Filed 8/17/22 In re D.B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed in part and reversed in part.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.

* * *

In this juvenile dependency appeal, S.S. (Father) challenges the juvenile court’s jurisdictional findings and dispositional order concerning his two-year-old son, D.B. As we explain below, we affirm in part and reverse in part.

D.B. first came to the juvenile court’s attention based on concerns about substance abuse by and domestic violence between Father and B.N. (Mother). About one year after the initial detention hearing, shortly before the court ruled on jurisdiction, Mother passed away. After Mother’s death, the court declined to make any findings regarding her. As for Father, the court sustained the petition’s allegations of domestic violence and drug abuse and assumed jurisdiction over D.B. At the subsequent disposition hearing, the court removed D.B. from Father’s custody and ordered Father to participate in reunification services, including a domestic violence program and a psychological evaluation. Father appealed.

Father first challenges the juvenile court’s jurisdictional finding related to domestic violence. He asserts Mother’s death during the proceedings eliminated any risk of future domestic violence between them. We agree, and we therefore reverse the domestic violence jurisdictional finding and the related dispositional order requiring Father to participate in a domestic violence program. D.B. nonetheless remains subject to the court’s jurisdiction based on the other sustained allegations against Father.

Father also challenges certain portions of the dispositional order—specifically, the custody order and the order requiring him to undergo a psychological evaluation. Finding no merit to those challenges, we otherwise affirm the dispositional order.

FACTS

Mother and Father had an “on and off” relationship for about seven years. Their child, D.B., was born in March 2020. Both parents had criminal histories, including various drug offenses. They also had a history of domestic violence against each other.

The family’s first contact with the Orange County Social Services Agency (SSA) was at D.B.’s birth; Mother was homeless, and there was concern that she lacked provisions to care for the child. D.B. was not detained, but two weeks later, SSA received a report about possible child abuse after the parents got into a heated argument inside a CVS with D.B. present. Several months later, SSA initiated another investigation of general neglect after receiving reports that Father had put his hand over Mother’s mouth to stop her from screaming and then tackled her in D.B.’s presence. It was also reported that Mother had cared for D.B. while under the influence of methamphetamine.

According to Father, the family’s living situation for the first four to five months of D.B.’s life was “rough”; Mother was homeless, and Father was renting a room with friends, so Mother and Father often stayed with D.B. at hotels. Sometime in the fall of 2020, Father sought and obtained full custody of D.B. because he believed Mother’s substance abuse was posing a risk. Father and D.B. moved in with Father’s aunt, M.B. (Aunt), and uncle, R.B. (Uncle), who were able to provide them with stable housing.

Uncle initially did not have any concerns about Father’s parenting; he reported that Father was engaged with caring for D.B. and did not rely on Aunt or Uncle for help. Over time, Uncle grew worried that Father was codependent on Mother, whom he described as physically abusive, vindictive, “[w]hacked out,” and the source of Father’s anger. Uncle believed Father had a “continual need” to see Mother despite their tumultuous relationship, and he noted that Father would often “disappear” to visit Mother in hotel rooms.

In February 2021, during one such hotel stay, Father and Mother got into an argument in D.B.’s presence, and Mother called the police. When the police arrived, they found three small plastic bags containing drug residue on the bathroom counter. Father told the police that Mother had kicked him on the knee and had used methamphetamines while holding D.B. Mother denied those allegations, said no domestic violence or drug use had occurred, and claimed the drugs belonged to Father. The police left D.B. in Father’s care, and no charges were pressed. During the subsequent investigation, Mother told SSA that Father had rage issues and she felt uneasy about his explosive behavior.

Shortly after the hotel incident, Aunt and Uncle cleaned out Father’s room and found drug paraphernalia.[1] Uncle indicated he was willing to have D.B. stay in the home, but he no longer wanted Father to live there. When Father attempted to return to Aunt and Uncle’s house, he discovered they had changed the entry code, so he could not get in.

A week after the hotel incident, SSA applied for and obtained a protective custody warrant to detain D.B. from his parents’ custody, and D.B. was placed with Aunt and Uncle. SSA then filed a petition under Welfare & Institutions Code[2] section 300, subdivision (b)(1), alleging D.B. was at risk of serious physical harm because of: the risk of drug exposure during the hotel incident (count b‑1); Mother’s history of substance abuse (count b‑2); the parents’ history of domestic violence against one another (count b‑3); Mother’s lack of a safe and stable residence for D.B. (count b‑4); Father’s history of substance abuse (count b-5); Mother’s criminal history (count b-6); and Father’s criminal history (count b-7).

At the initial hearing in February 2021, Father submitted on the issue of detention because he was ill with COVID-19 at the time and was unable to care for D.B. The juvenile court found SSA had made a prima facie showing on the issue of detention, ordered SSA to prepare a case plan and provide services as soon as possible, and ordered that Mother and Father were each to have at least eight hours a week of separate, supervised visits.

The jurisdiction hearing was continued numerous times for various reasons, including unavailability of counsel and the court and COVID-19 related delays; it did not occur until nearly a year later. D.B. continued his placement with Aunt and Uncle.

In the period between the detention hearing and the jurisdiction hearing, Father made significant progress in his case plan. He enrolled in and completed a parenting course, a Personal Empowerment Program (PEP), and counseling. Additionally, his visits with D.B. went well with no concerns noted; Father was protective of D.B., and D.B. bonded and enjoyed being with Father. As the juvenile court later observed, it was apparent that Father “deeply loves and is concerned for his child.”

However, Father was inconsistent with his drug testing. Although he was never observed to be under the influence of drugs, Father missed over twenty drug tests, refused or was unable to provide a specimen on multiple occasions, refused to test via the drug patch, and refused to follow the testing center’s collection protocols. He also tested positive for amphetamine and methamphetamine three times in the fall of 2021.

When the SSA social worker asked Father about the drug testing, Father expressed outrage, claimed the positive test results had to be false positives, insisted he never used methamphetamine, and denied drug use altogether, despite all the evidence to the contrary.[3] When the social worker explained that Father could no longer have unsupervised visits with D.B. because of the positive test results, Father responded, “Fuck you,” and hung up. Father also threatened legal action against the substance abuse testing provider and falsely claimed the social worker told him he was not required to follow the drug testing protocols.

As time went on, there was also increased tension between Father and D.B.’s caregivers, Aunt and Uncle; Father became very defensive and aggressive in his communications with them. He also at one point texted another family member that he was living out of hotels, adding, “you have no idea what the fuck [Uncle] and [Aunt] pulled out of no where [sic] [¶] There [sic] lucky there [sic] still breathing.”

There was an additional incident in early 2022 where Father became upset that Aunt and Uncle had not included him in D.B.’s medical visit at a hospital. When Father finally met up with them near the reception area, Father called Uncle a “prick,” prompting Uncle to aggressively grab D.B. back from Father and ask the reception staff to call security.[4]

After numerous continuances, the juvenile court conducted the jurisdiction hearing over the course of five court days in December 2021 and January 2022. In January 2022, towards the end of those proceedings, Mother died, likely from a drug overdose.

At the jurisdiction hearing, the social workers testified they remained concerned about Father’s substance abuse, his anger management issues (including his threats and aggression toward Aunt and Uncle), the possibility that he might engage in domestic violence with someone other than Mother in the future, and his lack of insight and failure to take accountability for his actions. They therefore recommended that D.B. remain with Aunt and Uncle while Father received reunification services.

Father, on the other hand, insisted he had not done anything wrong, he never had a substance abuse problem, he could safely parent D.B. on his own, and there was no reason for SSA to be involved in their lives. He therefore asked the juvenile court to dismiss the petition and return D.B. to him, or alternatively to place D.B. with Father’s friend and landlord, who had already been approved to supervise visits. When asked if he would be willing to allow SSA to check on D.B. if D.B. were returned to him, Father answered, “They would have to give me 24-hour notice, but not just show[] up. But I have no problem with them coming and visiting . . . like once a month, but they’d have to let me know. . . . [E]ventually they have to be out of my life completely, because they should never have been there in the first place.”

After considering the evidence, and after declining to make any findings regarding Mother due to her passing, the juvenile court sustained the petition’s remaining allegations as to Father and assumed jurisdiction over D.B. In explaining its ruling, the court noted Father’s testimony was self-serving and not credible, he had an ongoing substance abuse problem and was not truthful about his addiction, and he demonstrated intense anger and explosive behavior toward anybody who took issue with him.

At the February 2022 disposition hearing, the juvenile court found there was a present risk of harm if D.B. was returned to Father, declared D.B. a dependent of the court, found reasonable efforts had been made to prevent the need for removal, and removed D.B. from Father’s custody under section 361, subdivision (c)(1). The court ordered substance abuse testing and approved SSA’s March 2021 case plan, which included a domestic violence program. It also found that Father’s anger issues were “significant and pervasive enough” to warrant a psychological evaluation under Evidence Code section 730[5] (§ 730) to determine “the best provision of therapeutic intervention to address” Father’s anger issues. Finally, the court denied Father’s request for D.B. to be placed with his friend/landlord.

Father filed a timely notice of appeal challenging the findings and orders made at the jurisdiction and disposition hearings.

DISCUSSION

1. The Domestic Abuse Jurisdictional Finding

Father first contends insufficient evidence supports the juvenile court’s jurisdictional finding of domestic violence between Mother and Father (count b-3). According to Father, Mother’s death midway through the proceedings eliminated any risk of future domestic violence between them. Father therefore asks us to reverse the domestic violence jurisdictional finding, as well as the portion of the dispositional order requiring Father to participate in a domestic violence program.

As a preliminary matter, SSA contends this portion of Father’s appeal is not justiciable because Father does not challenge the other sustained allegations supporting the jurisdiction order. We agree that, if there is a single unassailable finding supporting jurisdiction, it is immaterial whether another jurisdictional finding was inappropriate; accordingly, we may decline to address whether substantial evidence supports the challenged jurisdictional finding if another jurisdictional finding is either supported by the evidence or not challenged. (In re Ashley B. (2011) 202 Cal.App.4th 968, 979; In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)

“Notwithstanding this general principle, we have discretion to reach the merits of a challenge to any jurisdictional finding when that finding may be prejudicial to the appellant [citation], such as when that finding ‘serves as the basis for dispositional orders that are also challenged on appeal’ or when that finding ‘could potentially impact the current or future dependency proceedings.”” (In re D.M. (2015) 242 Cal.App.4th 634, 639; In re D.C. (2011) 195 Cal.App.4th 1010, 1015.) Because the juvenile court’s jurisdictional finding on the parents’ history of domestic violence presumably serves as the basis for requiring Father to participate in a domestic violence program, and because the domestic violence finding could be prejudicial to Father in this case and any future dependency proceedings, we address the merits of his challenge to the court’s jurisdictional finding on count b-3.

Section 300, subdivision (b)(1), brings a child within the juvenile court’s jurisdictional when the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness.” “‘[T]he question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’” (In re Ma.V. (2021) 64 Cal.App.5th 11, 23 (Ma.V.).)

Past episodes of physical violence between a child’s parents may support the exercise of jurisdiction, “but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm.” (In re Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.).) “[T]here ‘must be some reason beyond mere speculation to believe the alleged conduct will recur.’” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)

If there is no evidence that domestic violence is likely to continue, past episodes of domestic violence between the parents cannot support jurisdiction. (See Ma.V., supra, 64 Cal.App.5th at p. 23 [juvenile court erred in finding jurisdiction based on mother’s past as a victim of domestic violence, which had not recurred while the case was pending and which was not a current risk]; In re M.W. (2015) 238 Cal.App.4th 1444, 1454 [striking jurisdiction finding based on domestic violence where parents had engaged in only one incident of domestic violence years before the hearing, and father was incarcerated by the time of the hearing]; Daisy H., supra, 192 Cal.App.4th at p. 717 [reversing jurisdictional order where physical violence between parents happened years before petition was filed].)

We review a juvenile court’s jurisdictional findings for substantial evidence. (Ma.V., supra, 64 Cal.App.5th at p. 22.) In determining whether substantial evidence supports the court’s findings, ‘“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 R.T. (2017) 3 Cal.5th 622, 633.)

Applying those authorities here, we conclude the domestic violence jurisdictional finding lacks sufficient evidentiary support. The only risk of harm alleged in count b-3 was that the parents have a history of domestic violence against one another.[6] There was no evidence that risk still existed at the time of the hearing. (See Ma.V., supra, 64 Cal.App.5th at p. 23 [controlling question is whether circumstances at the time of the hearing subject the minor to the defined risk of harm].) There had been no reported instances of domestic violence between Mother and Father in the year after the dependency petition was filed, and any risk of future violence between Mother and Father necessarily disappeared when Mother passed away.

Perhaps anticipating that issue, the juvenile court explained that in sustaining the petition, it was not focusing exclusively on Father’s history of domestic violence with Mother, but rather based its findings on Father’s habitual anger and volatility in the heat of the moment and his tendency to demonize anyone who took issue with his position. The court also observed that Father’s domestic violence, drug use, and anger management issues were “so intertwined” that they “exist concurrently and conjointly.”

We are not convinced. Although Father certainly had a strained relationship with Aunt and Uncle and the social workers, there is no evidence that Father engaged in violence against those individuals. Further, there is no evidence that Father was in a relationship with anyone else during the case, and there is no evidence that Father ever engaged in acts of domestic violence with anyone other than Mother.[7]

Accordingly, we reverse the domestic violence jurisdictional finding on count b-3, as well as the portion of the dispositional order requiring Father to participate in a domestic violence program. The juvenile court’s remaining jurisdictional findings are affirmed.

2. The Custody Order

Father next contends the dispositional order removing D.B. from his custody should be reversed because reasonable protective measures could have prevented removal. We disagree.

After a minor is adjudged a dependent of the juvenile court under section 300, the court may limit the parent’s control over the child. (§ 361, subd. (a)(1).) However, the child shall not be taken from his parent’s physical custody unless the court finds by clear and convincing evidence “[t]here 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 . . . physical custody.” (Id., subd. (c)(1).) The court must also determine “whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor” and “state the facts on which the decision to remove the minor is based.” (Id., subd. (e).)

“‘The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.]’ [Citation.] ‘“The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” [Citation.] The court may consider a parent’s past conduct as well as present circumstances. [Citation.]’ [Citation.] We review a dispositional order removing a child from parental custody for substantial evidence.” (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)

Here, substantial evidence supports the juvenile court’s order for removal of the minor. Father’s unresolved substance abuse issues, coupled with his chronic denial of the fact that he has a substance abuse problem, permitted the court to infer an ongoing risk of physical harm to D.B. (See In re K.B. (2021) 59 Cal.App.5th 593, 604-605 [court inferred father’s drug use would continue because father denied he had a drug problem].)

Father contends reasonable protective measures could have enabled D.B. to safely reside in his care and prevent custody removal. He insists the juvenile court could have ordered him to continue living with his friend and landlord, who was already supervising Father’s visits, and SSA could have made unannounced visits or provide mandatory reporters in the home to address any concerns about drug abuse.

Father’s own testimony refutes this argument. When asked if he would be willing to cooperate with SSA should he regain custody of the child, Father testified that he would cooperate with SSA but only on his terms, that he was not amenable to unannounced visits, and that SSA “shouldn’t be a part of my life now.”

The juvenile court had good reason for concluding Father’s proposed protective measures would not address the dangers posed by Father’s drug usage. “Unannounced visits can only assess the situation and [the parent’s] sobriety at the time of the visit. Substance abuse testing can only detect use after the fact—which would be after [the parent] had already placed the minor at risk again.” (In re A.F. (2016) 3 Cal.App.5th 283, 293.)

Between Father’s substance abuse problem and his ongoing refusal to acknowledge that problem, there is ample evidence to support the juvenile court’s order removing D.B. from Father’s custody.

3. The Section 730 Evaluation

Father’s final argument is that the juvenile court erred in ordering him to complete a psychological evaluation as part of his case plan. According to Father, there was no evidence he had any mental health issues, so requiring a section 730 evaluation was not reasonably designed to eliminate the conditions that led to D.B.’s detention. We disagree.

“The juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accordance with this discretion.” (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104; see § 362, subds. (a) & (d).) “[T]he juvenile court is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interests of the children. [Citations.] Instead, the court may consider the evidence as a whole.” (In re Briana V. (2015) 236 Cal.App.4th 297, 311 (Briana V.).)

To that end, a juvenile court may order a section 730 evaluation if expert testimony would help determine what services could eliminate the conditions leading to dependency. (See § 730; Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202.) Even if “the jurisdictional finding is not based on a parent’s mental disability, the juvenile court may rightly look to the circumstances underlying the dependency and the evidence of the parent’s conduct in deciding whether to order one or more mental health evaluations.” (In re Rebecca H. (1991) 227 Cal.App.3d 825, 840.)

We review the juvenile court’s order of a section 730 evaluation for abuse of discretion. (See In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.) “To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.” (In re Joey G. (2012) 206 Cal.App.4th 343, 346.)

Here, the juvenile court reasonably concluded a section 730 evaluation was needed to determine whether Father suffered from rage and anger management issues and what services would help eliminate those conditions. The fact the anger management or mental health issues are not mentioned in the sustained petition is of no consequence because the court may consider the evidence as a whole in crafting its dispositional orders. (Briana V., supra, 236 Cal.App.4th at p. 311.) Father’s anger issues and volatility proved to be one of the primary focuses at the jurisdictional and disposition hearing, with the court noting that Father’s anger issues may be a contributing factor to his substance abuse, and vice versa.

Under the circumstances, a section 730 examination could help ensure Father receives proper services so he may one day obtain full custody of D.B. The juvenile court did not act outside the bounds of reason in ordering such an evaluation as an information gathering tool.

DISPOSITION

We reverse the domestic violence jurisdictional finding on count b-3, as well as the portion of the dispositional order requiring Father to participate in a domestic violence program. D.B. remains subject to the juvenile court’s jurisdiction based on the other sustained allegations against Father. In all other respects, the jurisdictional findings and dispositional order are affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

[1] Father later claimed that the drug paraphernalia belonged to Mother.

[2] All further undesignated statutory references are to this code.

[3] According to Father, his “false positives” were caused by taking Sudafed and using a Vicks inhaler.

[4] The social worker later testified that it was fair for Father to be upset about the violation of his right to make medical decisions for D.B., and neither Father nor Uncle handled the situation correctly.

[5] Section 730 provides: “When it appears to the court . . . that expert evidence is or may be required by the court or by any party to the action, the court . . . may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action.”

[6] To quote from the petition, count b-3 alleges: “[Mother] and [Father] have a history of domestic violence, including incidents in the child, [D.B.]’s, presence. On or about February 3, 2021, [Father] reported the mother kicked him in knee, which the mother denied. The mother reported [Father] took the child out of her arms and that she received a bruise. The mother reported physical and verbal abuse by [Father] in the child’s presence. An emergency protective order was issued on May 10, 2018, protecting the mother from [Father;] however criminal charges were later dropped. The mother reported that in June 2020 [Father] put his hand over her mouth and tackled her to the ground in the child’s presence. Between January 31 and February 3, 2021, law enforcement responded to two domestic dispute calls between the parents. The mother reported that [Father] yelled and used foul language and, that the child cried while being held by [Father] while he was in a ‘rage.’” As is evident from this language, count b-3 only alleges domestic violence between Father and Mother, not Father and anyone else.

[7] We also have some concerns as to whether it was proper for the juvenile court to assert jurisdiction based on unalleged conduct. (See Cal. Rules of Court, rule 5.684(a) [court’s role at the jurisdictional hearing is to “determine whether the allegations in the petition are true”]; In re G.B. (2018) 28 Cal.App.5th 475, 487 [court deprived father of due process in asserting jurisdiction when it crafted new allegations against him based on facts not alleged in original petition].) We do not believe we are splitting hairs here. The petition alleges only that Father and Mother committed domestic violence against one another; it does not allege Father has anger management issues in dealing with others.