Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK68929. Jacqueline H. Lewis, Referee.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant Kevin S.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Y. D.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
The minor Paris S. was found to be a dependent child of the court pursuant to section 300, subdivision (b) of the Welfare and Institutions Code (section 300(b)), based on “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.” Paris was removed from the custody of her parents, Y. D. (Mother) and Kevin S. (Father), and suitably placed with a friend of the family. Mother and Father have appealed. They contend: (1) There was no substantial evidence to support the jurisdictional order. (2) There was no clear and convincing evidence to support the order removing Paris from their care, and it was an abuse of discretion to do so. (3) Some of the dispositional orders were erroneous.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
We reverse two of the dispositional orders, modify another, and otherwise affirm.
PROCEDURAL HISTORY AND FACTS
Many of the facts come from reports of the Los Angeles County Department of Children and Family Services (the Department) that were introduced as exhibits at the contested jurisdictional hearing.
Mother and Father met in 1997. Paris was born in November 1998. Father, Mother and Paris began living together in 1999 or 2000. Mother and Father never married. A young female cousin of Paris’s named Demi joined the household in 2006. Demi later had a separate dependency case that is not part of this appeal.
On June 22, 2007, police officers arrived with a search warrant. Before they announced themselves, Father left through the front door and began driving away. The officers stopped him. He had $2,233 in cash on his person.
The officers returned to the house and announced that they were present with the warrant. They forced entry because they heard sounds of somebody running inside the house. They found eight-year-old Paris and 11-year-old Demi in a bedroom. Mother was standing in the kitchen by the sink, where the water was running. A digital gram scale and razor blade were on the counter near her. A white solid resembling rock cocaine was recovered from the garbage disposal. Inside the oven, the police found “additional loose off white solids resembling rock cocaine,” some U.S. currency, and a dental bill addressed to Father. They also found small amounts of currency in a pot on the stove, on Mother’s person, and in her purse. In a closet in the bedroom, there were three baggies that contained a powdered substance the police mistakenly thought was cocaine. No paraphernalia for drug use was found.
Mother and Father were arrested for possession of rock cocaine for sale. Father had a criminal record that included possession or purchase of cocaine base for sale. Mother had no criminal record.
The two samples of solid off-white rocks in the kitchen each contained less than a gram of cocaine. No controlled substances were found in the three plastic bags removed from the bedroom closet. They contained over 100 grams of a “fragrant white and blue powdered material” that turned out to be powdered laundry detergent.
Paris “appeared healthy and well cared for.” She said she had not known that there was drug activity in the home. She and Demi were both happy with the care they received from Mother and Father. They were detained in shelter care.
The police officers observed that the house was filthy, with problems like bugs everywhere, an improperly mounted toilet, and no working lights in the living room, dining room or kitchen.
The dependency petition was filed on June 27, 2007. It alleged that Paris fell within section 300(b) due to the substantial risk of harm to her in the home of Mother and Father. We quote its allegations, italicizing language that was later changed based on the evidence at the jurisdictional hearing.
“The child Paris S[.]’s mother Y[.] A. D[.] and father Kevin S[.] created a detrimental and endangering home environment for the child in that the parents possessed illicit drugs including three large bags of cocaine in the child’s home within access of the child. On 06/22/2007, the parents were arrested for Possession of Rock Cocaine for Sale. Such a detrimental and endangering home environment established for the child by the parents endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm, damage and danger.”
In a written statement, Father informed the court that he believed he was Paris’s father, she had lived with him from birth, he loved her, and they had participated together in such activities as school, daycare, and sports.
At the detention hearing on June 27, 2007, the court found that Father was Paris’s presumed father. It ordered Paris detained, with family reunification services for Mother and Father. Pursuant to recommendations by the Department, the court ordered the Department to provide referrals to Mother and Father “for drug rehabilitation, random testing, parenting, and individual counseling.”
Paris was soon moved to the home of an unrelated family friend named Lorraine S. Lorraine said that Paris was welcome to live with her as long as necessary.
Mother had called Lorraine from jail and asked her to let Paris stay with her. She had a suitable home, and Paris wanted to live with her. Paris did very well in Lorraine’s home, as she had done when she lived with Mother and Father.
When interviewed for the jurisdiction and disposition report, Paris said she had never seen bags of white powder, razors or scales in the house. She had been in the living room with Mother and Demi when the police arrived. She and Demi ran to the bedroom. She did not see where Mother ran. She stated that Mother and Father did not drink alcohol or use drugs, which she defined as “ ‘cigarettes and weed.’ ” The caseworker asked her if lots of people came to the house. She replied that Father had only one friend who visited, with whom he studied music and worked on songs. She also said the police “lied” when they said the house was dirty. She insisted that it was clean, except that “[t]he living room was a little messy” because there had been a party there on the previous day.
Mother described the execution of the search warrant to the caseworker without mentioning that she went into the kitchen and put cocaine down the sink. Her broken kneecap made it difficult for her to comply with an order to get down on the floor. She insisted that her house was not filthy, as her housekeeper had just cleaned it. She worked as a caregiver until she broke her kneecap in 2003. She had two surgeries after that. Her knee problem depressed her. She currently received worker’s compensation and Social Security income, plus a monthly fee from a relative for taking care of Demi.
Father told the caseworker that neither he nor Mother used or sold cocaine. He thought the police confused his house with a house a few doors away where drugs were actually sold. He said the police planted the drugs in the kitchen sink. He did not think anybody had scrambled around in the house, as Mother “had surgery on her knee and can not get around very fast.” He had worked at several jobs, including, most recently, as a health care provider. The family rented their home from his sister.
The caseworker also interviewed numerous relatives of Mother and Father. They did not think that Father or Mother used or sold drugs, and thought the house was cluttered but not filthy. Father’s sister said the criminal charges against Father and Mother had been reduced from selling cocaine to possessing it.
The caseworker believed it was “unclear if both Mother and Father were selling the Cocaine or just Father.” Family reunification services were recommended for both parents with a program of counseling that would include parenting education and individual counseling. The individual counseling for mother was to address depression; for father it was to address “case issues.” The report further recommended that both parents participate in an in-patient drug treatment program while incarcerated. After release, the recommendation was that they should participate in an outpatient drug program with random drug testing, and be required to enter a drug treatment program if they missed any tests or had a positive result.
An interim report of September 4, 2007, indicated that Paris was doing well in foster care with Lorraine and liked living there. Mother and Father had both been released from jail in August 2007. They visited Paris frequently. The visits were appropriate. The next hearing in their criminal case was scheduled for September 22, 2007. Mother and Father said that Paris was doing well with Lorraine and at school, where she was in a class for gifted children. They did not want to interrupt her progress in school. The report again recommended for both parents parenting education, individual counseling, drug testing, and a drug treatment program if any tests were missed or positive. The case plan goal was to return Paris to Mother’s home.
The contested adjudication hearing occurred on September 4, 2007. After the Department’s reports were received into evidence, the court heard testimony from the housekeeper, Father, and Mother.
The housekeeper testified that the rock cocaine belonged to her and neither Mother nor Father knew it was in the house. At first, she hid it in the oven because the oven did not work, so no one ever went in there. Then she took it out. She was holding it in her hand when Mother came into the kitchen. She dropped it into the sink so that Mother would not see it. She had not brought drugs into the house before and did not use them in front of the children. She was not at the house when the police arrived because she went to the store to buy laundry detergent.
Father testified that, before the police arrived, he went into the house to get cash to pay for car repairs. The housekeeper was there. She was “a really great house cleaner,” and he did not know she possessed drugs that day. The family needed a housekeeper because Mother’s knee injury rendered her unable to do housework. He did not see a digital gram scale and razor on the kitchen counter. He was driving to the car repair shop when the police arrested him. He had over $2,000 in cash because that was the cost of the repair work. His mother had loaned him that money. Neither he nor Mother currently used or sold drugs, although he sold powdered cocaine in 1987 and was convicted of that crime.
Mother testified that Paris was currently in the fourth grade, had recently been moved to a class for gifted students and had extracurricular activities like cheerleading and dancing. Mother said she did not hear the police knock on the front door. Her housekeeper had been there that day but was not present at that time as she had gone to the store. Paris and Demi screamed and ran from the front door to the bedroom. Paris said she saw a gun. Mother stepped forward. The police put a gun to her head and told her, “Down.” She told them she had to go down slowly because of her broken kneecap. They handcuffed her when she was on the floor. They waved the search warrant at her, told her they had come for her husband, and asked where the drugs were. She told them she had no knowledge of any drugs. She did not see a razor, scale or drugs in the house and did not go into the kitchen. This was her first arrest. The next hearing in the criminal case was pending at the time of her testimony.
After hearing argument from counsel, the dependency court amended the petition to replace the word “three large bags” with “two bags.” It also struck the sentence regarding Mother’s and Father’s arrest because an arrest was not a conviction. It found the amended allegation to be true beyond a reasonable doubt. It explained its finding in this way:
“I could probably spend the next at least 20 minutes going over the inconsistencies here, but I’ll mention just a few. Interestingly enough, both the cocaine found in the oven as well as the cocaine found in the garbage disposal, according to the police report, were in plastic bags at the time they were found, which is a bit different than the witness that came in and testified today. [¶] Interestingly enough as well, as well as the bag of rock cocaine found in the oven, there was money and a dental bill belonging to the father in that apparently empty oven according to today’s witness. [¶] The police found money on the father which, by the way, the paternal grandmother in her statements [in the Department’s reports] doesn’t mention came from her, money in the stove and money in a pot on the oven. There was a scale. There w[ere] plastic baggies found around the house. There was a razor blade for cutting. This case is as clear as they come. [¶] You wish to be heard before we go -- Oh, let me just talk about nexus for a moment. This little eight-year-old got to see police storming in her door where they arrested her mother and father for sales of cocaine. She was left without anybody to take care of her and she was sent off to foster care. That in and of itself is enough of a nexus without getting into the kinds of persons that frequent the house in buying drugs.”
Mother and Father seize upon those words by the court because the police report indicates that the rock cocaine was loose, rather than in baggies, when the officers found it. It appears that the material was put into baggies so that the officers could transport it, as it was in baggies when it was booked into evidence. Whether or not the substance was originally loose or in baggies is not significant. The significant fact is that the substance was cocaine.
The court then proceeded immediately to disposition.
Counsel for the parents both stressed that Father and Mother took good care of Paris, and there was no indication that either one used drugs. Counsel sought a release of Paris to her parents with an order that they complete drug testing rather than a requirement that they participate in a full outpatient drug program.
The court found by clear and convincing evidence that it was necessary to remove Paris from her parents’ home. In addition to what it had already said, it found that additional risks were established by Mother’s and Father’s willingness to tell lies under oath and their belief that selling drugs with a child in their home was not a problem. It ordered individual counseling for Paris with suitable placement in Lorraine’s home. Mother and Father were to have family reunification services and monitored visitation. They were ordered to participate in “a drug rehabilitation program with random testing, parenting, and individual counseling for both parents.” Their educational rights were limited. They were ordered to show proof of “stable and appropriate housing” and “legal employment” before Paris would be returned to them. They were advised that failure to participate in the court-ordered treatment program could result in a termination of reunification services and of their parental rights.
Mother and Father both filed notices of appeal.
DISCUSSION
1. The Section 300(b) Finding
Mother and Father contend that there was insufficient evidence to support the jurisdictional finding under section 300(b). They argue that there was no substantial risk of serious physical harm or illness to Paris in their home, as she was happy and well-cared for, and there was no evidence that she was ever exposed to drug use or drug trafficking.
We apply the substantial evidence rule, resolving all evidentiary conflicts and indulging all legitimate inferences in favor of the dependency court’s orders. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)
As amended, the allegations in the sustained section 300(b) petition read: “The child Paris S[.]’s mother Y[.] A. D[.] and father Kevin S[.] created a detrimental and endangering home environment for the child in that the parents possessed illicit drugs including two bags of cocaine in the child’s home within access of the child. Such a detrimental and endangering home environment established for the child by the parents endangers the child’s physical and emotional health, safety and well being and places the child at risk of physical and emotional harm, damage and danger.”
A section 300(b) finding can properly be based on evidence of a hazard in the child’s environment through the risk that the child will ingest hazardous drugs that were left in a place accessible to the child. (Rocco M., supra, 1 Cal.App.4th at p. 825.) Here, that hazard was the cocaine the police found in the oven and garbage disposal. Like the child in Rocco M., at page 826, Paris was “old enough to recognize, and be tantalized by, controlled substances found lying around the house.” The oven was certainly accessible to her, even if it was not operable. The presence of cocaine in a location accessible to Paris makes this case entirely different from In re David M. (2005) 134 Cal.App.4th 822, 829-833, on which Mother and Father rely.
Mother’s briefing states that the “criminal charges of drug sales against the parents were dropped.” What the Department’s report actually states is that Father’s sister told the caseworker “the charges were dropped from s[ale]s of Cocaine to possession of Cocaine.” Assuming that statement is true, Mother and Father still faced criminal charges at the time of the rulings under review. Indeed, Mother testified that the next hearing in the criminal case was to take place two weeks later. Whatever the eventual result of the criminal case, there was sufficient evidence to support the dependency court’s rulings through the accessibility to Paris of the rock cocaine that was found in the kitchen.
2. Removal of Paris from the Home
Removal of Paris from the home of Mother and Father required clear and convincing evidence of a substantial danger to her well-being and no reasonable means of protecting her without removal. (§ 361, subd. (c).) Applying the substantial evidence standard of review (In re Mark L. (2001) 94 Cal.App.4th 573, 580), we find sufficient evidence for removal because of the presence of the cocaine in the kitchen.
Section 361, subdivision (c), states in pertinent part: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . .: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”
Mother and Father place mistaken reliance on In re W. O. (1979) 88 Cal.App.3d 906. The evidence there was insufficient to justify removal of an infant and a two-year-old child because it was “undisputed that the cocaine was located in a position beyond the reach of either of the children.” (Id. at p. 910.) Here in contrast, the cocaine was kept in the oven, where eight-year-old Paris could easily reach it. (See Rocco M., supra, 1 Cal.App.4th at p. 826.)
Mother and Father also argue that removal of Paris was an abuse of discretion because there was a reasonable alternative to removal, which was leaving Paris with them under stringent supervision by the Department. We recognize that Paris was a happy and well-cared for child in their home. However, that was also the case while she lived with Lorraine. Indeed, she was moved to a class for gifted children while she was living with Lorraine. The critical fact is that Lorraine’s home did not have the risks to Paris that existed in the home of Mother and Father.
3. The Contested Dispositional Orders
Mother and Father challenge the dispositional orders that limited their educational rights over Paris; required them to participate in a substance abuse program, parenting classes and individual counseling; and ordered them to provide proof of stable and adequate housing and legal employment.
A. General Principles
“The juvenile court has wide latitude in making orders necessary for the well-being of a minor. By statute, the court may make ‘all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . .’ (§ 362, subd. (a).) However, the same statute limits such orders to those that are designed to eliminate the conditions that brought the minor to the attention of the court. (§ 362, subd. (c).)” (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180 (Jasmin C.).)
“The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court’s determination in this regard absent a clear abuse of discretion.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
In Jasmin C., supra, 106 Cal.App.4th at pages 178-179, we reversed an order that required the nonoffending parent to attend a parenting class, finding that there was no substantial evidence that either the parent or the minor would benefit by that order. In In re Basilio T. (1992) 4 Cal.App.4th 155, 172-173 (superseded by statute on another point, as noted in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242), the court reversed the substance abuse component of a treatment plan, as there was no evidence that either parent had a substance abuse problem or that substance abuse led to the conditions that caused the dependency. Some of the dispositional orders in this case have similar flaws.
B. The Limitation on Educational Decisions
If appropriate, the dependency court may limit the right of the parent to make educational decisions on behalf of the child. (§ 361, subd. (a); Cal. Rules of Court, rule 5.695(c)(3).)
The Department’s report did not request a limitation of Mother’s and Father’s educational rights.
At the hearing below, Paris’s counsel said she was not requesting a limitation of Mother’s educational rights that day. Counsel intended to put off that request until after Mother’s next hearing in the criminal case, as it was not clear that Mother was “going to be available to make those decisions.” Even so, the court limited Mother’s and Father’s rights to make educational decisions for Paris and appointed Lorraine, the foster parent, for that purpose. It did so because it was concerned “that the parents will continue to make educational [decisions] for their daughter based on their choices for themselves.”
Mother and Father argue that there was no need to limit their educational rights, since Paris did well in school while she lived with them, and they told the caseworker they did not plan to interrupt the progress she was making in school while she lived with Lorraine.
Respondent counters that the issue is waived because there was no objection below to the limitation on educational rights. (See In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)
We find that the issue was not waived, as an objection is not necessary to preserve a claim that is based on a failure of proof (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17; In re Brian P. (2002) 99 Cal.App.4th 616, 622), and Mother’s and Father’s contention is based on the insufficiency of the evidence to support the order limiting their educational rights.
We further find that the order limiting educational rights was an abuse of discretion, because there was no substantial evidence to support it. Neither the Department nor Paris’s counsel requested such an order, and there was no evidence that Mother and Father had ever failed to make appropriate decisions regarding Paris’s education. Therefore, there was insufficient evidence that the limitation of educational rights was reasonably necessary to eliminate the conditions that led to the section 300(b) finding. (§ 362, subd. (c); Jasmin C., supra, 106 Cal.App.4th at p. 180; In re Basilio T., supra, 4 Cal.App.4th at p. 172.)
C. Drug Treatment Program
Mother and Father repeat the argument they made below, which is that it was inappropriate to order them to participate in a drug treatment program, as there was no evidence that they currently used drugs. The argument has merit.
There was rock cocaine in the house, but no evidence that Mother or Father used it. The dependency court’s order went further than the Department requested. The Department recommended that Mother and Father participate in a drug treatment program during incarceration. Upon their release from jail, the recommendation was for participation in an outpatient drug treatment program with random drug testing, and entry into a drug treatment program if any drug tests were missed or positive. Instead, the court ordered a drug rehabilitation program as a condition, specifically because it hoped that Mother and Father would learn from the program that selling drugs with a child in their home was dangerous to the child. We find that order to be an abuse of discretion, as there was no substantial evidence that participation in a drug treatment program was reasonably necessary to avoid a repetition of the condition that brought Paris to the attention of the court. (§ 362, subd. (c); Jasmin C., supra, 106 Cal.App.4th at p. 180; In re Basilio T., supra, 4 Cal.App.4th at p. 172.) We therefore order modification of that condition to what the Department recommended.
D. Individual Counseling and Parenting Classes
The Department requested these orders. We find no abuse of discretion in them, since the evidence disclosed that both parents were willing to keep cocaine at an accessible place in the kitchen while eight-year-old Paris lived there.
E. Housing
Similarly, we find no abuse of discretion in the order requiring both parents “to provide stable and appropriate housing,” since the police report indicated that the house was filthy.
F. Proof of Employment
The condition requiring both parents to provide “proof of legal employment before the child would be returned” presents a different issue. The court was trying to protect Paris by having Father and Mother pursue legal employment rather than illegal employment, e.g., drug trafficking. The condition appears reasonable for Father, who told the caseworker he was employed as a caregiver prior to his arrest. It is not a reasonable condition for Mother, since the undisputed evidence showed that she was disabled and was receiving worker’s compensation and Social Security benefits for a broken kneecap. Given her disability, the order requiring her to provide proof of legal employment was simply unfair. We therefore reverse it.
DISPOSITION
The orders in the reunification plan that limit the educational rights of Mother and Father and require Mother to provide proof of legal employment are reversed. The order requiring Mother and Father to participate in a drug treatment program is modified to an order requiring Mother and Father to participate in an outpatient drug treatment program with random drug testing, and entry into a drug treatment program if any drug tests are failed or missed. In all other respects, the orders of the dependency court are affirmed.
We concur: COOPER, P. J., RUBIN, J.