In re Emanuel S. CA4/1 ( 2015 )

Filed 3/11/15 In re Emanuel S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re EMANUEL S. et al., Persons Coming
Under the Juvenile Court Law.
D066754
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. Nos. J513725 & EJ2158D-E)
Plaintiff and Respondent,
v.
F.H.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
F.H. appeals the judgment entered following the jurisdiction and disposition
hearing in the juvenile dependency case of his minor children, Emanuel S., S.H., and
N.H. He contends the evidence was insufficient to support the juvenile court's
jurisdictional finding under Welfare and Institutions Code section 300, subdivision (b).1
We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2014, the San Diego County Health and Human Services Agency
(the Agency) petitioned the juvenile court under section 300, subdivision (b) on behalf of
13-year-old Emanuel, 12-year-old S.H., and 10-year-old N.H. The minors lived with
F.H. and his wife April H.2 As later amended, the petitions alleged that F.H. used
alcohol to excess, which resulted in aggressive behavior towards the minors and April.
Despite seven months of voluntary services, F.H. did not make substantial progress and
continued to drink alcohol. The petitions also alleged that F.H. caused three fires at the
family home and failed to notice signs and symptoms of diabetes in S.H. The Agency
concluded that Emanuel, S.H., and N.H. had suffered or were at substantial risk of
suffering serious physical harm or illness as a result of F.H.'s failure or inability to
supervise and protect them.
1 Further statutory references are to the Welfare and Institutions Code.
2 April is not the biological mother of the minors. Emanuel's biological mother is
Holly S. At the time of the petitions, F.H. had legal custody of Emanuel, and Holly had
visitation rights. S.H. and N.H.'s biological mother is Lourdes H. April, Holly, and
Lourdes are not parties to this appeal, and we will discuss them only where necessary.
2
The Agency had a long history of involvement with the family, including 53
referrals for child abuse or neglect. When F.H. drinks alcohol, he becomes aggressive,
yells, and bothers the children. Prior to the most recent voluntary services period, F.H.
drove with the minors while under the influence of alcohol and, while at a liquor store, he
began to fight with a stranger. N.H. was injured when she tried to stop the fighting.
After that incident, F.H. was offered parenting classes and substance abuse treatment,
among other voluntary services. Although he completed a parenting class, he did not
make substantial progress in his substance abuse program. F.H. attended several
Alcoholics Anonymous meetings, and obtained a sponsor, but he did not progress beyond
that step. F.H. was eventually terminated from his treatment program for noncompliance.
During the voluntary services period, the Agency received a referral alleging an
altercation between F.H., his wife April, and N.H. F.H. became angry with N.H. and
grabbed N.H.'s arm. April tried to protect N.H. and successfully kept F.H. away from
her. N.H. was crying and shaking. The entire incident lasted several hours because F.H.
continued to try to pull N.H. away from April. The Agency determined that the
allegations were inconclusive for emotional abuse.
F.H. continued to use alcohol, albeit less than before. The minors reported fewer
fights and other disturbances in the house. However, three fires occurred under
suspicious circumstances. The first fire occurred outside of the family home, on a nearby
fence where F.H. disposed of cigarette butts. Emanuel observed the fire from a kitchen
window. N.H. reported it was a "big fire" with "lots of smoke everywhere." Emanuel
called F.H., who put out the fire. An Agency social worker later investigated the site of
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the fire and found a box full of plastic, trash, and cigarette butts. The second fire
occurred the next day, this time inside the kitchen. The fire started in a trash bin, and
smoke spread throughout the house. The fire burned a small portion of the wooden
kitchen floor. In conversations with the Agency, April said she believed both fires had
been caused by F.H. throwing out cigarette butts that he had not completely extinguished.
The third fire was discovered when a family friend dropped the minors off at home
after activities at the Boys & Girls Club. (April tried to contact F.H. to retrieve the
minors, but she could not reach him.) The family friend saw smoke coming from the
house and went inside. He noticed flames coming from a pan on the stove that had been
left unattended. F.H. was asleep. When the family friend tried to wake F.H., he was not
responsive. Based on F.H.'s behavior, the family friend believed that F.H. was drunk.
Several days later, F.H. drank approximately five 24-ounce beers in an afternoon.
F.H. yelled and acted aggressively towards April and the minors. F.H. and April argued.
April believed the minors were afraid. When F.H. stepped outside to smoke, April
locked him out of the house. The police arrived soon afterwards. The police interviewed
the family but did not make any arrests. After the police left, F.H. took the family's
electronic devices and made everyone sit in silence. F.H. admitted he had been drinking
that day and was frustrated. However, he said he would not have done anything
differently.
The Agency contacted the family and negotiated one-day and one-week safety
plans requiring F.H. to abstain from alcohol, among other provisions. Afterwards, F.H.
said he would not sign any more safety plans. Just before the one-week safety plan
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expired, the Agency detained the minors. The Agency believed that F.H. did not
understand the impact his alcohol abuse had on his family or his ability to care for the
minors. At the detention hearing, the court found that the Agency had made a prima facie
showing under section 300, subdivision (b).
Several days after his detention, S.H. was admitted to Rady Children's Hospital.
S.H. had significantly elevated blood sugar levels and was diagnosed with type 1
diabetes. A doctor explained that "the magnitude in elevation of [S.H.]'s value indicates
he was hyperglycemic [for] at least [three]-[four] weeks before hospitalization."
Similarly, a nurse told the Agency that "[S.H.] had to have been showing symptoms for a
long time and that because his sister [N.H.] has diabetes the parents should have been
aware of those signs."
F.H. and April went to the hospital to see S.H. While there, they caused a
"commotion" and "a big disturbance" by yelling and screaming. Hospital staff called the
police, who spoke to F.H. After at least three days in the hospital, S.H. was released.
In a separate incident, F.H. was arrested at home following a heated argument with
a contractor working on a house on the same lot where F.H. lived. F.H. locked the gate
to the property, trapping the contractor. The contractor told police he had no way of
leaving and felt scared to leave the house. The contractor said F.H. was holding an
empty beer bottle. The contractor called a coworker who, despite F.H.'s interference, was
able to unlock the gate and free the contractor. The police arrived and arrested F.H. on
charges of false imprisonment. A subsequent criminal records check described the
charge as false imprisonment with violence.
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Prior to the jurisdiction and disposition hearing, the Agency recommended that the
court sustain the petitions. As to Emanuel, the Agency recommended that he remain in
the custody of his mother Holly and that jurisdiction be terminated. As to S.H. and N.H.,
the Agency recommended that they remain in out-of-home care and that F.H. receive
reunification services.
At the hearing, the court received several Agency reports into evidence and heard
testimony from an Agency social worker. The court also heard testimony from F.H. and
April. The court sustained the allegations of the petitions, as amended, and removed the
minors from F.H.'s custody. The court ordered that Emanuel be placed with Holly and
terminated jurisdiction as to him. The court ordered that S.H. and N.H. remain in foster
care and ordered that family reunification services be provided. F.H. appeals.
DISCUSSION
F.H. contends the evidence does not support the court's jurisdictional finding
under section 300, subdivision (b). Section 300 provides, in relevant part, as follows:
"Any child who comes within any of the following descriptions is within the jurisdiction
of the juvenile court which may adjudge that person to be a dependent child of the court:
[¶] . . . [¶] (b)(1) The child has suffered, or there is a substantial risk 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
mental illness, developmental disability, or substance abuse."
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" 'The basic question under section 300 is whether circumstances at the time of the
hearing subject the minor to the defined risk of harm.' " (In re J.N. (2010) 181
Cal. App. 4th 1010, 1022.) " 'Before courts and agencies can exert jurisdiction under
section 300, subdivision (b), there must be evidence indicating that the child is exposed to
a substantial risk of serious physical harm or illness.' " (In re Nicholas B. (2001) 88
Cal. App. 4th 1126, 1137.) The juvenile court must find that the child is a person
described in section 300 by a preponderance of the evidence. (§ 355, subd. (a).)
"Although 'the question under section 300 is whether circumstances at the time of
the hearing subject the minor to the defined risk of harm' [citation], the court may
nevertheless consider past events when determining whether a child presently needs the
juvenile court's protection. [Citations.] A parent's past conduct is a good predictor of
future behavior." (In re T.V. (2013) 217 Cal. App. 4th 126, 133.)
" 'On appeal, the "substantial evidence" test is the appropriate standard of review
for both the jurisdictional and dispositional findings. [Citations.]' [Citation.] [¶] Thus,
'we must uphold the court's [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 the findings. [Citation.] Substantial evidence is evidence that is reasonable,
credible, and of solid value. [Citation.]' " (In re J.N., supra, 181 Cal.App.4th at p. 1022.)
We conclude the evidence supports the juvenile court's finding that the minors
were at substantial risk of serious physical harm at the time of the hearing. F.H. has a
longstanding problem with alcohol abuse. When F.H. abuses alcohol, he becomes at
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times aggressive, violent, and neglectful of the minors. Past incidents related to alcohol
abuse include driving with the minors while intoxicated, engaging in a physical
altercation with a stranger while the children were present (resulting in injury to N.H.),
causing at least one fire at the family home by falling asleep while cooking food, yelling
at April and the minors until confronted by police, and harassing and falsely imprisoning
a contractor working on a nearby house.
F.H. was also neglectful in other ways, including by disposing of his cigarette
butts in ways that caused two fires, failing to notice the signs and symptoms of diabetes
in S.H, and harassing N.H. to the point of April needing to protect her. While there was
no direct evidence that alcohol consumption led to these incidents, F.H.'s continued abuse
of alcohol could only exacerbate these neglectful tendencies.
Although the Agency provided F.H. with voluntary services designed to address
his alcohol abuse, F.H. did not make substantial progress and was terminated from his
treatment program. F.H. also refused to sign a safety plan longer than a week in length
that would have prohibited him from drinking alcohol. At the time of the hearing,
therefore, F.H.'s alcohol abuse problem remained untreated. Given the evidence of F.H.'s
previous actions while abusing alcohol, and the substantial likelihood that F.H. would
continue to abuse alcohol, the court could reasonably find that the minors were at
substantial risk of serious physical harm in F.H.'s care.
F.H. points out that his alcohol problem appears to have improved somewhat
during the voluntary services period. April and the minors reported that F.H. drank less
and, consequently, behaved more tolerably. However, even if F.H. drank less often, he
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still consumed alcohol to excess at times. During these times, as we have discussed, F.H.
acted aggressively, violently, and neglectfully towards the minors. In light of these
incidents, the fact that F.H.'s alcohol problem had improved does not mean the court
could not reasonably find that F.H. still presented the requisite risk to the minors'
physical safety.
F.H. claims that the children were not present while F.H. was drinking during the
voluntary services period. But the minors were present during both the stove fire incident
and the incident where F.H.'s aggressiveness towards the minors and April caused the
police to be called. While the minors were not injured during these two incidents, or
during the other fires, evidence of injury is not required to sustain a finding under section
300, subdivision (b). (See In re T.V., supra, 217 Cal.App.4th at p. 134.) The aggression,
violence, and neglect shown by past incidents—even setting aside the actual past injury
to N.H.—is sufficient to sustain the juvenile court's finding here.
F.H. also claims that the record "doesn't refute" F.H.'s testimony that he did not
notice any symptoms of S.H.'s diabetes. While it may be undisputed that F.H. did not
notice these symptoms, the reports of medical professionals show that S.H. must have
exhibited symptoms. The fact that F.H. did not notice only confirms his neglect.
Unlike In re David M. (2005) 134 Cal. App. 4th 822, on which F.H. relies, the risk
of harm here is not speculative. In that case, the social services agency alleged only that
the mother and father were mentally ill and that the mother had substance abuse
problems. (Id. at p. 829.) There was no evidence of any impact on the minors in that
case. As the court explained, "the evidence of mother's mental and substance abuse
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problems and father's mental problems was never tied to any actual harm to [the minors],
or to a substantial risk of serious harm." (Ibid.) By contrast, the record here contains
evidence of the aggressive, violent, and neglectful actions that F.H. has committed and
that create the substantial risk of serious harm the juvenile court found. Similarly, this
case is distinguishable from In re J.N., where the parents drove while intoxicated,
resulting in injury to the minors. (In re J.N., supra, 181 Cal.App.4th at pp. 1014-1016.)
The evidence in In re J.N. demonstrated only a single episode of risky behavior. (Id. at
p. 1022.) Here, F.H.'s actions show a continuing problem with alcohol abuse and a
pattern of potentially endangering conduct. Based on this evidence, as we have
explained, the juvenile court's assessment of the risk of future harm was reasonable.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
MCDONALD, J.
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