J.K. v. Super.
Filed 1/16/13 J.K. v. Super.
Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
J.K,
Petitioner,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real
Party in Interest.
E057360
(Super.Ct.No.
J245695)
OPINION
ORIGINAL PROCEEDINGS; petition for
Dennis Moore for Petitioner.
No appearance for Respondent.
Jean-Rene Basle, County Counsel and
Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.
Petitioner J.K. (father) is the
father of nine-year-old H.M. Father
challenges the juvenile court’s jurisdictional findings and decision to set a
hearing under Welfare and Institutions Code, section 366.26, to determine a
permanent plan for H.M.
name="_ftnref1" title="">[1] The court took these actions
after father allowed H.M.’s mother
anticipation of father being returned to custody for violating parole. The courts had previously placed H.M. in
father’s sole custody with orders that H.M. only have supervised visits with
her mother. Father argues the
jurisdictional findings are not supported by
court’s rulings.
In March 2011, the courts awarded
custody of H.M. to father and allowed mother to have supervised visitation
only. At that time, three of H.M.’s
half-siblings were dependents of the juvenile court and were in foster care
with relatives. Mother neglected her
children, including H.M., because of longstanding and serious substance abuse
issues. In May 2012, the court
terminated services to mother on behalf of H.M.’s siblings because mother
failed to participate and make progress in her treatment plan.
On June 18, 2012, mother completed a
90-day inpatient substance abuse program in San Francisco. At that time father asked her to stay with
him in Lake Havasu City, Arizona, to help take care of H.M. Father knew there was a warrant out for his
arrest for parole violations and that he would be returning to custody at some
point. Mother was pregnant. Mother declined the opportunity to live in a
transitional sober living home so she could take care of H.M. Mother took care of H.M. at father’s home
beginning about June 20, 2012. Once she
arrived at father’s home, mother suspected father was using drugs. Mother stayed either about three weeks or
until July 30, 2012, when she returned with H.M. to the Chemehuevi
reservation. Mother moved “across the
lake†because she was not comfortable with the living situation and father’s
drug use. Mother initially attended a
weekly substance abuse program at the reservation, but as of the jurisdiction
hearing she had not attended in about 30 days.
Father testified at the jurisdiction hearing that he asked mother to
come live with him because she had just finished a substance abuse program and
was sober. At the time of the
jurisdiction hearing, Father expected to be released from custody in 18
months. Father stated that he would be
willing to sign a “notarization form†allowing certain of H.M.’s relatives to
seek medical treatment for H.M. and to make other decisions on her behalf. However, he was not willing to do so for
H.M.’s current caretaker, a maternal aunt, because he did not know her. Father testified that he was aware that, when
he received custody of H.M. in March 2011, any visits between H.M. and her
mother would need to be supervised. He
knew that he was violating that order when he asked mother to take care of
H.M., but believed he was doing “the whole family thing†because mother was
“clean and sober.†Father stated that he
would leave H.M. completely in her mother’s care for two days at a time while
he was working, and that when he returned home he would find them bonding, and
that H.M. was happy, clean and well-fed.
“I was happy to come home to that news.
It was nice.â€
Father was arrested on an
outstanding warrant and incarcerated on July 27, 2012.
The social worker for mother’s other
children on the reservation became aware that mother was living on the
reservation with H.M., and that mother had given birth to a baby boy.
On August 27, 2012, San Bernardino County Children and Family
Services (CFS) filed a dependency petition under section 300 as to H.M. and her
baby brother.
name="_ftnref3" title="">[3] Regarding father, CFS
alleged under section 300, subdivision (b), that “On or about July 1, 2012,
[father] left the child, [H.M.], in the care and custody of her
mother, . . . , although he knew, or reasonably should have
known, that the mother suffers from chronic substance abouse [
supervision and care of the child, [H.M.].â€
Under section 300, subdivision (g), CFS alleged that “The
father, . . . , is incarcerated in Arizona and is unable to
make arrangements for the care of his child, [H.M.].â€
At the detention hearing held on
August 28, 2012, the juvenile court found a prima facie case to detain H.M.,
removed her from parental custody, and placed her with a maternal aunt.
The contested jurisdictional hearing
was held on October 25, 2012. The
juvenile court heard testimony from H.M.’s mother, from father (via telephone
from custody), and from the social worker.
After reviewing the evidence and hearing argument from counsel, the
court found all allegations in the section 300 petition to be true and took
jurisdiction over H.M. The court denied
reunification services to both parents and set the section 366.26 hearing for
February 21, 2013.
This writ petition followed.
Father claims the court’s order
sustaining dependency jurisdiction
under section 300, subdivisions (b) and (g), was not supported by substantial
evidence.
“In
juvenile cases, as in other areas of the law, the power of an appellate court
asked to assess the sufficiency of the evidence begins and ends with a
determination as to whether or not there is any substantial evidence, whether
or not contradicted, which will support the conclusion of the trier of
fact. All conflicts must be resolved in
favor of the respondent and all legitimate inferences indulged in to uphold the
verdict, if possible. Where there is
more than one inference which can reasonably be deduced from the facts, the
appellate court is without power to substitute its deductions for those of the
trier of fact. [Citation.]†(In re
Katrina C. (1988) 201 Cal.App.3d 540, 547.)
“‘[T]he record must be viewed in the light most favorable to the
juvenile court’s order.
[Citation.]’†(
Cal.App.3d 618, 627.)
Substantial Risk of Harm – Section 300, Subdivision (b)
Section 300, subdivision (b),
authorizes dependency jurisdiction when the child has suffered, or there is a
substantial risk the child will suffer, serious physical harm or illness due to
the parent’s inability to supervise or protect or by the willful or negligent
failure of the parent to provide the child with adequate food, clothing,
shelter or medical treatment. Here, the
juvenile court sustained allegations under section 300, subdivision (b), based
in part on father leaving H.M. in the care of her mother, a chronic substance
abuser whom the courts had determined should have only supervised contact with
H.M. Father argues both that: 1) his
actions were a single lapse of judgment that would not likely recur, e.g., it
was only conjecture that he would ever be incarcerated again and leave H.M.
with her mother; and, 2) H.M. was not at risk of actual harm when she was in
the care of her mother.
These arguments do not prevail.
First, father left H.M. in mother’s care even before he was
incarcerated, when he would leave the home for two days at a time for
work. Even once he is freed in the
future, these past actions provide a basis to anticipate father would continue
to place H.M. in danger by allowing her mother to care for her. Second, father intended for H.M. to remain in
her mother’s care for the entire time he was to be incarcerated, rather than
just for a short time. Third, the crux
of this allegation is that father placed H.M. at substantial risk of harm both
by intentionally violating specific court orders made to protect H.M., and by
showing poor judgment in caring for H.M.
Father placed H.M. in the care of mother, whom the juvenile courts had
specifically determined was not a safe caretaker for H.M. because of her
unaddressed substance abuse. Although
mother appeared to have benefitted temporarily from the 90-day substance abuse
program, she could not even show that she continued to abstain from using
drugs, and in fact had ceased attending the weekly substance abuse program
provided at the reservation. For these
reasons, we conclude that substantial evidence supports the juvenile courts
finding that father placed H.M. at substantial risk of harm when he placed her
in mother’s care.
C. No Provision for Support – Section 300,
Subdivision (g)
We need not address this claim of
error by father because the juvenile court’s jurisdiction may rest on a single
ground. (§ 300 [“Any child who comes
within any of the following descriptions is within the jurisdiction of the
juvenile court . . . .â€; see generally In
re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [“reviewing court may affirm
[dependency jurisdiction] if the evidence supports the decision on any one of
several groundsâ€].)
The petition is denied. The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
McKINSTER
J.
MILLER
J.
name="_ftn1" title=""> [1] All section references are
to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] H.M.’s mother is not a party
to these writ proceedings.
