IN RE: MONTE H. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Terrance H. (father) appeals from jurisdictional and dispositional findings and orders made by the juvenile court with regard to his son, Monte H., who was born in August 2004 (minor).   Minor was four years old when he was removed from the custody of his mother, Brittany G. (mother) as a result of allegations that mother had a history of substance abuse and failed to protect minor.   At the time minor was detained, father was incarcerated.   The juvenile court found that father knew of mother's substance abuse, he failed to protect and provide for minor, and his criminal background all endangered minor's physical and emotional health and well-being.   The juvenile court also found that it would be detrimental to place minor with father so that he could in turn suitably place minor with the child's stepmother, i.e., father's wife.

On appeal, father contends the juvenile court's jurisdictional findings as to him cannot stand because there is no causal connection or nexus between the court's findings and the underlying allegations.   Additionally, in challenging the juvenile court's refusal to place the minor with father, he argues that there is not a sufficient showing to support the detriment finding, and the juvenile court erred by refusing to consider his wife as a suitable placement for minor.   We affirm.

BACKGROUND

Minor came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on July 24, 2009, after an immediate response referral was generated, alleging that mother had physically abused minor by grabbing and slapping his face and screaming at him while at the Orthopedic Hospital where minor had been brought for treatment of a broken wrist suffered when he fell off a slide at the park.   Minor was eventually removed from his home on August 13, 2009, and placed in a licensed foster family agency/home.

At a team decisionmaking meeting held on August 14, 2009, it was determined that it was in minor's best interest for him to be placed in protective custody pending the initiation of a dependency proceeding.   Mother did not appear at the meeting, although her presence was expected, and the DCFS report noted her repeated failure to cooperate with DCFS. The minor's maternal great-grandmother, who was at the meeting, stated she believed mother is “a good mother” and that she had “no concerns at all” about mother's ability to parent the minor.   The maternal grandmother and great grandmother lived in the house and helped raise minor.

The juvenile dependency petition was filed on August 18, 2009, pursuant to section 300, subdivisions (a), (b) and (g).  In addition to the July 24, 2009, incident, the petition alleged that mother has a history of substance abuse and was a current user of marijuana, that she had left the minor in the care of different relatives without making a plan for his care and supervision, that father's whereabouts were unknown, and that both parents had failed to provide minor with the necessities of life.

At the detention hearing held the same day, the juvenile court appointed counsel for father and for the minor.   Mother informed the court that father was incarcerated in a federal prison for “guns probation.   His friend got killed in front of the house.”   Based upon mother's representation that father openly accepted minor into his home, and that “they all lived together at the maternal grandmother's home,” the court found that father is minor's presumed father under subdivision (d) of Family Code 7611.

DCFS established a safety plan by which the minor returned to mother's custody, and mother would refrain from using corporal punishment, verbal abuse, and smoking marijuana.   After mother failed to appear for meetings and appointments, failed to show up for a drug test, and left the child with the relatives for days at a time, DCFS initiated dependency proceedings.

The family had three prior DCFS referrals.   There was a February 2005 referral that alleged father had sexually abused the child, which was deemed unfounded.   An April 2005 allegation of general neglect was “evaluated out.”   And, in July 2005, it was alleged that mother neglected the child;  that allegation was deemed unfounded.   Mother had a criminal history as well.

By the time of the initial detention hearing on August 18, 2009, father's whereabouts were unknown.   The court detained the child in foster care and ordered at least twice-weekly, monitored visits for the parents.

In an interim review report, DCFS informed the court the child was placed with his maternal uncle.   DCFS initiated a due diligence search for father.   Mother indicated he was incarcerated, but DCFS could not locate him in any Los Angeles County jail.   The DCFS social worker also left him a letter at his last known address, but never received a response.   Eventually, DCFS located father in federal custody at a Los Angeles detention center.

In a first amended petition filed September 24, 2009, it was alleged that mother has a history of substance abuse and is a current user of marijuana, rendering her incapable of providing regular care to minor, that remedial services failed to resolve the family's problems in that mother failed to randomly drug test, and that mother's substance abuse places minor at risk of physical and emotional harm and damage.   In addition, the petition alleged that mother had a criminal history of drug related arrests, which also places minor at risk of physical and emotional harm and damage.

Further, it is alleged in the petition that father, who was then incarcerated, “has failed to provide the child with the necessities of life including food, clothing, shelter and medical care;  and the father knew of the mother's substance abuse and failed to protect the child.   Such failure to provide for and protect the child on the part of the father endangers the child's physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage.”   There is also an allegation that father has a criminal history, including convictions for battery and possession and purchase of narcotics and controlled substances for sale, a bench warrant issued for failure to appear, and a probation violation of a firearm restriction.   Allegations regarding mother's physical abuse of minor on July 24, 2009, were included in the amended petition, but ultimately were dismissed.

The juvenile court convened on September 24, 2009, for the jurisdiction/disposition hearing.   DCFS reported on father's extensive criminal history that included arrests for lewd and lascivious acts with a child under 14 by force, murder, first-degree murder, armed robbery, drug possession, spousal abuse, PCP and cocaine possession for sale, and carrying a loaded gun in public.   He was convicted of misdemeanor battery in 1996, receipt of stolen property in 1997, felony drug possession in 1998 (while on probation), misdemeanor public fighting in 1997, felony drug possession in 2005, violating probation by possessing a firearm in 2006, felony drug possession in 2008, and felony PCP possession for sale in 2009.

Minor reported knowing his father was “Terrence.”   Father had sent the child letters, mailed him a birthday card, and called him.   The child did not know the number of telephone conversations he had with father since January 2009, when father was placed in federal custody.   Before his incarceration, father had visited minor.

According to mother, father had been in custody for one year.   She confirmed that prior to his incarceration, he visited minor.   The maternal grandmother stated father provided for the minor financially and emotionally when he was not incarcerated, and also confirmed that father visited minor before his incarceration and since then sent letters to and called minor.   The maternal aunt's recollections were similar to those of the others.

Mother wanted to return to the grandmother's home and have minor returned to her custody, as did minor.   Father also wanted “[minor] to be safe with his family.”   Father informed the social worker he has been in federal custody since January 2009 for gun possession and was awaiting trial and uncertain of his release date.

The juvenile court continued the matter to October 29, 2009, for the jurisdiction/disposition hearing.   On that date, DCFS submitted an Interim Review Report in which it documented its interview with father.   Because he had been incarcerated since January 2009, father asserted he did not have direct knowledge of mother's behavior that prompted DCFS action.   Father denied ever observing mother physically abuse minor, but stated, “I do believe that she (mother) could have talked to my son in such a way like telling him to shut the f-k up, I'm going to beat you, because I have seen her talk to him that way in the past.”

Father knew mother used to smoke marijuana, but she told him she quit.   Father was unaware of whether mother currently used drugs.   Before his incarceration, he remembered her “hanging out with her friends and I think they were smoking marijuana, her friends are very crazy.”   He was unaware of whether mother used methamphetamine, but reiterated that her “friends are wild.”   He stated he and mother never were in a relationship.   He would see her on the street and ask where Monte was, and she would reply that minor was with either the maternal grandmother or paternal grandmother.   Father would call the paternal grandmother, who would confirm when mother left minor with her.   Father did not know how often mother left the child with other family members.

Father denied not providing for minor.   He would give mother money “here and there.”   And, during his incarceration he wrote minor letters and called him until mother blocked the calls.   Father admitted to having a long criminal history, starting as a juvenile in 1991 for joy riding in a stolen vehicle.   In 1992, when father was 14 he had consensual sex with a 13-year old, who initially stated she was raped, but later recanted.   In October 1992, father was arrested for murder and sent to “camp” for six months.   In 1998 he was arrested for another murder.   He spent 10 months in jail, ending up “beating the case.”   In 2003, he was arrested for double murder and attempted murder, but was released after spending seven months in jail.   He was arrested for murder again in 2006.   Five days later, police searched his home and found jewelry, money, and a gun, but because the gun was not the one used in the murder, father was released after five months in jail.   Father's next arrest was in 2008 for drug possession with intent to sell.   Father denied the truth of the allegation.   Later, police found three guns at his home.   Because he was on probation for the drug charges, he was incarcerated again, and released when it was determined the guns were not his.   Thereafter, he said, “the Feds did their dirty work and that is when they put me here (Metropolitan Detention Center) accusing me of the same things, weapons charges.”   Father denied ever killing anyone, selling drugs, or being involved in spousal abuse, claiming that he never hit his girlfriend, he only pushed her.   Father wanted to reunify with minor.

By the time of trial, November 25, 2009, minor had been placed in the home of his maternal grandmother.   DCFS also informed the court that the paternal grandmother and father's wife (stepmother) were being considered as placement options and potential monitors for father's visits, but had yet to submit to criminal background checks.

The juvenile court received the DCFS reports and stipulated testimony in evidence.   If called to testify, father would have stated he wanted custody of minor.   While father remained incarcerated, he planned to place minor in the care of stepmother who was willing to care for minor without any financial assistance.   It also was stipulated that stepmother would testify to the same effect.

Father's attorney urged the court to dismiss the allegations against him for insufficiency of the evidence and a failure to show a nexus between father's conduct and risk of detriment to minor.   Father's attorney highlighted the maternal grandmother's statements confirming that father had provided for minor when he was not incarcerated and maintained contact with him during incarceration.   Regarding father's criminal history, counsel urged there was no nexus between that history and the well-being of minor.

Minor's attorney asked the court to follow the DCFS recommendations and argued that father had not provided for the child since his incarceration.   Further, his plan for stepmother to assume care of minor was not appropriate because she had no relationship with minor, the minor was now with the maternal grandmother with whom he had resided along with mother prior to his detention.   The juvenile court, however, indicated that the lack of relationship between minor and stepmother would not necessarily render the plan to place minor with her inappropriate.

DCFS counsel agreed with minor's counsel and pointed out that in view of father's extensive time in jail over the years, he had not been able to provide for minor.   Further, he allowed minor to live with mother in a knowingly “precarious situation.”   He knew mother used drugs and left the child with family members.   She would spend time with friends who used drugs and acted “crazy.”   He did nothing but check with relatives about the minor.

The juvenile court declared the child a dependent under section 300, subdivision (b), finding true that mother's drug use and criminal history placed the child at risk.   Regarding father, the juvenile court found he knew of the mother's substance abuse and failed to protect the child, which endangers the child's physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage, and the father's criminal history, which also endangers the child's physical safety and emotional well being placing the child at risk of physical and emotional harm and damage.”   The juvenile court found a nexus between father's criminal history and minor's well-being because of the history of drug-related arrests and convictions, and a conviction as recent as this year.

Father's counsel then urged the court to award father custody under section 361.2 because he was the noncustodial parent at the time of the initiation of dependency, and there was not clear and convincing evidence that the minor would be at risk if released to father.

The juvenile court disagreed.  “It is not about him making an appropriate plan.   It's about whether he poses a risk.”   And, the court found father posed a risk of detriment to the minor because of father's criminal history.   If he were out of custody, the court would not have placed minor in father's care.   With the concurrence of minor's attorney, the court suitably placed minor with the maternal grandmother and ordered reunification services for both parents.

Father timely appealed.

DISCUSSION

Father urges there was not substantial evidence to sustain the jurisdictional counts against him because there is no causal connection between the juvenile court's findings and the underlying allegations in the petition, and he challenges the juvenile court's detrimental finding and refers to his wife as a suitable placement for the minor.

A. Jurisdiction

Father acknowledges that a jurisdictional finding against one parent is good against both, and concedes that mother's actions alone justified an assumption of dependency jurisdiction over minor.   He claims, however, that the findings sustained against him are reviewable on appeal because those counts were the basis for the juvenile court's decision against placing minor with father so as to permit father to arrange for minor's care in a suitable setting.   We do not agree with father.   A court may refrain from placing a child with a noncustodial parent who is not even referenced in the section 300 petition.   (Welfare & Institutions Code, section 361.2, subd. (a) ¹ ;  In re V.F. (2007) 157 Cal.App.4th 962, 970, questioned on other grounds in In re Adrianna P. (2008) 166 Cal.App.4th 44, 53-54;  In re John M. (2006) 141 Cal.App.4th 1564, 1569.)   Therefore, whether or not the evidence supported the section 300, subdivision (b) counts sustained against father, the juvenile court's assumption of jurisdiction and disposition orders are legally appropriate.  (See B post.)

(1) Standard of Review

On appeal, jurisdictional findings are reviewed for substantial evidence, i.e., the order must be affirmed if there is any substantial evidence that supports the court's order, resolving all conflicts in support of the determination and indulging all legitimate inferences in favor of the order.   (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)

Section 300, subdivision (b), states, in relevant part:  “The 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 negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent ․ to provide regular care for the child due to the parent's ․ substance abuse.”

Father does not challenge the factual allegations contained in the section 300, subdivision (b) count;  rather, he claims the facts, if true, do not justify the section 300, subdivision (b) jurisdictional finding because there was no causal link between the allegations and a finding of risk to minor.   We disagree.

(2) Jurisdictional Finding

The court sustained the allegations that father:  “․ failed to provide the child with the necessities of life including, food, clothing, shelter and medical care and the father knew of the mother's substance abuse and failed to protect the child.   Such failure to provide for and protect the child on the part of the father endangers the child's physical and emotional health, safety and well being and places the child at risk of physical and emotional harm and damage. [¶] ․ has a criminal history of conviction for battery, possess[ion]/ purchase of narcotic/controlled substance for sale, fight/challenge to fight in a public place, possess[ion] of narcotic/controlled substance, possession of [PCP] for sale, a history of a bench warrant for failure to appear and violation of probation of a firearm restriction․  [F]ather's criminal history and conduct endangers the child's physical safety and emotional well being placing the child at risk of physical and emotional harm and damage.”

There is jurisdiction under section 300, subdivision (b) when the court finds that the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of ․ the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment․”  Three elements must exist for a jurisdictional finding under section 300, subdivision (b):  “ ‘(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.’  [Citation.]  ‘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.]” ’ ”  (In re J.O. (2009) 178 Cal.App.4th 139, 152.)

Father claims the facts are insufficient to justify a jurisdictional finding because they did not establish a risk of future harm to minor.   Father relies on In re Rocco M. (1991) 1 Cal.App.4th 814, 820, and subsequent cases to support his claim that jurisdiction was not warranted because there was no current evidence of a risk of future harm.   As noted in In re J.K. (2009) 174 Cal.App.4th 1426, 1436-1437, Rocco M., in dicta, referred to a statute then in effect that suggested that one must look to see if the circumstances at the time of the hearing subjected the minor to the defined risk of harm.   But the Legislature revised the language to suggest that a showing of past events may be sufficient to show future risk and thereby establish jurisdiction.  (But see In re David M. (2005) 134 Cal.App.4th 822, 831-832.)   Intuitively, risk in the future can be assessed by recourse to past conduct.   Indeed, even the cases following Rocco M. state past abuse may be enough to establish a substantial risk of serious harm.”  (In re David M., supra, 134 Cal.App.4th at p. 822, fn. 3.)

Here, father knew that mother spoke to minor in an abusive manner, knew she used drugs, and knew that she associated with friends who acted “crazy” and “wild.”   All he did was to check with relatives about the minor.   He did not know how often mother left the child with others.   The father's failure to protect the minor from the mother's drug use, abuse, associations, and his criminal background, and incarceration justified the jurisdictional finding under section 300, subdivision (b).

Father relies on In re J.O., supra, 178 Cal.App.4th at p. 152;  In re David M., supra, 134 Cal.App.4th at pp. 830-833;  and In re W.O. (1979) 88 Cal.App.3d 906 for the proposition that the conduct of the parent or parents that did not cause the child's injury or did not cause a risk of injury to the child are not sufficient to make the jurisdictional finding.   In J.O. the court held that certain past acts did not bear on failure to provide financial assistance, and the juvenile court made no finding in deprivation of medical assistance.   In David, M. the court held that the parents' mental or substance abuse problems was never connected to harm to the minor or substantial risk of serious harm to the minor.   In W.O. the court noted the juvenile court's finding of a “remote possibility” of danger to the children.

Here, there is sufficient evidence to show that father's conduct did cause injury to the minor or constitute a risk of injury to the minor.   Said evidence included father's ongoing incarceration, failure to provide for the minor and failure to insure the minor's safety, in light of mother's abuse, neglect of the minor, and drug use.   That evidence constitutes substantial evidence of risk of serious harm.   Moreover, additional evidence of the father's history of drug and gun involvement and criminal record, including a recent conviction, constituted substantial evidence of danger to the minor.   In In re James C. (2002) 104 Cal.App.4th 470, 483, the court indicated that, as here, a father who was incarcerated and failed to protect his child from adverse home conditions, was unable to supervise the child and did not make arrangements for the child once he knew about the circumstances, created a risk of serious harm to the child.   Therefore, there is substantial evidence supporting jurisdiction under section 300, subdivision (b).

B Placement of Minor

Father contends there was not clear and convincing evidence to support the juvenile court's finding that it would be detrimental to place the minor with father so that he could arrange for the minor's care, with father's wife.

Section 361.2, subdivision (a) provides, “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.   If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”  Section 361.2, subdivision (b) provides three alternatives to the court in the event the child is placed in the custody of the non custodial parent.  Section 361.2, subdivision (c) states that the court shall make an express finding for the basis of its determination under subdivisions (a) and (b).

(1) Standard of Review

There are varying views of the degree of evidence necessary for a finding of detriment under section 361.2, subdivision (a).   Although the court in In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570 suggests that clear and convincing evidence is required, the language of the provision contains no such requirement.   But even if there was such a clear and convincing evidence standard before the trial court, on appeal from a judgment required to be based on clear and convincing evidence, “ ‘the clear and convincing test disappears ․ [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.’  (9 Witkin, Cal. Procedure (4th ed.1997) § 365, p. 415.)”  (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881;  see 9 Witkin, Cal. Procedure (5th ed.   2008) Appeal § 371, p. 428.)

“In contrast [to section 361, subdivision (c)(1)-removal from a custodial parent's home], section 361.2, which governs placement after the child has been made a dependent of the court and removal from the custodial parent has already occurred, conspicuously does not require that the court find the noncustodial parent might fail to protect the child or that there are no reasonable means to protect the child in the noncustodial parent's home in order to deny the noncustodial parent's request for placement.   Instead, section 361.2 simply instructs the court to consider whether placement with the noncustodial parent would be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’   A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm.”  (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.)

“ ‘The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion.’  [Citation.]  The reviewing court will reverse the court's order in the absence of a clear abuse of discretion.”   (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.)   Whether the appropriate standard of review is abuse of discretion (see In re Nada R. (2001) 89 Cal.App.4th 1166, 1179) or substantial evidence (see In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695), there is sufficient evidence to support the juvenile court's order.

(2) Custody

Father refers to cases indicating that a parent's incarceration by itself does not justify depriving a parent custody when the parent can make appropriate plans for the child during the period of incarceration.  (In re Isayah C., supra, 118 Cal.App.4th at pp. 688-689;  In re S.D, (2002) 99 Cal.App.4th 1068, 1077;  In re Aaron S. (1991) 228 Cal.App.3d 202, 207.)   Father also points out that placement in the grandmother's home is anomalous, as the grandmother and great grandmother seemed oblivious to mother's parental defects.

Here, placement was not denied on the sole basis of unavailability because of incarceration.  “There is no ‘Go to jail, lose your child’ rule in California.”  (In re S.O., supra, 99 Cal.App.4th at p. 1077.)   The juvenile court said, “I basically believe the father is at risk if [he] were out of custody, even if he could have made an appropriate plan, that would be with the stepmother that would mean I would have to release to him and I'm finding risk to release to him.”   The juvenile court in considering whether placement with the non custodial parent would be detrimental to the minor weighed the various relevant factors.  (In re Luke M., supra, 107 Cal.App.4th at p. 1425.)   Those factors included father's extensive criminal record, his failure to provide for the child, and failure to protect the minor from the mother.   There is sufficient evidence to support the juvenile court's finding.

DISPOSITION

The juvenile court's jurisdictional and dispositional orders and findings are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

ARMSTRONG, Acting P. J. KRIEGLER, J.