In re C.R. CA2/8

Filed 8/28/14 In re C.R. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re C.R. et al., Persons Coming Under the B253325
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK01427)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CRISTOBAL R.,
Defendant and Appellant.
Appeal from orders of the Superior Court of Los Angeles County. Patricia S.
Spear, Judge. Affirmed.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
******
Father Cristobal R. appeals from the juvenile court’s orders at the December 2013
jurisdiction and disposition hearing declaring his two minor sons, Ch.R. and Ca.R., to be
dependents pursuant to Welfare and Institutions Code section 300, subdivision (b)1 and
removing them from his custody. Father contends there is no substantial, credible
evidence supporting either order. We are not persuaded and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2013, two officers from the Los Angeles Police Department
responded to father’s apartment building, pursuant to a dispatch call that the apartment
manager for the building had reported that father assaulted him. During their initial visit,
the officers spoke with the apartment manager (Emilio Z.) but father could not be located
on the premises. Emilio Z. explained he had asked father to turn down his music because
other residents had complained, and father punched him twice on the side of his head.
Emilio Z. also reported that residents of the building believed father sold narcotics from
his apartment. The officers left and then returned to the building a couple of hours later
in response to a second dispatch call, reporting father had committed another assault or
made threats, and was back in his apartment.
The officers returned to the apartment building and spoke again with Emilio Z.
They also spoke with Omar Z. who reported he had confronted father about his battery on
Emilio Z. earlier in the day and an altercation ensued. Emilio Z. and Omar Z. directed
the officers to apartment 964. As they approached the apartment, father was at the door
and appeared to be leaving. When he saw the officers approaching, he stepped back
inside and closed the metal screen door. He refused to come outside and told the officers
“I am not opening the door for the police.” Both Ch.R. (age 8) and Ca.R. (age 4), were
standing next to father, “crying hysterically.”
The officers made several attempts to persuade father to step outside peaceably.
Father finally complied and came out with his two boys and the family dog. The police
1 All further undesignated section references are to the Welfare and Institutions
Code.
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officers immediately detained father and advised he was being detained in connection
with their investigation of the alleged battery complaint. A young woman, who told the
officers her name was Ebony J., was also in the apartment. Father told her to take the
dog back inside. She did so, and also opened the front door to the apartment and allowed
the officers to come inside.
Ebony J. told the officers she lived in the apartment with father, and that she was
concerned for the safety of the boys as there were narcotics and a gun inside the
apartment. She took a jar from a lower kitchen cabinet containing a green leafy
substance that appeared to be marijuana and handed it to the officers. The officers
searched the apartment and found a second large jar of what appeared to be marijuana
(also from inside a lower kitchen cabinet), a prescription pill bottle with the patient name
of “Kevin Douglas,” two baggies containing a crystal-like substance that appeared to
methamphetamine, a pump action shotgun in a black case (from behind the bedroom
door), several shotgun rounds and a loaded magazine, two boxes of handgun ammunition,
two digital scales, and a black baton.
Ch.R. and Ca.R. are father’s children with his former girlfriend, Lisa B.
Following a telephone call by Ebony J., Lisa B. came to the apartment and picked up the
boys. Father was taken to the police station to be booked.
Father was arrested on a charge of misdemeanor child endangerment. (Pen. Code,
§ 273a.) The arresting officers recommended additional charges be filed against father
for battery, felon in possession of a firearm, and several drug possession charges. The
police officers also referred the matter to the Los Angeles County Department of
Children and Family Services.
A Department social worker interviewed Lisa B., the children’s mother, as well as
Ch.R. and Ca.R., at mother’s home on September 10, 2013. Mother explained she does
not know who Ebony J. is, but felt she was helpful in making sure mother knew to come
pick up the boys and ensuring they were safe. Mother explained the boys lived with her
but there was a family court order, in effect since December 2012, allowing father
visitation with the boys on the first, third and fifth weekends of each month. Mother said
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she was distressed by the events of September 1 and had gone back to family court to
obtain a temporary emergency order which precluded any visitation with father pending
the juvenile court hearing.
Mother told the social worker she believed that after father was released from
custody, he was arrested again for assaulting or threatening Ebony J. Father had called
mother after his release and was yelling and threatening her over the phone, and she
could hear him yelling at another woman in the background who she believed to be
Ebony J. The social worker completed an inmate locator search which indicated father
was arrested on September 1, released on September 5, was re-arrested approximately
five hours later for making criminal threats, and then was released again on September
10, 2013.
Mother denied father ever physically hit her, but she said he did throw things and
yelled a lot. Mother said she had no idea what was going on at father’s house, but she
knew him to have a long history of drug use, arrests and violent behavior.
Both of the boys denied any abuse by father or mother and appeared “clean,
healthy and well-groomed.” The younger boy, Ca.R., did not appear to understand what
drugs were. His responses to the social worker were somewhat incoherent, but he did
appear to confirm seeing “a gun in daddy’s bag.” Ch.R., the older boy, denied ever
seeing any guns or drugs, and said he liked visiting his dad’s apartment on the weekends,
and missed his dog that lived there.
When father was interviewed by the social worker on September 17, he reported
the district attorney was not going to be filing any charges against him. As for the
battery, he admitted “I socked him,” but claimed it was self-defense after he got into an
argument with the victim over threats to turn off the electricity to his apartment. As for
the gun and drugs, father said the police searched the “wrong apartment.” He said he
lived at apartment 964 and that is where the police found him and arrested him, but they
apparently searched 968, as reflected in their reports. Father denied owning or having
any firearms or illegal drugs in his home, and claimed Ebony J. “found the apartment
building keys on the ground” and let the police into apartment 968, instead of 964 where
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he actually lived. Father said Ebony J. was a girl he had known only briefly, and she had
stayed at his apartment a couple of days but did not live there.
Father admitted he used to be addicted to crack cocaine and that he has a long
history of drug-related criminal offenses. But, he said he does not currently use illegal
drugs and agreed to drug testing. Father also explained he was diagnosed with bipolar
disorder but is not currently on any medication or receiving any mental health treatment.
The Department filed a petition pursuant to section 300, subdivision (b). The
Department alleged father had created a “detrimental and endangering home
environment” for the boys by allowing illicit drugs, a shotgun and ammunition to be in
the home, within easy access of both children, thus placing them at substantial risk of
harm. The Department also alleged, in a separate count (paragraph b-2), that father
suffered from mental and emotional problems, including bipolar disorder, which rendered
father incapable of providing proper care and supervision of the boys.
At the detention hearing on September 20, 2013, the juvenile court found mother
was nonoffending, the Indian Child Welfare Act did not apply, and father was the
presumed father. The court further found a prima facie case to detain both Ch.R. and
Ca.R. pursuant to section 300, subdivision (b), and to remove the boys from father’s
custody. The boys were released to mother. Father was allowed monitored visitation
twice weekly.
In the jurisdiction and disposition report, Dana Wilson, the dependency
investigator (DI), reported that father’s monitored visitation with the boys had gone well
since the detention hearing. Both father and mother were cooperative with the
Department. But, DI Wilson stated that father “does not seem to be forthcoming
regarding the illegal activity in his home.”
Father reported he filed an administrative complaint with the Los Angeles Police
Department regarding his false arrest on September 1, 2013. Father also provided
DI Wilson with paperwork, including a letter from the district attorney declining to file a
case against him for the September 1 incident, a mental health assessment form dated
September 26, 2013, describing father as presently stable and not in need of medication,
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and a certificate of completion from the Los Angeles Transitional Center for a drug and
alcohol program. Father explained he had been sober since 2007 when he completed the
drug rehabilitation program. Father said he did smoke medical marijuana pursuant to a
valid prescription, but denied he sold or took any illicit drugs. He again denied owning
any firearms.
Father also said he had enrolled voluntarily in a parenting class and individual
counseling. Father believes he is a good parent, and he thinks mother is also a good
parent who takes good care of the boys.
Mother said she was extremely worried about the situation, and just wanted her
children to be safe. She said she believed father normally took good care of the children
when they visited, but she did not know everything about “his personal life.” Mother
said father has anger management issues and the “situation scare[s] her.” Mother
believes the children are “very attached” to father.
DI Wilson spoke to the deputy district attorney regarding the criminal charges
filed against father, who advised that because the police officers had not obtained a
search warrant for the apartment, it was determined the illegal drugs and shotgun would
not be admissible and therefore the charges had to be dismissed.
In a last minute information form filed with the court, the Department reported
that father had called the social worker to express his “dissatisfaction” with the
jurisdiction and disposition report. Father reiterated his concern that no one had
investigated the fact that police identified two different addresses as his apartment,
including 968½, which does not even exist as an apartment address at his building.
Father stated he never put his boys in danger and would never do so and just wanted his
boys back.
Father filed written objections to the hearsay statements contained in the
Department’s reports.
The combined jurisdiction and disposition hearing proceeded on December 12,
2013. At the beginning of the hearing, the court admitted the Department reports, which
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included, among other documents, copies of the arrest report for the September 1
incident, and the property report related to the items recovered and taken into evidence.
Father testified. He stated he lived in apartment 964, not 968 or 968½, and
unequivocally testified he was in apartment 964 when the police officers arrived and that
was the location where he was arrested. Father said he initially refused to come out to
speak with the officers because his boys were in the apartment. He said he assumed the
officers were there because of the punching incident, and he was contacting mother so
she could pick up the boys. Father said they were “already freaking out” because the
officers had been “banging and yelling” so he wanted to make sure mother got them
away from the situation.
Father said he did not see the officers enter his apartment, or see what apartment
they went into, because as soon as he went outside, the police handcuffed him and placed
him in their patrol car. He said a mother and son live in apartment 968, and he does not
have keys or access to that apartment. Father verified copies of various documents
identifying his residential address as apartment 964, including a cable bill, his car
registration, a Medi-Cal document, his rental agreement, and a notice from the Los
Angeles County Department of Public Social Services. The documents were admitted as
evidence, along with several photographs father produced showing the front entrance
gates at his apartment building.
Father admitted he had been diagnosed in prison in 1992 as suffering from bipolar
disorder, but testified he had not been on medication for years and had recently been
assessed as stable and not in need of medication. Father also testified he did not own any
guns, never let his boys have access to firearms, and never used drugs around them.
Following argument by all counsel, the court dismissed the paragraph b-2
allegation (father’s mental health/failure to supervise) in the interests of justice. Finding
a preponderance of evidence supported the determination that the shotgun and illegal
drugs were recovered from father’s residence, the court sustained these allegations: “On
09/03/2013 and on prior occasions, [father] created a detrimental and endangering home
environment for the children in that methamphetamine, marijuana, a firearm and
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ammunition were found in the children’s home, within access of the children. Such a
detrimental and endangering home environment established for the children by the father
endangers the children’s physical health and safety, creates a detrimental home
environment and places the children at risk of physical harm, damage and danger.”
The court further found that clear and convincing evidence supported removal of
Ch.R. and Ca.R. from father’s custody. The boys were placed with mother, who was
nonoffending and willing to submit to the court’s jurisdiction. The Department was
ordered to provide mother with assistance, including transportation assistance with
respect to the monitored visitation for father and counseling for the children. Father was
ordered to have monitored visitation with a Department-approved monitor, and the
Department was granted discretion to liberalize visitation. Father was also ordered to
complete anger management and parenting courses, as well as individual counseling.
The Department was to investigate whether the programs father had voluntarily initiated
were Department-approved programs. The court ordered, with father’s express consent
on the record, that the social worker could make unannounced visits at father’s residence
to determine whether any drugs or guns were in the home.
This appeal by father followed.
DISCUSSION
1. The Jurisdiction Order
Father contends there is insufficient evidence supporting the court’s assertion of
jurisdiction over his two minor sons. “The standard of proof at the jurisdictional stage of
a dependency proceeding is a preponderance of the evidence, and we will affirm the
court’s findings if they are supported by substantial evidence.” (In re Mariah T. (2008)
159 Cal. App. 4th 428, 438; accord, In re I.J. (2013) 56 Cal. 4th 766, 773 [“ ‘ “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.” ’ ”]; and In re Heather A. (1996)
52 Cal. App. 4th 183, 193.) The record supports the juvenile court’s assertion of
jurisdiction pursuant to section 300, subdivision (b).
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Section 300, subdivision (b)(1) allows a court to assert dependency jurisdiction
over a child who “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.” As the Supreme Court recently
explained, “section 300 does not require that a child actually be abused or neglected
before the juvenile court can assume jurisdiction. The subdivisions at issue here require
only a ‘substantial risk’ that the child will be abused or neglected. The legislatively
declared purpose of these provisions ‘is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’ [Citation.]” (In re I.J.,
supra, 56 Cal.4th at p. 773.)
Creating a home environment in which a four-year-old and an eight-year-old have
ready access to a loaded shotgun, as well as illegal drugs, falls well within the purview of
section 300, subdivision (b). Because of the conditions in father’s home, both boys were
placed at risk of serious harm, including, but not limited to, the possible misuse of a
firearm or the ingestion of illicit drugs. (In re Rocco M. (1991) 1 Cal. App. 4th 814, 825-
826 [juvenile court entitled to infer that child 11 years of age is subjected to substantial
risk of harm when placed in a home environment allowing access to drugs].)
Father primarily contends there was no credible evidence the gun, ammunition and
illegal drugs were found in his residence because the police reported they were found in
apartment number 968 or 968½, not 964 where he lived, including the consent form
signed by Ebony J. to search the apartment, and one page of the narrative portion of the
arrest report. But, the first page of the arrest report, the property report and the receipt for
property taken into custody form all identify apartment 964 as the location of the arrest
and the apartment in which the items were recovered by the officers. The different
addresses in the police reports are immaterial, in view of the undisputed facts, which are
these: The evidence showed the manager called police to report father had battered him;
police responded; father initially refused to open the door, then did so, and was arrested
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and taken into custody. In addition to the children, a woman named Ebony J. was in the
apartment, and the children were hysterical. Ebony J. permitted the officers to enter and
signed a consent to search. She also told the police that father was a drug dealer, and the
police found the contraband. The district attorney declined to prosecute only because
father did not consent to the search, and there was no search warrant. It is also
undisputed that father was a drug addict in the past and has a long history of drug-related
felonies and incarcerations. Regardless of whether the gun and drugs belonged to father,
it is undisputed father punched the manager, resulting in a police response, and he was
taken into custody from an apartment in which he resided and where the children visited
him, and where the contraband was found, most of it within easy reach of the children.
Father’s arguments that there was no evidence he knew there was contraband simply ask
us to reweigh the evidence by accepting his denial as true and ignoring all the contrary
evidence.
The juvenile court reasonably rejected as implausible father’s explanation for how
the officers purportedly gained access to, and searched, apartment 968, instead of 964.
Father initially told the social worker that Ebony J. found the apartment building keys
lying on the ground and let the officers into apartment 968. Father did not repeat this
claim during the adjudication hearing, and offered no alternative explanation for how the
officers would have gained access to the apartment of another tenant.
Relying on In re J.N. (2010) 181 Cal. App. 4th 1010, father also argues that even if
the gun and drugs were in his home, the circumstances presented a “one-time incident”
that did not support the assertion of jurisdiction. The facts below are nothing like In re
J.N. There, a mother and father were involved in one incident of driving under the
influence with their minor children in the car. While all parties agreed the incident was
serious and resulted in a car accident, there was no evidence either parent had a history of
alcohol abuse, both parents exhibited extreme remorse for the occurrence and cooperated
with programs, and there was no other evidence of neglect or abuse. On such a record,
the court reversed the juvenile court’s exercise of jurisdiction over the minor children.
(Id. at pp. 1022-1027.)
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In reversing the jurisdictional findings, In re J.N. explained “[i]n evaluating risk
based upon a single episode of endangering conduct, a juvenile court should consider the
nature of the conduct and all surrounding circumstances. It should also consider the
present circumstances, which might include, among other things, evidence of the parent’s
current understanding of and attitude toward the past conduct that endangered a child, or
participation in educational programs, or other steps taken, by the parent to address the
problematic conduct in the interim, and probationary support and supervision already
being provided through the criminal courts that would help a parent avoid a recurrence of
such an incident. The nature and circumstances of a single incident of harmful or
potentially harmful conduct may be sufficient, in a particular case, to establish current
risk depending upon present circumstances.” (In re J.N., supra, 181 Cal.App.4th at
pp. 1025-1026, italics added.)
Even if it were fair to characterize the facts here as presenting a “one-time
situation” (and we do not), In re J.N. supports the court’s exercise of jurisdiction. Given
the totality of the circumstances presented below, a preponderance of evidence supported
the court’s finding the boys were at substantial risk of injury in father’s home. In
addition to the shotgun, ammunition and illegal drugs kept in areas easily accessible to
both boys, there was the statement from Ca.R. confirming “a gun in daddy’s bag”;
mother’s reports of father’s volatile behavior, and propensity to act out in anger, yell and
make verbal threats; father’s admission that on the day of his arrest he had in fact
punched a man in the face; the reports by Emilio Z. and Omar Z. that father had exhibited
hostile and assaultive behavior with both of them; and father’s admitted past history of
drug abuse.2 Moreover, father’s apparent lack of insight into the problems he allowed to
2 To the extent some of the evidence came from hearsay statements in the
Department’s reports, father’s written objections did not render such evidence
inadmissible. The statements could be considered by the court in conjunction with other
legally admissible, corroborative evidence. (§ 355; see also In re Christian P. (2012)
207 Cal. App. 4th 1266, 1277-1278; In re B.D. (2007) 156 Cal. App. 4th 975, 984 [timely
objections do not render hearsay statements inadmissible, rather the uncorroborated
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exist in his home (evidenced by his continued denial of ownership of the gun and drugs
without any plausible explanation for their discovery in his home), provided further
support for the potential of future risk. (See In re Gabriel K. (2012) 203 Cal. App. 4th
188, 197 [“One cannot correct a problem one fails to acknowledge.”].)
2. The Removal Order
Father contends the court’s order removing the children from his custody is also
not supported by substantial evidence. In examining father’s claim, “we review the
record in the light most favorable to the dependency court’s order to determine whether it
contains sufficient evidence from which a reasonable trier of fact could make the
necessary findings by clear and convincing evidence.” (In re Mariah T., supra,
159 Cal.App.4th at p. 441; accord, In re Heather A., supra, 52 Cal.App.4th at p. 193.)
Given the evidence discussed above, the record contains substantial evidence in support
of the court’s removal order.
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J.
FLIER, J.
hearsay statements do not constitute substantial evidence and cannot form the exclusive
basis for finding jurisdiction under section 300].)
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