In re
Samantha S.
Filed 1/17/13 In re Samantha S. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
In re SAMANTHA S., a Person Coming Under the Juvenile Court Law.
B241080
(Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent.
v.
ANTHONY S.,
Defendant and
Appellant.
Super. Ct. No. CK91811)
APPEAL from orders of the Superior Court of
County. Marguerite D.
Downing, Judge. Affirmed.
Suzanne Davidson, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel for Plaintiff and Respondent.
Appellant Anthony S. (father) appeals
from the juvenile court’s jurisdictional and dispositional orders establishing
daughter Samantha (born May 2010) and requiring him to submit to random drug
testing as part of his reunification plan.
Father contends substantial evidence does not support the juvenile
court’s jurisdictional finding under Welfare and Institutions Code section 300,
subdivision (b)
name="_ftnref1" title="">[1], that past instances of
Samantha’s mother, Laura C. (mother),
serious physical harm. Father further
contends the court abused its discretion by ordering him to submit to random
drug testing because there was no evidence that he had any substance abuse
problem.
Substantial
evidence supports the juvenile court’s jurisdictional findings, and the
juvenile court’s drug testing order was not an abuse of discretion. We therefore affirm the juvenile court’s
orders.
Detention
and section 300 petition
On
January 31, 2012, West Covina Police Officer Flamenco contacted the
(the Department) and informed the Department’s social worker that police
officers had served and executed a search warrant at the home in which Samantha
resided with her mother, maternal grandmother, mother’s boyfriend Robert O.,
minor siblings Destiny (age 5), Cruz (age 6), and Adam (age 17), and adult
siblings Gabriel and Alexander. Officer
Flamenco reported that the home was a known gang location and had been the
subject of many criminal investigations
involving various family members over the years. Previous law enforcement related searches of
the home had yielded narcotics, weapons, and gang paraphernalia. During the January
31, 2012 search, officers recovered a firearm
and ammunition. Adult sibling
Gabriel told police officers that a “homie†had brought the firearm to the home
after gunshots were fired at the home.
The adult siblings and mother’s boyfriend were arrested on weapons
possession charges.
Mother
had a lengthy child welfare history consisting of numerous referrals between
1998 and 2011 for mother’s substance abuse, and for physical and sexual abuse
of an older child by one of mother’s male companions. A referral had been generated in June 2010
after Samantha was born prematurely and mother admitted to using methamphetamine
during her pregnancy. That referral was
closed after the allegation of general neglect was found to be inconclusive.
On January 31, 2012, the Department’s social worker
spoke with mother, who identified father as Samantha’s father and provided an
address for him. Mother agreed to submit
to an on-demand drug test that day and tested positive for methamphetamine.
On February 2, 2012, the social worker again spoke with
mother, who admitted using methamphetamine in the past but denied doing so currently. Mother said that father was in contact with
Samantha and that the child has gone “back and forth†between mother’s home and
father’s. Mother further stated that
Samantha had lived with father for a time when mother was unable to care for
the child, and that mother “[j]ust recently . . . got [Samantha] back.†She said that father “always†willingly
returned Samantha to her care.
Mother
admitted to “a couple incidents†of domestic
violence with father, that involved “[p]ushing, shoving, [and] throwing
stuff†while Samantha was present. When
asked about the number of domestic incidents with father, mother replied “[one]
time he pushed the dresser on me and the [second] time, he kicked the ‘A/C’ . .
. I’d say [four] different times.â€
On February 3, 2012, the social worker interviewed minor
siblings Cruz and Destiny at their school.
Both children were wearing dirty clothing and appeared not to have
bathed for several days. Destiny told
the social worker that the maternal grandmother and adult sibling Gabriel both
hit her “sometimes,†Gabriel with a belt and the grandmother with a stick. When asked whether she had seen any of the
adults hit one another, Destiny responded “[o]nly my brother [Gabriel] and his
girlfriend.†The child later disclosed
that she had seen Robert O. push mother into the garage.
The
Department detained Samantha, Cruz, and Destiny on February
7, 2012. On February 10, 2012, the
Department filed a section 300 petition on behalf of the three children
alleging that they were at risk of harm because of domestic violence between
mother and Robert O., domestic violence between mother and father, domestic
violence between Gabriel and his female companion, physical abuse by Gabriel
and the maternal grandmother, the presence of a firearm in the home and within
access of the children, gang activity and gunshots being fired at the home,
medical neglect, and mother’s substance abuse.
At
the time of the February 10, 2012 detention hearing, the Department
had been unable to locate father at the address mother had provided. The juvenile court found father to be an
alleged father and ordered the Department to make efforts to locate him. The juvenile court further ordered Samantha,
Cruz, and Destiny detained in foster care and then continued the case for a
pretrial resolution conference.
Father
appeared at the March 16, 2012 pretrial resolution
conference and provided the juvenile court with a signed statement requesting
presumed father status for Samantha.
Father’s counsel asked the court to release Samantha to father’s
care. The juvenile court did not change
its alleged father finding but gave the Department discretion to liberalize
father’s visits and to release Samantha to his care.
Jurisdiction
and disposition
In
April 2012, the Department reported that its social workers had met with father
on March 7, 13, and 14, 2012. Father had
agreed to submit to an on-demand drug test on March
14, 2012, and the test results were negative.
Father expressed his willingness to submit to juvenile court
jurisdiction and to do whatever was necessary to obtain custody of
Samantha. He was visiting with Samantha
every Friday from noon to 3:00
p.m. at a McDonald’s.
Father
had a criminal history that included theft, receipt and possession of stolen
property, and possession of tools for burglary.
He was on probation until September 16, 2013.
Father
lived with his mother in one bedroom of a home they shared with several other
families. The room in which father and
his mother resided had a bed, closet, bathroom, microwave, and a food
supply. Father said he sleeps on the
floor. The social worker advised father
that if he were to gain custody of Samantha, the child would need appropriate
sleeping quarters. Father responded that
he would look for a larger apartment.
Father
told the social worker that mother was a long-time methamphetamine user and
that mother’s boyfriend, 17-year-old son, and adult children also used
drugs. Father admitted using
methamphetamine in the past as a young adult, but found it to be “a
waste.†He said he had recently enrolled
in an anger management program that was scheduled to begin on April 3, 2012.
Father
denied using drugs and alcohol and denied engaging in domestic abuse. Regarding the allegations of domestic
violence with mother, father stated:
“The spousal abuse -- it’s all the opposite. She was hitting me. This happened when Sam was barely born in, in
early June 2010. All the kids were in my
truck when that happened. Another one
happened when I was visiting at the mall, and she kidnapped my daughter.â€
The
social worker spoke with Cruz and Destiny on March
19, 2012. Cruz reported witnessing verbal
altercations between mother and Robert O. and physical altercations between
adult sibling Gabriel and his girlfriend.
Cruz also reported that the last time he saw father, “I seen him kick at
my mom’s window at the house. I saw him
kick the fan.†Destiny reported seeing
Gabriel hit his girlfriend and mother and Robert O. “push and pull themselvesâ€
but denied seeing father and mother fight.
The
Department’s investigator interviewed mother on March 12 and 13, 2012. When asked about the domestic violence
allegations concerning father, mother stated:
“The one with [father] happened, but it was right after the baby was
born – it was in my room. He has a
really short temper. He never hit
me. He would throw stuff. He would kick the air condition[er]. The kids didn’t see it. He would throw fits and kick stuff.†Mother also told the investigator, “[Father]
doesn’t do drugs, but he has a gang background, and so do I -- West Covina
13. But I don’t think he’s active.â€
Father
was incarcerated for burglary at the time of the April 24, 2012 combined
jurisdictional and dispositional hearing but was present at the hearing in
custody. He had not provided the
Department with information confirming his enrollment in any programs.
Pursuant
to the terms of a mediation agreement entered into by mother and the
Department, the juvenile court sustained amended counts in the section 300
petition alleging that a sawed-off rifle had been discovered in the children’s
home within their access, the children were exposed to gang activities even
after gunshots had been fired at the home, mother had an unresolved history of
substance abuse, and the children were exposed to domestic violence between
mother and Robert O. and Gabriel and his female companion.
After
adjudicating the allegations of the section 300 petition that concerned mother,
the juvenile court addressed count b-5, the sole count that applied to father,
alleging domestic violence between mother and father.
argued that count b-5 should be dismissed because the domestic violence
incidents that occurred between mother and father were remote in time. Father’s counsel further argued that there
was “no nexus between history and any current risk,†and advocated addressing
father’s issues in anger management and parenting classes.
The
juvenile court stated that it would amend count b-5 to state that there were
“unresolved issues of physical violence, since it is historical in nature†and
sustained the count as amended. The
court then declared Samantha, Cruz, and Destiny to be dependents of the court,
and ordered them removed from their parents’ custody and suitably placed. Father was accorded family reunification
services and ordered to participate in a parenting program and individual
counseling to address domestic violence.
The juvenile court further ordered father to produce six random
on-demand drug tests and to complete a rehabilitation program if he missed any
tests or produced a positive test. The
court stated that father could complete the anger management programs in which
he was currently enrolled and ordered him to comply with the conditions of his
probation and parole, if applicable.
Father’s
counsel objected to the drug testing requirement and asked the juvenile court
for the basis of its drug testing order.
The court responded: “I don’t
know what else is going on in his criminal case. I don’t know the grounds of why he was
stopped. I know he’s in custody for
burglary. I don’t know if drugs are
involved. [I] have very [little]
information other than the fact that he’s currently incarcerated.â€
This
appeal followed.
I. Standard of Review
We
the juvenile’s court’s jurisdictional findings
substantial evidence standard. (
822, 829; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record to
determine whether there is any reasonable, credible, and solid evidence to
support the juvenile court’s conclusions, resolve all conflicts in the
evidence, and make all reasonable inferences from the evidence in support of
the court’s orders. (In re Savannah
M. (2005) 131 Cal.App.4th 1387, 1393.)
We review the juvenile court’s dispositional orders for abuse of
discretion. (In re Christopher H. (1996)
50 Cal.App.4th 1001, 1006.)
Father contends
the juvenile court’s jurisdictional findings regarding domestic violence under
section 300, subdivision (b) should be reversed because they are unsupported by
substantial evidence. We advised appellate
counsel that the record did not include a copy of the amended petition,
including amended count b-5, and that we accordingly could not adjudicate
father’s challenge to the juvenile court’s jurisdictional findings. We granted the parties an opportunity to file
supplemental letter briefs.
In response,
father’s counsel filed motions to augment the record to include the reporter’s
transcript of hearing to settle the record held in the juvenile court on
November 15, 2012, and a copy of the juvenile court’s minute order setting
forth the language of amended count b-5 of the petition. The amended count b-5 states: “The child Samantha [S.]’s mother . . . , and
father . . . , have an unresolved issue of physical violence. On a prior occasion, the father pushed a
dresser onto the mother. On a prior
occasion, the father kicked objects in the child’s home. Such violent conduct on the part of the
father against the mother endangers the child’s physical health and safety and
placed the child at risk of physical harm, damage, and danger.†We granted father’s motions to augment the
record on appeal.
The Department
contends we need not address father’s sufficiency argument based on count b-5
because jurisdiction over Samantha exists based on mother’s conduct alone. In support of its position, the Department
relies on In re Alexis E. (2009) 171
Cal.App.4th 438, 451, and D.M. v.
Superior Court (2009) 173 Cal.App.4th 1117, 1127 for the proposition that a
reviewing court can affirm the juvenile court’s finding of jurisdiction over a
child if any one of the statutory bases enumerated in the petition is supported
by substantial evidence. In the instant
case, because count b-5 is the only allegation in the petition that involves
father, we are not persuaded by the Department’s argument that we should
refrain from addressing the merits of father’s appeal.
There is evidence
in the record that father and mother had a history of domestic violence. Mother stated there were at least four
incidents of domestic violence involving father, including one in which he
pushed a dresser on top of her. Father
admitted to two incidents of domestic violence with mother, although he claimed
both incidents occurred more than two years ago and mother was the one hitting
him. Six-year-old sibling Cruz said that
the last time he saw father, father “kick[ed] my mom’s window at the house†and
“kick[ed] the fan.†There is no evidence
that father’s domestic violence and anger management issues were ever resolved. Father claimed to have enrolled in an anger
management program scheduled to begin on the day before the April 4, 2012
jurisdiction/disposition hearing; however, he did not provide any evidence of
his enrollment at the time of the hearing.
Substantial
evidence supports the juvenile court’s jurisdictional findings as to father.
Father challenges
the sufficiency of the evidence supporting the juvenile court’s drug testing
order. He claims there was no evidence
that he had a substance abuse problem or that his substance abuse was a
condition leading to Samantha’s removal from his custody. He cites In
re Basilio T. (1992) 4 Cal.App.4th 155, as support for his position. That case, however, is distinguishable. In Basilio
T., the children were removed from their parents custody as the result of
domestic violence. (Id. at pp. 161-162.) The
social worker observed that the mother behaved somewhat unusually and was
obsessed with a fortune telling invention.
There was nothing in the record, however, to indicate that either parent
had a substance abuse problem. (Id. at
p. 172.) In the instant case, father
admitted being a past user of methamphetamine, a highly addictive drug. Although father denied being a current user
of drugs, and his criminal record included no drug-related offenses, he had
been arrested and convicted of several theft offenses and was incarcerated at
the time of the disposition hearing for a burglary offense. The juvenile court expressed concern
about the causes and circumstances of father’s theft-related offenses in light
of his admitted past drug use. The juvenile court has broad discretion
to make virtually any order necessary for the well-being of the dependent
child. (§ 361.2, subd. (b)(2);
957, 960.) The juvenile court also has
discretion to determine which services are appropriate for the care,
supervision, custody, conduct, maintenance, and support of the child. (§ 362, subd. (a).) A juvenile court’s dispositional orders for
the reunification plan are reviewed for abuse of discretion. (In re
Christopher H., supra, 50 Cal.App.4th at pp. 1006-1007.) Under the abuse of discretion standard of
review, we will not disturb the juvenile court’s decision unless the court
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination. (
1339, 1351.) In light of father’s
admitted past drug use, the juvenile court’s order requiring father to submit
to six random drug tests and to enroll in a rehabilitation program in the event
of a missed or positive test was not an abuse of discretion.
The
juvenile court’s jurisdictional and dispositional orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
DOI TODD
name="_ftn1" title="">[1] All further statutory references are
to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother is not a party to this appeal.
