Opinion
H045358
08-31-2018
In re D.B., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. J.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Clara County Super. Ct. No. 16JD024266)
In this dependency matter, Father appeals from the juvenile court's order removing D.B. from his custody pursuant to Welfare and Institutions Code section 361, subdivision (c). Father asserts that the juvenile court erred in ordering removal in this case, because D.B. was not residing with him at the time the section 387 petition was filed. We find that the trial court erred in ordering removal pursuant to section 361, subdivision (c), but that the error was harmless. We will affirm the order.
All further statutory references are to the Welfare and Institutions Code.
I. STATEMENT OF THE FACTS AND CASE
D.B. was thirteen months old when she was taken into protective custody on December 17, 2016. San Jose Police responded to the parents' home based on a report that the couple was intoxicated and were involved in a physical altercation. Father had punched Mother in the head while she was holding the child. Mother had bruising and swelling to her forehead and was taken to the hospital by ambulance. Father was arrested. While in Father and Mother's home, police observed empty beer bottles strewn about, and a small scale that is typically used to weigh and measure narcotics inside D.B.'s crib.
On December 20, 2016, the Santa Clara County Department of Family and Children's Services ("Department") filed a petition alleging that D.B. was described by section 300, subdivisions (b), (c) and (g). The juvenile court detained D.B. and placed her with her paternal grandmother, Gloria. Father admitted to using marijuana three to four times per week, and had a history of drug-related criminal activity.
The juvenile court sustained the petition and took jurisdiction over D.B. on January 13, 2017. Both Father and Mother completed a drug assessment and were referred to outpatient drug treatment. Father and Mother agreed that one of them would move out of their home and live with Gloria and D.B.
On February 1, 2017, the court allowed D.B. to be released to her parents' care with a family maintenance plan to address their substance abuse issues. Father and Mother were no longer living together. Father was to continue living with his mother Gloria. The parents would share time with D.B., with Father caring for her on Thursdays through Mondays, and Mother caring for her on Tuesdays and Wednesdays.
The Department filed an interim report on April 25, 2017 indicating that the parents did not follow the maintenance plan. The report stated that Mother continued to test positive for marijuana, and Father was unable to provide proof that he was attending an outpatient drug program. Father tested positive for alcohol on April 17, 2017.
The parents' struggles continued. In June 2017, Father moved out of Gloria's home and stopped caring for D.B. on his scheduled days. D.B. began spending weekdays with Mother and weekends with Father. Gloria told the social worker that she cared for D.B. overnight, and Father only spent a few hours with the child during the day on weekend. During this time, Father missed three drug tests, and the social worker was unable to reach him to discuss his progress with services. Mother tested positive for alcohol, was not attending 12-step meetings, and was discharged from her outpatient program for failure to attend.
On August 8, 2017, the juvenile court ordered Father and Mother not to use, possess, or be under the influence of any drugs or alcohol, including marijuana. At that time, Father told the social worker that he was not attending therapy, and that he had completed eight 12-step meetings. Father said that he was not participating in outpatient treatment, and that he was only visiting D.B. on the weekends during the day. Mother continued to care for D.B. Monday through Friday, while Gloria cared for the child on the weekends.
On August 17, 2017, the juvenile court ordered family maintenance services to continue, and ordered that Father and Mother submit to twice weekly drug tests. However, the parents did not follow the orders. Following the hearing, Father missed his therapy sessions, did not provide proof that he was attending 12-step meeting, or participating in outpatient drug treatment. Father also told the social worker that he would no longer submit to drug testing. Father failed to attend three scheduled meetings with the social worker in September and October, 2017. At the end of October, Mother tested positive for alcohol, and had stopped participating in services.
On November 3, 2017, Gloria told the social worked that although she was willing to babysit D.B., she was no longer willing to care for D.B. on the weekends because she wanted Father and Mother to take responsibility for their child.
On November 9, 2017, the Department filed a petition pursuant to section 387 asserting that D.B. was not being protected by the previous disposition orders. In November 15, 2017, the juvenile court ordered D.B. detained for a second time, and that she be placed with Gloria.
The court conducted a contested jurisdiction/disposition hearing on December 13, 2017. The interim report prepared in anticipation of the hearing stated that Father had failed to attend two scheduled appointments with the social worker, and he had been terminated from therapy for missing nine appointments. Father told the social worker that he was too busy with work to attend his court-ordered 12-step meetings, and that he was unable to participate in outpatient treatment because of issues with his health insurance.
Gloria told the social worker at the beginning of December that she was open to Mother or Father moving in with her and D.B. if either was committed to remaining drug and alcohol free. Father told the social worker that he was not willing to move in with Gloria because he had problems living with her in the past.
Father gave the social worker permission to assess his home to determine if it was safe for D.B. for safety. The social worker found that Father's home was clean and had a crib for D.B. However, the report noted that Father continued to miss 12-step meetings, and had not attended an appointment to start his outpatient treatment program. By the time of the interim report in mid-December 2017, Father had not been caring for D.B. for six months by his own choice.
During the contested hearing, the social worker testified as an expert in risk assessment, placement, and reunification services. She stated that she was concerned about her ability to monitor D.B.'s safety because Father did not communicate with her regularly despite her efforts to contact him. The social worker noted that Father was still not participating in services to address his alcohol and drug use.
Father testified that he wanted D.B. to live with him. He said that he had a bed for her at this home where he was living with his girlfriend. Father testified that he had not taken D.B. with him when he moved out of Gloria's house because he did not believe he was permitted to since his current home had not yet been assessed by the social worker. Father said that he was scheduled to begin his outpatient treatment program but had not yet signed the consent forms for the social worker to confirm his attendance and participation in the program. Father said that he was too busy to attend 12-step meetings, and that he could not remember how long he had been sober up until that point.
At the conclusion of the hearing, the juvenile court addressed jurisdiction and found the allegations in the section 387 petition to be true with amendments. As to (s)-1, the court found: "Further, the child is also at risk of harm in the care of the father, [J.B.], because he has not demonstrated that he is engaged in all of his court-ordered services or that he is addressing the substance abuse issues that brought the child to the court's attention. Additionally, he has not been an active caretaker for the child." As to (s)-5, the court found: "Further, the parents have lost the natural supports which were helping to keep the child safe in their care. The mother has chosen to stop taking the child to child-care, the paternal grandmother [Gloria] is no longer willing to care for the child on weekends due to feeling taken advantage of by the parents and concern about the mother's substance use, and the maternal grandmother [Gloria] has obtained employment which limits her availability for supportive care." Finally, as to (s)-6, the court found: "Further, the father, [J.B.], did not show to three scheduled appointments with the social worker, on 9/18/2017, 9/26/2017 and 10/24/2017. The father has not participated in therapeutic treatment, has not signed consent to release information regarding his purported outpatient substance abuse treatment, and has not presented 12-step meeting slips or contact information for a sponsor to the social worker. The father has taken minimal steps to develop a larger support network or to otherwise ensure that the child is safely cared for despite the mother's ongoing substance abuse and the family's loss of previously-available natural supports."
When determining the appropriate disposition, the court found the social workers' testimony to be persuasive, and Father's testimony about his sobriety to lack credibility. The court stated: "Father has not provided proof of regular attendance or completion of therapy. Father had not provided proof of regular participation in or completion of an outpatient drug treatment—alcohol or drug treatment program. Father's not provided any proof of attendance at 12-step meetings, had not provided any confirmation that he has a sponsor. Father had not maintained regular communication with the social worker, and to the contrary has been very difficult for the social worker to communicate with. Father has vacillated in his commitment to caring for the child . . . the reality is that Father has not been playing a parental role in the child's life, nor has he been active in caretaking and he's been secretive as to his living arrangements for most of the last six months."
The court found that the previous disposition had been ineffective in protecting D.B., and that by clear and convincing evidence "the welfare of the child requires that her physical custody be taken from her parents with whom she was residing when the petition was initiated as there is or would be substantial danger to the child's physical health, safety, protection, or physical or emotional wellbeing if returned home, and there are no reasonable means by which the child's physical health can be protected without removal from the parents' physical custody." The court also ordered that Father and Mother receive family reunification services.
Father filed a timely notice of appeal on December 14, 2017.
II. DISCUSSION
Father argues on appeal that the juvenile court's order that D.B. be removed was statutorily unauthorized because D.B. was not living with him in November 2017 when the section 387 supplemental petition was filed. Father also argues that certain portions of the jurisdictional findings are not supported by substantial evidence.
A. Appellate Forfeiture
At the outset, the Department argues that Father forfeited the issue of whether D.B.'s removal was authorized under section 361, subdivision (c) because he did not object on this ground in the juvenile court. Although failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal, we have discretion to consider a legal issue that is subject to our independent review, as it is here. (In re S.B. (2004) 32 Cal.4th 1287, 1294-1295; In re Anthony Q. (2016) 5 Cal.App.5th 336, 345 (Anthony Q.) [court of appeal considered the legal issue of removal under section 361, subdivision (c) despite no objection in the juvenile court.].) We will exercise our discretion to consider the issue of whether D.B. could be removed from Father's home when she was not living with him at the time.
B. Section 361 , subdivision (c)
We start with section 361, subdivision (c), which is the statutory provision regarding removal of a dependent child from his or her parents: "A dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] . . . [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." (§ 361, subd. (c).)
The purpose of section 361, subdivision (c) is to avert harm to the child; the parent does not need to be dangerous and the minor does need to have been actually harmed for removal to be appropriate. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) A court may consider a parent's past conduct because it is a good predictor of future behavior, along with the present circumstances. (In re T.V. (2013) 217 Cal.App.4th 126, 133; In re Maria R. (2010) 185 Cal.App.4th 48, 70.) A court has broad discretion in determining an appropriate disposition in a child's best interest. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
C. Applicable Standards of Review
In considering this appeal, we apply two standards of review. First, we review the question of the applicability of section 361, subdivision (c) to the present case de novo, because it presents a question of law. (In re Dakota J. (2015) 242 Cal.App.4th 619, 627 (Dakota J.).)
With regard to the propriety of the dispositional order removing D.B. from Father, we apply the substantial evidence standard of review keeping in mind that the juvenile court was required to make its order based on a finding of clear and convincing evidence. (In re Noe F. (2013) 213 Cal.App.4th 358, 367 (Noe F.).) In applying the substantial evidence standard of review, "our power begins and ends with a determination as to whether substantial evidence exists, contradicted or uncontradicted, supporting the dependency court's determinations. We review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings. [Citations.] Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw. [Citations.]" (Id. at p. 366.) Finally, as to the jurisdictional findings that form the basis of the section 387 petition, we apply the substantial evidence standard of review. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
D. The Removal Order
The court's removal order was based on section 361, subdivision (c), which includes a requirement that the child reside with the parent at the time of the initiation of petition. When the section 387 petition was filed in November 2017, Father had voluntarily moved out of Gloria's home where D.B. was living. Accordingly, Father asserts that the court erred in ordering that D.B. be removed from his physical custody pursuant to section 361, subdivision (c).
Although the court did not cite section 361, subdivision (c) as the basis of its removal order, the court used the language of the section in its ruling at the conclusion of the hearing stating, the "[c]ourt finds by clear and convincing evidence that the welfare of the child requires that her physical custody be taken from her parents with whom she was residing when the petition was initiated as there is or would be substantial danger to the child's physical health, safety, protection, or physical or emotional wellbeing if returned home, and there are not reasonable means by which the child's physical health can be protected without removal from the parents' physical custody." We infer from the court's use of the language of section 361, subdivision (c) that the court based its order on this code section. --------
In support of his argument, Father cites In re Dakota J., supra, 242 Cal.App.4th 619, where the court held that section 361, subdivision (c)(1) "does not authorize an order of removal from every parent having legal custody rights. . . . Rather, . . . the Legislature chose to authorize removal only from a parent who is residing with his or her child. [Citation.]" (Id. at p. 629.) The court in Dakota J. reversed the juvenile court's order removing two of the mother's children from her physical custody under section 361, subdivision (c)(1), because the children were not residing with her at the time the petition was initiated, and had not for at least five years. (Id. at pp. 629-630.)
The record in this case is clear that D.B. was not residing with Father at the time the section 387 petition was filed. Under the holding of Dakota J., the order removing D.B. pursuant to section 361, subdivision (c) was error. However, the question is whether the error was harmless in this case given the fact that the juvenile court is tasked with and has the discretion to act to protect dependent children. (See §§ 361, subd. (a), 362, subd. (a).)
Father argues that the order was not harmless because it prejudices him for future proceedings in this case, as removal is the first step in a process that could lead to termination of his parental rights. (Dakota J., supra, 242 Cal.App.4th at p. 631.) As the court in Dakota J. explained, "the issuance of a removal order triggers the provision (or denial) of reunification services [under section 361.5] and starts the clock running on reunification efforts." (Ibid.) Father argues that the erroneous removal order set his case in motion for the potential of termination of parental rights.
While Father is correct that removal pursuant to section 361, subdivision (c) and the initiation of reunification services begins the running of a statutory timeline that could result in termination of parental rights (§ 366.21, subd. (e)(3)), Father fails to recognize that section 361, subdivision (c) is not the only means by which a juvenile court can remove a child from the custody of her parent. The juvenile court "has the power under section 361, subdivision (a) and section 362, subdivision (a) to limit the access of a parent with whom the child does not reside and thus effectively remove the child from the noncustodial parent." (In re Julien H. (2016) 3 Cal.App.5th 1084, 1090; emphasis added, (Julien H.).) Section 361, subdivision (a)(1), allows the court to "limit the control to be exercised over the dependent child by any parent or guardian." (§ 361, subd. (a)(1).) Similarly, section 362, subdivision (a) allows the court to "make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).)
As the court explained in In re Anthony Q.: "In all other circumstances, pursuant to sections 361, subdivision (a), and 362, subdivision (a), orders limiting the control of the parents of a dependent child and providing for the care, custody, supervision, conduct and support of that child, including removing the child from the custody of a nonresident custodial parent and determining where that child shall live while under the jurisdiction of the court, are proper so long as the evidentiary record supports the court's findings that the orders are reasonable and necessary for the protection of the child. (Julien H. (2016) 3 Cal.App.5th 1084, 1090.)" (Anthony Q., supra, 5 Cal.App.5th at p. 350; emphasis added.)
In Anthony Q., the father argued that the juvenile court had no authority to remove the child from his custody because the child was living with his maternal step grandmother at the time the section 300 petition was filed. (Anthony Q., supra, 5 Cal.App.5th at p. 339.) While the court in Anthony Q. found that the removal of the child from the father under section 361, subdivision (c) was error, it also found that the error was harmless. (Id. at p. 353.) Although the child was not living with his father at the time the petition was filed, "the juvenile court had broad authority, pursuant to sections 361, subdivision (a), and 362, subdivision (a), to enter orders reasonably necessary to address the problems that led to [the] dependency proceedings and to protect [the child's] well-being. [Citations.]" (Ibid.) The court noted, "[b]ased on the jurisdiction findings . . . , the juvenile court found by clear and convincing evidence there was a substantial danger to [the child] if [the father] was allowed to resume living with him or otherwise exercise his right to legal and physical custody," (Id. at p. 354.) thus rendering the error in removing the child under section 361, subdivision (c) harmless.
The court in Anthony Q. concluded: "if the juvenile court finds by clear and convincing evidence at the disposition hearing that it would pose a substantial danger to the physical safety or physical or emotional well-being of a dependent child for a currently nonresident custodial parent to live with the child or otherwise exercise that parent's right to legal and physical custody and there are no other reasonable means available to protect the child, the court is authorized under sections 361, subdivision (a), and 362, subdivision (a), to remove the child from the parent's custody." (Anthony Q., supra, 5 Cal.App.5th at p. 354.)
The court in Julien H., supra, 3 Cal.App.5th 1084 reached a similar conclusion, finding that the juvenile court's removal from his father was improper under section 361, subdivision (c), because his child did not reside with him at the time, but that such error was harmless. The court found that the father's continued custody of his child posed a danger and the child needed to be protected. The court stated: "[T]he dependency court has the power under section 361, subdivision (a) and section 362, subdivision (a) to limit the access of a parent with whom the child does not reside and thus effectively remove the child from the noncustodial parent." (Julien H., supra, at p. 1090; italics added.)
We find the reasoning of Anthony Q. and Julien H. applicable here. Although the juvenile court wrongly relied on section 361, subdivision (c), that error was harmless because the court had ample reason to protect the child and effectively remove her from Father. The juvenile court found by clear and convincing evidence that there was a substantial danger to D.B.'s physical health, safety, protection, or physical or emotional well-being if she were returned to Father. We find this conclusion is supported by substantial evidence. The court's main concern at the disposition hearing was that Father had not stopped drinking. Father and Mother's alcohol abuse and violent altercation caused D.B. to be placed in protective custody in the first place and their sobriety was critical to their ability to safely care for D.B. Despite this, Father made no effort to stay sober or to demonstrate his sobriety. The social worker advised Father repeatedly to participate in a 12-step program, but by the time of the hearing, he had failed to attend any meetings because he was "too busy." Father also refused to submit to drug tests, and failed to enroll in outpatient treatment despite being ordered to do so. Father's lack of sobriety and his history of violent conduct while intoxicated presented a substantial risk of harm to D.B. justifying removal.
We also find that there is substantial evidence to support the juvenile court's finding that there were no reasonable means to prevent D.B.'s removal. The social worker made many efforts to prevent D.B.'s removal, including attempting to visit Father's home to check for safety, but up until a few days before the hearing, Father refused to provide his home address. In addition, the social worker consistently reached out to Father to provide support and resources for him to address his substance abuse, yet Father failed to communicate with her, and missed five of their scheduled meetings.
Father proposes that a reasonable alternative to removal in this case would have been to release "D.[B.] to Father's custody on condition that Father move back in with the paternal grandmother, where D.[B.] was living anyway." However, Father ignores the fact that he left Gloria's house of his own volition, and when provided with the opportunity to move back in, he declined to do so. Father's reason for refusing to move back in with Gloria was that it was difficult for him to live there. The juvenile court did not err in finding there were no reasonable means to prevent removal in this case.
Thus, while the juvenile court's order removing D.B. from Father pursuant to section 361, subdivision (c) was error, we find the error to be harmless. Substantial evidence supports the trial court's finding that there was a danger to D.B. if returned to Father, and that there were no reasonable means to protect D.B. without removal. In ordering removal, the juvenile court acted within its discretion to protect D.B. under sections 361, subdivision (a) and 362, subdivision (b).
E. Jurisdictional Findings
In addition to his argument regarding the removal order in this case, Father asserts that portions of the juvenile court's jurisdictional findings are not supported by substantial evidence.
Father directs our attention to specific sentences from the allegations that he asserts do not support a finding that "the previous disposition had not been effective in the . . . protection of the child" as required under section 387. Specifically, regarding the allegations of his substance abuse, Father cites (s)-1, which reads in part that Father "has not demonstrated that he is engaged in all of his court-related services or that he is addressing the substance abuse issues that brought the child to the court's attention. Additionally, he has not been an active caretaker for the child." Father also cites portions of (s)-6 that allege that he had not signed "consent to release information regarding his purported outpatient substance abuse treatment," and had "taken minimal steps to develop a larger support network[.]"
Father argues that his lack of participation in court-ordered services does not demonstrate that the previous disposition had been ineffective in protecting D.B. The record belies this point. As stated above, Father's substance abuse coupled with the violence he perpetrated on D.B.'s mother while he was intoxicated was the reason for the Department's intervention in the first instance. D.B.'s placement at home with family maintenance services was not effective in protecting her because Father refused to address the substance abuse issues that placed her safety at such great risk.
In addition to (s)-1 and (s)-6, Father also cites allegations in (s)-5 that state that Gloria was "no longer willing to care for the child on the weekends due to the parents' [sic] feeling taken advantage of by the parents and concern about the mother's substance abuse. . . ." Father argues that this allegation was incorrect as of the time of trial, because Gloria was willing to be the caregiver for D.B. as part of a court-ordered placement.
While Father is correct that at the time of trial Gloria was willing to be D.B.'s caregiver, this fact does not make the allegations in (s)-6 untrue. The record shows that Gloria was not willing to facilitate the previous custody agreement between the parents because she did not want to enable their continuing substance abuse. This fact is sufficient to support a finding that the parents had "lost the natural supports which were helping to keep the child safe in their care." Gloria's unwillingness to participate in the parents' custody agreement is substantial evidence that "[t]he previous disposition [had] not been effective in the protection . . . of the child."
We find substantial evidence to support the jurisdictional findings in amended counts (s)-1, (s)-5, and (s)-6.
III. DISPOSITION
The order is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.