In re Ashley M.

 

 

 

 

 

 

 

 

Filed 5/30/13  In re Ashley M. CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO

 

 
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In re ASHLEY M. et al., Persons Coming Under the Juvenile Court Law.	B243052       (Los Angeles County       Super. Ct. No. CK93422)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   SCOTT M.,               Defendant and Appellant.

 

            APPEAL from
orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Donna Levin,
Juvenile Court Referee.  Affirmed.

 

            Merrill Lee
Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

 

            John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and John C. Savittieri, Deputy County Counsel,
for Plaintiff and Respondent.

            No appearance
for Minors.

* * * * * *

 

            Appellant
Scott M. (Father) was involuntarily hospitalized after he had been drinking for
four consecutive days and expressed suicidal thoughts.  Father’s girlfriend arranged for the children
Ashley M. and Robert M. to go with their mother, Danielle B. (Mother) on the
day Father was hospitalized.  This was
his third hospitalization during the past year. 
The juvenile court sustained a petition pursuant to Welfare and
Institutions Code section 300, subdivision (b),href="#_ftn1" name="_ftnref1" title="">^[1] which alleged that Father’s alcohol abuse and
history of mental and emotional problems placed the children at risk.  Father appealed, asserting that substantial
evidence did not support the juvenile court’s jurisdictional findings.

            We
affirm.  The
Los Angeles County Department of Children
and Family Services (Department) offered sufficient evidence to show there
was a substantial risk the children would suffer serious href="http://www.sandiegohealthdirectory.com/">physical harm or illness
from Father’s inability to provide regular care for them due to his alcohol
abuse and mental health issues.

FACTUAL AND PROCEDURAL BACKGROUND

            >Facts
Preceding Detention.

            In
September 2007, when Ashley was four years old, the family came to the
attention of Sacramento County Child Protective Services due to allegations
that Father sexually abused her.  The
allegations were assessed as being inconclusive.  In 2008, Father was arrested for disorderly
conduct and being under the influence; he had previously been arrested several
times on varying charges, and had served time in prison.  Father was involuntarily psychiatrically
hospitalized in April and September 2011.

            The
Department received a referral on March
29, 2012 that Father had been brought in by law enforcement and
hospitalized pursuant to section 5150href="#_ftn2" name="_ftnref2" title="">^[2] because he was a danger to himself and
others.  Father was drunk and had been
drinking for the past four days.  He told
a friend he wanted to “‘Off himself.’” 
He likewise told law enforcement officers that he wanted to end his life
and had been drinking for several days. 
At the time of the referral, the Department learned that Father had full
custody of Ashley and Robert, and Mother had lost custody.  Before he was hospitalized, Father had left
the children with his girlfriend, Kim A., who contacted Mother to have her take
the children.  He was released after a
72-hour hold.

            A
Department social worker made unannounced visits to Father’s home on
March 30, April 7 and April 11,
2012, but did not make contact with anyone.  On April 12,
2012, Father telephoned the social worker.  He admitted he had recently been hospitalized
and stated that he had allowed Mother to care for Ashley and Robert.  He added that the children had been missing
Mother and it had been difficult for him to care for them due to transportation
issues.  He denied that the children had
been removed from Mother’s custody, stating that he had sole physical custody
and Mother had visitation rights.href="#_ftn3"
name="_ftnref3" title="">^[3]  He confirmed that Mother had picked up the
children before he was hospitalized, and therefore they were not present when
law enforcement came to pick him up.  He
did not admit or deny that he had a substance abuse problem and had been
drinking for four consecutive days, stating “‘I was just having some personal
problems and I didn’t want the kids to be around me.’”  He denied that Mother or he had ever abused
or neglected the children.  Approximately
two weeks later, Father signed a safety plan which permitted Mother to continue
to care for the children during the Department’s investigation.  He refused to sign a release of the records
concerning his hospitalization.

            The social
worker interviewed Mother and the children on April 14, 2012.  Mother reported that Father and she had been
separated for about two years, and similarly denied any neglect or abuse of the
children.  She was currently residing
with an aunt and uncle, and confirmed that Father had custody of the children
while she had visitation rights.  She
stated that Father had had a “‘drinking problem’” and he drank almost daily,
primarily beer, when he resided with her. 
She was aware of his past hospitalizations, but denied that he used
drugs or had engaged in domestic violence. 
With respect to Father’s recent hospitalization, Mother stated Kim A.
informed her that Father was depressed, had been drinking and expressed
suicidal thoughts.  She picked up the
children before law enforcement arrived.

            Nine-year-old
Ashley stated that she had everything she needed while living with Father, but
she missed Mother.  She reported that
neither parent abused nor neglected her or Robert.  She did not know what drugs and alcohol were.  Four-year-old Robert appeared happy and well
cared for.

            The
Department concluded that Ashley and Robert were at “‘Very High Risk’” due to
Father’s mental, emotional and sobriety issues, as well as Mother’s failure to
obtain a custody order.

            >Section
300 Petition.

            On May 9,
2012, the Department filed a section 300 petition alleging pursuant to
subdivision (b) that the children were at a risk of harm from Father’s history
of substance abuse and current alcohol abuse (paragraph b-1) and from his
history of mental and emotional problems, including his recent hospitalization
to treat his psychiatric condition (paragraph b-2).

            Father and
Mother appeared at a detention hearing
the same day.  The juvenile court found a
prima facie case for detaining the children; it removed them from Father’s
custody and permitted the Department to release them to Mother’s custody so
long as she continued to reside with her relatives.  It further ordered weekly random alcohol
testing for Father and allowed him monitored visitation.

            >Jurisdiction
and Disposition.

            The social
worker reinterviewed Father, Mother, Kim A. and the children for the
Department’s June 11, 2012 jurisdiction/disposition report.  With respect to the petition’s allegation
concerning Father’s substance abuse, Ashley admitted she had seen Father “drink
beer . . . like one or two.” 
Kim A. stated that Father does not usually drink.  Mother stated that although Father had a
drinking problem right after the two separated, she was under the impression
that Father had not been drinking since he gained custody of the children.  She added that he is stable and capable of
caring for the children when not drinking, but that he becomes emotionally
depressed when he drinks alcohol.  Father
admitted that he experimented with alcohol and drugs when he was a teenager and
spent time in Juvenile Hall.  In 1993 he
was arrested for driving under the influence, and in 1995 he was arrested for
unlawfully possessing a firearm and spent six years in prison.  He admitted to having a problem with alcohol
during that time in his life.  He further
stated, however, that he needed to “detox” in 2011 and he was told the only way
to receive free “detox services” was to say he was a danger to himself or
others.

            In
connection with the second allegation concerning Father’s mental and emotional
condition, Mother denied any knowledge of Father’s prior hospitalizations and
said Father told her the Department’s account of his most recent
hospitalization was untrue.  Though he
conceded that his two 2011 hospital stays were the result of his alcohol
problem, Father denied ever being diagnosed with depression or being
suicidal.  According to him, the March
2012 hospitalization was the result of a misunderstanding.  He admitted that at that time he “was having
a hard time and [he] was drinking a lot,” and called a friend to help him with
the children.  He said he began confiding
in her and she must have thought he was in trouble because the police soon
arrived at his home offering him the choice of jail or the hospital; he chose
the latter.  Kim A. stated that she was
unsure whether Father was suicidal in March 2012, but she did come at his
request and got the children out of the house.

            More
generally, Mother characterized the children’s custody arrangement as voluntary
and reported that since their separation she and Father had been able to

co-parent the children effectively. 
Nonetheless, in 2012 she agreed to have the family law court grant full
custody of the children to Father.  At
the time of the jurisdiction/disposition report, neither child had received a
regular medical checkup in quite some time and had not been to a dentist in
over two years.

            The
Department opined “that both the mother and the father appear to minimize the
father’s mental health problems and repeatedly emphasize that each parent’s
individual problems have never affected or influenced the children,” and that
their failure to comprehend the serious nature of Father’s mental/emotional and
sobriety issues placed the children at risk of abuse and/or neglect.  The Department recommended that the children
be detained, stating:  “Based on the
history of mental health hospitalizations as to the father, the father’s prior
and current alcohol issues, the father’s criminal record and the mother’s prior
mental health issues, the overall risk [to the future safety of the children]
is ‘high.’”

            In a June
11, 2012 last minute information for the court, the Department reported that
Father had completed four weekly random alcohol tests—all negative.  At the jurisdiction/disposition hearing the same
day, the juvenile court admitted the Department’s reports into evidence and
heard counsels’ arguments.  While
Father’s counsel sought dismissal of the petition, counsel for the Department
and the children asked the juvenile court to sustain it, with the exception of
the reference to Father being diagnosed with depression.

            The
juvenile court found that the children were persons as described in
section 300, subdivision (b) and sustained the petition, striking the
reference to a diagnosis of depression because the Department did not present
evidence to support that allegation.  The
juvenile court characterized the matter as a “classic case where the father
doesn’t want to face the seriousness of the alcohol problem.”  Proceeding immediately to disposition, the
juvenile court declared the children dependents of the court pursuant to
section 300, subdivision (b), ordered the children removed from Father’s
custody and placed them with Mother.  It
also ordered a full alcohol treatment program for Father to include random
testing, a mental health psychiatric evaluation and parenting classes.  Father received href="http://www.fearnotlaw.com/">monitored visitation.  Mother submitted to the juvenile court’s
jurisdiction and received family preservation and other services.

            Father
appealed.  In January 2013, while the
appeal was pending, the juvenile court terminated jurisdiction with a family
law order which awarded Father and Mother joint legal custody of the children
and Mother sole physical custody.  We
have taken judicial notice of the juvenile court’s termination order.  We note that “[t]he court’s termination of jurisdiction does
not, however, moot Father’s appeal.  The
court’s jurisdictional findings as to Father, if erroneous, could have severe
and unfair consequences to Father in future href="http://www.mcmillanlaw.com/">family law or dependency proceedings.”  (In re
Daisy H. (2011) 192 Cal.App.4th 713, 716; accord, In re D.C. (2011) 195 Cal.App.4th 1010, 1015.)

DISCUSSION

       Though
Father appealed from both the jurisdictional and disposition orders, he
challenges only the juvenile court’s jurisdictional findings under section 300,
subdivision (b).  (See, e.g., >People v. Stanley (1995) 10 Cal.4th 764,
793 [“‘Every name="SR;3380">brief should contain a legal name="SR;3385">argument with citation of
authorities on the points made.  If none
is furnished on a particular point, the court may treat it as waived, and pass
it without consideration’”].)  The
statute provides, in pertinent part, that a child comes within the jurisdictionname=SearchTerm>
of the juvenile court if “[t]he child has suffered, or there is a substantial
risk that the child will suffer,
serious physical harm or illness, . . . by the inability of the
parent . . . to provide regular care for the child due to the
parent’s . . . mental illness, . . . or substance
abuse.”  (§ 300, subd. (b).)  Jurisdiction under section 300,
subdivision (b) is warranted by a showing “the child has suffered or there
is a substantial risk that
the child will suffer, serious physical harm or abuse.”  (In re
Adam D. (2010) 183 Cal.App.4th 1250, 1261, italics omitted.)

       name="citeas((Cite_as:_2012_WL_1883238,_*8_(Ca">The Department bears the
burden to “‘“prove by a preponderance of
the evidence that the child . . . comes under the juvenile
court’s jurisdiction.”’”  (>In re Veronica G. (2007) 157 Cal.App.4th
179, 185.)  “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.]” 
(Ibid.)  “‘Thename="SDU_575"> term
“substantial evidence” means such relevant evidence as a reasonable mind would
accept as adequate to support a conclusion; it is evidence which is reasonable
in nature, credible, and of solid value. 
[Citation.]’  [Citation.]”  (In re
E.B. (2010) 184 Cal.App.4th 568, 574–575.) 
In determining whether substantial evidence—contradicted or uncontradicted—supports
the juvenile court’s jurisdictional findings, “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.”  (In re
Heather A. (1996) 52 Cal.App.4th 183, 193.)

       Here, substantial evidence supported the
juvenile court’s findings under paragraphs b-1 and b-2 of the petition.href="#_ftn4" name="_ftnref4" title="">^[4]  In the petition’s first
paragraph, the Department alleged that Father “has a history of substance abuse
and is a current abuser of alcohol, which renders the father incapable of
providing regular care and supervision of the children.”  It further cited the March 2012 incident and
alleged that Father’s alcohol abuse placed the children’s physical health and
safety at risk.  The juvenile court found
paragraph b-1 true as pled.  Highlighting
the seriousness of Father’s problem, the juvenile court observed that even
though Father had been hospitalized to “detox” on more than one occasion, he
continued to drink, even with two young children under his care.

            By Father’s own admission, his problem with alcohol was
long-standing and unresolved.  Father
stated that he began experimenting with alcohol at age 13.  During the next 20 years, Father amassed a
criminal record which included drunk driving convictions in 1993 and again
sometime after 2002.  He admitted that in
2011 “he did have an alcohol problem which resulted in two ‘detox’ stays at
Henry Mayo.”  With respect to the March
2012 incident, Father admitted that he had been drinking for at least four
consecutive days because he wanted to “‘forget everything.’”  Though Father noted that the children were
not with him during the 2011 incidents, the March 2012 drinking incident
occurred just two to three weeks after he gained full custody of the children
and, by his own account, the children remained in his custody during those four
days of drinking.  Mother did not take
custody of the children until the day Father was hospitalized.

Given
these circumstances, substantial evidence supported the juvenile court’s
determination that the children’s safety remained at risk until Father received
treatment for his alcohol abuse.  Even if
we were to characterize the March 2012 hospitalization as a single incident of
endangering conduct, it would be sufficient to support jurisdiction.  As explained in In re J.N. (2010) 181 Cal.App.4th 1010, 1025, which involved a
single incident of a parent’s drinking and driving, the court explained that
“[i]n evaluating risk based upon a single episode of endangering conduct, a
juvenile court should consider the nature of the conduct and all surrounding
circumstances,” including evidence of the parent’s name="SDU_1026">understanding
of the endangering conduct, steps taken to address the problematic conduct, and
other indications that the conduct will not recur.  Here, Father never acknowledged the
seriousness of his alcohol abuse and instead denied that his drinking
negatively affected the children.  Though
he did have four clean court-ordered alcohol tests before the jurisdictional
hearing, there was nothing in the record suggesting that he was voluntarily
participating in any type of alcohol
treatment program.  Nor was there any
indication that Mother could assist him in treating his problem, as Father told
her that he had stopped drinking.

Conceding
that the Department offered evidence of his recent alcohol abuse, Father argues
that there was no evidence showing a nexus between his drinking and any current
risk to his children.  We do not
agree.  Section 300.2 provides that the
purpose of the Welfare and Institutions Code provisions relating to dependent
children is to secure protection for children being harmed or who are at risk
of being harmed, and that “[t]he 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.”  (Italics added.)  Though Father has made efforts to “detox,”
the evidence showed that he has been unable to provide a home environment free
from alcohol abuse for his children. 
Notwithstanding that the children remained in his care until the last
day of his four days of drinking, he continued to deny that his alcohol abuse
remained a current problem, stating:  “In
the past it was a problem (alcohol) but not now.”  Mother stated that Father could provide a
stable environment for the children so long as he did not drink.  Ashley initially told the social worker she
did not know what alcohol was, but admitted in the jurisdiction/disposition
report that “‘I know what alcohol is . . . it’s wine and I don’t
want to say the other thing. . . .  Yeah . . . beer.  I’ve seen my dad drink beer
. . . like one or two.’” 
Her statements demonstrated she had some awareness of Father’s alcohol
consumption and a desire to conceal it.

A dependency court need not wait until
the child has been seriously
harmed by the parent’s
abuse or neglect before it assumes jurisdiction to protect the child.  (E.g., >In re Heather A., supra, 52 Cal.App.4th
at p. 194.)  Evidence that while the
children were in Father’s care he drank for a period of several consecutive
days to such an extent that he required hospitalization, and thereafter failed
to acknowledge that his drinking posed any problem for his children, supported
the finding that his alcohol abuse created a risk of serious harm and neglect.

Similarly, substantial evidence supported the jurisdictional
findings under paragraph b-2 of the petition that Father’s mental and emotional
condition, including suicidal ideation, rendered him incapable of providing
regular care and supervision of the children and placed them at substantial
risk of harm.  Father had been involuntarily psychiatrically
hospitalized three times during the year preceding the section 300
petition.  Father continued to minimize
the significance of these incidents, claiming that he falsely represented he
was a danger to himself or others in order to receive free services.  He attributed his most recent hospitalization
to “personal problems” and stated the children were with Mother while he was
hospitalized because they had been missing her. 
Mother initially denied knowledge of Father’s hospitalizations, but then
acknowledged that Father had been hospitalized on more than one occasion to
address his mental and emotional issues. 
Though Father claimed that Kim A. misunderstood his condition, she
stated that preceding Father’s most recent hospitalization, Father had been
depressed, was drinking and said that he felt like he wanted to commit
suicide.  Kim A. reported to the
Sheriff’s Department that she called law enforcement because she feared Father
“was going to hurt himself and possible [sic]
the kids . . . .”  The law
enforcement officer who completed Father’s application for a 72-hour detention
for evaluation and treatment reported that Father told him he wanted to end his
life and had been drinking for several days because he wanted to forget
everything.

Substantial
evidence therefore demonstrated that Father’s mental health issues periodically
rendered him incapable of providing adequate care for the children.  Even though there was no evidence that Ashley
and Robert had suffered actual physical injury as the result of Father’s mental
health issues, his continued efforts to minimize those issues coupled with his
inability to care for the children during periods of hospitalization “pose[d]
an inherent risk to their physical health and safety” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824) and constituted
substantial evidence the children were at risk of future serious physical harm
or illness.

Contrary
to Father’s assertion, we do not find that the circumstances presented here are
akin to those in In re James R. (2009)
176 Cal.App.4th 129.  There, the court reversed a juvenile court’s
order under section 300, subdivision (b), based on the court’s findings
regarding the mother’s alleged mental health problems and substance abuse.  (In re James R., supra, at p.
137.)  The evidence of the mother’s
substance abuse and its possible relation to mental health problems was that
the mother once had a negative reaction from the combination of taking eight ibuprofen
tablets and drinking beer.  (>Id. at pp. 131–132.)  When she realized she was having an adverse
reaction, she called for help and was hospitalized.  The evidence further showed she was not
intentionally trying to harm herself, but needed the large dose of ibuprofen
for pain relief, as she had built up a tolerance for acetaminophen.  (Id.
at p. 132.)  She admitted that she had
previously been hospitalized for mental health issues before her children were
born and used illegal drugs approximately seven years earlier.  (Ibid.)  Both her psychiatrist and the social worker
opined that the mother did not pose a risk to her young children.  (Id.
at pp. 133–134.)  Moreover, the mother
and father lived together, and father at all times had been able to provide
adequate care for the children.  (>Id. at p. 134.)  In light of this evidence, the appellate
court deemed speculative any
causal link between the mother’s mental state and future harm to the
children.  (Id. at p. 136.)

In contrast
to In re James R., the evidence in
the instant case showed that Father was drunk and depressed for several days
while the children remained under his individual care, that he had very
recently been hospitalized with thoughts of suicide and that his
hospitalization rendered him incapable of caring for the children.  Both Mother and Kim A.
acknowledged that Father was unable to care for the children when he was
drinking and depressed.  More
importantly, the mother in In re James R.
recognized her problems and voluntarily initiated services before being ordered
to do so.  (In re James R., supra, 176 Cal.App.4th at p. 132.)  Father never acknowledged his mental health
problems, choosing instead to minimize or deny them.  Thus, the possibility of recurring problems
and risk to the children from Father’s mental health issues was far more than
speculative.  (See Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104 [“‘The purpose of dependency
proceedings is to prevent risk, not ignore it’”].)  Substantial evidence supported the juvenile
court’s jurisdictional findings.

>DISPOSITION

The juvenile court’s
jurisdictional and disposition orders are affirmed.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

_____________________, J. href="#_ftn5" name="_ftnref5" title="">^*

    FERNS

We concur:

 

 

____________________________,
Acting P. J.

            ASHMANN-GERST

 

____________________________,
J.

            CHAVEZ