Filed 5/20/22 In re J.C. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.C. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E077768
Plaintiff and Respondent, (Super. Ct. Nos. J288258 & J288260) v. OPINION J.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed in part, reversed and remanded with directions in part.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and
Appellant.
Steven O’Neill, Interim County Counsel, and David Guardado, Deputy County
Counsel, for Plaintiff and Respondent.
1 I.
INTRODUCTION
J.C. (Father) and F.Y. (Mother) are the parents of seven-year-old Joe.C., a girl 1 born in May 2014, and four-year-old Jos.C., a boy born in August 2017. Father appeals 2 from the juvenile court’s jurisdictional (Welf. & Inst. Code, § 300, subd. (b)) and
dispositional (§ 361) orders only as to him. He does not challenge the jurisdictional and
dispositional orders as to Mother. Father contends that there was insufficient evidence to
support the juvenile court’s finding sustaining the petition against him under section 300,
subdivisions (b). He also contends that the juvenile court abused its discretion in
ordering random substance abuse testing as part of his case plan. We disagree with
Father’s first claim of error, but agree that the court erred in ordering Father to undergo
random drug (as opposed to alcohol) testing as part of his family maintenance case plan.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of CFS on February 4, 2021, based on allegations
relating to Mother’s general neglect of the children, Mother’s history of abusing drugs,
Mother engaging in domestic violence, and Mother’s physical abuse of the children. It
1 Mother is also a parent of six-year-old J.M.C. (J.), a boy born in March 2015. J.’s father is L.P. Neither Mother nor L.P. are parties to this appeal. J. is also not a subject of this appeal. 2 All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
2 was reported that when a paternal aunt of J., who was then five years old, went to pick
him up from Mother’s residence, the child was left home alone. In addition, J. was
wearing adult clothing, smelled bad, and was complaining of being hungry. At that time,
Father’s children, Jos. and Joe., were not at the residence as they resided with Father.
When the social worker spoke with Father, he stated that his children had been in
his care since November 2020. He explained that he had taken custody of the children
due to concerns related to Mother’s drug use and unstable lifestyle. Specifically, Father
stated “‘I took my children because they were living in an unhealthy environment, very
unsafe, my daughter wasn’t attending school, and she was not providing their basic
needs.’” He also reported “‘my daughter would tell me, when I would pick them up on
the weekend.’” He added that the apartment had become a “party house” and that Joe.’s
reporting of the conditions in the home led him to take his children out of Mother’s
home. Father noted that he had ended his relationship with Mother three years prior to
February 2021, had left Mother to reside in his apartment with the children, and was in
the process of obtaining custody of his children through the family law court but was
unable to serve Mother with family law paperwork due to her whereabouts being
unknown to him.
Joe. confirmed Mother’s ongoing drug use, acts of domestic violence perpetrated
on the maternal grandmother and Father, and unsafe lifestyle. Joe. also described
physical abuse by Mother, which left her with black eyes and other bruises, and noted
being afraid of Mother. J. also reported being hit by a belt by Mother as a form of
3 discipline. Mother’s whereabouts were unknown and a warrant was obtained to detain
the children from Mother with Joe. and Jos. remaining in Father’s care.
On February 23, 2021, petitions were filed on behalf of the children pursuant to
section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (g) (no
provision for support). The petitions alleged a number of allegations relating to Mother’s
drug use, physical abuse, domestic violence, and unstable lifestyle. As to Father, the
petitions alleged one allegation against Father under section 300, subdivision (b), namely
that Father knew or should have known of Mother’s abuse of the children but failed to
intervene to protect the children and continued to allow the children to reside in Mother’s
home and allowed Mother to have unsupervised access to the children.
At the February 24, 2021 detention hearing, the juvenile court formally detained
the children from Mother and maintained them in Father’s home. The court ordered
Father not to allow Mother in the home or to have unsupervised access to the children.
The court provided Mother with supervised visits but ordered Father not to supervise her
visitations with the children.
CFS recommended that the allegations in the petition be sustained, the children be
removed from Mother and maintained with Father, and that services be provided to the
parents. When Joe. was interviewed again, she recanted her prior statements regarding
her treatment in Mother’s care. She also denied witnessing any domestic violence, being
left alone by Mother, and drug use by Mother. Contrary to her prior statement, she also
reported feeling safe with Mother. J. reported witnessing domestic violence perpetrated
4 against Mother by her boyfriend, as well as Mother’s use of substances in his presence.
J. also continued to state that Mother had hit him and left bruises, but denied witnessing
his siblings get hit.
When the social worker interviewed Father again, he denied failing to protect his
children and asserted that he and Mother had broken up in March 2020, which was
contrary to his prior statement that his relationship with Mother ended three years prior.
He reported that he was paying Mother child support, as well as for her and the children
to live in the apartment. Once Mother moved in with her new boyfriend, Father,
however, notified Mother that he would no longer be paying the rent. He noted that when
he picked up his children, he observed numerous people present in Mother’s home
“partying and drinking” and informed Mother that he was going to take his children.
Mother arranged for the children to be with Father during the week, with Mother having
the children on weekends. Father asserted that the arrangement worked for a few weeks
but Mother’s lifestyle required that he have sole custody of the children. He thereafter
made efforts to seek custody through the family law court but was unable to serve Mother
with paperwork. Father denied that Mother engaged in domestic violence, or that Mother
has ever left the children without provisions for their care.
Father’s criminal history consisted of convictions for a vehicle hit and run
resulting in injury or death in 2007, public intoxication in 2014, and driving under the
influence with a blood alcohol content over .08 percent in 2015. As a result, CFS
recommended that Father’s case plan include random drug testing and a substance abuse
5 program if Father tested positive. His case plan also consisted of individual counseling
and parenting education.
The contested jurisdictional/dispositional hearing was held on September 17,
2021. Mother and Father were present telephonically. They did not submit additional
evidence and proceeded with argument. Father’s counsel argued that Father had never
personally witnessed Mother’s behaviors, but removed the children from what he
believed to be an unhealthy home environment and made an effort to seek custody of the
children by filing family law paperwork in December 2020. CFS’s counsel asserted that
Father was “clearly aware” of Mother’s conduct and continued to leave the children in
Mother’s care, and that although he made some efforts to intervene until after some time,
he left the children at risk for Mother to “come and remove them from his custody by not
following through with the family law case.” The juvenile court found that CFS had met
its burden and found true the allegations in the petitions.
Regarding disposition, Father agreed with the provisions of family maintenance
services, however, objected to the inclusion of substance abuse testing as part of his case
plan. Father’s counsel argued that the criminal history related to alcohol abuse and there
was no evidence of any such current concerns, nor were there any allegations that Father
suffered from substance abuse issues. CFS’s counsel responded that Father’s case plan
should be approved as recommended, that “[a] parent’s actions need not lead to removal
to place a child at risk,” and that Father’s criminal history suggested substance abuse
testing was necessary. The juvenile court found the substance abuse testing component
6 appropriate as in the children’s and Father’s own best interests. The court thereafter
adopted findings and orders recommended by CFS, removed the children from Mother’s
care, and ordered that they be maintained with Father. Mother and Father were provided
with services and ordered to participate. Father timely appealed.
III.
DISCUSSION
A. Jurisdictional Findings
The juvenile court assumed jurisdiction based on findings against both Mother and
Father, but Mother has not appealed, and Father does not challenge the jurisdictional
findings concerning her. CFS thus contends the jurisdictional determinations found as to
Mother are sufficient to support jurisdiction over the children. (See In re Briana V.
(2015) 236 Cal.App.4th 297, 308 [“‘[A] jurisdictional finding good against one parent is
good against both.’”]; In re I.A. (2011) 201 Cal.App.4th 1484, 1492 [“an appellate court
may decline to address the evidentiary support for any remaining jurisdictional findings
once a single finding has been found to be supported by the evidence”].) CFS also
asserts that because we cannot grant Father effective relief, Father’s challenge is an
attempt to obtain an opinion on an abstract proposition. (See In re I.A., supra, at p.
1490.)
Under the doctrine of justiciability, courts generally do not act upon or decide
moot questions or abstract propositions, nor do they issue advisory opinions. (In re I.A.,
supra, 201 Cal.App.4th at pp. 1490-1491.) “An important requirement for justiciability
7 is the availability of ‘effective’ relief—that is, the prospect of a remedy that can have a
practical, tangible impact on the parties’ conduct or legal status.” (Id. at p. 1490.) “For
this reason, an appellate court may decline to address the evidentiary support for any
remaining jurisdictional findings once a single finding has been found to be supported by
the evidence” or is unchallenged. (Id. at p. 1492.)
“As a general rule, a single jurisdictional finding supported by substantial
evidence is sufficient to support jurisdiction and render moot a challenge to the other
findings.” (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) This is because any
decision as to the other findings will not reverse the order of jurisdiction. (In re Briana
V., supra, 236 Cal.App.4th at p. 308.) However, we retain the discretion to consider the
merits of a parent’s appeal when the juvenile court’s jurisdictional finding, “‘(1) serves as
the basis for dispositional orders that are also challenged on appeal [citation]; (2) could
be prejudicial to the appellant or could potentially impact the current or future
dependency proceedings [citations]; or (3) “could have other consequences for [the
appellant], beyond jurisdiction” [citation].’” (Id. at p. 309; accord, In re Drake M. (2012)
211 Cal.App.4th 754, 762-763.)
Father urges us to exercise our discretion to consider the merits of his appeal
because the findings are prejudicial to him and could potentially impact future
dependency proceedings, noting the allegation sustained against him would mean the
difference between him being an “‘offending,’” as opposed to a “‘non-offending,’”
parent. However, our review of the failure to protect finding against Father has no
8 bearing on whether he is considered an offending or nonoffending parent. (See In re
Drake M., supra, 211 Cal.App.4th at p. 763.) A distinction between an offending versus
non-offending is a consideration only in determining whether to remove a child from
parental custody. (§ 361 subd. (c)(1).)
In this case, the children were not removed from Father’s custody. Hence,
regardless of the classification of Father as an “offending” or “non-offending” parent, the
end result would be the same. Furthermore, Father does not identify how the finding will
prejudice him in future dependency proceedings, and we fail to identify any potential
prejudicial effect on our own. (See In re I.A., supra, 201 Cal.App.4th at pp. 1493-1495
[dismissal of a dependency appeal is appropriate when the appealing parent fails to
suggest “a single specific legal or practical consequence” resulting from the challenged
jurisdictional finding].) We therefore decline to exercise our discretion to review the
juvenile court’s jurisdictional finding against Father.
Even if we did, we find substantial evidence supports the jurisdictional finding
against Father. In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings, we determine if substantial evidence, contradicted or
uncontradicted, supports them. (In re R.T. (2017) 3 Cal.5th 622, 633.) Under this
standard of review, we examine the whole record in a light most favorable to the findings
and conclusions of the juvenile court and defer to the lower court on issues of credibility
of the evidence and witnesses, resolving all conflicts in support of the determination and
9 indulging all legitimate inferences to uphold the juvenile court’s ruling. (In re Joaquin C.
(2017) 15 Cal.App.5th 537, 560; In re I.J. (2013) 56 Cal.4th 766, 773.)
A juvenile court may determine a child is subject to the court’s jurisdiction under
section 300, subdivision (b) if it finds by a preponderance of the evidence that “[t]he
child has suffered, or there is a substantial risk that the child will suffer, serious physical
harm or illness,” as a result of a parent’s failure or inability to adequately supervise or
protect the child, a parent’s failure to provide the child with adequate food, clothing,
shelter, or medical treatment, or a parent’s inability to care for the child due to the
parent’s mental illness, developmental disability, or substance abuse. (§ 300, subd.
(b)(1).) “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.] The court may
consider past events in deciding whether a child presently needs the court’s protection.”
(In re N.M. (2011) 197 Cal.App.4th 159, 165.)
Here, there is substantial evidence to support the conclusion that Father knew, or
should have known, the children were being abused or neglected by Mother, but failed to
intervene to protect the children, and continued to allow the children to reside in the
home and have unsupervised access to the children. Father himself stated that he had
taken custody of the children due to concerns related to Mother’s drug use and unstable
lifestyle. He knew that Mother was living in an unhealthy and unsafe environment, that
his daughter was not attending school, and that Mother was not providing for the
children’s basic needs. He explained that his daughter Joe. told him what was occurring
10 in Mother’s home and that the home had become a “‘party house.’” In fact, Father’s
awareness of the conditions in Mother’s home led him to take his children out of the
home. Joe. confirmed Mother’s ongoing drug use, acts of domestic violence on the
maternal grandmother and Father, and unsafe lifestyle. Joe. also described, and her half-
brother J. confirmed, the physical abuse inflicted by Mother, noting the marks and bruises
left by Mother and being afraid of Mother.
Moreover, although he was aware of Mother’s neglect of the children and the
conditions in Mother’s home, Father did not seek legal custody of his children until a
considerable time after he became aware of the concerns. Father had separated from
Mother three years prior to CFS’s intervention, but did not seek custody of his children
until December 2020. Father’s hesitancy to take action to protect his children and his
later minimization of Mother’s treatment of the children showed that Father did not
understand the seriousness of the risk Mother posed to the children.
We find substantial evidence in the record to support the allegation that Father
knew or should have known of the treatment of his children by Mother but failed to
intervene to protect them.
B. Drug Testing
Father also asserts that the juvenile court abused its discretion in ordering random
substance abuse testing as part of his case plan because he “had no issues with alcohol or
drugs and the dependency was not based on any issues as to him regarding alcohol or
drugs.” We agree as to drug testing, but disagree as to alcohol testing.
11 A juvenile court has broad authority to “make any and all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of” a dependent child.
(§ 362, subd. (a); see In re K.T. (2020) 49 Cal.App.5th 20, 24.) This includes directing
reasonable orders to the parent of the dependent child, “including orders ‘to participate in
a counseling or education program.’” (In re Daniel B. (2014) 231 Cal.App.4th 663, 673;
see § 362, subd. (d).) “‘The program in which a parent or guardian is required to
participate shall be designed to eliminate those conditions that led to the court’s finding
that the child is a person described by Section 300.’” (In re K.T., supra, at p. 24; see
§ 362, subd. (d).)
“The court’s broad discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accord with this discretion, permits
the court to formulate disposition orders to address parental deficiencies when necessary
to protect and promote the child’s welfare, even when that parental conduct did not give
rise to the dependency proceedings.” (In re K.T., supra, 49 Cal.App.5th at p. 25; see In
re Briana V., supra, 236 Cal.App.4th at p. 311 [“At disposition, the juvenile court is not
limited to the content of the sustained petition when it considers what dispositional orders
would be in the best interests of the children. [Citations.] Instead, the court may
consider the evidence as a whole.”].) We review the juvenile court’s dispositional case
plan for an abuse of discretion. (In re D.P. (2020) 44 Cal.App.5th 1058, 1071; In re K.T.,
supra, at p. 25; In re Briana V., supra, at p. 311.) “A juvenile court abuses its discretion
12 if its decision is arbitrary, capricious or patently absurd.” (In re A.B. (2014) 225
Cal.App.4th 1358, 1366.)
The juvenile court record discloses Father’s drug-related convictions for public
intoxication in 2014 and driving under the influence with a blood alcohol content over
.08 percent in 2015. This evidence, while not overwhelming, certainly supports a
reasonable inference Father has had an alcohol abuse problem in the past. This evidence
coupled with his failure to protect the children from Mother and recognize the risks to the
children in Mother’s home which led to the detention of the children are minimally
sufficient to justify the order for alcohol testing. Thus, we cannot say the order was
abuse of discretion.
However, there is no evidence in the record to suggest Father had issues with
drugs. (Compare In re D.P., supra, 44 Cal.App.5th at pp. 1071-1072 [juvenile court did
not abuse its discretion in ordering the mother to participate in “a full drug and alcohol
program with aftercare as well as a 12-step program” because the record showed the
mother “had persistent issues with alcohol that contributed to dangerous manic episodes
in [her child’s] presence”].) There is no evidence in this record to demonstrate Father
had issues with drugs or that any purported use impacted his children’s well-being. It is
CFS’s initial burden to demonstrate the need for reunification orders like random drug
testing. CFS must present some competent evidence an order for testing is warranted and
absent such evidence, Father does not have the burden to disprove or deny he uses drugs.
13 Thus, while evidence of a flat denial of drug use by Father would have strengthened his
position, it is not dispositive.
In sum, while there is evidence to order random alcohol testing, there is no
evidence to support the drug testing order as a component of Father’s case plan. In our
view there is simply no competent and reliable evidence in the record to justify the
court’s exercise of discretion in ordering Father to submit to random drug testing.
Accordingly, we reverse that component of Father’s case plan.
IV.
DISPOSITION
The dispositional order requiring Father to submit to random alcohol testing is
affirmed, and the order requiring Father to submit to random drug testing is reversed. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
SLOUGH J.