In re J.G. CA2/5 ( 2013 )

Filed 7/9/13 In re J.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.G., JR., et al., Persons Coming B244778
Under the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK94093)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.G., SR.,
Defendant and Appellant.
APPEAL from the judgment and orders of the Superior Court of Los Angeles
County, Debra Losnick, Juvenile Court Referee. Affirmed.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
________________________
J.G., Sr., (father) appeals from the dependency court‟s judgment and orders of
October 11, 2012, declaring his three children (the children) dependents of the court
under Welfare and Institutions Code sections 3601 and removing them from his custody.
He contends substantial evidence does not support the jurisdictional finding that his
conduct placed the children at risk of abuse or neglect or the order removing them from
his custody. We conclude substantial evidence supports the finding and the removal
order. Accordingly, we affirm.
STATEMENT OF FACTS AND PROCEDURE
J.G., Jr., born in 2009, N.G., born in 2011, and J.G., born in June 2012, are the
children of S.H. (mother) and father,2 who lived together.3 Father had a long history of
drug use and sales, criminal convictions, and incarcerations. He was convicted of first
degree burglary (Pen. Code, § 459) in 2000 and given a suspended sentence of 4 years in
prison, on condition he serve 36 months‟ probation and 365 days in jail. He was
convicted of misdemeanor battery (Pen. Code, § 242) in 2001 and sentenced to 90 days in
jail. He was convicted of vehicle theft (Veh. Code, § 10851, subd. (a)) in 2001 and
sentenced to three years‟ probation and 90 days in jail. In 2002, he was convicted of
misdemeanor false identification to specific peace officers (Pen. Code, § 148.9, subd. (a))
and sentenced to 36 months‟ probation and 10 days in jail. He was convicted of vehicle
theft (Pen. Code, § 10851, subd. (a)) in 2002 and sentenced to two years in prison. He
was convicted of first degree burglary (Pen. Code, § 459) in 2003 and sentenced to four
years in prison. He was convicted of possession of narcotics (Health & Saf., § 11350,
subd. (a)) in 2009 and sentenced to three years‟ probation and 365 days in jail. On
1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2 Father was found to be the presumed father of the children.
3 An older half sibling, D. H., born 2000, lived with the family.
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August 23, 2011, probation was modified, and he was sentenced to 180 days in jail.
J.G. was detained in the hospital at birth by the Department of Children and
Family Services (the Department), because he was born prematurely4 with amphetamines
and opiates in his system.5 He suffered from respiratory distress syndrome, presumed
sepsis, and metabolic acidosis. A section 300 petition was filed. The dependency court
ordered the children detained.
Father had only one visit with the newborn before he was arrested in June 2012 for
violating probation. He remained incarcerated until August 10, 2012. He stated he
participated in a drug program in connection with his 2009 conviction, but he did not
remember the program‟s name. He agreed to submit to drug testing and participate in
individual counseling and parenting. He failed to enroll in any program. He did not
cooperate with the social worker, attend scheduled meetings, or cooperate with a court-
ordered multidisciplinary assessment of the family. He failed to comply with the agreed-
to random drug testing: he was a “no show” on each date in August and September
when he was called to provide specimens. He failed to visit the children in placement.
Father denied mother used drugs or displayed any signs of using drugs. He lived with
mother.
The children had special needs. J.G., Jr.‟s mental health functioning was
impaired, and he was at risk for developmental delays. His behaviors indicated
“underlying anxiety, including hyper-vigilance, guardedness, shut-down behaviors,
averting eye contact, non-responsiveness, and a limited range of affect/emotion. It is
difficult to determine whether [his] symptoms are a response to trauma, neglect, exposure
to substances in utero, or a combination thereof[.]” N.G. was severely delayed. He
displayed mental health symptoms of severe neglect and of not being provided with
appropriate stimulation for development. Infant J.G. displayed “irritability, tremors,
rigidity, an excessive startling reflex and excessive hiccupping, which are all typical signs
4 N.G. was also born prematurely.
5 Mother had a history of abusing drugs and drug-related criminal convictions.
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of [drug] withdrawal[.]” His withdrawal was painful. As a result of his withdrawal
symptoms, he “was not yet working on his developmental tasks.” All three children were
referred to the regional center.6 They needed consistent attachment figures.
On October 11, 2012, the children were declared dependents of the court based on
sustained allegations under section 300, subdivision (b), as to father: “father‟s failure to
protect” from mother‟s substance abuse placed the children at risk of harm; and father‟s
history of criminal convictions, including convictions for narcotics possession, burglary,
and battery, and incarceration at the time of the children‟s detention, placed the children
at risk of harm. Custody was taken from the parents. Father was granted reunification
services and monitored visitation. He was ordered to take ten random drug tests, and, if
any test was missed or dirty, he would be required to complete a full drug rehabilitation
program. He was also ordered to complete parenting, participate in individual
counseling, and comply with all terms of parole or probation.
DISCUSSION
Substantial Evidence
A. Substantial Evidence Supports the Allegation Father’s Criminal History
Places the Children at Risk of Harm
Father contends substantial evidence does not support the finding under
section 300, subdivision (b) that his history of criminal convictions and incarceration
places the children at risk of physical harm. We disagree with the contention.
In determining whether an order is supported by substantial evidence, “we look to
see if substantial evidence, contradicted or uncontradicted, supports [it]. [Citation.] In
6 Regional centers assist persons with developmental disabilities and their families
“in securing those services and supports which maximize opportunities and choices for
living, working, learning, and recreating in the community.” (§ 4640.7, subd. (a).)
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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[.]” (In re Heather A. (1996) 52 Cal.App.4th
183, 193.) Issues of fact and the credibility of witnesses are questions for the trial court.
(In re Carmaleta B. (1978) 21 Cal.3d 482, 494-495.) “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 Matthew S. (1988) 201 Cal.App.3d 315,
321.) Thus, the pertinent inquiry is whether substantial evidence supports the finding, not
whether a contrary finding might have been made. (In re Dakota H. (2005) 132
Cal.App.4th 212, 228.)
Section 300, subdivision (b) describes in pertinent part a child who has suffered,
or is a substantial risk of suffering, “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 . . . substance abuse.”
“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.) The
purpose of the juvenile court law is to provide “maximum safety and protection for
children” being harmed or who are at risk of harm. (§ 300.2.) “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. Successful
participation in a treatment program for substance abuse may be considered in evaluating
the home environment.” (Ibid.)
A missed drug test is considered a dirty drug test. (See In re Raymond R. (1994)
26 Cal.App.4th 436, 439.)
Father‟s 12 years of serial criminal activity and incarcerations, during which he
was not available to care for and protect the children, is substantial evidence of a risk of
caretaker absence, which places the children at substantial risk of harm. Even if father‟s
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statement he completed a drug program, whose name he did not know, was credible, his
2009 conviction of narcotics possession, coupled with the recent missed drug tests that he
had agreed to submit to, is substantial evidence he was unable to provide regular care due
to substance abuse.
Father reargues the evidence and asks us to reweigh it. This we will not do. Our
role is to determine whether substantial evidence supports the finding. In this case, ample
substantial evidence supports the finding father‟s history of criminal convictions and
incarceration places the children at risk of physical harm.
B. We Need Not Decide Whether Father’s Failure to Protect Endangers the
Children
The dependency court found under section 300, subdivision (b) that mother has a
history of substance abuse and infant J.G. was born with drugs in his system, and such
abuse by mother, and father‟s “failure to protect the children,” places the children at risk
of harm. Father contends substantial evidence does not support the finding that his
failure to protect the children from mother‟s drug use was neglectful and caused serious
harm. We need not decide the contention. “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the dependency court‟s jurisdiction, a
reviewing court can affirm the juvenile court‟s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing court need not consider
whether any or all of the other alleged statutory grounds for jurisdiction are supported by
the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [where substantial
evidence supported jurisdiction under section 300, subdivision (b) based on father‟s
history of domestic violence, the court did not need to decide whether jurisdiction was
also supported by father‟s drug use]; accord, In re I.J. (2013) 56 Cal.4th 766, 773.) Here,
dependency court jurisdiction over the children under section 300, subdivision (b) is
supported by mother‟s drug use and father‟s criminal history, and father does not identify
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any consequence to him from the challenged finding. Therefore, we decline to review
whether father‟s failure to protect constitutes an additional basis for jurisdiction.
C. The Removal Order is Supported by Substantial Evidence
Father contends it was an abuse of discretion to order the children removed from
his custody. We disagree with the contention.
“„The juvenile court has broad discretion to determine what would best serve and
protect the child‟s interest and to fashion a dispositional order in accordance with this
discretion. [Citations.] The court‟s determination in this regard will not be reversed
absent a clear abuse of discretion.‟ [Citation.]” (In re Corrine W. (2009) 45 Cal.4th 522,
532.) “„The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.‟ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “[W]hen a
court has made a custody determination in a dependency proceeding, „“a reviewing court
will not disturb that decision unless the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination
[citations].”‟ [Citations.]” (Id. at p. 318.) Where substantial evidence supports the order,
there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
Section 361 provides in pertinent part: “(c) A dependent child may not be taken
from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence[:] [¶] (1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if the minor
were returned home, and there are no reasonable means by which the minor‟s physical
health can be protected without removing the minor from the minor‟s parent‟s . . .
physical custody.”
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The evidence of father‟s inability to remain free from incarceration, current drug
use, lack of rehabilitation, denial of mother‟s role, and habitation with mother, and the
evidence the children suffered from severe neglect in parental custody and require
consistent attachment figures if they are to develop, is substantial evidence supporting the
finding the children are at substantial risk in father‟s custody and there are no reasonable
alternative means to protect them without removing them from his custody. (§ 361, subd.
(c).) The dependency court‟s decision to remove the children from father‟s custody was
not an abuse of discretion.
DISPOSITION
The judgment and orders are affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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