In re B.S. CA2/5 ( 2021 )

Filed 9/22/21 In re B.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re B.S., a Person Coming B309539
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
20CCJP02763A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
T.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of the County of
Los Angeles, Martha A. Matthews, Judge.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________________
I. INTRODUCTION
T.S. (father) appeals from the juvenile court’s jurisdiction
and disposition orders, arguing there was insufficient evidence to
support the finding that he failed to protect his son, B.S. (the
child), from the potential risks posed by A.P.’s (mother) alcohol
abuse. Father also contends that the court abused its discretion
by ordering him to participate in an Al-Anon support group. We
affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition
On May 19, 2020, the Los Angeles County Department of
Children and Family Services (the Department) filed a Welfare
and Institutions Code section 3001 petition, which alleged, as
relevant to this appeal and as later amended:
“b-3: [Mother] has a history of alcohol abuse and is a
current abuser of alcohol, which renders [her] incapable of
1 All further statutory references are to the Welfare and
Institutions Code.
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providing regular care and supervision of the child. On prior
occasions, . . . mother used, possessed, and was under the
influence of alcohol while the child was in . . . mother’s care and
supervision. [Father] knew, or reasonably should have known, of
. . . mother’s alcohol abuse and failed to protect the child by
allowing . . . mother to reside in the child’s home and have
unlimited access to the child. [M]other’s substance abuse and . . .
father’s failure to protect the child, endangers the child’s physical
health and safety and places the child at risk of serious physical
harm, damage, danger, and failure to protect.”
B. Family’s Prior History
The family initially came to the attention of the
Department in an August 2019 referral alleging that mother had
“recently tried to hang herself,” and that her boyfriend, D.G., also
had attempted to hang himself twice in mother’s garage.
According to the referral, mother had an alcohol use disorder and
had relapsed on July 27, 2019. D.G. also had a problem with
alcohol. Father was “concerned about these events” and had
taken custody of the child since mother went to the emergency
room.
The Department’s report on the incident explained that
mother had ended a “toxic relationship” with D.G., who had
attempted to hang himself in her bathroom and garage. The
incident caused mother to relapse to alcohol abuse. Mother
described herself as a “blackout drinker” and could not remember
the events that resulted in her admission to the emergency room.
Mother denied attempting suicide, explaining that she only told
hospital personnel that she was suicidal so she could be seen
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earlier. She was held for several hours because her blood alcohol
content was “approximately 3.8.”
Mother made arrangements for the child to stay with
father after she relapsed in August 2019, but there was no
present agreement as to when the child would be returned to her
care. Father knew that mother had a “toxic relationship” with
D.G., that she had sought a restraining order against D.G, that
he had attempted suicide in her home, and that mother had
relapsed as a result. Father was glad to have the child in his care
because he did not want D.G. around his son. Father was also
aware that D.G. was a recovering alcoholic who was “never
sober.” Father believed mother had purchased a rifle to protect
herself from D.G. Father planned to locate and discard the rifle.
Because mother had been sober for over 10 years prior to her
recent relapse and she appeared to be doing well, father was
hopeful that she would “get herself together,” but until then he
would care for the child.
Following its investigation of the August 2019 referral, the
Department determined that the allegations of general neglect
were “unfounded” and closed the case.
C. Current Referral
On April 26, 2020, the Department received another
referral alleging emotional abuse of then seven-year-old child by
D.G. According to the caller, an intoxicated D.G. and mother
engaged in an argument during which D.G. became irate, pulled
mother’s hair, and “strangled her for about [five] second[s].”
Mother pushed him away and asked him to leave. D.G. left and
mother locked the door, but he soon returned and broke down the
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door when mother would not let him in. Mother locked herself in
the bedroom with the child and called 911, causing D.G. to leave.
The police arrived, located D.G., and arrested him.
On May 6, 2020, a social worker interviewed mother, who
provided the following: D.G. began drinking two days before the
incident, telling mother that his back hurt. On the day of the
incident, the child told mother he was scared and wanted to go to
father’s house because D.G. was drinking. Mother called father,
but he refused to pick up the child because he was “on a date.”
At around 3:00 a.m., D.G. became irritated by mother and
said he would sleep on the couch, but instead continued drinking.
Mother subsequently told D.G. to leave because the child was
upset. D.G. then became angry, which prompted mother to tell
him she intended to pack his belongings so that he could leave.
Instead, D.G. followed mother to her room where the child was
sleeping and began yelling. In response, mother pushed D.G.,
who reacted by choking her, pushing her to the ground, picking
her up by her hair, and throwing her against the washing
machine.
Mother took the child from the home and went to a
convenience store, waiting for D.G. to leave. While they waited,
the child asked mother if D.G. “was going to kill them.” After
approximately 20 minutes, mother and the child returned home,
but D.G. appeared outside and began yelling for mother to let
him in. Mother told him to leave and that she was going to call
the police.
At that point, D.G. “kicked the door in,” and mother locked
herself in her room with the child. She called 911 and, during the
call, D.G. could be heard yelling and the child could be heard
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saying, “‘He’s going to kill us[.]’” The police arrived and arrested
D.G.
During the interview, mother admitted that she was a
recovering alcoholic and was drinking again. But she denied
needing help, claiming she could stop drinking whenever she
wanted.
During the social worker’s interview with father, he
provided the following details about the incident: At around
8:00 p.m. that night, mother called father and asked him to pick
up the child who was scared because D.G. threatened to stab him
with a knife. Father then spoke to the child who told him D.G.
was mad, but did not provide further details, other than stating
that he wanted to be picked up. Father did not “feel anything
had escalated or that his son was in any harm.” He again spoke
to mother who assured him that everything was alright. But at
around 11:00 p.m., mother texted father that “‘LAPD is here it’s
going down.’” Because D.G. had been arrested and was no longer
in the home, father believed it was appropriate to wait until the
next morning to pick up the child. Father picked up the child the
next morning; and mother was already drinking by the time he
and the child left.
In his interview, child told the social worker that he
witnessed D.G. assault mother and that he later saw the broken
door to the home. The child knew D.G. was drunk during the
incident, believed D.G. was going to kill them, and was scared.
He also told the social worker that mother was “‘crazy,’” that she
had lied to father, telling him “everything was okay,” and that, as
a result, father did not pick him up that night.
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On May 15, 2020, the Department sought and obtained a
removal order from the juvenile court and took the child into
protective custody.
At the May 22, 2020, detention hearing, the juvenile court
found that the Department had made a prima facie showing
under section 300, detained the child, and temporarily placed him
under the supervision of the Department. The court released the
child to the custody of his parents and placed him in mother’s
home on the condition that the maternal uncle move in with
mother. The court further ordered the Department to provide
family maintenance services to the child and his parents.
C. Department’s Section 385 Application
On June 23, 2020, the Department applied ex parte for a
change in court order under section 385 that sought to detain the
child from mother and place him with father. According to the
Department, during a visit with a social worker, the child advised
that, the prior weekend, he found mother “‘[p]assed out [o]n the
restroom floor . . . .’” The child became scared when mother
would not wake up. He had previously seen mother vomiting and
observed blood in the toilet.
In a detention report filed the same day, the Department
explained that on Saturday, May 30, 2020, the child was
watching a movie with mother when she told him she was going
to the restroom. After mother did not return, the child looked for
mother in the house. Hearing running water in the restroom, the
child opened the door and saw mother “‘passed out’” on the floor.
When the child could not wake mother, he called father using
FaceTime to show her on the floor.
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A social worker interviewed father about the incident and
obtained the following: On the night of the incident, the child
contacted him at about 10:00 p.m. “via the [iPad] crying
hysterically.” Father was able to view mother on the restroom
floor and “‘thought she was dead . . . .’” He immediately called
911 and drove to mother’s home to pick up the child. When he
arrived, he was relieved to see that mother “was up and awake.”
He asked her what happened, but she did not respond, stating
only that she was feeling overwhelmed. Father gathered the
child’s belongings and took him to father’s home.
When the social worker asked father if it appeared mother
had been drinking, he responded that she “‘didn’t seem like she
had been drinking [to] crazy excess.’” The social worker then
asked if father had smelled alcohol and he replied that he
“‘smelled a little.’”
At the June 28, 2020, hearing on the section 385
application, the juvenile court detained the child from mother
and placed him in father’s care. The court granted mother
weekly monitored visitation and gave the Department discretion
to liberalize.
D. Jurisdiction/Disposition Hearing
In an August 28, 2020, jurisdiction/disposition report, the
Department advised that, according to father, he “‘was not aware
that [mother] was drinking to an excessive level when she had
[custody of the child; he] just thought she was doing it in a
control[led] manner or not drinking at all. [P]eople are allowed to
drink and [it is] not illegal. [He] never thought [the child] was in
danger. [He did not] think [mother] ha[d] any bad intentions.’”
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In response to the violent incident involving D.G. that
resulted in the filing of the petition, father claimed that when
mother called and asked him to pick up the child, “[s]he didn’t
tell [him] the whole story. If [he] had known the full story [he]
would have gone to get [the child].” He also claimed that he did
not pick up the child later, after he knew the “full story,” because
the police had arrested D.G., which caused father to believe that
the child was no longer in any danger.
Concerning the subsequent incident when mother passed
out in the restroom, father reported that mother appeared to be
under the influence of alcohol and possibly pills. He admitted he
was aware of mother’s alcohol consumption because she reported
during family therapy to having sips of alcohol, but father did not
“‘see anything that raised an eyebrow.’” He denied knowing that
mother had been drinking heavily until the day of the incident
involving D.G.’s assault of mother. But father also admitted that
he was aware that mother began drinking again in August 2019
after approximately 10 years of sobriety and that she “started
getting high about March 2020.”
At the December 2, 2020, jurisdiction/disposition hearing,
the juvenile court sustained, among other counts, b-3. As to
disposition, the court ordered, among other things, that father
participate in individual counseling and attend an Al-Anon
support group over father’s objection.
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III. DISCUSSION
A. Legal Principles and Standard of Review
“‘In reviewing the jurisdictional findings and the
disposition, we look to see if substantial evidence, contradicted or
uncontradicted, supports them. [Citation.] 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.’” (In re R.T. (2017)
3 Cal.5th 622, 633.)
Section 300, subdivision (b)(1) provides for juvenile court
jurisdiction where “[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 . . . .”
At disposition, “‘[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. . . .’ [Citation.]
[¶] The . . . court may make ‘all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
child.’ [Citations.] . . . [¶] . . . [¶] [T]he . . . court is not limited
to the content of the sustained petition when it considers what
dispositional orders would be in the best interests of the children.
[Citations.] Instead, the court may consider the evidence as a
whole.” (In re Briana V. (2015) 236 Cal.App.4th 297, 311.)
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B. Analysis
Father contends there was insufficient evidence that he
failed to protect the child from mother’s alcohol abuse or that
there was a substantial risk that he would fail to do so in the
future. We disagree. There was ample evidence showing father
failed to appreciate the harmful effects of mother’s relapse into
alcohol abuse and did not adequately protect the child from it,
conduct that supported an inference that he would continue to
fail to protect in the future.
Based on the August 2019 incident during which mother
became so intoxicated that she blacked out and was taken to the
emergency room, father was aware she had relapsed after over 10
years of sobriety due to problems in her relationship with D.G.
and that her renewed alcohol use had rendered her incapable of
caring for the child. He also knew that D.G. abused alcohol, was
aware of D.G.’s “toxic” relationship with mother, knew that
mother had a restraining order against him, and believed she had
purchased a rifle for protection. As a result, father did not want
the child to be around D.G. In addition, father knew or should
have known that mother’s alcohol issues had not been resolved
months after the August 2019 incident because she admitted in
therapy that she continued sipping alcohol and he admitted she
was “getting high” as of March 2020.
Notwithstanding father’s knowledge of mother’s ongoing
alcohol issues and her dangerous relationship with D.G., father
allowed the child to live with her as of April 2020, where he
would be exposed to her ongoing and unresolved alcohol issues
and D.G. would have unlimited access to him. On April 26, 2020,
the child told mother he was afraid of D.G. because he was
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drinking. In an effort to protect her son, mother called father to
pick him up. According to father, even though mother explained
that the child claimed D.G. threatened to stab him, because the
child did not give father any details and mother later advised
that everything was “okay,” father decided not to remove the
child from the home. Later that night, D.G. violently assaulted
mother in the presence of the child and mother was forced to flee
the home with the child, but returned, at which point D.G. kicked
in the door causing the child to believe D.G. was going to kill
them both.
Although mother texted father following the incident to
alert him that the police were at her home, he decided to wait
until the next morning to pick up the child. And, by the time
father and the child left her home that morning, father knew
mother was already drinking.
Approximately a month later, on May 30, 2020, the child
contacted father by FaceTime and showed him that mother had
passed out on the restroom floor. Father admitted that it was
apparent that mother was under the influence of either alcohol or
pills, but claimed that he did not see anything “that raised an
eyebrow.” This was sufficient evidence to support an inference
that father downplayed or ignored the adverse effects of mother’s
alcohol abuse on a seven-year-old child, thereby exposing him to
emotional trauma.
In addition, father’s willingness, after the fact, to
rationalize mother’s troubling behavior and his own inadequate
response to it also supported an inference that he would continue
to minimize the danger to the child and expose him to future
harm.
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The evidence that supported the juvenile court’s
jurisdiction findings also supported the disposition order as to
father. Contrary to his assertion, the order requiring him to
participate in an Al-Anon support group was reasonably related
to his demonstrated lack of insight into mother’s serious alcohol
abuse issues and his willingness to downplay both the extent of
mother’s problem and his own inadequate responses to the
consequences of it on the child. The court did not abuse its
discretion in ordering father to participate in an Al-Anon support
group.
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IV. DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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