Opinion
G053794
12-20-2016
In re MIRACLE S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ISAIAH S., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputies 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16DP0024) OPINION Appeal from orders of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputies County Counsel, for Plaintiff and Respondent.
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Soon after she was born at Irvine Medical Center in January of this year, Miracle S. (Miracle) was removed from her parents: mother K.W., and father Isaiah S. (Isaiah). The removal was not entirely unexpected. K.W. already had two children in the dependency system, had failed to reunify with either one, and had twice tested positive for illegal drugs during her pregnancy. She had also missed an unspecified number of tests late in her pregnancy. For his part, father Isaiah "smelled strongly" of marijuana while visiting mother and child in the hospital room. A dependency petition was filed within a week of Miracle's birth. About six months later, in July 2016, the court declared Miracle a dependent child, and, a day later, made a dispositional order that custody of Miracle would remain vested with the social services agency, i.e., she would not be placed with either K.W. or Isaiah. K.W. does not appeal from either the jurisdictional or dispositional orders. But Isaiah does. We affirm both orders.
As to the jurisdictional order, it is enough that the evidence supporting jurisdiction as to the mother K.W. was substantial, not to say virtually overwhelming. (Thus it is understandable she is not a party to this appeal.) Dependency jurisdiction is established over a child, for the child's protection. (See In re La Shonda B. (1979) 95 Cal.App.3d 593, 599 ["A petition is brought on behalf of the child, not to punish the parents."].) Accordingly, a jurisdictional finding can be based on one parent's potential danger to a child, as distinct from both parents. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1554 ["As the evidence established the necessary facts about Carla's lack of parenting skills, the juvenile court properly found that Jeffrey came within the jurisdiction of section 300, despite the fact that Shawn appears to have been a suitable parent."].)
We note, the court terminated all reunification services between K.W. and her two older children the same day it made its jurisdictional order regarding Miracle, July 18, 2018.
The harder issue is whether the trial court erred in making a dispositional order that did not place Miracle with Isaiah, her biological father. As the agency concedes, such an order must be made based on clear and convincing evidence. (Welf. & Inst. Code, § 361, subd. (c)(1).) Moreover, while the formal standard of review of dispositional orders is substantial evidence, the court must nevertheless bear in mind the "heightened burden of proof" imposed on the agency seeking removal. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654 (Kristin H.).) And Isaiah's argument on appeal is stronger because he does not advocate for an unrestricted placement, but more modestly only seeks a placement with intensive supervision by social workers, known as "CRISP" (Conditional Release to Intensive Supervision). Thus, as he points out, there would be safeguards in the event Isaiah were to lose his home or use illegal drugs. (Cf. ibid. [need to find there are "no reasonable means" to avoid removing child from parental custody.)
The trial court did approve a reunification plan requiring Isaiah to complete an approved anger management program or counseling, and to patch test for illegal drugs.
"A dependent child shall 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 of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody proceeding, paragraph (6): [¶] (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. . . ."
2016 amendments to various provisions of the Family Code and Welfare and Institutions Code do not affect the language quoted above. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The social services agency asserts in its respondent's brief that CRISP releases are restricted to the period from the detention hearing to the dispositional hearing. However, given the admonition in section 361, subdivision (c)(1) that before removal from a parent's home there must be "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," we agree with Isaiah's position stated in his reply brief that there is no reason to assume a priori that Miracle could not have been placed with Isaiah pursuant to a CRISP or CRISP-style arrangement.
However, it is also true that in evaluating whether the agency carried its burden, the appellate court must resolve all conflicts in the evidence and reasonable inferences therefrom in favor of the trial court's order, and here that means in favor of the decision not to place Miracle with Isaiah. (See In re I.J. (2013) 56 Cal.4th 766, 773.) The rule carries particular force in this case, as the trial judge specifically found both K.W. and Isaiah lacked credibility. (The trial court's phrase was that they were "difficult to believe.") In light of these basic rules of evidentiary conflict resolution, we conclude there are three congeries of substantial evidence supporting the trial court's ruling that it would be affirmatively detrimental to have placed Miracle with Isaiah at the dispositional hearing:
(1) Domestic violence. Right after Miracle's birth, K.W.'s mother told a social worker Isaiah had hit K.W. in the face and kicked her in the stomach while pregnant. Even though Isaiah denied the incident and a social worker did not confirm it, as an appellate court we have no authority to ignore this obviously substantial item of evidence supporting the trial court's order. (§ 355.)
A January 2016 detention report said: "The maternal grandmother stated that the mother presented with bruises on her face (lip and eye) and told the maternal grandmother that Isaiah hit her in the face and kicked her in the stomach while pregnant."
Section 355 is clear that a social worker's report "and hearsay evidence contained in it" are admissible evidence in jurisdictional proceedings in juvenile dependency proceedings unless there is a timely objection. (Id., subd. (b).) In this case we are not told of any objection in Isaiah's briefing. And the trial court was careful to note at the dispositional hearing that all the reports admitted in evidence for the jurisdictional hearing would all be considered for the dispositional hearing as well.
We may add, however, that Isaiah's short fuse was confirmed by several other items: (a) Isaiah admitted a battery conviction at age 15 (Isaiah was 21 at the time of the hearing in July of this year) - against a "lady at the church" no less - because she "disrespected" his own mother; (b) the maternal grandmother had related Isaiah and the mother K.W. engaged in some "very nasty verbal arguments;" (c) in May, Isaiah became "very nasty" to the caretaker on a visit when the caretaker insisted that Miracle should be dressed in a warmer outfit; and, (d) Isaiah's courtroom demeanor suggested, to the trial judge, intense levels of "anger and frustration."
The "church" may actually have been a homeless shelter, as related in a social worker's report filed in May 2016.
The caretaker told Isaiah and K.W. that Miracle has "respiratory issues and gets sick easily," so we cannot assume that the caretaker was being unreasonable in insisting on warmer clothing.
To be sure, poor courtroom body language itself would, we hope, never be held sufficient by itself to support a dispositional order. But it certainly must be considered in evaluating a trial court finding based on evidence of domestic violence, such as we have here. Said the judge in delivering his dispositional ruling: "And the frustration and anger permeates some of that [the court was referring to the parents' spotty visitation record] in that I think Mr. [S.] has frustration and anger with the caretaker, perhaps with the social worker, and there's tension between him and mom that can't be ignored. [¶] The cold record doesn't see the two [parents] in my courtroom. The cold record doesn't see the body language of both of them in my courtroom. The cold record doesn't see what the court sees in terms of anger and frustration." The court was speaking to us and we have listened.
(2) Substance abuse. Even though Isaiah denies ever having smoked marijuana - and particularly denied having smoked it at the time of Miracle's birth in January - that issue was resolved by the trial court against him. The judge was particularly unimpressed with Isaiah's showing up at the hospital smelling of marijuana. A newborn's hospital room is, as the judge noted, one of the last places where smelling of marijuana will make a good impression.
Said the judge (this time in making his jurisdictional order): "The fact of the matter is, a hospital volunteer observed that Mr. [S.] smelled of marijuana and that's exactly how it was reported to the court. So, as [minor's counsel] indicated, drawing inferences from that, it kind of goes against kind of general parenting techniques if you will - or not even techniques, that is not the correct word I'm looking for, but general parenting characteristics to show up in a hospital with your newly born child smelling of marijuana."
While the hospital room is but a single item of evidence, it nevertheless gives rise to an inference of continued use, particularly since Isaiah refused to voluntarily drug test in the period leading up to the dispositional hearing, despite a social worker's direct encouragement to do so.
Given the disputed hospital room incident, the period from Miracle's birth to the disposition hearing was not the time to stand on one's technical legal right not to voluntarily drug test.
(3) Unstable housing and parenting. The fact a parent might need to share a home with his or her own parent, particularly when unemployed, is certainly not, by itself, a basis for a dispositional order adverse to the parent. (See In re Danielle M. (1989) 215 Cal.App.3d 1267, 1271 (Danielle M.).) We realize that. But dispositional orders are evaluated on the record as a whole (Kristin H., supra, 46 Cal.App.4th at p. 1657), and this record, as a whole, contains evidence of a potential danger of neglect. Specifically, Isaiah admitted his residence with his own mother in a Fullerton apartment was only an "off and on" arrangement. Isaiah gave inconsistent, hazy versions of where he actually lives. It was often hard for social workers to locate him. One social worker testified he asked Isaiah five times to give him an address he could evaluate as a possible placement for Miracle. Social workers could also not verify Isaiah's employment from workplaces he had given them.
A fact that distinguishes this case from Danielle M. (See Danielle M., supra, 215 Cal.App.3d at p. 1270.)
On January 7, Isaiah told a social worker that he lives with his mother in a Fullerton apartment. But at the detention hearing the next day Isaiah told his counsel he was not living at that address and sometime in the period January-February 2016, he supposedly lived at a motel in Cypress. --------
But the clincher in all of this was a record of progressively deteriorating interest in visiting Miracle. A report prepared for the dispositional hearing showed that Isaiah had only managed to visit Miracle 10 times in 43 possible visits, with most of the missed visits occurring after mid-March.
In In re J.C. (2014) 233 Cal.App.4th 1, 6-7 (J.C.), even mere "'sluggish'" attendance at a drug treatment program plus a no-show for two tests plus a history of domestic violence within the previous two years was held to be enough to support a dispositional order. In Kristin H., supra, 46 Cal.App.4th at pp. 1657-1658, the fact the mother was a "substance abuser," plus her tendency to "angry confrontations" in the company of her daughter, was held sufficient. In the case before us we also have the basic elements from J.C. and Kristin H. - domestic violence, angry confrontations, and drug abuse. In addition, the present case poses the danger of neglect inherent in a potential for transiency and a notable declining interest in visiting the child. A court is entitled to ask of a noncustodial parent, particularly a young and immature one: If you can't even make a quarter of your scheduled visits, why should the court trust you with full-time custody?
Social workers cannot monitor every parent every day, so the trial judge was justified in concluding that even a CRISP release might not be enough to protect Miracle from danger to her health or safety. The jurisdictional and dispositional orders appealed from are affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.