In re F.K.
Filed 11/19/13
In re F.K. CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE
In re F.K., et al., Persons Coming Under the Juvenile
Court Law.
B246184
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
GEORGE K.,
Defendant
and Appellant.
Super. Ct.
No. CK93686)
APPEAL from a judgment of the Superior Court of
County, Sherri S. Sobel, Juvenile Court Referee. (Pursuant to Cal. Const.,
art. VI, § 21.) Affirmed.
Mitchell Keiter, under appointment
by the Court of Appeal, for Defendant and Appellant.
Office
of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Peter Ferrera, Senior Deputy
County Counsel, for Plaintiff and Respondent.
___________________________________________
George K., father of nine-year-old F.K.,
appeals from the judgment of the juvenile court. He challenges the court’s jurisdictional
findings that father’s drug use and the presence of
endangered F.’s health and safety.
Father also argues that there was insufficient evidence to support the
court’s order removing F. from his custody.
We disagree and affirm.
AND PROCEDURAL BACKGROUND
On
March 2, 2012, the
Department received a referral alleging that mother had physically abused F. by
grabbing her neck. The Department
investigated the referral and found it to be “inconclusive for physical
abuse.†However, while conducting a home
visit in April 2012, the Department’s social worker noticed “a little
baggie with white stuff in it†on father’s arm while he was sitting on the
couch. Father acknowledged that the “baggieâ€
appeared to contain drugs, and suggested that it belonged to a guest who had
sat on the couch the day before. When
law enforcement came to investigate, father informed the deputies that he had
flushed the substance down the toilet.
On
May 23, 2012, the Los
Angeles County Sheriff’s Department executed a search warrant at mother
and father’s home to investigate a kidnapping. The police had received a report that father
had held an individual captive in his garage and had tortured him. According to the police report, father was a
“known drug user and dealer.â€
name="_ftnref1" title="">[1] The victim reported that father had hit him
with a gun, poured acetone over his head, had threatened to kill him and
his pregnant fiancée, and had carved the word “lame†across his abdomen with a heated
knife while the victim’s hands were tied.
When
law enforcement searched mother and father’s home, they found three known gang
members in the garage, as well as two knives used in connection with the
torture of the kidnapping victim, a hypodermic needle commonly used to
administer heroin, and gang tagging and graffiti associated with the Rivera
Trece gang on the walls of the garage. Directly
outside of the garage were a methamphetamine pipe and a marijuana pipe. The officers also found a handgun in the
driveway that was allegedly used in connection with the torture of the
kidnapping victim.
Father
was arrested. After his arrest, father
admitted to officers that he worked for the gang, that the kidnapping victim
had been held captive in his garage, that father was present during the
torturing of the victim, and that he and other gang members “do dope and get
high in the garage.†He also
acknowledged that F. often came into the garage.
The
Department’s social worker interviewed each member of the household. Mother said that father was “always in the garage,â€
that she never went into the garage, and that she did not know what father did
in there. However, mother acknowledged
that she suspected that father was engaged in illegal activity in the garage. Mother knew that father had a history of
dealing and using drugs, and said that, after the police raid, she had found
methamphetamine pipes in the garage. Based
on this evidence, she believed that father was using drugs. F. said that she had gone into the garage three
times but that she had not seen any drugs or needles in the house or garage. Maternal grandmother, who also lived in the
family home, stated that father had stopped eating with the family in
mid-April, that he was “always†in the garage with “strange people,†and that
he demonstrated “ ‘very strange and odd behavior.’ â€
A
petition was filed on May 29, 2012, alleging that father’s involvement in a kidnapping,
the presence of drug paraphernalia and weapons in the garage, and father’s use
of illicit drugs endangered F.’s physical health and safety, among other
allegations.
title="">[2] The petition also alleged that mother’s prior
conviction of willful cruelty to children endangered F.
On
May 29, 2012, the court ordered that F. be detained from both mother and father.
An amended petition was filed on July
13, 2012, which alleged that mother should have known that father was involved
in gang activities in the garage and had failed to protect F. from such
activity thereby putting her at risk of serious physical harm.
On
December 7, 2012, the court adjudicated the petition. At that time, father was in jail pending his
criminal trial. Mother signed a waiver
giving up her trial rights. Father’s
counsel argued that F. did not know what happened in the garage, that the drug
paraphernalia and weapons found in the garage did not belong to father, and
that father did not use illicit drugs. The court found that father had endangered F. because
a hand gun, drug pipes and a hypodermic needle were found within access of F., and
because father had a history of illicit drug use and was currently using
illicit drugs.
title="">[5] The court also sustained the allegation that
mother had failed to protect F., and ordered reunification services for mother
and father. Father timely appealed.
Father
contends that there was insufficient evidence supporting the court’s jurisdictional
findings as to him and the court’s order of removal.
1. Standard
of Review
“In reviewing the jurisdictional findings and the
disposition, 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. [Citation.]â€
(In re Heather A. (1996) 52 Cal.App.4th
183, 193.)
2. There
Is Substantial Evidence Supporting the Court’s
Jurisdictional
Findings As to Father’s Conduct
Father only
challenges the juvenile court’s jurisdictional findings involving his conduct. However, the court also sustained the
allegation that mother had endangered F.
Therefore, father’s challenge to the court’s jurisdictional findings
will not result in a reversal of the court’s order asserting jurisdiction. The juvenile court will still be permitted to
assert jurisdiction over the minor because “[a]s long as there is one
unassailable jurisdictional finding, it is immaterial that another might be
inappropriate. [Citations.]†(In re
Ashley B. (2011) 202 Cal.App.4th 968, 979.)
In addition, the juvenile court may still assert personal jurisdiction
over father and adjudicate his parental rights because “that jurisdiction is derivative
of the court’s jurisdiction over the minor and unrelated to Father’s role in
creating the conditions justifying the court’s assertion of dependency
jurisdiction.†(In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
However, father
argues that the court should exercise its discretion to consider his challenge
to the jurisdictional findings with respect to his conduct because those
findings could raise barriers to his reunification with F. He claims that, absent the sustained
allegation that he was using drugs and was responsible for the drug
paraphernalia littered around the property, he would not have been ordered to
undergo drug treatment and testing. The
court retains discretion to consider alternative basis for taking
jurisdiction. (In re D.C. (2011) 195 Cal.App.4th 1010, 1015.)
Here, there was
substantial evidence supporting the court’s finding that father was responsible
for the weapons and drug paraphernalia littered around the property. The handgun found in the driveway matched the
description of the gun used by father during the kidnapping. Father also admitted that he used illicit
drugs in the garage, and there was drug paraphernalia found in and directly
outside of the garage.
Furthermore, there
was substantial evidence that father was using illicit drugs and that this
endangered F. (See In re B.T. (2011) 193 Cal.App.4th 685, 693-694 [holding that
mother’s substance abuse, absent a showing that it rendered mother incapable of
caring for her children or posed a risk to them, was insufficient to support a finding
that the children were at risk of harm under Welfare & Institutions Code
section 300, subdivision (b)].) As
stated above, father admitted to use illicit drugs. Mother also believed father was using illicit
drugs based on his history of drug use and dealing and the presence of
methamphetamine pipes in the garage. Furthermore,
all of the evidence suggested that father had withdrawn from family life in
order to spend time doing drugs with other members of his gang in the
garage. His drug use and criminal gang
activities were intertwined and placed F. in close proximity to dangerous
individuals, weapons and drugs.
Even if there was
no substantial evidence supporting the jurisdictional findings based on
father’s conduct, at the disposition phase, the court is not limited to the
content of the sustained petition but has broad discretion to fashion a
dispositional order based on additional evidence. (In re
Rodger H. (1991) 228 Cal.App.3d 1174, 1183; In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) Here, there was substantial evidence in the
record supporting the court’s disposition order that father submit to drug
treatment and testing: (1) father
admitted that he used illicit drugs; (2) the police identified father as a
well-known drug dealer and user; (3) mother believed father was using
illicit drugs; (4) father had multiple criminal convictions for drug
possession; (5) there was drug paraphernalia littered around the garage where
father spent the majority of his time; and (6) the Department social
worker had observed what father admitted looked like a bag of illicit drugs on
father’s person.
3. Removal
Was Proper
Father contends
that there was insufficient evidence supporting the court’s order removing F.
from his custody. Section 361,
subdivision (c), the statute governing removal, prohibits the
juvenile court from removing a minor child from the physical custody of the
parent(s) with whom the child resided at the time the petition was initiated,
“unless the juvenile court finds clear and convincing evidence . . . . [¶]
[t]here 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 . . . physical
custody.†(Welf. & Inst. Code § 361,
subd. (c)(1).)
“When the
[juvenile court] makes findings by the elevated standard of clear and convincing
evidence, the substantial evidence test remains the standard of review on
appeal. [Citation.] The appellant has the burden of showing that
there is no evidence of a sufficiently substantial nature to support the order.
[Citations.]†(In re
Cole C. (2009) 174 Cal.App.4th 900, 916.) Here, father failed to meet his burden. He argues only that removal was improper
because his unavailability due to his incarceration was insufficient to compel
removal, and a family friend was available to care for F.
Father cites to
684 where the court held that the dependency court may consider placing a child
with an incarcerated parent when that parent is able to make appropriate
arrangements for the child’s care during the parent’s incarceration. However, in Isayah C., the incarcerated parent was nonoffending, and, here, the
court sustained allegations against father based on his illicit drug use and
responsibility for a dangerous home environment.
Substantial
evidence supports the finding that there would be a substantial danger to F.’s
“physical health, safety, protection, or physical or emotional well-being†if she
remained in father’s custody: (1) father
acknowledged taking part in the kidnapping and torture of a man in the garage;
(2) there was evidence father was responsible for leaving a handgun, a
hypodermic needle, a “baggie†of illicit drugs, and methamphetamine pipes on
the property within F.’s access; and (3) there was evidence that father used
illicit drugs and that it rendered him incapable of caring for F. (§ 361, subd. (c)(1).) Father’s conduct had endangered F. and indicated
that he would not make appropriate decisions to protect F. from future harm.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P. J.
ALDRICH, J.
name="_ftn1" title="">
convictions for possession of a controlled substance between 2001 and 2005.
name="_ftn2" title="">
petition also alleged that F.’s older brother was endangered by this activity,
however, he is not a subject of this appeal.
