Opinion
B306878
05-18-2021
In re A.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.G., Defendant and Appellant.
The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 20CCJP02951) APPEAL from a judgment of the Superior Court of Los Angeles County, Nichelle L. Blackwell, Commissioner. Affirmed. The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
Appellant, A.G. (father), appeals from the juvenile court's jurisdictional findings and dispositional order removing his five-year-old son, A.G., from his custody. Father maintains there is insufficient evidence to support the court's jurisdictional findings that his history of substance abuse and drug-related arrests, missed drug tests, and efforts to evade respondent Department of Children and Family Services (DCFS), demonstrated that A.G. was at current or future substantial risk of serious harm. Father also insists the removal order was made in error because DCFS failed to prove, by clear and convincing evidence, that there were no reasonable means to protect A.G. short of removal from father's custody, and the court failed to make the findings required by Welfare and Institutions Code section 361, subdivisions (d) and (e). We disagree with father's contentions and affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
DCFS became involved with this family after A.G.'s mother gave birth to his half-sister, P.T., in May 2020. Both mother and the newborn tested positive for opiates and other drugs, and the baby suffered withdrawal symptoms. Before P.T.s birth, five-year old A.G. (born Sept. 2014) lived with mother full-time and saw father about twice a month. A.G. stayed with father while mother was in the hospital. When father spoke with a DCFS social worker on May 21, he claimed he had no knowledge that mother used drugs or abused prescription medication, and also said he had no concerns for A.G.'s safety in mother's care. Father agreed to submit to a drug and alcohol test. DCFS scheduled the test for May 22, but father never appeared.
Unless otherwise stated, all further date references are to 2020.
Neither P.T. nor mother is involved in this appeal.
Father denied using drugs and denied that he drank alcohol to the point of intoxication or at all when A.G. was present. Father told DCFS he had been arrested twice the previous year: once for possession of cocaine—which he denied had belonged to him—and a second time for possession of an open alcohol container.
A.G. was detained from mother and father agreed on May 21 to a safety plan that would allow A.G. to remain in his care pending DCFS's investigation. However, DCFS was unable to reach father until May 29, at which time he submitted to a drug test which was negative.
On June 4, DCFS filed a section 300 petition, alleging, as pertinent here, that A.G. was endangered by mother's substance abuse. Father did not attend the initial detention hearing on June 4, after which the court released A.G. to his care.
On June 16, DCFS requested that the court issue a protective custody warrant for A.G. and an arrest warrant for father, who had not made A.G. available to enable DCFS to ensure A.G.'s well-being. The juvenile court declined to issue either warrant because A.G. was in the care of a non-offending parent who had tested negative for drugs and alcohol and had not been convicted of any drug offenses.
A hearing was conducted on June 24 after DCFS filed a section 385 petition, and requested that A.G. be detained from father, who attended the hearing. DCFS informed the court it had been unable to contact or locate father for several weeks after a telephonic conversation on May 29 during which father said he did not want to attend court hearings because he "had nothing to do with [t]his" and "[did] not have time for [DCFS]." Father's cousin, with whom father and A.G. had been staying, told DCFS the two had not been in her home since June 6. DCFS was concerned for A.G.'s well-being, which it had not been able to assess for over a month.
DCFS had developed additional concerns for A.G.'s welfare after discovering father had an extensive history of drug-related arrests, the most recent of which was in December 2019, when father was arrested for public consumption of alcohol. At the time of his arrest, father told police he began using methamphetamines the month before, had used the drug that day and had some in his sock. Father was employed by Home Boy Industries. On June 7, DCFS spoke with father's supervisor of at least five years. The supervisor said father had a history of alcohol abuse and enjoyed "drink[ing] a lot" with other employees, but was "doing better now, [because] at least he's not drunk on the job." In a subsequent interview, the supervisor admitted he had an "inkling" that father had resumed abusing alcohol or drugs because he was "getting unreliable," and would call in sick after partying with coworkers. The supervisor had encouraged father to cooperate with DCFS and gave the agency his contact information. Father was angry when he learned his contact information had been given to DCFS, because he "[did not] want anyone to find him."
DCFS reported that, on June 23, during one of its attempts to reach father, a woman answered the phone, told the social worker not to call again and hung up. A few minutes later, Angelica, father's live-in companion, returned the social worker's call. She explained that father's evasiveness was due to his distrust of DCFS and his belief that this case did not pertain to him. A DCFS investigation revealed that Angelica had an extensive history with DCFS due to substance abuse issues and had failed to reunify with her six children. Angelica acknowledged her history with DCFS and substance abuse, but said she had completed a substance abuse program and was sober. Angelica was A.G.'s sole caretake when father was at work.
The social worker was able to talk to father on June 23. He offered several explanations for not maintaining contact with DCFS. First, he said he did not know why he had not stayed in contact. Later, he explained, alternatively, that he had not been in contact because he did not believe he was involved in the case, had been working a lot, and was afraid of what DCFS would do. The social worker explained the court's procedures and orders to father, who agreed to cooperate and let DCFS see A.G. the next day.
At the hearing on June 24, the juvenile court explained that A.G. was under the court's temporary jurisdiction and found father to be A.G.'s presumed father. Father's counsel requested that the section 385 petition be dismissed, noting that father understood the seriousness of the proceedings and was willing to submit to drug tests on an ongoing basis. The court denied the request and granted the section 385 petition. A.G. was detained from father, who was given monitored visitation.
At the same hearing, the court expressed concern about father's substance abuse and ordered DCFS to provide him services. The court also said it wanted to see consistently clean weekly random drug tests, and "order[ed] [father] to undergo testing." Father's counsel asked the court to clarify "what exactly [it] want[ed] to see from father between [June 24] and [the adjudication hearing then scheduled for] July 8th." Counsel assured the court that father would "make every effort to comply to showcase his willingness to do whatever the court ask[ed] in order to get his son back." In response, the court explained that, among other things, it wanted father to be more cooperative with DCFS and more participatory in the program and reiterated that it "want[ed] to see clean tests from him. [The court] want[ed] [DCFS] to put [father] on a testing schedule" so it could determine on July 8 "whether . . . [father] need[ed] to be in a drug treatment program . . . , because [it] envision[ed] if [he was] not cooperative, [and was] missing tests, [the court would] probably put him in a [full] drug treatment program with random testing [and] aftercare." The court asked father if he "hear[d] [the] expectations of the court?" Father replied, "Yes." On June 25, father agreed to undergo an on-demand drug test but subsequently failed to do so.
On June 30, DCFS filed the operative first amended petition (petition) adding allegations that father has a history of alcohol and substance abuse which place A.G. at risk of harm. (§ 300, subd. (b)(1).)
Count b-4, the only count relating to father, alleged: "[Father] has a history of alcohol and substance abuse, including methamphetamine, which renders [him] incapable of providing regular care and supervision for [A.G.]. [A.G.] is of such a young and tender age as to require constant care and supervision and the father's substance abuse interferes with his ability to care for [A.G.]. The father has criminal history for 25662(A) BP-MINOR POSSESS ALCOHOL and 11377(A) HS-POSSESS CNTL SUBSTANCE, and at the time of his 12/12/2019 arrest, the father admitted to using methamphetamine when the illicit drug was found on his person. Said substance abuse by the father endangers [A.G.]'s physical health, safety and well-being and places [him] at risk of serious physical harm, damage, and danger."
In its Jurisdiction/Disposition Report and a Last-Minute Information for the continued jurisdictional hearing on July 22, DCFS reported that father had 22 arrests since 2007, 12 of which involved drug use and/or possession. That arrest history included charges of being under the influence of a controlled substance in September and November 2011 and in November 2016; charges for disorderly conduct and being intoxicated by a drug or alcohol, and possession of a controlled substance in January, August and September 2012, and April 2013; and arrests for possession of a controlled substance in June and December 2019. As of June 2020, criminal charges remained pending against father for possession of a controlled substance and drug paraphernalia, and a bench warrant had been issued in one case after he failed to appear.
Mother told DCFS that, prior to his detention, A.G. lived with her and P.T.'s father (who is not a party to this appeal). Mother and father had an informal custody agreement that gave mother primary custody of A.G. and allowed father to visit A.G. "every few weeks when time permits." Mother told DCFS she began using methamphetamine and marijuana at age 14, stopped after meeting father, but relapsed in 2018. Mother acknowledged that she had abused prescription drugs for the past two years and had provided care for A.G. while under the influence. Mother said father knew about her drug use. Mother denied knowing that father used illicit drugs but told DCFS that he had a history of alcohol abuse and said she took care of A.G. after father drank alcohol. She trusted father with A.G.
When DCFS observed A.G. in his foster home, the child appeared clean and physically unharmed. However, he was easily distracted and unable meaningfully to respond to questions about the petition's allegations. He exhibited no distress when asked about his parents, whom he described as nice people. The caretakers reported that father maintained telephonic and video contact with A.G.
Father and Angelica married on June 26. That same day a DCFS dependency investigator (DI) visited father's home to investigate whether it was safe for A.G. Angelica gave the DI a tour of parts of the house but refused to let him see the whole house and insisted no one else was present, even though the DI heard voices behind some closed doors. Angelica also refused to let the social worker speak privately with father. She claimed she had a right as his wife to be present, and also because "[father] doesn't know how to talk right." Father refused to discuss the petition's allegations with DCFS, and made only limited statements such as, "It's in the past," or, "I can't think straight." He admitted his criminal history included charges of possession of a controlled substance and an arrest in December 2019. He refused to discuss his drug use stating, "It was in the past. There's nothing to talk about." Father knew he had an outstanding warrant for the 2019 arrest, and reportedly planned to turn himself in after the next dependency hearing. Father did not believe he needed reunification services.
On July 13, father asked the social worker if DCFS was "gonna give me my boy back or what? It's already been a week." After the social worker explained the dependency process, father responded, "So you gonna make me wait? Whatever man," and hung up. During that call the social worker asked father why he had not taken a drug tests on June 25, to which father responded, "he did not feel that he needed to."
Father took two drug tests in July, each of which was negative for all substances. DCFS reported that father and Angelica had enrolled in a weekly parenting class and, as of July 8, had attended one session. DCFS also reported that Angelica purportedly had used someone else's social media account to send profane, harassing messages to mother. Angelica also had contacted DCFS insisting that, because mother and P.T.'s father were involved in domestic violence, A.G. should immediately be released to father's care.
The combined adjudication/disposition hearing took place on July 22. The court admitted in evidence DCFS's reports and other documents and took judicial notice of its prior orders and findings, and the DI testified.
When questioned by father's counsel, the DI testified that DCFS detained A.G. from father due to concerns for the child's safety based on father's history of drug-related arrests and collateral evidence from father's supervisor, including his representation that father "called out" of work one day because he knew the DI was looking for him. The DI also testified that he saw no drugs or drug paraphernalia during his tour of father's home, and the kitchen was stocked with food and had working appliances. The DI said Angelica had not let him view all areas of the home and insisted no one else was home even though the DI heard noises in some rooms to which he was denied access.
The DI testified that father maintained monitored, virtual visits with A.G., which the child's foster parents said had seemed to go well. However, the caretakers expressed concern about Angelica (who insisted on participating in the visits). She interjected during father's virtual visits, which caused A.G. to "shut down." When A.G. became quiet Angelica assumed something was wrong and aggressively peppered the child with questions. In the DI's opinion, Angelica could not safely care for A.G. due to her substance abuse issues, her loss of custody of her own children, and her harassment of mother. At DCFS's request, Angelica had taken a drug test, which was negative for all substances.
During closing argument, A.G.'s counsel urged the court to sustain the petition and remove the child from parental care, reminding the court about father's statements during his December 2019 arrest, and his employer's concern regarding father's ongoing alcohol abuse. DCFS concurred.
Father's counsel argued that the allegations against father should be dismissed, and the evidence was insufficient to justify removing A.G. from his care. She maintained that father's historical drug use and criminal history were insufficient to support removal, particularly given his recent cooperation with DCFS, coupled with three clean drug tests taken before and after the court asserted jurisdiction. As for father's failure to take tests on May 22 and June 25 (as to the latter father had affirmed he understood the court's expectations), counsel argued that father had a legitimate belief he was under no legal obligation to test.
Counsel reminded the court that the three drug tests father had taken were clean. Moreover, father was gainfully employed, married and had stable housing, He had maintained consistent visitation with A.G., was honest and recently cooperative with DCFS, was already participating in a parenting class and willing to undergo counseling and continue to drug test and, if necessary, would enroll in a drug program. Finally, in the event the court was unwilling to accede to father's request that A.G. be returned to his custody without restrictions as to contact with Angelica, father's counsel informed the court that father had a relative who was willing to be A.G.'s caretaker while he was at work, so the child would not be left alone with Angelica. Counsel argued that DCFS had made little effort to track father's progress or to assuage his concerns about DCFS's involvement in his family's life. In sum, counsel argued that DCFS had failed to show, by clear and convincing evidence, that A.G. would be at substantial risk if returned to father's care, and that there were no reasonable means short of removal to ensure the child's safety. Father's counsel suggested that family preservation would be the appropriate disposition, providing father with in-home counseling and also giving the court "the assurance of an extra set of eyes" to ensure A.G.'s safety.
The juvenile court sustained the petition as pled as to father. The court observed that father had engaged in evasive behavior with DCFS, which the court believed was because father was hiding a substance abuse problem. In addition, father had an outstanding warrant for his arrest in December 2019, and he and his wife had refused to permit DCFS fully to assess his home to evaluate whether A.G. could safely be released to father's care. The court also found father's explanation that he had not submitted to a drug test following the June 24 hearing not credible, in light of the fact that the court had ordered father to drug test at that hearing, and father explicitly acknowledged that obligation. The court was unconvinced by counsel's argument that father (who was 30 years old) was "scared of [DCFS]" and had not known what to do.
The juvenile court also referred to statements by father's supervisor, who encouraged father to cooperate with DCFS and had advocated on his behalf, but also had acknowledged father's alcohol abuse and unreliability. The court expressed its concern regarding father's questionable judgment, inability to follow the court's instructions regarding drug testing, missed drug tests (which DCFS considers positive), and the fact that he had placed his parenting responsibilities on his wife, who had a demonstrated inability to adequately care for and supervise her own children. The court concluded that the evidentiary record was sufficient to indicate father's impaired ability to care for A.G., and lent support for its determination that removal was required.
The juvenile court declared A.G. a dependent of the court, removed him from parental custody, and gave father monitored visitation. The court ordered that father be provided reunification services, including participation in parenting and substance abuse programs, random or on-demand drug testing, a 12-step program and individual counseling. The court also ordered that Angelica have no contact with A.G., based on its belief that she hindered father's ability to reunify with A.G.
Father filed a timely notice of appeal.
DISCUSSION
Father maintains there is insufficient evidence to support either the juvenile court's jurisdictional findings that A.G. was at risk of harm based on father's use of alcohol and drugs, or its order removing A.G. from his custody. We disagree.
Controlling Law and the Standard of Review
The purpose of section 300 "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." (§ 300.2; see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.) "At the first stage of dependency proceedings, the juvenile court determines whether the child is subject to juvenile court jurisdiction; DCFS has the burden to prove jurisdiction by a preponderance of the evidence." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 (Yolanda L.).) "At the second stage, the juvenile court must decide where the child will live while under juvenile court supervision; to support removal from parental custody, DCFS has the burden to prove by clear and convincing evidence that there is a risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety." (Ibid.; see § 361, subd. (c); In re D.P. (2020) 44 Cal.App.5th 1058, 1068 (D.P.); In re D.C. (2015) 243 Cal.App.4th 41, 51, 54 (D.C.).)
We review a juvenile court's jurisdictional findings and dispositional orders for substantial evidence. "'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them.'" (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) "'Substantial evidence is evidence that is "reasonable, credible, and of solid value"; such that a reasonable trier of fact could make such findings.'" (In re L.W. (2019) 32 Cal.App.5th 840, 848; accord, B.C., supra, 243 Cal.App.4th at p. 52.) "'But substantial evidence "is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal."'" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) "'"Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence."'" (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a "juvenile court's conclusion 'supported by little more than speculation' [is] not based on substantial evidence"].) "'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.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings [and disposition order] of the trial court."'" (I.J., supra, 56 Cal.4th at p. 773; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012 (O.B.) [appellate court reviews removal order for substantial evidence, bearing in mind the heightened burden of proof by clear and convincing evidence]; see In re V.L. (2020) 54 Cal.App.5th 147, 155 ["O.B. is controlling in dependency cases"].) Finally, although we typically review an order removing a child from parental custody for substantial evidence, "[w]hen the issue on appeal involves the interpretation and proper application of the dependency statutes, . . . our review is de novo." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344 (Anthony Q.).)
In order to sustain a petition under section 300, a significant risk to the child must exist "'at the time of the jurisdiction hearing.'" (In re David M. (2005) 134 Cal.App.4th 822, 829, disapproved on another ground by In re R.T. (2017) 3 Cal.5th 622, 628.) DCFS "has the burden of showing specifically how the minor[ ] ha[s] been or will be harmed." (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) Evidence of past conduct may be probative of current conditions and may assist DCFS in meeting this burden. (Ibid.; In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) However, DCFS must establish a nexus between the parent's past conduct and the current risk of harm. (See In re Roger S. (2018) 31 Cal.App.5th 572, 583.)
"The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re E.E. (2020) 49 Cal.App.5th 195, 206 (E.E.); accord, In re D.B. (2018) 26 Cal.App.5th 320, 328-329 (D.B.); D.C., supra, 243 Cal.App.4th at p. 52.)
Substantial Evidence Supports the Juvenile Court's Findings that Father's Substance Abuse Issues Posed a Substantial Risk of Serious Physical Harm to His Five-Year-Old Son
Father insists there is insufficient evidence to support the jurisdictional findings premised on his history of substance abuse and drug-related arrests. We reject father's contentions because the juvenile court reasonably could draw different conclusions from the evidentiary record. Father's repeated evasion of DCFS's social workers and ID, and his failure to undergo court-ordered drug tests were not without consequence and may be used as evidence against him. (E.E., supra, 49 Cal.App.5th at p. 209.)
As a preliminary matter, we understand that, because unchallenged findings involving mother establish an independent basis for jurisdiction, we need not address father's jurisdictional argument. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Generally, however, we will exercise our discretion and reach the merits of a challenge to jurisdictional findings where, as here, those findings form the bases for dispositional orders also challenged on appeal. (See, id. at p. 454.)
Section 300, subdivision (b), provides a basis upon which the juvenile court may exercise jurisdiction if a preponderance of the evidence demonstrates that the "'child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child'" or by the inability of the parent to provide regular care for the child due to the parent's substance abuse. (E.E., supra, 49 Cal.App.5th at p. 205; § 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) The focus of section 300 is on averting harm to the child, and the juvenile court need not wait until the child suffers serious injury before exercising jurisdiction if there is evidence the parent's conduct places the child at risk of future harm. (Yolanda L., supra, 7 Cal.App.5th at p. 993.) A parent's denial of wrongdoing and/or failure to recognize the negative impact of his or her conduct are relevant considerations in the court's determination of risk under section 300. "'[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.'" (In re A.F. (2016) 3 Cal.App.5th 283, 293 (A.F.); In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 (Gabriel K.) ["One cannot correct a problem one fails to acknowledge"].) In determining a current risk of harm and whether a parent's conduct is likely to recur, the juvenile court may consider the parent's past conduct if there is reason to believe the conduct will recur. (In re N.M. (2011) 197 Cal.App.4th 159, 165 (N.M.).)
The facts here resemble those in E.E., supra, 49 Cal.App.5th 195. In E.E., the appellate court found that substantial evidence supported jurisdictional findings where a mother's evasiveness and hinderance of DCFS's ability to investigate and monitor the children's well-being—including her refusal to speak to social workers, placing the children in the care of a friend in an effort to hide them from DCFS, and avoiding or missing several drug tests—demonstrated the parent had been dishonest about and had not seriously begun to address her substance abuse issues. (Id. at p. 213.) The same conclusion obtains here as to the jurisdictional findings premised on father's criminal and drug-related history, coupled with his record of evasion and lack of cooperation.
The record belies father's claim that the juvenile court had "zero evidence" he was currently using drugs or abusing alcohol. To the contrary, although all the drug tests father took were negative, the juvenile court had legitimate concern about his history of and likely ongoing alcohol abuse. Father's criminal history involved multiple drug-or alcohol-related arrests (most recently in Dec. 2019). Further, mother told DCFS that father's problem with alcohol abuse was so significant she had to care for A.G. when father was intoxicated. Father's extensive use of alcohol also had caused his employer concern. At first, father's supervisor told DCFS that father was "doing better" with respect to his use of alcohol and had not recently been "drunk on the job." Later, however, the supervisor conceded he had an "inkling" that father had resumed abusing alcohol because he was "getting unreliable," and would miss work on days after he partied with coworkers.
In addition, despite his agreement to drug test, he twice failed to do so. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 [absent an adequate explanation, a missed drug test "is 'properly considered the equivalent of a positive test result'"]; In re Noah G. (2016) 247 Cal.App.4th 1292, 1304 ["common sense suggests a parent who consistently fails to appear for drug tests does so because of a consciousness of guilt"].) Father agreed to submit to a drug test on May 22 but failed to appear and thereafter evaded DCFS until May 29, when he took a drug test which was negative. Father then continued to evade DCFS for about a month, going so far as to call out from work to avoid the social worker he knew was trying to reach him. Father also was angry his supervisor gave his contact information to DCFS as he "[did not] want anyone to find him."
On June 23, DCFS was able to reach father and a social worker explained dependency court procedures and DCFS's goal of ensuring A.G.'s safety, and father agreed to cooperate. On June 24, father acknowledged that he understood the court expected him to drug test but was a no show for a test the next day. Later, he explained he had not taken the June 25 drug test because "he did not feel that he needed to."
In light of father's admission that he had used methamphetamine since late 2019, his apparently unresolved issues with alcohol abuse, purposeful evasion of DCFS and decision to skip some drug tests, the juvenile court could reasonably infer that father's substance abuse was ongoing.
Further, although father acknowledged his history of drug and alcohol-related arrests, he refused to discuss his drug use and denied needing any services to address any problem, stating, "It was in the past. There's nothing to talk about." Such denial and minimization are relevant factors to the court's determination whether one is likely to modify his future behavior absent court supervision. In short, one "cannot correct a problem one fails to acknowledge." (Gabriel K., supra, 203 Cal.App.4th at p. 197; A.F., supra, 3 Cal.App.5th at p. 293; see also In re M.R. (2017) 8 Cal.App.5th 101, 109-111 [parents' minimization of their endangering conduct (DUI) raised questions regarding their judgment]; In re R.R. (2010) 187 Cal.App.4th 1264, 1284 [an unresolved substance abuse problem may "compromise" a parent's "ability to care for his [or her] child, thus justifying the assumption of jurisdiction"].)
Although Angelica is not a party to this appeal, father also demonstrated questionable judgment by permitting her to be A.G.'s caregiver while he was at work, given her history of substance abuse, which resulted in failure to reunify with her own children. Angelica claimed she was now sober. Despite losing her children for similar reasons, Angelica enabled father to avoid DCFS, attacked mother on social media and insisted A.G. be returned to father notwithstanding DCFS's concerns about his substance abuse. Such conduct reflects an inability to appreciate the risks to A.G.'s safety if returned to the care of a parent with substance abuse problems. These factors further support the court's conclusion that father's history of and possible ongoing substance abuse posed a substantial risk of physical harm to A.G.
The juvenile court explained that its jurisdictional findings were not based solely on father's history involving alcohol and drugs. The court considered the evidence cumulatively and rejected father's explanation that his evasion of DCFS was due to his fear of the agency. Rather, the court concluded father evaded DCFS in order to hide issues that impacted his ability adequately to care for his son. Ample evidence supports the jurisdictional findings.
The Record Supports the Removal Order
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child.'" (D.P., supra, 44 Cal.App.5th at p. 1065; see § 361, subd. (c)(1).) The juvenile court must determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
"In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (D.B., supra, 26 Cal.App.5th at p. 332.) "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.'" (N.M., supra, 197 Cal.App.4th at pp. 169-170; accord, D.B., at p. 328.) "When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (O.B., supra, 9 Cal.5th at p. 1011.)
The evidence that supports the jurisdictional findings also is sufficient to support the court's removal order. The juvenile court was within its rights to consider father's past conduct and current events in fashioning its dispositional order, so long as the court had reason to believe father's current or likely future behavior placed A.G. at substantial risk of detriment. (See A.F., supra, 3 Cal.App.5th at p. 289.) There is no question that, throughout this case, father has minimized or dismissed the risk of harm his substance abuse issues pose for A.G. The court could reasonably infer that father's lack of insight and risky behavior would continue and would place A.G. at risk of harm. Father has a lengthy history of drug and alcohol-related arrests and, as recently as five months before P.T.'s birth, readily admitted that he used methamphetamine. The court believed father's supervisor, both as to his genuine concern for and support of father, and as to his belief that father had ongoing issues with alcohol abuse to the point he could not work on days after drinking heavily with coworkers and was becoming unreliable. The court could reasonably infer that, if father's excessive use of alcohol rendered him unable to work, it also would interfere with his ability to properly care for and supervise A.G. Indeed, mother told DCFS that, in the past, she had to care for A.G. when father had been intoxicated.
Mother's supervision is no longer an option. And the court also reasonably concluded that father's wife, whom he permitted to be A.G.'s sole caregiver when he was at work, had not yet been found suitable for that role. Angelica has a history of substance abuse which resulted in her failure to reunify with her own children. Moreover, in this case, there is evidence that she helped father evade DCFS, was not fully cooperative when DCFS tried to investigate whether A.G. could safely be placed in father's home, engaged in inappropriate behavior during visits with A.G., and harassed mother on social media.
As found by the court, DCFS "made the connection" and showed that father's poor judgment in placing his parental responsibilities on Angelica, his inability or refusal to cooperate with DCFS, and his initial failure to drug test as ordered by the court showed that there were no reasonable means or services to protect A.G. short of removal, despite DCFS's reasonable efforts to prevent or eliminate that result. It is true that at both the detention and disposition hearing the juvenile court referred to having "ordered" father to drug test. Also, in its dispositional findings, the court referred to father's inability consistently to follow the court's "orders" regarding testing as supporting a conclusion that permitting A.G. to remain in father's care would be detrimental to the child's physical health and safety. However, "before jurisdiction, the court can issue orders detaining the child and orders directing the social services agency to provide services, but it cannot order or otherwise compel the parent to cooperate with the agency. A parent's participation in services, whether before jurisdiction and disposition or after, is always voluntary." (E.E., supra, 49 Cal.App.5th at p. 209; see also id. at p. 212 [although the juvenile court may consider "defiant behavior or failure to engage in services" in determining whether removal is necessary and appropriate, it cannot rely on such behavior when the parent had no legal obligation to comply].)
To the extent the court erred in relying in part on father's failure to take drug tests as "ordered" prior to jurisdiction, that error clearly made no difference in the disposition. There was ample evidence to show that father was at times defiant and could not be relied on to consistently cooperate with DCFS to address the reasons for jurisdiction and provide a safe environment for A.G. (E.E., supra, 49 Cal.App.5th at p. 212 [the juvenile court may consider "defiant behavior or failure to engage in services" in determining whether removal is necessary and appropriate].) At the beginning of the case, father evaded DCFS for about a month, going so far as to call out from work to avoid the social worker he knew was trying to reach him. He also was angry his supervisor gave his contact information to DCFS as he "[did not] want anyone to find him." Finally, his cooperation with DCFS was of relatively recent origin, and the court was entitled to question whether and for how long it might continue. In short, the record supports the determination that there were no reasonable means to protect A.G. absent removal of A.G. from father's care.
DISPOSITION
The juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.