L. A. Cnty. Dep't of Children & Family Servs. v. Paul D. (In re E.D.)

230 Cal.Rptr.3d 568

IN RE E.D., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Paul D., Defendant and Appellant.

B284657

Court of Appeal, Second District, Division 1, California.

Filed March 1, 2018

Jacques Alexander Love, Palmdale, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.

JOHNSON, J.

Paul D. (father) appeals from the juvenile court's order of dependency jurisdiction over E.D. (child), age two, under Welfare and Institutions Code section 300, subdivision (b)(1) (failure to protect),¹ on the ground that the order was not supported by substantial evidence. As the evidence was insufficient to show a substantial risk of serious physical harm or illness to the child, we reverse the juvenile court's order as to father only.

BACKGROUND

I. The domestic violence incident

On May 12, 2015, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging emotional abuse by father and general neglect by mother (who is not a party to this appeal). The referral alleged that father struck mother while she was holding child. At the time of the incident, child was only two months old, mother was 17 years old, and father was 21 years old. Mother indicated to the police at the time of the incident that father had never threatened or used a weapon against her and had never threatened to kill her, and that she was not in fear of her safety. Following the incident, mother obtained a restraining order against father on behalf of herself and child; mother ended her relationship with father; and DCFS deemed the referral inconclusive on those grounds. The restraining order provided, inter alia, that father was to have "no personal, electronic telephonic, or written contact" with mother or child, except for court-ordered visitation and the safe exchange of child.

II. Mother's arrest

On January 6, 2017, mother and child were passengers in a vehicle stopped by the police for a traffic violation. During the stop, the police discovered 11 grams of methamphetamine (meth) and two grams of marijuana on mother. Mother disclosed to the police that she frequently used meth and had last used the drug three days earlier. Mother also stated she was on her way to the paternal grandmother's home, where father lived, because he cared for child on weekends, while she cared for child on weekdays. Police arrested mother for felony possession of meth for sale. This incident resulted in a child welfare referral to DCFS.

III. DCFS's prepetition investigation and petition

A. THE PREPETITION INVESTIGATION

On January 11, 2017, a DCFS social worker went to the paternal grandmother's home, where she encountered both father and mother. Father informed the social worker that the paternal grandmother was away on errands and that he was taking care of child while mother was asleep in another room. The social worker observed that child was "appropriately dressed" and "running around playing." The social worker interviewed mother and father individually.

Mother told the social worker that she began using meth approximately 18 months earlier.² She typically used meth when child was on weekend visits with father, though she admitted also using meth while child was in her care. She claimed father did not know she still used meth because they had "little contact." Mother also stated that "she went to court ... to get the [restraining] order lifted but the judge would not allow it until [father] completed a court ordered domestic violence class."

Father admitted to the social worker that he had repeatedly violated the restraining order based on his continuing physical contact with mother and child. He claimed the paternal grandmother took care of child during weekend visits, though he acknowledged having contact with child because he also lived in the home. Father additionally stated he had enrolled in a 52–week domestic violence batterer's program following the domestic violence incident and provided to the social worker a document that appeared to be a sign-in sheet indicating he had started the program in February 2016 and had attended 38 sessions since that time.

That same day, after concluding her interviews of mother and father, the social worker made a temporary safety plan that was agreed upon by the parents. Among other things, the plan provided that child would be supervised by either the paternal grandmother or the maternal grandfather at all times and that the parents were prohibited from having any unsupervised contact with child.

The social worker subsequently investigated mother and father's criminal histories. Mother had a misdemeanor conviction for reckless driving in 2016 and arrests for driving under the influence of drugs in 2016, and possession of meth for sale in 2017. Father had a felony conviction for assault by means likely to produce great bodily injury in 2013, and misdemeanor convictions for possession of meth in 2014 and corporal injury on a spouse or cohabitant in 2015, along with several arrests in 2013–2014 for drug- and violence-related crimes.

B. THE PETITION

On February 6, 2017, DCFS filed a petition on behalf of child under section 300, subdivisions (a) and (b). The petition generally alleged child was at risk of physical harm based on father's actions during the domestic violence incident, father's convictions for violent crimes, and father's violation of the restraining order and mother's history of substance abuse and her possession of meth while in a vehicle with child. At the detention hearing held that same day, the juvenile court found father to be child's presumed father, detained child from both parents, granted the parents monitored visits, ordered father and mother to submit to drug testing, and further ordered mother to enroll in substance abuse and parenting programs.

IV. The jurisdiction and disposition hearing

On April 28, 2017, the juvenile court held a combined jurisdiction and disposition hearing. At the hearing, the court admitted into evidence three documents: the DCFS's prepetition detention report and two post-petition reports—a jurisdiction and disposition report, dated April 4, 2017; and a last minute information report, dated April 28, 2017.

The jurisdiction and disposition report, inter alia, stated that both father and mother confirmed that father had struck mother once—a single punch or slap to the forehead—which led to the restraining order. The jurisdiction and disposition report also stated that child "appears to be developing in a timely manner and reaching her developmental milestones in all areas except speech." A DCFS assessment of child found, inter alia, that father was affectionate and protective of child and that child enjoyed interactions with father.

The last minute information report advised the juvenile court that father had informed the social worker that he had completed his domestic violence batterer's program and had enrolled in individual counseling. In addition, the report stated that father's probation officer had told DCFS's representative that father was "in compliance and reports in on a regular basis" and that the probation officer "does not have any concerns [about father] at this time."

At the hearing, the juvenile court dismissed the count brought pursuant to section 300, subdivision (a) [child had suffered or was at risk of suffering nonaccidental harm] and sustained the counts brought pursuant to section 300, subdivision (b) [child had suffered or was at risk of suffering harm]. The court found jurisdiction over the father for two principal reasons: First, despite the existence of the criminal protective order, father continued to have "significant physical contact" with mother and child. Second, the court believed father to be less than truthful. Specifically, the juvenile court found that neither father's representations to the police about his 2013 assault conviction³ nor his denial of any knowledge about mother's drug use were credible.

With regard to disposition, the juvenile court found that "by clear and convincing evidence that remaining in the home of parents would pose substantial danger to the child's physical health, safety, and emotional well-being." Accordingly, the court declared child a dependent of the court, removed child from both parents' custody, but allowed monitored visitation by parents and ordered DCFS to provide family reunification services.

As for father's reunification plan, the court ordered father to (a) submit to six consecutive drug tests with the further provision that if any of those tests were missed or "dirty," father would be required to complete a full drug rehabilitation program and (b) complete a domestic violence program, a parenting program, and individual counseling. Father's counsel objected unsuccessfully to the drug testing requirement on the ground that "what's been sustained is mother's drug use, not father's drug use." Father timely appealed.

DISCUSSION

I. Father's appeal is "justiciable"

Father contends that the evidence is insufficient to support the court's jurisdictional finding as to him. DCFS argues, however, that, because the jurisdictional findings as to mother are uncontested, we would not reverse the juvenile court's jurisdictional finding even if father's arguments were accepted. (See In re I.A . (2011) 201 Cal.App.4th 1484, 1489, 134 Cal.Rptr.3d 441.) DCFS consequently asks us to dismiss this appeal for lack of a justiciable issue.

As a general rule, " ‘a minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions.’ " ( In re X.S . (2010) 190 Cal.App.4th 1154, 1161, 119 Cal.Rptr.3d 153.) However, California courts have held that discretion may be exercised to reach the merits of the other parent's...