In re J.D. CA2/5 ( 2024 )

Filed 5/30/24 In re J.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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 FIVE
In re J.D., et al., Persons Coming
Under the Juvenile Court Law. B328713
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN (Los Angeles County
AND FAMILY SERVICES, Super. Ct. No.
19CCJP01722H-J)
Plaintiff and Respondent,
v.
E.D.
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lucia J. Murillo, Judge Pro Tempore. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant E.D.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
The juvenile court assumed dependency jurisdiction over
minors Jan.D., Jo.D., and Jac.D. following an incident in which
E.D. (Father) arrived home drunk with a self-inflicted gunshot
wound, physically abused the minors, and threatened to kill
them. We are asked to decide whether substantial evidence
supports the juvenile court’s finding that returning the minors to
Father’s custody at the six-month review hearing would create a
substantial risk of detriment to their physical or emotional well-
being.
I. BACKGROUND
This is the second appeal in these dependency proceedings
that commenced in juvenile court in June 2022.1 We previously
affirmed the juvenile court’s disposition order in In re J.D. (Sept.
15, 2023, B323583) [nonpub. opn.]). We draw on that opinion in
summarizing the facts from the initial investigation through
disposition.
1
Earlier, the juvenile court sustained a different dependency
petition alleging Father failed to seek timely mental health
treatment for Jan.D. and Jac.D. Father was ordered to
participate in drug and alcohol services, family preservation
services, and individual counseling. The juvenile court
terminated dependency jurisdiction about six months later, and
this court dismissed as moot Father’s appeal from the juvenile
court’s jurisdiction findings and disposition order. (In re G.D.
(Aug. 16, 2022, B314503) [nonpub. opn.].)
2
A. Investigation, Assumption of Dependency
Jurisdiction, and Disposition
Jan.D. was born in 2006, Jo.D. was born in 2008, and
Jac.D. was born in 2009. Father was awarded sole legal and
physical custody of the minors in 2019 after the juvenile court
sustained a dependency petition alleging they were at risk based
on V.M.’s (Mother’s) conduct.
The events that led to these proceedings occurred in June
2022, when the Los Angeles Department of Children and Family
Services (the Department) was notified of a disturbance at the
family home. The Department was informed police responded to
the home late one evening after receiving reports that Father was
assaulting the minors. The minors ran outside when officers
arrived and said Father had hit them. The officers saw Father
inside the home with blood on his hand. Father attempted to
close the door on the officers, but he was taken into custody
without further incident. Father had a gunshot wound to his left
hand, and officers discovered a bullet hole and traces of skin in
his car. Officers did not observe any obvious physical injuries to
the minors.2
Jan.D. told police that Jo.D. woke her up because Father
was outside in his car and appeared intoxicated. Jan.D.
approached Father with her younger siblings and Father “began
to yell” at her. When he “abruptly” exited the car, Jan.D. ran
inside and locked the door. She let Father inside, however,
2
The police report noted there were cockroaches and rat
feces throughout the kitchen and disturbing slogans written on
the minors’ bedroom walls.
3
because she feared the situation “would escalate further” as
Father “began to bang on the door.”
Jan.D. told officers that Father hit all three minors
multiple times and said he would “kill [them] if [they] [did not]
listen” to him. Jan.D. directed Jac.D. to have a neighbor call the
police, and when the neighbor came to the family home to
intervene, he and Father “got in a verbal altercation.” Jan.D.
then directed Jo.D. to remove Father’s gun from his car (he
“always keeps a gun inside the vehicle”) because she was afraid
he “might use the gun against [the minors].” Police recovered
this gun plus several others that Father kept in his bedroom.
Jac.D. declined to provide a statement to officers because he was
“used to this type of behavior.”
A Department social worker spoke with the minors the
following day. Jan.D. expanded on her statements to police,
explaining Father was drunk and told her he accidentally shot
himself in the hand. Jan.D. tried to help him clean the wound,
but he “refused” and “began to hit her and her siblings.” He told
them, “you are the worst thing that ever happened to me. I have
to do all this for you guys and you don’t do anything for me. I am
going to kill you.” Jan.D. knew Father kept a loaded handgun in
his car, so she and her siblings ran outside to hide it.3 Jan.D.
said Father occasionally drinks, but he was never aggressive and
had not previously abused her or her siblings. Jo.D. and Jac.D.
both said Father drinks “a lot,” but similarly agreed he had never
become aggressive before.
3
Jo.D. and Jac.D. corroborated Jan.D.’s account of what
happened.
4
A Department social worker discussed the incident with the
minors once again about three weeks later. All three of the
minors stated Father pushed them out of his way after he exited
the car, but Jan.D. and Jac.D. now denied that Father hit them.
Jan.D. also denied Father said he was going to kill them. Jo.D.
and Jac.D. now also suggested Father was not a heavy drinker.
Father told a Department social worker he was drunk the
day of the incident. He “blacked out” and had no recollection of
“anything after arriving home,” but he “was apologetic and took
full responsibility for his actions despite not knowing exactly
what had occurred.” Father said the minors are aware he keeps
guns in safes in the home, but he maintained they “have never
had access to the guns.” Father acknowledged alcohol was “a
‘demon’ he needed to overcome” and explained he had “turn[ed] to
alcohol to cope” with stress caused by work, his mother’s health
problems, and fatherhood. More specifically, with respect to
fatherhood, Father emphasized “he had been struggling with how
to respond to his children regarding their mother’s actions and
their emotions regarding not having her in their life.”
The juvenile court detained the minors from Father in July
2022. As of August 2022, Father was visiting the minors at his
sister’s home every weekend and speaking to them via video
every day. He was participating in a substance abuse program, a
parenting class, and individual therapy.
At a jurisdiction and disposition hearing in September
2022, Father pled no contest to dependency petition allegations
that the children were at substantial risk of suffering serious
physical harm based on Father’s physical abuse, his history of
substance abuse (including marijuana and alcohol), and his
possession of a firearm. The Department asked the juvenile court
5
to remove the minors from Father’s care and order monitored
visitation. Father requested that the minors be released to his
custody or that he be granted unmonitored visitation, including
weekends and vacations. Counsel for the minors joined in
Father’s requests, with the condition that the juvenile court
should order unannounced visits by Department social workers
and/or drug testing.
The juvenile court ordered the minors removed from
Father’s custody, placed them with Father’s sister S.D. (Aunt),
and authorized monitored day visits between Father and minors
in Aunt’s home. Father was also allowed unmonitored visits in a
neutral or public setting provided he did not drive the minors.4
The juvenile court ordered Father to participate in a full drug
and alcohol program, weekly drug and alcohol testing, a 12-step
program with a court card and sponsor, parenting classes, and
individual counseling.
B. Reunification Period
Between the adjudication and disposition hearing and the
six-month review hearing in April 2023, Father completed a
parenting program, a chemical dependency outpatient program,
and a chemical dependency counseling program. He attended
Alcoholics Anonymous meetings, but he did not have a sponsor.
He tested regularly through January 2023, at which point the
Department reported his testing “ended” as scheduled. Although
4
Although the juvenile court denied Father’s blanket
request for unmonitored overnight and weekend visits, it
indicated it would assess any requests to accompany the children
on extended trips “on a case-by-case basis . . . depending on
where the trip is and who else will be there.”
6
Father never tested positive for alcohol, he consistently tested
positive for marijuana. Father told a Department social worker
he used marijuana to sleep and manage shoulder pain.
Father visited the minors regularly, progressing from
lightly monitored visits, to unmonitored visits in public or neutral
locations, to unmonitored overnight visits. As we shall discuss,
visits were positive and there were no concerns reported until
March 2023.
During the reunification period, Jac.D. showed “great
improvement” while placed with Aunt and initially indicated he
wanted to stay in her home until he finished high school. Jan.D.
and Jo.D. initially did well in the placement, but Aunt notified
the Department shortly before the six-month review hearing that
she could no longer care for them because they would not stop
using marijuana.
Around the end of March 2023, the Department received an
anonymous report that Father was drinking, slurring his words,
and yelling for Jan.D. (who was not at home). Around the same
time, Jac.D. told a social worker he noticed a bottle of alcohol in
his Father’s freezer and was “sure [Father] was drinking again,”
though he did not observe Father to be under the influence of
alcohol during visits. Jan.D. also saw alcohol in Father’s home.
Aunt told a social worker Father admitted to her that he had
been drinking. Aunt also reported “there were weekends when
one of the children would decline to go to [Father’s] for concern of
his drinking or just because they did not want to go.” Aunt’s
7
daughter and the minors’ cousin, J.R., also suspected Father was
drinking again.5
Father denied he had resumed drinking, and a Department
social worker found no sign of alcohol during an unannounced
home visit.
At the time of the six-month review hearing in April 2023,
all three minors indicated they wanted to return home to Father.
Both Jan.D. and Jo.D. were unhappy living with Aunt, and Jo.D.
complained she “was called a snitch for telling [Father] that
[Aunt] [was] aware of his drinking.” Jac.D. retained a strong
bond with Aunt, but he wanted to return to Father’s home so long
as Father was not drinking.
C. Six-Month Review Hearing
The juvenile court held the six-month review hearing in
April 2023. Father asked the court to return the minors to his
custody. Minors’ counsel asked that Jan.D. and Jo.D. be returned
to Father’s care and indicated Jac.D. was “willing to remain” with
Aunt until the end of the school year. The Department’s position
was that the court should keep the children in their placements
and order three more months of reunification services.
Father testified and maintained he had not had a drink
since the June 2022 incident that gave rise to the dependency
proceedings. He claimed he continued to attend Alcoholics
Anonymous meetings and individual therapy.6 He had “no idea”
5
J.R. monitored some of Father’s visits with the minors, but
the record does not indicate whether she lived with Aunt and the
minors.
6
Father indicated these programs were relevant to a
pending criminal matter, but he did not specify whether the
8
why Aunt told a social worker he admitted to drinking. He also
asserted Jan.D. and Jac.D. were lying about having seen alcohol
in his home. Father opined they lied because Jan.D. “say[s] stuff
out of anger”7 and Jac.D. had found “a mother figure” in Aunt.
Father further testified that the June 2022 incident was
attributable to his lack of “skills to cope with” his father’s death
and his mother’s health issues. Through the programs he
completed and in which he was still participating, he had “gained
the skills, tools on how to cope with [his] emotions . . . .” When
asked to elaborate on the skills he learned, Father answered,
“[l]ike that prayer I can’t remember right now. God give me the,
the—I wish I can look it up. To recognize the things I can’t
control and to cope with the things that I can . . . .” The juvenile
court suggested “the prayer [he was] trying to recall [was] the
Serenity Prayer that they recite in A.A. meetings,” and Father
confirmed that it was. But Father could not remember it “word
by word.” Father testified he did not obtain a sponsor in
Alcoholics Anonymous because he did not “feel [he] need[ed] one
because [he] ha[d] so many other things [he was] still doing to
provide [the court] facts and proof that [he was] progressing.” In
addition, Father testified his programs taught him to “try[ ] to
bring patience, strength, wisdom; how to diffuse [sic] situations;
how to talk to [his] children; how to get down to their level; how
criminal matter related to the June 2022 incident or whether his
participation in these programs was pursuant to a court order.
7
Jan.D. did not testify, but her attorney did tell the court
that Jan.D. said her statement regarding Father’s drinking was
made “in anger.”
9
to speak to them and come back as an adult because [he is] their
father; [and] how not to be catastrophic with them.”
After the presentation of evidence, the juvenile court found
Father had made substantial progress on his case plan but
returning minors to Father’s care was unwarranted because
there was a substantial risk it would be detrimental. The
juvenile court reasoned Father “still ha[d] a way to go in his
recovery” because, if his participation in Alcoholics Anonymous
were “genuine,” “he would have been able to recite the Serenity
Prayer which is recited at the start of every meeting.” Moreover,
the juvenile court credited Jan.D. and Jac.D.’s statements
regarding alcohol in Father’s home because they were “looking
forward [to] going back to Father” and “all of a
sudden . . . changed their minds.” The court did not believe the
minors did this “arbitrarily” because “[t]hey are older children
who understand the ramifications of their words.”
The juvenile court retained jurisdiction over the minors and
ordered additional reunification services for Father pending a
status review hearing set to occur six months later.
II. DISCUSSION
Father contends no substantial evidence supports the
juvenile court’s finding that returning the minors to his care
would be detrimental to them. Notwithstanding Father’s
substantial completion of his court-ordered case plan, the juvenile
court was entitled to credit (and did credit) reports by Aunt and
two of the children that Father had resumed drinking. So
credited, no additional evidence to corroborate Jan.D., Jac.D., and
Aunt’s statements was required (see, e.g., In re Lana S. (2012)
207 Cal.App.4th 94, 104), and the trial court had a sound basis
10
for finding that giving Father custody of the minors posed too
great a risk to their safety.
At the six-month review hearing, the juvenile court “shall
order the return of the child to the physical custody of their
parent or legal guardian unless the court finds, by a
preponderance of the evidence, that the return of the child to
their parent or legal guardian would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-
being of the child.” (Welf. & Inst. Code,8 § 366.21, subd. (e)(1).)
The Department bears the burden of proving risk of detriment.
(§ 366.21, subd. (e)(1).)
In determining whether placing a minor with their parent
would be detrimental, the juvenile court considers, among other
things, “the social worker’s report and recommendations[,] . . . the
efforts or progress, or both, demonstrated by the parent[,] . . . and
the extent to which [the parent] availed themselves of services
provided . . . .” (§ 366.21, subd. (e)(1).)
A substantial risk of detriment does not “‘mean merely that
the parent in question is less than ideal, did not benefit from the
reunification services as much as we might have hoped, or seems
less capable than an available foster parent or other family
member.’ [Citation.]” (In re E.D. (2013) 217 Cal.App.4th 960,
965.) However, “[d]etriment can be shown many different ways”
(A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1059), and a
parent’s compliance with his or her reunification plan does not
preclude a detriment finding. (Constance K. v. Superior Court
(1998) 61 Cal.App.4th 689, 704 [holding, with respect to 18-
8
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
11
month hearing, that “[c]ompliance with the reunification plan is
certainly a pertinent consideration,” but “it is not the sole concern
before the dependency court judge”].)
We review a juvenile court’s detriment finding for
substantial evidence. (E.D., supra, 217 Cal.App.4th at 966.)
Father believes the juvenile court’s detriment finding is
unsound because he complied with his case plan and maintained
consistent, unproblematic visitation with the minors—who
wanted to return to his care. Notwithstanding Father’s efforts to
comply with court-ordered services, substantial evidence still
supports the juvenile court’s determination that there remained a
substantial risk of detriment to the minors. Both Jan.D. and
Jac.D. told a social worker they saw alcohol in Father’s home and
Aunt reported Father disclosed he was drinking again. And
given Father’s history, this was a serious concern.
Father counters that these statements from multiple
sources are negated by other evidence (or, more precisely, the
lack thereof): the absence of any positive tests for alcohol use, no
statements by the minors that they observed him under the
influence, and no report from social workers who inspected his
home that they observed alcohol. The juvenile court, however,
provided a compelling rationale for its decision to credit Jan.D.
and Jac.D.’s statements regarding alcohol in Father’s home.
Both were previously eager to return to Father’s care—indeed,
they still wanted to return to Father’s care—and neither child
had any apparent motive to lie. In addition, Father’s evidence
that he did not resume drinking in March 2023 is just of snapshot
quality, proving only that he was not drinking at specific points
12
in time and in no way refuting the testimony the juvenile court
credited.9
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
KIM, J. LEE, J.*
9
The record indicates Father’s negative tests for alcohol use
continued to January 2023 but the statements the juvenile court
relied on suggesting Father had resumed drinking were all made
weeks later, in March 2023. The fact that the minors never saw
Father under the influence of alcohol proves only that he was not
drinking heavily just before or during visits. And the fact that a
single home inspection did not reveal evidence that Father had
resumed drinking is not especially probative; the juvenile court
could reasonably conclude Father had alcohol in the home at
other times or the social worker may not have discovered alcohol
that was present at the time of the inspection.
*
Judge of the San Bernardino County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
13