In re Samantha P.

Filed 8/7/07 In re Samantha P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Elizabeth Kim, Juvenile Court Referee. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Aileen Wong, Associate County Counsel, for Plaintiff and Respondent.

No appearance for Minor.

* * * * * *

Jesus P. appeals from the January 9, 2007 order removing Samantha P. from his physical custody (Welf. & Inst. Code, 361, subd. (c))^[1]after the juvenile court sustained the dependency petition ( 300, subds. (b) & (j)) and expressly found that removal was necessary to protect Samantha P. and reasonable efforts had been made to prevent or eliminate the need for her removal from Jesus P. (Father) and Augustina R. (Mother).

On appeal, Father contends the evidence is insufficient to support the juvenile courts finding that reasonable efforts had been made to avoid the removal of Samantha P. from his physical custody.

We affirm the order. The overwhelming evidence establishes that the efforts made by the Los Angeles County Department of Children and Family Services (DCFS) to prevent or eliminate the need for Samantha P.s removal were reasonable; these efforts were unsuccessful; and further efforts would not have been successful.

BACKGROUND

Samantha P. was born on August 17, 2006. She was placed with Rosa R.,^[2]her maternal aunt, under a voluntary family reunification (VFR) contract with DCFS. Mother was allowed monitored visits. Fathers visits were unmonitored.

On August 21, 2006 Mother was released from Chowchilla State Prison.^[3] In mid-August, Father was released from a correctional facility in San Diego. On September 28, he was detained for driving under the influence (DUI) and two outstanding warrants for driving without a license.

On October 12, 2006, Mother was arrested for shoplifting at Mervyns in Burbank. On that day, as Maria C. held Samantha P., Mother placed merchandise into the baby stroller. A store loss prevention agent detained them after they exited the store. On October 16, Father was detained for driving without a license. He was released on October 18.

On October 20, 2006, DCFS detained Samantha P. after Rosa R. reported that Mother took Samantha P. without her permission; this was an ongoing problem. It was also reported that the parents, who had no drivers license or insurance, would drive their children without car seats during their visits.

On October 24, 2006, DCFS filed a petition ( 300, subd. (b)) alleging that Samantha P. was subjected to a detrimental and endangering situation, because on October 12, 2006, while she was under Mothers care, custody, and control, Mother was engaged in theft ( 300, subd. (b)(1)) and Mother and Father had transported Samantha P. by car without child safety restraints ( 300, subd. (b)(2)).

At the hearing on the same date, Father submitted on the detention issue, because he did not have the means for taking Samantha P. home. The juvenile court ordered Samantha P. detained and suitably placed. Mother and Father were allowed monitored visits, and Father was allowed unmonitored visits once he obtained a child car seat. Father was required to prove to the court that he had a car seat. DCFS placed Samantha P. in a foster home.

In a prerelease investigation report, DCFS reported that Father admitted that he did not have a drivers license or insurance and that he drove his children without car seats. He acknowledged that he had placed his children in danger but assured the social worker it would not happen again.

Father stated he wanted to care for Samantha P. and that he was renting a room in a three bedroom house with a big backyard. Maria C., who had been arrested with Mother for shoplifting, and her husband Mario M., according to Father, rented him the room.

Maria C. and Mario M. had a long-standing, open case with DCFS involving their two daughters. The case arose from keeping a filthy home and Mario M.s alcoholism. Their son, who was living in the same house as Father, was a dependent under co-supervision with DCFS and the probation department.

DCFS recommended that Samantha P. not be placed with Father until he found another rental situation, because DCFS could not approve his renting from Maria C. and Mario M. DCFS also required Father to have a day care near his home available while he was working, because Samantha P. was newly born and he would not be able to drive her to day care. Father acknowledged that he was not allowed to drive her anywhere, because he did not have a drivers license or insurance, and the car was not under his name. He also acknowledged that Samantha P. always should be in a car seat if driven anywhere and that the driver must be licensed, insured and had been submitted to a criminal background check ( 361.4).

On October 31, 2006, following a hearing, the juvenile court ordered Samantha P. further detained due to Fathers living situation.

In its November 14, 2006 hearing report, DCFS indicated it had received information that Father had misled DCFS. Maria C. stated Father had lied about renting a room; rather, she and Mario M. were simply allowing him to stay until the children were returned to him. DCFS reported Father had a history of battery, domestic violence, and infliction of corporal injuries on spouse or cohabitant and had provided false identification to law enforcement. Also, he had recently been detained for DUI.

Mario M. indicated he felt uncomfortable about Father being in his home and around his children because of Fathers domestic violence and physical abuse history. He reported having observed Father being manipulative and aggressive towards Mother and Maria C. Both Maria C. and Mario M. reported Father had a bad temper and that they had observed Father hitting his other children and Mother. Neither wanted Father in their home.

Rosa R., the maternal aunt, expressed concerns about Fathers verbal and physical abuse towards Mother and his sons and indicated the children did not report the abuse out of fear of Father.

Father admitted driving his children without car seats and that he did not have a valid California drivers license or insurance. He indicated that he would cooperate with DCFS and the court so that his children would be returned to him, but he denied requiring assistance in raising his children.

DCFS reported its concerns about Samantha P.s safety. Fathers current living situation was in the home of a woman who had shoplifted with Mother and whose husband had a long-standing history with alcoholism. After noting that Father was alone when he was detained on September 28, 2006 for DUI, DCFS pointed out that he did not have a valid drivers license or insurance and there was no guarantee that Father would not place Samantha P. in danger through driving her around without a drivers license and insurance while under the influence and without an appropriate infant car seat.

DCFS recommended that Samantha P. be detained and that Father be required to complete classes on anger management, domestic violence, parenting, attend AA meetings, and submit to random alcohol and drug testing.

On November 14, 2006, following a hearing, the juvenile court ordered that Samantha P. remain detained.

In an addendum report, DCFS reported that it could not recommend placement of Samantha P. with Father. Mother admitted that she had one-year-old Christian P., not his sister Samantha P., on her lap when she and Father dropped off Samantha P.s seven brothers to their respective foster homes. Foster mother Sylvia A. confirmed that Christian P. was the baby on Mothers lap, and added that 3-year-old Jesus P., Jr., was on the lap of his brother 14-year-old Norberto B. in the back seat. She reported that Mother, Father, and all seven of Samantha P.s siblings were in a compact car that had no car seats for the youngest children.^[4]

Father failed to contact DCFS for well over a month and had not related his whereabouts. He stated that he had moved and was living on the first floor of his bosss two-story residence. DCFS directed Father to have his boss and his wife submit to a live scan ( 361.4), i.e., criminal background check, as soon as possible.

DCFS reported its concerns regarding Fathers excuses about his bad decisions. Father acknowledged that moving into the home of the woman who had shoplifted with Mother who was caring for Samantha P. at the time was not smart. He explained that he had been desperate to get back his children and had hoped DCFS would not find out.

Father continued to excuse his driving the children around without car seats while unlicensed and uninsured based on the rationale he needed to return his children to the foster parents home.

Father reported that he no longer drove, because he was aware that he could not do so without a license or insurance. DCFS remained concerned about Fathers lack of judgment, because Fathers awareness that he could not drive without a license or insurance had not previously stopped him from driving his family around without a license, insurance, and car seats for four of the children as required by state law.

Father indicated that his brother could drive Samantha P. on an as-needed basis and that if Samantha P. were placed with Father, he had a babysitter available. But Father failed to comply with DCFSs previous requests that the brother and babysitter submit to a live scan and for DCFS to meet the brother to verify he had a valid drivers license and insurance.

At the January 9, 2007 jurisdiction and disposition hearing, Maria Gonzalez, the social worker, testified that Mother had reported a single incident before she was arrested for shoplifting where Samantha P.s seven siblings were transported by Mother and Father in a car without car seats. Christian P., an infant, was seated on Mothers lap in the front while Jesus P., Jr., was seated on the lap of his brother Noberto B. in the back seat. Father was driving. Samantha P. was not in the car. Gonzalez testified that Father did not have a drivers license or insurance.

On the other hand, the maternal aunt reported that this was not the only occasion. After Mother was released from prison in August 2006, for about a month and a half Mother and Father drove Samantha P.s siblings to the park without safety restraints during their weekend visits.

The social worker further testified regarding the risk Father posed if his children were returned to him. He drove Samantha P.s siblings without proper child safety restraints while unlicensed and uninsured. He resided with Maria C., who had shoplifted with Mother, and Mario M. Both Maria C. and Mario M. had a long-standing open case with DCFS and had not been live scanned. Also, Father had lied to DCFS.

At the jurisdictional and dispositional hearing, the juvenile court amended the petition by dismissing the count under subdivision (b)(2) of section 300 and substituting a count under subdivision (j)(1) of that section, which alleged that on prior occasions the child Samantha P.s [M]other . . . and the childs [F]ather . . . created a detrimental endangering situation in that they transported the children [who were] not placed in child safety restraints.

The juvenile court declared Samantha P., then four months old, a dependent of the court ( 300, subds. (b) & (j)) and ordered her removed from her parents. The court found by clear and convincing evidence that a substantial danger existed or would exist to her physical and emotional well-being if she were returned and that reasonable efforts had been made to prevent or eliminate the need for her removal from Father and Mother. ( 361, subd. (c).)

The court ordered reunification services for Father, including DCFS approved parent education and domestic violence counseling. Father was allowed unmonitored visits in placement and monitored visits outside of placement. Father was expressly ordered not to transport his children. A six-month review hearing ( 366.21, subd. (e)) was set for July 10, 2007.

APPLICABLE LEGAL PRINCIPLES

The governing statute, section 361, subdivision (c), is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the childs physical health, safety, protection, or physical or emotional well-being and there are no reasonable means by which the child can be protected without removal. [Citation.] (In re Henry V. (2004) 119 Cal.App.4th 522, 528.)

A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [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. [Citations.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)

The burden is on the social services agency to demonstrate by clear and convincing evidence that removal is the appropriate disposition. (See, e.g., Cynthia D.v. Superior Court (1993) 5 Cal.4th 242, 248; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 11111113.) [O]n appeal, the substantial evidence test . . . . . . . applies to determine the existence of the clear and convincing standard of proof . . . . [Citation.] [Citation.] (In re Henry V., supra, 119 Cal.App.4th at p. 529.)

Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.] [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.] (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.) We make all reasonable inferences flowing from such supported factual findings. (See, e.g., In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact . . . . [Citations.] (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)

DISCUSSION

The juvenile court specifically found reasonable efforts had been made to prevent or eliminate the need for removal, a requisite finding under section 361, subdivision (c). Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody. [Citation.] (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.)

Substantial evidence supports the courts order under section 361, subdivision (c)(1), removing Samantha P. from Fathers care and custody. This evidence established that Fathers dishonesty and blatant disregard of the law and safety of his children posed a significant risk of harm to four-month-old Samantha P. Additionally, any reasonable efforts DCFS might be able to offer to diffuse this danger would have been futile in the absence of Fathers cooperation with DCFS, which was lacking.

DCFS initially placed Samantha P. with her maternal aunt under a VFR contract. That arrangement was unsuccessful because the aunt was unable to protect her. DCFSs investigation of Father for possible placement led to the trial courts implied factual findings that Samantha P. would be endangered if placed with Father and there were no reasonable means to avert such danger other than removal.

Father admitted he had exercised poor judgment in residing with Maria C. and Mario M., who had an open case with DCFS. Also, Maria C. had gone shoplifting with Mother at the same time Samantha P. was with the two women. Father lied to DCFS regarding his living arrangements, and he had failed to contact DCFS for over a month. His refusal to comply with the law regarding the transportation of his other children clearly endangered their safety and posed a future risk of similar danger to Samantha P.

Father offered no factual foundation to support an inference that he would exercise better judgment if Samantha P. were in his custody. He failed or refused (or both) to comply with DCFSs rational and reasonable requests that he have the other home occupants, his brother, and the proffered babysitter submit to live scans or arrange for DCFS to verify his brother had a valid drivers license and insurance. Accordingly, Father cannot demonstrate that any alternatives to removal would have been reasonable.

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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

^[2] The record is unclear whether the aunts name is Rosa R., Rosa H., or Ana R.

^[3] Although it would appear from the date of Mothers release that Samantha P. was born while Mother was in custody, there is nothing in the appellate record to evidence this.

^[4] In addition to the above three brothers, Samantha P. had four other brothers: Marco P., Miguel P., Eduardo B., and Alejandro B. Her seven siblings were detained on February 16, 2006.