In re A.G.

Filed 3/28/07 In re A.G. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Commissioner. Affirmed in part and reversed in part.

Elizabeth F. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn Louie, Deputy County Counsel, for Plaintiff and Defendant.

__________________

INTRODUCTION

The juvenile court declared A.G. a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivision (b),[1]after sustaining numerous allegations against her mother, Kim W., who is not a party to this appeal, and a single allegation against her father, appellant L.G. Appellant, with whom the court placed A., seeks reversal of the courts jurisdictional finding against him and that portion of the dispositional order requiring him to participate in a drug rehabilitation program, drug testing and parent education. We reverse the challenged jurisdictional finding and dispositional order as to appellant but otherwise affirm.

BACKGROUND

Appellant and Kim W. are not married and do not live together. A. lives with appellant, his girlfriend, Lawanda W., and Lawandas two children.[2]

On February 10, 2006, A., who then was seven years old, was visiting her mother, Kim W., who recently had been released from jail, when the police arrived and searched Kim W.s residence pursuant to a warrant. The search revealed a significant amount of rock cocaine, currency, drug paraphernalia, a loaded handgun and live ammunition. The police arrested Kim W., and the Department of Children and Family Services (DCFS) took A. and Darrien[3]into protective custody and placed them in foster care.

Childrens Social Worker (CSW) Tonya McCoy contacted appellant, who denied any knowledge of Kim W.s criminal activity. Appellant further denied selling or using narcotics. At CSW McCoys request, appellant agreed to submit to a random drug test and stated the test would be negative for all drugs. Appellant informed the social worker that A. lives with him and requested that she be released to him. Appellant further informed the social worker that in 2001 he had been convicted of a gun charge and that he currently was on probation.

A criminal background check revealed that in July 2000 appellant was convicted of carrying a loaded firearm in a public place and that in November 2003 he was convicted of possession of a controlled substance while armed, a crime for which he was still on probation.

DCFS thereafter filed a section 300 petition on behalf of A. and Darrien, alleging that the children came within the jurisdiction of the juvenile court under subdivision (b) of section 300 due to their parents failure to protect then. As to all parents, DCFS alleged as follows: The 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 legal guardian to supervise or protect the child adequately and by the inability of the parent or legal guardian to provide regular care for the child due to the parents or legal guardians mental illness, developmental disability, or substance abuse. Paragraphs b-1 and b-3 contained specific factual allegations against Kim W. and paragraphs b-2 and b-5 contained allegations against Darriens father. Paragraph b-4, the sole allegation against appellant, and the only one with which we are concerned, stated: The child [A.] G[.]s father [L.] G[.] has a criminal history of felony convictions for Possession of a Controlled Substance While Armed and Carrying a Loaded Firearm in Public. Further, the childs fathers criminal history and conduct endangers the childs physical and emotional health and safety, creates a detrimental home environment, placing the child at risk of physical and emotional harm and damage.

At the detention hearing held on February 15, 2006, counsel for appellant asked the court to release A. to appellant forthwith. Counsel emphasized that DCFS pathetically failed in their efforts to try and place this child with her father, noting that DCFS failed to inspect appellants residence or Live Scan his girlfriend. A.s counsel interjected that A. does want to live with her father. Counsel noted, however, that he could not agree to have A. released to appellant until a criminal background check was performed on appellants girlfriend. The court ordered the children detained and directed DCFS to investigate releasing A. to her father.

On February 24, 2006, the court acknowledged receipt of a report stating that appellants drug test of February 13 came back positive for marijuana.

On March 3, 2006, appellants counsel reminded the court that at the previous hearing they had discussed appellants positive drug test and that the court had ordered appellant to test weekly to demonstrate that he was drug free. Counsel informed the court that appellant went to test on February 28 but was unable to do so because DCFS had not forwarded the necessary information to the testing facility. Thus, weeks after his first test, he had not been able to test because DCFS had failed to facilitate the courts orders. Further, DCFS had yet to investigate appellants home. The court continued the matter to March 9.

In an interim review report prepared for the March 9, 2006 hearing, appellant reported that he has not used any narcotics since being placed on probation in November 2003. He explained that he had been with his cousins who do smoke marijuana and believed he tested positive because he had inhaled second-hand marijuana smoke.

On March 9, 2006, DCFS did not know the result of appellants March 3 drug test. Over DCFSs objection the court released A. to appellant based on the assum[ption] that the test is clean. The court then gave DCFS discretion to replace A. if appellants test did not come back clean. DCFS did not thereafter replace A.

In its jurisdiction/disposition report, DCFS noted that Kim W. knew nothing about appellants criminal history, but she believed he was a good man and a good father. DCFS further reported that appellant denied knowing about Kim W.s cocaine use but noted that she may have used drugs in the past. Appellant did not know that Kim W. sold drugs or possessed guns. A. enjoyed living with her father. With regard to the events that took place on the day DCFS detained her, A. stated, nothing ever happened like this before. A. confirmed that she lived with her father and only visited her mother on weekends.

On May 4, 2006, in response to appellants request for a contested adjudication hearing, the court set a hearing to determine whether or not the criminal convictions and charges that were assessed against [appellant] were sufficient to sustain the petition . . . . The court explained to appellant that it had to determine not only do the crimes exist, but there is a nexus, a connection, between those crimes and your inability to take care of your child. That is the legal basis.

In a report prepared for the May 4 hearing, DCFS stated that according to appellants probation officer, appellant was arrested on December 17, 2005 for possession of a firearm, which was a violation of his probation. A preliminary hearing was scheduled for May 17, 2006. The resolution of that matter is unknown.

At the contested hearing held on May 24, 2006, appellants trial counsel asked the court to dismiss paragraph b-4 of the petition. Counsel argued that the reports do not establish that A. has been harmed as a result of appellants past criminal behavior or is in substantial risk of serious physical harm or illness. The court disagreed and sustained all paragraphs of the petition. With regard to paragraph b-4, the court stated, I think that there is a sufficient nexus to connect the conviction up with the child the inability to protect and the failure to protect even today and will sustain that section.

The court declared A. a dependent child of the court under section 300, subdivision (b), removed her from Kim W.s custody and ordered her placed in appellants home under DCFS supervision. The court further ordered appellant to complete parent education and drug rehabilitation programs and to submit to weekly random drug testing.

DISCUSSION

Section 300, subdivision (b), in pertinent part provides that a child is subject to juvenile court jurisdiction where the 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 . . . to adequately supervise or protect the child, or the willful or negligent failure of the childs parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parents . . . mental illness, developmental disability, or substance abuse . . . . Here, DCFS has the burden of demonstrating how A. was or would be harmed. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)

As observed in In re David M. (2005) 134 Cal.App.4th 822 at page 829, The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. [Citation.] The third element effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future . . . . [Citation.] Section 300, subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. [Citation.] [Citation.]

Appellant contends the evidence is insufficient to support the allegations in paragraph b-4 of the petition that his criminal history caused A. serious physical harm or illness or substantial risk thereof as described in section 300, subdivision (b).[4] In addressing this contention, we employ the substantial evidence standard of review. (In re S. O., supra, 103 Cal.App.4th at p. 461.)

The record is devoid of any evidence establishing that defendants criminal history caused actual physical harm or illness to A. There also is no evidence that appellant ever willfully or negligently failed to provide A. with adequate food, clothing, shelter or medical treatment; that appellant failed to provide or was unable to provide A. with regular care; or that he was incapable of making arrangements for her proper care and supervision in his absence or during a period of incarceration.

DCFS also failed to present evidence demonstrating that appellant failed to adequately supervise A. or protect her while she was with her mother. Although there is no question that A. was in danger on February 10, 2006 during her visit with Kim W., that danger is attributable to Kim W., not appellant. Appellant denied any knowledge that Kim W. currently was abusing drugs, sold drugs or possessed weapons, and DCFS presented no evidence to the contrary. A. herself noted that nothing like that had ever happened before. There simply is no evidence from which it could be inferred that appellant had reason to know that A. would be at risk while visiting with her mother on the day in question. Appellants knowledge that Kim W. had a new boyfriend named Casino is not enough.

The critical question remaining is whether at the time of the jurisdictional hearing DCFS presented evidence establishing by a preponderance of the evidence that A. was at substantial risk of serious physical harm or illness as a result of her fathers criminal history. That question must be answered in the negative.

The evidence establishes that A. lived with her father, his girlfriend, Lawanda, and Lawandas 12-year-old daughter and 7-year-old son in a very clean 2-bedroom apartment, containing an abundance of food and plenty of fruit. Working fire alarms and fire extinguishers were found throughout the apartment, and all cleaning products were out of the childrens reach. The children shared one of the bedrooms, which contained a bed for each child. According to both appellant and Lawanda, A. spent most of her time with appellant. On the day of her detention, A. was visiting her mother who recently had been released from jail.

Appellant was gainfully employed as a car salesman in Los Angeles. Each day he drove A. to her school, which was adjacent to the car dealership at which he worked, while Lawanda drove her children to their school. After getting off work at 4:00 p.m., Lawanda picked up A., as well as her own children, from school. At home, Lawanda was responsible for providing all three children their meals. Appellant provided A. with medical care.

We therefore agree with appellant that the evidence is insufficient to support the trial courts decision to sustain paragraph b-4 of the petition. The evidence does not support a finding that appellants criminal history subjected A. to a substantial risk of serious physical harm or illness within the meaning of section 300, subdivision (b). (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

DISPOSITION

The juvenile courts jurisdictional finding under paragraph b-4 of the petition is reversed. Also reversed is that portion of the dispositional order directing appellant to participate in a drug rehabilitation program, drug testing and parent education. In all other respects, the courts jurisdictional findings and dispositional order are affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] All section references are to the Welfare and Institutions Code.

[2] Although Kim W. initially told a social worker that she lives with A. and her 15-month-old half-brother, Darrien A., her attorney later informed the juvenile court that Kim W. would substantiate that [appellant] has had the predominate custody of her daughter.

[3] Darrien and his father, Darrien A., Sr., are not parties to this appeal.

[4] We reject DCFSs assertion that we need not reach the merits of appellants contention because dependency court jurisdiction can be premised on Kim W.s drug history and illicit drug use. In sustaining the allegations contained in paragraph b-4 of the petition, the court indisputably made a finding adverse to appellant. For this reason, appellant is justified in challenging this finding. That appellant acknowledges that his daughter is a dependent of the court as a result of her mothers conduct and that reversal of the challenged finding will not result in a reversal of the courts adjudicatory determination does not compel a contrary conclusion.