Filed 4/6/18 In re A.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO


In re A.A. et al., Persons Coming Under the Juvenile Court Law.


SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.A. et al.,

Defendants and Appellants.

E068193

(Super.Ct.No. J269505-07)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed as modified.
M. Elizabeth Handy, by appointment of the Court of Appeal, for Defendant and Appellant J.A.
Joanne D. Willis Newton, by appointment of the Court of Appeal, for Defendant and Appellant D.V.
Jean-Rene Basle, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
J.A. (father) and D.V. (mother) are married and have at least three children together. G.A. (G.), the eldest of these, had a baby of her own when she was just 16. In a separate dependency proceeding, the baby was removed from her custody.
Meanwhile, G. was using drugs, including methamphetamine, and she was showing signs of mental illness (possibly drug-induced). She was frequently AWOL from both home and school. She failed to comply with her reunification services plan. When Children and Family Services (CFS) investigated, it concluded that the parents were failing to supervise G. and, in addition, that the father had a drinking problem.
CFS therefore filed dependency petitions regarding not only G., but also her younger siblings, J.A. (J.) and A.A. (A.). The children were not detained.
The juvenile court declared all three children dependents. Based on the parents’ failure to supervise G., it found failure to protect as to G. (Welf. & Inst. Code, § 300, subd. (b)) and abuse of a sibling as to J. and A. (id., subd. (j)); based on the father’s alcohol abuse, it found failure to protect as to all three children. It left the children in the parents’ custody under a family maintenance plan.
The parents appeal. They contend that there was insufficient evidence to support jurisdiction based on either failure to supervise or alcohol abuse. They further contend that the juvenile court erred by declaring the children dependents rather than ordering informal supervision.
We will hold that there was insufficient evidence to support the finding of abuse of a sibling. Otherwise, however, we find no error. We will modify the judgment accordingly.
I
FACTUAL BACKGROUND
The evidence admitted at the jurisdictional/dispositional hearing consisted of five specified social workers’ reports. They showed the following.
A. Background.
As of the beginning of 2017, the mother and the father were married and had been together for 35 years. They had three minor children: G., a girl aged 17; J., a boy aged 14; and A., a girl aged 13.
When G. was 14, her boyfriend got her started using drugs. When she was 16, she had a baby. In November 2016, around the baby’s first birthday, CFS removed the baby from her custody due to drug use and domestic abuse. In violation of her reunification services plan, G. failed to attend school and failed to go to therapy.
B. Interviews on December 13-15, 2016.
On December 13, 2016, CFS received a report that G. was using methamphetamine and marijuana and would leave home for several days at a time. The parents, however, had not contacted the police.
Also on December 13, 2016, at 1:00 p.m., G.’s social worker talked to the father on the phone. He sounded drunk — he was slurring his speech and stumbling over words. He pretended to be a different person and stated that G. was “with her father.” This was false; the mother admitted that G. was away from home and would not tell the parents where she was.
On December 14, 2016, G.’s social worker interviewed her. G. seemed “disoriented.” “[H]er thoughts were disorganized”; at times, it was hard to understand her. She said that “she would go into empty homes with [her boyfriend] and they would use drugs together, including spice, meth, and marijuana.” When she was high, she saw “demonic,” “shadow-like” people that nobody else could see. She claimed that she could tell what other people were thinking, and conversely, “at times other people have read her mind and t[aken] the thoughts from her head.” She displayed paranoid ideation. G. said she had been diagnosed with “[b]ipolar [d]epression” but had not been treated for it.
On December 15, 2016, G.’s social worker spoke to the father. He said that G. used methamphetamine and marijuana. Roughly around September 2016, her behavior had changed. She started disappearing from home for days at a time. She talked to people who were not there. She would hold a blanket in her arms as if it were a baby and would talk to it. He believed this behavior was due to her drug use. However, he had not tried to get her into a drug treatment program.
On an unspecified date, a social worker interviewed J. and A. They stated that G. “comes and goes as she pleases.” They also stated that the father “used alcohol to the point of intoxication and to the point where he was unable to drive.”
The father denied having a drinking problem. However, he had a 2015 conviction for driving under the influence of alcohol (DUI). (Veh. Code, § 23152, subd. (a).)
C. Interviews on March 6.
On March 6, 2017, a social worker interviewed all of the family members (other than G.).
The parents said that G. had left home just the day before. The mother went after her but ultimately left her at a bus stop, “because she cannot force her to do things.” They had not reported her as missing to the police. The mother explained that “in the beginning,” they called the police “constantly,” but the police did not do anything and she was “tired of them.” The father, by contrast, explained that he was upset with the police for taking away G.’s baby.
According to the mother, G. had started sneaking out of the home when she was approximately 14. G.’s boyfriend and his family were trying to keep her away. They were “gang and drug affiliated” and they gave G. drugs.
The mother insisted that she did supervise G. Specifically, she “gives her advice”; “she talks to her daughter and tries to tell her to come home.” However, G. is “rebellious.” The mother had “ask[ed] for help for [G.] from [her] school since she was approximately 14 years old . . . .” She felt that G. was “beyond their reach as parents” and she did not know what she could do.
The mother also stated that the father “became depressed when he stopped working.” However, he drank only on weekends, when he has “five beers and goes to sleep.” She did not let him drive when he had been drinking. Whenever he had been drinking, the children could not go out, “because he drives the family.”
The father said “he drinks after work if he has money.” He typically drank one or two beers a day on weekdays and four to six beers a day on weekends. He did not get drunk; he just went to sleep. However, he indicated that, two or three months earlier, he had been charged with a DUI. He had to go to court in connection with that DUI later that month.
According to the father, G. used marijuana. He had tried to supervise her by giving her advice and by taking her to buy food. He tried to tell her that drugs were bad for her health, but she “leaves and doesn’t listen.” The mother would try to follow her, but “the men” (apparently meaning members of the boyfriend’s family) scared the mother away.
J. reported that “sometimes his father doesn’t know what he is doing when he drinks . . . .” He said that the father had driven G. after drinking. The father had also driven J. after drinking, though only once; a police officer stopped them but “did not do anything.”
J. said G. “acts like a child.” When asked what one change he would make about his own life, he said it would be G.’s “attitude.” He added that “he is fearful for her because she doesn’t know what she’s doing.”
A. reported that G. was almost never home. She said, “[G.] is bad and leaves the house without permission.” The father went looking for her but could not always find her. When she did come home, she smelled of marijuana.
A. also said that the father drinks on weekends. When he is drunk, he “can’t walk normal” and he goes to bed.
D. Subsequent Developments.
During the March 6 interviews, the parents were “advised” to tell the police that G. was missing. They were also told to let CFS know if she returned. As of March 9, however, they had not reported her missing.
On March 13, a social worker talked to the parents on the phone. They said that G. was back home. When asked why they had not notified CFS, the mother said “she didn’t call because if it isn’t one thing it’s another.” She then said that her phone was broken and she could not make outgoing calls. The father said he did not call because he thought the mother had called. The social worker felt that the parents were “dismissive.”
The father had agreed to be drug-tested. A test on March 29 was negative. However, a test on April 4 (at 8:07 a.m.) was positive for alcohol. The father was given a referral to a drug treatment program, but he missed his first appointment and did not reschedule.
G. continued to be in violation of the reunification services plan in her baby’s dependency.
II
JURISDICTION
The parents contend that there was insufficient evidence to support jurisdiction.
A. Standard of Review.
“‘In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings . . . , we determine if substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, 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.” [Citation.]’” (In re I.J. (2013) 56 Cal.4th 766, 773.)
Under the first clause of Welfare and Institutions Code section 300, subdivision (b)(1), the juvenile court has jurisdiction if “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 . . . .”
Under Welfare and Institutions Code section 300, subdivision (j), the juvenile court has jurisdiction if “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”
B. Jurisdiction Based on Failure to Supervise G.
1. Jurisdiction over G.
With respect to G., the parents argue that there was no evidence that they were neglectful. They cite In re Precious D. (2010) 189 Cal.App.4th 1251, which held that a finding of jurisdiction based on failure to protect requires a showing of “parental unfitness or neglectful conduct.” (Id. at p. 1260.) They argue that G. was “incorrigible” and there was nothing more they could have done to protect her.
While this appeal was pending, however, the Supreme Court decided In re R.T. (2017) 3 Cal.5th 622, which disapproved In re Precious D. and held that “the first clause of [Welfare and Institutions Code] section 300[, subdivision] (b)(1) authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child.” (In re R.T., supra, at p. 624.)
Regarding the case before it, it stated: “[W]e in no way pass judgment on mother’s inability to control R.T.’s incorrigible behavior. ‘Obstinacy and defiance test the patience of adults charged with the tending to the needs of minor children.’ [Citation.] However, when that child’s behavior places her at substantial risk of serious physical harm, and a parent is unable to protect or supervise that child, the juvenile court’s assertion of jurisdiction is authorized under [Welfare and Institutions Code] section 300[, subdivision] (b)(1).” (In re R.T., supra, 3 Cal.5th at p. 637.)
We may reject the parents’ contention based on In re R.T. alone.
Separately and alternatively, however, there was ample evidence of neglect.
G. started using drugs at 14, got pregnant at 15, and gave birth at 16. She did not go to school regularly. Meanwhile, she had also developed a mental illness, with paranoid schizophrenic features, including hallucinations.
The parents had the opportunity to tell the social worker exactly what they had done to supervise and protect G. The mother said she “gives her advice” and “talks to her . . . .” The father likewise said he “gives [G.] advice.” He also takes her to buy food. This was a wholly inadequate response to the slow-motion train-wreck that G.’s life had become.
Conspicuously absent from the parents’ account is any attempt at discipline. We are not suggesting it is an easy trick to straighten out a wayward teenager — particularly when her boyfriend and her boyfriend’s family are leading her even farther astray. Nevertheless, the parents could have at least tried offering incentives or withholding privileges. The boyfriend may have been buying G. drugs, but presumably the parents were still paying for her clothing, makeup, and cell phone.
If the parents could not handle G. alone, they needed professional help, but they had not made any serious effort to get it. The father admitted that they had not tried to get G. into a drug treatment plan. G. said that she had been diagnosed with bipolar depression, but she had not been treated for it. Although the mother claimed she had been asking G.’s school for help since G. was 14, she did not specify what help she had asked for nor why it had not been forthcoming; in any event, as the mother demonstrably lied about a number of things, the juvenile court was not required to believe her.
The mother also asserted that she had called the police “constantly,” but they did not do anything. According to the police, however, the family had made only one “runaway” call, in June 2016, when G. was nearly 17 and already well along the path to self-destruction. In September 2016, when there were worrisome changes in G.’s behavior and she began disappearing for days at a time, they still did not call the police. And both parents admitted that, in December 2016, when G. disappeared yet again, they still did not call the police. They had no satisfactory explanation for this lackadaisicality. In March 2017, the social worker advised the parents to report G. to the police as missing, but they still did not do so.
The mother would try to follow G., but could not induce her to return home. Likewise, the father would go out looking for G., but could not always find her. The very failure of these attempts shows why the family needed professional help, including the help of the police to locate G. and to require her — a minor — to return home.
In sum, then, there was substantial evidence that the parents had not done what an ordinary, reasonable parent would have done to supervise and protect G.
2. Jurisdiction over J. and A.
With respect to J. and A., the parents argue that there was no evidence of a substantial risk of abuse or neglect.
They argue that because — in their view — G. was incorrigible and there was nothing more they could have done to supervise and protect her, it follows that there was no evidence of any risk of harm to her siblings. As just discussed, however, there was substantial evidence that the parents did not do all they could to supervise and protect G.
The parents also argue, however, that there was no evidence that the siblings needed protection from the kind of extreme risks — sex, drugs, and mental illness — that G. did. As to this, the parents are on firmer ground.
All teenagers face challenges and even crises. However, there was no evidence that J. and A. were likely to get into as difficult a fix as G. was in. Both of the siblings, when interviewed, were critical of their older sister. J. said if he could change only one thing about his life, it would be G.’s attitude; he was afraid for her. A. said that G. was “bad.” Evidently G. was an object lesson for them.
At the same time, there was no evidence that the parents would not be able to handle a normal teenager effectively. Both J. and A. appeared to be thriving in their care. The father had already raised at least one other child to adulthood. As we suggested in part II.B.1, ante, G.’s complex problems cried out for professional help; the same was not true of her siblings.
“Because the assessment of risk to a sibling depends in part on the circumstances of an abused or neglected child, ‘subdivision (j) implies that the more egregious the abuse, the more appropriate for the juvenile court to assume jurisdiction over the siblings.’ [Citation.]” (In re D.C. (2015) 243 Cal.App.4th 41, 53.)
For example, in In re I.J., supra, 56 Cal.4th 766, the Supreme Court held that, where a father had raped and otherwise sexually abused his daughter for three years, the juvenile court could find a substantial risk that he would also sexually abuse his son. (Id. at pp. 778-780.) It assumed, without deciding, that a male child was less at risk. (Id. at p. 779.) Nevertheless, it relied on the fact that the father’s sexual abuse was a “violation of trust,” “serious,” “prolonged,” and “aberrant in the extreme.” (Id. at p. 778.) It concluded: “The juvenile court need not compare relative risks to assume jurisdiction over all the children of a sexual abuser, especially when the abuse was as severe and prolonged as here.” (Id. at p. 780.)
The parents’ neglect in this case was at the opposite end of the spectrum — regrettable, but not particularly egregious. Hence, we cannot just blithely disregard the fact that, on this record, the relative risk to J. and A. was minuscule.
Accordingly, we will reverse the finding of jurisdiction over J. and A. to the extent that it is based on abuse of a sibling.
C. Jurisdiction Based on the Father’s Drinking.
A parent’s use of drugs or alcohol, standing alone, is not a sufficient basis for dependency jurisdiction based on failure to protect. (In re Natalie A. (2015) 243 Cal.App.4th 178, 185; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003; In re B.T. (2011) 193 Cal.App.4th 685, 693-694.) Rather, the social services agency must also “present evidence of a specific, nonspeculative and substantial risk . . . of serious physical harm.” (In re Destiny S., supra, 210 Cal.App.4th at p. 1003.)
However, “[Welfare and Institutions Code] section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions at issue here require only a ‘substantial risk’ that the child will be abused or neglected. The legislatively declared purpose of these provisions ‘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.’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p. 773.)
Here, there was sufficient evidence that the father was abusing alcohol. He admitted drinking daily — four to six beers a day on weekends. J. and A. both said that he drank to the point of intoxication. As A. put it, he got so drunk that he “can’t walk normal.” Or as J. put it, he got so drunk that he “doesn’t know what he is doing . . . .” He showed an inability to control his drinking by testing positive and by shirking treatment.
Admittedly, the father said he drank only after work and, after drinking, he would go to bed. The mother and A. agreed that he went to sleep after drinking. However, there was some evidence indicating that, to the contrary, he drank at all hours. First, he tested positive for alcohol at 8:07 a.m. As the juvenile court stated, “He either had so much alcohol the night before it didn’t all burn off, or he had [h]air of the [d]og in the morning.” Second, when a social worker phoned him at 1:00 p.m., he was already drunk.
The mother claimed that the father “does not drink all day or every day. [He] can go days without drinking.” However, this was contradicted by the father’s own statements. As the juvenile court reasoned, the very fact that the mother felt the need to lie was significant: “These are the words of someone who is trying to sustain a pretty picture on the outside when everything on the inside may be ugly . . . .”
The parents argue that there was no evidence that the father’s drinking created a substantial risk of physical harm to the children. However, the father had a prior DUI conviction, and as we discussed in footnote 6, ante, there was substantial evidence that he had been charged with a second DUI, indicating recidivist behavior. J. stated that the father had driven both him and G. after drinking.
The mother argues that “after drinking” is not the same thing as “while intoxicated.” The full statement in the record however, is: “[J.] added that sometimes his father doesn’t know what he is doing when he drinks and has driven [G.] in the car after he had been drinking.” (Italics added.) From the association of ideas, it is fairly inferable that he meant that the father drove the children while intoxicated. Moreover, evidently the father’s driving was sufficiently impaired for a police officer to pull him over.
It appears that the mother did not drive. Thus, if the children had to go somewhere, there would be pressure on the father to drive them, even if he had been drinking. And the father, like most alcohol abusers, was in denial. He claimed that he never became intoxicated, which was clearly untrue. He admitted that, in connection with his most recent DUI, he had failed a breathalyzer test; even so, he maintained that he had had only one beer and “his levels were not as high as indicated.” Denial would make him prone to drive when he should not.
The mother claimed that she did not allow him to drive at all when he had been drinking. In the juvenile court’s view, this meant there had been times when he had at least tried to drive while drunk and would have done so if the mother had not intervened. This was not an unreasonable interpretation. Hence, there was a substantial risk that the father would drive drunk, with the children, when the mother was not present or was not aware of how much he had had to drink.
The father states: “It is reasonable here to infer from all the evidence that . . . the family did indeed make sure Father did not drive after drinking, and that this was effective to keep the children safe.” This turns the standard of review on its head. As long as the opposite inference is also reasonable, we must affirm. And on this record, it is.
Although we have not found any case that is precisely on point, In re E.B. (2010) 184 Cal.App.4th 568 is instructive. There, the court upheld a finding of jurisdiction under Welfare and Institutions Code section 300, subdivision (b), based on the mother’s alcohol abuse. It explained: “Mother was arrested for DUI [six months before the petition was filed]. Her own mother and Father’s nephew both reported she had an alcohol problem, her mother indicating Mother neglected the children. She missed her first three substance abuse tests and did not enroll in a substance abuse program until the day before trial. The juvenile court thus had ample evidence from which to conclude Mother’s continued alcohol abuse rendered her incapable of providing regular care and supervision of the children and endangered their physical and emotional health.” (In re E.B., supra, 184 Cal.App.4th at p. 575; see id. at pp. 570-571.)
It could be argued that In re E.B. is distinguishable because there, there was evidence that “[the] Mother neglected the children.” (In re E.B., supra, 184 Cal.App.4th at p. 575.) However, the only evidence of neglect was that the mother lay in bed “all the time” and did not wash the children’s clothes. (Id. at p. 572.) The father lived in the same household (id. at pp. 570-572); the opinion does not say that the mother’s neglect actually had any ill-effect on the children. In any event, the mother’s neglect was relevant solely to whether, for purposes of a different clause of Welfare and Institutions Code section 300, subdivision (b)(1), her alcohol abuse “rendered her incapable of providing regular care and supervision of the children.” (In re E.B., supra, at p. 575.) It was not relevant to the appellate court’s additional holding, for purposes of the first clause of this subdivision, that her alcohol abuse “endangered [the children’s] physical . . . health.” (Ibid.)
In all other respects, this case presents an even stronger case for jurisdiction based on a parent’s alcohol use than In re E.B.
III
DISPOSITION
The finding of jurisdiction over J. and A. under Welfare and Institutions Code section 300, subdivision (b), on the ground that the parents had “failed to provide appropriate parental care and supervision” of G., is stricken. The judgment, as thus modified, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
FIELDS
J.