In re M.J. CA1/3

Filed 5/30/13 In re M.J. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re M.J. et al., Persons Coming Under the
Juvenile Court Law.
SOLANO COUNTY HEALTH AND
HUMAN SERVICES DEPARTMENT,
A136443
Plaintiff and Respondent,
v. (Solano County
Super. Ct. Nos. J41469, J41470)
M.J.,
Defendant and Appellant.
Father appeals from the jurisdictional and dispositional orders declaring his
thirteen-year-old daughter and five-year-old son dependent children and removing them
from his custody. He contends there is no substantial evidence to support the orders and
that the court abused its discretion in ordering supervised visitation. We affirm.
Factual and Procedural History
On May 15, 2012, the Solano County Health and Human Services Department
(the department) filed a juvenile dependency petition alleging there was a substantial risk
the children would suffer serious physical harm or illness as a result of the following
allegation: “The father . . . abuses controlled substances including but not limited to
marijuana, methamphetamine, and alcohol in the presence of the children. Additionally,
the children have been exposed to the presence of potentially harmful items such as drug
paraphernalia, baggies and the presence of an unknown substance, likely ecstasy, on the
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bed where the [son] often sleeps. Such conditions endanger the physical and emotional
health of the children.”1 The children were ordered detained on May 16. Daughter was
allowed to continue living at a family friend’s home with whom she had been living
voluntarily since before the petition was filed. The son was placed in a foster home.
On June 14, 2012, the department submitted its jurisdictional/dispositional report.
The report includes a criminal history for father that indicates he was arrested in January
2010 for driving under the influence (DUI) and possession of a controlled substance. He
was sentenced to four days in jail and placed on probation. He was ordered to complete
a nine-month first offender DUI program as a term of his probation, but as of the time of
the filing of the report, he had not completed the program.
Mother told the social worker that she had been snorting methamphetamine for
approximately two and a half years and began ingesting ecstasy in 2010. She sometimes
used methamphetamine on a daily basis. She used ecstasy and drank beer occasionally.
She denied smoking marijuana. She acknowledged that the older sibling found empty
methamphetamine baggies in the laundry room of the home in 2011 and 2012 and that
she left ecstasy pills on her bed but denied that she left the drug on her son’s bed.
Mother denied that there was any other drug paraphernalia around the home. She
believed she could care for the children when under the influence of drugs and did not
believe that the children were ever at risk of emotional or physical harm. She reported
that father drank alcohol rarely and had not been drunk in several years. He began using
methamphetamine because she used the drug. He kept the alcohol and marijuana locked
in a shed outside of the home.
Father told the social worker that he had been smoking marijuana for four years.
He denied using ecstasy and could not recall when he last used methamphetamine. He
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The petition also alleged mother abused controlled substances, that the parents have
engaged in domestic violence, and that the children’s older half-sibling was physically
abused by father. The court sustained the allegation regarding mother’s substance abuse
but struck the remaining allegations regarding domestic violence and father’s physical
abuse of the sibling. Mother has not filed an appeal challenging the jurisdictional finding
with respect to her drug abuse.
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denied also being drunk in over two years but acknowledged that the children may have
seen him drink alcohol. He reported that he keeps his alcohol and marijuana locked in a
shed outside of the home and denied that his children have ever been exposed to drugs
or drug paraphernalia. He acknowledged that he was not always aware when mother
was using drugs but believed she was capable of caring for the children under the
influence of drugs and did not believe the children were at risk of emotional or physical
harm. He did not believe he had a drug abuse problem but felt that mother did.
Daughter denied knowing whether her father used methamphetamine. At the time
of her detention, she reported that “her father has had a history of alcohol abuse [and]
has relapsed for ‘about the last year.’ ” She reported seeing him under the influence of
alcohol and that he smokes “ ‘a lot of marijuana.’ ” She described her home as “chaotic”
and reported that there was a lot of fighting in the home. She stated that “for these
reasons she has asked her mom to leave her father” and that is “why she has continued
to reside out of the home.” When interviewed for the jurisdictional report, daughter
denied ever seeing her father drink alcohol, but she knew that he did because she saw
alcohol around the home. She had seen him smoke marijuana and had seen his pipes and
bongs near the shed outside of the home. Daughter also did not know if her mother had
used methamphetamine recently and had never witnessed her use drugs but found
baggies filled with a white, salt-like substance in her room and found her to be “jumpy”
at times.
The report indicated that on May 23, 2012, parents had been referred for substance
abuse, counseling, and parenting services, but father had not engaged in any of the
services to which he had been referred. Father takes “little responsibility” for his role in
the problems in the home and instead blamed everyone else, including the older brother,
mother, the department, and the police, for the problems. The social worker believed that
father had to engage in services and gain insight into the problems in the home before it
would be safe to return the children to his custody.
Prior to the contested jurisdictional hearing, the department filed a confidential
addendum report. Attached to this report was father’s hair strand drug test result from
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July 24, which was positive for marijuana at 3.25 pg/mg, amphetamine at 616 pg/mg, and
methamphetamine at 13,772 pg/mg.
At the hearing, the social worker testified that on July 24 she asked father to
submit to drug testing by hair strand and urine sample, but he refused to supply a urine
sample. She also testified that based on prior experience with drug test results, she
believed that a positive hair strand test for methamphetamine at levels of over 13,000
pg/mg was “very high.” She explained that a positive drug test by hair strand indicates
drug use within 90 days of the date of the test.
After receiving the test results, the social worker referred father for a substance
abuse assessment, and he had participated in the assessment. The substance abuse
counselor recommended that father attend substance abuse treatment wait-list groups,
Matrix substance abuse groups, and three NA/AA meetings per week. Father had begun
participating in all of these services. The social worker believed the children remained at
substantial risk of serious physical harm because of father’s positive hair strand drug test
for significant levels of methamphetamine and because he refused to comply with the
urine drug test. She was also concerned about the risk that father’s ongoing substance
abuse posed to the children's safety given father’s lengthy history of substance abuse and
relapse.
The social worker indicated that she was less concerned about father’s marijuana
use since he had a cannabis card but also acknowledged that she did not know whether
father had disclosed his substance abuse history to the physician who prescribed him
marijuana and provided him with the cannabis card.
The paternal grandfather also testified at the hearing. He testified that in 1990 or
1991, he and father were arrested for drunk driving. After participating in substance
abuse treatment for six months, father was sober for about 18 years. Although father
began drinking again four years ago, he had not seen him noticeably intoxicated on
alcohol or drugs during the last four years. Father had, however, acknowledged that “he
was drinking and gambling.”
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After hearing closing arguments by counsel, the court found allegations regarding
parents’ substance abuse to be true by a preponderance of the evidence. With regard to
father’s substance abuse, the court commented: “I realize dad thinks he’s got this
somewhat under control, but if it leads to a situation where you got multiple baggies of
crank in the house, no matter who left them there, because you’re both [responsible] to
protect the kids. We’ve had too many cases where a kid picks up a bag of crank. . . .
Everybody’s got to be sober enough to protect [the] kids from these sorts of things.”
On August 15, the juvenile court held the continued contested disposition hearing.
The court found that removal of the children from both of the parents’ custody was
supported by clear and convincing evidence. The court provided father with family
reunification services, including supervised visitation.
Discussion
1. Jurisdictional Order
Father contends that there was no substantial evidence supporting the juvenile
court’s finding under section 300, subdivision (b) that he has a substance abuse problem
or that his use of methamphetamine or alcohol poses a substantial risk of harm to his
children. Father acknowledges that substantial evidence supports the jurisdictional order
based on the uncontested findings of mother’s substance abuse, and that therefore any
decision we might render on the allegations involving him will not result in a reversal of
the court’s jurisdictional order. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492 [“[I]t is
commonly said that a jurisdictional finding involving one parent is ‘ “good against
both.” ’ ”].) He argues, however, that we should exercise our discretion to address his
challenge because the erroneous finding regarding his conduct “may gravely affect [him]
and/or his children” in the future. Among other things, he argues that if the court had
dismissed the allegations against him, he could be deemed a “nonoffending” parent for
purposes of custody and placement under section 361, subdivision (c). 2 Because section
2
Section 361, subdivision (c) provides: “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
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361, subdivision (c) treats offending and non-offending custodial parents somewhat
differently during the dispositional phase of dependency proceedings, we will consider
father’s challenge to the jurisdictional order.
In reviewing the jurisdictional findings of the juvenile court, “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 Heather A. (1996) 52 Cal.App.4th 183, 193.) “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.) If supported by substantial evidence, the judgment or
findings must be upheld, even though substantial evidence to the contrary may also exist
and the juvenile court might have reached a different conclusion had it determined the
facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212,
228; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
Initially, father argues that there is no evidence that he had a problem with
substance abuse. While he acknowledges using alcohol, marijuana and
convincing evidence of any of the following circumstances listed in paragraphs (1) to (5)
. . . [¶] (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 or guardian's physical
custody. The fact that a minor has been adjudicated a dependent child of the court
pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or guardian with whom
the minor resided at the time of injury. The court shall consider, as a reasonable means to
protect the minor, the option of removing an offending parent or guardian from the home.
The court shall also consider, as a reasonable means to protect the minor, allowing a
nonoffending parent or guardian to retain physical custody as long as that parent or
guardian presents a plan acceptable to the court demonstrating that he or she will be able
to protect the child from future harm.”
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methamphetamine, he denies abusing them. Substantial evidence, however, supports the
court’s factual finding that he had a substance abuse problem. The record establishes that
about four years ago, after a substantial period of sobriety, father began using
methamphetamine, alcohol and marijuana on a regular basis. During that time he suffered
a DUI conviction, but failed to complete the terms of his court-ordered treatment
program. The paternal grandfather testified that he knew father had started drinking again
because about that time “there were numerous family problems. [He] was getting calls
from [mother] and having discussions with [father] where he acknowledged that he was
drinking and gambling.” The counselor at the drug treatment program to which the
department referred father apparently agreed that his use was problematic and
recommended treatment.
Father also argues that there is no substantial evidence to support the finding that
his substance abuse puts the children at substantial risk for serious physical harm. The
social worker testified, however, that father’s drug abuse negatively impacts his
decisionmaking and places the children’s safety at risk. Contrary to father’s argument, the
record contains numerous examples of dangerous behavior that, as confirmed by the
grandfather, seem to correspond with the end of father’s sobriety.
Despite knowing that mother was abusing methamphetamines, father believed that
she “could normally care for the children even if she was under the influence of drugs.”
He told the social worker that he “did have concerns about [mother] driving with the
children while under the influence of drugs” but that she would call him “when she felt
she could not drive.” Although he claimed his children have never been exposed to drug
paraphernalia or drugs in his home, the mother acknowledged using drugs in the home
and that she had left baggies and drugs where they were accessible to the children.
Allowing his children to remain in the care of their mother, despite his clear knowledge
of her drug abuse, places his children at substantial risk of physical harm.
Likewise, although the court did not sustain the allegations in the complaint
regarding father’s domestic violence towards mother and physical abuse of the children’s
older sibling, that evidence nonetheless supports the social worker’s opinion that father’s
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drug abuse is placing the children at risk. Evidence was presented that father was arrested
for domestic violence in 2009, after he began drinking again. The social worker’s report
shows that two referrals were made to the department prior to the filing of the present
petition as a result of the fighting between mother, father and the older sibling. The report
indicates that despite living in the neighborhood for 10 years, the problems had begun
within the last eight months. Finally, when initially interviewed by the social worker,
daughter reported that the situation in the home was “chaotic” and that there was “a lot of
‘fighting’ in the home.” She reported that because of her father’s substance abuse, she
asked her mother to leave her father and moved out of the home. Taken together, this
evidence further supports the trial court’s finding that father’s drug abuse places the
children at risk of serious physical harm.
Contrary to father’s argument, the fact that mother moved out of the home before
the jurisdictional hearing does not eliminate the current danger his drug abuse poses to
the children. As demonstrated by the above evidence, father’s drug abuse compromises
his judgment. His continuing denial of a drug problem may reasonably be taken to reflect
that his judgment remains compromised and his children remain at risk.
2. Dispositional Order
A child may not be removed from a parent or guardian unless there is clear and
convincing evidence of “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 or guardian’s physical custody.” (§ 361,
subd. (c)(1).) In determining whether a child may be safely maintained in the parent’s
physical custody, the court may consider the parent’s past conduct and current
circumstances, and the parent’s response to the conditions that gave rise to juvenile court
intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) A trial court’s removal
order is reviewed under the substantial evidence standard of review, notwithstanding the
evidentiary standard used at trial. (In re Heather A., supra, 52 Cal.App.4th at p. 193; see
also In re E.B. (2010) 184 Cal.App.4th 568, 578 [“The clear and convincing standard was
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adopted to guide the trial court; it is not a standard for appellate review. [Citation.] The
substantial evidence rule applies no matter what the standard of proof at trial.”].) In this
case, father’s drug abuse in conjunction with his lack of insight as to the impact his drug
use has on his children, as detailed above, constitutes substantial evidence supporting the
removal order.3
Disposition
The jurisdictional and dispositional orders are affirmed.
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
3
Because we have upheld the jurisdictional findings and the removal order, we need not
consider father’s remaining argument that as a “non-offending” parent it was an abuse of
discretion to impose supervised visitation.
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