In re Jose M.
Filed 1/18/13 In re Jose M. CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
In re JOSE M.,
a Person Coming Under the Juvenile Court Law.
B241851
(Los Angeles County Super. Ct.
No. CK91401)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.M.,
Defendant and Appellant.
APPEAL
from the orders of the Superior Court of
County, Veronica McBeth, Judge. (Retired judge of the L.A. Sup. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Neale
B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
_________________________________
J.M. (father) appeals from
the dispositional orders of April 11, 2012, after the dependency court
declared his son a dependent of the court under Welfare and Institutions Code
from his custody, requiring him to participate in drug testing, and requiring
his visits to be monitored were an abuse of discretion. We affirm.
STATEMENT
OF FACTS AND PROCEDURE
Jose was
born to father
name="_ftnref2" title="">[2] and M.M. (mother) in 1997. Mother had mental health issues.
When the
parents separated in 2000, Jose lived with mother and had inconsistent visits
with father. Mother’s live-in male
companion raised Jose since the child was seven years old.
Father was
removed from the
States in 2006 for being a felon in possession of a firearm and thereafter
lived in Tijuana, Mexico. Prior to his removal, he committed weapons and
drug offenses in Los Angeles and Orange Counties, smoked
methamphetamine, and was a long-time member of the Sotel criminal street
gang. He displayed numerous gang tattoos
on his body.
Jose visited
father in Mexico during holidays
and summer vacations, except in 2011, when he declined to spend his summer
vacation with father. Father did not
provide child support to mother after he relocated to Mexico.
Mother’s
live-in male companion physically and emotionally abused Jose and engaged in
violent altercations with mother in Jose’s presence. Mother developed drug abuse issues.
Jose used
marijuana, failed most of his classes in school, was behind in his academic
credits, and was disciplined by his school for behavioral infractions. In October 2011, he was suspended from school
for possessing marijuana and a pipe. He
was ordered to enroll in a drug program and complete community service.
In November
2011, mother’s boyfriend physically abused Jose. The Department of Children and Family
Services (Department) provided voluntary services to help stabilize the family
and protect Jose. On January 5, 2012, Jose was caught
stealing.
On January 6, 2012, Jose was detained from
parental custody because voluntary services to protect him proved
unsuccessful. Father admitted to using
marijuana and methamphetamine in the past.
He wanted custody of Jose. The
Department initiated arrangements with the Mexican authorities for father to
drug test in Mexico, have phone
calls with Jose, and visit with Jose at the San Ysidro port of entry. Jose did not want to live with father. Jose wanted to return to the care of his
mother, whom he was visiting daily.
On April 11,
2012, Jose was declared a dependent of the court based on sustained allegations
under section 300, subdivision (b), concerning mother’s male companion’s abuse
of Jose and mother, mother’s failure to protect, and mother’s drug abuse and
mental health issues. Custody was taken
and reunification services were ordered for both parents. Father was ordered to participate in a
parenting program and was granted monitored visits. He was ordered to take eight drug tests and,
if any test was missed or dirty, complete a drug rehabilitation program
“because of his history and [the court wanted] to know in terms of . . .
possible placement and visitation.â€
Denying father’s request to place Jose with father, the dependency court
stated: “the child is an American
citizen. He is not a citizen of Mexico. Father is.
I would want to know . . . father’s circumstances . . . . [¶] I
want mother to be able to have a continued relationship with her son, . . . and
I am not prepared [to release Jose to father] because I don’t know anything
about father’s circumstances other than some subsequent general comments made
by relatives that it would be a safe environment for him and I also don’t want
to disrupt his relationship with his mother at this time. [¶] . . . [¶]
I am prepared to grant father family reunification services . . . . There are things I would like to see father
do since he is agreeing to the court’s jurisdiction before I would even
consider placement.†Moreover, the child
protective services agency in Mexico was being asked
to assess father’s home for placement.
“I want . . . the Department . . . to be able to verify all of this
information [that father is doing a lot better and raising another child].â€
DISCUSSION
I. Abuse of Discretion
Father
contends the orders removing Jose from his custody, requiring him to
participate in drug testing, and requiring his visits to be monitored were an
abuse of discretion.
name="_ftnref3" title="">[3] We disagree with the contentions.
“‘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.]’
[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.]â€
(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.) “It is not our function to weigh the
credibility of the witnesses or resolve conflicts in the evidence. [Citation.]
Rather we must indulge in all reasonable inferences to support the
findings of the juvenile court and must review the record in the light most
favorable to the juvenile court’s orders.â€
(Ibid.)
Order Denying Placement with Father
The order
denying placement of Jose with father was not an abuse of discretion because it
was supported by substantial evidence.
Section
361.2, subdivision (a) provides: “When a
court orders removal of a child pursuant to Section 361, the court shall first
determine whether there is a parent of the child, with whom the child was not
residing at the time that the events or conditions arose that brought the child
within the provisions of Section 300, who desires to assume custody of the
child. If that parent requests custody,
the court shall place the child with the parent unless it finds that placement
with that parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child.â€
Under
1813, 1827-1829, the detriment finding in section 361.2, subdivision (a) must
be made by clear and convincing evidence.
“[O]n review [of a finding made on clear and convincing evidence], this
court only determines whether, viewed in the light most favorable to the
judgment, there is substantial evidence to support the findings of the juvenile
court.†(In re Albert B. (1989)
215 Cal.App.3d 361, 375.)
There is
substantial evidence in the record supporting a finding that placement with
father would be detrimental to Jose’s safety, protection, or physical or
emotional well-being. Since father
cannot return to the United States, placing Jose with him would necessitate
separating him from mother. Jose, who is
14 and a half years old, expressed clearly he did not want to live with
father. He wanted to be reunited in
mother’s home. He visited mother
frequently. It is reasonable to conclude
that placement with father in Mexico would be detrimental to Jose because it
would foreclose the frequent contact he enjoyed with mother, create a high
barrier to reunification with her, and be contrary to his wishes. Moreover, at the time father was deported to
Mexico in 2006, he was an unsafe parent:
he abused drugs, was an active member of a violent criminal street gang,
and possessed a loaded weapon in his bedroom.
Drug testing in Mexico and a home study by the Mexican authorities were
being arranged. The dependency court
reasonably concluded the pending assessment of father’s current circumstances
was required before Jose’s safety and welfare in father’s custody could be
assured. Further, Jose struggled in
school and with drugs. Services such as
individual counseling and a drug program were being made available to him to
help him with his issues and challenges.
The purpose of the juvenile court law is to protect and safeguard each
child who is under the court’s jurisdiction.
(§ 202, subd. (a).) Such
children “shall receive care, treatment, and guidance consistent with their
best interest . . . .†(§ 202, subd.
(b).) The court could reasonably
conclude that Jose’s well-being required the provision of these court-ordered
services.
1564, 1571, cited by father, which held that the child’s “need for services,
his lack of a relationship with [his father], and the paucity of information
about [the father] do not support the detriment finding,†is inapposite. Unlike the facts in John M., placement with father would necessitate living in another
country, there was no indication the services Jose needed would be available to
him there, he clearly did not want to live with father, and father has a long drug
and criminal history and no credible proof of rehabilitation. (Compare id.
at pp. 1568-1571.)
To the
extent father contends the order denying him custody was illegal as a matter of
law because there was no sustained allegation against him, father cites no case
law or statutory authority to support the contention, and we disagree with the
contention. As substantial evidence
supports the order, the dependency court did not abuse its discretion in
denying father’s request for custody.
To the
extent section 361.2, subdivision (c)
record that the detriment finding was made by clear and convincing evidence, we
conclude the court’s failure to do so in this case is harmless, since
substantial evidence amply supports the finding and there is no reasonable
likelihood of a different result if reversal were ordered.
B. Drug Testing
A
reunification plan may require a parent to remedy deficiencies that were not
reflected in a sustained allegation if those deficiencies would reasonably
“impede the parent’s ability to reunify with his child.†(In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1008, cited with
approval by In re Nolan S. (2009) 45 Cal.4th 1217, 1228-1229.)
Father was
not ordered to complete a drug program.
He was ordered to submit to testing only to determine whether he was
still abusing drugs. Only if he failed
to test clean would he be required to complete a rehabilitation program. The evidence of his history of abusing drugs
and engaging in drug-related criminal activity was a rational basis for
ordering the testing. The dependency
court reasonably inferred that the absence in the record of evidence of
continued drug abuse during the period subsequent to his removal from the
United States, and general comments by relatives who did not live with him, did
not indicate he was drug-free. Testing
would resolve the matter. Current drug
abuse would impede his ability to reunify with Jose. Accordingly, the order was well within the
court’s broad discretion to fashion orders to best serve and protect the
child. (Compare In re Basilio T. (1992) 4 Cal.4th 155, 160-162, 172-173 [the
substance abuse component of the dispositional order was an abuse of discretion
where there was no evidence of past or present drug use or of drug-related
criminal activity].)
C.
Monitored Visits
“Courts have
long held that in matters concerning . . . visitation trial courts are vested
with broad discretion. On appeal the
exercise of that discretion will not be reversed unless the record clearly
shows it was abused.†(
p. 953.) In exercising discretion, the
court “balanc[es] the rights of the parent with the best interests of the
child.†(In re R.R. (2010) 187
Cal.App.4th 1264, 1284.) Given father’s
drug use, gang membership, criminal history, weapons possession, and no
credible evidence father substantially changed his lifestyle, it was not an
abuse of discretion to conclude Jose’s safety and welfare required that visits
with father be monitored.
The orders are affirmed.
KRIEGLER,
J.
We concur:
ARMSTRONG,
Acting P. J.
MOSK,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Father was found to be Jose’s presumed father.
