IN RE: SAMANTHA C.

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Court of Appeal, Second District, California.

IN RE: SAMANTHA C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JORGE C., Defendant and Appellant. Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.

B225043

Decided: February 28, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.

Samantha C.'s father, Jorge C. (Father), appeals from the juvenile court's orders declaring Samantha a dependent child of the court and removing her from Father's care and custody.   We affirm the court's orders.

FACTS AND PROCEEDINGS BELOW

Samantha came to the attention of the Department of Children and Family Services (DCFS) when she tested positive for methamphetamine at her birth in September 2009.   Upon discharge from the hospital DCFS placed Samantha with a foster family and filed a petition alleging Mother and Father had failed to protect Samantha by allowing her to be exposed to methamphetamine in the womb.   The DCFS subsequently amended the petition to allege violent physical altercations between Samantha's parents.   The amended petition alleged that Father “knew of the mother's substance abuse and failed to take action to protect the child” and that Father had engaged in “violent [physical] altercations” and “verbal arguments” with Mother.

At the jurisdictional hearing on May 24, 2010, the evidence showed that Mother had been using methamphetamine for the past 10 years including while she was pregnant with Samantha.   Mother's other five children had previously been declared dependents of the court due to her substance abuse.   Mother was still using illegal drugs at the time of the hearing as evidenced by her recent failures to submit to drug testing.

The undisputed evidence, however, showed that Father first learned of Mother's drug use in February 2009.   After that, he accompanied her to all her prenatal appointments and tried to keep her away from her friends who used drugs.   With respect to Samantha's positive drug test at birth, Father told the DCFS worker:  “As far as what I know, [Mother] was no longer having contact with her friends.   I thought she was clean and clear of any drugs.   I told her that I was going to help her and I thought I did.   I don't know what happen[ed].”   Father stated:  “I will do anything to have my daughter with me, I will ask [Mother] to leave if this is the case.”

The evidence also showed that Father had engaged in a pattern of physical abuse against Mother, the most recent incident occurring in November 2009 when he struck Mother and gave her a black eye.   Father told the DCFS worker it was an accident.   He also admitted hitting Mother with a broom in October 2009 but explained that he only hit her softly with the bristle end.   Mother reported other incidents including one when she was seven or eight months pregnant in which Father pulled her hair and hit her on her head with his fist.   The court found that Samantha came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b) 1 based on Father's and Mother's failure to protect Samantha from Mother's drug use and from Father's physical violence toward Mother.

At the dispositional hearing, also held on May 24, 2010, Father based his argument for custody of Samantha on the evidence that he was doing well as a single father.   That evidence showed that beginning on May 13, 2010, Father was allowed two-hour unmonitored visits with Samantha twice a week and that he always returned her “clean, changed and fed.”   The evidence also showed that Father was taking parenting classes and attending domestic violence and anger management classes.

There was conflicting evidence at the hearing as to whether Father and Mother had permanently separated.

On one hand, mother reported to a DCFS worker in December 2009 that although she and Father were living apart they continued to see each other “on almost a daily basis.”   This was consistent with Father's statement to a DCFS worker on December 28, 2009, that Mother had moved out of his home on November 22, 2009, but was living in a garage nearby and that they continued to see each other “on a regular basis.”   On January 28, 2010, the parents told a Foster Family Agency worker that they intended to resume their relationship once Samantha was returned to Father.   In February 2010, Samantha's DCFS worker stated that Father and Mother often visited Samantha together, held hands and embraced and “used endearing terms toward each other.”   She also noted, “The parents continue to imply and make reference to the idea that when the Father gets Samantha, [Father and Mother] are going to be together.”   Another worker reported in February 2010 that the previous month “the parents informed her that they are going to get back with each other once Father gets [Samantha] back.”   The foster mother told the DCFS worker in December 2009 that Mother told her “we are going to get [Samantha].”

On the other hand, in his March 2010 interview Father claimed that he lived alone in his own one-bedroom apartment and that he no longer supported Mother.   Father played a voicemail recording for the worker in which Mother stated:  “You are going to regret it.   I don't want to be with you anymore but I'm going to tell you one thing, you will never have the child, I will make sure of that.   Okay, and now I will leave your house.”  (There is no evidence in the record when this recording was made.)

After hearing this evidence and considering the various DCFS reports and arguments of counsel the court sustained the allegations of the petition as to Father and Mother and ordered that Samantha remain in foster care.   The court ordered that the DCFS provide Father with reunification services and permit monitored visits at least twice weekly.

Father was ordered to attend and complete a DCFS-approved program of domestic violence counseling, parenting education and individual counseling including anger management and codependency if recommended by Father's therapist.   Finally, the court scheduled hearings under section 366.21, subdivisions (e) and (f) in November 2010 and a hearing under section 366.22 in April 2011.

Only Father appeals.

DISCUSSION

I. JURISDICTION

The DCFS contends that we need not consider Father's challenge to the jurisdictional findings as they relate to him because even if his challenge was successful Samantha would remain a dependent child of the court based on the unchallenged finding Mother failed to protect the child.   Erroneous jurisdictional findings as to Father, however, could affect him adversely in the future if dependency proceedings were again initiated or even contemplated with regard to Samantha or with regard to Father's future children, if any.   (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547.)  “Moreover, refusal to address such jurisdictional errors on appeal ․ has the undesirable result of insulating erroneous or arbitrary rulings from review.”  (Id. at p. 1548.)   Consequently, we will address Father's challenges to jurisdiction.

A. Mother's Drug Use

The evidence does not support the court's finding that Father failed to protect Samantha from her mother's drug use.   The undisputed evidence shows that after Father first learned that Mother was using drugs while pregnant, he accompanied her to all prenatal testing, insisted she undergo a drug test at each prenatal care appointment, tried to keep Mother away from her drug-using friends and gave her moral support to stay off the drugs.   Neither the DCFS nor Samantha's counsel argued that Father should have or could have done more.

B. Domestic Violence

Substantial evidence does, however, support the alternative ground for asserting jurisdiction-that Father failed to protect Samantha from a substantial risk of harm as the result of his physical abuse of Mother while mother was seven or eight months pregnant.  (See In re Heather A. (1996) 52 Cal.App.4th 183, 194.)   Nonetheless, Father argues that jurisdiction should have been terminated as to him because section 300(b) provides that jurisdiction “shall continue ․ only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”   Father contends that at the time of the dispositional hearing on May 24, 2010, there was no evidence of a current or future risk to Samantha arising from domestic violence because he was remorseful, was successfully participating in domestic violence and anger management counseling and he and Mother had separated.   Father's argument is not persuasive.

Despite the evidence that Father had attended six months of domestic violence and anger management counseling and was thus making progress on these issues, he had physically accosted mother while she was pregnant and twice more as recent as October and November 2009.   The court could reasonably find that Father's pattern of physical violence toward Mother still posed a substantial risk of physical harm to Samantha.   In addition, there was evidence that Father's and Mother's separation was only temporary and that they were waiting only for Father to obtain custody of Samantha before they reunited.

II. REMOVAL OF SAMANTHA FROM FATHER'S PHYSICAL

CUSTODY

Section 361, subdivision (c)(1) states that the court may remove a child from her parent's physical custody when “[t]here is or would be 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 minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody.” (§ 361, subd. (c)(1).)

Father contends the evidence does not support removing Samantha from his physical custody because at the time of the dispositional hearing his visits with Samantha were going well, he had made significant progress in his domestic violence and anger management classes and he had separated from Mother.   He repeats the argument he made to the trial court that if the juvenile court had any doubt about whether he and Mother were actually separated the DCFS “can make unannounced home calls as much as they want.”

Substantial evidence produced at the dispositional hearing on May 24, 2010 supported the court's decision not to give Father physical custody of Samantha at that time.

Although Father's visits with Samantha were going well and Father's counselor described Father as “ ‘a happy dad,’ ” it does not follow that at the time of the dispositional hearing it would have been in Samantha's best interests from a health and safety perspective to be placed in Father's full-time care and custody.   His attendance at programs must be viewed in the context of the pre-and post-petition violence discussed above.   Further, as discussed above, there was conflicting evidence as to whether and when Father and Mother had separated and whether they were simply living apart until Father could gain custody of Samantha.  (See discussion, ante, at pp. 3-4.)

As to Father's claim that the court failed to consider means of ensuring Mother and Father were not back together, we note that the court has “broad discretion” in determining whether there are reasonable alternatives to removing the child from the parent's physical custody.  (In re Cole C. (2009) 174 Cal.App.4th 900, 918.)   We cannot say the court abused its discretion in declining Father's offer to allow the DCFS to “make unannounced home calls as much as they want.”

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code..  FN1. All statutory references are to the Welfare and Institutions Code.

MALLANO, P. J. JOHNSON, J.