In re C.B. CA3 ( 2013 )

Filed 3/12/13 In re C.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Amador)
In re C.B., a Person Coming Under the Juvenile Court
Law.
AMADOR COUNTY HEALTH AND HUMAN C070741
SERVICES AGENCY,
(Super. Ct. No. 11-DP-0399)
Plaintiff and Respondent,
v.
CHRISTOPHER D.,
Defendant and Appellant.
Appellant Christopher D., father of the minor, appeals from the juvenile court‟s
dispositional orders removing the minor from his custody and placing him with mother.
(Welf. & Inst. Code, § 395.)1 Father contends there was insufficient evidence to support
jurisdiction over the minor. We shall affirm.
1 Further undesignated statutory references are to the Welfare and Institutions Code.
1
BACKGROUND
Prior to October 2011, father had custody of his seven-year-old son on
weekends -- scheduled to pick the minor up from school on Fridays and bring him back
to school on Mondays. On December 1, 2011, however, weekend visitation was
suspended by the family law court, after mother filed a declaration seeking reduction in
visitation and requesting visitation be conditioned upon father‟s participation in a
rehabilitation program.
Mother‟s declaration stated that father had participated in a 30-day rehabilitation
program in March 2010, but had returned to alcohol use immediately thereafter. Father
was admittedly continuing to drink, and the minor also reported father was drinking,
despite the court order that father not consume alcohol 12 hours prior to or during
visitation. The minor also reported that, in April 2011, father had vomited from drinking
too much and the dog ate the vomit and got drunk. The minor also stated that he and
father were fishing and there was lots of beer.
Father had been missing an average of one visit per month, and had been picking
the minor up a day late or returning him a day early. The minor frequently ended up
spending the night with his aunt, instead of father.
The minor returned from visits not having bathed, not having brushed his teeth,
and hungry. The minor would spend a day overeating after returning to mother, although
father claimed he had offered the child food. Mother also stated the minor would return
from visits with bug bites on his back and blisters on his feet from not wearing shoes.
The minor told mother in April 2011 that he and father had slept in the car.
On October 15, 2010, father brought the minor to the maternal grandmother‟s
house, reporting that the minor did not want to stay with him. Father told the maternal
grandmother that his drinking had been getting worse and he felt he was unfit as a parent,
as “broken” people cannot make good parents. Mother‟s declaration further recounted
father‟s talk of suicide.
2
Finally, mother‟s declaration described an incident reported by the minor wherein
the minor claimed father had gotten very angry when his dog defecated on the couch.
According to the minor, father put the dog‟s head in the pile of feces while beating the
dog, then put the dog‟s head in the toilet and flushed it. He then put the dog in the toilet,
closed the lid, and sat on the lid while the dog screamed. When mother confronted father
about the incident, he laughed.
On November 30, 2011, the Amador County Health and Human Services Agency
(Agency) filed a section 300 petition on behalf of the then eight-year-old minor to
remove him from father‟s custody. The petition, as subsequently amended, alleged the
minor came within section 300, subdivisions (b) (failure to protect), (c) (serious
emotional damage), and (i) (cruelty). Specifically, it alleged, under subdivision (b), that
the minor has suffered, or there is substantial risk he will suffer, serious physical harm or
illness, by the inability of the parent to provide regular care for the child due to the
parent‟s mental illness, developmental disability, or substance abuse. In support of this
allegation, it was alleged that, on November 29, 2011, father admitted he is an alcoholic
and that he has continued to consume alcohol in the presence of the minor, despite being
prohibited by a family court order from doing so. Mother reported that the reason for the
family court order was her previous report that father had driven under the influence of
alcohol with the minor in the car in the past.
Under section 300, subdivision (c), the petition alleged the minor was suffering
from serious emotional damage as a result of the parent‟s conduct. Mother reported the
minor suffered from depression and anxiety, and had developed anger management issues
after he witnessed the incident wherein father beat the dog and put it in the toilet. The
minor has since had repeated angry outbursts and tantrums, which had also caused him to
get in trouble at school. The petition also alleged that the minor has stated he does not
feel safe in father‟s home. Additionally, it was alleged that father had reported he has
suicidal thoughts several times a day, although he states he would not commit suicide
3
“because that would be stupid.” Father, however, has two known suicide attempts,
documented by the police department, and states he suffers from depression and post
traumatic stress disorder for which he is not receiving treatment.
Under section 300, subdivision (i), the petition alleged the minor had been
subjected to acts of cruelty by the parent, and recounted the incident wherein father beat
the dog and put it in the toilet. The minor had also reported that the dog had thereafter
disappeared and father had told him the dog ran away. The minor appeared doubtful of
father‟s explanation, stating the dog could barely walk. The petition also alleged that
mother reported father had taken the minor for visitation and shot sheep for sport in
Amador County in the minor‟s presence.
Mother‟s statements, from which the allegations in the petition arose, were
included in the jurisdiction report. The social worker also spoke with the minor, who
stated that he does not feel safe at father‟s house because father is always yelling. Father
and his roommate drink beer when he is there. The minor became very serious and
visibly upset when he recounted the incident involving the dog and the toilet.
Father told the social worker that the dog had an accident so he picked the dog up
and held it over the toilet so it could defecate in the toilet. He then put the dog in the
shower. He denied putting the dog in the toilet and claimed the dog did, later, run away
after his roommate left the doors and windows open. Father admitted he is an alcoholic
but says he can control his drinking. Father also admitted he has had a drink in the
minor‟s presence but said he does not get drunk while caring for the minor. He stated he
gets drunk about three times a month. Father also reported he suffers from depression
and post traumatic stress disorder.
After a hearing, at which both mother and father testified, the juvenile court
sustained the allegations in section 300, subdivisions (b) and (c), but dismissed the
subdivision (i) allegations. With respect to the subdivision (i) allegations, the juvenile
court remarked that it was possible the minor was traumatized by the dog‟s yelling and
4
yapping, and by seeing father put the dog over the toilet -- although the minor did say
father sat on the lid to keep the dog from being able to get out of the toilet. The court
then went on to say, “On the other hand, I don‟t know where he comes up with this sheep
business, either. [¶] It‟s troubling. I think that I‟m not going to find it to be true, but I
find the way the whole thing was handled, again, to be extremely troubling.”
At the disposition hearing, the juvenile court ordered the minor placed with
mother. Father‟s case plan included a mental health assessment and psychological
evaluation, a medication evaluation, weekly therapy, a parenting class, a substance abuse
assessment, substance abuse testing, and weekly supervised visits with the minor.
Father filed a timely notice of appeal. Subsequently, at the six-month review
hearing, the juvenile court entered orders granting sole physical custody of the minor to
the minor‟s mother, granting father supervised visitation, and terminating jurisdiction.2
DISCUSSION
I
First, we address the Agency‟s request that we “decline to take this matter under
submission on jurisdiction” because the issue raised is not encompassed in the notice of
appeal. Specifically, father challenges the jurisdictional findings but mentioned only the
disposition hearing and orders in his notice of appeal. We reject the Agency‟s request
and liberally construe father‟s notice of appeal to encompass the jurisdictional findings
and orders.
“The notice of appeal must be liberally construed.” (Cal. Rules of Court, rule
8.100(a)(2).) “[A]n appeal will not be dismissed because of a misdescription of the
judgment or order to which it relates, unless it appears that the respondent has been
2 This court granted the Agency‟s request for judicial notice of the juvenile court‟s
orders entered at the six-month review hearing in an order dated September 27, 2012.
5
misled by such misdescription.” (Girard v. Monrovia City School Dist. (1953)
121 Cal.App.2d 737, 739.)
Jurisdictional findings, such as those challenged here, are interlocutory and not
independently appealable. (In re Athena P. (2002) 103 Cal.App.4th 617, 624.) Thus, the
jurisdictional findings can be challenged on appeal only from the next appealable order --
here, the disposition from which father appealed. (In re Tracy Z. (1987) 195 Cal.App.3d
107, 112.) We perceive no injustice in construing father‟s notice of appeal to incorporate
the jurisdictional findings. Nor does father‟s trial counsel‟s failure to check the
“jurisdictional findings” box on the notice of appeal form (Judicial Council Forms, form
JV-800) rise to the level of “clear and satisfactory” evidence that father, who was served
with a copy of the opening brief, has not authorized his appellate counsel to raise
challenges to the jurisdictional findings in this appeal. (Seeley v. Seymour (1987)
190 Cal.App.3d 844, 853.)
II
Next, we address the Agency‟s contention that we should dismiss this appeal as
moot. We also decline this request.
As we recited, at the six-month review hearing held after father took this appeal,
the juvenile court entered orders granting sole physical custody of the minor to the
minor‟s mother, granting father supervised visitation, and terminating jurisdiction. As a
general rule, an order terminating juvenile jurisdiction renders an appeal from a previous
dependency order moot. (In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) “However,
where a judgment dismissing the dependency action is challenged on appeal[,] the case
„is not moot if the purported error is of such magnitude as to infect the outcome of
[subsequent proceedings] or where the alleged defect undermines the juvenile court‟s
initial jurisdictional finding. Consequently the question of mootness must be decided on
a case-by-case basis.‟ [Citation.]” (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547.)
6
Accordingly, an appeal of the findings upon which continuing orders for custody
and visitation are based, such as the one here, will generally not be dismissed as moot
because an error in those findings undermines the foundation for such continuing orders.
(In re Joshua C., supra, 24 Cal.App.4th at p. 1548.) For this reason, and because the
appeal challenges the basis for the juvenile court‟s initial jurisdiction, we shall not
dismiss the appeal as moot.
III
Moving to the merits, father contends the evidence is insufficient to support the
juvenile court‟s findings of jurisdiction over the minor pursuant to subdivisions (b) or (c)
of section 300. With respect to subdivision (b), according to father, even assuming he
has mental health issues and was continuing to use alcohol, the record does not establish
those problems resulted in a risk of harm to the minor. We disagree.
Section 300, subdivision (b), provides that a child comes within the jurisdiction of
the juvenile court if “[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 mental illness, developmental disability, or substance abuse.”
The purpose of the dependency statutes is to keep children safe from harm or from
the current risk of harm inflicted through neglect or abuse. (§§ 202, 300.2; In re
Rocco M., (1991) 1 Cal.App.4th 814, 824.) The Legislature has recognized: “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.) A parent who has a history of substance abuse and continues to
abuse alcohol, exposing a child in his custody to the negative effects of such abuse, has
placed the child at substantial risk of suffering serious harm.
7
Here, the minor reported father and his roommate drank alcohol when he was
there and that father yelled at him a lot. The minor observed father vomit from drinking
too much and then letting the dog eat the vomit. The minor would return from weekends
with father hungry and dirty, and reporting that father did not feed him. The minor would
also return from weekends with the father with bug bites and blisters. The minor would
also report, after each weekend, that father had been drinking beer during the visit. The
minor stated he does not feel safe at father‟s house. Father rarely cared for the minor for
the entire weekend, returning him to mother before Monday morning and/or leaving him
with the minor‟s aunt. On days father did bring the minor to school on Monday, the
minor was usually late for school.
Contrary to father‟s assertion on appeal, there was evidence suggesting these
behaviors and failures were the result of his alcohol abuse. The maternal grandmother
reported that father had brought the minor to her to care for on at least one occasion,
stating his drinking had worsened and he believed he was unfit as a parent. Thus, father,
himself, has indicated that his drinking affects his ability to adequately parent the minor.
Father‟s reliance on In re B.T. (2011) 193 Cal.App.4th 685 for the proposition that
jurisdiction cannot be based on his alcohol abuse is misplaced. Unlike father here, in that
case, the mother “regularly” drank beer but there was no evidence that her drinking
rendered her incapable of taking care of her children or caused her to neglect or endanger
them in any way. (Id. at pp. 689, 693.) Additionally, the mother had tested clean 11
times three months before trial, suggesting she was not in the grip of a serious addiction,
and family members had stated that her beer use had no effect on her behavior. (Id. at
p. 694)
The instant case, however, is not one where the negative effects of a parent‟s use
of alcohol on the minor are speculative. The record here supports a finding that father
8
had failed to provide adequately for the minor and that this failure was due, at least in
part, to his abuse of alcohol.3
Because the evidence was sufficient to establish jurisdiction pursuant to section
300, subdivision (b), we need not address father‟s arguments concerning the subdivision
(c) allegations that his actions caused the minor to suffer, or placed the minor at risk of
suffering, severe emotional damage. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
DISPOSITION
The judgment is affirmed.
BLEASE , Acting P. J.
We concur:
HULL , J.
MAURO , J.
3 To the extent father‟s failure to provide adequately for the minor was also due, in part,
to his unresolved and untreated mental health issues, this does not change the result. (See
§ 300, subd. (b).)
9