In re H.H. CA4/2

• Court: California Court of Appeal
• Decided: March 6, 2014
• Docket: E058451
• Status: Unpublished

Opinion

Filed 3/6/14 In re H.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re H.H., et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E058451

Plaintiff and Respondent, (Super.Ct.No. INJ1200314)

v. OPINION

C.H.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Lawrence P. Best,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Lauren Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County

Counsel, for Plaintiff and Respondent.

1 Defendant and appellant C.H. (Father) appeals from the juvenile court’s

jurisdictional findings as to his one-year-old son Z.H. and two-year-old son H.H.1 He

contends that there was insufficient evidence to support the juvenile court’s order

sustaining the petition as to him under Welfare and Institutions Code section 300,

subdivision (b).2 We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of the Riverside County Department of Public

Social Services (DPSS) in June 2012 after an immediate response referral was received

alleging that Mother had given birth to Z.H. at 35 weeks gestation and had tested positive

for methamphetamine. Mother admitted that she had used methamphetamine the day

before Z.H.’s birth. Mother also admitted to a long history of abusing drugs and reported

that she had never completed or participated in any substance abuse treatment programs.

Z.H.’s meconium tested positive for amphetamine and methamphetamine.

Mother had two other children with two different men, and another young child

with Father. Mother claimed that Father was unaware of her drug use. She also stated

that Father was arrested on June 15, 2012, for possession of firearms as a probationer and

1 A.S. (Mother) is not a party to this appeal.

2All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

2 was in jail. The maternal grandmother, who assists Mother with childcare, also stated

that neither she nor Father were aware of Mother’s drug use.

Father’s arrest report indicated that following a probationary search of the

residence Mother shared with Father, Father had been arrested for several charges related

to felon in possession with firearms, automatic weapons, and ammunition. The police

report also noted that a substantial amount of methamphetamine (about 157 grams),

unsecured firearms (some of which were stolen), 47 rounds of live ammunition, and drug

paraphernalia were found in the home. The home also contained indicia of drug sales,

such as packaging, pay-owe sheets, a functioning digital scale with methamphetamine on

it, baggies containing methamphetamine inside, and a money bag.3 Father declined to

give any statements concerning his arrest, the circumstances in the home that led to his

arrest, and the pending dependency proceeding. He denied any knowledge of Mother’s

drug use as well as supplying her with methamphetamine. Father was on formal

probation following his conviction for possession of a controlled substance. Mother

claimed that she was unaware that the home contained drugs, and denied that Father

supplied her with methamphetamine. The maternal grandmother also asserted that she

3 In an earlier contact with Father during a traffic stop at 12:32 a.m. on June 15, 2012, Father appeared extremely nervous and was found with a large bundle of cash in his front pocket as well as three active cellular telephones with text messages which appeared to be orders for drugs. In past contacts with Father, officers also found Father to be in possession of at least three cellular telephones and text messages referencing drug sales. Additionally, Father was observed to drive to various houses in the city, stop for extremely short periods of time, and leave without dropping off or picking up anyone. Law enforcement concluded Father’s actions to be consistent with drug transportation and sales.

3 was not aware of the circumstances that led to Father’s arrest or any illegal activities in

the family home.

Mother and Father had a prior history with child protective services involving

allegations of domestic violence in March 2012. In that incident, it was reported that

Mother showed up at her oldest child’s preschool with bruises all over her face when she

was about five months pregnant. Mother had sunglasses on, scrapes on her forehead,

bruises on the bottom of her chin, and bruises under her left eye. Mother’s oldest child

stated that Father had beaten her up. The disposition on the allegation was found

inconclusive because DPSS was unable to make contact with the family and the child

never returned to the school. Father later reported that he took the child out of the school

after the incident because the teacher had no “‘right to interrogate kids like that.’”

Mother denied domestic violence in the relationship.

All four children were taken into protective custody on June 20, 2012.

On June 22, 2012, a petition was filed on behalf of the children pursuant to section

300, subdivisions (b) (failure to protect) and (g) (no provision for support). In regard to

Father, the petition alleged that Father knew or reasonably should have known that

Mother was abusing drugs while pregnant and caring for his older child, H.H., and failed

to intervene on the child’s behalf (b-3); that Father and Mother had a history of engaging

in domestic violence (b-4); that Father had a criminal history and was arrested on June

15, 2012 (b-5); that Father was not a member of the household and had failed to provide

his children with adequate food, clothing, shelter, medical treatment, support, and/or

4 protection (b-8); and that Father was currently incarcerated with an unknown release date

and is unable to provide care and support for his children (g-3).4

The detention hearing was held on June 27, 2012. Father was present in custody.

Mother was also present. The children were formally removed from each of their

respective fathers, and placed in Mother’s custody. Father was provided with services

pending further proceedings.

The social worker recommended that the allegations in the petition be found true,

that the children be declared dependents of the court, and that Mother and Father be

provided with reunification services. When the social worker attempted to interview

Father while he was in custody on July 9, 2012, Father again refused to talk to the social

worker about the allegations and services DPSS could offer him. The social worker

eventually spoke to Father on July 18, 2012. Father believed that he did not do anything

wrong with regard to neglecting or maltreating the children and declined to comment

about the criminal charges against him or his criminal record. He denied that there had

ever been domestic violence issues between he and Mother and explained that his

relationship with Mother was good. He also denied current or recent substance abuse, but

stated that he was willing to do whatever is recommended in his case plan. However,

about three months later, Father still had not started his services and had failed to

randomly drug test as directed by DPSS.

4 DPSS later recommended striking allegations b-8 and g-3.

5 The contested jurisdictional/dispositional hearing was held on March 11, 2013.

Mother waived her rights and submitted to the allegations in the petition based on

the social workers’ reports. Father, who was unable to stay at the hearing due to

work, did not present any affirmative evidence, but presented argument as to the

allegations against him.5 Following arguments from counsel, the juvenile court found

allegations b-1 and b-2 involving Mother’s controlled substance abuse true and

allegations b-3 and b-5 as to Father true and declared the children dependents of the

court.6 Physical custody of the children was retained with Mother but formally removed

from Father. Father and Mother were offered reunification services and ordered to

participate in their court-approved case plans. This appeal followed.

II

DISCUSSION

Father challenges the jurisdictional findings, arguing that there is insufficient

evidence to support the juvenile court’s jurisdiction under subdivision (b) of section 300

as to him. As explained below, we conclude that his challenges fail because there is

overwhelming evidence of the allegations against Mother to establish the court’s

jurisdiction.

5 Father did not challenge disposition, and in fact, his counsel argued that Father was not seeking custody at that time or asking for the children to be in his care.

6The court found untrue allegation b-4 regarding a history of domestic violence between Mother and Father.

6 The petitioner in a dependency proceeding must prove by a preponderance of

evidence that the child who is the subject of the petition comes under the juvenile court’s

jurisdiction. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) We review jurisdictional

findings under the substantial evidence standard. (In re E.B. (2010) 184 Cal.App.4th

568, 574-575; In re A.S. (2011) 202 Cal.App.4th 237, 244.) Under this standard, we

determine whether there is any substantial evidence, contradicted or uncontradicted,

which supports the conclusion of the trier of fact. (In re Tracy Z. (1987) 195 Cal.App.3d

107, 113.) All evidentiary conflicts are resolved in favor of the respondent, and where

more than one inference can reasonably be deduced from the facts, we cannot substitute

our own deductions for those of the trier of fact. (In re John V. (1992) 5 Cal.App.4th

1201, 1212.)

Generally, to acquire jurisdiction under subdivision (b) of section 300, the juvenile

court was obliged to find that the child “has suffered, or there is a substantial risk that the

child will suffer, serious physical harm or illness, as a result” of specified forms of

parental neglect, including substance abuse, physical abuse, and failure to protect the

child. Here, the juvenile court made findings against Father and Mother, namely, that the

children were placed at a substantial risk of harm by Mother’s substance abuse and

Father’s knowledge of Mother’s substance abuse and failure to intervene, and Father’s

criminal history and arrest for substance abuse and firearm charges. Father argues that

there was insufficient evidence to support the findings against him. For the reasons

explained below, Father’s attack on the juvenile court’s jurisdiction fails in view of

7 substantial evidence of the allegations against Mother. Indeed, Mother admitted the

allegations against her.

To secure jurisdiction over the child under section 300, the juvenile court was not

obliged to make jurisdictional findings against both Father and Mother. Because the

focus of the statutory scheme governing dependency is the protection of children, “the

minor is a dependent if the actions of either parent bring [him or her] within one of the

statutory definitions of a dependent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397

[italics added], disapproved on another issue in In re Shelley J., supra, 68 Cal.App.4th

322, 328.) The agency “is not required to prove two petitions, one against the mother and

one against the father, in order for the court to properly sustain a petition [pursuant to

§ 300] or adjudicate a dependency.” (In re La Shonda B. (1979) 95 Cal.App.3d 593,

599.) “A petition is brought on behalf of the child, not to punish the parents. [Citation.]

The interests of both parent and child are protected by the two-step process of a

dependency proceeding, with its separate adjudication and disposition hearings. Thus,

when [the department] makes a prima facie case under section 300 by proving the

jurisdictional facts at the adjudication hearing, it is not improper for the court to sustain

the petition; not until the disposition hearing does the court determine whether the minor

should be adjudged a dependent.” (Ibid.; see also In re X.S. (2010) 190 Cal.App.4th

1154, 1161.)

Here, Father does not challenge the jurisdictional findings based on Mother’s

conduct, and there is more than substantial evidence to support jurisdiction of the

8 children based on Mother’s conduct alone. In re I.A. (2011) 201 Cal.App.4th 1484 is

instructive. In that case, the jurisdictional allegations included mother’s drug abuse,

domestic violence between the parents, and the parents’ criminal histories. (Id. at

p. 1488.) The father there also challenged the jurisdictional findings based on his

conduct, but not the findings based on the mother’s conduct. The court dismissed the

appeal as moot because the father’s “contentions, even if accepted, would not justify a

reversal of the court’s jurisdiction[].” (Id. at pp. 1487-1488.) The court explained: “[I]t

is necessary only for the court to find that one parent’s conduct has created circumstances

triggering section 300 for the court to assert jurisdiction over the child. [Citations.] Once

the child is found to be endangered in the manner described by one of the subdivisions of

section 300—e.g., a risk of serious physical harm (subds. (a) & (b)), serious emotional

damage (subd. (c)), sexual or other abuse (subds. (d) & (e)), or abandonment (subd. (g)),

among others—the child comes within the court’s jurisdiction, even if the child was not

in the physical custody of one or both parents at the time the jurisdictional events

occurred. [Citation.] For jurisdictional purposes, it is irrelevant which parent created

those circumstances.” (Id. at pp. 1491-1492.)

As DPSS established jurisdiction based on Mother’s substance abuse, the juvenile

court properly found that the children came within the jurisdiction of section 300,

subdivision (b). (In re I.A., supra, 201 Cal.App.4th at pp. 1491-1492.) Accordingly,

because Father does not challenge the sufficiency of the evidence to support the

jurisdictional allegations as to Mother, the juvenile court properly exercised jurisdiction

9 over the children even if Father’s conduct was not an independent basis for jurisdiction.

(See, e.g., In re Maria R. (2010) 185 Cal.App.4th 48, 60, disapproved on another ground

in In re I.J. (2013) 56 Cal.4th 766, 780-781; In re Jeffrey P. (1990) 218 Cal.App.3d 1548,

1553-1554; In re John S. (2001) 88 Cal.App.4th 1140, 1143.)

Father acknowledges that jurisdiction over a child is established if the conduct of

either parent places the child at risk under the criteria of section 300. Citing In re Drake

M. (2012) 211 Cal.App.4th 754, he argues nonetheless that this court should reach the

issue because “the outcome of this appeal is the difference between father being an

‘offending’ parent versus a ‘non-offending’ parent,” and that “[s]uch a distinction may

have far reaching implications with respect to future dependency proceedings in this case

and father’s parental rights.”

The general rule notwithstanding, there are some circumstances in which a

reviewing court may exercise its discretion to address additional jurisdictional findings as

to one parent. These include: (1) when the finding serves as the basis for dispositional

orders that are also challenged on appeal (see, e.g., In re Alexis E. (2009) 171

Cal.App.4th 438, 454); (2) when the finding could be prejudicial to the appellant or could

potentially impact the current or future dependency proceedings (In re I.A., supra, 201

Cal.App.4th at p. 1494); and (3) when the finding could have other consequences for the

appellant, beyond dependency jurisdiction (id. at p. 1493). (In re Drake M., supra, 211

Cal.App.4th at pp. 762-763.) In In re Drake M., the court exercised its discretion to

consider the custodial father’s challenge to jurisdiction because he was seeking custody

10 of the child and the outcome of the appeal would mean the difference between the father

being an “offending” versus a “non-offending” parent, a distinction that could affect the

father’s custody rights under section 361, subdivision (c)(1) [When there is clear and

convincing evidence that a child would be in substantial danger if returned home, the

“court shall also consider, as a reasonable means to protect the [child], allowing a

nonoffending parent or guardian to retain physical custody . . . .”]. (In re Drake M.,

supra, 211 Cal.App.4th at p. 763.)

Here, unlike in In re Drake M., neither Father nor the record suggest any “far

reaching implications” of the section 300, subdivision (b) allegations justifying our

discretionary review of that issue. (In re Drake M., supra, 211 Cal.App.4th at p. 763.) In

fact, Father does not suggest “a single specific legal or practical consequence” of the

section 300, subdivision (b) finding. (See In re I.A., supra, 201 Cal.App.4th at p. 1493.)

General allegations that the findings could impact future court orders are insufficient; the

parent must identify specific legal or practical consequences arising from the dependency

findings. (Ibid.) The record does not suggest any such consequence. For instance,

Father is not presently at risk of having the juvenile court take jurisdiction over another

child in the future. (See In re D.C. (2011) 195 Cal.App.4th 1010, 1015 [Alternative

grounds for jurisdiction considered; mother had another child who was not the subject of

the dependency proceedings.].) Moreover, Father has not challenged any of the

dispositional orders, nor has he identified any orders resulting from the true finding he

attempts to challenge that adversely affect him. Because Father has not established any

11 actual or threatened prejudice from the jurisdictional finding he seeks to challenge, we

decline to exercise our jurisdiction to review it. (In re I.A., supra, 201 Cal.App.4th at

pp. 1493-1495.)

In any event, were we to consider the merits of Father’s contentions, we would

hold that substantial evidence supported the juvenile court’s jurisdictional finding as to

Father. Contrary to Father’s urging, the record shows that Father had a history of abusing

controlled substances and a history of sales of controlled substances. Father was on

formal probation for illegal possession of a controlled substance, and was arrested on

June 15, 2012, for possession of controlled substances with a firearm; possession, sale or

transportation of a controlled substance; firearm and ammunition possession; receiving

stolen property; and violating probation. The record also shows that Father shared a

residence with Mother, and that following a probation search of that residence, about

157 grams of methamphetamine as well as numerous unsecured firearms and ammunition

were found in the residence. The search also revealed numerous indicia of drug sales as

well as drug paraphernalia located in Mother and Father’s bathroom and kitchen.

Moreover, a search of Father’s person revealed indicia that he was involved in drug sales

and transportation. Although Father and Mother claimed otherwise, the record

sufficiently shows that Father knew of Mother’s substance abuse and failed to intervene.

The juvenile court necessarily found Father and Mother’s denial as to Father’s knowledge

concerning Mother’s drug abuse incredible. We remind Father that all evidentiary

conflicts are resolved in favor of the respondent, and where more than one inference can

12 reasonably be deduced from the facts, we cannot substitute our own deductions for those

of the trier of fact. (In re John V., supra, 5 Cal.App.4th 1201, 1212.)

The evidence here was sufficient to sustain the allegations under section 300,

subdivision (b), that Father knew of Mother’s substance abuse and failed to intervene and

that Father had a criminal history and was recently arrested for weapons and drug-related

offenses thereby placing the children at a substantial risk of harm.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

HOLLENHORST J.

McKINSTER J.