In re M.J.
Filed 5/30/13 In re M.J. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re M.J.
et al., Persons Coming Under the Juvenile Court Law.
SOLANO COUNTY HEALTH AND HUMAN
SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
M.J.,
Defendant and Appellant.
A136443
(Solano County
Super. Ct.
Nos. J41469, J41470)
Father
appeals from the jurisdictional and
dispositional orders declaring his thirteen-year-old daughter and
five-year-old son dependent children and removing them from his custody. He
contends there is no substantial evidence
to support the orders and that the court abused its discretion in ordering
supervised visitation. We affirm.
On
May 15, 2012, the
County Health and Human Services Department (the department) filed a
juvenile dependency petition alleging there was a substantial risk the children
would suffer serious physical
harm or illness as a result of the following allegation: “The father
. . . abuses controlled substances including but not limited to
marijuana, methamphetamine, and alcohol in the presence of the children.
Additionally, the children have been exposed to the presence of potentially
harmful items such as drug paraphernalia, baggies and the presence of an
unknown substance, likely ecstasy, on the bed where the [son] often sleeps.
Such conditions endanger the physical and emotional health of the children.â€
The children were ordered detained on May 16. Daughter was allowed to continue
living at a family friend’s home with whom she had been living voluntarily
since before the petition was filed. The son was placed in a foster home.
On June 14,
2012, the department submitted its jurisdictional/dispositional
report. The report includes a criminal history for father that indicates he was
arrested in January 2010 for driving under the influence (DUI) and possession
of a controlled substance. He was sentenced to four days in jail and placed on
probation. He was ordered to complete a nine-month first offender DUI program
as a term of his probation, but as of the time of the filing of the report, he
had not completed the program.
Mother told the social worker that she had been
snorting methamphetamine for approximately two and a half years and began
ingesting ecstasy in 2010. She sometimes used methamphetamine on a daily basis.
She used ecstasy and drank beer occasionally. She denied smoking marijuana. She
acknowledged that the older sibling found empty methamphetamine baggies in the
laundry room of the home in 2011 and 2012 and that she left ecstasy pills on
her bed but denied that she left the drug on her son’s bed. Mother denied that
there was any other drug paraphernalia around the home. She believed she could
care for the children when under the influence of drugs and did not believe
that the children were ever at risk of emotional or physical harm. She reported
that father drank alcohol rarely and had not been drunk in several years. He
began using methamphetamine because she used the drug. He kept the alcohol and
marijuana locked in a shed outside of the home.
Father told the social worker that he had been smoking
marijuana for four years. He denied using ecstasy and could not recall when he
last used methamphetamine. He denied also being drunk in over two years but
acknowledged that the children may have seen him drink alcohol. He reported
that he keeps his alcohol and marijuana locked in a shed outside of the home
and denied that his children have ever been exposed to drugs or drug
paraphernalia. He acknowledged that he was not always aware when mother was
using drugs but believed she was capable of caring for the children under the
influence of drugs and did not believe the children were at risk of emotional
or physical harm. He did not believe he had a drug abuse problem but felt that
mother did.
Daughter denied knowing whether her father used
methamphetamine. At the time of her detention, she reported that “her father
has had a history of alcohol abuse [and] has relapsed for ‘about the last
year.’ †She reported seeing him under the influence of alcohol and that
he smokes “ ‘a lot of marijuana.’ †She described her home as
“chaotic†and reported that there was a lot of fighting in the home. She stated
that “for these reasons she has asked her mom to leave her father†and that is
“why she has continued to reside out of the home.†When interviewed for the
jurisdictional report, daughter denied ever seeing her father drink alcohol,
but she knew that he did because she saw alcohol around the home. She had seen
him smoke marijuana and had seen his pipes and bongs near the shed outside of
the home. Daughter also did not know if her mother had used methamphetamine recently
and had never witnessed her use drugs but found baggies filled with a white,
salt-like substance in her room and found her to be “jumpy†at times.
The
report indicated that on May 23, 2012, parents had been referred for substance
abuse, counseling, and parenting services, but father had not engaged in any of
the services to which he had been referred. Father takes “little
responsibility†for his role in the problems in the home and instead blamed
everyone else, including the older brother, mother, the department, and the
police, for the problems. The social worker believed that father had to engage
in services and gain insight into the problems in the home before it would be
safe to return the children to his custody.
Prior
to the contested jurisdictional hearing, the department filed a confidential
addendum report. Attached to this report was father’s hair strand drug test
result from July 24, which was positive for marijuana at 3.25 pg/mg,
amphetamine at 616 pg/mg, and methamphetamine at 13,772 pg/mg.
At
the hearing, the social worker testified that on July 24 she asked father to
submit to drug testing by hair strand and urine sample, but he refused to
supply a urine sample. She also testified that based on prior experience with
drug test results, she believed that a positive hair strand test for
methamphetamine at levels of over 13,000 pg/mg was “very high.†She explained
that a
positive drug test by hair strand indicates drug use within 90 days of the date
of the test.
After
receiving the test results, the social worker referred father for a substance
abuse assessment, and he had participated in the assessment. The substance
abuse counselor recommended that father attend substance abuse treatment
wait-list groups, Matrix substance abuse groups, and three NA/AA meetings per
week. Father had begun participating in all of these services. The social
worker believed the children remained at substantial risk of serious physical
harm because of father’s positive hair strand drug test for significant levels
of methamphetamine and because he refused to comply with the urine drug test.
She was also concerned about the risk that father’s ongoing substance abuse
posed to the children's safety given father’s lengthy history of substance
abuse and relapse.
The
social worker indicated that she was less concerned about father’s marijuana
use since he had a cannabis card but also acknowledged that she did not know
whether father had disclosed his substance abuse history to the physician who
prescribed him marijuana and provided him with the cannabis card.
The
paternal grandfather also testified at the hearing. He testified that in 1990
or 1991, he and father were arrested for drunk driving. After participating in
substance abuse treatment for six months, father was sober for about 18 years.
Although father began drinking again four years ago, he had not seen him
noticeably intoxicated on alcohol or drugs during the last four years. Father
had, however, acknowledged that “he was drinking and gambling.â€
After
hearing closing arguments by counsel, the court found allegations regarding
parents’ substance abuse to be true by a preponderance of the evidence. With
regard to father’s substance abuse, the court commented: “I realize dad thinks
he’s got this somewhat under control, but if it leads to a situation where you
got multiple baggies of crank in the house, no matter who left them there,
because you’re both [responsible] to protect the kids. We’ve had too many cases
where a kid picks up a bag of crank. . . . Everybody’s got to be
sober enough to protect [the] kids from these sorts of things.â€
On
August 15, the juvenile court held the continued contested disposition hearing.
The court found that removal of the children from both of the parents’ custody
was supported by clear and convincing evidence. The court provided father with
family reunification services, including supervised visitation.
1.
Father
contends that there was no substantial evidence supporting the juvenile court’s
finding under section 300, subdivision (b) that he has a substance abuse
problem or that his use of methamphetamine or alcohol poses a substantial risk
of harm to his children. Father acknowledges that substantial evidence supports
the jurisdictional order based on the uncontested findings of mother’s
substance abuse, and that therefore any decision we might render on the
allegations involving him will not result in a reversal of the court’s
jurisdictional order. (In re I.A.
(2011) 201 Cal.App.4th 1484, 1492 [“[I]t is commonly said that a jurisdictional
finding involving one parent is ‘ “good against both.†’ â€].) He
argues, however, that we should exercise our discretion to address his
challenge because the erroneous finding regarding his conduct “may gravely affect
[him] and/or his children†in the future. Among other things, he argues that if
the court had dismissed the allegations against him, he could be deemed a
“nonoffending†parent for purposes of custody and placement under section 361,
subdivision (c).
Because section 361, subdivision (c) treats offending and non-offending
custodial parents somewhat differently during the dispositional phase of
dependency proceedings, we will consider father’s challenge to the
jurisdictional order.
In
reviewing the jurisdictional findings of the juvenile court, “we look to see if
substantial evidence, contradicted or uncontradicted, supports them.
[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;
and we note that issues of fact and credibility are the province of the trial
court.†(In re Heather A. (1996) 52
Cal.App.4th 183, 193.) “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.†(In re
Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial
evidence, the judgment or findings must be upheld, even though substantial
evidence to the contrary may also exist and the juvenile court might have
reached a different conclusion had it determined the facts and weighed
credibility differently. (In re Dakota H.
(2005) 132 Cal.App.4th 212, 228; In re
Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
Initially,
father argues that there is no evidence that he had a problem with substance
abuse. While he acknowledges using alcohol, marijuana and methamphetamine, he
denies abusing them. Substantial evidence, however, supports the court’s
factual finding that he had a substance abuse problem. The record establishes
that about four years ago, after a substantial period of sobriety, father began
using methamphetamine, alcohol and marijuana on a regular basis. During that
time he suffered a DUI conviction, but failed to complete the terms of his
court-ordered treatment program. The paternal grandfather testified that he
knew father had started drinking again because about that time “there were numerous
family problems. [He] was getting calls from [mother] and having discussions
with [father] where he acknowledged that he was drinking and gambling.†The
counselor at the drug treatment program to which the department referred father
apparently agreed that his use was problematic and recommended treatment.
Father
also argues that there is no substantial evidence to support the finding that
his substance abuse puts the children at substantial risk for serious physical
harm. The social worker testified, however, that father’s drug abuse negatively
impacts his decisionmaking and places the children’s safety at risk. Contrary
to father’s argument, the record contains numerous examples of dangerous
behavior that, as confirmed by the grandfather, seem to correspond with the end
of father’s sobriety.
Despite
knowing that mother was abusing methamphetamines, father believed that she
“could normally care for the children even if she was under the influence of
drugs.†He told the social worker that he “did have concerns about [mother]
driving with the children while under the influence of drugs†but that she
would call him “when she felt she could not drive.†Although he claimed his
children have never been exposed to drug paraphernalia or drugs in his home, the
mother acknowledged using drugs in the home and that she had left baggies and
drugs where they were accessible to the children. Allowing his children to
remain in the care of their mother, despite his clear knowledge of her drug
abuse, places his children at substantial risk of physical harm.
Likewise,
although the court did not sustain the allegations in the complaint regarding
father’s domestic violence towards mother and physical abuse of the children’s
older sibling, that evidence nonetheless supports the social worker’s opinion
that father’s drug abuse is placing the children at risk. Evidence was
presented that father was arrested for domestic violence in 2009, after he
began drinking again. The social worker’s report shows that two referrals were
made to the department prior to the filing of the present petition as a result
of the fighting between mother, father and the older sibling. The report
indicates that despite living in the neighborhood for 10 years, the problems
had begun within the last eight months. Finally, when initially interviewed by
the social worker, daughter reported that the situation in the home was
“chaotic†and that there was “a lot of ‘fighting’ in the home.†She reported
that because of her father’s substance abuse, she asked her mother to leave her
father and moved out of the home. Taken together, this evidence further
supports the trial court’s finding that father’s drug abuse places the children
at risk of serious physical harm.
Contrary
to father’s argument, the fact that mother moved out of the home before the
jurisdictional hearing does not eliminate the current danger his drug abuse
poses to the children. As demonstrated by the above evidence, father’s drug
abuse compromises his judgment. His continuing denial of a drug problem may
reasonably be taken to reflect that his judgment remains compromised and his
children remain at risk.
2.
A
child may not be removed from a parent or guardian unless there is clear and
convincing evidence of “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.†(§ 361, subd. (c)(1).) In determining whether a
child may be safely maintained in the parent’s physical custody, the court may
consider the parent’s past conduct and current circumstances, and the parent’s
response to the conditions that gave rise to juvenile court intervention. (
900, 917.) A trial court’s removal order is reviewed under the substantial
evidence standard of review, notwithstanding the evidentiary standard used at
trial. (In re Heather A., supra, 52
Cal.App.4th at p. 193; see also In re E.B.
(2010) 184 Cal.App.4th 568, 578 [“The clear and convincing standard was adopted
to guide the trial court; it is not a standard for appellate review.
[Citation.] The substantial evidence rule applies no matter what the standard
of proof at trial.â€].) In this case, father’s drug abuse in conjunction with
his lack of insight as to the impact his drug use has on his children, as
detailed above, constitutes substantial evidence supporting the removal order.
The
jurisdictional and dispositional orders are affirmed.
_________________________
Pollak,
Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
The petition also alleged mother abused controlled substances, that the parents
have engaged in domestic violence, and that the children’s older half-sibling
was physically abused by father. The court sustained the allegation regarding
mother’s substance abuse but struck the remaining allegations regarding
domestic violence and father’s physical abuse of the sibling. Mother has not
filed an appeal challenging the jurisdictional finding with respect to her drug
abuse.
Section 361, subdivision (c) provides: “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 of any of the following circumstances
listed in paragraphs (1) to (5) . . . [¶] (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. The fact that a minor has been adjudicated a dependent child of the
court pursuant to subdivision (e) of Section 300 shall constitute prima facie
evidence that the minor cannot be safely left in the physical custody of the
parent or guardian with whom the minor resided at the time of injury. The court
shall consider, as a reasonable means to protect the minor, the option of
removing an offending parent or guardian from the home. The court shall also
consider, as a reasonable means to protect the minor, allowing a nonoffending
parent or guardian to retain physical custody as long as that parent or guardian
presents a plan acceptable to the court demonstrating that he or she will be
able to protect the child from future harm.â€
