In re Johnny P. CA2/7 ( 2021 )

Filed 4/19/21 In re Johnny P. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re JOHNNY P., Jr. et al., B306565
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No.
18LJJP00459C-E)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOHNNY P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Steven E. Ipson, Juvenile Court Referee.
Affirmed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
Johnny P., the father of now-12-year-old Johnny P., Jr.,
seven-year-old Samantha P., and five-year-old daughter A.P.,
appeals the juvenile court’s jurisdiction findings and disposition
order declaring the children dependents of the court and
removing them from Johnny’s custody after the court sustained a
petition pursuant to Welfare and Institutions Code section 300,
subdivisions (a) and (b)(1).1 Johnny contends the court’s
jurisdiction findings as to him and its disposition order were not
supported by substantial evidence and the court abused its
discretion by ordering him to complete a six-month substance
abuse treatment program. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Children’s Detention
In October 2019 the Los Angeles County Department of
Children and Family Services (Department) received a report
that Samantha and A.P. had not been to school for two weeks.
The caller also reported a concern that the children’s mother,
Darline R., was “incredibly violent” and “addicted to drugs.”
When a Department social worker visited the family home a
week later, Samantha answered the door; but Darline refused to
1 Statutory references are to this code.
2
come downstairs and yelled at the social worker to leave. Darline
eventually allowed the social worker to enter and reluctantly
answered questions. The social worker observed an empty bottle
of vodka on the counter and trash and debris on the floor. The
kitchen had no stove or refrigerator. Darline explained the
family had just moved in and the appliances were to be provided
soon. Darline refused to identify four adults who were observed
in the attached garage. Darline denied any drug or alcohol use.
Darline told the social worker Johnny was currently incarcerated
and they were not in contact.
The social worker met privately with Samantha, although
the social worker noted Darline was yelling at Samantha from
downstairs throughout the interview and eventually declared the
interview was over. The social worker observed Samantha’s hair
was uncombed and her face was dirty. Samantha confirmed she
had not attended school since moving out of the home of her
maternal grandmother, Maria S., a few weeks earlier. According
to Samantha, three adults lived in the home in addition to
Darline, including Darline’s boyfriend. Samantha reported
typically not being offered food until her stomach hurt and she
asked Darline for something to eat. She also said she was
frequently left alone in the home when Darline went out or went
into the garage with her friends to smoke cigarettes. Samantha
told the social worker Darline “does bad stuff,” including hitting
the children with a shoe.
Samantha recounted she had been present when Darline
and her friends were smoking and drinking in the house;
Samantha said the adults acted “funny,” which she explained
included laughing loudly and yelling. In a later interview
Samantha elaborated on her mother’s smoking, describing her
3
mother putting something into a glass pipe with a ball at the end,
putting a lighter under it and making it fill with smoke and
inhaling it. Samantha said her mother and her friends do this in
the house in front of her.
The social worker also interviewed Maria, who stated
Darline, Samantha and A.P. had been living with her until
recently. Maria was extremely concerned about the family
moving out because Darline was violent and did not properly care
for the children. According to Maria, when she had last seen the
girls, they were dirty, hungry and afraid of being left alone or hit.
Johnny, Jr. was living with his paternal grandmother,
Adelina A., who had recently moved to Arizona. In a subsequent
interview Maria told the social worker Johnny is an alcoholic and
she does not think he could stay sober.
At the request of the Department, social workers from the
Arizona Department of Child Safety interviewed Johnny, Jr. at
Adelina’s home in Arizona. They reported Johnny, Jr. appeared
clean, healthy and knowledgeable. Johnny, Jr. said he had been
living with his dad and Adelina since he was approximately
three years old. His father had been incarcerated for the past
three months, and he had last spoken to him about a month
earlier. Johnny, Jr. stated he was afraid of Darline because she
spanked him and hit him with a sandal all over his body. He said
she did the same thing to A.P.
At the time of the referral A.P. was in Arizona visiting
Johnny, Jr. and Adelina; she was also interviewed by the Arizona
Department of Child Safety. A.P. confirmed that Darline hit her
with a sandal on her hand and arm, leaving bruises and marks.
She said there is never much food in her mother’s house, and she
has been left home alone on more than one occasion. A.P. also
4
stated adults whom she did not know came to the house at night.
She reported Darline smoked cigarettes and Johnny drank beer.
She also said Darline and Johnny hit each other and once Johnny
had to go to the hospital because he was bleeding. In a later
interview with the Department, A.P. corroborated Samantha’s
account that Darline’s friends live in the home with them.
On December 27, 2019 the juvenile court authorized the
Department to detain the children from Darline. Samantha and
A.P. were placed in foster care. Johnny, Jr. remained with
Adelina.
On December 31, 2019 the Department filed a petition
pursuant to section 300, subdivisions (a), (b) and (j), alleging
Darline had physically abused the children and had a history of,
and current problem with, substance abuse that interfered with
her regular care and supervision of the children. The petition
also alleged Darline had failed to reunify with two older children,
Catherine R. and Alyssa E.,2 and had a prior dependency case
involving Johnny, Jr. and Samantha. The petition further
alleged Darline and Johnny had failed to make an appropriate
plan for Johnny, Jr. upon Johnny’s incarceration because they
had failed to authorize Adelina to obtain medical care for
Johnny, Jr.
The detention report contained information regarding the
family’s prior dependency proceedings. In 2011 the Department
2 Catherine, now 17 years old, and Alyssa, now 16 years old,
were declared dependents of the juvenile court in 2004 based on
Darline’s substance abuse. Darline failed to reunify with them,
and they received permanent placement services. Johnny is not
the father of Catherine or Alyssa, and neither child was a subject
of this proceeding.
5
received a report Johnny had repeatedly driven while under the
influence of alcohol with Johnny, Jr. in the car. The family
received voluntary maintenance services. Later in 2011
Johnny, Jr. was declared a dependent of the juvenile court based
on Darline’s substance abuse and domestic violence between
Johnny and Darline. There was another referral in 2011 related
to Johnny’s niece, who was in Adelina’s custody. The referral
stated Johnny would visit Adelina’s house while intoxicated, yell
and scream at people and steal things to sell for drugs.
In 2013 Johnny, Jr. and Samantha were declared
dependents of the juvenile court based on Darline’s substance
abuse and Johnny’s alcohol and methamphetamine abuse. The
petition specifically alleged Johnny, Jr. had been in his father’s
care while Johnny was under the influence of alcohol. The court
returned the children to their parents’ custody and terminated
dependency jurisdiction in 2015.
In 2016 police were called to the home for a domestic
violence incident. Darline told police Johnny had come home
drunk. He became angry, threw food at Darline and punched her
in the shoulder. Darline told the police officers Johnny was
frequently physically abusive to her, but she declined an
emergency protective order.
The detention report also included Darline’s and Johnny’s
criminal histories. Darline’s history included arrests for
possession of controlled substance for sale, receiving stolen
property and assault with a deadly weapon. Johnny’s history
included arrests for transportation or sale of narcotics or
controlled substances, theft, robbery and multiple convictions for
being under the influence of a controlled substance and
disorderly conduct intoxication. In August 2016 Johnny had been
6
arrested for driving under the influence of alcohol. Johnny’s 2019
incarceration was based on an outstanding warrant for an arrest
in October 2018 for bringing a controlled substance into a prison,
jail or other institution.3
The detention hearing was held on January 2, 2020.
Johnny was not present because he was still incarcerated. The
children were detained from Darline; she was ordered to submit
for drug testing; and her visits were ordered to be monitored.
In a last minute information filed January 15, 2020 the
Department reported Johnny had been released from custody on
January 6, 2020 and transferred to an inpatient substance abuse
program. Johnny subsequently appeared at a hearing on
January 17, 2020, at which he denied the allegations in the
petition, was ordered to submit to drug testing and was granted
monitored visitation.
The Department filed a first amended petition on
January 30, 2020, adding allegations pursuant to section 300,
subdivisions (b) and (j), that Johnny’s extensive history of
methamphetamine and alcohol abuse and his recent alcohol
abuse rendered him incapable of providing regular care and
supervision to the children.
2. The Jurisdiction/Disposition Report
The Department filed a jurisdiction/disposition report on
February 14, 2020. The report included additional information
regarding allegations of domestic violence by Johnny. According
to police incident reports, in October 2009 and January 2011,
3 The record does not contain any additional information
regarding the circumstances of Johnny’s arrest or incarceration.
7
Johnny had forcefully pushed, punched and spat at Darline after
he had been drinking.
Johnny had been tested for drugs and alcohol twice in
January 2020 while in inpatient treatment and had tested
negative both times. Due to his treatment program, Johnny had
only telephone visitation with the children in January 2020.
Darline failed to appear for three drug tests in January and
February 2020. She had a monitored visit with Samantha and
A.P. in early February 2020 and had been aggressive with the
caregiver’s daughter, who had transported the children to the
visit.
In an interview with the Department social worker, Johnny
said he and Darline had been in an “on again off again”
relationship for approximately 14 years. When asked if they
were currently in a relationship, Johnny replied they were
“working on things now.” Johnny denied any incidents of
domestic violence in the relationship. Regarding his prior
substance abuse, Johnny denied any abuse of narcotics but
admitted he had a history of alcohol abuse and had prior arrests
for behavior relating to alcohol abuse, including a conviction for
driving under the influence of alcohol. Johnny explained his
drinking became a problem around 2015, but he maintained he
had been sober for one year and was currently enrolled in a
residential treatment program. According to Johnny, after
completion of the substance abuse program, his recent conviction
would be “removed” from his record.
In a letter dated January 14, 2020 Johnny’s counselor at
his treatment program stated that, in the week Johnny had been
in the program, he was participating in group activities and
8
appeared “motivated to meet his treatment plan goals and
objectives.”
Darline continued to deny any current substance abuse or
physical abuse of the children. She said Samantha’s statement
was false and likely coached by Maria. According to Darline she
and Johnny broke up in 2013 due, in part, to their
methamphetamine use. Darline admitted domestic violence had
been an issue in their relationship. Despite denying any current
substance abuse, Darline reported she had recently enrolled in a
substance abuse program.
The Department social worker conducted follow-up
interviews with each child during which their statements were
partially consistent with their prior accounts. All three children
repeated their accounts of Darline’s physical abuse. Johnny, Jr.
said he did not have contact with his mother and did not want to
live with her because she “would bring strange people around and
smoke drugs.” As for his father, Johnny, Jr. said, “My dad is in
sober living trying to get clean. Dad used to drink beer and
smoke cigarettes.” Samantha, who had previously described her
mother smoking from a pipe and acting strangely, told the social
worker she did not know whether her parents used drugs and
had not seen her mother acting strangely. A.P. reported her
parents “drink and then they get sick sometimes.”
The Department concluded Darline and Johnny had
demonstrated an inability to properly care for their children due
to substance abuse and other issues. The Department noted the
children’s grandmothers had been their primary caregivers for
significant periods of time. The Department recommended
family reunification services be provided to Johnny, but
9
recommended Darline receive no reunification services based on
her failure to reunify with her older children.
3. The Jurisdiction Hearing
At the jurisdiction hearing on February 26, 2020, after the
court admitted into evidence the Department’s reports and
documents submitted by Darline and Johnny concerning their
substance abuse treatment, Johnny’s counsel requested the
dependency investigator be called to testify. The investigator
explained some of the conclusions contained in the Department’s
reports. Specifically, concerning Samantha’s and A.P.’s ability to
understand the difference between the truth and a lie, the
investigator stated she believed Samantha understood the
difference even if she could not explain it in the abstract. A.P.,
the investigator explained, “had more of a difficulty
understanding” the difference between the truth and a lie.
At the conclusion of the investigator’s testimony Darline’s
and Johnny’s attorneys asked the juvenile court to dismiss the
petition in its entirety. The children’s counsel requested the
court sustain the allegations under section 300, subdivisions (a),
and (b)(1), but acknowledged the subdivision (j) counts were
duplicative.
The court sustained the subdivision (a) and
subdivision (b)(1) counts regarding Darline’s physical abuse and
substance abuse as well as the subdivision (b)(1) count regarding
Johnny’s substance abuse. The court dismissed the
subdivision (b)(1) count concerning failure to make an
appropriate plan for Johnny, Jr.’s placement and dismissed the
subdivision (j) counts as duplicative. Regarding Johnny’s
substance abuse the court acknowledged Johnny had two recent
negative tests but noted they were while he was living in the
10
structured setting of an inpatient program. The disposition
hearing was continued to a later date.
4. Disposition Hearing4
In March 2020 Johnny told the Department social worker
he was scheduled to complete his inpatient treatment program at
the end of the month and intended to live in a sober living
facility; he hoped to find a facility that would allow the children
to live with him. Johnny had not had in-person visits with
Samantha and A.P. because it was a two-and-a-half-hour train
ride each way to see them from his program. (Johnny, Jr.
continued to reside in Arizona with Adelina.)
Ultimately, Johnny completed the inpatient program in
early April 2020. As of late June 2020 Johnny reported he was
living with a friend, but he had not provided the address to the
Department for assessment. Johnny had two negative
drug/alcohol tests in early March while still residing in the
treatment program. However, since his completion of the
program in April and the date of the report in June, 2020, Johnny
had failed to show up for any tests, accumulating 14 “no shows.”
Johnny continued to decline in-person visits with the girls
because he was busy with work.
The continued disposition hearing was held on July 8, 2020.
Johnny was not present, and his counsel requested a
continuance, informing the court he could not reach his client
that morning but Johnny did want to participate in the hearing.
4 The continued disposition hearing, originally scheduled for
March 17, 2020, was continued to July 8, 2020 due to COVID-19
restrictions.
11
The court found notice had been proper, and Johnny’s counsel’s
request for a continuance was denied.
Turning to argument on disposition, Johnny’s counsel
sought return of the children to their father and requested
Johnny not be ordered to participate in another substance abuse
program. Darline’s counsel requested the court order
reunification services for her. The children’s attorney agreed
with the Department’s recommendation of removal of the
children from Johnny and termination of services for Darline.
The court declared the children dependents of the court,
declined to order reunification services to Darline based on her
failure to reunify with her older daughters (§ 361.5, subd. (b)(10))
and removed the children from Johnny’s custody. The court
recognized Johnny had completed a 90-day treatment program
but noted he had failed to submit for testing since then and had
not provided any information regarding participation in aftercare
programs. Accordingly, the court found, by clear and convincing
evidence, there would be a substantial danger to the children’s
physical health and safety if returned home and there were no
reasonable means by which they could be protected without
removal. The court ordered Johnny to participate in a six-month
drug/alcohol program with aftercare.
DISCUSSION
1. Governing Law 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.”
12
(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.) In addition, 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.)
Section 300, subdivision (b)(1), 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 illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child . . . .” A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove three
elements: (1) the parent’s or guardian’s neglectful conduct or
failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; see In re R.T. (2017) 3 Cal.5th 622, 624 [“section
300(b)(1) authorizes dependency jurisdiction without a finding
that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), 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
Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re N.M. (2011)
13
197 Cal.App.4th 159, 165.) The court may consider past events in
deciding whether a child currently needs the court’s protection.
(In re J.N. (Apr. 2, 2021 B308879) __ Cal.App.5th __, __
[2021 Cal.App. Lexis 287, *9]; In re Christopher R. (2014)
225 Cal.App.4th 1210, 1215-1216; In re N.M., at p. 165.) 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; accord,
In Kadence P., at p. 1384.)
Before the court may order a child removed from the
physical custody of a parent with whom the child was residing at
the time the dependency proceedings were initiated, it must find
by clear and convincing evidence that the child would be at
substantial risk of physical or emotional harm if returned home
and there are no reasonable means by which the child can be
protected without removal. (§ 361, subd. (c); In re T.V. (2013)
217 Cal.App.4th 126, 135; see In re Anthony Q. (2016)
5 Cal.App.5th 336, 347.) “The parent need not be dangerous and
the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” (In re T.V., at pp. 135-136.)
Upon removal, “The juvenile court may direct any
reasonable orders to the parents . . . as the court deems necessary
and proper,” including requiring participation in counseling,
education and treatment programs. (§ 362, subd. (d); In re
Briana V. (2015) 236 Cal.App.4th 297, 311 [“‘[t]he juvenile court
has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order
accordingly’”]; In re Daniel B. (2014) 231 Cal.App.4th 663, 673
[same].)
14
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “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.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’” (In re
I.J. (2013) 56 Cal.4th 766, 773.) We review the whole record in
the light most favorable to the judgment below to determine
whether it discloses substantial evidence such that a reasonable
trier of fact could find that the order is appropriate. (Ibid.;
accord, In re I.C. (2018) 4 Cal.5th 869, 892.)
In evaluating the propriety of a disposition order removing
a child from a parent or guardian pursuant to section 361, in
view of the requirement the juvenile court make the requisite
findings based on clear and convincing evidence, we “must
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005; see In re V.L. (2020) 54 Cal.App.5th 147, 155 [O.B. is
controlling in dependency cases].) We review the court’s orders
directing a parent to participate in counseling, education and
treatment programs for abuse of discretion. (See In re Briana V.,
supra, 236 Cal.App.4th at p. 311.)
15
2. The Jurisdiction Findings Are Reviewable
Johnny does not challenge the juvenile court’s findings as
to Darline. Those findings provide an independent basis for
affirming dependency jurisdiction over Johnny, Jr., Samantha
and A.P. regardless of any alleged error in the finding as to
Johnny. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492
[jurisdiction finding involving one parent is good against both;
“‘“the minor is a dependent if the actions of either parent bring
[him or her] within one of the statutory definitions of a
dependent”’”]; see In re M.W. (2015) 238 Cal.App.4th 1444, 1452;
In re Briana V., supra, 236 Cal.App.4th at pp. 310-311.) As a
result, even if we were to strike the finding as to Johnny, the
juvenile court would still be authorized to exercise jurisdiction
over the children and to enter all reasonable orders necessary to
protect them, including orders binding on Johnny that address
conduct not sustained in the petition. (In re Briana V., at p. 311;
In re I.A., at p. 1492; see generally § 362, subd. (a) [the juvenile
court “may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
child”].)
Although acknowledging this general principle of
justiciability, Johnny asks us to exercise our discretion to reach
the merits of his challenge to the jurisdiction finding as to him
because that finding serves as the basis for the dispositional
order also challenged on appeal and could reasonably have far-
reaching consequences in these and future dependency
proceedings. (See In re D.P. (2015) 237 Cal.App.4th 911, 917;
In re J.C. (2014) 233 Cal.App.4th 1, 4; In re Quentin H. (2014)
230 Cal.App.4th 608, 613.) The Department in its respondent’s
brief does not contend we should decline to review the merits of
16
the jurisdiction finding, and we agree it is appropriate to do so in
this case.
3. Substantial Evidence Supports the Jurisdiction Finding
as to Johnny Under Section 300, Subdivision (b)(1)
Johnny does not deny his significant history of alcohol
abuse but contends the evidence did not establish that he was
currently abusing alcohol or that any of the children was at risk
of harm at the time of the jurisdiction hearing.
In arguing a lack of evidence of current substance abuse,
Johnny relies on his enrollment in a residential treatment
program and his negative substance tests during that program,
as well as his statements to the Department’s social worker that
he had been sober for one year. Johnny’s argument disregards
substantial circumstantial evidence he had not resolved his
severe alcohol abuse problem. The record contains evidence of
multiple arrests and convictions related to alcohol and drug use
dating back to 1987. In 2011 the Department received a report
Johnny had repeatedly driven under the influence of alcohol with
Johnny, Jr. in the car. Another referral in 2011 related to
Johnny’s niece included allegations Johnny drank to excess and
became aggressive. In 2013 the juvenile court sustained an
allegation Johnny abused alcohol and methamphetamine. While
dependency jurisdiction was terminated in 2015, indicating some
progress on Johnny’s part in dealing with his substance abuse,
police were called to the home in 2016 because Johnny was drunk
and threatening Darline. Johnny was also arrested in 2016 for
driving under the influence of alcohol and again in 2018 for
bringing a controlled substance into a prison or other institution.
Furthermore, the criminal court’s decision to allow Johnny to
attend an inpatient treatment program, as well as the treatment
17
program’s decision to accept Johnny, reasonably support the
inference he had not completely overcome his more than 30-year
substance abuse issues on his own.
This reasonable inference that Johnny had not resolved his
issue with alcohol abuse, even if he was working on the problem,
was further supported by the statements of Johnny’s family
members to the Department social worker. Maria said she
believed Johnny was an alcoholic and could not maintain
sobriety. A.P., only four-years-old at the time of her interviews,
knew that her father drank beer and said her parents got sick
sometimes after drinking. Johnny, Jr. said his father “used to”
drink beer but was still “trying to get clean.” This evidence
amply supported the finding that Johnny suffered from
significant alcohol abuse issues and, at best, was in only the
initial stages of treatment. (See In re K.B. (2021) 59 Cal.App.5th
593, 601-602 [statement by pastor that mother previously used
drugs, seven-year-old arrest for possession of a controlled
substance and statements from children regarding mother’s
behavior supported inference mother currently abuses drugs];
In re Rebecca C. (2014) 228 Cal.App.4th 720, 726 [evidence of
mother’s drug use supported by “involvement in the criminal
court system and dependency court system as the result of the
drug use”].)
Johnny next argues there was insufficient evidence to
establish his use of alcohol interfered with his ability to properly
care for his children. Specifically, he argues it was Darline’s
behavior that instigated Department involvement with the family
in 2019 and there were no allegations the children were at risk
because of his behavior. Johnny’s argument ignores that, with
respect to a child of “tender years,” “‘the finding of substance
18
abuse is prima facie evidence of the inability of a parent or
guardian to provide regular care resulting in a substantial risk of
harm.’” (In re Christopher R., supra, 225 Cal.App.4th at p. 1219;
accord, In re Kadence P., supra, 241 Cal.App.4th at p. 1385.)
Because Samantha and A.P. were six years old or younger at the
time of the jurisdiction hearing, the finding of substance abuse
effectively created a presumption that Johnny was unable to
provide appropriate care for them, a presumption reinforced by
evidence Johnny had in the past repeatedly driven while under
the influence of alcohol with a child in the car and acted
aggressively and violently when intoxicated. In addition, in the
prior dependency proceeding the juvenile court found Johnny’s
alcohol abuse created a substantial risk of harm to the children
and Johnny had failed to deny he had been under the influence of
alcohol when caring for his children in the past. This evidence
was a sufficient link between Johnny’s alcohol abuse and the risk
of harm to the children to support the jurisdiction finding. (See
In re L.W., supra, 32 Cal.App.5th at p. 850 [mother’s two arrests
for driving under the influence and conviction for reckless driving
provide nexus between substance abuse and substantial risk of
harm to child].)
4. Substantial Evidence Supports the Removal Orders
Johnny’s sole argument for reversal of the juvenile court’s
disposition order is that it was based on jurisdiction findings that
are not supported by substantial evidence. The evidence
supporting the juvenile court’s finding of substantial risk of harm
supplies ample evidence for the court’s order removing the
children from Johnny’s custody. Moreover, by the time of the
disposition hearing, any doubt that may have existed as to
Johnny’s inability to maintain the sobriety he had achieved while
19
in a residential treatment program was resolved by his apparent
failure to participate in aftercare or outpatient treatment (as
discussed, he provided the Department and the court no evidence
of any such participation) and his 14 “no shows” to alcohol/drug
tests, which are “‘properly considered the equivalent of a positive
test result.’” (In re Kadence P., supra, 241 Cal.App.4th at
p. 1384.)
Finally, Johnny contends the juvenile court abused its
discretion in ordering him to complete a six-month substance
abuse program. Although Johnny maintained he had been sober
for one year prior to the jurisdiction hearing and completed a
90-day treatment program three months prior to the disposition
hearing, his evident failure to participate in aftercare and his
multiple missed tests established that Johnny needed additional
support to maintain his sobriety.
Johnny had also continually denied the severity of his
substance abuse, saying it became a problem around 2015,
although he had multiple arrests and convictions for conduct
related to his substance abuse dating back more than 25 years.
Johnny’s denial of the severity of his alcohol use renders
questionable the prospect of sustained recovery in the absence of
further treatment. (See In re Esmeralda B. (1992)
11 Cal.App.4th 1036, 1044 [“denial is a factor often relevant to
determining whether persons are likely to modify their behavior
in the future without court supervision”]; see also In re Gabriel K.
(2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot correct a problem
one fails to acknowledge”].)
On this record the court’s requirement that Johnny
complete additional substance abuse treatment, far from being
20
arbitrary and capricious, was reasonably related to the care and
protection of the children.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
21