(Ibid.) While the current circumstances are relevant
to the issue of risk, a parent’s past conduct must also be considered in
determining whether the child is at risk.
(See In re S.O. (2002) 103
Cal.App.4th 453, 461; In re Cole C. (2009)
174 Cal.App.4th 900, 916 [consider circumstances surrounding abuse, neglect,
age and any other factors probative on whether substantial risk].) Other cases have stated that current risk of
harm is not required to support the initial exercise of dependency
jurisdiction, under section 300, subdivision (b). (In re
Adam D. (2010) 183 Cal.App.4th 1250, 1261 [“current risk of harm is not
required to support the initial exercise of dependency jurisdiction under
section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial
risk that the child will suffer, serious physical harm or abuse”]; In re J.K., supra, 174 Cal.App.4th at p. 1435, fn. 5 [“at least with respect to
section 300, subdivision (b), prior abuse and harm may be sufficient to support
the initial exercise of
Whether past conduct is
determinative of section 300, subdivision (b) jurisdiction or simply probative
evidence of the conditions at the time of the jurisdiction hearing, we conclude
that the evidence here, including past conduct, was sufficient to support the
juvenile court’s finding that, at the time of the jurisdiction hearing, there
was a substantial risk that father’s prior conduct would continue in the future
and subject G.S. to serious physical harm or illness.
Of paramount importance is the
tender age of G.S., who was only three years old at the time of the
jurisdiction hearing and just over one year old at the time of the first
referral to the DCFS. In infancy, a
child is unable to protect himself or herself and is at an age of greatest
dependency on the parents’ care and protection.
“[I]nfancy [is] an inherently hazardous period of life.” (Rocco
M., supra, 1 Cal.App.4th at p. 825.)
The juvenile court is therefore justified in considering a child’s age
in assessing the gravity of the risk to the child from the parents’
Unlike in Rocco
M. where the appellate court found that the past conduct was not repetitive
or foreseeable, here the past conduct reflected father’s personal issues that
were likely to be repetitive in the future unless addressed. The record also reflects father’s reticence
to address those issues. There was
substantial evidence of a history of past domestic violence between mother and
father. Ana and Jessica heard father,
both before G.S.’s birth and after, screaming profanity at mother at least once
a week. Ana saw mother crying many
times, and both Ana and Jessica observed bruises on mother’s arms. Ana and Jessica were both told by mother that
she had been hit by father, Jessica recording mother’s statement, fearing that
mother would deny saying it to protect father.
The danger to infant G.S. was manifest, as, on one occasion, Ana walked
into the room unannounced and saw father with his hands raised about to hit
mother in the face, while she was holding
G.S. Jessica reported to DCFS that
she would take G.S. when parents argued, fearing that G.S. might otherwise be
injured. Even mother acknowledged that
father was physical with her, though trying to put an innocent spin on it. She said he hit her playfully and merely
pulled her but did not hit her.
Thus, the Petition was based, not on a single,
unforeseeable incident that was not likely to recur, but on an ongoing course
of violent conduct between mother and father.
This history of frequent violence justified the juvenile court’s
conclusion that domestic violence was likely to continue in the future.
Father argues that there is no risk
of future domestic violence because he does not live with mother, as G.S. has
lived with her grandparents for six months.
Father ignores the fact that G.S. was being protected from the violence
by living with the grandparents pursuant to a voluntary family reunification
plan, which required father to move from the grandparents’ residence. Simply because the parents were not living
together at the time of the jurisdiction hearing does not ensure that they will
not live together in the future. (See In re Carlos T. (2009) 174 Cal.App.4th
795, 806 [father’s argument that there was no substantial risk of serious
physical injury to his daughter because he was incarcerated after being
convicted was rejected by the appellate court, which concluded that there was a
possibility that his conviction would be reversed, and he would be
freed].) Here, it appears that father
stopped living with mother as a condition of the initial voluntary services
agreement, and it is unclear if he intends to resume living with her. Even if they do not live together again,
because they are coparents to G.S., they will likely have substantial future
interaction. For example, even after
mother and father separated, mother asked Ana to pick her up, saying that she
was tired of being hit by father.
Additionally, father was reluctant to register and
participate in the required services. He
failed to enroll in the services required by the voluntary services
agreement. Between the time that G.S.
was adjudicated a dependent of the juvenile court and the disposition hearing,
a period of more than two months, he had still not made sufficient progress in
following the case plan and addressing his issues to assure the juvenile court
that those issues would not recur in the future.
Finally, father argues that there is no evidence that
G.S. was ever physically harmed during any of the domestic violence
incidents. Physical harm is not required
to establish juvenile court jurisdiction.
(In re Cole C., supra, 174
Cal.App.4th at p. 917.) “‘A removal
order is proper if based on proof of a parental inability to provide proper
care for the child and proof of a potential detriment to the child if he or she
remains with the parent.
[Citation.] “The parent need not
be dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child.”
[Citation.] The court may
consider a parent’s past conduct as well as present circumstances.’” (A.S.,
supra, 202 Cal.App.4th at p. 247.)
evidence supports the substance abuse allegation
The dependency statutes reflect the significance of
parental substance abuse as a factor in obtaining dependency jurisdiction. Section 300.2 provides that, “The provision
of a home environment free from the negative effects of substance abuse is a
necessary condition for the safety, protection and physical and emotional
well-being of the child.” (See also §
300, subd. (b) [referring to the harm to the child from “the
parents’. . . mental illness, developmental disability, or substance abuse” (italics added)].) “We begin with a purely legal premise, i.e.,
that a child’s ingestion of illegal drugs constitutes ‘serious physical harm’
for purposes of section 300.’” (Rocco M., supra, 1 Cal.App.4th at p.
Father argues that there is insufficient evidence that
his marijuana use created a substantial risk to G.S. because there was no
showing that she had suffered any harm as a result. While mere use of medical marijuana by a
parent will not render a child a dependent of the juvenile court (In re Alexis E. (2009) 171 Cal.App.4th
438, 452–453 [“the mere use of marijuana by a parent will not support a
finding of risk to minors”]), here there was more. Father was
a substance abuser, impacting his work and his parenting. Mother reported that, though he had no
medical marijuana card, father was a marijuana user before she met him and that
marijuana use affected his ability to parent.
He was fired from his job because of it.
He had a prior conviction of possession of marijuana.
Though father’s alcohol abuse was not a basis for
finding juvenile court jurisdiction, his use of alcohol was often combined with
his use of marijuana, thereby enhancing its deleterious effects and increasing
the danger to G.S. Mother also reported
that father drank three or four cans of beer a day during the week and more on
weekends. Ana reported that father
smoked marijuana when he was in the bedroom with G.S. on numerous occasions, as
Ana saw smoke coming out from the door.
She saw this occur three or four times.
Father’s 11 scheduled toxicology tests corroborated his use of marijuana
and alcohol; two of the tests showed the presence of both substances and seven
showed the presence of marijuana alone.
Father failed to appear for the other two tests.
There is no assurance that father’s smoking marijuana
in a closed room with G.S. present did not cause physical harm to the
child. In any event, appellant’s
constant use of that drug in G.S.’s presence created a substantial risk of
physical harm, even if none had yet been experienced, and indiscriminate use in
front of her, when she gets older, will convey to her that ingesting illegal
drugs is acceptable behavior.
F. Jurisdiction over G.S. is proper due to
Assuming arguendo that father’s conduct was
insufficient to support the juvenile court’s exercise of jurisdiction over G.S.
under section 300, subdivision (b), mother’s admission of the allegations
against her were sufficient. A single
jurisdictional finding supported by substantial evidence is all that is
required in order for the juvenile court to sustain a section 300
petition. (In re I.A., (2011) 201 Cal.App.4th 1484, 1491 (I.A.) [“The court asserts jurisdiction with respect to a child when
one of the statutory prerequisites listed in section 300 has been
demonstrated”].) Thus, the
juvenile court can obtain jurisdiction over a child based upon the actions of
one parent, though the other parent is a model parent. (Ibid.;
In re Alysha S. (1996) 51 Cal.App.4th
393, 397; § 302, subd.
(a); In re Joshua G. (2005) 129
Cal.App.4th 189, 202 [juvenile court has jurisdiction over the children in
dependency proceedings if the actions of either parent bring the child within
one of the statutory definitions].)
As explained in I.A.,
supra, 201 Cal.App.4th at pages 1491–1492: “As a result of this focus on the child, it
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 . . . the child comes within the court’s
jurisdiction, . . . . For jurisdictional
purposes, it is irrelevant which parent created those
circumstances. . . . As a result, it is commonly said
that a jurisdictional finding involving one parent is ‘“good against both. More accurately, the minor is a dependent if
the actions of either parent bring [him] within one of the statutory
definitions of a dependent.”’
II. Sufficiency of disposition removal order
The juvenile court found at
the disposition hearing that there would be substantial danger to G.S.’s
physical health, safety, protection or physical or emotional well-being if she
were returned to her parents’ custody, and there was no reasonable means to
protect her physical or emotional health without removal. It ordered G.S. removed from parental
Father contends that there
was insufficient evidence to support the juvenile court’s dispositional order,
removing G.S. from father’s custody. He
argues that at monitored visits, the monitor reported that he interacted well
with G.S., and the risk of domestic violence was low because he and mother were
living separately. He further argues
that there was no evidence as to the frequency with which he used
marijuana. He also asserts that the
trial court failed to consider a remedy less drastic than removal of G.S. These contentions are without merit.
C. Standard of review
We begin by observing that
in dependency proceedings the burden of proof is substantially greater at the
dispositional phase than it is at the jurisdictional phase if the minor is
removed from his or her home. (In re Cheryl H. (1984) 153 Cal.App.3d
1098, 1113, disapproved on other grounds in People
v. Brown (1994) 8 Cal.4th 746 & People
v. Raley (1992) 2 Cal.4th 870, 893.)
Disposition orders removing a child from parental custody are subject to
the clear and convincing standard of proof in light of the constitutionally
protected rights of parents to the care, custody and control of their
children. (§ 361, subd. (c); In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) We review dispositional findings and
removal orders under the substantial evidence standard as described in part IC,
(In re E.B., supra, 184
Cal.App.4th at p. 574; In re Kristin H. (1996) 46 Cal.App.4th 1635,
D. Authority for juvenile court removal order
After the juvenile court finds a child to be within
its jurisdiction, it must conduct a dispositional hearing at which it must
decide where the child will live while under the court’s supervision. (In re
N.M. (2011) 197 Cal.App.4th 159, 169.)
Removal of a child from the custody of his or her parents is governed by
section 361, subdivision (c), which provides in part: “A dependent child may not be taken from the
physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court
finds clear and convincing evidence . . . [that] [¶] (1) There 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 or guardian’s
physical custody. . . . [¶] . . . [¶] (d) The court shall make a determination as
to whether reasonable efforts were made to prevent or to eliminate the need for
removal of the minor from his or her home. . . .”
there are two findings that must be made in order to remove a child from a
parent: (1) substantial danger to the
child’s physical health, and (2) no less restrictive alternative means to
protect the child in the home. (Cal.
Juvenile Dependency Practice (Cont.Ed.Bar 2011) Disposition, §§ 5.24–5.25, pp.
328–331.) In order to avert harm to the
child, “‘The parent
need not be dangerous and the minor need not have been actually harmed before
removal is appropriate.’” (In re N.M., supra, 197 Cal.App.4th at
Substantial danger to G.S.
Father makes virtually the same arguments as to the
insufficiency of the evidence to support the removal order as he made in
connection with the jurisdictional findings.
He argues that even if we find that there was sufficient evidence to
support jurisdiction, there is insufficient evidence of substantial danger to
meet the heightened standard of proof required for a dispositional removal
order. We conclude that the facts set
forth in part ID&E, ante, in
support of the juvenile court’s jurisdictional findings also sufficient to
support its removal order by clear and convincing evidence.
Father cites In re W.O. (1979) 88 Cal.App.3d 906 (W.O.), for the proposition that a remote possibility that the minors
would be endangered by their present environment did not provide a sufficient
basis for removing them from parental custody. The facts before us are a
far cry from those in W.O. In that case, two infants were removed from
their parent’s home because cocaine and marijuana were discovered at the
residence, in places not readily accessible by the children. Other than the drugs, the children were
receiving excellent care in the home, the home was well kept and adequately
furnished; both parents were deeply concerned for their children and there was
a warm and affectionate family relationship; witnesses testified that the
parents did not appear to be under the influence. The appellate court concluded that this
evidence did not support a finding that parental custody would harm the
children. (Id. at pp. 908–909.) A
remote possibility that the children might be endangered by the home
environment was not sufficient to remove them from parental custody. (Id.
at p. 911.)
In the matter before us, there is
more than father’s mere possession of marijuana or other drugs. Father has a history of substance abuse and
began using marijuana before mother met him.
There is strong evidence that father failed to protect G.S. from the
negative effects of secondhand marijuana smoke, as he smoked it in a closed
room with his infant child present, according to mother four to five times a
week. He compounded his abuse by
drinking alcohol on a daily basis, often with marijuana. He had a conviction for possession of
marijuana. Moreover, father was not
simply an occasional or recreational marijuana user, but a frequent user, whose
parenting was adversely affected by his use.
Alternative means of protecting child without removal
Section 361, subdivision (d)
provides that “[t]he court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of the minor
from his or her home . . . . The court shall
state the facts on which the decision to remove the minor is based.” The minute order of the juvenile court so
Father argues that the juvenile court failed to
consider alternative means of protecting G.S. without removing her from the
home. The juvenile court’s minute order
of the disposition hearing indicates that reasonable efforts were made to
prevent the need for removal. The court
noted that despite alternative efforts of the DCFS before filing the Petition
and detention of G.S., father continued to test positive in toxicology
screens. Due to father’s problems and
his reticence to address them, there was no alternative that would have
provided G.S. with ample security.
The orders appealed from
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS.
further statutory references are to the Welfare and Institutions Code unless
mother, Karla C. (mother), a party in the court below, is not a party to this
appeal. We refer to mother and father
collectively as parents.
being amended, the Petition also contained an allegation under section 300,
b-4 alleged that mother left G.S. with Ana for an extended period of time
without making arrangements for G.S.’s ongoing care and supervision,
endangering G.S.’s health and safety.
 Rocco M. derived its views concerning
the future risk requirement from case law that considered the prior statutory
scheme which established jurisdiction where “‘“home is an unfit place,”’”
indicating an intent that the unfitness must exist at the time of the
hearing. (In re J.K. (2009) 174 Cal.App.4th 1426, 1436.)