In re Ivan F. CA2/1 ( 2021 )

Filed 4/26/21 In re Ivan F. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re IVAN F., et al., B308207
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20CCJP02462)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ADRIAN F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
Linda B. Puertas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
Adrian F. (Father) appeals from the juvenile court’s
assertion of jurisdiction over his two sons, Ivan F. and Miguel F.
(collectively, the children), under Welfare and Institutions Code1
section 300, subdivision (b)(2), as well as the subsequent
dispositional order removing both children from Father and
ordering Father to complete reunification services. The juvenile
court found that Father’s history of alcohol and substance abuse
problems created a substantial risk of serious physical or
emotional harm to the children, and that Father needed to
complete a series of drug treatment programs to reunify with the
children. Father denies any present or prior history of alcohol or
substance abuse, and contends the evidence is insufficient to
support these findings. Father also argues that the removal
order should be vacated, claiming that the juvenile court removed
the children pursuant to a statute that does not apply to Father
as a noncustodial parent. Finally, Father challenges the order
compelling him to attend a drug treatment program.
We affirm the juvenile court’s orders. The record provides
ample support for the juvenile court’s finding that Father had a
history of untreated alcohol and substance abuse problems dating
1Subsequent undesignated statutory citations are to the
Welfare and Institutions Code.
2
back to 2014. Accordingly, we find that both the jurisdictional
finding and the order for drug treatment services were proper.
We also affirm the removal order as to Father, a noncustodial
parent who did not seek custody of the children, which the
juvenile court properly issued pursuant to section 361,
subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
Father had two sons with Karla S. (Mother). Ivan was born
in 2002,2 and Miguel in 2009. Father and Mother’s relationship
ended in or around 2013.
Mother subsequently met and married Aaron C.
(Stepfather), who lived with Mother and the children.3 By 2020,
Father had not had contact with the children for at least one
year.
B. Initial Petition for Jurisdiction as to Mother and
Stepfather
On March 23, 2020, the Department of Child and Family
Services (Department) received a report of ongoing domestic
violence between Mother and Stepfather. During a particularly
volatile incident, Mother claimed that Stepfather attempted to
strangle her with a cord in front of 10-year-old Miguel. Ivan
2 Ivan turned 18 in December of 2020. However, since the
juvenile court properly took jurisdiction over Ivan before he
reached the age of 18, it may retain jurisdiction until he is 21
years old. (§ 303, subd. (a).)
3 Mother and Stepfather had one child, Felix C.
Stepfather’s son N.C. also lives with the family. These children
are not party to this appeal.
3
stated that this kind of physical violence had been going on “since
[he] c[ould] remember,” and that he regularly intervened in fights
between Mother and Stepfather. Although Mother obtained a
restraining order against Stepfather, he continued to live in the
home.
On May 1, 2020, the Department filed a section 300
petition alleging jurisdiction over Ivan, Miguel, and their half-
brother Felix on two counts.4 Count a-1 alleged that Mother and
Stepfather’s pattern of serious domestic violence created a
substantial risk that one or both of them would non-accidentally
injure one of the children. Count b-1 alleged that the domestic
violence also threatened to harm the children by affecting Mother
and Stepfather’s ability to adequately supervise and protect
them. The juvenile court sustained the petition on both counts.
Father did not attend the jurisdictional hearing, but his
appointed counsel attended and asked that he be referred for
services.
C. The First Amended Petition for Jurisdiction as to
Father
Father spoke with a social worker for the first time one day
before the initial jurisdiction hearing. Father denied any
criminal history or history of alcohol abuse, but freely admitted
that “he ha[d] been smoking crystal meth[amphetamine] for
approximately three years on a weekly basis.” He stated that his
last use had been one week before the interview. He told the
social worker that “he could not currently care for the children,”
but that he was willing to submit to drug testing and a treatment
program “in order to reunify” with the children.
4 Stepbrother N.C. was not named in these proceedings.
4
The Department later discovered that Father had been
convicted of driving under the influence of alcohol (DUI) in 2014,
and subsequently was convicted of driving with a license that had
been suspended due to a DUI conviction. In addition, he had a
current warrant for his arrest relating to a DUI offense from
2018. Father had not completed an alcohol or drug treatment
program following the DUI conviction. Although Father tested
negative for all narcotics in a drug test on August 20, 2020, he
failed to present himself for testing on August 26, 2020.
On August 13, 2020, the Department filed an amended
section 300 petition. In addition to the prior two counts
concerning the domestic violence between Mother and Stepfather,
the amended petition alleged jurisdiction over Ivan and Miguel
pursuant to section 300, subdivision (b)(1), based on Father’s
substance abuse. Count b-2 alleged that Father “has a history of
substance abuse including methamphetamine and alcohol,” and
that he “is a current user of amphetamine and
methamphetamine, which renders . . . [F]ather incapable of
providing regular care of the children,” and put the children at
risk of serious physical harm.
On August 19, 2020, the Department again interviewed
Father. He recanted his prior statements regarding
methamphetamine use, and denied any substance abuse
problems. Additionally, he now resisted the suggestion that he
participate in a drug treatment program. Father repeatedly
insisted that the children be returned to Mother’s care, opining
that the domestic violence issues between Mother and Stepfather
did not impact the children.
5
D. Jurisdictional and Dispositional Hearing
On September 22, 2020, the juvenile court held a combined
jurisdictional and dispositional hearing to consider the
allegations in the first amended petition. During the hearing,
Father’s counsel denied he had any substance abuse issues, and
argued that even if the juvenile court found that he had used
substances, his use did not rise to the level of substance abuse
warranting dependency jurisdiction under section 300. Father’s
counsel also argued that since he was a noncustodial parent, the
Department could not demonstrate any nexus of harm to the
children.
The juvenile court declined to find that Father’s current
drug use created a present risk of harm to the children because
he “doesn’t live with these children,” and his contact with the
children “has not been that consistent.” The court amended
count b-2 and found that Father’s history of alcohol and
substance abuse put the children at risk of serious physical harm.
Father asked the juvenile court to issue a dispositional
order requiring that he participate in random drug testing, with
treatment programs to follow only if he tested positive or missed
a test. Father’s counsel admitted that Father had missed one
drug test, but maintained that “[h]e is trying to comply with the
testing requirement.” The juvenile court denied Father’s request,
emphasizing his failure to complete any treatment programs for
the prior DUI conviction, as well as the need to “mak[e] sure that
[Father]’s sober.”
The juvenile court sustained all allegations in the first
amended petition, and asserted jurisdiction over Ivan and Miguel
under Section 300, subdivisions (a)(1) and (b)(1). The juvenile
court found by clear and convincing evidence that removal of the
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children from both Mother and Father was necessary. The
children were placed with their maternal grandmother. Lastly,
the juvenile court ordered Father to participate in drug
counseling, random drug testing, Alcoholics Anonymous and
Narcotics Anonymous meetings, and individual counseling.
Father timely appealed.
DISCUSSION
A. Appellate Jurisdiction
Father alone appeals the jurisdictional and dispositional
orders issued in this case. The failure of both parents to appeal a
finding of jurisdiction requires that we ensure appellate review is
appropriate.
Dependency jurisdiction under section 300 is over the child,
not the parents, as a result of the harm or risk of harm the child
faces. (See, e.g., Kern County Dept. of Human Services v.
Superior Court (2010) 187 Cal.App.4th 302, 310.) Because the
juvenile court assumes jurisdiction over the child, not over the
parents, jurisdiction may exist based on the conduct of one parent
alone. (See § 302, subd. (a); In re John S. (2001) 88 Cal.App.4th
1140, 1143.) “For this reason, an appellate court may decline to
address the evidentiary support for any remaining jurisdictional
findings once a single finding has been found to be supported by
the evidence.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
However, we may exercise our discretion and reach the
merits of a single parent’s challenge to any jurisdictional finding
when the finding (1) serves as the basis for dispositional orders
that are also challenged on appeal (see, e.g., In re Alexis E. (2009)
171 Cal.App.4th 438, 454), (2) could be prejudicial to the
appellant or could potentially impact the current or future
dependency proceedings (see, e.g., In re D.C. (2011) 195
7
Cal.App.4th 1010, 1015; see also In re I.A., supra, 201
Cal.App.4th at p. 1494), or (3) “could have other consequences for
[the appellant], beyond jurisdiction.” (In re I.A., supra, at
p. 1493.)
We exercise our discretion to reach the merits of Father’s
appeal for two reasons. First, the Department does not challenge
Father’s appeal of dependency jurisdiction over the children by
citing Mother’s failure to join, but, instead, defends jurisdiction
on the merits. Second, the outcome of this appeal is the
difference between Father being an “offending” parent versus a
“non-offending” parent. Such a distinction may have far reaching
implications with respect to future dependency proceedings in
this case and Father’s parental rights. We have exercised our
discretion to reach the merits of a single-parent appeal for this
reason before, and we do so here. (See, e.g., In re Quentin H.
(2014) 230 Cal.App.4th 608, 613.)
B. Substantial Evidence Supports Dependency
Jurisdiction over the Children
1. Applicable Law and Standard of Review
“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 illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect
the child . . . or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or
guardian’s . . . substance abuse.’ ” (In re Christopher R. (2014)
225 Cal.App.4th 1210, 1215; see § 300, subd. (b)(1).)
“[T]here are three elements for jurisdiction under section
300, subdivision (b), namely, (1) neglectful conduct or substance
8
abuse by a parent in one of the specified forms, (2) causation, and
(3) serious physical harm to the child, or a substantial risk of
such harm.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-
725.)
In deciding whether there is a substantial risk of serious
physical harm, courts evaluate the risk that is present at the
time of the jurisdiction hearing. (In re Christopher R., supra, 225
Cal.App.4th at pp. 1215-1216.) “While evidence of past conduct
may be probative of current conditions, the question under
section 300 is whether circumstances at the time of the hearing
subject the minor to the defined risk of harm.” (In re Rocco M.
(1991) 1 Cal.App.4th 814, 824.) Thus, “[a] parent’s ‘ “[p]ast
conduct may be probative of current conditions” if there is reason
to believe that the conduct will continue.’ [Citation].” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1216.)
We review the trial court’s jurisdictional findings for
substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010,
1022.) Under this standard, “ ‘we must uphold the . . .
[jurisdictional] 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 [them].’ ”
(Ibid.)
2. Discussion
Father raises two challenges to the juvenile court’s order
taking jurisdiction over the children. First, he argues the order is
facially invalid because the juvenile court did not make the
findings required to exercise dependency jurisdiction under
section 300, subdivision (b), namely that Father’s substance
abuse created a substantial risk of physical harm to the children.
9
Second, he argues that the juvenile court’s finding that he had a
substance abuse problem is not supported by substantial
evidence.
Father’s facial challenge is not supported by the record.
The juvenile court sustained the first amended petition, which
explicitly incorporates the required language, stating that “there
is a substantial risk that the child[ren] will suffer serious
physical harm” as a result of the “inability of the parent . . . to
provide regular care for the child[ren] due to the parent’s . . .
substance abuse.” (Italics added.) (Cf. In re Israel T. (2018) 30
Cal.App.5th 47, 50 [vacating a jurisdictional order in which the
juvenile court amended the § 300 petition to strike the word
“ ‘substantial’ ” (preceding “ ‘risk’ ”) and “ ‘serious’ ” (preceding
“ ‘physical harm’ ”)].)
Father’s substantive arguments also lack merit. It is true
that dependency jurisdiction “must be based on substance abuse;
mere substance use is not sufficient for jurisdiction. [Citation.]
However, the law is not in agreement on when substance use
reaches the point of substance abuse.” (In re J.A. (2020) 47
Cal.App.5th 1036, 1046, citing In re Drake M. (2012) 211
Cal.App.4th 754, 764.) Despite this lack of agreement, as we
explain, the facts support the juvenile court’s assertion of
jurisdiction over the children based on Father’s admitted
methamphetamine use, prior DUI conviction, and pending DUI
charge.
Father freely admitted to a social worker that he had
smoked methamphetamine every week for three years, and had
done so as recently as one week prior to the initial interview.
This longstanding and regular drug use alone provides
substantial evidence to support the trial court’s finding of
10
substance abuse. (See In re Christopher R., supra, 225
Cal.App.4th at p. 1218 [finding the mother’s repeated use of
cocaine, including while she was pregnant, was indicative of
substance abuse]; cf. In re L.C. (2019) 38 Cal.App.5th 646, 652
[evidence that the parent used methamphetamine seven times
during a period of 10 months is insufficient to support allegations
of substance abuse].) This conclusion is further supported by
Father’s failure to report for a drug test on August 26, 2020.
(Christopher R., supra, at p. 1217 [a missed drug test is “properly
considered the equivalent of a positive test”].)
Even if the juvenile court had credited Father’s recantation
of current methamphetamine use and excused his missed drug
test, it still found that, at a minimum, Father’s history of
untreated alcohol and substance abuse presented a substantial
risk to the physical and emotional health of the children. In
addition to his admission of prior methamphetamine use, Father
was convicted of DUI in the previous five years. The court noted
that Father did not appear to have ever completed a substance
abuse program related to this conviction. Father also had a
current warrant for his arrest for a DUI incident that occurred
two years before the jurisdictional hearing. His longstanding use
of illegal drugs and history of alcohol related driving offenses is
indicative of a substance abuse problem. (See In re Drake M.,
supra, 211 Cal.App.4th at p. 766 [providing non-exclusive criteria
to distinguish substance “abuse” from substance “use,” including
“recurrent substance-related legal problems.”].)
Despite a finding of parental substance abuse, “it does not
always follow that such a finding means that the parent or
guardian at issue is unable to provide regular care resulting in a
substantial risk of physical harm to the child.” (In re Drake M.,
11
supra, 211 Cal.App.4th at p. 766.) A juvenile court also must find
that the parent’s substance abuse would cause a substantial risk
of physical harm to the children. (In re Rebecca C., supra, 228
Cal.App.4th at pp. 724-725.)
Additional evidence supports the juvenile court’s finding
that Father’s substance abuse gave rise to a substantial risk of
harm to the children. Father initially claimed to appreciate the
risks posed by his substance abuse, readily agreeing to
participate in treatment programs to reunite with his children.
However, he never followed through on this commitment.
Instead, he quickly became resistant to the idea of any treatment,
denying any past or present substance abuse issues and arguing
that he should not be required to attend any kind of sobriety
support program. The juvenile court could reasonably conclude
that Father’s failure to acknowledge the need for treatment
created a substantial risk of physical harm to the children. (In re
Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One cannot correct a
problem one fails to acknowledge”]; see also In re R.R. (2010) 187
Cal.App.4th 1264, 1284 [finding a substantial risk of physical
harm by exposing the child to the parent’s substance abuse,
“ ‘thus impliedly approving such conduct and even encouraging
[the child] to believe that it is an appropriate or necessary means
of coping with life’s difficulties’ ”].)
We therefore affirm the juvenile court’s finding of
jurisdiction under section 300, subdivision (b)(1), as to Father in
count b-2.
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C. The Juvenile Court Properly Removed the Children
from Father
1. Applicable Law and Standard of Review
After reaching its decision to remove the children from
Mother, the custodial parent, the juvenile court next turned to
consider whether the children should be removed from Father,
the noncustodial parent. (See § 361, subds. (c) and (d).) To
remove a child from a noncustodial parent who is not seeking
custody, the juvenile court must find by clear and convincing
evidence “that there would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the child for the parent . . . to live with the child or
otherwise exercise the parent’s . . . right to physical custody, and
there are no reasonable means by which the child’s physical and
emotional health can be protected without removing the child.”
(§ 361, subd. (d).)
The clear and convincing evidence standard “ ‘requires a
finding of high probability. The evidence must be so clear as to
leave no substantial doubt.’ ” (In re V.L. (2020) 54 Cal.App.5th
147, 154.) “ ‘[W]hen reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true. Consistent
with well-established principles governing review for sufficiency
of the evidence, in making this assessment the appellate court
must view the record in the light most favorable to the prevailing
party below and give due deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
13
evidence.’ ” (Id. at p. 155 [applying the standard of review
articulated in conservatorship matters to a dependency
proceeding], quoting Conservatorship of O.B. (2020) 9 Cal.5th
989, 995-996.)
2. Discussion
Father argues the juvenile court incorrectly removed the
children from him pursuant to section 361. He contends that,
because he is a noncustodial parent, the court should have
applied section 361.2, which encourages placement with the
noncustodial parent unless it would be detrimental to the safety,
protection, or physical or emotional health of the child.
We disagree. Section 361.2 applies to noncustodial parents
who request custody of their children. (§ 361.2, subd. (a) [after
removal from a custodial parent, “the court shall first determine
whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that
brought the child within the provisions of Section 300, who
desires to assume custody of the child. If that parent requests
custody, the court shall place the child with the parent unless it
finds that placement with that parent would be detrimental to
the safety, protection, or physical or emotional well-being of the
child”], italics added.) Here, Father did not request custody of
the children at any time. During his first interview with social
workers, he briefly demonstrated a willingness to “reunify” with
the children. However, reuniting with a child is distinct from
seeking legal or physical custody. (In re Liam L. (2015) 240
Cal.App.4th 1068, 1083 [distinguishing between a noncustodial
father’s efforts to reunite with his children and an actual request
for custody].) Moreover, at that same interview, Father admitted
that he was presently unable to “care for the children.”
14
During his last interview before the jurisdictional and
dispositional hearing, Father did not request custody of the
children, instead advocating for the children to be returned to
Mother—despite his knowledge of the serious domestic violence
present when the children were in Mother’s care. Most tellingly,
Father never requested custody at the removal hearing. Nor did
he ask the juvenile court to find, in accordance with section 361.2,
that a noncustodial parent “desire[d] to assume custody of the
child.” Instead, when Father asked to be heard on the subject of
removal, Father’s counsel only objected to the requirement that
Father participate in treatment programs.5
Additionally, Father’s analysis of section 361 primarily
relies on case law that predates the addition of section 361,
subdivision (d), which applies to noncustodial parents that do not
seek custody of their children. The juvenile court’s removal order
shows that the children were correctly removed from Father
pursuant to this subdivision.
Father also argues the juvenile court erred in failing to
state the factual basis for removal. We agree. Section 361
unequivocally requires that “[t]he court shall state the facts on
5 Father criticizes the juvenile court’s failure to ask
whether he wanted to take custody of the children. However,
Father does not provide any legal support for the proposition that
the juvenile court bears the burden of prompting a noncustodial
parent to request custody. (Mansell v. Board of Administration
(1994) 30 Cal.App.4th 539, 545 [“[I]t is established that ‘. . . an
appellate brief “should contain a legal 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” ’ ”].)
15
which the decision to remove the minor is based.” (§ 361, subd.
(e).) The juvenile court’s error, however, does not warrant
reversal. Any error by the juvenile court in failing to state its
findings was harmless. (In re Jason L. (1990) 222 Cal.App.3d
1206, 1218 [failure to make required findings under § 361, subd.
(e) are deemed harmless if “ ‘it is not reasonably probable such
finding, if made, would have been in favor of continued parental
custody’ ”].) We find it improbable that the juvenile court would
have made a different decision on the question of removal, even if
it had made the required factual findings, given Father’s failure
to seek custody and his resistance to acknowledging his
substance abuse issues. (See In re A.F. (2016) 3 Cal.App.5th 283,
293 [affirming removal order due to the mother’s failure to
acknowledge her longstanding drug abuse problem and “the risks
to which she was exposing the minor”]; In re J.C. (2014) 233
Cal.App.4th 1, 6-7 [affirming removal notwithstanding the
father’s participation in treatment where his treatment provider
reported his participation was “ ‘sluggish,’ ” he missed two drug
tests, and had a long history of substance abuse].)
D. The Juvenile Court Properly Ordered Services for
Father
Lastly, Father claims that he should not have been ordered
to complete drug treatment programs. Father’s argument
primarily relies on his assertion that any allegations of substance
abuse were unsupported by the record. Since we find the
allegations are substantially supported by Father’s own
admissions, missed drug test, and criminal history, we reject this
argument.
Father also argues that the order was not reasonably
designed to correct the main threat to the children, namely
16
Mother and Stepfather’s domestic violence. However, the
juvenile court has “ ‘broad discretion’ ” to fashion dispositional
orders that “ ‘serve and protect the child[ren]’s interests,’ ” not
just those interests that one parent considers important. (In re
D.P. (2020) 44 Cal.App.5th 1058, 1071.) Because Father’s
unresolved drug and alcohol abuse substantially impacted his
ability to care for the children, the juvenile court did not abuse its
discretion in ordering Father to participate in these programs.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
17