Filed 1/30/18 In re B.C. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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M.C. (father) appeals from the findings and orders made by the juvenile court at the combined jurisdictional/dispositional hearing concerning his newborn son, B.C. Father contends there was insufficient evidence to support the juvenile court’s jurisdictional finding that B.C. was currently at risk of serious physical harm at the time of the jurisdictional hearing. (Welf. & Inst. Code, § 300, subd. (b)(1).)[1] Father further contends the juvenile court erred in finding placement with father was detrimental under section 361.2, and that the court should have applied section 361, subdivision (c).

We find no error and affirm the juvenile court’s findings and orders.

FACTUAL AND PROCEDURAL BACKGROUND

Referral to Department of Health and Human Services

In early May 2017 (all further date references are to the year 2017), the Sacramento County Department of Health and Human Services (the Department) received a referral for severe neglect and general neglect of newborn B.C. The referral included, among other allegations of neglect, a report that both C.D. (mother) and B.C. tested positive for methamphetamine when B.C. was born. Mother, reportedly, was refusing to discuss the issue of services to address her drug use.

The next day, social worker Chase Adams, Jr., spoke with several people at the hospital, including mother and father. Father advised Adams that although he and mother had not been living together before B.C. was born, he now intended to live with mother and B.C. Father said he did not know mother had been using drugs. Adams explained that mother and B.C. both tested positive for amphetamines, but father would not accept that mother had been using because mother swore to him she was not using.

Adams also explained to father that B.C. likely would not be discharged from the hospital into mother’s custody because of the positive drug test, and unless father could establish that he was not using drugs, the child would not be released into father’s custody either. Father said he had not used drugs since 1998 and would do “what he needed to do to take his child home.” Father also offered to have his adult children take custody of B.C. while he and mother participated in services. Adams told father that mother was refusing informal supervision and father would need to take a drug test before B.C. could be placed in his care. Father asked for “some time to discuss this with [mother].”

After discussing the matter with mother, father told Adams that “whatever [mother] wanted to do is what he wanted to do.” Adams told mother and father that he understood this meant the parents did not want to participate in informal supervision. Mother told Adams to “file in court, as she is a good mother and she is not addicted to any drugs.” At Adams’s recommendation, the Department took B.C. into exigent protective custody and a day later B.C. was discharged from the hospital into the custody of his adult half siblings.

Petition and Detention Hearing

On May 15, the Department filed a petition alleging that newborn B.C. was at substantial risk of suffering serious physical harm and/or abuse and neglect (§ 300, subd. (b)(1)) due to mother’s historical and continued substance abuse. The Department alleged that mother and B.C. both tested positive for methamphetamine at the time of B.C.’s birth. The Department alleged mother was not properly caring for B.C. in the hospital following his birth (e.g., rough handling, yelling, and pushing at B.C. to wake him, and repeatedly falling asleep while holding him). The Department further alleged that mother denied any drug use and refused informal supervision services.

As to father, the Department alleged B.C. was at substantial risk of suffering physical harm and/or abuse and neglect as a result of father’s failure to protect the child. Specifically, it alleged that father had only just recently acknowledged mother’s drug use. Moreover, the Department alleged, father was currently unable or unwilling to accept care of B.C.

At the detention hearing on May 16, father asked for Level C visitation and to be assessed as a section 361.2 placement for B.C. The court noted that father was previously told he needed to be tested for drugs but had not done so; father’s counsel said father had been confused but was now ready to start the process. At the conclusion of the detention hearing, B.C. was ordered detained and temporary placement and care of B.C. was vested with the Department. The juvenile court scheduled a combined jurisdictional/dispositional hearing for June 7 and admonished father to get started with services immediately. Mother did not appear at the hearing.

Jurisdiction/Disposition Report and Hearing

The jurisdiction/disposition report filed by the Department recommended the juvenile court sustain the petition, adjudge B.C. a dependent of the juvenile court, and place B.C. in the care, custody, and control of the Department, while father participates in reunification services. In support of these recommendations, the Department reported mother and B.C. both tested positive for methamphetamine. The Department also explained a number of incidents in the hospital where mother demonstrated an inability to properly care for B.C, including but not limited to falling asleep while feeding B.C., yelling at the infant, and pushing him in order to wake him.

The Department also noted that when social worker Adams told father he would need to be drug tested before B.C. could be placed in his care, father’s response was to defer to mother. More than a week later, when father met with the social worker again, father still had not taken the drug test. Once again, father indicated he would need to discuss the matter with mother. The Department also observed that when father was given the opportunity to have B.C. placed in his care, rather than take the opportunity “he chose to consult with [mother] first and have the child placed in the [adult half siblings’ care].”

The Department described that when originally confronted with mother’s drug use, father refused to accept it simply because she promised him that she was not using. This, despite being told that mother and B.C. both tested positive for drugs. Father visited B.C. daily, but made no effort to inquire with the hospital staff about B.C.’s drug test. It was not until after father observed mother’s erratic behavior for several days, after he reviewed “information in the Court report,” and after his adult children showed him the positive drug test for mother and B.C., that father acknowledged mother was using drugs. At that point, father agreed mother would be unable to care for B.C.

The Department concluded that father “would have a difficult time establishing boundaries with [mother]” because she was able to manipulate him. Moreover, the Department twice asked father to submit to a drug test but he still had not done so. The Department thus recommended B.C. be “removed from [mother] and presumed father” and placed in a confidential placement under the Department’s supervision. The Department also recommended father be given reunification services and provided a case plan, including drug testing.

The combined jurisdictional/dispositional hearing on June 7 was uncontested and the matter was submitted on the reports. Mother did not appear at the hearing. Father objected to the allegation that B.C. was at risk in his care because, he argued, “he didn’t really have a whole lot to say in regards to what happens to a child in utero.” He also objected to the allegation that he was “unable or unwilling to accept care of the child.” According to father, he was never given the option of taking custody of B.C. but he was willing and able to do so.

Father also indicated that the social worker was not returning his phone calls. As a result, he had no visits with B.C. prior to the hearing. B.C. was in the custody of B.C.’s adult half siblings and they could not get a return call from B.C.’s social worker either. Father further explained that he was B.C.’s sole source of financial support, giving money to his adult children for B.C.’s care. Father’s wife, B.C.’s stepmother, also was helping the adult half siblings to care for B.C.

The juvenile court found true by a preponderance of the evidence the allegations made in the petition and adjudged B.C. a dependent child of the court based on clear and convincing evidence.

The court also found that father intended to live with mother and B.C. after B.C. was born, despite mother’s “significant substance abuse problem.” The court noted father’s refusal to acknowledge mother’s drug problem despite the positive drug test and the “amount of evidence regarding [mother’s] prior substance abuse issues.” The court also noted that despite father’s claim to a social worker that he would “do whatever is necessary to have the child released to him,” father had still not followed through with the Department’s requests that he submit to a drug test.

In sum, the court found father had “demonstrated an inability to be able to act in an independent manner to do those things that were necessary to protect the child.” Accordingly, the juvenile court removed B.C. from mother’s custody. The court also found that “placement in the home of [father] was detrimental to the physical health, safety, protection and emotional well-being of [B.C.]” and denied placement of B.C. with father under section 361.2. The court ordered mother bypassed for reunification services but ordered reunification services for father. The court also ordered father to comply with the Department’s case plan and admonished father to get his drug testing completed and begin his reunification services as soon as possible.

DISCUSSION

1.0 Standard of Review

We review the juvenile court’s jurisdictional findings and dispositional orders for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Under this standard, we review the record to determine whether there is any substantial evidence, contradicted or uncontradicted, to support the juvenile court’s findings and conclusions, and we view the record in the light most favorable to the court’s determinations and draw all reasonable inferences from the evidence to support the determinations. (Ibid.) 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. (Ibid.) Thus, the pertinent inquiry is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

2.0 Substantial Evidence Supports the Juvenile Court’s Jurisdictional Finding

Father contends there was insufficient evidence to support the juvenile court’s jurisdictional finding that B.C. was at risk of serious physical harm at the time of the jurisdictional hearing. We disagree.

The juvenile court may take dependency jurisdiction over a child only if the court finds the child to be a person described by one or more of the section 300 subdivisions. A child falls within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) if “[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 the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . .” (§ 300, subd. (b)(1).) “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.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “ ‘In determining whether the child is in present need of the juvenile court’s protection, the court may consider past events.’ ” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

Section 300, subdivision (b) does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. (In re I.J., supra, 56 Cal.4th at p. 773.) The provision requires only a “ ‘substantial risk’ ” that the child will be abused or neglected. (Ibid.) The legislatively declared purpose of the provision “ ‘is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.’ [Citation.] ‘The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.’ ” (Ibid.) Therefore, “[a]lthough section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216), “proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse” (In re Adam D. (2010) 183 Cal.App.4th 1250, 1261, italics omitted).

We conclude there is substantial evidence in the record to support the juvenile court’s jurisdictional finding. Viewing the record in the light most favorable to the juvenile court’s order, the evidence shows that father’s willingness to defer to mother, along with his reticence to accept mother’s drug use, placed B.C. at a substantial risk of suffering serious harm or neglect.

The record reflects that at mother’s behest, father refused informal supervision. The record also reflects that father initially refused to accept that mother was using drugs while she was pregnant simply because mother promised him she was not; he refused to believe Adams, who told father that both mother and B.C. tested positive for methamphetamine when B.C. was born. Moreover, the record reflects that father was neither willing nor able to take custody of B.C., as alleged in the petition. Father was repeatedly told he could not take custody of B.C. until he submitted to a drug test. By the time of the jurisdictional/dispositional hearing, father still had not submitted to a drug test.

In sum, father repeatedly demonstrated an inability to make independent decisions about B.C. More importantly, father demonstrated what could at best be described as a cavalier attitude toward B.C.’s health and safety, which given mother’s drug use put B.C. at risk of serious harm. That father eventually acknowledged mother’s drug use does little to mitigate that fact. Furthermore, father’s repeated failure to be drug tested demonstrated an ongoing refusal to place B.C.’s needs above his own, even after he acknowledged mother’s drug use. And, father’s failure to submit to a drug test after being told he could not have custody of B.C. until he did, demonstrated he was not willing or able to take custody of B.C. Accordingly, on this record, we find no error.

3.0 The Juvenile Court Correctly Applied Section 361.2

Father contends the juvenile court erred in denying placement to both mother and father under section 361.2, because the court was first required to “remove” B.C. from the custodial parent before the court could deny him placement. Father further contends the juvenile court wrongly found him to be the noncustodial parent. Father’s contentions lack merit.

First, at the initial detention hearing on May 16, father (through counsel) asked to be considered for placement under section 361.2. This request is a concession that father was B.C.’s noncustodial parent. Having conceded the issue, he cannot now claim on appeal that it was error to find him to be the noncustodial parent. (See International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350 [parties cannot change their position over the course of judicial proceedings, if such a change has an adverse impact on the judicial process].)

Second, whether father is correct about the law, he is mistaken about what the court ordered at the jurisdictional/dispositional hearing. At that hearing, the juvenile court orally ruled that it was removing B.C. from the physical custody of mother and denying placement with father pursuant to section 361.2. The court found that under section 361.2, placement in father’s home was “detrimental to the physical health, safety, protection and emotional well-being of [B.C.]” The oral ruling is clear and consistent with father’s request that he be considered for placement under section 361.2. The minute order from the jurisdictional/dispositional hearing is less clear.

The minute order indicates the court is removing B.C. from the physical custody of both mother and father. In the first part of the minute order, it notes “father has failed to drug test and the Court finds under [section] 361.2 placement with the father would be detrimental.” In the “findings” portion of the minute order, adopted from the Department’s report, there is a handwritten note that reads “[section] 361.2 detrimental to place with mother or father.” That note is written in the right-hand margin, in the portion of the minute order describing the circumstances for denying reunification services to mother. There is no indication whether that note was written by the juvenile court judge or the courtroom clerk.

Father argues this apparent discrepancy should be interpreted to mean the juvenile court erroneously denied father and/or mother placement under section 361.2 without first removing B.C. from his custodial parent under section 361, subdivision (c). Whether father is correct that this would be error, we are not persuaded that this is what occurred. Conflicts of this kind are not resolved mechanically; instead, apparent disparities should be harmonized if possible. (In re Evans (1945) 70 Cal.App.2d 213, 216.) We find no irreconcilable conflict in the record in this case.

Father already conceded he was the noncustodial parent and was seeking to have B.C. placed in his custody under section 361.2. Thus, it is probable the court was intending to do exactly as it said: remove B.C. from mother’s physical custody, and deny B.C.’s placement with father under section 361.2. The court made some attempt to modify the form findings and orders prepared by the Department to reflect this order, but failed to make sufficiently precise modifications. This does not render the order denying placement to father “a nullity” as father now contends. That no objection regarding the court’s order denying placement to father under section 361.2 was raised in the juvenile court further supports our presumption about what occurred.

DISPOSITION

The orders of the juvenile court are affirmed. The juvenile court is directed to amend the minute order from the June 7, 2017 jurisdictional/dispositional hearing to conform to the order of the court removing B.C. from the custody of mother and denying placement to father under section 361.2.

BUTZ , Acting P. J.

We concur:

MURRAY , J.

NICHOLSON , J.*