In re Dahlia
C.
Filed 10/15/13
In re Dahlia C. CA2/7
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
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re DAHLIA C., a Person
Coming Under the Juvenile Court Law.
B247020
(Los
Angeles County
Super. Ct.
No. CK96963)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
TYLER V.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court of Los
Angeles County, Zeke D. Zeidler, Judge. Reversed in part and affirmed in part.
Jack A.
Love, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County
Associate County Counsel, for Plaintiff and Respondent.
>
Tyler V., the presumed father of
22-month-old Dahlia C., appeals from the juvenile court’s findings of
jurisdiction and its disposition order removing the
placing her in the care of the Los Angeles County Department of Children and
for suitable placement with a nonrelated extended family member. Tyler
contends there was insufficient evidence Dahlia was at risk of serious physical
harm based on his history of domestic violence and marijuana and alcohol use
and there were reasonable means to protect Dahlia if she was returned to his
custody. We reverse the jurisdiction
finding based on marijuana and alcohol use but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.
The Department’s Investigation and
the Detention of Dahlia
In late September 2012 a mandated
reporter called the Department to advise it of concern for Dahlia’s well-being
based, in part, on the following information:
Karen C., Dahlia’s mother, had a
with a friend in Pasadena rather than at her mother’s apartment in Burbank;
Tyler was allowed to move into the apartment with the maternal grandmother to
care for Dahlia; Tyler and the maternal grandmother had argued over money while
Dahlia was present in the home; Tyler screamed at the maternal grandmother he
was going to kill her; the police arrived with an arrest warrant but Tyler was
no longer at the scene; and Karen had said she wanted to have the restraining
order revoked so she could live with Tyler.
An emergency response social worker
visited the apartment the next day. The
electricity had been turned off. Karen
was present, as was Tyler
(notwithstanding the restraining order), but the maternal grandmother had
apparently moved out. The social worker
observed formula, baby food, water and diapers in place; Dahlia, who was then
only 10 months old, appeared cared for, clean, cheerful, developmentally on
target and emotionally stable. Karen and
Dahlia moved to a motel the following day and then to an apartment in North
Hollywood.
During further investigation Tyler
stated (and Karen and the maternal grandmother confirmed) he took care of
Dahlia while Karen was at school or at work.
Based on the social worker’s observations, drug abuse was suspected. Tyler
acknowledged using marijuana, but explained he had a
used it only at night to help him sleep and insisted he did not consume
marijuana in the apartment. The
Department also learned there had been a serious incident of
when Tyler choked Karen and broke furniture in their residence, which led to
issuance of the criminal protective order.
(The order was originally issued in March 2010 and reissued in June 2012
based on Tyler’s violation of the
stay-away provisions.) Notwithstanding
the restraining order, Karen allowed Tyler
to live with her and allowed him unlimited access to the child.
Both parents failed to appear for
two scheduled on-demand drug tests in October 2012. The Department scheduled a team decision
meeting in late November 2012 to address concerns regarding the child’s safety
and well-being. Karen cancelled the
appointment stating she had to work.
Based on concerns regarding
periodic incidents of domestic violence and drug abuse, and because the parents
were not cooperating, the Department obtained a removal order from the court
and filed a dependency petition pursuant to Welfare and Institutions Code
section 300, subdivisions (a) (serious physical harm) and (b) (failure to
protect) alleging Dahlia was at risk of serious physical harm because of Tyler
and Karen’s history of engaging in violent altercations, specifically
identifying the occasion when Tyler had choked Karen and the recent episode in
which Tyler had threatened the maternal grandmother. At a hearing on December 14, 2012 the court
found a prima facie case for detaining Dahlia had been established, ordered her
detained with a nonrelated extended family member and vested temporary
placement and custody with the Department.
The court also ordered family reunification services for Karen and Tyler
and directed the Department to refer them for weekly random and on-demand testing
for drugs and alcohol.
2.
The Jurisdiction and Disposition
Hearings
On January 9, 2013 the Department filed a first amended
petition alleging, in addition to the earlier allegations of domestic violence,
that Karen (in count b-3) and Tyler
(in count b-4) each had a substance abuse history and was a current user of
illicit drugs including marijuana and alcohol.
The amended petition additionally alleged each parent had failed to
protect Dahlia from the effects of the other’s substance abuse.
In its jurisdiction/disposition
report the Department stated Karen and Tyler had met approximately five years
earlier when she was 18 and he was 19 years old. Karen worked part-time; Tyler
was unemployed. Karen and Tyler both
acknowledged Tyler was extremely
jealous and had anger issues, but denied there was ongoing domestic violence or
substance abuse.
The report described the social
worker’s interview with Tyler, who stated he was currently on probation. Tyler
claimed he had not choked or thrown Karen during the March 2010 incident, but
had struck her friend who was physically attacking him during an argument while
they were all intoxicated. Tyler
acknowledged he had destroyed a lot of furniture during the confrontation and
ruined items of clothing he had purchased for Karen by pouring bleach on them.
Karen was also on probation for
damaging the car belonging to the mother of Tyler’s
other child. As had Tyler,
Karen described the March 2010 episode as a drunken battle between Tyler and
her friend who was visiting her. In
contrast, law enforcement witnesses reported Karen had lacerations on her elbow
and hip from being repeatedly pushed to the ground by Tyler
and landing on broken glass during his outburst, which was the basis for their
application for an emergency protective order.
When Tyler was arrested, he
had to be put in leg restraints because he was kicking inside the patrol
car. Both Karen and Tyler told the
social worker they wanted to have the restraining order revoked so they could
resume living together.
With respect to the more recent
incident involving the maternal grandmother, Tyler
denied he had threatened to kill her, describing only an argument over
money. (Tyler
claimed he had given the maternal grandmother money to pay the electricity
bill; she failed to pay the bill, and the electricity in the apartment was
turned off.) The maternal grandmother,
on the other hand, explained that Tyler
had not given her enough money to pay the bill, which was very high because
Tyler and Karen ran the air conditioning all day while she was at work. During their argument Tyler
told the maternal grandmother he was going to report her to the immigration
authorities and threatened, “I’m going to kick your ass, and you’ll see.â€
During one of the interviews with
Karen at her apartment, the dependency investigator smelled a strong odor of
marijuana from the bedroom; Tyler’s
clothes were found in the room. Tyler
conceded he had been smoking marijuana since he was 15 years old and had taken
crystal meth and cocaine and abused alcohol in the past, but claimed he had
quit drugs in 2008. Tyler
showed the investigator a medical marijuana license and explained he used the
marijuana to cope with anxiety. Karen
and Tyler failed to participate in two scheduled drug tests. Although initially denying marijuana use,
Karen subsequently disclosed she had smoked marijuana for six years and had a
valid marijuana license for depression and scoliosis.
Karen tested positive for marijuana
on January 7, 2013, three
weeks before the scheduled jurisdiction hearing. Tyler
tested positive for marijuana on January 2,
2013 and again on January
24, 2013. On the latter date
he also tested positive for alcohol with a 0.07 percent blood alcohol level.
On January 30, 2013 Karen signed a waiver of rights and
submitted the jurisdiction issues to the court on the basis of the social study
reports and other documents prepared by the Department. The following week, at a contested hearing
held February 4, 2013, Tyler
testified he had not choked Karen and, in fact, the violence reported that day
was not with Karen but her friend. He
also denied any violent altercation with the maternal grandmother and denied he
had threatened to kill her. He said he
was not using any illegal drugs and had enrolled in parenting and domestic
violence classes, explaining he was willing to listen and open to learning how
to be a better father.
The court sustained all counts in
the first amended petition as further amended to conform to proof: The court struck the allegation that Tyler
had choked Karen during their March 2010 violent altercation and modified the
allegation that Tyler had
threatened to kill the maternal grandmother to state only that he had
threatened her.
Turning immediately to disposition
and based upon the evidence just presented at the jurisdiction hearing, the
court found by clear and convincing evidence that remaining in the home of her
parents would pose a substantial danger to Dahlia’s physical health, safety,
protection or physical or emotional well-being and no reasonable means other
than removal existed to protect the child.
The court declared Dahlia a dependent child of the court; her care,
custody and control was placed under the supervision of the Department; and she
was suitably placed with the nonrelated extended family member with whom she
had been staying. Family reunification
services were ordered: Karen was ordered
to participate in a full drug and alcohol program with after-care, weekly random
and on-demand testing for drugs and alcohol, parenting education and individual
counseling to address case issues, including anger management and domestic
violence. Tyler
was also ordered to attend and complete a full drug and alcohol program with
after-care and testing, a 52-week certified domestic violence/batterer intervention
program, parenting education and individual counseling. Visitation was to be monitored for both
parents, and neither was allowed to visit Dahlia with the other present.
Tyler
filed a timely notice of appeal. Karen
has not appealed from the juvenile court’s jurisdiction findings or disposition
order.
DISCUSSION
1.
The Governing Statute and Standard
of Review
The purpose of section 300 “is to
provide maximum safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and emotional
well-being of children who are at risk of that harm.†(§ 300.2; see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.) Section 300, subdivision (a), provides
that jurisdiction may be assumed if the child has suffered, or there is a
substantial risk the child will suffer, serious physical harm inflicted
nonaccidentally by the child’s parent.
Section 300, subdivision (b), allows a child to be adjudged a
dependent of the juvenile court when “[t]he child has suffered, or there is a
substantial risk that the child will suffer[] serious physical harm or illnessâ€
because the parent has failed or is unable to provide adequate supervision or
protection.
Although section 300 requires proof
the child is subject to the defined risk of harm at the time of the
jurisdiction hearing (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396; In re Rocco M.
(1991) 1 Cal.App.4th 814, 824), the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take steps necessary to
protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) The court may consider past events in
deciding whether a child presently needs the court’s protection. (Ibid.) A parent’s “‘[p]ast conduct may be probative
of current conditions’ if there is reason to believe that the conduct will
continue.†(In re
S.O. (2002) 103 Cal.App.4th 453, 461, citing In re Rocco M.,
at p. 824.)
We review the juvenile court’s
jurisdictional findings and disposition orders for substantial evidence. (
215 Cal.App.4th 962, 966; In re R.C. (2012)
210 Cal.App.4th 930, 940.) Under this
standard “[w]e review the record to determine whether there is any substantial
evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the
court’s orders, if possible.†(
134 Cal.App.4th 822, 828; accord, In
re Savannah M., supra, 131 Cal.App.4th at p. 1393;
139 Cal.App.4th 87, 96.) “However,
substantial evidence is not synonymous with any evidence. A decision supported by a mere scintilla of
evidence need not be affirmed on appeal.
Furthermore, [w]hile substantial evidence may consist of inferences,
such inferences must be a product of logic and reason and must rest on the
evidence; inferences that are the result of mere speculation or conjecture
cannot support a finding. The ultimate
test is whether it is reasonable for a trier of fact to make the ruling in
question in light of the whole record.â€
(David M., at p.
marks & italics omitted.)
2. Substantial Evidence Supports the Jurisdiction Findings as to
As Tyler recognizes, because there
has been no challenge to the findings and declaration that Dahlia is a
dependent child of the court based on the evidence concerning Karen’s actions
and inaction, the juvenile court has jurisdiction over Dahlia without regard to
the findings relating to him: “[A]
jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if
the actions of either parent bring her within one of the statutory definitions
of a dependent. [Citations.] This accords with the purpose of a
than prosecute the parent.†(
S. (1996)
51 Cal.App.4th 393, 397; accord, In
re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nonetheless, we decline the Department’s
invitation to disregard Tyler’s challenge to the jurisdiction findings: “[W]e generally will exercise our discretion
and reach the merits of a challenge to any jurisdictional finding when the
finding (1) serves as the basis for dispositional orders that are also
challenged on appeal [citation]; (2) could be prejudicial to the appellant or
could potentially impact the current or future dependency proceedings
[citations]; or (3) ‘could have other consequences for [the appellant], beyond
jurisdiction.’†(In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
Sufficient evidence supports the
juvenile court’s determination that Tyler’s
admitted, recurrent anger management issues, coupled with the two specific
incidents described at length in the Department’s reports, placed Dahlia at
substantial risk of future serious harm.
(Even Tyler in his opening
brief describes his “inappropriate disputes with mother and maternal
grandmother,†asserting only that they did not result in serious physical harm
to Dahlia.) There is no longer any doubt
a child’s exposure to domestic violence may serve as the basis for
jurisdictional finding under section 300.
(In re R.C., supra, 210
Cal.App.4th at p. 941; In re
Heather A. (1996) 52 Cal.App.4th 183, 194.) Although Dahlia had not yet been born when Tyler
choked Karen’s friend and repeatedly pushed Karen to the glass-littered floor
during a drunken argument, past violent behavior in a relationship is the best
predictor of future violence. (See
184 Cal.App.4th 568, 576.) Indeed,
Karen confirmed her continuing relationship with Tyler
was characterized by fights that involved “a lot of yelling and screaming,â€
conduct she recognized constituted emotional abuse. Moreover, Dahlia was present during Tyler’s
high volume argument with her maternal grandmother in which, as well as spewing
verbal abuse, Tyler repeatedly
threatened physical violence. In
addition, evidence presented to the court established Tyler
had numerous arrests, culminating in one juvenile adjudication and one adult
misdemeanor conviction, for crimes involving the use of personal violence. This risk of harm to Dahlia is further
magnified by Tyler’s and Karen’s
repeated violations of a restraining order and their announced intention to
continue to live together. The juvenile
court’s assertion of jurisdiction on this ground was justified.
3. There Is Not Substantial Evidence To Support the Jurisdictional Finding
Based on Use of Marijuana or Alcohol Abuse
Although the combination of Tyler’s
anger management issues with his use of marijuana and alcohol is cause for
concern, the Department presented no evidence Tyler was currently involved in
any illicit drug use as alleged in the amended petition: He apparently had a valid medical marijuana
license, as did Karen; and there was no indication his recent use of alcohol
was coupled with illegal behavior. There
was a similar absence of evidence that Tyler’s or Karen’s legal use of
marijuana or alcohol constituted “substance abuse†or that it placed Dahlia at
any risk of harm. To the contrary, the
evidence presented indicated Dahlia was well cared for and developing
appropriately.
To be sure, the Legislature has
declared, “The provision of a home environment free from the negative effects
of substance abuse is a necessary condition for the safety, protection and
physical and emotional well-being of the child.†(§ 300.2.) Exercise of dependency court jurisdiction
under section 300, subdivision (b), is proper when a child is “of such tender
years that the absence of adequate supervision and care poses an inherent risk
to [his or her] health and safety.†(
814, 824; see In re Drake M., supra,
211 Cal.App.4th at p. 767 [finding of substance abuse is prima facie evidence
of the inability of a parent or guardian to provide regular care resulting in a
substantial risk of physical harm].)
Nonetheless, without more, use of
medical marijuana or alcohol by a parent is not a sufficient basis to assert
dependency jurisdiction. (
211 Cal.App.4th at p. 764; see In re
Destiny S. (2012) 210 Cal.App.4th 999, 1003; In re Alexis E., supra, 171 Cal.App.4th at p. 453.) A finding of current substance abuse is
necessary (In re Drake M., at p.
766); and even then, there must be some evidence of an inability or failure to
adequately supervise or protect the child as a result of the substance abuse
problem. (
see In re David M., supra, 134
Cal.App.4th at p. 830 [reversing jurisdictional finding under § 300, subd.
(b), due to lack of evidence mother’s continuing substance abuse problems
created specific, defined risk of harm].)
Although the violent altercation in March 2010 was alcohol-fueled, there
was no evidence of any misuse of marijuana or alcohol following Dahlia’s birth
that created a risk of harm to her.
Accordingly, the count b-4 jurisdiction finding based on Tyler’s
use of marijuana and alcohol is reversed.
4.
The Disposition Order Is Supported
by Substantial Evidence
Before the court may order a child
physically removed from his or her parent, it must find, by clear and
convincing evidence, the child would be at substantial risk of harm if returned
home and there are no reasonable means by which the child can be protected
without removal. (§ 361, subd. (c)(1);
849.) Tyler
challenges the court’s order removing Dahlia from his custody, asserting there
was no evidence removal was necessary to protect her from harm.
substantial evidence. (
207 Cal.App.4th 94, 105; In re N.M.,
supra, 197 Cal.App.4th at p. 170.)
The jurisdictional findings are
prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1); In re T.V. (2013) 217 Cal.App.4th 126, 135.) The child need not have been actually harmed
before removal is appropriate. (
247; In re T.V., at pp.
135-136.)
Tyler emphasizes he had already
begun participating in domestic violence and parenting programs following the
Department’s initial intervention, services that would provide a reasonable
means to protect Dahlia while allowing her to reside with her father. However, the juvenile court, which had heard
Tyler explain his participation in the programs, rejected that argument,
commenting that Tyler’s testimony indicated he was in total denial, that is, he
believed none of what was being said in the programs related directly to him;
he was just listening to other people share what was happening in their
lives. Because the court concluded Tyler
had not yet made any progress in dealing with his severe anger/violence issue,
it ordered Dahlia removed from his custody.
That finding is supported by substantial evidence.
DISPOSITION
The juvenile court’s finding and
order sustaining the allegations in count b-4 regarding father Tyler V.’s use
of marijuana and alcohol are reversed.
In all other respects its February
4, 2013 findings and order are affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J. ZELON,
J.
does not challenge any other aspect of the disposition order, including his
court-ordered participation in a drug and alcohol program with testing.
