In re J.G.
Filed 7/9/13 In
re J.G. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
DIVISION
FIVE
In re J.G., JR., et al.,
Persons Coming Under the Juvenile Court Law.
B244778
(Los Angeles County Super. Ct.
No. CK94093)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.G., SR.,
Defendant and Appellant.
APPEAL from
the judgment and orders of the Superior Court of
County, Debra Losnick, Juvenile Court Referee.
Affirmed.
Thomas S.
Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette
Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
________________________
J.G., Sr., (father) appeals from the dependency court’s
judgment and orders of October 11, 2012, declaring his three children (the
children) dependents of the court under Welfare and Institutions Code sections
360
and removing them from his custody. He
contends substantial evidence does not
support the jurisdictional finding that his conduct placed the children at risk
of abuse or neglect or the order removing them from his custody. We conclude substantial evidence supports the
finding and the removal order.
Accordingly, we affirm.
J.G.,
Jr., born in 2009, N.G., born in 2011, and J.G., born in June 2012, are the
children of S.H. (mother) and father,
sales, criminal convictions, and incarcerations. He was convicted of first degree burglary
(Pen. Code, § 459) in 2000 and given a suspended sentence of 4 years in
prison, on condition he serve 36 months’ probation and 365 days in jail. He was convicted of misdemeanor
sentenced to 90 days in jail. He was
convicted of vehicle theft (Veh. Code,
§ 10851, subd. (a)) in 2001 and sentenced to three years’ probation and 90 days
in jail. In 2002, he was convicted of
misdemeanor false identification to specific peace officers (Pen. Code,
§ 148.9, subd. (a)) and sentenced to 36 months’ probation and 10 days in
jail. He was convicted of vehicle theft
(Pen. Code, § 10851, subd. (a)) in 2002 and sentenced to two years in
prison. He was convicted of first degree
burglary (Pen. Code, § 459) in 2003 and sentenced to four years in prison. He was convicted of possession of narcotics
(Health & Saf., § 11350, subd. (a)) in 2009 and sentenced to three
years’ probation and 365 days in jail.
On August 23, 2011, probation was modified, and he was sentenced to 180
days in jail.
J.G.
was detained in the hospital at birth by the Department of Children and Family
Services (the Department), because he was born prematurely
with amphetamines and opiates in his system.
syndrome, presumed sepsis, and metabolic acidosis. A section 300 petition was filed. The dependency court ordered the children
detained.
Father
had only one visit with the newborn before he was arrested in June 2012 for
violating probation. He remained
incarcerated until August 10, 2012. He
stated he participated in a drug program in connection with his 2009
conviction, but he did not remember the program’s name. He agreed to submit to drug testing and
participate in individual counseling and parenting. He failed to enroll in any program. He did not cooperate with the social worker,
attend scheduled meetings, or cooperate with a court-ordered multidisciplinary
assessment of the family. He failed to
comply with the agreed-to random drug testing:
he was a “no show†on each date
in August and September when he was called to provide specimens. He failed to visit the children in
placement. Father denied mother used
drugs or displayed any signs of using drugs.
He lived with mother.
The
children had special needs. J.G., Jr.’s
mental health functioning was impaired, and he was at risk for developmental
delays. His behaviors indicated
“underlying anxiety, including hyper-vigilance, guardedness, shut-down
behaviors, averting eye contact, non-responsiveness, and a limited range of
affect/emotion. It is difficult to determine
whether [his] symptoms are a response to trauma, neglect, exposure to
substances in utero, or a combination thereof[.]†N.G. was severely delayed. He displayed mental health symptoms of severe
neglect and of not being provided with appropriate stimulation for
development. Infant J.G. displayed
“irritability, tremors, rigidity, an excessive startling reflex and excessive
hiccupping, which are all typical signs of [drug] withdrawal[.]†His withdrawal was painful. As a result of his withdrawal symptoms, he
“was not yet working on his developmental tasks.†All three children were referred to the
regional center.
name="_ftnref6" title="">[6] They needed consistent attachment
figures.
On
October 11, 2012, the children were declared dependents of the court based on
sustained allegations under section 300, subdivision (b), as to father: “father’s failure to protect†from mother’s
substance abuse placed the children at risk of harm; and father’s history of
criminal convictions, including convictions for narcotics possession, burglary,
and battery, and incarceration at the time of the children’s detention, placed
the children at risk of harm. Custody
was taken from the parents. Father was
granted reunification services and monitored visitation. He was ordered to take ten random drug tests,
and, if any test was missed or dirty, he would be required to complete a full
drug rehabilitation program. He was also
ordered to complete parenting, participate in individual counseling, and comply
with all terms of parole or probation.
DISCUSSION
Substantial Evidence
A. Substantial Evidence Supports the Allegation
Father’s Criminal History
Places the Children at Risk of Harm
Father contends substantial evidence does not support the
finding under section 300, subdivision (b) that his history of criminal
convictions and incarceration places the children at risk of physical
harm. We disagree with the contention.
In
determining whether an order is supported by substantial evidence, “we look to
see if substantial evidence, contradicted or uncontradicted, supports
[it]. [Citation.] In making this determination, we draw all
reasonable inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most favorable to
the court’s determinations[.]†(In re
Heather A. (1996) 52 Cal.App.4th 183, 193.)
Issues of fact and the credibility of witnesses are questions for the trial
court. (In re Carmaleta B. (1978) 21 Cal.3d 482, 494-495.) “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court.â€
(In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) Thus, the pertinent inquiry is whether
substantial evidence supports the finding, not whether a contrary finding might
have been made. (In re Dakota H.
(2005) 132 Cal.App.4th 212, 228.)
Section
300, subdivision (b) describes in pertinent part a child who has suffered, or
is a substantial risk of suffering, “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, . . . or by the inability of the
parent or guardian to provide regular care for the child due to the parent’s .
. . substance abuse.â€
“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 minor to the defined risk of harm.â€
(In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) The purpose of the juvenile court law is to
provide “maximum safety and protection for children†being harmed or who are at
risk of harm. (§ 300.2.) “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. Successful participation in a treatment
program for substance abuse may be considered in evaluating the home
environment.†(Ibid.)
A
missed drug test is considered a dirty drug test. (See In
re Raymond R. (1994) 26 Cal.App.4th 436, 439.)
Father’s
12 years of serial criminal activity
and incarcerations, during which he was not available to care for and protect
the children, is substantial evidence of a risk of caretaker absence, which
places the children at substantial risk of harm. Even if father’s statement he completed a
drug program, whose name he did not know, was credible, his 2009 conviction of
narcotics possession, coupled with the recent missed drug tests that he had
agreed to submit to, is substantial evidence he was unable to provide regular
care due to substance abuse.
Father
reargues the evidence and asks us to reweigh it. This we will not do. Our role is to determine whether substantial
evidence supports the finding. In this
case, ample substantial evidence supports the finding father’s history of
criminal convictions and incarceration places the children at risk of physical
harm.
B. We Need Not Decide Whether Father’s Failure
to Protect Endangers the
Children
The
dependency court found under section 300, subdivision (b) that mother has a
history of substance abuse and infant J.G. was born with drugs in his system,
and such abuse by mother, and father’s “failure to protect the children,â€
places the children at risk of harm.
Father contends substantial evidence does not support the finding that
his failure to protect the children from mother’s drug use was neglectful and
caused serious harm. We need not decide
the contention. “When
a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can
affirm the juvenile court’s finding of jurisdiction over the minor if any one
of the statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the
other alleged statutory grounds for jurisdiction are supported by the
evidence.†(In re Alexis E. (2009) 171
Cal.App.4th 438, 451 [where substantial evidence supported jurisdiction under
section 300, subdivision (b) based on father’s history of domestic
violence, the court did not need to decide whether jurisdiction was also
supported by father’s drug use]; accord, In
re I.J. (2013) 56 Cal.4th 766, 773.)
Here, dependency court jurisdiction over the children under section 300,
subdivision (b) is supported by mother’s drug use and father’s criminal history,
and father does not identify any consequence to him from the challenged
finding. Therefore, we decline to review
whether father’s failure to protect constitutes an additional basis for
jurisdiction.
C. The Removal Order is Supported by Substantial
Evidence
Father
contends it was an abuse of discretion to order the children removed from his
custody. We disagree with the
contention.
“‘The
juvenile court has broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in accordance
with this discretion. [Citations.] The court’s determination in this regard will
not be reversed absent a clear abuse of discretion.’ [Citation.]†(In re Corrine W. (2009)
45 Cal.4th 522, 532.) “‘The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to substitute its
decision for that of the trial court.’
[Citations.]†(In
re Stephanie M. (1994)
7 Cal.4th 295, 318-319.) “[W]hen a court has made a custody
determination in a dependency proceeding, ‘“a reviewing court will not disturb
that decision unless the trial court has exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd determination
[citations].â€â€™ [Citations.]†(Id.
at p. 318.) Where
substantial evidence supports the order, there is no abuse of discretion. (In re
Daniel C. H. (1990)
220 Cal.App.3d 814, 839.)
Section 361 provides in pertinent part: “(c) 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[:] [¶] (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 . . . physical custody.â€
The
evidence of father’s inability to remain free from incarceration, current drug
use, lack of rehabilitation, denial of mother’s role, and habitation with
mother, and the evidence the children suffered from severe neglect in parental
custody and require consistent attachment figures if they are to develop, is
substantial evidence supporting the finding the children are at substantial
risk in father’s custody and there are no reasonable alternative means to
protect them without removing them from his custody. (§ 361, subd. (c).) The dependency court’s decision to remove the
children from father’s custody was not an abuse of discretion.
DISPOSITION
The
judgment and orders are affirmed.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
to the Welfare and Institutions Code, unless otherwise indicated.
name="_ftn2" title="">[2] Father
was found to be the presumed father of the children.
