In re Jason R. CA4/1 ( 2014 )

Filed 12/30/14 In re Jason R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JASON R. II, a Person Coming Under
the Juvenile Court Law.
D066426
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1167)
Plaintiff and Respondent,
v.
JASON R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis,
Judge. Affirmed.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Senior Deputy County Counsel, for Plaintiff and
Respondent.
Jason R. contends on appeal that the juvenile court erred in proceeding with a
jurisdictional hearing in his absence and that insufficient evidence supported the court's
jurisdictional finding. Jason also asserts insufficient evidence supported the court's order
removing his son, Jason R. II (J.R), from his custody because less drastic alternatives
were available. Finally, Jason contends the juvenile court abused its discretion by
ordering him to participate in substance abuse treatment. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (Agency) filed a
petition under Welfare and Institutions Code section 300, subdivision (b)1 on behalf of
J.R. when both J.R. and his mother, Ashley H., tested positive for amphetamine and
marijuana at J.R.'s birth. The staff at the hospital where J.R. was delivered also reported
that Jason and Ashley smelled strongly of marijuana and appeared to be under the
influence of the drug when they arrived at the hospital. When interviewed by the
Agency's social worker, Ashley admitted to using methamphetamine and marijuana
throughout her pregnancy, and that she had used methamphetamine as recently as two
weeks before J.R. was born. Ashley also did not receive any prenatal care.
1 All statutory references are to the Welfare and Institutions Code.
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Jason was inconsistent in his statements to social workers about his own drug use,
first denying any use then admitting to using marijuana to deal with pain from a
dislocated shoulder. Jason was aware that Ashley used marijuana during her pregnancy
but claimed he did not know about her methamphetamine use. Jason's failure to react to
the news that Ashley used methamphetamine while pregnant raised concerns for the
hospital staff. Jason told the social worker that he did not think Ashley's drug use while
pregnant had a negative impact on J.R. Jason and Ashley also made odd statements to
social workers that raised concerns about their mental health. For example, Jason told the
social worker he was promised to go to heaven and Ashley told the social worker that
Jason knew when people were going to die because he saw them glowing before they
died.
The social worker asked Jason to drug test three days after J.R. was born, but
Jason failed to appear for the scheduled test, telling the social worker the testing site was
closed by the time he arrived. Jason did drug test four days later and the test result was
negative. Neither parent attended the initial detention hearing because Ashley was
hospitalized for a medical condition. At the hearing, the court found that the Agency had
made a prima facie showing that removal was necessary and ordered that J.R. be detained
in a licensed foster care home or in an approved home of a relative. The court also
continued the hearing to the following day at the request of Ashley's counsel.
Both parents appeared the next day telephonically. At the hearing, the court
appointed counsel for Jason, confirmed its orders from the previous day and ordered that
both parents receive liberal supervised visits and voluntary services. The court
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admonished Jason and Ashley to "keep the court, your attorney, and the social worker
aware of [their] current address and phone numbers." The court also described the
seriousness and potential consequences of the proceedings and both parents
acknowledged their understanding.
The Agency's report for the jurisdiction and disposition hearing indicated J.R. had
been placed in a licensed foster home after he was discharged from the hospital and was
doing well. Ashley continued to have medical difficulties and was in and out of the
hospital. Jason was unemployed but was looking for work and helping to care for
Ashley. The Agency's social worker reported she had difficulty contacting Jason and that
Jason had told the social worker he doesn't check his voice mail because he doesn't have
time. Jason had not enrolled in any of the voluntary services suggested by the Agency.
Jason and Ashley both attended the jurisdiction and disposition hearing and were
represented by counsel. Ashley contested the truth of the allegations of the need for
removal of J.R. and objected to the psychiatric or psychological evaluation that was
recommended for her by the Agency. Ashley's counsel indicated she anticipated calling
the social worker as a witness at trial. Jason's counsel joined in Ashley's request for a
trial date and added Jason as a possible witness. The court set a settlement conference in
a different juvenile court department and a later trial date in its department. The court
stated Jason and Ashley needed to be present both at the settlement conference and the
trial and explained that "[b]oth of you should understand that you need to be present at
that settlement conference. . . . [¶] It is important that you be present because the judge
could hold the trial at that time."
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Jason and Ashley did not appear at the settlement conference and did not contact
anyone about the reason for their absence. The Agency's counsel stated that the social
worker, who was present, had spoken with the parents and had offered to drive Jason and
Ashley to court. According to the social worker, both parents were aware of the
conference and Ashley's grandmother was planning to drive them. The social worker
also had called Ashley, Jason and Ashley's grandmother the morning of the hearing, but
was not able to reach them. Ashley's counsel objected to proceeding with the jurisdiction
and disposition hearing after the settlement conference, stating that she did not have
authority to proceed on Ashley's behalf and that she was alarmed by Ashley's absence.
Jason's counsel stated: "I would join in [Ashley's counsel's] comments on behalf of the
father," but did not provide any independent reason for objecting to the court proceeding.
Neither parents' counsel indicated they planned to offer any evidence in addition to the
Agency's reports.
The juvenile court then proceeded with the jurisdiction and disposition hearing,
finding that notice had been given and that J.R. was a child described by section 300,
subdivision (b). The court stated "obviously, if there's some unusual circumstance there
would be a motion to set this aside." The court declared J.R. a dependent, removed him
from Jason's and Ashley's custody, and gave the Agency authority to find a suitable
placement for J.R. The court further found reasonable efforts had been made to prevent
or eliminate the need for removal of J.R. from his parents' custody. The court ordered
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reunification services for both parents, including liberal visitation with the possibility of
unsupervised and overnight visits. Jason timely filed a notice appeal.2
DISCUSSION
I
Jason contends that the juvenile court's decision to proceed with the jurisdiction
and disposition hearings in his absence after the settlement conference was a violation of
his due process rights. He further argues that the juvenile court lacked the authority to
proceed with the hearings because a local rule prohibits addressing the merits of a case at
a settlement conference.
Due process requires notice that is reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of an action and afford them
an opportunity to object. (In re Melinda J. (1991) 234 Cal. App. 3d 1413, 1418; In re
Justice P. (2004) 123 Cal. App. 4th 181, 188.) Due process is a flexible concept that
depends on the circumstances of the case and a balancing of various factors. (In re Earl
L. (2004) 121 Cal. App. 4th 1050, 1053.) Here, Jason had actual notice that the court
could proceed to the contested jurisdiction and disposition hearings after the settlement
conference if the case did not settle. Jason and his counsel were present at the initial
jurisdiction and disposition hearing when the juvenile court stated explicitly that if no
settlement was reached the court could proceed to the jurisdictional and disposition issues
2 Ashley has not challenged the jurisdiction and disposition orders and is not a party
to this appeal.
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on the date of the settlement conference. The court was clear that Jason and Ashley
needed to be present at the conference for this reason.
Additionally, Jason was represented by counsel at the contested jurisdiction and
disposition hearing and had the opportunity to put on evidence and cross-examine the
Agency's social worker, who was also present. The juvenile court gave Jason the
opportunity to bring a motion to set aside the jurisdictional and dispositional findings if
there were extenuating circumstances that prevented the parents from being present.
Jason has provided no explanation for his absence at the conference and made no motion
below to set aside the jurisdictional and dispositional order. Under these circumstances,
Jason's due process rights were not violated.
Jason's argument concerning the court's local rule also lacks merit. The rule,
Superior Court San Diego County, Local Rules, rule 6.1.9(B) entitled "Settlement
Conference," provides:
"If a matter is set for a contested hearing, the court may order the
parties and their counsel to appear at a settlement conference, and may
schedule dates for both the settlement conference and the hearing. (The
hearing will proceed as scheduled only if the matter does not settle.). . .
Unless expressly excused by the court, if any other party fails to appear at
the settlement conference, the court may issue a bench warrant for that
party."
The final subdivision of the rule also provides that "[i]f a matter is not resolved at the
settlement conference, the court will address pretrial issues." (Id., subd. (E).) The rule,
however, also states that "[t]he court need not follow the procedures outlined in this rule
where there is clear evidence that a settlement conference will not resolve the matter."
(Id., subd. (A).)
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This rule gives the court authority to issue a criminal bench warrant if a party fails
to appear, but does not limit the court's authority to proceed with a contested
jurisdictional and dispositional hearing immediately after the conference. To the
contrary, the rule states it can be disregarded by the court if there is evidence that a
settlement cannot be reached. (Super. Ct. San Diego County, Local Rules, rule 6.1.9.)
Jason and Ashley's failure to appear or explain their absence at the settlement conference
was evidence that settlement was unlikely. The juvenile court, therefore, properly
proceeded to the contested jurisdiction and disposition hearings.
II
Jason next contends that insufficient evidence supported the court's jurisdictional
finding under section 300, subdivision (b) because there was no evidence J.R. suffered
any harm. In reviewing the sufficiency of the evidence on appeal, we consider the entire
record to determine whether substantial evidence supports the juvenile court's findings.
We do not pass on the credibility of witnesses, attempt to resolve conflicts in the
evidence or weigh the evidence. Rather, we draw all reasonable inferences in support of
the findings, view the record favorably to the juvenile court's order and affirm the order
even if other evidence supports a contrary finding. (In re Casey D. (1999) 70
Cal. App. 4th 38, 52-53.) The appellant has the burden of showing there is no evidence of
a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101
Cal. App. 4th 942, 947.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the
child has suffered, or there is a substantial risk the child will suffer, serious physical harm
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or illness as a result of the parent's failure to adequately supervise or protect the child or
provide adequate medical treatment. In enacting section 300, the Legislature intended to
protect children who are currently being abused or neglected, "and to ensure the safety,
protection, and physical and emotional well-being of children who are at risk of that
harm." (§ 300.2.) The Legislature has emphasized that a child's well-being depends on a
"home environment free from the negative effects of substance abuse . . . ." (Ibid.) In
this regard, the court need not wait until a child is seriously abused or injured to assume
jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52
Cal. App. 4th 183, 194-196.) Further, the court may consider past events when
determining whether a child presently needs the juvenile court's protection. (In re
Diamond H. (2000) 82 Cal. App. 4th 1127, 1135.)
In this case, both J.R. and Ashley tested positive for amphetamines and marijuana
at J.R.'s birth and Ashley admitted to using both drugs throughout her pregnancy. Jason
also admitted he was aware of Ashley's marijuana use during the pregnancy and that he
used the drug. Although Jason tested negative for drug use several days after the birth, he
failed to test when he was first asked and hospital staff believed both parents were under
the influence of drugs when Ashley was admitted to the hospital to deliver J.R. The
hospital staff and the social worker were also concerned about possible mental illness of
both parents, as well as Jason's minimization of the consequences to J.R. of Ashley's drug
use.
This evidence was sufficient to support the court's finding that J.R. had already
suffered physical harm as result of Ashley's drug use while pregnant and that J.R. was at
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risk of additional harm based on both parents' drug use and Jason's denial of the negative
consequences of such activity. (See In re Christopher R. (2014) 225 Cal. App. 4th 1210,
1218-1220 [evidence of mother's use of cocaine and marijuana while pregnant and
father's use of marijuana sufficient to support jurisdiction finding] and In re Troy D.
(1989) 215 Cal. App. 3d 889, 899 ["prenatal use of dangerous drugs by a mother is
probative of future child neglect"].) Substantial evidence supports the court's
jurisdictional findings.
III
Jason next challenges the sufficiency of the evidence to support the court's
dispositional order. He asserts there was no evidence that removing J.R. from his
custody was necessary to protect J.R. from harm, and claims that there were reasonable
alternatives to removal.
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); In re Kristin H. (1996) 46 Cal. App. 4th
1635, 1654.) The jurisdictional findings are prima facie evidence the child cannot safely
remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the
child need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at
p. 1136; In re Jamie M. (1982) 134 Cal. App. 3d 530, 536.) In determining whether
removal is warranted, the court may consider the parent's past conduct as well as present
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circumstances. (In re S.O. (2002) 103 Cal. App. 4th 453, 461.) We review the court's
dispositional findings for substantial evidence. (In re Kristin H., at p. 1654.)
The court removed J.R. from parental custody because Jason's and Ashley's drug
abuse impacted their ability to properly parent. Jason was unable to provide J.R. with a
home "free from the negative effects of substance abuse." (§ 300.2.) The evidence
discussed above supported a finding that J.R. was at substantial risk of harm if returned
home.
Jason asserts that the juvenile court should have placed J.R. with him and ordered
the Agency to provide family maintenance services and/or placed conditions on Jason's
custody, such as a requirement that he not leave the child alone with Ashley. Jason
contends he was cooperative and willing to participate in services. This contention is not
supported by the record. Jason failed to keep in contact with the Agency's social worker
and his own counsel, and demonstrated an overall disinterest in the proceeding. Jason's
substance abuse and mental health status needed to be addressed before J.R. could safely
be returned to his care. Sufficient evidence supported the juvenile court's removal
finding.
IV
Finally, Jason contends the court abused its discretion by ordering substance abuse
treatment as part of his reunification plan. The social services agency is required to
exercise a good faith effort to assess and address the parents' problems through
appropriate reunification services. (Earl L. v. Superior Court (2011) 199 Cal. App. 4th
1490, 1501.) The case plan for the parents " 'must be specifically tailored to fit the
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circumstances of each family [citation], and must be designed to eliminate those
conditions which led to the juvenile court's jurisdictional finding.' " (Ibid.)
Section 362, subdivision (d) provides the "juvenile court may direct any
reasonable orders to the parents or guardians of the child who is the subject of any
proceedings under this chapter as the court deems necessary and
proper . . . including . . . a direction to participate in a counseling or education
program . . . ." " '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.' " (In re Neil D. (2007) 155 Cal. App. 4th 219,
225.)
Jason gave conflicting reports about his own drug use, including when he had last
used marijuana. He admitted to having used the drug since grade school and to knowing
that Ashley used marijuana while pregnant. He also appeared to the hospital staff to be
under the influence marijuana at the time Ashley was admitted and failed to show up for
a drug test shortly after J.R.'s birth. In light of this evidence, Jason has not shown that the
court abused its discretion by ordering him to participate in substance abuse treatment.
DISPOSITION
The orders are affirmed.
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IRION, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.
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