In re Joshua
J.
Filed 1/4/13 In re Joshua J. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
DIVISION
THREE
In re JOSHUA J., et al., Persons
Coming Under the Juvenile Court Law.
B241205
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
JUSTIN J.,
Defendant
and Appellant.
Super.
Ct.
No. CK38073)
APPEAL from a judgment and order of the Superior Court of
County, Marguerite Downing, Judge. Judgment
reversed in part, affirmed in part.
Order reversed.
Michelle L. Jarvis, under
appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________
Justin J. (father) appeals
from (1) a judgment declaring his children dependents of the court pursuant to
Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 300, subdivision (b),
and (2) a subsequent order requiring him to participate in a substance
abuse program. He contends that the
evidence was insufficient to support the trial court’s finding that he had a
current substance abuse problem or to support the trial court’s order requiring
him to participate in a substance abuse program. We agree and will reverse the judgment (in
part) and the order.
Father and Stephanie S. (mother)
have three children together:
name="_ftnref4" title="">[4]
and Ju.J., born in 2006. The children
came to the attention of the Department
of Children and Family Services (DCFS) on January 11, 2012 through a referral alleging that they were the victims of physical
abuse by both parents. Father, however,
was incarcerated at the time and had been since October of 2011. Mother stated that she believed a woman named
Murjani M., who had had an affair with father previously and may have had a
child by him, was responsible for the allegations. Mother also stated that she believed father
was incarcerated due to Murjani’s falsely accusing him of
In response to the referral, a DCFS
social worker interviewed the children.
what drinking alcohol and doing drugs were.
Ju.J. responded that her aunt drinks beer but that neither her mother
nor her father drinks. She stated that
“her mom and dad smoke cigarettes and blunts (brown things that she call [sic]
cancer bars)†but did not provide any further explanation. Ju.J. recanted in a subsequent interview
stating, “ ‘Nobody does drugs.’ â€
When asked about drugs and alcohol, J.J.
responded that “her dad drinks and her mom and dad smoke weed.†She recanted in a subsequent interview,
however. Joshua stated that “nobody
drinks†at home and “that his parents only smoke cigarettes, they don’t smoke
weed.â€
With respect to father’s alleged
marijuana abuse, DCFS reported that a “collateral contact that has had a
professional relationship with the family for years†stated that she suspected
that there was marijuana use in the home but provided no evidence or
explanation as to why she had that suspicion.
DCFS also reported that mother denied that father was a current abuser
of marijuana stating, “ ‘He is a clean and sober man.’ †According to DCFS’s records, father tested
positive for methamphetamine and marijuana on January 9, 2009 and had admitted
to a history of substance abuse but denied any current usage.
The petition was filed on January 31, 2012. The family has had
10 DCFS investigations prior to the one that led to this appeal. The trial court found that a prima facie
case for detention was made. The
children were placed in the home of their maternal aunt and uncle.
At the adjudication hearing on April 11, 2012, the trial court sustained, as amended, counts b-3
and b-10
against mother and father, count b-8
against mother, and count b-9 against father.
Father only appeals from count b-9, which stated, “The
children[’s] . . . father . . . has a
history of substance abuse, and is a current abuser of marijuana. On prior occasions, the father possessed,
used, and was under the influence of illicit drugs while the children were in
the father’s care and supervision. The
father’s substance abuse endangers the children’s physical health and safety,
creates a detrimental and endangering home environment, and places the
children at risk of physical harm, and damage.â€
The trial court stated with respect to count b‑9, “I’m sustaining
the drug allegation because there’s a reference about smoking [a] blunt. There’s a discussion about recreational
marijuana. I do not know that there is a
nexus between the use of marijuana and the failure to appropriately parent and
provide [for the children’s needs] as required.
[¶] So, the court does not think
this is a case where it’s use of marijuana.â€
The dispositional hearing was held
on April 30, 2012. The trial court
ordered father to complete a substance abuse program, to attended parenting and
individual counseling, and to have monitored visitation with the children (with
DCFS having discretion to liberalize).
Father filed a notice of appeal on May 10, 2012.
Father contends that the record does
not support the trial court’s finding that he had a current substance abuse
problem and, therefore, jurisdiction based on such finding was erroneous. He also contends that, because such finding
was not supported by the evidence, the trial court’s order that he participate
in a substance abuse program based on such finding was an abuse of
discretion. He does not challenge any of
the other bases for jurisdiction nor does he challenge any of the court’s other
orders.
1.
Addressed
DCFS pointed out in its opposition
that should we reverse the judgment as to father with respect to this one
finding, the unchallenged findings as to father and to mother will continue to
support dependency jurisdiction pursuant to section 300, subdivision (b). (See, In
re Alysha S. (1996) 51 Cal.App.4th 393, 397.) As a result, DCFS argues that reaching the
merits of father’s appeal will have no practical impact on the dependency
proceeding. We disagree.
“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 [trial]
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.) However, as we noted in In re Drake M. (2012) ____ Cal.App.4th ____, ____ (
exercise our discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) serves as the basis for
dispositional orders that are also challenged on appeal [Citation];
(2) could be prejudicial to the appellant or could potentially impact the
current or future dependency proceedings [Citations]; or (3) ‘could have
other consequences for [the appellant], beyond jurisdiction’ [Citation].â€
Here, father also challenges an
order made subsequent to the judgment at the dispositional phase of the
proceedings, the basis for which was the court’s jurisdictional finding. Thus, although dependency jurisdiction over
the children will remain in place because other findings are unchallenged, we
will review father’s appeal on the merits.
2. There is No Substantial
Evidence To Support the Trial Court’s
Jurisdictional Finding With Respect to Father’s Alleged Substance Abuse
“We review the juvenile court’s jurisdictional findings for
sufficiency of the evidence.
[Citations.] We review the record
to determine whether there is any substantial evidence to support the juvenile
court’s conclusions, and we resolve all conflicts and make all reasonable
inferences from the evidence to uphold the court’s orders, if possible. [Citation.]
‘However, substantial evidence is not synonymous with
A decision supported by a mere scintilla of evidence need not be
affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence
may consist of inferences, such inferences must be ‘a product of logic and reason’
and ‘must rest on the evidence’ [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.]â€
(In re David M. (2005) 134
Cal.App.4th 822, 828.)
The gravamen of count b-9 against
father is that he has a history of substance abuse, was a current abuser of
marijuana, and, as a result, was unable to provide regular care for the
children. Thus, to support the trial
court’s finding, DCFS must have produced evidence showing that, pursuant to
section 300, subdivision (b), the children suffered, or there was a substantial
risk that they will suffer, serious physical harm or illness, as a result of father’s inability
to provide regular care for the children due to father’s substance abuse. DCFS does not argue that any
of the children suffered serious physical harm or illness and thus the question
is whether the evidence was sufficient to find there was a
serious physical harm or illness at the time of the jurisdictional hearing.
The first issue that must be
addressed is whether the record supports a finding that father had a current
substance abuse problem. We held in
be supported by “evidence sufficient to (1) show that the parent or
guardian at issue had been diagnosed as having a current substance abuse
problem by a medical professional; or (2) establish that the parent or
guardian at issue has a current substance abuse problem as defined in the DSM‑IV‑TR.†(In re
Drake M., supra,
___ Cal.App.4th at p. ___.)
Here, there was nothing in the record showing that father had been
diagnosed as having a current substance abuse problem and, therefore, we look
to see if the record contains evidence establishing that he had a substance
abuse problem as defined in the DSM-IV-TR.
“The full definition of ‘substance
abuse’ found in the DSM‑IV‑TR describes the condition as ‘[a]
maladaptive pattern of substance use leading to clinically significant
impairment or distress, as manifested by one (or more) of the following,
occurring within a 12-month period: [¶]
(1) recurrent substance use resulting in a failure to fulfill major role
obligations at work, school, or home . . . [; ¶]
(2) recurrent substance use in situations in which it is physically
hazardous . . . [; ¶] (3) recurrent substance-related
legal problems . . . [; and ¶] (4) continued substance
use despite having persistent or recurrent social or interpersonal problems
caused or exacerbated by the effects of the
substance . . . . ’
(DSM-IV-TR, at p. 199.)†(
failed to produce facts sufficient to satisfy this definition.
First, there was no evidence showing
that father failed to fulfill any of his major role obligations at work,
school, or home within the most recent 12-month period. Second, there is no evidence that father used
marijuana in physically
hazardous situations at all. Third,
there is no evidence in the record that father’s marijuana usage resulted in
any substance-related legal problems within the most recent 12-month
period. Although father has a criminal
history, his only convictions within the last 12 months are for robbery
and inflicting corporal injury on a spouse (not mother). Bad as these convictions may be, there is no
evidence in the record linking them to any marijuana usage. Finally, there is no evidence in the record
that father continued to use marijuana despite having persistent or recurrent
social or interpersonal problems caused
or exacerbated by it within the most recent 12-month period. The only positive drug test result for father
that DCFS presented was from three years prior.
Evidence gathered as part of an investigation from years past without
any more recent data is insufficient. (
Our analysis of the record shows
that it contains no evidence that father has a substance abuse
problem. Additionally, even setting
aside any potential issues with the children’s credibility as we must, the
evidence, at most, supports a finding that father used marijuana. Usage alone
does not support a finding of jurisdiction.
(In re Drake M.,
p. ____ ; In re Alexis E.,
210 Cal.App.4th 999, *6.) As a
result, the trial court’s finding that jurisdiction based on father’s alleged
substance abuse is not supported by the evidence and, thus, does not comply
with section 300, subdivision (b).
3. The Trial Court’s Family Maintenance Orders Based on Its
Erroneous Finding Constitute an Abuse of Discretion
“At the dispositional hearing, the [dependency] court must order
child welfare services for the minor and the minor’s parents to facilitate
reunification of the family.
[Citations.] The court has broad
discretion to determine what would best serve and protect the child’s interest
and to fashion a dispositional order in accord with this discretion. [Citations.]
We cannot reverse the court’s determination in this regard absent a
clear abuse of discretion. [Citation.
appropriate for each family and be based on the unique facts relating to that
family.†’ [Citations.] Section 362, subdivision (c) states in
pertinent part: ‘The program in which a
parent or guardian is required to participate shall be designed to eliminate
those conditions that led to the court’s finding that the minor is a person
described by Section 300.’
[Citations.]†(
Cal.App.4th 1001, 1006.)
As we noted above, there is nothing in the record to indicate that
father has a substance abuse problem.
Additionally, there is nothing in the record to indicate that his use of
marijuana led to the finding of dependency jurisdiction as we have found that
the record does not support count b-9 against him. We see no reason why the additional burden of
attending a substance abuse program should be placed on father. Such a burden fails to address the
remaining conditions from which dependency jurisdiction was obtained and only serves
to present an unnecessary obstacle to his reunification with the children. Thus, the order was an abuse of
discretion. (See, e.g.,
4 Cal.App.4th 155, 172-173 [concluding that a reunification plan including
substance abuse counseling and drug testing was not reasonably designed to
eliminate the conditions that led to the trial court’s finding that the minor
came under the court’s jurisdiction pursuant to section 300 because the record
included no evidence showing the parents had substance abuse problems].)
The judgment is
reversed in part as to the jurisdictional finding that pertains to count
b-9. In all other respects, the judgment
is affirmed. The order requiring father
to participate in a substance abuse program is reversed.
CROSKEY,
Acting P. J.
We Concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">
section references are to the Welfare and Institutions Code unless otherwise
noted.
name="_ftn2" title="">
300 states, in relevant part, “Any child who comes within any of the following
descriptions is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court: [¶] . . . (b) The child
has suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result
of . . . the inability of the parent or guardian to provide
regular care for the child due to the parent’s or
guardian’s . . . substance abuse. . . .â€
