Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed, Super. Ct. No. DP014082
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
O’LEARY, J.
Yancey Y. (Father) appeals from jurisdictional findings and dispositional orders regarding his 16-year-old son, Ezekiel (Zeke). He argues the juvenile court’s findings on the failure to protect allegations (Welf. & Inst. Code, § 300, subd. (b)) pertaining to him should be reversed (he does not dispute the jurisdictional finding based on Zeke’s mother’s misconduct). In addition, Father seeks modification of the court’s order he attend an anger management or a domestic violence program. Zeke’s mother (Mother) did not file an appeal. We conclude the Orange County Social Services Agency (SSA) failed to meet its burden of proof that there was a substantial risk of harm to Zeke at the time of the jurisdictional hearing. Based on the record before us, the court’s finding Zeke is within the court’s jurisdiction is not supported by substantial evidence. We, therefore, reverse the jurisdictional order as to Zeke.
All further statutory references are to the Welfare and Institutions Code.
I
Facts
In September 2006, Zeke was taken into protective custody after Mother gave birth, and both she and the baby tested positive for amphetamines. Zeke reported he lived in a hotel with Mother and had no contact with Father. He denied being abused by Mother and claimed he did not know she used drugs. Zeke stated he last remembered seeing Father when he was a toddler (two or three years old). He regarded his mother’s former long-term boyfriend, “Bobby,” as his father figure for most of his life. SSA located Father in Nevada.
At the October pretrial hearing, the court ordered an Interstate Compact for Placement of Children (ICPC) evaluation of Father’s home. Father was authorized to have monitored visits with Zeke.
The allegations in the amended petition regarding Mother concerned her unresolved history of drug usage. As to Father, the petition alleged “b-9 . . . [He] knew or reasonably should have known of [M]other’s history of illegal substance abuse, and was unable to protect the child from harm. [¶] b-10 . . . [He] has a history of engaging in domestic violence with [Mother], to include but not limited to slapping her in the face and breaking her finger while she was holding [Zeke]. As a result of the domestic violence, [F]ather spent two days in jail and [M]other obtained a restraining order against [F]ather. [F]ather’s domestic violence is an unresolved issue that places the child at risk of neglect and physical and emotional harm. [¶] b-11 . . . [He] has not been involved in [Zeke’s] life for the majority of [his] life. He has not provided [Zeke] with the necessities of life including, but not limited to, food, clothing, shelter, medical care, and supervision.”
At the contested jurisdictional/dispositional hearing, the court considered four SSA reports and testimony from Father and Mother. The social worker’s report contained several interviews with Zeke and his parents. Mother told the social worker she met Father when she was 15 years old and married him illegally in Las Vegas. When she was six months pregnant, they were having financial problems, and she claimed he slapped her face. She maintained he became violent after Zeke was born and broke her finger while she was holding the baby.
Mother told the social worker she heard from the paternal grandmother that Father went to jail for strangling a girlfriend. Mother said she “let” Father visit Zeke once when he was three years old, and he told her “Bobby” should be the child’s Father and he didn’t want to see Zeke again. Mother told the social worker she did not contact Father again until Zeke was 12 years old, when she asked Father for child support. Mother reported Father owed $72,000 in back child support.
Father told the social worker a much different story. He claimed he had been trying to visit Zeke for years and had paid child support. He explained any attempts to visit or share joint custody were thwarted by Mother, who “has bounced from county to county to avoid him.” He told the social worker, “It has been rough, very rough” because he hasn’t known where Mother was. Father said he tried to locate his child by filing for a custody hearing in Escondido, California. He also looked on the internet to locate Mother’s family members. Father claimed he left messages with her brother, and the maternal grandfather, but never received a call back. Father claimed he sent letters to child support, but everything was returned to him.
Father recalled he once saw Zeke at age six in Temecula. When he went to the house where Mother was staying, he recalled smelling drugs that were apparently being used by people downstairs. Father said he took Zeke away to stay at his paternal grandfather’s home. After one week, Mother appeared at their house with another man, and she “appeared to be under the influence.” Her companion threatened to kill Father’s family. The paternal grandfather “pulled a firearm on the man,” and Mother left with the child. Father said he did not know why he did not contact the police or SSA. Father admitted he “knew something wasn’t right,” but had never witnessed Mother use drugs. He reported he never saw Zeke again after the above incident.
Father admitted he and Mother had a “rocky” relationship when they were married. He recalled they once had a fight, which resulted in his arrest: “She ‘slugged’ him and he grabbed her by the arm.” He explained the charges were dropped when Mother failed to appear in court. Father claimed Mother had “other guys in the background” and she basically ran away with Zeke.
Father reported he and his long-term girlfriend have two children. He is employed and lives in Nevada. He expressed an interest in having custody of Zeke and was looking forward to speaking to him. He gave the social worker two letters, which described in detail his relationship with Mother and why he had not maintained contact with Zeke.
The social worker described Father’s first monitored visit with Zeke. They met at Zeke’s high school football game, and they developed a phone schedule to keep regular contact. During the visit, Father showed Zeke a photograph of his half-siblings. Zeke became tearful when Father stated he wished to be there for him and provide for him. The paternal grandparents gave Zeke a dog tag with their address on it. Zeke told the social worker the visit went better than expected and he was willing to have more visits and maintain telephone contact. Father told the social worker he was thinking about Zeke’s best interest and mentioned he might temporarily relocate to California.
The following month, Father told the social worker he was not receiving telephone calls from Zeke. When the social worker asked Zeke about this, Zeke stated he was returning telephone calls and his Father was “lying” and his claim was “weird.” Zeke stated Father was telling him that he was not trying to get him back. Zeke expressed he did not wish to live with Father, but wanted to continue visitation and would be comfortable with unmonitored visitation.
At the hearing, Father testified he lived sporadically with Zeke for the first six years of his life. He said he lost contact after that because Mother moved frequently. He claimed to have photographs of visits, but then conceded to only possessing ones showing Zeke as a baby. Father said he never gave up, but admitted he had become exhausted with trying to find Zeke over the years.
Father described the day he picked up Zeke from the house in Temecula. He was “kind of” concerned because he smelled marijuana and saw some questionable “fellows” there. Father explained he became less concerned because he learned Mother had moved out of the house. Father stated that at the time he thought Mother had “a really bad attitude” and he suspected she could have been drunk or under the influence, but he was not sure. Father testified he didn’t realize Mother was using drugs.
When questioned about the allegations of domestic violence, Father admitted he slapped Mother when Zeke was two months old because they were breaking up, he did not want her to leave, and she had bitten his arm. Father said he did not recall breaking Mother’s finger when Zeke was one year old. He said it may have happened during the earlier fight they had when they were breaking up (and Zeke was two months old), but when Zeke was one year old, they were not living together or fighting. Father claims Mother never told him that her finger had broken. Father denied any domestic violence in his current relationship.
Father was asked about his wishes for Zeke. He stated, “Ezekiel is 16 years old. [He] is a grown man. I mean, I would love to see Ezekiel. I’d love to spend time with him. . . . As his father, I can’t pull him from where he’s at because he’s been in that situation. All I want to be is involved in his life, and that’s what I’m asking the court, is to give me an opportunity to, actually, enjoy the final two years of his [childhood] and be his father and explain to him, you know, where I’ve been. I’ve got a lot of answers that I have to tell him.”
At the hearing, Mother conceded she moved often when Zeke was an infant. She lived in Oceanside with Father when Zeke was born. They broke up when Zeke was two months old, and she moved in with her parents in Fallbrook. When Zeke was six months old, she got her own apartment. She moved to Vista when Zeke was between the ages of nine months and two years. The following year, she lived in Murrieta, and then they moved to Fullerton when Zeke was three. She claimed Father first visited Zeke when he was three and she permitted an overnight visit with the toddler. She testified Father, however, became jealous when he learned she was back together with her boyfriend and Father told her he did not want to see Zeke again.
At first, Mother testified Father did not see Zeke from the age of two months to three years old. She then clarified that during those years, Father would visit and be “intimate” with her. She explained, “We had that kind of relationship. It was off and on. It never was to stay and visit with Ezekiel.” She claimed that during one of those visits, Father broke her finger as she was holding Zeke (then one year old). At the time, Mother told Father she never wanted to see him again and her mother took her to the hospital for treatment. She did not call the police. Mother currently had no objection to Father having visitation and contact with Zeke.
During closing argument, Father requested allegations b-10, b-11, and b-12 be dismissed. The court refused, finding by a preponderance of the evidence the allegations were true. It stated, “all Father had to do was look” to determine if Mother had been using drugs. It reasoned maybe he “didn’t want to acknowledge or accept that there was drug use going on, but it was clear that the evidence was there to indicate it and that Mother’s conduct at the time, at least from Father’s perception, was someone who was using drugs at the time.” With respect to the b-11 allegation concerning domestic violence, the court determined there was clearly evidence of domestic violence and Father “does not deny that he broke the child’s mother’s finger. And there’s slapping that’s going on. And certainly, there’s nothing to indicate that that has in any way, changed.”
The court asked Father if he was willing to take an anger management/domestic violence class in addition to the proposed case plan. Father objected, asking the court to let him address any anger management issues in his general counseling sessions. The court was unpersuaded and ordered the additional classes. It also ordered unmonitored visits between Zeke and Father. It expressed, “The court is somewhat concerned about any lingering attitudes regarding domestic violence and that sort of thing, but with any luck, the counseling and the classes will take care of that. And with any luck, none of that will come up while he’s visiting with Zeke.”
II
Discussion
“The juvenile dependency system . . . begins with section 300, which lists specific situations that will bring a child within the jurisdiction of the juvenile court for dependency proceedings.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247.) Father contends there was insufficient evidence to support the juvenile court’s jurisdictional finding he failed to protect Zeke under section 300, subdivision (b), specifically allegations b-10, b-11, and b-12. He is right.
A. Standard of Review
The juvenile court’s jurisdictional finding the minor is a person described in section 300, subdivision (b), must be made by at least a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule 5.684(f).) “We review the juvenile court’s jurisdictional findings for sufficiency of the evidence. [Citations.] We review the record to determine whether there is any substantial evidence to support the juvenile court’s conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible. [Citation.] ‘However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” [Citation.]’ [Citation.]” (In re David M. (2005) 134 Cal.App.4th 822, 828 (David M.).)
B. Jurisdiction Based on Section 300, Subdivision (b)
Section 300, subdivision (b), applies where “[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 . . . to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”
“‘The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ (In re Rocco M. (1991) 1 Cal.App.4th 814, 819 . . .) The third element ‘effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]’ [Citation.] Section 300, ‘subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a “substantial risk of serious physical harm or illness.” [Citation.]’ [Citation.]” (David M., supra, 134 Cal.App.4th at p. 829.)
As Father points out in his brief, there was no evidence in this case that tied Mother’s drug usage to actual harm, or any risk of harm, to Zeke. Accordingly, even if it was true Father should have known Mother was using drugs, “the elements of causation and serious physical harm with respect to Zeke are missing. There was no evidence that Zeke has ever been abused or neglected by [M]other as result of drug or alcohol use, and no evidence he has ever suffered serious physical harm in her care for any reason.” As we will explain, the allegations and the record before us certainly supported jurisdiction as to Zeke’s baby brother, but SSA failed to meet its burden as to Zeke.
The first allegation in the petition (b-1) concerned the reason why the case came into the dependency system. Zeke’s brother was born with a positive toxicology screen and was suffering from withdrawal symptoms. Father concedes mother’s drug usage caused substantial physical harm to Zeke’s infant brother. However, this problem was not tied to any actual harm to Zeke.
Allegation b-2 states, “The children’s mother has an unresolved history of illegal substance use/abuse, including but not limited to the use of amphetamine, as recently as one week prior to the birth of [Zeke’s brother]. The mother’s substance abuse impairs her ability to adequately supervise, parent, and protect the children.” SSA argued Mother admitted her drug usage impaired her parenting skills. But, the record does not support his contention. Rather, the social worker reported that when she asked Mother about allegation b-2, Mother stated, “That’s their opinion that it impairs my ability.” She also stated an “unresolved” drug addiction could impair her ability, but the allegation was “untrue then.”
Mother maintained she hid her occasional drug usage from Zeke and never used any illegal substances in front of him. Mother said she first tried methamphetamine about two years ago. She said that at first she was using it about twice a month on the weekends, but then “It progressed into ‘a little more often.’” She believed Zeke did not know she used drugs. Zeke independently confirmed her story, and the court granted county counsel’s request to delete the allegation Mother placed Zeke in danger by using drugs in his presence.
The third allegation (b-3) stated Mother has had a history of illegal substance abuse “since at least January 2006” and has failed to complete a substance abuse program. Mother admitted this allegation in October 2006, before the hearing in November 2006. That Mother’s substance abuse problem has remained unresolved for 11 months is a significant problem that must be addressed, but SSA failed to allege or show this problem caused or created a substantial risk of causing serious harm to Zeke. Allegation b-4 also relates to Mother’s recent drug addiction. It simply states Mother’s use of illegal drugs placed Zeke “at risk of injury and illness,” but fails to specify any specific causal connection. We found the record does not support this conclusory allegation. Sixteen-year-old Zeke told the social worker that living with Mother was “good” and by all accounts, he was in good health. Zeke reported he lived with Mother only and no other individuals were “in and out of his home. He denied having any fear or neglect with Mother and reported he always had access to food.” Zeke believed he was taken into protective custody due to their “‘lifestyle’ of moving from hotel to hotel” and not because he was at risk of harm from Mother’s drug usage.
Although one could speculate on the possible harms that could arise from this hotel-bouncing lifestyle and Mother’s use of methamphetamine, SSA failed its burden of showing how specifically Zeke was physically injured or is at risk of injury in the future. Harm will not be presumed from the fact a parent uses illegal substances and cannot afford stable housing. (David M., supra, 134 Cal.App.4th at p. 830; see generally Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346 [evidence was insufficient to support finding mother’s one-time use of marijuana created substantial risk of detriment to her children’s physical or emotional well-being where there was no evidence of clinical substance abuse, no testimony from a medical professional, no testimony of a clinical evaluation, and no testimony linking the mother’s marijuana and alcohol use to her parenting skills or judgment].)
We recognize the record shows Zeke had many absences from school. Zeke explained his school subtracted credits due to his absences, caused by illness and his ditching class. SSA points to Zeke’s absences as evidence of his Mother’s neglect. We agree that Zeke’s excessive absences were detrimental. However, this fact cannot support the court’s order sustaining the petition under section 300, subdivision (b). “Failing to attend school regularly not only deprives the children of an education, but also of the social interaction and ‘peer relationships necessary for normal growth and development,’ . . . . It is a very serious allegation and a factual circumstance which needed immediate correction. However, that is not the same as saying the failure to attend school created a ‘substantial risk’ of suffering ‘serious physical harm or illness.’ The lack of education may well cause psychic or emotional or financial or social harm. But there are no facts alleged or suggested by the supporting documentary evidence to indicate mother’s failure to ensure the children’s regular school attendance subjected the children to physical injury or illness, serious or otherwise.” (In re Janet T. (2001) 93 Cal.App.4th 377, 388-389 (Janet T.).)
Moreover, there was no reason to suspect, based on our record, the absences were due to Mother’s drug usage or their “lifestyle” of hotel moves. To the contrary, the record reflects Mother was actively involved in helping Zeke solve the problems caused by his absences. She enrolled Zeke in an independent study course so he could remain on the high school football team and catch up with the rest of the 11th graders. Thus, despite moving often, Zeke enjoyed the stability of attending the same high school and keeping in contact with the same group of friends. After dependency proceedings were initiated, the social worker noted Mother provided transportation for Zeke to and from school and football practice, and worked with him on his homework. This record does not support any inference of neglect as to Zeke.
The next allegation (b-5) asserted Mother failed to obtain prenatal care while pregnant, but it was deleted in the amended petition. Allegations b-6, b-7, and b-8 all concerned the two possible fathers of Zeke’s infant brother. These allegations related to their failure to protect the baby from harm. It is undisputed one of the alleged fathers is a registered sex offender. SSA suggests Mother’s association with him as a boyfriend necessarily placed Zeke at risk of harm. However, the record shows Mother was unaware of this boyfriend’s criminal record until she broke up with him. She stated her relationship with him “was on and off for about four years,” but they never lived together. Moreover, there is no evidence this individual currently poses any risk of physical injury or illness to Zeke. Mother’s relationship with this boyfriend had ended. Evidence of a past risk is not enough to declare a child a dependent of the juvenile court under section 300, subdivision (b), without evidence the risk is currently present.
The last three allegations relate to the acts and omissions of Father. Allegation b-10 states, Father “knew or reasonably should have known of the mother’s drug history of illegal substance abuse, and was unable to protect the child from harm.” Father contends he did not know and had no reason to suspect Mother was using drugs. But even if we presume for the sake of argument Father did have a reason to know, the allegation nevertheless fails because of the lack of evidence Mother’s drug use caused Zeke harm. As explained above, the elements of causation of physical harm with respect to Zeke and his Mother’s drug usage are missing.
Similarly, allegation b-12 cannot support the court’s jurisdiction over Zeke. It alleges Father’s absence from Zeke’s life for over 10 years means he did not provide Zeke with “the necessities of life, including, but not limited to, food, clothing, shelter, medical care, and supervision.” Assuming this is true, there remains the problem of lack of evidence Zeke was at risk of serious physical harm or illness on the date of the adjudication. At the hearing, Father stated he desired to provide for and have a relationship with Zeke. He appropriately recognized that removing Zeke from his familiar surroundings, high school, and friends would likely be detrimental to his well being. Although the parties presented conflicting evidence about why Father was absent for the past 10 years, there was no evidence presented from which it can be inferred Father at this time is unwilling or unable to provide Zeke with the necessities of life.
Finally, allegation b-11 asserts Father’s domestic violence over 10 years ago, when Zeke was a baby, “is an unresolved issue that places the child at risk of neglect and physical and emotional harm.” “While past abuse or neglect can certainly be an indicator of future risk of harm, the record of past neglect in this case is not enough to declare a child a dependent of the juvenile court without something more current. ‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]’ [Citation] ‘[P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]’ [Citation.] SSA failed to meet its burden in this regard.” (David M., supra, 134 Cal.App.3d at pp. 831-832, fn. omitted.)
Father’s three incidents of domestic violence occurred during the time he and Mother were ending their relationship: (1) During one altercation, father admitted he slapped Mother after she bit him; (2) in a separate argument, Mother claims Father broke her finger, but Father asserts he was unaware of the extent of her injury at the time; and (3) Father was jailed for two days after he and Mother had another physical altercation during which they pushed each other, and Father slapped Mother. Certainly, we would agree domestic violence occurring in the same household where children are living is neglect, and there exists a substantial risk of encountering the violence as a bystander and suffering serious physical harm or illness from it. (See In re Heather A. (1996) 52 Cal.App.4th 183, 194 [court can infer child is subjected to a substantial risk of serious physical harm when he or she is placed in an environment where domestic violence is occurring, even when domestic violence is not directed at the child].) But there is no indication Father and Mother will reconcile or domestic violence between them will reoccur. Father testified he has been in a five-year relationship with a woman who is the mother of his two children. There are no reported incidents of domestic violence concerning this family. There are no plans to have Zeke change residences and live with his Father. We conclude this allegation (like the others) cannot be the basis for jurisdiction under section 300, subdivision (b).
“Our conclusion that the sustained allegations of the petition do not support jurisdiction [as to Zeke] does not mean [SSA] cannot try again. Indeed, it is entirely possible valid grounds exist for the state to assume jurisdiction over [Zeke] and indeed it may be in [his] best interests for this to happen. But, [SSA] failed to prove the grounds it asserted or to assert the grounds it might have proved.” (Janet T., supra, 93 Cal.App.4th at p. 392.) In light of our determination, the jurisdictional order as to Zeke must be reversed, the dispositional orders are moot and need not be discussed further.
III
Disposition
The jurisdictional order declaring Zeke a dependent of the juvenile court is reversed. All subsequent orders with respect to this minor are vacated as moot.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.