Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK 67315, Jan Levine, Judge.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred W. Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
Nicholas S., the father of minor Brian, appeals from the jurisdictional findings and disposition order of the juvenile court sustaining counts in a petition filed under Welfare and Institutions Code section 300 and removing Brian from his custody. Appellant contends there was no substantial evidence either supporting jurisdiction under section 300, subdivisions (b) (neglect) and (j) (abuse of sibling) or removing Brian from appellant’s custody. Appellant further contends the predisposition permanent restraining order was appealable from the disposition order and it was not supported by substantial evidence. We affirm.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SYNOPSIS
I. The Petition
Brian is the son of appellant and Victoria B. The family came to the attention of the Department of Children and Family Services (Department) on March 7, 2007, as the result of a referral by police officers. The referral alleged that 16-year-old Luis B., who lived with appellant and Victoria, had been the victim of sexual abuse at the hands of appellant. At the time, Luis was reported to be Victoria’s adoptive son.
A Department social worker (CSW) interviewed the officers who made the referral. The officers had investigated a sexual abuse report Luis had made to school personnel. The officers interviewed Luis who reported appellant had begun making sexual advances toward him in December 2005 and asked him to engage in oral and anal sex. Luis described specific instances. Luis’s statements to the CSW were consistent with those he made to the officers. Luis had told Victoria about the advances two weeks earlier, and she instructed him to speak to a counselor at school. Luis said he was afraid of appellant.
The CSW interviewed Victoria, who said she was Luis’s aunt and had legally adopted him in 2000. Luis’s biological mother was Victoria’s sister Veronica, who lived in Mexico. Victoria and appellant had been married for three years, but she was in the process of obtaining a legal separation. Appellant drank three or four times a week, and they were having marital problems because when he drank, he became verbally abusive. Victoria acknowledged Luis had told her about appellant’s conduct and she told Luis to discuss the matter with his school counselor. Victoria believed Luis. When the CSW interviewed appellant, he denied the allegations and claimed Victoria and her family were conspiring against him in an attempt to remove him from the home.
The Department filed a four count section 300 petition on behalf of both Brian and Luis. There were two counts under subdivision (b): b-1 alleged appellant sexually abused Luis, b-2 alleged alcohol abuse by appellant. The subdivision (d) count also alleged appellant sexually abused Luis. The subdivision (j) count alleged the sexual abuse of Brian’s sibling Luis.
II. Pre-disposition Hearings and Reports
On March 12, 2007, Victoria filed an application for a restraining order (RO) requesting that appellant be restrained from harassing her or Luis and be ordered to stay at least 100 yards from their residence.
At the March 12 hearing, both children were detained from appellant and released to Victoria. The court ordered the Department to provide appellant with family reunification services, including alcohol and sex abuse counseling, parenting classes, and individual counseling. The court ordered appellant’s visits with Brian were to be monitored. The court issued a temporary RO and set April 3 for a jurisdiction/disposition hearing and a hearing on whether to make the RO permanent.
According to the April report, Victoria told the CSW she had legally adopted Luis in Mexico and would bring copies of the adoption papers to court. Victoria reported appellant drank every night and sometimes would come home from work drunk. Victoria would refuse to talk to appellant so he would go upstairs and sleep by himself; sometimes appellant would take Brian with him. Sometimes appellant would come home drunk and demand sex, and when Victoria refused, he would become angry.
Luis stated he began living with Victoria when he was 11 years old, and Victoria and appellant got married when Luis was 13. At first there were no problems between Luis and appellant. Luis detailed inappropriate touching by appellant. Regarding appellant’s alcohol abuse, Luis said appellant would drink every day, especially on weekends, and appellant was not a social drinker, but drank to excess. Sometimes, appellant would come home from work drunk, and he and Victoria argued because of appellant’s drinking. Appellant would go to bed in a separate room, and sometimes he would take Brian to bed with him. When appellant was drunk, he would ask Victoria for sex, and when she said no, a big argument would ensue.
When the CSW interviewed appellant, he admitted to drinking 16 to 18 beers every weekend. Appellant denied asking Luis for oral or anal sex. Appellant said he had a previous marriage which produced four children, who were now between the ages of 15 and 21. Appellant’s first marriage ended in divorce because he came into a lot of money when he was young and spent the money on a “licentious lifestyle of women and booze.” Appellant admitted he neglected his family, and his wife became “fed up” and filed for divorce.
On April 3, the matter was continued to April 12 for a mediated pre-trial resolution conference. When the subject of issuing a RO was addressed, appellant’s attorney stated appellant was willing to stay away from Victoria and Luis, but was opposed to the issuance of a RO because he denied the allegations upon which it was based. Luis’s attorney stated Luis was very fearful appellant would come around. The court noted the allegations were very serious, but, since appellant was willing to stay away, there was not “a lot of difference in having the restraining order other than it’s enforceable by the police.” The court granted a permanent RO to remain in effect for three years. A copy of the order was served on appellant in open court.
On April 12, Victoria supplied the CSW with a notarized letter, which was only partially legible, but which stated Veronica consented to have her son Luis cared for by his sister Victoria. The letter was not a court document.
On April 13, appellant and Victoria signed a mediation agreement to submit an amended count b-2 on the reports. Appellant signed a waiver of rights with respect to that count. As amended, count b-2 stated: “The child [Brian’s] father, [appellant] is an abuser of alcohol which periodically limits his ability to provide care for the child Brian and the child [Luis]. . . . Father’s abuse of alcohol places the child Brian and the child Luis at risk of harm.” The mediation agreement stated there was no agreement as to counts b-1 and d-l and did not mention count j-1. The court continued the matter to May 21 for a contested hearing and ordered Victoria’s notarized letter be translated into English.
In the May report, the CSW stated he had spoken to Victoria on April 12, and she admitted a birth certificate she had provided to the court was false. Victoria is a legal resident of the United States, and she had obtained the false document to bring Luis into the United States. Victoria said appellant was to blame for the disruption in the family and she had been aware of his drinking and womanizing before she married him, but she had hoped to change him and live “‘happily ever after.’”
The CSW spoke to Veronica, Luis’s biological mother, by telephone. Veronica said she had Luis’s true birth certificate and she had consented to her sister bringing Luis to the United States when he was 11 years old. Veronica stated Luis’s father had died in a car accident in Acapulco when Luis was eight months old.
Appellant was in compliance with court orders; he was attending parenting classes with emphasis on sex abuse and participating in an alcohol abuse program. Appellant’s therapist reported appellant seemed to be “fighting his process and shows resistance and is very angry and in serious denial.”
The May hearing was continued for the Department to further investigate Luis’s parentage. The June report indicated appellant continued to participate in counseling; his therapist stated appellant was less angry and was taking more responsibility for his actions. Appellant visited Brian consistently, and the visits went well. At the June hearing, the Department stated an amended petition for Luis was necessary because the petition on file was based on Victoria being his mother whereas Veronica was actually his mother. In July, the petition was dismissed insofar as it pertained to Luis, and the matter was continued for adjudication.
A new section 300 petition was filed as to Luis.
III. Adjudication and Disposition
The adjudication and disposition hearing commenced on August 28 and concluded September 12. The parties confirmed there had been a mediated agreement as to count b-2 (alcohol abuse).
Luis testified that beginning in early 2005, appellant began talking to Luis about sex and Luis did not like it. Luis noticed things had changed between himself and appellant and appellant drank a lot of beer. When counsel for the Department asked about appellant’s drinking, appellant’s counsel objected, and the court noted it had settled that count and sustained the objection. On cross-examination, Luis stated he had told the assistant principal at his school he was afraid of appellant. Around the middle of January 2007, Luis began to fear appellant because appellant was becoming more “aggressive” with him and Victoria; appellant would arrive home drunk and beat on the door and the refrigerator.
Marco A. testified on appellant’s behalf. Marco knew appellant from working with him. Marco also got to know Luis as Luis went to the construction site with appellant and Marco went to appellant’s house for a beer after work. Marco had been to a party at appellant’s three weeks earlier; he and appellant were drinking buddies.
Victoria was called as a witness by appellant. When Victoria married appellant in 2003, appellant was not in the United States legally. Prior to Luis telling her about the abuse in 2007, Luis did not appear afraid of appellant or tell her he did not want to be around appellant. Victoria did not see appellant do or say anything inappropriate with Luis; before 2007, they all got along well. In February 2007, appellant gave her $250 or $270 to give to Luis to pay for work Luis had done at the construction site. Luis told her appellant was abusing him and he could not take it anymore in the first or second week of February 2007.
Appellant testified and denied all the allegations of sexual misconduct. Appellant first met Luis in 2003, and they got along well for the first two years; they would play guitar together, and he would buy Luis things like movies and expensive tennis shoes. Luis would ask appellant about sex, such as how to use condoms or how to deal with girls at school. Between 2004 and January 2007, appellant took Luis to construction sites 60 or 70 times. Luis got paid for his work, but once Luis threatened to sue appellant for money Luis claimed was owed to him. Appellant gave all the money owed to Luis to Victoria. When appellant was asked why Luis was making the allegations, appellant said there was an argument at a party at the house where he lived with Victoria, the children, and Victoria’s sister Estella and Estella’s husband. A couple of days later, Victoria told appellant social workers were coming because he had hit her and thrown his son down the stairs. The social worker came and found the allegations were not true. After that, Estella and her husband made appellant’s life “impossible.” After appellant had the problem with Luis in January, Estella and her husband took Luis into their room; appellant believed they convinced Luis to “tell all these lies.”
The court stated its tentative was to dismiss counts b-1 and d-l because Luis had been dismissed from Brian’s case and Brian had not been sexually abused. Noting Luis was Brian’s cousin not his sibling, the court stated it would sustain count j-1 if it was amended to conform to proof.
On September 12, the court repeated its intent to dismiss count b-1 and strike some language from count b-2. The court dismissed count d-1 and amended count j-1 to conform to proof. After those rulings, appellant’s counsel argued that Luis was not credible and, with the exception of the alcohol count, the rest of the petition should be dismissed. The court found Luis was credible and appellant’s explanation of Luis’s accusation was not credible. The court declared Brian a dependent pursuant to subdivisions (b) and (j) of section 300 by clear and convincing evidence and made other appropriate findings. The court ordered Brian be removed from appellant’s custody and be placed in the home of Victoria under Department supervision. The court ordered appellant be provided family reunification services and ordered appellant to participate in a program of alcohol testing and individual counseling to address issues, including sex abuse and “boundaries” issues.
Appellant filed a timely notice of appeal from the disposition order on September 17. On November 13, appellant filed an amended notice of appeal to include the predisposition restraining order issued on April 3.
DISCUSSION
I. Substantial Evidence
Appellant contends the jurisdictional finding under section 300, subdivision (j) must be reversed as it only applies where a sibling has been abused, there was insufficient evidence to support jurisdiction under subdivisions (b) and (j) of section 300, and the order removing Brian from his custody was not supported by substantial evidence.
A. Jurisdictional Findings
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (Citation omitted.) (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
The Department asserts appellant waived his right to challenge the jurisdictional finding on count b-2. “Notwithstanding a submittal on a particular record, the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved. In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. Thus, the parent does not waive for appellate purposes his or her right to challenge the propriety of the court’s orders.” (Citations omitted.) (In re Richard K. (1994) 25 Cal.App.4th 580, 589; Cal. Rules of Court, rule 5.682(c)-(e).)
The Department argues appellant’s counsel went further than submitting on the reports and led the court to believe it was relieved of the responsibility of making findings. The basis for the Department’s position that appellant waived this challenge is that at the beginning of the jurisdiction hearing, when the court asked if the parties were going to eliminate count b-2 and rely on the mediation agreement, appellant’s counsel replied appellant had signed a waiver; when the court sustained an objection to the Department’s question about appellant’s drinking, it stated that count had been settled; the court again referred to count b-2 as being settled when it issued its tentative rulings; and appellant’s counsel argued the petition should be dismissed with the exception of count b-2. In other words, the Department urges that appellant should have challenged the sufficiency of the evidence at the disposition hearing. However, even if a parent does not contest the state of the evidence, he or she preserves the right to challenge it as insufficient. (See In re Javier G. (2006) 137 Cal.App.4th 453, 464.)
We conclude those acts do not constitute a waiver. The mediation agreement states the parents “submit on the petition as amended.” On appellant’s waiver, he checked the box indicating he submitted on the petition and did not check the box for “plead no contest.” (Compare In re Troy Z. (1992) 3 Cal.4th 1170, 1181-1182.) At the hearing, when appellant was asked if his submission was as amended or as pled, he replied it was as amended. Thus, appellant submitted on the reports vice the recommendation. (See In re Ricardo L. (2003) 109 Cal.App.4th 552, 565-566.) Accordingly, appellant did not waive his right to challenge the sufficiency of the evidence to support count b-2.
The Department concedes the jurisdictional finding under section 300, subdivision (j) was improper as that subdivision only applies when a sibling of a child has been abused and, in this case, Luis was Brian’s cousin not his sibling. (See In re Tanyann W. (2002) 97 Cal.App.4th 675, 678-679.)
In order to find jurisdiction under section 300, subdivision (b) three elements must be proved -- neglectful conduct, which includes substance abuse; causation; and serious physical harm or substantial risk of such harm. (In re David M. (2005) 134 Cal.App.4th 822, 829.) Appellant asserts there was insufficient evidence to support jurisdiction under subdivision (b) because the Department never tied his alcohol use to any actual physical harm or substantial risk of physical harm to Brian or showed the problem still existed at the time of the jurisdiction hearing. (Ibid.) Appellant argues the evidence was that Brian was healthy and well cared for, there was no evidence he had physically abused Brian, his visits with Brian went well, appellant had not harmed Brian when he slept with Brian, and there was no evidence the problem continued to exist at the time of the hearing, noting he had been in counseling for six months and was in compliance with court orders.
Appellant suggests the only evidence of his drinking problem was the statements by Victoria and Luis and himself. Certainly Victoria and Luis attested to appellant’s drinking and resultant problems. According to Victoria, appellant drank alcohol every day and sometimes came home from work drunk and was verbally abusive when drunk. At times, appellant insisted on taking Brian to his room to sleep with him when he was drunk or demanded sex from Victoria and became angry when she refused. Victoria was aware of appellant’s drinking and womanizing when she married him indicating the long-standing nature of his alcohol abuse. Luis corroborated Victoria’s statements and opined appellant drank to excess.
Appellant himself admitted he drank 16-18 beers on the weekends; his co-worker noted he and appellant were drinking buddies. In addition, appellant admitted his first marriage ended in divorce because of his boozing and womanizing and neglect of his family. Thus, there was substantial evidence appellant had an alcohol abuse problem and it was one of long-standing. Although appellant was in counseling, his therapist stated appellant was initially resistant, still angry and in denial. The next report indicated appellant had made some progress, was less angry and was taking some responsibility for his actions. Even though the Department failed to submit an additional report as requested by the court, alcoholism is not easily cured and was too entrenched to be considered resolved.
Brian was only two years old at the time of the disposition hearing and thus at particular risk as he was unable to take care of himself. We agree with the Department that a parent watching over such a young child must be constantly vigilant to ensure the child does nothing leading to serious harm as even a moment’s inattention can lead to a child doing something dangerous such as running into the street. A parent who abuses alcohol cannot be entrusted to properly care for and protect a young child. Accordingly, it was not error for the court to find appellant’s alcohol abuse would subject Brian to a substantial risk of serious physical harm, especially as the parents were separating.
B. Removal from Custody
“On a challenge to an order removing a dependent child from his or her parent, we are limited to whether the order is supported by substantial evidence.” (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) On appeal, the clear and convincing test disappears, and the usual substantial evidence test applies. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) The evidence supporting the count b-2 finding also supports removal as it constitutes evidence of a substantial danger. (See § 361, subd. (c)(1).)
Appellant argues that alcohol abuse does not automatically warrant removal and claims the court failed to consider his progress or possible alternatives to removing Brian from his custody. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) Appellant suggests the court could have given primary physical custody to Victoria and closely supervised his time with Brian or ordered in-home family preservation or abuse prevention services with weekly updates. By placing Brian with his mother Victoria under Department supervision and ordering appellant’s visits be monitored, the court essentially adopted the first alternate suggested by appellant. As Victoria and appellant were separating, in-home services for appellant were not an option. Moreover, the court did order appellant receive family reunification services.
II. Restraining Order
Appellant contends that the permanent RO was not supported by substantial evidence and that a predisposition RO is cognizable on appeal from the disposition hearing as an interlocutory order. Appellant concedes that in In re Cassandra B. (2004) 125 Cal.App.4th 199, 208, the court held a dependency RO was directly appealable to the same extent as a civil RO and that his appeal would be untimely under Cassandra B., but asserts the case was wrongly decided. Noting the disposition order is the first appealable order in dependency proceedings (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112) and detention and jurisdiction orders/findings are interlocutory and can only be challenged on appeal from the judgment (disposition) (In re Candida S. (1992) 7 Cal.App.4th 1240, 1249), appellant argues a predisposition RO is an interlocutory order appealable under section 395. We do not agree.
Section 395 provides in pertinent part: “A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as an order after judgment.” Therefore, all subsequent orders are directly appealable except for certain orders setting a section 366.26 hearing. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) However, the instant case involves a prejudgment order. In In re Daniel K. (1998) 61 Cal.App.4th 661, 668, although the court was discussing postdisposition orders, it noted courts have stated, “‘Juvenile dependency law does not abide by the normal prohibition against interlocutory appeals.’”
Appellant notes that nothing in section 213.5, the section addressing restraining and protective orders during the pendency of dependency proceedings, indicates that the Legislature intended to exclude ROs from the purview of the statute or that Code of Civil Procedure section 904.1 should apply rather than section 395. However, section 213.5 contains no provisions regarding appellate review of such restraining or protective orders.
In Cassandra B., the court determined that because the right to appeal an injunction was not addressed under dependency law, it would look to Code of Civil Procedure section 904.1, subdivision (a)(6), which allows direct appeal of an injunction. (In re Cassandra B., supra, 125 Cal.App.4th at pp. 207-208.) Code of Civil Procedure section 904.1 controls as it is more specific than section 395 when in comes to appeal of an RO. (See In re Daniel K., supra, 61 Cal.App.4th at p. 668.)
Appellant argues that numerous cases have held the Code of Civil Procedure does not apply in dependency proceedings unless expressly applicable. In In re Natasha A. (1996) 42 Cal.App.4th 28, 39, the court reasoned “basic appellate principles codified in Code of Civil Procedure sections 901 through 923 apply in juvenile dependency proceedings, at least to the extent not inconsistent therewith.” The California Supreme Court noted “in the absence of a dispositive provision in the Welfare and Institutions Code, we may look to these requirements [of the Civil Code and the Code of Civil Procedure] for guidance.” (In re Josiah Z. (2005) 36 Cal.4th at 664, 679.) The Legislature has determined ROs/injunctions are directly appealable. Had the Legislature wanted ROs issued in dependency proceedings to be an exception and not be appealable, it could have so provided.
Appellant also complains that pursuant to California Rules of Court, rule 5.585(d), he was not advised the RO was directly appealable. That rule applies when, at a contested hearing, the court finds a child is described by certain sections, including section 300. In the case at bar, the restraining order was issued prior to the court finding Brian was described by section 300.
Appellant’s motion pursuant to Evidence Code sections 452 and 459 for this court to take judicial notice of a “Superior Court of California, County of Los Angeles Juvenile Court Notification of Rights” form served on him is granted.
Appellant was served with the restraining order on April 3, 2007. Appellant filed his notice of appeal on September 17, 2007. Because the restraining order was directly appealable, appellant’s notice of appeal was untimely. (In re Cassandra B., supra, 125 Cal.App.4th at pp. 208-209.)
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P.J., ZELON, J.