Opinion
E075858
06-14-2021
In re J.H. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.H., Defendant and Appellant.
Susan Lawrence, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INJ2000112 Susanne S. Cho, Judge.
Susan Lawrence, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MILLER J.
The juvenile court sustained a supplemental dependency petition (Welf. & Inst. Code, § 387), and ordered five children removed from the physical custody of A.P. (Mother) and defendant and respondent E.H. (Father; collectively, Parents). Father appeals, raising three issues. First, Father contends he was a noncustodial parent (§§ 361, subd (d) & 361.2, subd. (a)), so the juvenile court erred by treating Father as if he were a custodial parent (§ 361, subd. (c)(1)). Second, Father contends there is insufficient evidence to support the sustaining of the supplemental petition. Third, Father asserted the juvenile court erred by finding the children are not Indian children under the Indian Child Welfare Act (ICWA); however, in his appellant's reply brief Father concedes this issue is now moot. We affirm.
All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Mother has five children: (1) Ra.D. who is male and was born in 2010; (2) Ro.D. who is male and was born in 2012; (3) Jo.H. who is male and was born in 2015; (4) Ja.H. who is male and who born in 2018; and (5) M.H. who is female and was born in 2019. Father is the presumed father of the three youngest children-Jo.H., Ja.H., and M.H. (collectively, the H-children).
Mother is the granddaughter of an enrolled member of a federally recognized Indian tribe, the Santa Ynez Band of Chumash Indians (the Tribe). Mother is considered a “Community Member of [the] Santa Ynez Band and her children would qualify under ICWA, ” according to the ICWA representative for the Tribe.
In December 2019, Mother took a drug test as part of the Torres Martinez Tribe's Temporary Assistance for Needy Families (TANF) program. Mother tested positive for methamphetamine, amphetamines, and benzodiazepines. In January 2020, a tribal representative went to Mother's home, but there was no answer. The Riverside County Department of Public Social Services (the Department) was contacted. The Department and the Torres Martinez Tribal Advocate repeatedly tried to contact Mother but failed to make contact with her. On February 5, 2020, an Indio police officer went to Mother's home for a welfare check, made contact with Mother, and found no immediate safety concerns. Mother explained that the positive drug test was due to diet pills.
On February 27, 2020, the Department social worker and two police officers went to Mother's home. Mother admitted to a prior addiction to opiates, which occurred after giving birth to Ra.D. Mother had completed a 45-day inpatient treatment program for that addiction. Mother denied current drug abuse. Mother said she and Father “are married, but live together on an ‘on and off' basis.” On March 25, the children's maternal grandmother (Grandmother) told the social worker that she avoids going “to the parents' home because she does not like the manner in which [Father] speaks and his attitude.” On April 2, Father told the social worker that he and Mother “are in a relationship, but that he remains out of the home for a few days a week to stay with the [children's] paternal aunt [(Aunt)].” Father denied that Mother abuses drugs.
On April 9, 2020, the Department filed a dependency petition alleging the children suffered or were at risk of suffering serious harm or illness due to Parents' failure or inability to adequately supervise or protect the children, or due to Parents' inability to provide regular care for the children due to a parent's substance abuse. (§ 300, subd. (b)(1).) As to Mother, the Department alleged Mother has a history of abusing methamphetamine and prescription drugs. As to Father, the Department alleged he knew of Mother's positive drug tests and ongoing drug abuse but continued to allow Mother to care for the children.
On April 29, the children's attorney told the court that, rather than the children being detained from Parents, the parties agreed Parents and the four youngest children would live with Aunt, while Ra.D. lived with Grandmother. Father's attorney said he would “submit on the arrangement that was articulated [by the children's attorney] as to the living arrangements for [Father] and the children.”
The juvenile court found a prima facie showing was made that the children came within section 300, subdivision (b). The juvenile court ordered that the children remain in Parents' custody on the condition that Ra.D. lived with Grandmother and the four youngest children lived with Parents and Aunt.
B. JURISDICTION AND DISPOSITION
Mother spoke with a Department social worker on May 29, 2020. Mother “admitted she used methamphetamine two months ago with a friend, and is currently using Xanax prescribed to her.” Mother said she and Father “are not living together.” Mother explained that they “remain married, [but] they have been separated since November 2019. [Father] is currently residing at ‘condominiums in Indian Palms Country Club,' while [Mother] remains with the children at the home of [Aunt]. [Mother] stated there is no possibility [Father] could have known about any issues, since he is not in the home and not around to observe the children ‘24/7' ” Torres Martinez tribal staff said Mother “consistently tests positive for methamphetamine at the TANF office.”
The Department social worker spoke with Father on May 29, 2020. Father denied knowing of Mother's methamphetamine abuse. Father explained that he was told of Mother's methamphetamine abuse, but “a social worker visited the home previously, and asked [Mother] to complete a saliva drug test in his presence. The results were negative to all substances, so [Father] thought the allegations were false and felt [Mother] was being truthful.” Father knew Mother was addicted to pills in the past, but believed she had “ ‘come a long way' ” due to completing an inpatient treatment program.
The social worker spoke with Aunt on June 2, 2020. Aunt said Father is at Aunt's home “part of the time.” Father contradicted Aunt and Mother regarding his residence. “[Father] reported he is rarely gone, and minimized [the] separation from [Mother.]”
The four youngest children were doing well in Parents' custody. Ro.D. “is a bright child who is meeting his developmental targets.” Jo.H. “is a friendly and happy child who is meeting his developmental targets.” Ja.H. “is a playful boy who is meeting his developmental targets.” M.H. “is a happy child who is meeting all of her developmental targets at this time.”
On June 4, 2020, the Department filed a first amended petition, but the allegations against Parents remained the same. During the June 8 jurisdiction hearing, Father's attorney asserted there was no support for the finding that Father should have known of Mother's alleged drug abuse because Father “oftentimes doesn't stay at the same residence.”
The first amended petition added an allegation against the father of Ra.D. and Ro.D.
The juvenile court found that Mother has “an extensive history of substance abuse, ” which indicates she is “more likely than not, abusing even prescription drugs that were given to her.” The court said that Mother might have a Xanax prescription but the court “suspect[ed] that she's abusing the prescription in this case.” The court concluded “there's ample cause for[] this Court to be concerned and find the allegations true.” The juvenile court sustained the amended petition. The court ordered the children remain in Parents' custody on a plan of family maintenance.
C. SUPPLEMENTAL PETITION
“On June 9, 2020, the Department received a referral alleging [Mother] called her tribal representative, her speech was slurred and appeared incoherent.” On June 18, the tribal representative said Mother “requested referrals for counseling services and drug treatment.” The Department's social worker reported, “There are also concerns that [Mother] is driving the children under the influence of drugs and [Father] has failed to supervise the children despite [M]other's drug use.”
Aunt reported that Father visits Mother and the four youngest children every evening, but that he resides in another home. Ra.D. told the social worker that “his mother and siblings were staying at [Aunt's] home, but they sleep with [Father] in an apartment located in a gated community.”
On June 22, the Department received the hair follicle drug test results from a drug test Mother took on June 9; the test was positive for methamphetamine and amphetamine. On June 23, a Department social worker told Parents that the Department obtained a warrant to remove the children.
Ro.D. and Ja.H. “confirmed living with [Father] in their residence located in Indio, CA and they have been staying at [Aunt's] home.” Ja.H. said Parents and the children “visited an amusement park, they went shopping, and dined out in restaurants.” The Department placed all five children in foster care on June 23, 2020.
On June 25, the Department filed a supplemental petition alleging (1) Mother failed to comply with the court's orders, abused methamphetamine, and drove the children while under the influence of controlled substances; and (2) Father failed to comply with the court's order, knew or should have known of Mother's drug abuse, and failed to intervene to protect his children.
On June 30, the juvenile court held a contested detention hearing. The ICWA representative for the Tribe, Ms. Romero, attended the hearing. Ms. Romero said the Tribe would agree to the children being placed with maternal relatives. Father's attorney requested that the children not be detained from Father because Father has a separate residence. Father's attorney said he did not understand why placement with Father was not being discussed.
The court explained that if Father submitted to drug testing and “enrolled in programs and things like that, then [the court would] seriously entertain the request to return back to status quo.” Father asked why he had to participate in drug treatment when there were no drug allegations against him. The court said that if Father's drug test were negative, then Father would not have to participate in treatment. The court ordered the Department to complete a home inspection of Father's residence. The court said to Father, “[Y]ou need to make us feel a little bit more comfortable than what has happened in the last few months, okay?” Father responded, “Okay.” The juvenile court found a prima facie showing had been made and ordered the children removed from Parents' physical custody.
D. SUPPLEMENTAL JURISDICTION AND DISPOSITION
On June 30, 2020, the five children were placed in the home of their maternal uncle (Uncle). A Department social worker spoke with Mother on June 30. Mother had moved out of Father's condominium. Mother said that, in the past, Father had pushed Mother during arguments. Mother accused Father of abusing drugs. Mother admitted to having “an issue with drug use, ” and said she wanted to change in order to regain custody of her children. Mother was considering divorcing Father.
A Department social worker spoke with Father on July 14. Father said Mother was upset with him because Father was not interested in reunifying with Ra.D. and Ro.D., instead Father wanted to focus on his three biological children, i.e., the H-children. Father denied abusing methamphetamine and denied a history of domestic violence. Father admitted using marijuana. Father agreed to participate in outpatient drug treatment. Father requested his visits with the H-children be separate from Mother's visits.
On August 31, 2020, the juvenile court held a contested jurisdictional hearing on the supplemental petition. Ms. Romero, the tribal representative, attended the hearing. The Department said Father's hair follicle test was negative for drugs. Father's attorney asked for a continuance so the Department could consider whether to place the H-children with Father on a plan of family maintenance.
Mother objected to the H-children being placed with Father for several reasons. First, Mother questioned Father's drug test result because Father had a Xanax prescription, so if he were taking his prescribed medication then that should have appeared in the drug test. Second, Jo.H. “has become very mean towards [Ro.D.]” after visits with Father. Specifically, Jo.H. talks to Ro.D. about how Jo.H. will return to living with Father, while Ro.D. no longer has a relationship with Father. The children's attorney then said there were criminal investigations of Father being conducted and that there were questions “about the true identity of [F]ather.”
Father's attorney said he had “never seen so much... extrajudicial commentary as in this case, ” and if there were concerns about Father, then they should be expressed to the Department so the Department can investigate. Father's attorney noted that the only formal allegations against Father in the case were that he failed to protect the children from Mother's drug abuse. Father's attorney contended that due process would not allow the court to address extrajudicial allegations at that point, so a continuance should be granted in order to address the allegations in a procedurally correct manner. The juvenile court explained that the allegations were relevant because Father was asking to have the children returned to his care, so the court had to address Father's possible criminal background and “any suspicions that are raised.” The court continued the matter so the Department could provide the court “more information about what's going on.”
On September 25, 2020, the Department filed an addendum report. The Department investigated the allegations made against Father at the August 31st hearing. Father submitted to a Live Scan. The Department found no pending charges against Father. Father said he stopped taking Xanax “about three weeks” prior to September 23. Mother denied saying that Father had pushed her. Father visited the children twice per week for three hours. The visits went well and there was not “any behavior that was concerning by the children or [F]ather.”
On September 30, 2020, the juvenile court held the continued contested jurisdictional hearing. Father's attorney asserted that the court wanted Father to take a hair follicle test, which Father did, and the results were negative, and that the children's attorney wanted Father to take a Live Scan, which Father did and it was “clean.” Father's attorney requested family maintenance.
The children's attorney objected to the plan of Family maintenance. The children's attorney asserted Ra.D. said Father “was abusive to him in the home on several occasions” and Ro.D. “has a scar on his face that he indicated that [F]ather gave to him.” The children's attorney contended Father had a history of abusing prescription pills and abusing the children.
Father's attorney asserted the children had not expressed any fear of Father, the visits had gone well, and Jo.H. had bragged about returning to Father's custody. Father's attorney said, “Again, it's really difficult... to defend things that... aren't anywhere in the paperwork.” The children's attorney said two of the children were “visibly shaking and crying, asking not to live with [F]ather.”
The juvenile court sustained the supplemental petition. The juvenile court said, “There is clear and convincing evidence of the circumstances stated under [section] 361(c)[(1)]. [¶] Physical custody is removed from all the parents and the respective children.” The court ordered reunification services. The court said, “I did appreciate [Father] cooperating and doing everything that was asked of [him] by this Court. I was impressed with his compliance. And so long as [Father] is engaged in services and doing well, the Court authorizes the Department to increase and liberalize his visitation so that he could have longer, more meaningful visitation.... [¶] When it's appropriate, the Department is ordered to start unsupervised, overnight, and weekends, and also placement of the children in family maintenance.”
The following exchange occurred:
“[Father's Attorney]: Your Honor, I know the Court just gave everything as authorizations, but this case has been in progress... since April. I'm just wondering, ... is there any way the Court can actually order... a couple hour day visits on Saturday?
“The Court: I was going to do that, but then [the children's attorney] said all those things that made me take it all back.”
In regard to ICWA, the juvenile court said, “[A]ccording to the tribe's response, they're not Indian children at this time.” However, the court also said, “The Indian Child Welfare Act does apply.”
DISCUSSION
A. CUSTODIAL PARENT
1. CONTENTION
Father contends he was a noncustodial parent at the time of the supplemental petition (§ 387), so the juvenile court erred by applying the standard for custodial parents (§ 361, subd. (c)(1)) to Father.
Moreover, we note that section 361.2 provides, “If a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.” Given the statutory mandate that the court make a determination as to whether there is a non-custodial parent who wants the children, we question whether it is a parent's obligation to raise the issue. Because Father did raise the issue below, we leave this question for another day. The Department contends Father waived this issue by failing to raise it in the juvenile court. Father's attorney told the juvenile court “my client has his own condo” and asked for the children to be placed with Father. Because Father raised the issue of his separate residence and asked for placement, we conclude Father raised this issue in the juvenile court. Therefore, Father did not waive the issue.
2. LAW AND STANDARD OF REVIEW
A noncustodial parent is a parent “with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300.” (§ 361.2, subd. (a); In re Catherine H. (2002) 102 Cal.App.4th 1284, 1289.) Residing with a person means dwelling with the person for “a considerable amount of time.” (In re Dakota J. (2015) 242 Cal.App.4th 619, 628 (Dakota J.).) “The California Rules of Court contemplate that section 361.2 may be applied at the disposition hearing of a section 387 petition.” (In re Suhey G. (2013) 221 Cal.App.4th 732, 745, fn. 25.) Therefore, we will examine whether substantial evidence supports the implied finding that Father resided with the H-children at the time of the events that brought the H-children within the provisions of section 387. (See In re Miguel C. (2011) 198 Cal.App.4th 965, 969 [removal orders reviewed for substantial evidence].)
3. SUPPLEMENTAL PETITION
In the supplemental petition, the Department alleged Father was not abiding by the juvenile court's order and that Father knew or should have known of Mother's continued abuse of methamphetamine. No date is given in the allegations. The supplemental petition was filed on June 25, 2020. In the Department's detention report for the supplemental petition, the Department asserted someone told the Department that Mother was slurring her speech and speaking incoherently during a phone call with the tribal representative on June 9, 2020. Given the foregoing, we will look to the month of June 2020 as the relevant time period for determining residency.
On June 22, Aunt spoke to the Department and said Mother and the children had not been at Aunt's home since June 18. Aunt suspected Mother and the children were “staying at an apartment located in Indio.” Grandmother told the Department she “suspected the parents and children were staying in an apartment complex in the City of Indio because [Mother] called [Ra.D.] to tell him she was staying at her residence in Indio.” Ra.D. told the Department that his siblings “sleep with [Father] in an apartment located in a gated community.” On June 23, Ro.D. and Ja.H. “confirmed living with [Father] in their residence located in Indio.” On June 30, Mother was discussing recent events in her life and told the Department that she had “moved out of [Father's] condominium, ” which had required “remov[ing] her personal belongings from his home with the accompaniment of Indio Police.” Father confirmed that Mother came “with Indio Police to remove her belongings from their home.”
The foregoing evidence supports the conclusion that Mother and the H-children were dwelling in Father's home beginning on June 18, and they remained there until the H-children were detained on June 23. The issue of whether June 18 to June 23 is a sufficiently considerable amount of time to satisfy the definition of “residing” is not argued on appeal. (See In re Dakota J., supra, 242 Cal.App.4th at p. 628 [defining “residing”].) Because the evidence supports a finding that the H-children were dwelling with Father for nearly a week, we conclude the juvenile court did not err in treating Father as a custodial parent when removing the H-children.
4. FIRST AMENDED PETITION
To the extent section 361.2, subdivision (a), can be read as requiring the custodial parent determination to be made by looking at the time the events occurred as alleged in the section 300 petition, as opposed to the supplemental petition (§ 387), we will address the evidence supporting the finding that Father was a custodial parent at that time as well. (§ 361.2, subd. (a) [“with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300”]; see also In re T.W. (2013) 214 Cal.App.4th 1154, 1161 [“A section 387 petition need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists”].)
The allegations against Parents are the same in the original and first amended petitions (§ 300), and the allegations lack dates. The section 300 allegations pertained to Mother's drug abuse and Father's failure to protect the children from Mother's drug abuse. The original petition was filed on April 9, 2020. In the detention report, the Department asserted that, on December 17, 2019, Mother tested positive for methamphetamine and benzodiazepines. The Department became involved on January 23, 2020. The Department unsuccessfully tried contacting Mother and had the police conduct a welfare check in February 2020. Mother failed to appear for drug tests in March and April 2020. Based upon the foregoing, we consider the relevant time period for the events in the first amended petition to be December 17, 2019, to April 9, 2020. Therefore, we will examine whether substantial evidence supports the implied finding that Father resided with the children during that time period.
On February 27, 2020, Mother told the Department that she and Father “are married, but live together on an ‘on and off' basis.” Mother's statement indicates that Father occasionally lived with the children. On April 2, 2020, Father told the Department that he and Mother “are in a relationship, but that he remains out of the home for a few days a week to stay with [Aunt].” Father's statement clarified that Father lived with the children at least half of the days of the week. The issue of whether half the days of the week are a sufficient amount of time to meet the definition of “residing” is not argued on appeal. (See Dakota J., supra, 242 Cal.App.4th at p. 628 [defining “residing”].)
The foregoing evidence supports the finding that Father was dwelling with the children at least half of the days of the week during the events alleged in the first amended petition. Therefore, the evidence supports a finding that Father was a custodial parent at the time of the section 300 petition. Accordingly, the juvenile court did not err.
5. PREJUDICE
Father contends there is insufficient evidence to support a finding of danger (§ 361, subd. (d)) or detriment (§ 361.2, subd. (a)). We understand Father's contention as asserting the juvenile court's alleged error in treating him as a custodial parent was prejudicial because, if the juvenile court applied the noncustodial parent standards to Father, then the evidence would not have supported a removal order. Because we have concluded the juvenile court did not err, we do not address the merits of Father's prejudice argument.
B. SUBSTANTIAL EVIDENCE
1. CONTENTION
Father contends substantial evidence does not support the sustaining of the supplemental petition, and therefore, there is no support for the removal order.
2. STANDARD OF REVIEW
Under the substantial evidence standard, “ ‘[i]f there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.' [Citation.] A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court's findings.” (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128.)
3. DISOBEYING THE COURT'S ORDER
The juvenile court sustained the supplemental petition, which included an allegation that Father disobeyed the juvenile court's order. The minute order from the April 29, 2020, hearing reads, “Children not detained: as to parents on the conditions that minor, [Ra.D.], be authorized to reside with [Grandmother] and minors, [Ro.D., Jo.H., Ja.H., and M.H.] reside with the parents, [Mother] and [Father] and [Aunt].”
At the June 8, 2020, hearing, the juvenile court said, “The recommendation is to work with the parents, leaving the children in the care and custody of the parents in family maintenance, to try and help the family with Court supervision.” The juvenile court said it adopted the Department's recommended findings and orders. Then the court said, “The children will remain in the care and custody of the parents in family maintenance.” The juvenile court failed to specify the conditions that Ra.D. reside with Grandmother and that the other children reside with Aunt. One could understand the juvenile court's statements as authorizing the children to reside only with Parents. Included in the Department's recommended findings and orders was the recommendation that “[a]ll prior orders not in conflict with this order remain in full force and effect.” Whether the juvenile court's orders at the June 8, 2020, hearing altered the April 29, 2020, orders regarding the children's residences is not argued on appeal. Additionally, we note that the allegation in the supplemental petition that Father violated court orders fails to provide a date for the pertinent court orders, e.g., April 29, 2020, or June 8, 2020. We will review the substantial evidence issue with the assumption that the April 29, 2020, orders were the relevant orders because those are the orders discussed in Father's appellant's opening brief and the Department's respondent's brief. On June 8, 2020, the juvenile court held the jurisdictional hearing on the first amended petition (§ 300). Among the Department's recommended findings and orders for the hearing was the following: “Physical custody of the children... is retained by the parents... contingent upon the children residing with relatives, subject to supervision by [the Department].” The Department's recommendation lacks clarity because it fails to specify that Ra.D. must reside with Grandmother, while the other children must reside with Aunt. One could interpret “relatives” to be Parents, such that it be appropriate if the children resided only with Parents.
As set forth ante, substantial evidence supports the finding that the four youngest children were residing with Father from June 18 until they were detained on June 23. Because that evidence is detailed ante, we do not repeat it here.
Next, we examine whether there is substantial evidence that Aunt was not residing with Father and the four youngest children. On June 22, Aunt told the Department that the four youngest children had not been at her home since June 18 and she suspected they were “staying at an apartment located in Indio, CA.” Aunt's statement indicates that Aunt was at her house from June 18 to June 22. Because the children were living with Father, and Aunt was not residing with them, substantial evidence supports the finding that Father violated the juvenile court's order.
4. FAILURE TO INTERVENE
Another allegation in the sustained supplemental petition was that Father knew or reasonably should have known of Mother's continued drug abuse and Father failed to intervene to protect the children. We address each part of that allegation in turn, starting with whether substantial evidence supports the finding that Father knew or reasonably should have known of Mother's drug abuse.
On May 29, 2020, Father said he had been told by a social worker that Mother abused methamphetamines. The Department's jurisdiction/disposition report, filed on June 3, 2020, reflects that tribal staff told the Department that Mother “consistently tests positive for methamphetamine at the TANF office.” On June 9, 2020, Mother was slurring her words and speaking incoherently while speaking with a tribal representative. Also on June 9, Mother submitted hair for a hair follicle drug test. The test came back positive for methamphetamine on June 19. On June 18, the Tribe's representative told the Department that Mother “requested referrals for counseling services and drug treatment.” As set forth ante, from June 18 to June 23, Mother and the four youngest children were residing with Father.
The foregoing evidence supports the following conclusions: Mother continued to abuse drugs. Mother's drug abuse was evident because she was slurring her words, speaking incoherently, and speaking to others about seeking drug treatment. Because Mother's drug abuse was apparent and she was residing with Father, there is substantial evidence supporting a finding that Father knew or reasonably should have known of Mother's drug abuse.
Father contends there is not substantial evidence that he knew or reasonably should have known of Mother's drug abuse. In support of his assertion, Father highlights the evidence favorable to him, such as the H-children not being born with positive drug tests, Father's comment that he thought Mother was sober because she had a negative drug test, and the police officer who conducted the welfare check finding no immediate issues of concern. Under the substantial evidence standard, we must look at the evidence in the light most favorable to the court's orders. (In re L.M. (2019) 39 Cal.App.5th 898, 913.) Therefore, we find Father's argument, which focuses on the evidence that is unfavorable to the judgment, to be unpersuasive.
Next, we examine whether substantial evidence supports the finding that Father failed to intervene to protect the children. The juvenile court ordered that the children and Parents reside with Aunt. The evidence supports the finding that Father knew or reasonably should have known of Mother's drug abuse. By having Mother and the children reside together in Father's home, without Aunt, Father was actively placing the children at risk of harm from Mother's drug abuse. The harm could be from Mother driving with the children while under the influence or Mother being too incoherent to direct the children when needed for the children's safety. We note there is no evidence the children have suffered harm due to Mother's drug abuse, but evidence of actual harm is not required. (§ 300, subd. (b) [“substantial risk”]; § 387 [“previous disposition has not been effective in the... protection of the child”]; In re T.V. (2013) 217 Cal.App.4th 126, 135-136 [“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.”].)
Father not only failed to intervene, but he also actively facilitated putting the four youngest children at risk by having them reside in his home without Aunt. Accordingly, substantial evidence supports the finding that Father knew or reasonably should have known of Mother's drug abuse and failed to intervene to protect the children. In sum, substantial evidence supports the sustaining of the supplemental petition.
5. DANGER
Father contends findings on the supplemental petition “do not support a finding of detriment or substantial danger if his children were placed in his custody.” A child may be removed from the physical custody of a parent if there is “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home.” (§ 361, subd. (c)(1).)
Father does not provide a separate argument regarding danger. Thus, we understand Father's contention as asserting that, because there is not substantial evidence to support the sustaining of the supplemental petition, the related finding of danger, supporting the removal order, must also fail. We have concluded ante, the findings on the supplemental petition are supported by substantial evidence. Therefore, we have also addressed Father's concerns regarding the danger finding.
C. MISCELLANEOUS CONTENTIONS
Within Father's substantial evidence contention, he raised a variety of other issues, which we will briefly address.
1. TERMS OF THE COURT'S ORDER
Father asserts the Department imposed an additional term to the court's order regarding the children's residences. The additional term being that Aunt had to supervise Parents with the children. In addressing the substantial evidence issue, we only looked for evidence supporting a finding that Father was residing with the children without Aunt. We did not consider whether there was a lack of supervision by Aunt. Therefore, we will not address this issue further because it is not necessary for resolving the issues on appeal.
2. EFFECTIVE REMOVAL
Within Father's substantial evidence argument, he asserts that the April 29, 2020, orders for Ra.D. to live with Grandmother and the four youngest children to live with Aunt were effectively removal orders with extended visitation for Parents. Father does not develop this argument further. Because Father's legal point on this issue is unclear, we will not further address the issue. (In re S.C. (2006) 138 Cal.App.4th 396, 409-410.)
3. LACK OF EXPRESS FINDINGS
Father contends the juvenile court did not find, under either the first amended petition (§ 300) or the supplemental petition (§ 387), that Father knew of Mother's drug abuse. In the amended petition (§ 300), the Department alleged that Father knew of “[M]other's positive drug screens and ongoing substance abuse.” The juvenile court found the allegations true. Thus, the record includes a finding that Father knew of Mother's drug abuse.
However, Father is correct that the juvenile court did not expressly make true findings on the allegations in the supplemental petition (§ 387). We infer from the juvenile court's sustaining of the supplemental petition that it found all of the allegations within the petition to be true. (See In re Sade C. (1996) 13 Cal.4th 952, 960 [the court “impliedly sustained the petition, effectively finding true the allegation”].)
4. DUE PROCESS
Father asserts the juvenile court found the children came within the court's jurisdiction on the first amended petition (§ 300) based upon Parents evading the Department. Father points to the juvenile court's statement at the June 8, 2020, jurisdictional hearing on the first amended petition, in which the court said, “Mother does have an extensive history of substance abuse, there's an indication that is-she may be, more likely than not, abusing even prescription drugs that were given to her.... [A]nd the parents are evading us, so we can't check on the welfare and safety of [the] kids. I think there's ample cause for[] this Court to be concerned and find the allegations true.”
We understand Father to be raising a due process issue. While we are not persuaded the juvenile court based its section 300 findings on Parents' evasion, it does appear the juvenile court relied, to an extent, on the allegations made against Father in open court. For example, the juvenile court said it had planned to order lengthier weekend visits for Father, but then did not make that order due to the children's attorney's allegations of child abuse and drug abuse by Father.
“Notice of the allegations upon which the deprivation of custody is predicated is fundamental to due process. [Citations.] Accordingly, a parent must be given notice of the specific factual allegations against him or her with sufficient particularity to permit him or her to properly meet the charge.” (In re J.T. (1974) 40 Cal.App.3d 633, 639.) To satisfy the due process notice requirement, the petition must set forth the facts alleged against the parent. (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; In re Stephen W. (1990) 221 Cal.App.3d 629, 640; § 332, subd. (f).)
Because due process requires a parent to have notice of the allegations against him, we limited our substantial evidence review to the evidence that supports the juvenile court's sustaining of the supplemental petition (§ 387). We did not consider whether there is evidence to support the allegations that were raised against Father in open court (§§ 300, 387). So, for example, we disregarded the Department's argument in its respondent's brief concerning alleged domestic violence by Father, alleged child abuse by Father, and alleged drug abuse by Father, because those allegations were not raised in a petition in the juvenile court.
The Department asserts the allegations of Father's domestic violence, child abuse, and drug abuse did not violate due process because “the Department did not plead such... allegation[s] and the trial court did not make any findings and rulings on th[ese] issue[s].” The Department fails to reconcile the foregoing statement with its use of those allegations in its substantial evidence analysis. Because the Department fails to explain how it would comply with due process for this court, in a substantial evidence analysis, to utilize allegations pertaining issues that were never pled nor formally found true, we find its due process argument unconvincing.
D. ICWA
In Father's appellant's opening brief, he contended the juvenile court erred in finding the children are not Indian children and by conducting the disposition hearing on the supplemental petition without the tribal representative being present. In Father's appellant's reply brief, he asserts the ICWA issues are moot due to events that occurred in the juvenile court after the appeal was filed. Because Father asserts the issue is moot, we conclude he is withdrawing his argument. (See People v. Rivera (2019) 7 Cal.5th 306, 331 [“withdraws the argument as moot”].) Therefore, we will not further address it.
The notice of appeal in this case was filed on October 1, 2020. The Department moved this court to augment the record with, supplement the record with, or take judicial notice of a March 15, 2021, minute order in the case. The Department asserts the minute order establishes the mootness of Father's ICWA contention. Because Father has withdrawn the ICWA contention, we deny the Department's motion as moot.
DISPOSITION
The juvenile court's September 30, 2020, orders sustaining the supplemental petition (§ 387) and removing the children are affirmed.
We concur: RAMIREZ P. J., RAPHAEL J.