IN RE: JENNIFER V.

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Court of Appeal, Second District, California.

IN RE: JENNIFER V., et al., Persons Coming Under the Juvenile Court Law.

B228379

Decided: October 27, 2011

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

Reposted to correct index line;  no change to text

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Elmer G. (father) appeals from the dependency court's (1) jurisdictional findings that father used inappropriate discipline against Jennifer and Elmer and that father's alcohol abuse places the children at risk of harm;  (2) court's removal order;  and (3) order that father participate in random alcohol screening tests.   As we find that substantial evidence supports the dependency court's findings and removal order and that the dependency court did not abuse its discretion by ordering father to participate in random alcohol screening, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND 1

The family at issue in this appeal consists of father, I.G. (mother), and their four children:  Jennifer V. (Jennifer) (born in August 1995), Elmer V. (Elmer) (born in December 1996), Mel.G. (Mel.) (born in May 2004) and M.G. (M.) (born in November 2007).   Mother is not a party to this appeal.2  The appeal stems from the dependency court's judgment and orders based on a Welfare and Institutions Code section 300 3 petition filed on August 9, 2010.

In the section 300 petition, DCFS made numerous allegations including that father physically abused the children and that father's history and current abuse of alcohol rendered him incapable of providing regular care to the children, placing them at risk of harm.

DCFS became involved 4 following an altercation between mother and the paternal grandmother after which mother was detained by the police and placed on a “5150 Hold.” 5 Elmer was also placed on a 5150 Hold later that evening after father called 911 because Elmer was holding a knife and stating that it was his grandmother's fault that mother was taken to jail.   Officer Tate advised DCFS that father had been drinking that evening and had liquor on his breath.

DCFS noted that there were roaches in the cupboards and drawers in the kitchen and a large parrot was allowed to roam freely in the home.   There was evidence of bird feces, feathers and seeds on the kitchen counter presenting a health hazard.

Jennifer informed DCFS that father drank daily, consuming usually two to three beers;  that when father was too drunk to drive he took a cab home;  that father sometimes took Mel.with him while drinking at his friends' home;  and that her parents were physically abusive towards one another.   Jennifer also stated that father “always had a beer in his hand;” and that he had a temper and could “explode” when he drank.   Jennifer stated that both father and mother would use corporal punishment to discipline the children;  that father would step on her feet in response to her doing “something really bad” and that on at least one occasion, her toenail came off as a result;  and that father “tapped [Elmer] on the back.”

Mother informed DCFS that father head-butted Elmer, stepped on Elmer's feet and hit Elmer on the back as forms of punishment.   Mother also stated that father punched Jennifer in the face.   Mother reported that father drank heavily and took Mel.with him to the homes of his adult male friends where drinking would continue and that he became violent when drinking, resulting in inappropriate discipline of Jennifer, Elmer and Mel.

Mel.informed DCFS that her parents engaged in violent, combative behavior against one another.   Mel.also stated that father drank beer daily.

M. was not interviewed by DCFS due to his young age.

Based on the foregoing, the dependency court determined that the children came under the jurisdiction of the court on August 9, 2010 and that DCFS made a prima facie case for the detention of the children in foster care.   On August 25, 2010, the dependency court released the children from foster care to the care of their paternal great-aunt.   On October 13, 2010, the dependency court entered judgment on the petition downgrading the physical abuse allegation against father to inappropriate discipline but sustaining the alcohol abuse related allegation against father as pled.   The dependency court set a section 366.21, subdivision (e), hearing for April 13, 2011.   Father filed a notice of appeal on October 22, 2010.

ISSUES ON APPEAL

The following issues are raised in this appeal:  (1) whether there is substantial evidence to support the dependency court's finding that it has jurisdiction over the minors because (a) father used inappropriate discipline against Jennifer and Elmer;  and (b) father's alcohol abuse places the children at risk of harm;  (2) whether substantial evidence supports the dependency court's removal order;  and (3) whether the dependency court abused its discretion in ordering father to participate in random alcohol screening tests.

Because substantial evidence supports the dependency court's orders and the court did not abuse its discretion in ordering father to participate in random alcohol testing, we will affirm.

DISCUSSION

1. Appealability 6

An appeal will be dismissed as “moot” when subsequent events render it impossible for an appellate court to grant effective relief.  (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog Foundation );  Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77–78;  In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)   The policy underlying this general rule is that an appellate court will only decide an “actual controversy” and will not render an “advisory opinion.”   (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178–1179;  Vernon v. State of California (2004) 116 Cal.App.4th 114, 120.)

However, with respect to dependency cases, this rule of “mootness” is not an absolute rule.   We decide whether any given case is moot on a case-by-case basis.   An appeal is not moot “if the purported error is of such magnitude as to infect the outcome of the ensuing termination action or where the alleged defect undermines the [dependency] court's initial jurisdictional finding.”   (In re Kristin B. (1986) 187 Cal.App.3d 596, 605.)   In general, an appeal of the findings upon which continuing orders for custody and visitation are based will not be dismissed as moot because an error in those findings undermines the foundation for such orders.  (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547–1548.)

Here, father seeks review of the dependency court's jurisdictional findings and we will review the appeal on the merits as such findings provide the foundation for the dependency court's subsequent orders.

2. Standards of Review

Three of father's four contentions on appeal turn on whether there was substantial evidence before the dependency court to support the court's rulings.  “When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.”  (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.)  “ ‘It is an elementary ․ principal of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact].’  [Citation.]”  (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 207.)  “ ‘Evidence sufficient to support the court's finding “must be ‘reasonable in nature, credible, and of solid value;  it must actually be “substantial” proof of the essentials which the law requires in a particular case.’  “ [Citation.]  ․ In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination.   [Citations.]”  (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

Father's remaining contention falls under the abuse of discretion standard.   “At the dispositional hearing, the [dependency] court must order child welfare services for the minor and the minor's parents to facilitate reunification of the family.  [Citations.]  The court has 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.  [Citations.]  We cannot reverse the court's determination in this regard absent a clear abuse of discretion.  [Citation.]  [¶] The reunification plan ‘ “must be appropriate for each family and be based on the unique facts relating to that family.”   ‘ [Citations.]  Section 362, subdivision (c) states in pertinent part:  ‘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 minor is a person described by Section 300.’  [Citations.]  The department must offer services designed to remedy the problems leading to the loss of custody.  [Citation.]”  (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006–1007.)   A dependency court abuses its discretion when its determination is “arbitrary, capricious, or patently absurd,” (In re Mark V. (1986) 177 Cal.App.3d 754, 759) and we will interfere only if we find that “ ‘under all the evidence, viewed most favorably in support of the [dependency] court's action, no judge could reasonably have made the order ․ [Citations.].’ “ (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067).

3. Substantial Evidence Supports the Dependency Court's

Jurisdictional Finding that Father Used Inappropriate Discipline

Against Jennifer and Elmer

Father contends that under section 300, subdivision (a), DCFS was required to show evidence of serious physical harm, or a substantial risk of serious physical harm, and that the evidence presented to the dependency court failed to show such harm.   As a result, father continues, the dependency court erred in sustaining the petition with respect to count a–2, regarding father's use of inappropriate discipline against Jennifer and Elmer.

Section 300, subdivision (a), provides that the following will cause a child to fall under the jurisdiction of the court and be adjudged a dependent of such court:  “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian.   For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.   For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.”

Here the record is replete with substantial evidence that father inappropriately disciplined both Jennifer and Elmer.   Jennifer stated that both father and mother would use corporal punishment to discipline the children;  that father would step on her feet in response to her doing “something really bad” and that on at least one occasion, her toenail came off as a result;  and that father “tapped [Elmer] on the back.”   Mother stated that father head-butted Elmer, stepped on Elmer's feet and hit Elmer on the back as forms of punishment.   Mother also stated that father punched Jennifer in the face.

Although father argues that some of the evidence in the record contradicts these statements, when reviewing the dependency court's findings on appeal, we only look at evidence that supports the court's findings and disregard any contrary evidence.  (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)   Thus, we find father's argument to be without merit.   The record clearly shows that there was sufficient evidence on which the dependency court based its finding that father was not engaging in “reasonable and age-appropriate spanking to the buttocks” of his children, that there was evidence of serious physical injury resulting from his disciplinary tactics and that father had a history of repeated inflictions of injuries to the children.

4. Substantial Evidence Supports the Dependency Court's

Jurisdictional Finding that Father is a Current Abuser of

Alcohol Placing the Children at Risk of Harm

Father contends that the dependency court erred in sustaining a finding under section 300, subdivision (b), count b–6, for two reasons.   First, father argues that the Multi–Disciplinary Assessment Team (MAT) report, which contained Jennifer's statements regarding father's alcohol abuse, was inadmissible and, therefore, the remaining admissible evidence in the record provided an insufficient basis on which to find that he abuses alcohol.   Second, father argues that the dependency court erred because there was no longer a “current risk of harm” by the time of the jurisdictional hearing due to father's quitting drinking altogether, and therefore, as a matter of law, there was no basis for the lower court to find the children at risk.   Neither of father's arguments has any merit.

With respect to his first argument, father failed to object to the MAT report's introduction into evidence at trial and therefore waives any challenge to such evidence on appeal.  (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.)   Father acknowledges such failure in arguing that he was not required to lodge a separate objection to the MAT report because his objection would have been futile as mother, through her counsel, objected to the report at trial.   Although father attempts to recharacterize mother's objection to include his assertion that under Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 547–551, due process required that the MAT report be provided to the parties a minimum of 10 days prior to any review hearing, it is clear from the record that mother objected to the introduction of the MAT report on hearsay grounds alone.   However, even if we construe mother's objection to include father's argument, it is entirely without merit as even father admits this 10–day rule is found in section 366.21, which does not apply to jurisdictional hearings.

Father's second assertion relating to the MAT report's introduction into evidence is pursuant to section 355, which he argues provides that the preparer of such a report must be available for cross-examination and that hearsay evidence in such a report cannot support a jurisdictional finding by itself unless the declarant is made available for cross-examination.  (Welf. & Inst.Code § 355, subd. (b)(2) and subd. (c)(1).)   Assuming we construe mother's hearsay objection to include father's section 355 issue, thus preserving it on appeal, the dependency court properly admitted the MAT report only for the statements of both parents and the children, who were present in the courtroom and could testify to the statements they made in the report, but it did not admit the MAT report for the statements of the preparer, who was not present, consistent with section 355.  (Welf. & Inst.Code § 355, subd. (c)(1)(D).)  In general, we review a trial court's ruling on the admissibility of evidence for an abuse of discretion.  (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.)   As father has failed to show that such introduction was arbitrary, capricious or patently absurd, we find that the court did not abuse its discretion in admitting the report into evidence.

With respect to father's second contention, we summarized the applicable case law and re-enunciated the correct rule in In re Adam D. (2010) 183 Cal.App.4th 1250, 1261:  “proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse. (§ 300, subd. (b);  In re J.K. (2009) 174 Cal.App.4th 1426, 1435, fn. 5, 1436 [95 Cal.Rptr.3d 235] [noting In re Rocco M. considered a prior statutory scheme that was ‘materially different from the current version’].)”   As the interpretation father urges us to consider is inconsistent with prior legal precedent, we decline to adopt it.

Because the dependency court correctly applied the legal standard, the only question remaining is whether substantial evidence supports the dependency court's finding that father's alcohol abuse places the children at risk of harm.   We find that there is substantial evidence to support such finding.

Mother reported that father drank heavily and took Mel.with him to the homes of his adult male friends where drinking would continue (corroborated by Jennifer) and that he became violent when drinking, resulting in inappropriate discipline of Jennifer, Elmer and Mel. Officers who investigated the scene between mother and paternal grandmother resulting in the filing of the section 300 petition found father had been drinking.   Jennifer also stated that father drank daily;  that he “always had a beer in his hand;” and that he had a temper and could “explode” when he drank.   Mel.also stated that father drank beer daily.   Based on the foregoing, there clearly was sufficient evidence to support the conclusion that father's alcohol abuse placed the children at risk of harm by increasing the likelihood of violence by father and by impairing his decision-making.

5. Substantial Evidence Supports the Dependency Court's Removal Order

Father next contends that reasonable means were available to protect the children without the removal of such children from his care and, therefore, the dependency court's removal order must be reversed.   Specifically, father argues that the evidence does not support a finding that father's conduct posed a danger to the children's safety or emotional well-being and that an order removing mother from the home and requiring the paternal great-aunt remain in the home would have been sufficient to protect the children.

Section 361 provides in relevant part:  “(c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody proceeding, paragraph (6):[¶]  (1) 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 minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody․  The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home.   The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.”  (Italics added.)

Father is essentially asserting that he is the nonoffending parent and, under the language above, the dependency court should have considered allowing him to retain custody.   However, as we have determined that there was sufficient evidence supporting the dependency court's jurisdictional findings against him, father is not a nonoffending parent.   Instead, his inappropriately disciplining the children and his abuse of alcohol place the children at risk regardless of any findings against mother.   As a result, the dependency court's finding that allowing the children to remain in his custody is not a reasonable means of protecting the children is also based on substantial evidence.

5. The Dependency Court's Order Requiring Father to Participate in Random Alcohol Screening is Not an Abuse of Discretion

Finally, father contends that the dependency court abused its discretion in ordering him to complete random alcohol screening because the jurisdictional finding that father abused alcohol was not supported by substantial evidence.   Father failed to show that the dependency court's order is arbitrary, capricious or patently absurd.   As we have determined that the dependency court's jurisdictional finding at issue is supported by substantial evidence, we find that the dependency court's order based on such finding is not an abuse of discretion.

DISPOSITION

The dependency court's judgment and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We Concur:

FOOTNOTES

FN1. The factual and procedural background is drawn from the record, which includes a two-volume Clerk's Transcript and a one-volume Reporter's Transcript..  FN1. The factual and procedural background is drawn from the record, which includes a two-volume Clerk's Transcript and a one-volume Reporter's Transcript.

FN2. Although the record is full of evidence that mother engaged in numerous acts of abuse against the children and domestic violence against father, we need not discuss the details of such facts as mother is not a party to this appeal..  FN2. Although the record is full of evidence that mother engaged in numerous acts of abuse against the children and domestic violence against father, we need not discuss the details of such facts as mother is not a party to this appeal.

FN3. Unless stated otherwise, all section references are to the Welfare and Institutions Code..  FN3. Unless stated otherwise, all section references are to the Welfare and Institutions Code.

FN4. The family had three prior DCFS referrals.   However, the details of such referrals are not relevant to the issues on appeal and therefore, we need not include them in the facts..  FN4. The family had three prior DCFS referrals.   However, the details of such referrals are not relevant to the issues on appeal and therefore, we need not include them in the facts.

FN5. Section 5150 provides:  “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72–hour treatment and evaluation․ “.  FN5. Section 5150 provides:  “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72–hour treatment and evaluation․ “

FN6. Father is appealing the dependency court's judgment and orders of October 13, 2010, which are appealable “as any final judgment” pursuant to section 395..  FN6. Father is appealing the dependency court's judgment and orders of October 13, 2010, which are appealable “as any final judgment” pursuant to section 395.