In re A.C.
Filed 6/14/13 In re A.C. CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT
In re A.C., a Person Coming
Under the Juvenile Court Law.
B243857
(Los Angeles
County
Super. Ct.
No. CK 93135)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
RAUL C.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Terry Truong, Juvenile Court Referree. Affirmed.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Peter Ferrera, Deputy County Counsel, for Plaintiff and Appellant.
Andrea R.
St. Julian, under appointment by the Court of Appeal, for Defendant and
Appellant.
* * * * * *
Raul C.
(father) appeals from the court’s jurisdictional and dispositional order,
contending that substantial evidence
did not support the court’s exercise of jurisdiction and its refusal to place
his son, A.C., with father, who was the nonoffending, noncustodial parent. The Los
Angeles County Department of Children and Family Services (DCFS) also
appeals, arguing the court erred in dismissing certain allegations against
Mariela G. (mother). Mother has not
appealed. We affirm.
factual
and procedural background
Father and
mother never married. Mother has one
child, A.C., with father and another child, A.A., with another man. Because father is not the parent of A.A.,
this appeal relates only to A.C.
Maternal grandmother, Agustina A., has cared for A.C. since birth and
has helped mother raise him. Mother and
her children have always lived with Agustina.
A.C. is legally blind. At the
time of the present referral, A.C. was 13 years old.
The family
has three prior referrals with DCFS. In
July 2006, the referral alleged general neglect of A.C. by mother. The investigation was inconclusive. In March 2008, the referral alleged general
neglect of A.C. and A.A. by mother. The
allegations were substantiated, and DCFS placed the children with
Agustina. Mother told DCFS that she had
a recent history of using methamphetamine and a criminal history, and she
admitted to allowing the children to be around maternal aunt, Marissa G., who
had an open DCFS case because of drug and criminal activity. The family received voluntary maintenance and
reunification services from April 2008 to January 2011. In September 2009, the third referral alleged
A.C. and A.A. were at risk of general neglect by an unknown perpetrator. The caller did not suspect abuse/neglect by
Agustina, with whom the children resided, but the caller was concerned that
Agustina was overwhelmed because she was caring for A.C., A.A., and three other
children. The investigation concluded
the allegations were unfounded.
Mother was
incarcerated in June 2011 for a drug-related charge and parole violation. When she was incarcerated, mother gave
temporary custody of A.C. and A.A. to Agustina.
A.C. came to the attention of DCFS most recently on or about March 23, 2012, when police officers
stopped maternal uncle, Adam A., while he was driving. The passengers of his car included Marissa,
two of Marissa’s children, Agustina, A.A., and an adult male. A.C. was at home with other relatives. The officers stopped the vehicle because Adam
did not use a turn signal and the officers could see children inside who were
not properly restrained. When the
officers approached the vehicle, they saw Adam pass a bag containing suspected
narcotics to Marissa, who then concealed the bag in her pants below her
stomach. The officers smelled a
marijuana odor emitting from the vehicle and detained Marissa and Adam to
conduct an investigation. The officers
found on Marissa one bag of suspected methamphetamine, two bags of suspected
cocaine, and one bag of suspected marijuana.
They also recovered a burnt marijuana cigarette from the dashboard
ashtray. They arrested Marissa and Adam
for possession of a controlled substance for sale, transportation of a
controlled substance, and child endangerment.
After they advised Adam of his Miranda
and went by the moniker “Demon.†He said
he had been addicted to methamphetamine for more than 10 years and was out on
bail for a case involving gun possession and sale of narcotics. He had last used methamphetamine five days
prior. After the officers advised
Marissa of her Miranda rights, she
told them the drugs belonged to her for personal use. The officers took Marissa and Adam to the
station for booking and released the vehicle and the children to Agustina.
DCFS filed
a petition on behalf of A.C. and A.A. on April 20, 2012, making a single
allegation under Welfare and Institutions Code section 300, subdivision (b),
physical harm as a result of mother’s failure to adequately supervise or
protect them, i.e., leaving them in the care of Marissa and Adam. The juvenile court found a prima facie case
for detaining the children. A.C. stated
that he did not want to be removed from Agustina’s home. The court detained A.C. in shelter care
pending the results of a prerelease investigation of Agustina.
DCFS filed
an amended petition on May 24, 2012, adding allegations that both mother and
father had a history of abusing methamphetamine, placing A.C. at risk of harm,
and father also had a history of mental problems, rendering him incapable of
providing regular care and supervision.
The
adjudication hearing was scheduled for June 5, 2012, and then continued to July
23. At the time of the
jurisdiction/disposition report, A.C. had been placed back with Agustina. A.C. reported that mother was incarcerated
and he thought she had drugs, but he was not sure. He had not seen anyone use drugs. He was not in the car when the officers pulled
over Marissa and Adam. He did not often
go out because of his vision problems.
A.C. did not recall the last time he had seen father and said father
“really hasn’t been with [him] much.â€
A.C. wanted to stay with Agustina and continue attending his current
school, where he enjoyed his “special classes.â€
A.C. is in special education classes due to his vision impairment and
also a speech impairment. Although he
did not want to move in with father, he said he felt safe being alone with
father. A.C. described father as “pretty
nice guy.†A.C. was born legally blind;
he has partial ability to see close up out of one eye. His vision is blurry and he is hypersensitive
to light. He has had several eye
surgeries. He had surgery recently to
place an internal shunt to relieve eye pressure, mostly in his left eye.
DCFS was
unable to interview mother for the report because she was incarcerated in
Chowchilla. The social worker attempted
to contact mother through her counselor approximately seven times to no
avail. Marissa reported mother has been
arrested three times, including a parole violation, a drug-related charge, and
a robbery charge. Marissa said mother’s
“drug of choice†was methamphetamine, which she began using as an adult. The report from the Department of Justice
based on mother’s fingerprint records showed mother had an extensive history of
arrests or convictions. In 2005, she was
arrested for and convicted of being under the influence of a controlled
substance. In 2006, she was arrested for
possessing drug paraphernalia. In 2007,
she was arrested for possessing a controlled substance. In 2008, she was arrested for and convicted
of robbery. In 2009, she was arrested
for possessing drug paraphernalia. In
2010, she was arrested for being under the influence of a controlled
substance. And in 2011 and 2012, she was
arrested for and convicted of possessing narcotics and violating parole.
DCFS
interviewed father via telephone. Father
said he had been diagnosed with schizophrenia when he was younger, around age
22. He was now 33. He heard voices in the past. He did drugs when he was younger
(methamphetamine and marijuana) but had been clean for 12 years. Around 2002, he was hospitalized in a
psychiatric ward for three days. He was
hospitalized again for three days to receive a psychiatric evaluation sometime
between 2002 and 2004. He was
hospitalized a third time seven years later.
He thinks this occurred in 2010, when he “wasn’t having a good day and
this time it wasn’t because of the voices.â€
His mother was “scared†and thought he “was having a trip,†and she
called the police on him. Father was not
on any medications. He did not have any
“problems†with Agustina. He had not had
a job for the past two years and began collecting unemployment a year ago. He and mother lived together for
approximately one year. They separated
because he “was the problem†and “the domestic abuse thing did not fly with
her.†He was arrested in 1999 or 2000
for hitting mother. She left him after
that. Mother found him the prior year on
Facebook via his sister. He last saw
A.C. approximately two months before the DCFS interview and “a couple of timesâ€
at the beginning of 2012. It was
father’s opinion that the family did not need help with anything from
DCFS. He was nevertheless willing to
participate in family reunification services and any court ordered
programs. He was fine with A.C. staying
with Agustina if A.C. was fine with the arrangement. Father had one on-demand drug test
scheduled. It was not conducted,
however, because father was unable to urinate when he showed up.
Paternal
grandmother Evangelina C. reported that father was living with her, was not
working, and was looking for a job. She
said father used drugs in the past and would hear voices but he was “differentâ€
now. She thought he had problems and was
hospitalized because he did not see his son, and now that he saw A.C., he was
at peace and stable. She told him to see
a doctor for an evaluation; father did not want to and said his problems were
in the past. She was not sure if father
could care for A.C. on his own because he had never done it. She did not know if father had ever hit
mother. Marissa reported that father had
mental health issues and was possibly bipolar.
She said he lived with his parents because he is unable to care for
himself, and although he appears normal, he gets “paranoid†and “has gotten
worse with time.â€
Marissa
reported that she hid marijuana and methamphetamine on her person when she was
arrested with her children and A.A. in the vehicle. She said it was for her and Adam’s use, and
they would use when they did not have the children for the weekend because the
children were, for example, staying with Agustina. At the same time, she acknowledged that she
and Adam had used when they were responsible for caring for the children. She was out on bail and had the pending
criminal case relating to her recent arrest.
She reported that she had been using methamphetamine since she was 18
years old and she used approximately once per month. Adam reported that he had used
methamphetamine the week before his arrest and he had used marijuana the
morning of his arrest, but not in the vehicle with the children. He was incarcerated and was facing a sentence
of 36 years in prison as a result of his charges for drug possession and a
prior gun possession charge.
Agustina
reported that she had not witnessed and was not aware of either mother’s or
Marissa’s drug use until mother was incarcerated on drug-related charges and
Marissa tested positive for the dependency case involving her children. She never witnessed Adam using drugs but
smelled marijuana on him before. She did
not see either Marissa or Adam using marijuana in the vehicle on the day of
their arrest. She wanted A.C. and his
sibling A.A. to remain with her because she had always cared for them,
including taking them to school and medical appointments. She loved them and felt they loved her in
return.
Mother
appeared with counsel at the adjudication hearing. At the hearing, “mother admit[ted] that she
has a history of substance abuse†and did not
ask the court to strike the count of the petition relating to her substance
abuse. Rather, mother asked only that
the count be conformed to proof insofar as it stated she was incarcerated, and
she had since been released from prison.
She also requested the court amend the count to state that her substance
abuse only “periodically†(as opposed to regularly) rendered her incapable of
caring for her children. She argued that
the court should strike the count relating to her leaving the children in
Marissa’s and Adam’s care because she actually left them in Agustina’s care,
which was an appropriate plan.
DCFS
recommended A.C. and A.A. remain in Agustina’s home. It further recommended father submit to at
least some drug testing to confirm that his stated history of drug use was
definitely in the past. It also wanted
father to submit to a psychiatric evaluation to assess whether father needed to
be on psychiatric medication. The court sustained a single count of the
amended petition, count b-2, which it amended as follows: “The children, [A.C.] and [A.A.]’s mother
Mariela [G.], has an unresolved history of substance abuse which included
methamphetamine use which periodically renders the mother incapable of
providing regular care of the children.
The mother’s substance abuse places the children at risk of harm.†The court struck all other counts of the
amended petition, including the count that mother endangered the children by
leaving them in Marissa’s and Adam’s care, and the counts alleging father’s
substance abuse and mental problems endangered A.C. and A.A. Regarding the counts against father, the
court noted that it was not sustaining those counts because “what [is] missing
is the nexus.â€
The court
found by clear and convincing evidence that there was a substantial danger to
the children’s physical health, safety, protection, or emotional well-being if
they were to be returned to their mother’s care. The court ordered them removed from mother’s
custody, the parent with whom they typically resided when DCFS filed the
petition. Father requested that A.C. be
placed with him. The court denied the
request and ordered both children to be placed in DCFS’s care for suitable
placement, which would continue to be with Agustina. The court also ordered father to perform six
random or on-demand drug tests, and stated that if father tested positive or
had a missed test without a legitimate excuse, he would have to complete a drug
rehabilitation program. The court noted,
“Just because I don’t have enough evidence to sustain a count against you does
not mean that I don’t believe you may be using.†The court ordered reunification services for
both parents.
The court
scheduled the next hearing and said, “I would like to know how the parents are
doing. At that point, I will consider
placement of the children with the parents, but for right now, there’s just too
many red flags in this case for me to warrant having any of the children placed
with any of the parents.†Both father
and DCFS filed timely notices of appeal.
standard
of review
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, we must
uphold the judgment or findings, 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.)
Likewise,
we review the court’s dispositional order denying placement with father under
the substantial evidence standard. (
1564, 1569.)
discussion
Jurisdictional Finding Based on Mother’s Substance Abuse
As an initial
matter, DCFS contends that father has no standing to challenge the
jurisdictional finding based on mother’s conduct because mother conceded
jurisdiction below and has not challenged it on appeal. But the jurisdictional order served as the
basis for the court’s dispositional orders, including the orders denying
placement with father and for father’s drug testing. Without jurisdiction, the court could not
have made these orders. It is not
accurate to say father is not an aggrieved or affected party. (In re
D.S. (2007) 156 Cal.App.4th 671, 674.)
Father has standing.
Moving to
the merits of father’s argument, he contends there was no evidence A.C. was at
substantial risk of serious harm due to mother’s methamphetamine use. We disagree.
Under section 300, subdivision (b), the juvenile court may assert
jurisdiction over a child when “[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
abuse under section 300, subdivision (b), it does not necessarily “follow that
such a finding means that the parent or guardian at issue is unable to provide
regular care resulting in a substantial risk of physical harm to the
child.†(In re Drake M.
(2012) 211 Cal.App.4th 754, 766.) But “[t]he trial court is in the best
position to determine the degree to which a child is at risk based on an
assessment of all the relevant factors in each case.†(Ibid.) Cases finding a
substantial risk of physical harm under section 300, subdivision (b) “‘tend to
fall into two factual patterns. One
group involves an identified, specific hazard in the child’s environment
‑‑ typically an adult with a proven record of abusiveness. [Citations.]
The second group involves children of such tender years that the absence
of adequate supervision and care poses an inherent risk to their physical
health and safety. [Citations.]’ [Citation.]
And we also hold that, in cases involving the second group, the finding
of substance abuse is prima facie evidence of the inability of a parent or
guardian to provide regular care resulting in a substantial risk of physical
harm.†(In re Drake M., at pp. 766-767.)
There is no
real question here that mother is a substance abuser. She acknowledged having a history of
substance abuse at the adjudication hearing and did not challenge jurisdiction
on the basis that her substance abuse periodically renders her incapable of
providing regular care for A.C. She also
had a previous case with DCFS in 2008 when she received voluntary services
after acknowledging a recent history of using methamphetamine and a criminal history. Even had she not admitted to a substance
abuse problem, there was substantial evidence to support the conclusion that
she had such a problem. The court may
base a finding of substance abuse on evidence showing that the parent at issue
has a current substance abuse problem as defined in the DSM-IV-TR.
p. 766.) The DSM-IV-TR defines the
condition as “‘[a] maladaptive pattern of substance use leading to clinically
significant impairment or distress, as manifested by’†a number of possible things,
including “recurrent substance-related legal problems (e.g., arrests for
substance-related disorderly conduct)†within a 12-month period. (Ibid.) Here, mother experienced at least one
drug-related arrest or conviction every year since 2005, except in 2008, when
she was convicted of robbery. Mother’s
drug-related legal problems would qualify her as a substance abuser under the
DSM-IV-TR. In not challenging
jurisdiction, mother all but admitted A.C. was at substantial risk of harm
because of her substance abuse. Although
A.C. is no longer a very young child at 13, he has a physical disability in
that he is legally blind and can see only partially out of one eye. He has had several eye surgeries in his life
and had one around the time of this latest referral to DCFS to place an
internal shunt. It is reasonable to
infer that A.C. requires more care and supervision than the typical 13 year
old, such that mother’s substance abuse, which she admits periodically rendered
her incapable of caring for him, poses an inherent risk to his physical health
and safety.
Father
argues this case is like In re
Destiny S. (2012) 210 Cal.App.4th 999 and In re David M. (2005) 134 Cal.App.4th 822, in which the courts
held there was no jurisdiction, but those cases are distinguishable. The mother in Destiny S. tested positive for methamphetamine and admitted to
using marijuana during the initial DCFS investigation, but she tested negative
for both for three months leading up to the adjudication hearing. (Destiny S.,
at pp. 1002, 1004.) The mother
based on her alleged substance abuse. (
abuse problem, mother tested negative for drugs approximately 18 times between
the detention hearing and jurisdiction hearing, and mother also challenged
jurisdiction. (David M.,
at pp. 825, 831.) In neither case
did the offending parent admit to a substance abuse problem and concede
jurisdiction based on her condition posing a substantial risk of harm, as was
the case here. The court did not err in
exercising jurisdiction based on mother’s admitted substance abuse problem.
Order Denying Placement of A.C. with Father
Father next
contends there was no substantial evidence that A.C.’s placement with father
would be detrimental to A.C. Father
argues that the court’s dismissal of the counts against him is conclusive
evidence there would be no detriment to placing A.C. with him. Additionally, father says, he is a sober,
stable individual fully capable of raising his son. We hold there was substantial evidence
supporting the court’s decision.
When a
nonoffending, noncustodial parent requests custody of a child who has been
removed from the child’s home, “the court shall place the child with the
[noncustodial] parent unless it finds that placement with that parent would be
detrimental to the safety, protection, or physical or emotional well-being of
the child.†(§ 361.2, subd. (a).) “A detriment evaluation requires that the
court weigh all relevant factors to determine if the child will suffer net
harm.†(In re Luke M. (2003)
107 Cal.App.4th 1412, 1425.) “[S]ection
361.2, which governs placement after the child has been made a dependent
of the court and removal from the custodial parent has already occurred,
conspicuously does not require that the court find the noncustodial
parent might fail to protect the child or that there are no reasonable means to
protect the child in the noncustodial parent’s home in order to deny the
noncustodial parent’s request for placement.â€
(Ibid.) The detriment need
not be related to the noncustodial parent’s conduct. (Ibid.)
Here,
father’s argument about the court’s dismissal of the counts against him is
unpersuasive. The court indicated that
it was not sustaining those counts because it did not find evidence of a
and harm to A.C. This is perhaps
unsurprising, given the minimal contact father has had with A.C. and the fact
that father has had essentially no responsibility for A.C.’s care and
upbringing. Father had been absent from
A.C.’s life until the year prior to this referral, when mother located him online
through Facebook. Since then, father has
visited A.C. only a few times, around three.
The court noted its ruling based on lack of nexus did
clean. Father admitted to having used
methamphetamine and marijuana in the past.
He was unable to complete the only scheduled drug test prior to the
adjudication hearing to confirm his statement that he was clean. Additionally, he was diagnosed with
schizophrenia approximately 11 years ago and had been hospitalized three times,
but he was not on any medications for it.
Marissa described him as unable to care for himself. His mother, Evangelina, wanted him to seek
current treatment for his mental health; father denied that he needed any. Evangelina was not sure if father could care
for A.C. on his own. Contrary to father’s
assertion, there was evidence that he was not a stable individual. Additionally, A.C. has special needs and
wanted to remain with Agustina, who has cared for and lived with A.C. since
birth. While A.C. thought father was a
“nice guy,†he did not want to live with him and wanted to stay at his school
where he enjoyed his special education classes.
Although the court could not have based its detriment determination on
A.C.’s wishes alone, it was entitled to consider A.C.’s wishes. (In re
Luke M., supra, 107
Cal.App.4th at p. 1426.) In light of the
evidence regarding father’s mental health, the question about his ability to
care for A.C., his limited role thus far in A.C.’s life, A.C.’s special needs,
A.C.’s desire to remain with Agustina, and Agustina’s role as A.C.’s lifelong
caretaker, there was substantial evidence
supporting a finding of detriment in placing A.C. with father.
DCFS has
cross-appealed, arguing that the court erred when it dismissed the allegations
that mother endangered A.C. by leaving him under the care of Marissa and Adam
(the (b)(1) allegations). DCFS’s appeal
does not present a justiciable issue, and we therefore decline to address the
merits of its contention.
“‘“[As] a
general rule it is not within the function of the court to act upon or decide a
moot question or speculative, theoretical or abstract question or proposition,
or a purely academic question, or to give an advisory opinion on such a question
or proposition. . . .â€â€™ [Citation.] An important requirement for justiciability
is the availability of ‘effective’ relief ‑‑ that is, the prospect
of a remedy that can have a practical, tangible impact on the parties’ conduct
or legal status.†(In re I.A.
(2011) 201 Cal.App.4th 1484, 1490.)
“Once [a]
child is found to be endangered in the manner described by one of the
subdivisions of section 300 . . . the child comes within the
court’s jurisdiction . . . .†(In re I.A., supra, 201 Cal.App.4th at p. 1491.) “[A]n appellate court may decline to address
the evidentiary support for any remaining jurisdictional findings once a single
finding has been found to be supported by the evidence.†(Id. at p. 1492.)
We have
already determined that substantial evidence supported the court’s exercise of
jurisdiction apart from the (b)(1) allegations.
DCFS asserts we should nevertheless exercise our discretion to address
its appeal because there would be practical consequences to reversing the
court’s dismissal ‑‑ namely, the sustained (b)(1) allegations
“would inform mother’s treatment provider regarding the detrimental home
environment she established for her children,†and mother would be “made to
address her negligent attitude in regard to drugs and their impact on her
children’s safety.†But the sustained
allegations that mother’s substance abuse endangered A.C. adequately inform her
treatment provider in this respect. We
fail to see how the (b)(1) allegations would significantly change mother’s
treatment plan, and DCFS does not attempt to explain this. Because any order we enter will have no
practical effect on the dependency proceeding, thereby precluding a grant of
effective relief, we find DCFS’s appeal to be nonjusticiable. (In re I.A., supra, 201 Cal.App.4th at p. 1491.)
Even were
we to consider the merits of DCFS’s appeal, we would find substantial evidence
supported the court’s dismissal of the (b)(1) allegations. Those allegations stated that mother “left
the children in the care of the children’s maternal aunt†Marissa and “maternal
aunt’s male companion Adam†when mother was incarcerated. But it was undisputed that mother left A.C.
and his brother in Agustina’s care. DCFS
did not appear to believe they were at risk in Agustina’s care, insofar as it
recommended to the court that they remain with her.
disposition
DCFS’s
appeal is dismissed. The judgment is
affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
name="_ftn1" title="">[1]
name="_ftn2" title="">[2] All
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
