Opinion
E066940
05-03-2017
In re H.T. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.T., Defendant and Appellant.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J266542, J266543) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, S.T. (Father), is the biological and presumed father of H.T., a girl born in March 2015, and S.M.T., a boy born in March 2011. Father appeals from the juvenile court's September 28, 2016 dispositional orders declaring H.T. and S.M.T. dependents of the juvenile court and ordering them removed from his custody.
Father claims insufficient evidence supports the court's jurisdictional findings that he (1) engaged in domestic violence in the presence of H.T. and S.M.T., placing them at risk, and (2) had an ongoing substance abuse problem which impaired his ability to appropriately care for and supervise the children. (Welf. & Inst. Code, § 300, subd. (b)(1).) Father also challenges the sufficiency of the evidence supporting the order removing the children from his custody. (§ 361, subd. (c).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The children's mother, D.D. (Mother), submitted to the jurisdictional findings and dispositional orders and is not a party to this appeal. Mother also has two older children: S.K., a girl born in 2005, and S.D., a girl born in 2003, and Father is also their presumed father. S.K. and S.D. were declared dependents and ordered removed from Mother's and Father's custody along with H.T. and S.M.T.; but Father challenges only the jurisdictional findings and dispositional orders concerning himself, H.T., and S.M.T.
Father claims plaintiff and respondent, San Bernardino County Children and Family Services (CFS), does not dispute, and we agree, that Father's challenges to the jurisdictional findings involving Father's conduct are justiciable, even though, if Father's claims have merit, H.T. and S.M.T. will remain dependents of the juvenile court based on the uncontested jurisdictional findings against Mother. "'[W]hen, as here, the outcome of the appeal could be "the difference between father's being an 'offending' parent versus a 'non-offending' parent," a finding that could result in far-reaching consequences with respect to these and future dependency proceedings, we find it appropriate to exercise our discretion to consider the appeal on the merits.' [Citations.]" (In re Andrew S. (2016) 2 Cal.App.5th 536, 542 fn. 2; cf. In re I.A. (2011) 201 Cal.App.4th 1484, 1492-1494 [noting that a minor is a dependent of the juvenile court if he or she is described in § 300 based on the actions of either parent, and dismissing father's appeal challenging jurisdictional findings against father, where there were unchallenged jurisdictional findings against mother, and father identified no "specific potential impact" on the dependency proceedings if the jurisdictional findings against father were reversed].)
We affirm the challenged jurisdictional findings and dispositional orders. As we explain, substantial evidence supports the jurisdictional findings against Father and the dispositional orders removing S.M.T. and H.T. from Father's custody.
II. FACTS AND PROCEDURAL BACKGROUND
A. Events Underlying the Children's Dependency
On June 23, 2015, CFS received a referral alleging, among other things, that Father's side of the family had a history of abusing controlled substances, namely, methamphetamines and marijuana. On July 6, 2016, the social worker contacted Father. Father advised the social worker that his and Mother's four children, namely, S.M.T., H.T., S.K., and S.D., were not with him but were staying with Mother in Victorville because Father was "having issues with babysitting." Father claimed Mother had mental health issues. Father told the social worker he wanted custody of all four children and that he and Mother had an upcoming family court hearing on July 11, 2016 to determine custody and visitation.
On July 7, 2016, CFS received another referral alleging Mother and Father had attended a family court mediation on June 21, 2016 and admitted to domestic violence in the home in front of the children. The referral also alleged Mother had mental health issues and Father had a substance abuse problem. On July 11, Father advised the social worker by telephone that the family court had given him temporary physical custody of S.M.T. and H.T., and that he and Mother had to return to family court on September 9, 2016.
On July 19, 2016, a social worker went to Father's home, which Father shared with the paternal grandmother (the PGM), for a scheduled appointment. Father was not at home; he was at work, and the PGM was caring for S.M.T. and H.T. The PGM told the social worker she believed Mother had mental health issues and that Father had issues with alcohol and managing his anger. H.T. and S.M.T. appeared healthy, clean, well groomed, and had no visible marks or bruises. H.T. was not interviewed because she was only 16 months old. S.M.T. was five years old, but was not interviewed because he had a speech delay and was unable to understand the social worker's questions.
On July 22, the social worker spoke with Mother by telephone. Mother reported she had separated from Father on March 16, 2016, because Father was physically and verbally abusive toward her in front of the children. Mother claimed Father was addicted to marijuana, methamphetamines, and alcohol, that Father would "panhandle for beer," and that Mother was the sole provider for the family. Mother also asserted that Father made false accusations concerning Mother's mental health. Mother admitted having bipolar disorder, and reported she was lawfully using medical marijuana to treat her bipolar disorder, but related that she had stopped using her prescribed psychotropic medication due to an allergy. Mother further stated she was worried about the safety of the children in the PGM's care because the PGM used methamphetamines.
Also on July 22, the social worker interviewed Father at CFS offices. Father said he and Mother were engaged to be married but separated on March 16 because Mother attacked him while he was holding H.T. He admitted there was verbal abuse in the home, including swearing and name calling, but claimed he was the victim and "took it" because of the children. He denied any physical domestic violence and claimed the verbal abuse never occurred in front of the children. He was "very sad" because he had lost his stepdaughters, S.D. and S.K., due to Mother's behavior. He admitted using marijuana and drinking beer, but claimed he stopped because the family court ordered him to stop. He refused to drug test for CFS, saying he would test positive for marijuana.
Father claimed Mother had "serious mental health issues," including bipolar disorder and schizophrenia, and claimed she "hears voices and she talks to God and to herself." Father played a recording of Mother making statements the week before July 22, 2016, such as: "'[M]y family is a piece of shit. . . . I am going to get on a train and leave my children . . . . My mom can kiss my ass . . . . Fuck my life, fuck my family . . . . I am bouncing . . . . Nobody is fucking mak[ing] me stay . . . . You guys do not have what I want . . . . The law is not helping me. . . .'" Father recorded Mother making these statements the week before July 22, 2016, when he went to see Mother after the family court ordered S.M.T. and H.T. "to be with him."
Also on July 22, the social worker interviewed S.K., then age 10, S.D., then age 13, and their maternal grandmother (the MGM) at the MGM's home where S.D. and S.K. were staying for several days. S.K. reported there was domestic violence in the family's home: Mother and Father used to argue "a lot" and sometimes the arguments became physical. S.K. denied Mother had any mental health issues and denied seeing Mother talking to herself or displaying any unusual behaviors. S.K. and S.D. each denied seeing Mother or Father use drugs in the home.
According to the MGM, Mother was diagnosed with bipolar disorder when she was young, but Mother had never been diagnosed with nor displayed any symptoms of schizophrenia. The MGM reported that Father had been arrested for domestic violence, and once broke the MGM's front door down trying to see Mother. The MGM believed Father used drugs because he had lost a lot of weight. According to the MGM, Father "like[d] to drink all the time," did not work, and lived off Mother. The MGM was concerned for the safety and well-being of her grandchildren in Father's care.
On July 26, 2016, a team decision meeting (TDM) was held at CFS offices. During the TDM, Mother and Father made allegations of domestic violence against each other, and took no responsibility for their actions. Father admitted having a history of using methamphetamine and marijuana, and Mother admitting using marijuana to treat her bipolar disorder. At the meeting, CFS was unable to devise a plan to keep the children safe in either parent's custody due to the parents' lack of insight. At the conclusion of the TDM, Mother signed a declaration releasing her children to CFS and stated she thought that was best for the children. Father left the TDM and did not want to engage with the social worker or her supervisor.
In a detention report dated July 29, 2016, the social worker reported the foregoing and opined it appeared that the parents engaged in domestic violence in front of the children, placing the children at risk of severe physical and emotional harm, and that the parents were using drugs and had untreated mental health issues which impaired their ability to parent and protect the children. Additionally, the parents lacked insight, blamed each other for their mistakes, and were unlikely to comply with voluntary family maintenance services.
The detention report also stated that the family had six substantiated referrals for general neglect between 2003 and 2010. In 2006, Mother received voluntary services from the Los Angeles County Department of Children and Family Services for S.K. and S.D., due to allegations of domestic violence and neglect. As recently as February 2016, preventative services were offered to the family after CFS investigated a referral alleging that Father had physically abused S.D.
The detention report also stated that both parents had criminal histories but did not specify whether their criminal histories included convictions. The detention report stated Father had been charged with possession, sale, and transportation of controlled substances but did not state when the charges were brought or whether defendant was convicted of the charges.
Also according to the detention report, Father had a "criminal history" for driving under the influence in 2015; corporal injury on a spouse in February 2012; violating a court order to prevent domestic violence in November 2012; and corporal injury on a spouse in July 2014, identified as "PC 273.5(A) Domestic Violence[.]" In 2011, Mother had a "criminal history" for "[b]attery on spouse." B. The Dependency Court Proceedings
1. The Petitions and Detention Hearing
On July 28, 2016, CFS filed petitions on behalf of all four children. As pertinent to this appeal, the petitions for H.T. and S.M.T. alleged the juvenile court had jurisdiction pursuant to section 300, subdivision (b), based on Father's domestic violence, substance abuse, and mental health issues. At the detention hearing on July 29, the court denied Father's request to release all four children to Father's custody. The court found a prima facie showing had been made that the children were described in section 300, ordered the children detained and temporarily removed from parental custody, and made additional orders, including that the parents submit to drug and alcohol tests.
In asking that the four children be returned to Father, Father's counsel noted that the family court had temporarily allowed all four children to live with Father, as long as Father was living with the PGM and the PGM had enough room for all four children. Father was working full time, had a stable income, was able to provide for the children, and was already enrolled in an anger management program and an outpatient substance abuse program. CFS countered that the family court had ordered Father to report to CFS within 24 hours of the family court mediation, and this indicated that the family court "recognized that there were issues going on in the case."
2. The Jurisdiction/Disposition Report
The jurisdictional/dispositional hearing was originally scheduled for August 22, 2016, but on August 22, the hearing was continued to September 28 to allow the parents and CFS to engage in mediation, among other reasons. In its jurisdiction/disposition report (the J/D report) filed on August 18, CFS recommended that the court find the allegations of the petitions true, that Father be declared the children's presumed father, that the children be ordered removed from parental custody, and that both parents receive reunification services.
According to the J/D report, Father met with a social worker on August 8 and said he would like presumed father status for S.K. and S.D., as well as his biological children, H.T. and S.M.T. Father had been in the older girls' lives for 10 years and considered them his daughters. He denied all of the allegations of the petitions, claiming Mother had "made up or blown up" "everything."
Father reported there was no longer any domestic violence in his home because he and Mother were no longer together. Father was once arrested for domestic violence with Mother but claimed it was an isolated incident and denied any domestic violence in his previous relationships. Father also denied he had a substance abuse problem. He admitted he had a history of drinking alcohol and smoking marijuana but denied ever using methamphetamine. He claimed he stopped using "everything, but beer" when he obtained custody of H.T. and S.M.T. in the family court. He last smoked "a joint" and drank beer on July 4, 2016, but it was "not around his kids."
On July 19, 2016, when the PGM reported that Father had issues with alcohol and anger management, the PGM said Father was only allowed to have one beer daily. Father tested negative for all drugs on August 22 and August 31, but Father walked out of a drug test on July 29, the date of the detention hearing, after refusing to follow instructions and submit to the test. By August 21, Father had completed four weeks of anger management classes.
On August 8, when asked about a previous arrest, Father reported he was "busted for sales and trafficking in 2004" after he borrowed a friend's car, was pulled over, and methamphetamine was found under the driver's seat. He fought the charges but lost the case "because of how the cops wrote the report." In discussing possible placement of the children with the PGM, Father said the PGM "got busted for possession five years ago." When he was living with Mother, Father had to intervene between Mother and the children due to Mother "becoming agitated and yelling" at the children.
On August 9, S.K. reported feeling safe around Father, and S.D. reported having a "good bond" with him. As previously reported, S.K. said Father used to drink beer "a lot" but denied ever seeing him use drugs. S.D. reported that after Father obtained custody of H.T. and S.M.T., he would come to Mother's home and "he would look after us, fix her car, he wanted to be my mom's friend." S.D. agreed that Mother "used to get mad and yell at us."
On August 15, Mother reported she and Father had a history of domestic violence, and that was the reason they separated in March 2016. S.D. reported, however, that Mother "just used DV on [Father] because she thought she [would] win her case" in the family court. Mother also reported that Father "abuses methamphetamines" and came to her home in June under the influence. She observed Father use the drug at her house and told him to leave. Mother denied Father had ever molested the children but admitted making such allegations.
3. The Mediation (Between CFS and Mother)
On September 28, before the jurisdictional/dispositional hearing (the J/D hearing), Mother and CFS participated in a mediation to address the allegations of the petitions and disposition. Father did not attend the court-ordered mediation. At the mediation, Mother agreed to submit to the allegations of the petitions against her as written, including that she had a history of engaging in domestic violence in front of the children, which placed the children at risk; she used medical marijuana which, if used inappropriately, placed the children at risk; and she had been diagnosed with bipolar disorder which, if untreated, placed the children at risk. Mother also agreed to participate in reunification services.
4. The J/D Hearing
(a) The Evidence Presented at the J/D Hearing
At the J/D hearing on September 28, the juvenile court admitted the detention and J/D reports into evidence. As agreed, Mother submitted to the jurisdictional allegations of the petitions against her as written, but with minor changes made by the court to clarify the allegations. The hearing proceeded on the allegations against Father.
Father testified at the J/D hearing. He confirmed that, due to an interim family court mediation, H.T. and S.M.T. were released to his care and custody in the summer of 2016, and the PGM had helped Father care for them. Father had known Mother for 10 years. He claimed the only domestic violence in the relationship occurred when Mother attacked him "in the bedroom when the kids were outside," and he was no longer in a relationship with Mother due to the domestic violence. He worked as a subcontractor and had a stable income and a home with sufficient room for all four children. He wanted all of the children returned to his custody.
Father admitted having a February 22, 2012 conviction for inflicting corporal injury on a spouse. He denied violating a domestic violence restraining order on November 14, 2012, but admitted that a restraining order was issued based on the 2012 domestic violence case. The incident in which Mother attacked him in the bedroom when the children were outside occurred after 2012, and he was not arrested for that incident. Father denied a July 12, 2014 domestic violence charge, saying he had "no clue" why that charge was "on there," apparently referring to the detention and J/D reports. Father also admitted he had "one DUI" (driving under the influence) in 2015.
Father accepted "fault" for the domestic violence with Mother, saying he was unable to control his emotions and anger. He and Mother "pushed each other's buttons" and "[i]t wasn't healthy for the kids." He had, however, benefited from his anger management classes. He had "learned to listen and observe other people's actions," and he planned to continue participating in anger management classes after he completed his 12-week course. He was also willing to enroll in individual counseling, but he denied any mental health issues.
When asked whether he was addicted to marijuana, Father denied having "an addiction to anything." He had last used marijuana and alcohol on July 4, 2016, but it was not around the children, and he had a valid medical marijuana card. He denied having ever used methamphetamine around the children, and he had last used methamphetamine one or two years earlier. He did not "abus[e]" methamphetamine; he "used it," and he did not go through any treatment program for it because he stopped using it.
(b) Counsel's Arguments
At the conclusion of the hearing, Father's counsel argued there was insufficient evidence that any of the children were currently at risk of any emotional or physical harm if returned to Father's custody. Father's counsel emphasized that the parents' domestic violence was "in the past" because the parents were no longer together. Father's criminal history and methamphetamine use was also "in the past," and Father's more recent use of marijuana and alcohol outside the presence of the children did not place the children at risk. Father's counsel asked the court to dismiss the petitions and return the children to Father's care.
County counsel, representing CFS, emphasized that a referral was received "right after" the parents attended the interim family court mediation in June 2016, and the family court's temporary orders placing H.T. and S.M.T. with Father were conditioned on Father residing with the PGM, completing an anger management program, and not using any illegal substances or alcohol before he would be around the children. County counsel also emphasized that many witnesses had reported that Father had anger management and alcohol issues; that the parents' domestic violence problems were recent; that Father refused to drug test on July 29 despite being ordered to drug test at the July 29 detention hearing; and that Father had yet to complete a substance abuse program or his 12-week anger management program. While county counsel was making her argument, the court admonished Father not to make any "mutterings" or "running commentary" and allow county counsel to make her argument. Father said, "I would just like it to be true," then apologized.
(c) The Juvenile Court's Findings and Orders
The juvenile court sustained the B-4 (domestic violence) and B-5 (substance abuse) allegations of the petitions, namely, that Father "engages in domestic violence in front of the [children], placing the [children] at risk of serious emotional and physical harm" (the B-4 allegation) and that Father "has an ongoing substance abuse problem which impairs his ability to provide appropriate care and supervision for the [children]" (the B-5 allegation). The court dismissed allegations that Father "has mental health issues which impair[] his ability to provide appropriate care and supervision for the [children]" (the B-6 allegation), after noting it had not received "any evidence" concerning Father's mental health issues. The court also declared all four children dependents of the court and found that Father was the children's presumed father.
Regarding disposition, the court found clear and convincing evidence that the children were at substantial current risk of harm if returned to Father's care, given Father's "issues of anger management, alcohol abuse, [and] domestic violence." The court further found that reasonable efforts had been made to eliminate the need for the children's removal. The court then ordered the children removed from parental custody and placed in the custody of CFS. The court also ordered reunification services for both parents. When the court stated that reasonable efforts had been made to eliminate the need for the children's removal, Father interrupted the court, saying, "No, there wasn't," and was admonished not to make comments while the court was speaking. Father timely appealed from the dispositional orders.
III. DISCUSSION
A. Substantial Evidence Supports the B-4 and B-5 Jurisdictional Findings
Father challenges the sufficiency of the evidence supporting the court's true findings of the allegations of the petitions for H.T. and S.M.T. concerning Father, namely, the B-4 (domestic violence) and B-5 (substance abuse) findings. Father argues there was insufficient evidence that H.T. and S.M.T. were currently at risk of physical or emotional harm at the time of the J/D hearing because: (1) he was no longer living with Mother; thus his domestic violence with Mother was in the past, and (2) there was insufficient evidence that he was using or abusing alcohol, marijuana, or methamphetamine at the time of the J/D hearing.
1. Standard of Review and Applicable Legal Principles
At a jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. (§ 355, subd (a).) The petitioner has the burden of proving by a preponderance of the evidence that the child is described in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; § 355, subd. (a).)
"In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388.)
Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Angela P. (1981) 28 Cal.3d 908, 924, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) "However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, '[w]hile substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations.]' [Citation.] 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' [Citation.]" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
"Jurisdiction under section 300, subdivision (b)(1) requires proof that a child 'has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the minor . . . .' [Citation.] [And] '[w]hile evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' [Citation.]" (In re M.W. (2015) 238 Cal.App.4th 1444, 1453, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 820, fn. 4, 824.)
"Thus, domestic violence between a child's parents may support the exercise of jurisdiction only if there is evidence that the violence harmed the children or placed them at risk of harm, and 'the violence is ongoing or likely to continue . . . .' [Citation.]" (In re M.W., supra, 238 Cal.App.4th at p. 1453, italics added; In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) Similarly, a substance abuse finding for purposes of section 300 "'must be based on evidence sufficient to . . . establish that the parent . . . has a current substance abuse problem . . . .'" (In re Natalie A. (2015) 243 Cal.App.4th 178, 185, italics added.)
In re Natalie A. adopted the "'full definition of "substance abuse" found in the DSM-IV-TR [American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000]]'" and previously adopted in In re Drake M. (2012) 211 Cal.App.4th 754, 766. (In re Natalie A., supra, 243 Cal.App.4th at p. 185.) However, the court in In re Christopher R. (2014) 225 Cal.App.4th 1210 at pages 1217 to 1219, declined to follow In re Drake M.'s adoption of the DSM-IV-TR's more recent definition of substance abuse, reasoning that the definition was "not a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court." (In re Christopher R., supra, at p. 1218.) Thereafter, the court in In re Rebecca C. (2014) 228 Cal.App.4th 720 at pages 725 to 727 declined to read In re Drake M. or Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 as supporting the proposition that "a medical diagnosis of a substance abuse problem [or a showing of the types of factors involved in such a diagnosis] is a required element of proof to find a substance abuse [problem]" for purposes of section 300, subdivision (b). (In re Rebecca C., supra, at p. 725.) We agree with In re Christopher R.—a showing of a medical diagnosis of substance abuse, or the factors underlying such a medical diagnosis, is not required to support a finding of jurisdiction under section 300, subdivision (b), based on substance abuse. (In re Christopher R., supra, at p. 1218.)
The court, however, "need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's '"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citation.]" (In re Christopher R., supra, 225 Cal.App.4th at p. 1216.)
2. Substantial Evidence Supports the B-4 (Domestic Violence) Finding
Here, substantial evidence supports the court's B-4 finding that Father "engages in domestic violence" in front of H.T and S.M.T., placing the children "at risk of serious emotional and physical harm." Additionally, substantial evidence supports the court's implied findings that, at the time of the J/D hearing on September 28, 2016, Father's domestic violence was ongoing or likely to continue, placing H.T. and S.M.T. at risk of harm. (In re M.W., supra, 238 Cal.App.4th at p. 1453.)
First, substantial evidence shows Father and Mother engaged in domestic violence for several years before they separated and stopped living together in March 2016. S.K. reported that Mother and Father "argue[d] a lot," sometimes the arguments became "physical," and they would "shove each other." According to S.D., it was "pretty normal that they argue." The PGM and the MGM both reported that Father had problems managing his anger. Father once broke down the MGM's front door trying to see Mother. Father admitted there had been "verbal abuse" in the home with Mother, including "cussing and name calling." At the family court mediation on June 21, 2016, the parents admitted to domestic violence in the home in front of the children. Father also had a February 22, 2012 conviction for inflicting corporal injury on a spouse, and a restraining order was issued against him based on the 2012 domestic violence case. The family had six substantiated referrals for general neglect, mainly due to domestic violence. And, when interviewed by CFS on July 22, 2016, Father denied responsibility for the domestic violence, claiming he was the victim.
Additionally, substantial evidence shows that, at the time of the J/D hearing, Father was likely to continue engaging in domestic violence, even though he and Mother separated in March 2016 and were no longer living together. Even after the parents stopped living together, Father would show up at Mother's home, and "continued to harass the mother and break things." To his credit, at the J/D hearing, Father accepted "fault" for the domestic violence with Mother, saying he had been unable to control his emotions and anger. This showed Father was gaining insight into the domestic violence between himself and Mother. But at the time of the J/D hearing, Father had only completed four weeks of a 12-week anger management course.
All of this evidence showed Father still had problems managing his anger and was likely to continue engaging in domestic violence with Mother, placing S.M.T. and H.T. at a substantial risk of physical and emotional harm. Although it is true, as Father asserts, that having an anger management problem does not necessarily result in domestic violence, in this case it had manifested itself in that way, including, but not limited to, Father's actual conviction for domestic violence in 2012.
3. Substantial Evidence Supports the B-5 (Substance Abuse) Finding
Substantial evidence also supports the court's B-5 finding that, at the time of the J/D hearing, Father had "an ongoing substance abuse problem which impairs his ability to provide appropriate care and supervision" for S.M.T. and H.T. Several witnesses, including S.K., the PGM and the MGM reported that Father drank beer excessively and had a problem with alcohol. The MGM reported Father "like[d] to drink all the time," and she was concerned for the safety of the children in Father's care. Father had "one DUI" in 2015.
In August 2016, Father admitted he had a history of drinking alcohol and smoking marijuana. He claimed he last drank beer and smoked marijuana on July 4, 2016, and it was "not around the kids." However, July 4 was only two weeks after Father obtained temporary custody of H.T. and S.M.T. in the family court on June 21, 2016. On June 21, the family court ordered Father to drug test and not to use "any illegal substance" 12 hours prior to or during Father's custodial time with the children. Apparently, Father violated the family court order by using marijuana during his custodial time with the children.
Father initially denied ever using methamphetamine. At the J/D hearing, however, Father did not deny past methamphetamine use and claimed he last used methamphetamine a year or two earlier, though Father claimed he "never had an addiction to anything." Mother reported that Father "abuses methamphetamines," that Father came to her home in June 2016 under the influence, and that Father then used methamphetamine at her home. Mother also claimed Father was addicted to marijuana, methamphetamines, and alcohol, that he did not work, and he would "panhandle for beer." The MGM believed Father used "drugs" because he had lost a lot of weight.
Father also refused to drug test when the juvenile court ordered him to do so following the detention hearing on July 29, 2016, admitting he would test positive for marijuana, although Father tested negative for all controlled substances on August 22 and August 31, 2016. At the J/D hearing, no evidence was presented that Father had completed or had made any substantial progress in the outpatient substance abuse program he claimed he had enrolled in at the time of the July 29, 2016 detention hearing.
All of this evidence supported a reasonable inference that Father had an ongoing substance abuse problem at the time of the J/D hearing which impaired his ability to appropriately care for and supervise H.T. and S.M.T. Although CFS did not dispute that Father was employed and capable of financially supporting H.T. and S.M.T. at the time of the J/D hearing, substantial evidence showed Father recently "[did] not work," "panhandle[d] for beer," and "live[d] off [Mother]." Thus, based on the entire record, the court reasonably concluded that Father's ongoing substance abuse problem impaired his ability to appropriately care for and supervise H.T. and S.M.T.
Furthermore, H.T. was only 18 months old and S.M.T. was only five years old at the time of the J/D hearing. As such, they were children of "'such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. [Citations.]'" (In re Drake M., supra, 211 Cal.App.4th at p. 767; In re Rocco M., supra, 1 Cal.App.4th at p. 824; In re Christopher R., supra, 225 Cal.App.4th at p. 1219.) In such cases, "the finding of substance abuse is prima facie evidence of the inability of [the] parent . . . to provide regular care resulting in a substantial risk of physical harm." (In re Drake M., supra, at p. 767.) Thus here, CFS "needed only to produce sufficient evidence that [F]ather was a substance abuser in order for dependency jurisdiction to be properly found." (Ibid.) CFS met this burden, and substantial evidence shows Father was a substance abuser at the time of the J/D hearing.
Father relies on In re Rebecca C., supra, 228 Cal.App.4th 720, to support his claim that insufficient evidence shows his ongoing substance abuse problem posed a risk of physical or emotional harm to H.T. and S.M.T. The In re Rebecca C. court concluded that, although substantial evidence showed the mother had a substance abuse problem, insufficient evidence showed that her substance abuse problem caused or was causing a substantial risk of harm to her 13-year-old child, Rebecca, because the family home "was clean, free of hazards, stocked with food, and clear of drugs and firearms. Rebecca denied any physical or emotional abuse, did not show any signs of physical abuse, and was not fearful of Mother." (Id. at p. 727; § 300, subd. (b).)
In re Rebecca C. is distinguishable because it involved a 13-year-old child who, in the words of In re Rocco M., "was old enough avoid the kinds of physical dangers which make infancy an inherently hazardous period of life." (In re Rocco M., supra, 1 Cal.App.4th at p. 825 [questioning whether sufficient evidence showed the mother's neglectful conduct posed significant risk of harm to 11-year-old Rocco M., who was capable of avoiding the physical dangers posed by the mother's neglect, but finding substantial evidence of a significant risk of physical harm because the mother exposed Rocco M. to "ingest[ing] hazardous drugs"].) In contrast to In re Rebecca C. and In re Rocco M., Father's ongoing substance abuse problem posed a risk of physical harm to H.T. and S.M.T. because, at their tender ages, they were incapable of protecting themselves from the inherent risks of harm, or inadequate supervision and care, posed by Father's substance abuse problem. (In re Drake M., supra, 211 Cal.App.4th at p. 767; In re Rocco M., supra, at pp. 824-825.) B. Substantial Evidence Supports the Removal Orders
Father also claims insufficient evidence supports the dispositional orders removing H.T. and S.M.T. from his custody (the removal orders). We disagree and conclude that substantial evidence supports the removal orders.
Under section 361, subdivision (c), a child may not be removed from the physical custody of the parent with whom the child resided at the time the dependency petition was filed, unless the juvenile court finds, based on clear and convincing evidence, that one of several circumstances exist. (§ 361, subd. (c)(1)-(c)(5).) Here, the juvenile court found clear and convincing evidence that there was or would be "a substantial danger to the physical health, safety, protection, or physical or emotional well being" of H.T. and S.M.T. if they were returned to either parent's custody at the time of the J/D hearing, and there were "no reasonable means" of protecting the children from such dangers without removing them. (§ 361, subd. (c)(1).)
"A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child 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.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]" (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.) We review a removal order for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881 [clear and convincing standard "'disappears'" on appeal and court assesses whether there is substantial evidence to support the order or judgment].)
Here, substantial evidence shows that, at the time of the J/D hearing, Father was unable to provide appropriate care for H.T. and S.M.T.; there was a substantial risk of danger to the children if they were returned to Father's custody; and there were no reasonable means of protecting the children from these dangers without removing them from Father's custody. As discussed, Father had a long history of domestic violence with Mother and an ongoing anger management problem. He admitted he had problems controlling his emotions and his anger, and he had only completed four weeks of a 12-week anger management course. In addition, he had only recently begun to address his substance abuse problem. These problems posed a significant risk to the health and safety of 18-month-old H.T. and five-year-old S.M.T.
Father argues that less restrictive options than removing the children from his custody were available but were not considered by the juvenile court, including placing H.T. and S.M.T. with Father upon the conditions that Father (1) live with the PGM, (2) have no direct contact with Mother, (3) continue in counseling, and (4) allow CFS to conduct unannounced visits in the home. We disagree. Substantial evidence shows that Father's ongoing substance abuse and domestic violence problems would have subjected H.T. and S.M.T. to a substantial risk of physical and emotional harm, even if the children were returned to Father under the conditions Father postulates. Because H.T. and S.M.T. were only 18 months and five years old at the time of the J/D hearing, the juvenile court reasonably could have concluded that they were far too young to risk being subjected to Father's domestic violence and substance abuse, under any circumstances.
Father relies on In re Henry V. (2004) 119 Cal.App.4th 522, where insufficient evidence supported the juvenile court's order removing four-year-old Henry V. from his mother's custody. (§ 361, subd. (c)(1).) The mother physically abused Henry V. by burning his buttocks with a lamp or curling iron. (In re Henry V., supra, at pp. 525-526.) The physical abuse of Henry V. "was apparently a single occurrence," and neither the child protective services agency nor the juvenile court considered the incident to be an obstacle to the mother's reunification with Henry V. in the near future. (Id. at p. 529.) Thus, there was insufficient evidence that Henry V. would be at a substantial risk of further physical harm if returned to his mother. (See ibid.) Here, Father's ongoing domestic violence and substance abuse problems were not based on isolated incidents, and would have placed the children at a substantial risk of physical or emotional harm.
Additionally, the record on appeal in In re Henry V. indicated that neither the agency nor the juvenile court understood that the removal order had to be based on clear and convincing evidence. (In re Henry V., supra, 119 Cal.App.4th at p. 530.) But here, the juvenile court found, based on clear and convincing evidence, that there were no reasonable means of protecting the children from a substantial risk of physical and emotional harm without removing them from Father's custody, and for the reasons discussed, substantial evidence supports this finding.
IV. DISPOSITION
The September 28, 2016 B-4 and B-5 jurisdictional findings regarding H.T. and S.M.T., and the dispositional orders removing the children from Father's custody, are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.