In re K.S.
Filed 11/5/13
In re K.S. 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 K.S., a Person Coming
Under the Juvenile Court Law.
B246773
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SHAWN C.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK43480)
APPEAL from
an order of the Superior Court
of
County. Philip L. Soto,
Judge. Affirmed in part, reversed in part and remanded with directions.
Maryann M. Milcetic, under
appointment by the Court of Appeal, for Appellant.
John F.
Krattli, County Counsel, James M. Owen, Assistant County Counsel, Jeanette
Cauble, Deputy County Counsel, for Respondent.
__________________________
Shawn C. (father) appeals from the dispositional order
removing his newborn daughter, K.S., from his custody pursuant to Welfare and
Institutions Code section 361, and ordering father to drug test.
(1) the order was not supported by substantial evidence; (2) requiring
father to drug-test was an abuse of discretion; and (3) there was non-compliance
with the Indian Child Welfare Act (ICWA).
We conclude the dispositional order is supported by
case must be remanded for ICWA compliance.
Father and
mother were not married but lived together while mother was pregnant with K.S. Also living with them was 43-year-old William
Vanhorn, whom father thought of as an adopted son. The family came to the attention of the
Department of Children and Family Services (DCFS) when mother tested positive
for amphetamines immediately after giving birth to K.S. on October 12, 2012.
K.S. also exhibited significant withdrawal
symptoms. Mother initially told a
hospital representative that she lived with a roommate, K.S.’s father was
unknown, and mother wanted to give her up for adoption. Mother subsequently identified father to the
investigating social worker. Father told
the social worker that he knew mother used drugs while pregnant; he encouraged
her to stop doing so and thought she was getting better. Father rejected a plan to place K.S. with him
because mother would have to move out of the home and she had nowhere to go. Instead, father and mother consented to K.S.
being placed in foster care. K.S. was three
days old when she was detained and placed in a prospective adoptive foster care
home.
The next day, father told the
social worker that he could not be solely responsible for K.S.’s care and
custody, but he had a friend who would assist him temporarily. Nevertheless, father agreed to have K.S.
remain in her current placement. Father was
amenable to an “open†adoption in which he would be able to have an ongoing relationship
with K.S. On October 18, 2012, DCFS
filed a petition alleging K.S. was a person described by section 300,
subdivision (b) for the following reasons:
“[Mother] has an
eleven year history of substance abuse, including amphetamine, methamphetamine and
opiates, and is a current user of amphetamine, methamphetamine and opiates,
which renders [mother] incapable of providing regular care of the child. [Mother] used illicit drugs throughout [her]
pregnancy []. On [September 3, 2012,
mother] had a positive toxicology screen for amphetamine. The child’s [five older siblings] received
permanent placement services due to mother’s illicit drug use. [Father] knew of the mother’s illicit drug
use and failed to protect the child.
[Mother’s] use of illicit drugs and [father’s] failure to protect the
child endangers the child’s physical health and safety and creates a
detrimental home environment, placing the child at risk of physical harm,
damage and failure to protect.â€
At the
and father denied the petition. They indicated
that mother would move out of the family home so that father could request
custody of K.S. after he had a daycare plan in place. Regarding father drug testing, there ensued
the following colloquy:
“[K.S.]’S
COUNSEL: I would join [father’s request
to have K.S. placed with him], but I would only ask that in light of mother’s
history and reading of the petition, I’d ask if the father is willing to drug
test in the interim and provide that. . . . [¶]
[COUNTY COUNSEL]: . . .
[¶] . . . I think, frankly, that since father indicates in the report
at least that he was aware of mother’s use that maybe it would be a good idea
for him to do a test or two, and it would kind of relieve some of our
concerns. [¶] FATHER: No problem.â€
The juvenile court found DCFS had made a prima facie case
for detaining K.S. It ordered mother and
father to drug test and DCFS to address a home of father placement in the Pretrial
Resolution Conference (PRC) report; DCSF was directed to “walk on†any request
to release K.S. to father. DCFS was also
given discretion to release K.S. to any appropriate relative and to investigate
placing her with her half-siblings, who had been adopted by a maternal relative.
The matter was continued to November 14,
2012, for a jurisdictional hearing.
Mother was
arrested on October 30, 2012, after ammunition was found in her home, a
violation of her probation. She was
released on November 10, 2012, and a probation violation hearing was scheduled
for November 14, 2012. The jurisdiction
hearing set for that day was continued to December 7, 2012.
According
to the Jurisdiction Report, father had known mother for three years when they
became romantically involved in January 2012, soon after father’s wife
died. Father never saw mother use drugs,
but she told him she was doing so; father told mother she needed to get help. Father believed mother received prenatal care,
but did not know any details.
Father explained that he and his
late wife met William Vanhorn (the “adopted†sonâ€) 15 years ago, when Vanhorn
lived in their private group home. Since
then, Vanhorn had lived with father off-and-on.
Vanhorn would not live scan, but a California Law Enforcement
Telecommunications System (CLETS) search revealed he had an extensive criminal
history, beginning with a 1987 conviction for receiving stolen property. Convictions for vandalism, theft, grand
theft, domestic violence, possession of a dangerous weapon and multiple drug
related offenses followed. The most
recent incident was a 2012 warrant for driving under the influence. When interviewed on October 30, 2012, Vanhorn
told the social worker he had no concerns for his family and “had nothing more
to say.†On November 5, 2012, after the
social worker told father that DCFS was not recommending reunification services
for mother, father stated that he wanted to terminate his own reunification
services so that K.S. could be available for an “open adoption.†DCFS concluded that it would be unsafe to
return K.S. to father because he refused to relocate to a home away from mother
and Vanhorn, it would be unsafe for Vanhorn to have access to K.S., and father had
no one to watch K.S. during his 12-hour work shifts.
According to a Last Minute
Information For The Court filed the day of the December 7, 2012 hearing, father
tested negative for drugs on November 9, but was a no-show on November 20. The adoptive parent of three of K.S.’s
half-siblings wanted to also adopt K.S., but father wanted K.S. to be adopted
by her current foster parents because they agreed to allow mother and father to
continue visiting. Father did not attend the jurisdictional hearing.
father had failed to protect K.S. because he encouraged mother to stop using
drugs and he could not have forced her into a drug program. The juvenile court sustained the petition and
adjudicated K.S. a person described by section 300, subdivision (b). It continued the disposition hearing to
January 16, 2013.
According to a Last Minute
Information For The Court filed the day of the hearing, father had been a no-show
for all three scheduled drug tests. Father,
mother and Vanhorn had been arrested on January 8, 2013, after 15,000 pirated
DVD’s, a stolen handgun, live ammunition and a stolen Rug Doctor carpet cleaner
were found during a probation check of the home they shared. Father was charged with movie piracy, grand
theft and possession of a stolen firearm; Vanhorn was charged with movie
piracy. Mother remained incarcerated but
father was released on bail. A few days
later, father told the social worker that he was not guilty of movie piracy,
but did not mention the firearm charge.
Father had changed his mind about an open adoption; he wanted custody of
K.S. because he could not be sure that an adoptive family would allow him to
have continued contact with her. The
social worker told father that K.S. could not be placed in father’s home so
long as mother and Vanhorn (because of his history of domestic violence and
drug related convictions) lived there.
Father agreed to ask mother to leave, but not Vanhorn.
Father appeared at the dispositional
hearing but did not testify. In support
of his request that K.S. be returned to his custody, father’s counsel argued
that father previously suggested waiving his reunification services only because
K.S. had bonded with the foster mother and he believed that the foster parents
would allow him to maintain a relationship with the child. Upon learning that K.S. was likely to be
moved to her half-siblings’ adoptive home, father concluded “he will no longer
be able to see the baby. So he’s no
longer willing to waive his reunification services, because he does love this
baby.†Father’s counsel maintained K.S.’s
return to father did not place her at any risk of harm since mother was incarcerated
and father had a daycare plan in place.
Regarding Vanhorn’s presence in the home, counsel argued that “a parent
does not need to meet the same foster care standards that a regular foster
parent or relative placement would need to meet. The father just needs to make [sic]
reasonable means to protect this child . . . .†K.S.’s counsel opposed returning K.S. to
father, noting that if K.S. had been released to father at the detention
hearing she would have been exposed to the probation search and arrest of
father, mother and Vanhorn in the home. Noting
that father had been a no-show to drug tests he had agreed to take, K.S.’s
counsel asked that the case plan include drug testing for father.
The juvenile court placed K.S. with
DCFS, finding no reasonable means to protect her from substantial danger
without removing her from father’s physical custody. The court-ordered case plan required father
to obtain individual counseling to
address proper parenting, substance abuse awareness and criminal history issues,
and to participate in four random drug tests.
The juvenile court advised father that reunification would require him
to maintain regular visitation (three weekly three-hour monitored visits at the
child’s home) and stable housing, and to demonstrate the ability to meet K.S.’s
physical and emotional needs. Regarding
Vanhorn, the juvenile court stated: “I
think you are going to have to really be serious about this 43-year-old son not
being with you in the house if you want to have the baby there . . . .
A 43-year-old man should be finding a
place of his own to live in is my feeling.
It’s up to you what you are going to do.
If it’s a problem because of his criminal background, it might be time
to sit him down and have a talk man to man, father to son, say, ‘They will not
let me have the child in the house if your are here. It’s time to move out.’ [¶] If
that’s going to cause a big problem, then we are going to have to deal with
that. But I think you could probably
work something like that out.†Regarding
drug testing, the juvenile court noted that the prior no-shows provided
sufficient grounds to order drug testing as part of the case plan. Father objected to the disposition and the
requirement that he drug test.
Father timely appealed from the
dispositional order.
DISCUSSION
Substantial
Evidence Supports the Removal Order
Father contends the order removing K.S.
from his custody is not supported by substantial evidence. He argues mother was no longer living in the
home and there was no evidence that Vanhorn’s presence posed any danger to K.S. We find no error.
We review
the juvenile court’s dispositional findings for substantial evidence. (In re
T.V. (2013) 217 Cal.App.4th 126, 135.)
Under that standard, we consider the evidence favorably to the
prevailing party and resolve all conflicts in support of the court’s
order. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)
“A dependent child may not be taken
from the physical custody of his or her parents or . . . with whom
the child resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following circumstances . . . : [¶]
(1) There is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor from the minor’s
parent’s or guardian’s physical custody. . . .†(§ 361, subd. (c)(1).) “ ‘Clear and convincing evidence
requires a high probability, such that the evidence is so clear as to leave no
substantial doubt. [Citation.]’ [Citation.]â€
(In re John M. (2006) 141 Cal.App.4th
1564, 1569.)
Once a child is removed from his or
her parent, section 361.4, subdivision (d) precludes placement in a home in which the child would
have contact with an adult who has been convicted of any crime other than a
minor traffic violation unless an exemption is obtained. (Los
Angeles County Dept. of Children and Family Services v. Superior Court
(2005) 126 Cal.App.4th 144, 151.) Father
correctly notes that there is no such limitation on return of a child to
his or her pre-petition home.
name="_ftnref4" title="">[4] Although return to the pre-petition home is
not precluded by the fact that an adult with a criminal history lives in the
home, it is a fact that may be considered in determining whether the child can
be safely placed there. Evaluation requires
the court to weigh all relevant factors to determine if the child will suffer
harm. (Cf. In re Luke M. (2003) 107 Cal.App.4th
1412, 1425 [construing § 361.2, governing placement with non-custodial
parent].) The juvenile court may compel
a parent to choose between the child and a source of potential danger to the
child, thus demonstrating the parent’s ability to protect the child. (See e.g. In
re Silvia R. (2008) 159 Cal.App.4th 337, 351 [removal order supported by
mother’s refusal to have child’s step-father and adult brother, both of whom
were accused of molesting child, move out of home]; In re Mariah T. (2008) 159 Cal.App.4th 428, 441 [removal order
supported by mother’s refusal to have boyfriend accused of molesting the child
move out of the home].)
Here, the
evidence justified the juvenile court’s finding that K.S. would be at
substantial risk if she were returned to father and Vanhorn continued to reside
in the home. This includes the undisputed
evidence that Vanhorn had an extensive criminal record which included domestic
violence and multiple drug related offenses.
The finding is also supported by more recent events: a week before the hearing, Vanhorn was
arrested in the home, along with father and mother; a stolen weapon was found. Given a choice of having K.S. placed with him
and asking Vanhorn to leave, or having K.S. placed outside the home, father
elected the foster placement. It is
axiomatic that Vanhorn’s participation in criminal activities in the home
exposes K.S. to substantial danger.
Father’s refusal to ask Vanhorn to leave puts father’s judgment in
question. Under these circumstances, we
find no error in the juvenile court’s order removing K.S. from father’s
custody.
We are not
persuaded otherwise by father’s citations to cases in which parents acted more egregiously
than father has in this case. It is not
relevant that other parents have put their children at risk of even more
serious danger than the danger in which father has put K.S.; it is only
relevant that there was substantial evidence to support the juvenile court’s
finding that return to father presented a substantial risk to K.S.
In a related argument, father
contends the finding that there were no reasonable alternatives to removing K.S.
from his custody is not supported by substantial evidence. As we have already explained, father rejected
the reasonable alternative presented to him by DCFS: asking Vanhorn to move out so that K.S. could
be returned. Father’s refusal to have Vanhorn
move out constitutes substantial evidence that there was no reasonable means to
protect K.S. other than removing her from father’s custody.
Substantial
Evidence Supports the Drug-Test Requirement
Father contends the juvenile court
abused its discretion in requiring father to drug test as part of the case
plan. He argues that there was no
evidence that father had a substance abuse problem. We disagree.
“The program in which a parent or
guardian is required to participate shall be designed to eliminate those
conditions that led to the court’s finding that the minor is a person described
by Section 300.†(§ 362, subd.
(c).) The juvenile court has authority
to order a parent to drug test as part of a reunification plan. (In re
Nolan W. (2009) 45 Cal.4th 1217, 1229.) But only if that condition is reasonably
related to ameliorating the conditions that caused the child to be a dependent
child. Unless a parent’s drug use led to
jurisdiction, a reunification plan requiring the parent to drug test does not
meet that standard. (
155.) However, if a substance abuse
problem is discovered during the pendency of the case, the trial court has
discretion to include reunification conditions to address that problem. (Id.
at p. 173, fn. 9; see also In
re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
This case presents a somewhat unusual
situation in that father denied using drugs, but at the detention hearing volunteered
to drug test. Father then tested
negative once, but missed all subsequent tests.
Juvenile courts regularly treat a missed test as a “dirty†test. (Cf. In
re Raymond R. (1994) 26 Cal.App.4th 436, 439.) Thus, notwithstanding father’s initial
denial, the juvenile court could reasonably conclude that father had a
substance abuse problem from the evidence that father tested “dirty†a number
of times. Under these circumstances, it
was not an abuse of discretion for the juvenile court to include drug testing
in father’s reunification plan.
name="_ftnref5" title="">[5]
Remand
for ICWA Compliance
We agree (and DCFS concedes) that the
case must be returned to the juvenile court for ICWA compliance. At the detention hearing on October 18, 2012, father
indicated that his maternal grandmother was a member of the Apache tribe. We need not reverse under those
circumstances, but only remand for the limited purpose of compliance. (In re
Brooke C. (2005) 127 Cal.App.4th 377, 385–386, contra, Nicole K. v. Superior Court (2007) 146 Cal.App.4th
779, 781.)
DISPOSITION
The jurisdictional findings and
dispositional order are affirmed. The
finding that ICWA does not apply is conditionally reversed and the matter is
remanded for compliance with the notice requirements of ICWA. If, after inquiry and proper notice, the
court finds that K.S. is an Indian child under ICWA, the court shall proceed in
conformity with ICWA. If, however, the
juvenile court finds that K.S. is not an Indian child, the finding that ICWA
does not apply shall be reinstated and all other orders shall remain in full
force and effect.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
future undesignated statutory references are to the Welfare and Institutions
Code.
mother is not a party to this appeal, we mention her only to the extent her
conduct is relevant to father’s appeal.
