Opinion
B193663
4-27-2007
In re BRIAN H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DARRYL H., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Darryl H. appeals from the orders made under Welfare and Institutions Code sections 300 and 361 finding dependency court jurisdiction over his son, Brian H., and removing Brian from Darryls custody. Darryl contends that no substantial evidence supported the dependency courts finding of jurisdiction under section 300, the court erred when it found by clear and convincing evidence that Brian faced a substantial risk of harm if he were not removed from Darryls custody, and the court abused its discretion by ignoring reasonable alternatives to removing Brian. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Brian was born on April 20, 1994. On June 15, 2006, when Brian was 12 years old, sheriffs deputies in Compton, pursuant to a search warrant for narcotics, entered the home of Brians paternal grandmother, where Brian and his paternal uncle and 19-year-old paternal cousin also resided. The officers arrested the uncle as he reached for a .32 caliber pistol. Other officers arrested the cousin, who was on probation with an active warrant for his arrest, as he fled the scene with a quantity of rock cocaine in his possession. The investigating officers found the home in a "deplorable" state, the kitchen unsanitary with unwashed dishes and food left out, little food in the refrigerator or kitchen cabinets, and the other rooms cluttered with trash and other hazards. The officers contacted the Los Angeles County Department of Children and Family Services (DCFS) and requested that it investigate child endangerment from drug selling and other criminal activities at the grandmothers house. DCFS detained Brian and placed him in temporary foster care.
In its report for the detention hearing on June 20, 2006, DCFS reported that the grandmother had a criminal history involving narcotics possession and that her home had a record of criminal activity. A DCFS caseworker interviewed various family members about Brians situation. The uncle said Brian was in the grandmothers guardianship, and that Brian shared a room with the adult cousin. The grandmother stated that she was Brians guardian and had cared for him since birth, that the father had arranged for Brian to live with her, and that she knew nothing of the criminal activities in her home. The caseworker found that the grandmother had a notarized letter stating that she agreed to take care of Brian, but the letter was unsigned by either of Brians parents and the grandmother did not have formal legal guardianship. Brians adult sister, who lived with Darryl, said that Brian lived with his grandmother but also had a room at her and Darryls home and spent some weekends with Darryl. Brians sister gave the caseworker a phone number for Brians mother, whom DCFS could not find. The sister denied knowledge of any criminal activities at the grandmothers home.
The caseworker also interviewed Darryl and Brian. Darryl told the DCFS caseworker that he had arranged for Brian to live with his grandmother so he could attend school in a better area. Darryl, too, denied knowledge of crime or drugs at the grandmothers house. The caseworker informed him that Brian would be detained and placed in temporary foster care and notified him of the date and time of the detention hearing. Darryl offered the caseworker no names of relatives to consider for Brians placement. Brian said that he had lived at his grandmothers all his life and had shared a room with his now-arrested cousin but also had a room at his father and sisters home. He, too, denied any knowledge of drugs or weapons at the house. Brian was dressed in clean clothes and was in good health. The caseworker spoke with one of Brians relatives regarding possibly placing Brian with her, but found that there would be no room for Brian in the one-bedroom apartment where this relative lived with her 14-year-old daughter. The caseworker also received a phone call from Brians mother, who demanded custody of Brian but was told that this would first require a thorough assessment of her background and circumstances.
Brians mother is not a party to this appeal.
Based on its investigation and interviews, DCFS concluded that Brians father and mother knowingly failed to protect him from the dangers associated with drug trafficking at his grandmothers house, including exposure to drugs and access to his uncles gun. At the detention hearing, the dependency court found that DCFS had established a prima facie case for exercising jurisdiction over Brian under section 300, subdivisions (b) and (g), and that substantial danger to Brians physical or emotional health existed under section 319 that required his removal from his grandmothers home. The court ordered reunification services and a minimum of three hours of weekly monitored visits for both parents, plus drug/alcohol testing, individual counseling, and parenting classes for Darryl.
In its report prepared for the jurisdiction/disposition hearing on July 31, 2006, DCFS noted that despite its search for Brians mother, she still could not be found. DCFS reported on Darryls criminal history, which included a conviction of possession or purchase of cocaine base for sale in September 2001 and convictions of driving with a suspended license and driving under the influence of alcohol in September 2003, along with a few earlier offenses and four instances where Darryl was arrested for possession of cocaine base for sale or for possession of narcotics but was released. As a basis for jurisdiction over Brian, DCFS alleged five grounds: (1) that Darryl endangered Brian by leaving him in the care of his grandmother, where he was exposed to drug trafficking and a firearm and (2) was further endangered by living in an unsanitary, trash-filled house; (3) that on a prior occasion, Darryl was too drunk to adequately care for and supervise Brian; (4) Darryls record of convictions and arrests for selling drugs and driving while intoxicated; and (5) Brians mothers abandonment of him and failure to provide him with the basic necessities of life.
DCFS conducted additional interviews with Brian and his relatives. Darryl stated that Brian had lived at his grandmothers home for about two years. He claimed that he seldom visited her home, and that she dropped Brian off at his home every weekend. Darryl said he never saw any drug sales occurring at the grandmothers home, and Brian had never mentioned any. Darryl reported that six months earlier the grandmother had said she was going to kick out both Brians uncle and cousin, but she didnt say why. He denied ever being drunk; "All I had was the one DUI." He denied ever driving while intoxicated but noted that after his DUI arrest, he "sobered up and spent a couple of hours (in jail)." Darryl said, "I want some help to quit (drinking alcohol)." He said that he liked to drink and had three drinks of gin and juice in a six-ounce cup every other day, but these drinks did not have an effect on him. Regarding his conviction for possession of cocaine base for sale, Darryl denied possession and claimed he had taken the rap for his girlfriend at the time. He said that Brians mother called him twice a day and had visited six weeks earlier. He denied that he sold drugs from his home.
Brian reported that before his detention, he lived with his grandmother but spent weekends at Darryls house. Asked about guns in his grandmothers house, he said his uncle had a gun under the uncles bed. He identified the weapon by size and called it a "two shooter," but later claimed never to have seen it before the police investigation and noted that his uncle said somebody else must have put it under the bed. Brian said the door to his uncles room did not lock, and that he sometimes went in there alone to watch movies. Regarding drugs, Brian said he knew that drugs are bad and that they look white. He had seen his uncle put "white rocks" into plastic gloves in the bathroom, then tie up the gloves, and he had seen the same substance on tables in the living room and had seen his uncle pick it up later. He said that his uncle and cousin sold the white substance from the garage in back of his grandmothers house, and that when he was in the backyard playing with his dog he could hear customers asking for "dime" or "quarter" bags. He said his grandmother knew about the drug selling and had told the uncle and cousin to stop it. Regarding Darryls drinking, Brian said that his father got drunk on gin and orange juice and sometimes just lay in bed after drinking, and that doctors had told Darryl to stop drinking because it raised his blood pressure; he also said, "Sometimes, he carries his drink with him in the car." Brian reported seeing his father sell drugs and take customers money in his room, and that "Every time I go to my dads room, thered be a plate full of white stuff." He had never seen his father smoke the white powder. Brian said he could not remember when he had last seen his mother. He told a DCFS caseworker that he had lived with his grandmother "for a long time." He said his grandmothers house was "kinda clean."
The July 31 hearing was continued for a contested jurisdiction/disposition hearing on August 23, 2006. Despite DCFSs continued search, Brians mother still could not be found, and the dependency court ordered no reunification services for her. Darryls counsel announced that Darryl was prepared to testify that to "address[] the issues of substance abuse" he had enrolled in a program offering individual and group counseling sessions and random drug testing. Darryl contended that he had complied fully with the case plan and requested return of Brian to his custody that day. The court upheld DCFSs section 300 petition, found jurisdiction proper, and found by clear and convincing evidence that Brians situation before detention posed a substantial danger to his physical and emotional well-being that necessitated his removal. The court ordered Darryl to attend a court-approved drug and alcohol rehabilitation program with weekly testing, plus an at least 16-week parent education class and joint counseling with Brian. The court granted Darryl at least three hours a week of monitored visitation. Darryls counsel protested that there was no evidence in the record of substance abuse to support the order regarding rehabilitation and testing, but the court noted Darryls earlier drug conviction and Brians statement that he always saw white powder in his fathers room. On September 1, 2006, Darryl filed a timely, if somewhat vague, notice of appeal.
DISCUSSION
Darryl contends that the dependency courts jurisdictional findings must be reversed because no substantial evidence supported those findings. He also maintains that the court erred in removing Brian from his custody because sufficient evidence does not support the removal order.
Darryl emphasizes that while jurisdictional findings need only be based on a preponderance of the evidence, a removal order requires clear and convincing evidence. In reviewing the sufficiency of the evidence to support a trial courts rulings, however, an appellate court applies the substantial evidence standard of review, regardless of whether the appropriate standard of proof in the trial court was by clear and convincing evidence or by a preponderance of the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Under this deferential standard of review, Darryl bears the burden to show insufficient evidence, and we must review the evidence in the light most favorable to the trial courts order, drawing all reasonable inferences and resolving doubts in favor of DCFS. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) A reviewing court must affirm a trial courts factual findings if there is any substantial evidence that is reasonable, credible, and of solid value to support those findings. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.)
Section 300, subdivision (b), provides that a child is within the dependency courts jurisdiction if "[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 the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left[.]" Section 361, subdivision (c)(1), provides that a court may not remove a child from the parent or guardian with whom the child resides at the time the section 300 petition is filed unless the court finds one of several possible grounds, including that there "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 minors physical health can be protected without removing the minor from the minors parents or guardians physical custody."
Viewing the evidence in the light most favorable to the dependency courts findings, substantial evidence supports both the jurisdictional finding, including all five counts in the section 300 petition, and the removal order. Even were we to accept, as Darryl claims, that he did not know about the apparently very visible drug dealing that was going on at the grandmothers house or that the house was in an unsanitary and dangerous condition, that would only tend to demonstrate that he either willfully or negligently failed to protect Brian or failed to adequately supervise the grandmother in whose care he left Brian. The record also indicates that Brian never resided primarily with Darryl, and Darryl admits that "[a]t the onset of this case, Brian resided with grandmother," while the grandmother with whom Brian did reside was never legally his guardian—so neither caregiver was "the parent or guardian with whom the child resides" as described in section 361. But in any case, the evidence of drug dealing at both Darryls and the grandmothers respective homes, and the seriously unsound judgment this reflects as to the persons who engaged in the trafficking or allowed it to continue, supports a finding of substantial danger to Brians health, safety, or well-being were he to be returned to either home before the problems that led to his detention are fully resolved. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 825-826 [a parents or guardians leaving of drugs where a child could find and ingest them supports finding of substantial risk of physical harm under section 300].) Brians statement that his grandmother knew about the drug dealing at her house, and Brians (and Darryls) statements indicating that Darryl is a heavy drinker, who drives while drinking, further support the findings under sections 300 and 361 as to both caretakers and their homes.
Darryl argues that the evidence to support these findings must be true at the time of the petition, and that because various witness statements are not specific as to time, there is no substantial evidence that the problems described still existed when DCFS filed its petition. Brians statements about Darryl getting drunk or driving with his drink and how Brian saw white powder in Darryls room any time he went in there, however, appear to describe recurrent, ongoing patterns of behavior, not merely infrequent incidents in the past. This evidence supports a reasonable inference that Darryls problems remained unresolved when the petition was filed. The authorities Darryl cites on the issue of timing do not aid him, for here, rather than problems being strictly in the past, there is "`some reason to believe the acts may continue in the future." (In re Rocco M., supra, 1 Cal.App.4th at p. 824 [one-time act of physical abuse by babysitter in the past is insufficient for section 300 finding]; see also In re David M. (2005) 134 Cal.App.4th 822, 830-831 [courts jurisdictional finding is improper where parents were raising a healthy child in a clean, tidy home, there was no evidence of any harm or risk of harm to the child, and the child welfare agencys 2004 petition relied on evidence accumulated in an earlier 2000-2001 investigation].)
Although Darryl notes that some witnesses denied knowledge of or the existence of various problems, a reviewing court defers to the trial courts implicit findings as to the credibility of such witness statements. (See In re Mark L. (2001) 94 Cal.App.4th 573, 581 ["`We have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses[.]"].)
Darryl also contends that the dependency court abused its discretion by ordering Brians removal when reasonable alternatives were available. He points to various alternatives: returning Brian to his custody under DCFS supervision, placing Brian in the care of his adult sister who lived at her fathers house, or placing him "back in the care of grandmother." Where a trial court has discretion, a reviewing court will not disturb the trial courts decision unless the trial court abused its discretion by making an arbitrary, capricious, or patently absurd determination that exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Because any of the alternative placement options Darryl identifies would have involved the same problems with the respective caregivers and their homes that were the basis for the courts jurisdictional and removal findings, we find that the court did not abuse its discretion by rejecting those options.
DISPOSITION
The orders are affirmed.
We concur:
MALLANO, Acting P.J.
VOGEL, J.