In re B.S.
Filed 6/4/13 In re B.S. CA2/4
NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 FOUR
In re B.S. et al.,
Persons Coming Under the Juvenile Court Law.
B244847
(Los Angeles County
Super. Ct. No. CK55809)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRIAN S.,
Defendant and Appellant.
APPEAL
from orders of the Superior Court of
County, Rudolph A. Diaz.
Affirmed.
Janette
Freeman Cochran, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Navid
Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Appellant
Brian S. (Father) appeals from the juvenile court’s jurisdictional and
dispositional orders establishing dependency
jurisdiction over his daughters B.S., Am.S., and S.S., and placing them in
foster care. Father contends substantial
evidence does not support the juvenile court’s jurisdictional findings under
Welfare and Institutions Code section 300, subdivisions (a), (b), and (j).
abused its discretion by removing Am. from his care and by not placing B. and
S. in his care. We affirm the juvenile
court’s jurisdictional and dispositional orders.
factual and procedural
background
Mother
has seven daughters, including the three with Father, B. (born in Aug. 2004),
Am. (born in Feb. 2006), and S. (born in Oct. 2007), who are the subjects of
this appeal. Another child, Al.T. (born
in Apr. 2009) was also a subject of the underlying section 300 petition.
Department of Children and Family Services (DCFS) began in 1993 with a referral
alleging severe neglect of her daughter L.; additional referrals for neglect
were reported in 1996, 2001, and 2004.
The latter referral resulted in a police raid of the family home, during
which several adults in the home were arrested and narcotics and firearms were
seized. Numerous children were present
in the home. The family received family
maintenance services between June 2004 and June 2006. Still more referrals were made regarding the
family in 2007, 2008, 2009, and 2010. A
referral made in April 2010 regarding Father, that he failed to believe Am.
(who lived with him) when she told him she had been sexually abused, was found
to be substantiated. Other referrals
were made regarding the condition of Mother’s home, including that there was no
food or utilities in the home.
In
January 2012, a school nurse saw that B.’s teeth were rotted down to the gum
line. The child also had an umbilical
hernia. Mother was told about these
conditions before the school’s winter break and told to obtain dental care
immediately. After winter break, B. did
not return to school and a social worker was unable to assess Mother’s home.
The
referral which led to the current allegations against the family was made in
May 2012. It was reported that
seven-year-old B., four-year-old S.,
and three-year-old Al. were subjected to emotional abuse and caretaker absence,
and that the children and Mother were homeless.
Around 2:00 a.m., Mother engaged in a verbal and physical altercation in
the children’s presence. Mother broke a
window when she tried to punch the woman with whom she was fighting. Mother appeared intoxicated and was placed
under arrest along with her adult daughter, L., who was pregnant. The children were dirty and hungry. Mother later admitted she was drunk during
the altercation.
The
three girls were taken to a DCFS office.
B. said Mother had been drinking prior to the altercation. B. told the social worker she and her sisters
were staying with their “godparent,†Jeff D.
She said Jeff was nice to them.
However, she had seen him smoke a “white rock†called “dope,†which she
said was something you sold to other people.
B. said when Jeff smoked dope his eyes got big and red. S. told the social worker that Jeff also
smoked “weed.†B. said Mother and Jeff
engaged in physical violence. She once
saw Jeff drag Mother off the bed and into the shower with her clothes on, and
had seen him slap Mother’s face. B. also
told the social worker she had seen Jeff on top of Mother and that “he was
inside my mother’s twa twa and [Mother] said stop and [Jeff] didn’t and he
never does.†B. said Mother was crying
during this incident. Jeff had slapped
B. in the face, but Mother did nothing when B. told her about it. B. said Mother often left her and her sisters
alone but she would not leave them alone for very long. Mother later denied any physical or sexual
violence in her relationship with Jeff and denied Jeff physically abused her
children. Mother denied leaving the
children alone, stating she knew the law was that they had to be 12 years old
to be left alone.
B.
said Father lived with his girlfriend and B.’s younger sister, Am. B. said that on the night Mother was arrested
Jeff called Father and told him to pick the children up but the police took
them to the DCFS office before Father arrived.
After several failed attempts to contact Father, a social worker finally
spoke with Father. He seemed upset and
uncooperative. The social worker asked
if he would be able to assume custody of the children and he said he could not,
stating various excuses. Father said he
only had physical custody of Am. because he was bonded to her. He said he would call back after conferring
with other family members and gave the social worker several telephone numbers
for potential caregivers. Father refused
to allow the social worker to interview Am.
Mother’s
14-year-old daughter, Ax., was a member of a street gang and was a juvenile
ward of the court. Another sister, D.,
who would have been five years old, had died in the hospital. S. had been shot in the back by a gang member
when she was 15 months old, and B. had been stabbed when she was six years
old. Al. had a scar on her leg from an
incident in which a television had fallen on her leg in a motel room. Three-year-old Al. was observed by the social
worker raising her middle finger and “flipping people off.†B. said Al. learned that from Mother, who
called the children bitches and would tell them “Fuck you.†B. could not read or identify what sound
letters made; she could only identify letters by name.
Father
also had a one-year-old son who lived with him, and a 10-year-old son who lived
with an aunt. In addition, Father had
two other daughters who lived with their mother.
DCFS
filed a section 300 petition on behalf of B., Am., S., and Al. on June 4,
2012. DCFS alleged that Mother and Jeff
had a history of engaging in violent altercations in the children’s presence,
and Mother failed to protect the children from such incidents and allowed Jeff
to have unlimited access to the children.
Jeff physically abused B. by slapping her face and Mother failed to
protect her from such conduct, thus placing the other children at risk as
well. Mother engaged in a violent
altercation with a neighbor in the children’s presence, resulting in Mother’s
arrest. Mother had placed the children
in a detrimental, dangerous situation by leaving them home without adult
supervision. Mother had a history of
substance abuse and is a current abuser of alcohol, rendering her unable to
properly care for the children. Mother
allowed Jeff to use cocaine and marijuana and reside in the home with the
children and have unlimited access to the children. Jeff possessed and used illicit drugs in the
children’s presence. Father was unable
to provide care and supervision for B. and S., thus endangering their physical
health, safety, and well-being.
At
the detention hearing on June 4, 2012, the juvenile court found Father to be
B.’s, S.’s, and Am.’s presumed father.
The court found a prima facie case for detaining B., S., and Al. (and
releasing Am. to Father’s custody). The
court found a prima facie case existed to establish that all the children were
described by section 300, subdivisions (a) and (b).
On
June 6, 2012, DCFS recommended to the court that B. and S. remain suitably
placed and not be released to Father.
DCFS noted that Father refused to care for the children when they were
originally detained in late May 2012. B.
said she and S. did not spend the night at Father’s home but only spoke to him
on the telephone and visited him occasionally.
Father stated he was only bonded to Am. and demonstrated his lack of a
relationship with B. and S. by failing to take action when notified they were
being abused and neglected. Father told
the social worker on June 5, 2012, that there was no need for the social worker
to see his home because B. and S. were not going to stay with him. He also objected to the requirement that all
of the adults residing in his home be interviewed. He called later the same day, however, and
said the social worker could come to his home.
He gave DCFS the contact information for a proposed caregiver, Ernestine
M. During the investigations of previous
referrals regarding the children, Father refused to meet with the social workers,
saying the investigations had nothing to do with him. Father had spoken to a social worker in late
November 2010 regarding a prior referral and at that time said he knew B. was
not attending school. Father had merely
said Mother was having a hard time because she had no money and no place to
live.
A
hearing was held on June 6, 2012, at which the court arraigned Mother on the
petition and discussed whether B. and S. should be released to Father’s
custody. Father testified he had seen B.
and S. in January, March, and April 2012.
He said he had asked Mother if B. was in school and Mother had told him
she was. When the children were detained
in May 2012, he called B. and told her he was looking for a ride so he could
pick the girls up. He told the social
worker the same thing during subsequent phone calls and asked her to call him
back after he had a chance to find someone to help him. He also gave DCFS contact information for
Ernestine M., with whom the children could stay. The social worker did not call
either of them back. He did as the
social worker instructed and took Am. to a DCFS office to be interviewed. The social worker allowed him to leave with
Am. when the interview concluded. He
said he had room at his home for B. and S. to live with him.
The
court found a prima facie case had been established to justify detaining B. and
S. from Mother’s and Father’s custody.
Father did not have a bond with them and he had either neglected or
ignored their needs. B. was not
attending school and Father should have known about that. In addition, the children’s medical needs
went unattended. DCFS was ordered to
provide the family with reunification services. Mother and Father were granted
monitored visitation with the children.
On
June 20, 2012, DCFS reported that B., S., and Al. were in dire need of mental
health services. B. expected to be made
to leave whenever she misbehaved because Mother had sent her to stay with her
aunt when she was bad. Al. and S.
demonstrated signs of possible sexual abuse and Al. and B. threw frequent
temper tantrums.
The
social worker reported that Father was hostile and uncooperative. She recommended that the juvenile court order
Father to permit the social worker to have face-to-face contact with Am. twice
per month. The court so ordered.
DCFS
filed a first amended petition on June 28, 2012, alleging Mother physically
abused the children by slapping their faces and punching Am. in the
stomach. Mother was incarcerated on May
30, 2012, for public intoxication, and failed to obtain timely medical care for
B., whose teeth were rotted. As to
Father, DCFS alleged that he knew or reasonably should have known about the
child’s medical needs and failed to obtain timely medical care for her.
After
conducting further interviews, DCFS filed a second amended petition adding the
allegation that Father had created a detrimental lifestyle for B., Am., and S.
in that he used drugs in the children’s presence, left marijuana where the
children had access to it, and engaged in domestic violence with his female
companion in the children’s presence, thus endangering the children’s physical
and emotional health, safety, and well-being.
DCFS’s
July 3, 2012 jurisdiction and disposition report indicated Father had a
criminal history including a burglary arrest in 1994, a charge for possession
of cocaine base in 2004, and several misdemeanor charges for possession of
marijuana. The social worker interviewed
Father and intended to read the specific allegations to Father, but he told her
to put the petition away and said he would merely address the inaccuracies in
DCFS’s detention report. Father told the
social worker he did not know anything about Jeff’s relationship with the
children. B. told the social worker that
she referred to Father as “B.†He once
disciplined her by hitting her on the forearm and making her stand in a corner,
leaving her there for an entire night.
Am.
stated that Mother slapped her sometimes, most recently in February 2012. Am. said Mother had punched her in the
stomach and that it caused her pain. Am.
reported that Mother also slapped the other children in the face when they got
in trouble. Am. told Father that Mother
struck her and saw him telling Mother to stop abusing the girls. Mother admitted she hit the children on the
hand but denied ever hitting them forcefully.
She denied that Father ever told her to stop abusing the children.
B.
said Mother became angry and frustrated when she drank. She said Mother mostly smoked marijuana with
Jeff. Am. said Mother drank beer a lot
and it made Mother mean. She had once
asked Mother for some water and Mother gave her a beer to drink instead. Mother said she only drank one or two small
cans of beer each day. She denied ever
being drunk in the children’s presence, but admitted being drunk on the night
she had an altercation with a neighbor.
Mother admitted she smoked marijuana but said she did not do so in front
of the children.
Father
explained to the social worker that after their daughter D. had died, Mother
was upset and grieving so Father offered to care for the children. B. did not want to live with Father, but Am.
did and came to live with him. Mother
and Father had briefly reunited and conceived S. Father insisted he was ready and willing to
assume custody of the children.
B.
told the social worker that Father smoked marijuana in the living room. Sometimes Am. was present when he was smoking
and would come into the bedroom complaining and crying because smoke had gotten
in her face. B. said Father kept his
marijuana in a medicine bottle with a white top. Several times she watched Father “roll the
weed in a blunt, lick it and twist the blunt and smoke it.†B. said Father’s female companion, L.C., also
smoked marijuana. B. once saw Father and
L.C. fighting over a blunt. L.C. became
so upset she grabbed a hammer and began smashing Father’s laptop. Father called the police. The police came to the home and spoke to L.C.
but did not arrest her. Am. said Father
and L.C. would hit and punch each other when they were upset. She once saw L.C. bite Father. Am. said there was a lot of fighting in the
home. L.C.’s two sons also lived in the
home. One of the boys told the social
worker Father was mean to him and would hit L.C. He wanted someone to help his mom, saying
Father and L.C. fought night and day.
Father
admitted he used marijuana and showed the social worker a medical marijuana
card. He said he did not roll “bluntsâ€
in the children’s presence. The social
worker observed several “blunt roaches†(the butts of marijuana joints) in an
ashtray in the living room. Father said
the children never played in the living room.
Father and L.C. merely laughed in response to the allegation that they
engaged in physical violence with one another.
Father
had not had any visits with the children during the month since the dependency
proceedings commenced in late May. He
explained he did not want to visit the children because they would become upset
when the visits ended and they were not allowed to come home with him. He said he had been speaking to B. on the
telephone.
DCFS
recommended that the court declare the children dependents and provide family
reunification services for Mother and Father.
It also recommended based on Am.’s and B.’s statements about the drug
use and domestic violence in Father’s home that Am. be detained from Father’s
custody.
On
July 3, 2012, the court found a prima facie case for detaining Am., concluding
she was a minor described by subdivisions (a), (b), and (j) of section 300,
that substantial danger existed to Am.’s physical and emotional health and
there were no reasonable means to protect her without removing her from
Father’s home. Both Father and Mother
were granted monitored visitation three times per week. The matter was continued for further hearing.
DCFS
reported on July 18, 2012, that Father had tested positive for marijuana. The court continued the matter to August 24,
2012, for a new adjudication hearing.
DCFS
reported on August 20, 2012, that Father had not made any attempt to initiate
contact with the children; he merely returned their telephone calls. Father and Mother had been provided with bus
passes but neither had made any attempt to visit the children. Father did not provide any explanation for failing
to visit the children.
At
the adjudication and disposition hearing on August 24, 2012, Mother was not
present. The parties had discussed
amending certain language in the petition and Father submitted on the basis of
the amended petition and the reports submitted by DCFS. The juvenile court sustained the petition as
amended.
The
court declared the children dependents of the court and found by clear and
convincing evidence that removal of the children from parental custody was
necessary to ensure their safety. The
court ordered DCFS to provide family reunification services for Father and
Mother. Father was ordered to
participate in a drug treatment program including aftercare and random drug
testing, a domestic violence program, parenting classes, and individual
counseling.
This
timely appeal followed.
discussion
I. The Jurisdictional Findings and Order
Before asserting jurisdiction over a
minor, the juvenile court must find that the child comes within one or more of
the categories specified in section 300.
(In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) The burden is on DCFS to “‘“prove by a
preponderance of the evidence that the child . . . comes under the
juvenile court’s jurisdiction.â€â€™â€ (Ibid., quoting In re Shelley J.
(1998) 68 Cal.App.4th 322, 329.) “On
appeal from an order making jurisdictional findings, we must uphold the court’s
findings unless, after reviewing the entire record and resolving all conflicts
in favor of the respondent and drawing all reasonable inferences in support of
the judgment, we determine there is no substantial evidence to support the
findings. [Citation.] Substantial evidence is evidence that is
reasonable, credible, and of solid value.â€
(Veronica G., supra,
at p. 185.) Issues of fact and credibility
are questions for the trier of fact, and we may not reweigh the evidence. (In re Jasmine C. (1999) 70
Cal.App.4th 71, 75.) “If there is any
substantial evidence, contradicted or uncontradicted, which will support the
judgment, we must affirm.†(In re
Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
We
review the juvenile court’s jurisdictional findings under the substantial
evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829;
183, 193 (Heather A.).) Under this standard, we review the record in
the light most favorable to the juvenile court’s determinations to determine
whether there is any reasonable, credible, and solid evidence to support the
juvenile court’s conclusions, 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.)
“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 juvenile 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. (Randi R. v. Superior Court
(1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th
873, 875-876.)†(In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) In addition, the section 300 petition need
only contain allegations against one parent to support the exercise of the
court’s jurisdiction. (In re Jeffrey
P. (1990) 218 Cal.App.3d 1548, 1553-1554.)
Thus, in order to successfully argue for reversal of the juvenile
court’s order adjudicating the children to be dependents of the court, Father
would have to demonstrate that no basis exists for any of the jurisdictional
findings made against either Mother or Father.
Father has not attempted to refute the court’s exercise of jurisdiction
over the children based on Mother’s conduct.
Nonetheless, we will discuss the court’s findings regarding Father in
order to demonstrate that Father’s contentions are without merit.
Father
challenges the juvenile court’s jurisdictional findings under section 300,
subdivisions (a), (b), and (j) based on insufficiency of the evidence. Under subdivision (a), a child may be found
to be a dependent of the court if the child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child’s parent. Under subdivision (j), dependency may be
based upon a finding that the child’s sibling has been abused or neglected, as
defined in subdivisions (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The evidence here showed
that Mother inflicted excessive discipline on the children, slapping their
faces and punching Am. in the stomach.
Father apparently spoke to Mother and told her to stop, but to no
avail. Father did not take action to
prevent further abuse. In addition, the
children were at risk of physical harm because Mother’s lifestyle often left
them without adequate food or shelter and exposed to Mother’s erratic behavior
and violent altercations with neighbors and her male companion.
Under
section 300, subdivision (b), a child may be adjudged a dependent if 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 failure or inability of
her parent to adequately supervise or protect the child, or the willful or
negligent failure of the child’s parent to adequately supervise or protect the
child from the conduct of the custodian with whom the child has been left, or
by the willful or negligent failure of the parent to provide the child with
adequate food, clothing, shelter, or medical treatment, or by the inability of
the parent to provide regular care for the child due to the parent’s mental
illness, developmental disability, or substance abuse. Exposing children to domestic violence is a
sufficient basis for a finding of jurisdiction under section 300, subdivision
(b). (Heather A., supra, 52
Cal.App.4th at p. 194.) “[D]omestic
violence in the same household where children are living is neglect; it is a failure to protect [the children] from the
substantial risk of encountering the violence and suffering serious physical
harm or illness from it. Such neglect
violence in his own home. While the
evidence was that he and L.C. fought over marijuana only once, it was a serious
fight resulting in the police being summoned, and in any event the evidence
showed that the two engaged in physical violence on a regular basis. Furthermore, Father failed to protect the
children from Mother’s drug and alcohol abuse and excessive physical discipline
(including punching a young child in the stomach). He also failed to protect them by exposing
them to his and L.C.’s marijuana use.
Regardless of whether he had a medical marijuana card, he smoked
marijuana in the children’s presence, and the social worker had to tell him
that leaving marijuana butts within the children’s reach (including three-year-old
S.) was unsafe.
In
addition, the evidence showed that Father failed to take action when B. had
serious medical concerns that needed to be addressed. Her teeth were in a deplorable condition,
which could not have happened overnight but was instead the result of
longstanding neglect. She also had an
umbilical hernia which went untreated.
B. was not attending school on a regular basis, and although Father
claimed that he had regular contact with her, he was either unaware of the fact
or not concerned enough to take action to remedy the situation. In summary, we readily find that substantial
evidence supported the court’s jurisdictional findings that the three children
were found to be dependents based on the harm they each had suffered because of
Mother’s and Father’s respective behavior.
Dispositional Order
Section 361, subdivision (c)(1)
provides that a dependent child may not be removed from parental custody unless
the juvenile court finds by clear and convincing evidence that there 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 that
there exist no reasonable means by which the minor’s physical safety can be
protected without removing the minor from the parent’s physical custody. Thus, “[t]he parent need not be dangerous and
the minor need not have been actually harmed before removal is
appropriate.†(In re Diamond H.
(2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J.
v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
The
court was justified in ordering that Father not be permitted to assume custody
of B. and S., where the evidence supported a finding that Father had not shown
adequate concern for their welfare in the past and failed to respond
appropriately when the children were detained.
Furthermore, the conditions discovered in Father’s home provided a
sufficient basis for the court to conclude that Am. would be at risk of harm if
she remained in his custody. Father’s
home was the scene of ongoing domestic violence and regular marijuana use and
was not a safe environment for young children.
The court’s dispositional order removing Am. from his custody and
ordering that visits be monitored is entirely appropriate. Accordingly, we affirm the juvenile court’s
dispositional order.
disposition
The orders challenged on appeal are affirmed.
SUZUKAWA,
J.
We concur:
WILLHITE,
Acting P. J.
MANELLA, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Al.T.
is not Father’s biological child and she is therefore not a party to this
appeal.
