Opinion
H044576
10-23-2017
In re G.S., et al., Persons Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. R.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 16JU00350, 16JU00351)
I. INTRODUCTION
Ro.S. is the father of G.S. and Re.S., the children at issue in this dependency matter. The father appeals from the juvenile court's dispositional orders after the children were declared dependent minors under Welfare and Institutions Code section 300. The father contends the juvenile court's jurisdictional findings are not supported by substantial evidence. Alternatively, he challenges a dispositional order requiring him to "develop a network" of family, friends, and/or professionals to help him create a plan "to show everyone" that he can provide adequate supervision for the children.
All further unspecified section references are to the Welfare and Institutions Code.
For reasons that we will explain, we will modify the challenged dispositional order and affirm the juvenile court's orders as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Section 300 Petition
On November 9, 2016, the Santa Cruz County Human Services Department (the Department) filed a petition under section 300, subdivision (b)(1) [failure to protect] as to each child. The petitions alleged that the children—twins who were then three years old—came within the jurisdiction of the juvenile court because the children had suffered, or there was a substantial risk that the children would 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. (See § 300, subd. (b)(1).)
The petitions alleged that the father's "level of supervision" placed the children "at substantial risk of serious physical harm." On multiple occasions, the father had failed to supervise the children to the point where they "could have been seriously injured or possibly killed due to a lack of supervision in unsafe conditions." One occasion was on May 12, 2016, when the children were "riding their bicycles at Sky Park with no helmets and at least one of the boys was unsupervised." A second occasion was on May 28, 2016, when one of the children "was found alone riding a balance bike in the number two lane of traffic on Mt. Hermon Road, with a speed limit of 35 miles per hour." A third occasion was on October 22, 2016, when one of the children was "standing within a few feet of circus performers who were juggling, throwing, and wielding objects." The child "had to be removed from the stage by circus staff and other participants," and the father was not nearby.
Attached to the petitions was an investigative narrative that provided further details about the May 12, 2016, May 28, 2016, and October 22, 2016 incidents as well as the history of prior referrals. Several of the reporting parties had informed the Department that the children had been born via a surrogate and that the father was their only parent.
The investigative narrative indicated that a November 2007 report regarding the father's two older children had been "determined to be inconclusive" and that the referral had been closed because the case had been in family court and the father had been ordered to have only supervised visitation.
This court granted the Department's request for judicial notice of this court's opinion affirming the orders in the family law case.
There had been nine reports of prior incidents involving the two younger children. A December 2013 report of the father leaving the children in a playpen for long periods of time had been "determined to be unfounded." A February 2014 report of the father leaving the children in a playpen for long periods of time and being "a hoarder" was also "determined to be unfounded." A November 2014 report—of the father leaving the children in a car, not being nurturing, and not properly feeding or clothing the children—was "determined to be inconclusive." A December 2014 report—of the father leaving the children home alone without supervision and being aggressive with one child during diaper changes—was "determined to be inconclusive." A January 2015 report—of the father failing to properly clothe the children during cold weather, failing to use proper car seats, failing to maintain a clean home, failing to give the children affection, and failing to adequately supervise the children—was "substantiated" and led to a petition being filed, but the petition was dismissed after a trial in which the father showed he had made changes to mitigate the risk. A May 2015 report of the father failing to adequately supervise the children at a park was "determined to be inconclusive." A November 2015 report—of the father leaving the children alone in a cart at Costco, leaving one of the children behind when leaving Costco, and failing to secure the children in his car—was "substantiated" as an allegation of general neglect. A January 2016 report—of the father leaving the children home alone, leaving the children in wet diapers, failing to stimulate the children or provide them with socialization opportunities, failing to properly feed the children, maintaining a home with "many hazards," and leaving the children with an "unstable and dangerous" housemate—was "determined to be inconclusive." A May 2016 report of the father allowing one child (Re.S.) to harm the other child (G.S.) and of "force feeding" G.S. was "evaluated out."
This court granted the Department's request for judicial notice of the transcript of the juvenile court's oral findings in that case. (Santa Cruz County Super. Ct. Nos. DP003009 & DP003010.)
The investigation narrative explained that a social work supervisor called the father on July 13, 2016 to request a meeting, but the father had refused to meet. Pursuant to a warrant, social workers and Santa Cruz Sheriff's Department deputies went to the home on September 8, 2016. They located "potentially dangerous" items in the front yard, including battery cables and coolant, but the father and children were not at home. Social workers and deputies returned to the home on September 30, 2016. This time, the father and the children were home. The home was cluttered. The sheets on the children's bed were "filthy," the children's clothing was dirty, and the children were wearing "diapers that appeared as though they were full." The father indicated he would meet with social workers a few days later to discuss the allegations.
Following the visit to the home, a sheriff's deputy informed the social work supervisor that the father had 12 guns registered to him. The father had admitted that there were "guns in the home" but had not told the deputy "where the guns were or how they were secured."
The father met with social workers on October 3, 2016, but he refused to respond to the allegations regarding the reports of the children riding bicycles in an unsafe manner. The father also refused to discuss his guns.
B. Jurisdiction/Disposition Report
The Department filed a jurisdiction/disposition report on December 5, 2016, recommending the juvenile court sustain the section 300 petition and maintain the children in the father's home with family maintenance services.
The jurisdiction/disposition report described the prior incidents that had been included in the investigation narrative attached to the petition. Additional investigation narratives were attached to the report. Also attached to the report were police incident reports regarding the two May 2016 incidents involving the children riding their bicycles in an unsafe manner.
The jurisdiction/disposition report noted that during the May 12, 2016 incident, neither child had been wearing a helmet while riding a bicycle. One of the children had been riding his bicycle "by the library with no supervision." The father had taken the children to the pump track, and one child had ridden ahead of him.
The jurisdiction/disposition report also provided further details of the May 28, 2016 incident in which one of the children was riding a balance bicycle on Mount Hermon Road. The child had been "in the middle of the lane of traffic with no parent in [sight]." Three vehicles had stopped behind the child. The father had been "several hundred yards away slowly riding his bicycle towards the boy from the direction of the pump track." The father had "seemed unaware" that the child had ridden "so far away from him." The child had ridden his bicycle "into oncoming vehicle traffic." Two witnesses had reported that the father did not seem concerned by the incident.
The jurisdiction report also provided additional details of the October 22, 2016 incident at the circus performance. At the circus, parents had been instructed "to keep their children seated at all times." The performance had "involved dangerous objects moving at high speeds." One of the children had been found near the stage area; the father was not nearby. A circus employee had removed the child from the stage area and brought him to the back of the tent, but the child had returned to the stage. Someone had removed the child again and asked "where his grown[-]up was." The child had replied that "he did not know." The father had eventually shown up but "did not appear concerned that his son was in a dangerous place or with a stranger." The father had commented that the child would not sit still.
Following the three incidents that were the subject of the section 300 petition, social workers had "attempted to engage the father" in discussions about a safety plan, but the father had declined to speak with the social workers.
The social worker indicated that the Department wanted the father to "demonstrate that he can implement sufficient supervision within his chosen parenting style" in order to keep the children safe. The social worker indicated that the Department was supportive of various parenting styles, including "Free Range Parenting," which the father had identified as his parenting practice. The social worker believed that the Department might not need to be involved if the father was "willing to adjust his parenting practices and work with a network of family, friends, and professionals" to create safety plans that would ensure the children were supervised.
The Department included a recommended case plan. One of the father's recommended responsibilities was to "develop a network of family, friends, and professionals in order to create a plan to show everyone that: [¶] a. The boys will be supervised by an adult who will decrease the hazards in their environment such as, but not limited to, riding their bicycles in the street and wearing a helmet. [¶] b. The boys will be supervised by an adult who will be able to observe and intervene in order to keep them safe from dangers in their environment, such as, but not limited to, preventing them from being unsupervised in parking lots and public places. [¶] c. [The father] can teach the boys things that they can do to increase their own safety, such as, but not limited to, their telephone number, home address, and the name of the adult that is supervising them." The recommended case plan further required the father to "[i]dentify at least three other people willing to take on a role to participate in safety planning meetings with the [D]epartment."
Other aspects of the recommended case plan included the father participating in a psychological evaluation, ensuring that his firearms were stored in accordance with state law, and participating in therapy.
C. Evidentiary Objections
The father filed written objections to the jurisdiction/disposition report. He objected to the descriptions of nearly all of the prior referrals on relevance and hearsay grounds. As to several of the prior referrals, the father also objected on grounds of "lack of discovery" and/or res judicata. He also objected to all of the petition's attachments on hearsay grounds.
The Department filed a response to the father's objections. The Department noted that under section 355, subdivision (b), hearsay evidence contained in a social study is admissible and may be the basis for jurisdiction. The Department further noted that the father's hearsay objections would not necessarily result in the striking of the objected-to material. Rather, pursuant to section 355, subdivision (c)(1), an objection would render the hearsay insufficient "by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based," unless a statutory exception applied. The Department pointed out that hearsay evidence can also be considered as corroboration for other evidence. The Department argued that some of the challenged statements were not being offered for the truth of the matter asserted; that other challenged statements came within a statutory exception; and that other challenged statements were not being offered as the sole basis to support a jurisdictional finding or an ultimate fact.
Section 355, subdivision (b) provides: "A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)."
Section 355, subdivision (c)(1)provides: "If a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: [¶] (A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay. [¶] (B) The hearsay declarant is a minor under 12 years of age who is the subject of the jurisdictional hearing. . . . [¶] (C) The hearsay declarant is a peace officer . . . , a social worker . . . , or a teacher . . . . [¶] (D) The hearsay declarant is available for cross-examination. . . ."
The Department argued that the father's relevance, lack of discovery, and res judicata objections should be overruled because those objections were not permitted under section 355.
D. Amended Petitions
The Department filed amended petitions on December 20, 2016. The allegations of the amended petitions were as follows:
"B-1: The father has a long established pattern of failing to provide appropriate supervision of his children . . . . Since the children's birth, the Department has received 11 reported incidents of abuse and neglect by the Father [Ro.S.]. The Department has conducted 10 investigations and attempted to work with the father to help create a plan of appropriate adult supervision for the children. Since this matter was previously before this court, the Department has received 5 subsequent referrals from law enforcement and community members concerning the lack of supervision by the Father. Without the Court's intervention, the children are at serious risk of physical harm due to [the father's] repeated inability or unwillingness to [e]nsure the safety of his children.
"B-1-A: On 11/19/2015, while [the father] was shopping in Costco, community members observed the children, age two at the time, alone in a shopping cart for about 10 minutes until father approached. Later, during the same trip, a community member observed father in the process of exiting the store with only one child. The community member found the other boy alone in the food court and . . . led the child to the father as he re-entered the store.
"B-1-B: On 5/12/2016, Scotts Valley Police Department responded to an emergency call regarding the physical safety of [the children]. The children, age two at the time, were found to be riding their bicycles at Sky Park without helmets and at least one child was riding near the dog park at Sky Park with no adult visible in the vicinity.
"B-1-C: On 5/28/2016, Scotts Valley Police Department responded to an emergency call that one of the twin boys, age two at the time, was riding a bicycle alone in the number two lane of traffic on Mount Hermon Road, with a speed limit of 35 miles per hour. A motorist pulled off the road and, stopped traffic to prevent the boy from being hit by a vehicle. The motorist waited with the boy for 5 to 7 minutes before Father appeared and began to approach from several hundred yards away.
"B-1-D: On 10/2212016, community members reported that one of the twin boys was standing within a few feet of circus performers who were juggling, throwing, and wielding objects. The child had to be removed from the stage by circus staff and other participants to keep the child safe. A few minutes later, the child was found again alone, standing with his hands on the stage. [The father] was outside the tent, and when the child was asked where his father was, responded, 'I don't know,' and willingly walked towards the exit with a stranger. [The father's] inadequate level of supervision in the community places the young children at substantial risk of physical harm.
"B-1-E: On 9/30 2016, during a joint a safety welfare check of the home with law enforcement and authorized by judicial warrant, Santa Cruz County Deputy Sheriff Steve Ryan advised the Department that [the father] has 12 guns registered in his name. When asked about the weapons, Father reported that he had guns in the home but did not state where the guns were or how they were secured. On 10/31/2016, the Department conducted a follow-up meeting with Father and attempted to ask Father about his gun collection to assess whether the weapons were in a locked case and accessible to the children. [The father] responded, 'how is that your business?' and would not discuss the issue any further. The Father's lack of cooperation, lack of demonstrated safety plan for the guns, and pattern of inadequate supervision places the children at high level of risk of serious physical harm or death."
E. Additional Investigation
The Department filed a memorandum regarding additional investigation on March 20, 2017. The report noted that there had been two recent referrals regarding the children's supervision, both resulting in police reports. First, on February 19, 2017, one of the children had been riding his bicycle without supervision "on the sidewalk near the PG & E 'Base Camp.' " Second, on March 18, 2017, one of the children had been "wandering around behind Kmart on a bicycle unattended." When the child was brought back to the father, the father swore at the person and "did not appear to be concerned about his child's whereabouts." The social worker felt that these incidents showed that the father continued to demonstrate a pattern of not supervising the children in areas with vehicle traffic.
F. Jurisdiction/Disposition Hearing
A jurisdiction/disposition hearing was held on March 22, 2017.
At the beginning of the hearing, the juvenile court addressed the father's objections to the jurisdiction/disposition report. The court overruled the father's relevance objections and his objections based on lack of discovery. The court agreed with the Department that certain hearsay could be considered to the extent it was admitted not for its truth but for "foundational purposes." The court found that other hearsay statements was admissible under statutory exceptions, and that other hearsay statements were admissible because the Department was not relying on them as the sole basis for the jurisdictional findings or ultimate facts. (See § 355, subd. (c)(1); fn. 3, ante.) The court also sustained some of the father's hearsay objections.
1. The Department's Witnesses
The Department presented four witnesses.
Nicole Taylor testified that in May 2016, she saw "two little boys on bikes" near the dog park, with no adult in sight. The boys were riding on the sidewalk along Blue Bonnet Lane towards the Scotts Valley Library. After seeing the boys, Taylor parked her car and approached them, asking "Where's your mom?" They boys did not respond verbally, but one of them pointed backwards. Another person passed by and appeared to be concerned. The person waited with Taylor. After a few minutes, Taylor saw the father walking towards her and the children, at a slow pace. The father did not appear concerned about the children and "seemed really out of it." At that point, Taylor called the police. Taylor estimated that the children had been unattended for two to three minutes.
Keith Tyndall, an emergency dispatcher clerk for the City of Scotts Valley, was the dispatcher who sent a police officer out in response to Taylor's May 12, 2016 call. Tyndall was also the dispatcher who sent officers out in response to a March 18, 2017 call regarding one of the children riding a bicycle behind Kmart.
In addition, on May 28, 2016, Tyndall had called 911 upon seeing one of the children on a balance bike in the middle of one of the lanes on Mount Hermon Road, where vehicles generally travel at a speed of 40 miles per hour. That incident had occurred at about 5:00 p.m. Tyndall had looked around but had not seen any adult who appeared to be connected to the child. He saw that several vehicles had stopped behind the child. About two minutes after Tyndall first saw the child, the father slowly approached by bicycle, coming from the direction of the pump track. Tyndall did not see another child.
Social worker Emily Simoni testified as an expert "concerning risk assessment with respect to children." She became involved in the investigation of this case in May 2016. After the father indicated he was unwilling to talk to the Department, the Department obtained a warrant and made two attempts to execute it. Social worker Simoni entered the residence after deputies spoke with the father. The father used his cell phone to videotape the encounter, even after social worker Simoni told him that videotaping was not permitted. Social worker Simoni observed no health or safety concerns at the home at that time.
Following the home visits, social worker Simoni received a call from one of the deputies. The father had told the deputy that he had 12 guns in the home. Social worker Simoni attempted to ask the father about the guns, but he would not discuss the matter with her.
Social worker Simoni explained that the Department did not view each incident in isolation; the social workers also looked at "cumulative risk." In her opinion, the cumulative risk in this case was "very high." She explained that her opinion was based on the fact there had been 11 reports to the Department, 10 of which had led to an investigation, and several of which had involved allegations regarding the father's lack of supervision of the children. Her risk assessment also factored in the father's lack of response or engagement in safety planning.
Social worker Jeremy Lansing also testified as an expert in "risk assessment for children." He had reached out to the father to try to set up a meeting, but the father's attorney had instructed him not to contact the father. Thus, social worker Lansing had not been able to conduct a safety assessment as to the father's guns; he still did not know how the guns were stored. The Department had determined that the two May 2016 incidents together indicated a high risk level for the children. The October 2016 circus incident indicated that the children's supervision needs still were not being met. Together, the various incidents demonstrated "a behavior pattern of not supervising the children in high traffic areas where there's cars, or where [the father] doesn't have a line of sight, or they possibly could get lost."
In the opinion of social worker Lansing, the risk that the children would be placed in another dangerous situation was high. Social worker Lansing indicated that his risk assessment might change if the father changed his own views about supervision or if the father were to "set[] up a network in order to create more supervision for the children." Social worker Lansing explained that "support networks and safety networks"—i.e., "other people involved in families' lives"—are important to keeping children safe.
2. The Father's Testimony
The father testified on his own behalf. He understood that the Department's concerns involved his supervision of the children, but he did not agree that the children were poorly supervised. He agreed there were risks associated with children riding bicycles, including the risk of being hit by a car if they "go out into the street."
The father explained that on May 12, 2016, he had been at the park with the children and they had all started to go back to their car, which was parked at the library. The children were "a little bit ahead" of him, but he did not lose sight of them and they remained on the sidewalk, which he did not consider to be dangerous.
The father acknowledged that he did lose sight of one child (G.S.) for a "[c]ouple [of] minutes or so" during the May 28, 2016 incident on Mount Hermon Road. The father had been helping the other child (Re.S.). At some point, he did "bike down" to get G.S., leaving Re.S. a few hundred feet away. He agreed there was a risk associated with a child riding on Mount Hermon Road. After the incident, he had "made more of an attempt to forcefully make th[e] point" to the children that they were "never to go on a road with traffic without [him], that roads are dangerous." He had also instructed the children—who were still under three years old at that point—to "not get out of [his] sight and not go off in that direction of Mount Hermon Road." The father felt that since that incident, he had been "more in control" of the children and that the children were "better behaved." The children now had instructions to stay out of roads and parking lots.
Regarding the circus incident, the father explained that the children had become restless during the show. He acknowledged that one child had gone out of a side door and out of his sight, but he asserted that in response, he had gone out and "got him."
Regarding the February 2017 incident near the PG&E staging area, the father explained that the children had been playing in the area of the Scotts Valley skate park and that the children had never been out of his sight.
The father also testified about the March 18, 2017 incident at Kmart. He had brought the children to the park, and then they had decided to go to Kmart to use the bathroom and to buy something. As they left on their bicycles, one child had been slower or had needed attention, and the other child had "got ahead" of him. The child was possibly out of his sight for about ten seconds. A group of 10- to 12-year old boys riding skateboards had called the police. The child had been in the back parking lot area for a few minutes, and one of the older boys had picked up the child and begun carrying him back in the direction he had come from. After the father arrived, one of the older boys had "lectur[ed]" him, saying that his child "shouldn't be back there."
The father did not believe his children were at substantial risk of serious physical harm. He felt that he had been teaching the children to "understand and deal with risk" by "systematically expos[ing] them to very controlled amounts of risk." For instance, he would encourage them to climb a tree that was "easy to climb and . . . reasonably safe," while he was watching, so they could "learn to climb."
The father testified that when he met with the social workers, he "told them that [he] would be happy to address their concerns, if they would only tell [him] what their concerns are."
3. The Parties' Arguments
At the end of the jurisdiction hearing, counsel for the Department argued that the children came within section 300, subdivision (b), in that they had suffered or there was a substantial risk that they would suffer serious physical harm as a result of the father's failure or inability to adequately supervise or protect them. Counsel argued that the risk factors included "a repeated pattern of unsupervision [sic] in high risk areas" and the fact that the children were "at an age where they need constant attention." The risk factors also included the father's failure to demonstrate he appreciated the risks and "gravity of the situations his children have been found in" as well as the father's "lack of cooperation or willingness to engage with the Department."
Counsel for the Department further argued that the juvenile court could look at past conduct because "past conduct may be probative of current conditions if there's reason to believe that the conduct will continue." Counsel also reminded the court there had been two referrals since the filing of the petition.
The juvenile court asked counsel for the Department to address the issue of the father's firearms. Counsel asserted that the "situation involving the guns poses a high risk situation" because the father was not willing to cooperate with the Department and had a pattern of "not adequately providing supervision."
Counsel for the children agreed that the juvenile court should take jurisdiction over the children and order family maintenance services. She indicated she might have advocated for "dismissal and voluntary services" but for the most recent incidents. She agreed with the Department that the father had demonstrated a "repeat pattern of the children at least being far enough away from him being able to intervene" if something had happened.
The father's attorney argued that the evidence was insufficient to establish a substantial risk that the children would suffer serious physical harm. He pointed out, "[T]hey have never suffered any serious physical harm." He agreed that the May 28, 2016 incident "could be considered the most alarming," but he noted that the father had acknowledged that the incident had involved a safety risk and had set boundaries for the children afterwards. The father's attorney described the more recent incidents as "de minimus [sic] in nature."
Regarding disposition, the father's attorney objected to the proposed order that the father "develop a network of family friends and professionals." The father's attorney argued that the order would be "vague to the point of being unfollowable." Likewise, he objected to the proposed order that the father "identify at least three other people willing to take on a role to participate in the safety planning," arguing that such an order would not be enforceable or helpful. The father's attorney also objected to the proposed order for a psychological evaluation, the proposed order that the father ensure his firearms are stored legally, and the proposed order that the father participate in therapy.
4. Juvenile Court Findings and Orders
The juvenile court found that the "totality of the circumstances" showed "a pattern of insufficient supervision that poses a severe risk to these children's physical [safety]." The court found "a substantial likelihood that the children will suffer serious physical harm as a result of [the father's] failure or inability to appropriately supervise his children." The court expressed concern that such young children would be "unattended and unsupervised and so far away from their father." The court found it did not "have to wait until one of these children is hit by a car" to find a substantial risk due to the repeated similar incidents. The court found that the father, in his testimony, had minimized the risk posed to the children.
The juvenile court found the allegations of the amended section 300 petition true, with the exception of allegation B-1-A, regarding the Costco incident. The court found true allegation B-1, regarding the father's "long established pattern of failing to provide appropriate supervision of his children"; allegation B-1-B, regarding the May 12, 2016 bicycling incident; allegation B-1-C, regarding the May 28, 2016 bicycling incident; allegation B-1-D, regarding the circus incident; and allegation B-1-E, regarding the father's gun collection.
The juvenile court found that the motorist (Tyndall) had waited with the child (G.S.) for two to three minutes, not five to seven minutes as originally alleged.
The juvenile court declared the children dependents and ordered them to remain with the father on family maintenance services. The juvenile court ordered the father to cooperate with the social worker, and it adopted the recommended case plan with some amendments. First, the court declined to order a psychological evaluation. Second, the court modified the proposed order that the father "develop a network" to include an "and/or" so that it required him to "develop a network of family, friends, and/or professionals in order to create a plan to show everyone" that he could provide adequate supervision of the children.
III. DISCUSSION
A. Jurisdictional Findings
The father contends there is no substantial evidence to support the juvenile court's finding there was a substantial risk that the children would suffer serious physical harm or illness as a result of the father's failure or inability to adequately supervise or protect them. (See § 300, subd. (b).) The father contends that the evidence of any risk was "speculative" since "[t]here was only one incident with any real possibility of injury."
1. Standard of Review
" '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 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 of the trial court. [Citations.]' " (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
2. General Legal Standards
Dependency jurisdiction is proper under section 300, subdivision (b) if "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 or guardian to adequately supervise or protect the child." A parent's failure to supervise or protect a child need not amount to neglect to satisfy section 300, subdivision (b)(1). (In re R.T. (2017) 3 Cal.5th 622, 629.) And, importantly, "the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citations.]" (In re N.M. (2011) 197 Cal.App.4th 159, 165 (N.M.).) Further, "[t]he court may consider past events in deciding whether a child presently needs the court's protection. [Citations.]" (Ibid.)
2. Firearms Finding
The father first challenges the juvenile court's true finding on the B-1-E allegation that the father placed the children at substantial risk of physical harm by refusing to cooperate when asked about the location and security of the 12 firearms registered to him. The father contends that his "[r]egistration and possession of lawful firearms" did not show that the children were at substantial risk of physical harm, and that by sustaining this allegation, the juvenile court essentially placed the burden on him to prove "the absence of risk" of harm from the firearms.
The father contrasts his case with In re Yolanda L. (2017) 7 Cal.App.5th 987 (Yolanda L.), in which the father had kept a loaded firearm in a closet, where it was "accessible to the children," but claimed he did not think the gun was loaded. (Id. at pp. 990, 991.) The Yolanda L. court held that "section 300, subdivision (b) dependency jurisdiction may be based on evidence that the parent stored a loaded gun in such a manner that it could be accessed by a child." (Id. at p. 995.) The court explained: "Such conduct indicates 'a gross lack of attention to the child's welfare' with potentially great[] repercussions . . . ." (Ibid.) That court noted that the father's "lack of insight into the danger posed by the loaded gun in the home provided [further] support for the potential of future risk. [Citation.]" (Id. at p. 996.)
In this case, the evidence did not establish that the children actually had access to a loaded firearm. However, there was abundant evidence that the father had failed to adequately supervise and protect the children. This evidence provided a basis for the juvenile court to infer that there was a risk to the children from the father's possession of 12 firearms. A reasonable trier of fact could conclude that if the father had failed to adequately supervise or protect the children previously, it was likely the father would fail to adequately supervise or protect the children with respect to the firearms.
In any event, as the Department points out, the B-1-E allegation need not, by itself, "state facts sufficient to support dependency jurisdiction." "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).) Here, the B-1-E allegation was just one of the four specific factual allegations the juvenile court found true in sustaining the broader allegations that the children came within section 300, subdivision (b). Thus, even if the B-1-E allegation, alone, was insufficient as a basis for jurisdiction, reversal is not required.
3. Bicycle Safety Findings
The father challenges the juvenile court's true finding on the allegations that the father placed the children at substantial risk of physical harm by (1) allowing the children to ride their bicycles without helmets and without an adult nearby and (2) allowing one of the children to ride his bicycle on Mount Hermon Road alone. With respect to these allegations, the father contends that they showed nothing more than that the children were learning safety and being exposed to the normal risks of "[a]n active childhood."
The father discusses a number of cases in support of his claim that the allegations establish only a "conjectural and speculative" conclusion that the children could suffer serious physical harm in the future through similar activities. None of them support his position.
The first case, Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, was not a dependency case; it was a civil case reversing a grant of summary judgment in which the court concluded that riding a scooter is not a recreational activity subject to the assumption of the risk doctrine under all circumstances. (Id. at p. 71.) The instant case does not involve summary judgment or the doctrine of assumption of the risk.
The second case, In re Bernadette C. (1982) 127 Cal.App.3d 618 (Bernadette C.), involved a dispositional order for removal of the child from the mother's custody. The court reversed the order, finding no substantial evidence of "parental inability to provide care for the child with resulting detriment to the child from remaining with the parent" (id. at p. 627), because although the mother had once removed the child from a hospital against medical advice, she had continued to seek medical treatment for the child and thus there was only speculation that she might take the child from the hospital again (id. at p. 628). The instant case does not involve an order for the children's removal from the home, and here there was more than one incident in which the father demonstrated a lack of adequate supervision of the children.
The third case, In re Savannah M. (2005) 131 Cal.App.4th 1387, found no substantial risk of future serious physical harm to a child whose sibling had been sexually abused by a family acquaintance on one occasion. The court found "only speculation" that the mother and the father would allow the child to be alone with someone who would sexually abuse her. (Id. at p. 1399.) The instant case does not involve abuse by a third party, and here there was more than one incident involving the father's lack of adequate supervision of the children creating a risk of harm to the children.
The fourth case, In re Steve W. (1990) 217 Cal.App.3d 10, involved a dispositional order removing the child from the mother's custody after the father had been convicted of killing another child. The mother had established that she had no intent of resuming her relationship with the father. The appellate court found that the removal order had been improperly based on speculation that the mother "would enter a new relationship with yet another abusive type of person." (Id. at p. 22.) In this case, it was not a third party whose actions led to the dependency. Moreover, there is substantial evidence—not merely speculation—supporting the juvenile court's finding that the father would repeat his prior behavior, since the father's failure to adequately supervise the children had created safety risks on several occasions.
The father relies primarily on his own testimony in asserting that the evidence did not show there continued to be a substantial risk of harm to the children. However, the juvenile court found the father was minimizing the risk posed to the children, a credibility issue as to which we defer. (See I.J., supra, 56 Cal.4th at p. 773.) Further, the father's testimony was contradicted by evidence introduced at the jurisdiction/disposition hearing, including the February and March 2017 incidents in which one of the children had again been riding his bicycle without close supervision under circumstances that caused witnesses to become concerned for the children's safety.
The father also argues that the B-1-B allegation, concerning the May 12, 2017 incident in which the children were riding bicycles without helmets near a road, did not provide basis for jurisdiction. As noted above, however, that allegation, alone, did not need to support jurisdiction. (See Alexis E., supra, 171 Cal.App.4th at p. 451.) The B-1-B allegation was just one of the four specific factual allegations the juvenile court found true in sustaining each petition's allegation that the children came within section 300, subdivision (b). Moreover, the allegation was not simply about the children riding bicycles (specifically, balance bicycles) without helmets. The allegation also described the father's failure to adequately supervise the children in that he was not near them when they were riding close to a road. The testimony of eyewitness Taylor supported a finding that the incident posed a risk to the children which, in combination with the other incidents described in the petition and at the jurisdiction/disposition hearing, provided substantial evidence supporting the juvenile court's finding of jurisdiction.
4. Circus, PG&E, and Kmart Incidents
The father contends no substantial evidence supports a finding that the children were at risk of harm during the incident at the circus, the incident near the PG&E base camp, and the incident behind Kmart.
As to the circus incident, the record contains substantial circumstantial evidence supporting a finding that the child's unsupervised presence near the circus stage posed a risk of physical harm to the child. Prior to the performance, parents had been instructed to keep their children seated. The performance had "involved dangerous objects moving at high speeds." One or two circus employees had been so concerned about the child's safety as to physically remove the child from the stage area. The father was not nearby and the child did not know where the father was. This evidence was sufficient to establish that there was a risk of physical harm to the child due to the father's failure to supervise him during the circus performance.
The father provides no specific argument as to the incidents near the PG&E base camp and Kmart. Although we need not consider an issue raised by a party who fails to provide supporting argument (see Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422, fn. 6; Cal. Rules of Court, rule 8.204(a)(1)(B)), we briefly explain how those two incidents contributed to the evidence supporting the juvenile court's jurisdiction finding. Even if those incidents were insufficient by themselves to show that the children came within section 300, subdivision (b), they showed that the father's pattern of inadequately supervising the children had continued even after the May 28, 2016 incident on Mount Hermon Road. During both incidents, witnesses were so concerned about the children's safety that they called 911. Based on these two incidents, the juvenile court could reasonably conclude that the father still was not adequately supervising the children, especially when they were on bicycles, such that there continued to be a substantial risk of harm.
5. Prior Referrals
The father contends the Department's receipt of prior referrals did not provide a "reasonable link of causality" to a "present substantial risk of serious harm." He notes that the juvenile court sustained some of his objections to the evidence of the prior referrals, and he asserts that a series of unfounded or unsubstantiated claims does not show a substantial risk of harm to the children.
Once again, we observe that the allegation of prior referrals (allegation B-1), by itself, did not need to support jurisdiction. (See Alexis E., supra, 171 Cal.App.4th at p. 451.) We further observe that even after the juvenile court sustained some of the father's hearsay objections, much of the evidence of the prior referrals was admissible as long as it was not used as the sole basis for a finding of jurisdiction. (See § 355, subds. (b), (c)(1).) The prior referrals were relevant circumstantial evidence of the risk posed to the children, because they showed that the father's pattern of failing to adequately supervise the children continued after the Department became involved. In particular, the January 2015 referral, leading to the prior dependency case, was relevant. During that proceeding, the father had asserted that he would not leave the children unsupervised, yet following that proceeding there were a number of new incidents involving the father's failure to adequately supervise the children, such as the May 2016 bicycling incidents and the circus incident. In other words, that prior referral supported the juvenile court's finding that jurisdiction was necessary because of a continuing risk of harm.
6. "The Record as a Whole"
The father's final jurisdictional challenge is a claim that the "collective[]" allegations of the petition and the "record as a whole" fail to show that the children were at substantial risk of physical harm due to the father's failure to supervise them.
While acknowledging that there was a "real possibility of injury" when one of the children entered into a lane of traffic on Mount Hermon Road, the father downplays the other incidents and asserts that there was no evidence to show that one of the children would again enter a lane of traffic. However, the record shows that the father's failure to adequately supervise led to numerous incidents in which the children were at substantial risk of physical harm. The fact that neither child had actually been physically harmed is not determinative, since—as previously noted—"the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citations.]" (N.M., supra, 197 Cal.App.4th at p. 165.) Considering that bystanders recognized the children were at risk during the various incidents, the record supports the juvenile court's finding that the father's ongoing failure to adequately supervise the children created a substantial risk of harm to their physical safety.
The father supports his argument by observing that the family maintenance case plan did not require the removal of the children from his custody. However, removal of the children is not required in every case in which the juvenile court takes jurisdiction. (See § 361, subd. (c) [specifying circumstances under which removal is permitted].) The juvenile court's finding of jurisdiction under section 300, subdivision (b) is not inconsistent with its finding that removal was not warranted. The cases the father cites are inapposite, as each involved the juvenile court making factual findings to support removal under section 361 but placing the children with the parent or parents. (See Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158, 161; In re Joel T. (1999) 70 Cal.App.4th 263, 267; In re Andres G. (1998) 64 Cal.App.4th 476, 479-480; In re Damonte A. (1997) 57 Cal.App.4th 894, 899.)
The father also asserts that the timeline of this case shows there was no substantial risk of harm. The father points out that the Department did not file a petition until November 2016, several months after the May 2016 incidents, and he claims that this indicates the Department found no risk of harm. However, the record is clear the Department began its investigation soon after the May 2016 incidents. Social worker Simoni testified that she became involved in the investigation in May 2016. She had tried to meet with the father in July 2016, but the father had refused, and ultimately the Department obtained a warrant to enter the home in early September 2016. The fact that a petition was not filed until November 2016 does not detract from the evidence supporting the juvenile court's finding that there was a substantial risk of harm.
The father further asserts that the Department pursued this case only to secure the father's cooperation, rather than for proper reasons (i.e., the children's safety). The record does not support this claim. Although the social workers indicated that their risk assessment factored in the father's lack of response or engagement with the Department, the record shows that the Department's concern was protecting the children from physical harm. There is no evidence that the social workers brought this case only to secure the father's cooperation or get his attention rather than to ensure the children's safety through juvenile court jurisdiction. Again, the cases the father relies on are inapposite. (See In re Henry V. (2004) 119 Cal.App.4th 522, 529-530 [improper to order out-of-home placement in order to secure the mother's further cooperation where there were no statutory grounds for removing the child from parental custody]; In re James B. (1986) 184 Cal.App.3d 524, 530 [no substantial evidence to support jurisdiction where mother took appropriate steps to ensure older child would not continue to abuse younger child and there was no evidence suggesting that abuse would continue].)
In sum, substantial evidence supports the juvenile court's determination that there was "a substantial risk" that the children would "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." (§ 300, subd. (b).) The juvenile court did not err by finding jurisdiction in this case.
B. Disposition Order
The father challenges the dispositional order requiring him to "develop a network" of family, friends, and/or professionals to help him create a plan "to show everyone" that he can provide adequate supervision for the children. The father contends that the order is vague and ambiguous, and he requests it be stricken from his case plan.
1. Standard of Review
" 'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.' [Citation.]" (In re Natalie A. (2015) 243 Cal.App.4th 178, 186.) However, a challenge asserting that a court order is "facially vague . . . presents an asserted error that is a pure question of law" (In re Sheena K. (2007) 40 Cal.4th 875, 888), which we review de novo (In re P.O. (2016) 246 Cal.App.4th 288, 299).
2. Vagueness Standard
The "void-for-vagueness doctrine . . . , which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.]" (People v. Hall (2017) 2 Cal.5th 494, 500.) In the context of probation conditions, a court order withstands a vagueness challenge if it is "sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.]" (Ibid.) An appellate court will not find a court order unconstitutionally vague " ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]" (Id. at p. 501.)
3. Analysis
The father argues that the "develop a network" order provides "no standard by which the Department and court can adjudicate whether father has sufficiently networked." He also contends that the "show everyone" aspect of the order "is uncertain as to who father must satisfy" as to his development of a network. He also asserts that two of the "particulars" of the order are vague and ambiguous, referring to the requirement that he demonstrate that "[t]he boys will be supervised by an adult who will decrease the hazards in their environment such as, but not limited to, riding their bicycles in the street and wearing a helmet" and that "[t]he boys will be supervised by an adult who will be able to observe and intervene in order to keep them safe from dangers in their environment, such as, but not limited to, preventing them from being unsupervised in parking lots and public places."
The father discusses three cases in which the parent's reunification plan was found inadequate because the parent was not given sufficiently specific instructions. For instance, the case plan in In re Kristin W. (1990) 222 Cal.App.3d 234 required the father to be offered rehabilitation counseling, complete a parenting class, and "show an ability to maintain an appropriate home for the children," but he was not granted any visitation. (Id. at p. 254.) The case plan was inadequate because it "did not inform [the father] what he had to accomplish to regain custody of his children." (Id. at p. 255; see also In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 [finding of inadequate services upheld where juvenile court found that the father was not given "the map" or "some direction" about how to reunify]; Bernadette C., supra, 127 Cal.App.3d at p. 626 [recommended order was vague and "semiadvisory" rather than specific enough to notify mother "of what must be done to reunite the family"].)
The Department acknowledges that the father's case plan is " 'outside the box' " but asserts that the challenged order is intended to motivate the father to "create a support network of persons he trusts for occasional childcare and support."
We agree with the father that certain aspects of the challenged order are vague, in that the order fails to provide the father with sufficient direction as to what would constitute a sufficient "network" and fails to specify the persons to whom he must demonstrate that he can implement the required safety and supervision guidelines. We will therefore modify the order to provide as follows: "The father will identify at least three people who are available to help provide childcare and supervision assistance, and the father will identify how those individuals will help the father ensure that: [¶] a. The boys will be supervised by an adult who will decrease the hazards in their environment such as, but not limited to, riding their bicycles in the street and wearing a helmet. [¶] b. The boys will be supervised by an adult who will be able to observe and intervene in order to keep them safe from dangers in their environment, such as, but not limited to, preventing them from being unsupervised in parking lots and public places. [¶] c. The father can teach the boys things that they can do to increase their own safety, such as, but not limited to, their telephone number, home address, and the name of the adult that is supervising them."
IV. DISPOSITION
The juvenile court's dispositional order providing "Mr. [S.] will develop a network of family, friends, and/or professionals in order to create a plan to show everyone that: [¶] a. The boys will be supervised by an adult who will decrease the hazards in their environment such as, but not limited to, riding their bicycles in the street and wearing a helmet. [¶] b. The boys will be supervised by an adult who will be able to observe and intervene in order to keep them safe from dangers in their environment, such as, but not limited to, preventing them from being unsupervised in parking lots and public places. [¶] c. Mr. [S.] can teach the boys things that they can do to increase their own safety, such as, but not limited to, their telephone number, home address, and the name of the adult that is supervising them." is modified to read as follows:
"The father will identify at least three people who are available to help provide childcare and supervision assistance, and the father will identify how those individuals will help the father ensure that: [¶] a. The boys will be supervised by an adult who will decrease the hazards in their environment such as, but not limited to, riding their bicycles in the street and wearing a helmet. [¶] b. The boys will be supervised by an adult who will be able to observe and intervene in order to keep them safe from dangers in their environment, such as, but not limited to, preventing them from being unsupervised in parking lots and public places. [¶] c. The father can teach the boys things that they can do to increase their own safety, such as, but not limited to, their telephone number, home address, and the name of the adult that is supervising them."
As modified, the juvenile court's orders are affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.