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IN RE: JARROD T. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JARROD T., Sr., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Jarrod T., Sr. (Father), the father of Jarrod and Jasmine, appeals from the juvenile court's order finding jurisdiction and removing the children from Father's custody. We conclude that the court's failure to arraign Father and advise him of his rights was harmless error, and that substantial evidence supported the court's finding that Father's history of substance abuse and marijuana use posed a risk to the children. We affirm.
BACKGROUND
I. September 2, 2009 petition
On September 2, 2009, the Department of Children and Family Services (DCFS) filed a petition alleging that Jarrod and Jasmine were at risk under Welfare and Institutions Code 1 section 300, subdivisions (a) and (b). The petition alleged under subdivision (a) that a history of domestic violence in the marriage and domestic violence by Father against Jennifer T. (Mother) placed the children at risk of severe physical and emotional harm (count a-1), and under subdivision (b) that because of Father and Mother's failure to supervise or protect Jarrod and Jasmine, the children were at risk of physical and emotional harm because of the domestic violence (count b-1), and one incident in which Father and Mother left the children home alone (count b-2).
The petition stated that on August 28, 2009, the Los Angeles County Sheriff's Department responded to a 911 call reporting domestic violence at an address in Whittier. The deputy found Jarrod, age 8, and Jasmine, age 4, home alone. He waited with the children in the home, taking pictures of the parents' bedroom, in which clothes were strewn all over the room, a chair was upside down, a desk was broken, and a table was on the floor. When no parent returned after 30 minutes, the deputy took the children into protective custody.
After 45 minutes, the deputy found Mother near the laundry room of a nearby apartment building. Mother told the deputy that she got into an argument with Father in their bedroom. When Father became enraged and began to throw and break things, Mother became scared, crawled out a bedroom window and left Father behind. She went to a friend's apartment but he would not let her inside. She was waiting for Father to leave before going back to her apartment. Both parents were arrested for child abandonment.2
The social worker who responded to the referral by the Sheriff's Department interviewed Jarrod, who was clean and well-groomed with no bruises. He told her that Father had stayed over the previous night after the family attended a concert. When he awoke he heard Mother and Father yelling at each other, but he “wasn't scared because they do it all the time.” Father began swearing and Jarrod looked out of his door and saw Father throwing things. Mother was crying and telling Father to stop. Jasmine was crying for Mother. When things suddenly were quiet, Jarrod opened his door and saw that Mother and Father were both gone. Jarrod “ ‘was like “oh my gosh, where are my mom and dad?,” ’ ” got some cereal for Jasmine, and called 911.
Jarrod said that Mother and Father fought a lot since he was “ ‘really little, like Jasmine[’]s age.' ” Although he denied that Mother or Father physically abused him, he added, “ ‘I wish they would stop fighting all the time. It makes me mad and sad all the time.’ ”
The social worker also interviewed Jasmine, who said, “ ‘My daddy broke the house and the chair ․ he said a bad word to my mom ․ my daddy was bad.’ ”
When interviewed at the sheriff's station, Father explained that he did not live with Mother and the children, but had stayed over after the concert. “ ‘We have a restraining order that says we can be together as long as it[’]s peaceful.' ” He told the social worker that when he got up to go to work, Mother asked where he was going, and when she kept asking questions, “ ‘I got mad and I started yelling but she kept at it․ I know I shouldn't have lost control like that․ I took anger management classes and I tried to do the steps so I wouldn't get mad but I lost it.” Father admitted he destroyed property and left the children alone after he noticed Mother had left. “ ‘I left because I didn't want to get arrested ․ when I realized [Mother] left I knew she went to call the police.’ ” He denied ever abusing the children.
Mother told the social worker that when she continued to ask where Father was going, he “ ‘started to yell․ I was afraid for my safety after he left the room and threw the chair in the room, so I climbed out the window and went to a friend's house so he could calm down.’ ” She left the children in the house because Father “ ‘has never hurt the kids and I knew he wouldn't hurt them.’ ” Both parents expressed remorse for their actions, and signed a safety plan for family preservation services. DCFS took the children into protective custody and placed them with the paternal grandparents.
The social worker called the paternal grandmother, who said that there had been domestic violence for several years, and while Mother and Father loved each other they needed counseling.
The family had two earlier DCFS referrals. The first, dated September 28, 2007, was for physical and emotional abuse by Father, who was jailed for spousal battery on September 29, 2007. Mother had a restraining order preventing Father from coming to the house for three years, and planned to get a job and counseling for herself and Jarrod. An allegation of emotional abuse of Jarrod against Father was substantiated. The second referral, dated April 18, 2009, followed an anonymous call to the Child Abuse Hotline, and alleged emotional and physical abuse of the children by Mother. The caller stated that Jasmine was taken to the emergency room for possible dislocation of her elbow when Mother grabbed her, and reported the history of domestic violence between Mother and Father (and Father's arrest a year or so earlier). Although a restraining order barred Father from the home, the caller had information that Father was back in the home. The referral was closed as unfounded.
On September 1, 2009, DCFS reported to the court that in a telephone conversation on that same day, the paternal grandmother stated that Father was hospitalized at 17 for “ ‘a drug-induced psychotic episode. He took speed at the time.’ ” She believed that the diagnosis was schizophrenia, but was not sure; her family had a history of bipolar disorder. Father had taken Wellbutrin for depression, but did not take it anymore. Mother had also taken medication (although she did not take any now), and was taking it two years ago when she asked to go to a hospital, where she stayed for three days. “ ‘Jarrod has been using speed off and on since he was 17 years old. I know he has been using marijuana for a couple months.’ ”
II. September 2 and 9, 2009 detention and arraignment hearings
At the September 2, 2009 initial detention hearing, neither Mother nor Father was present. The juvenile court found a prima facie case for detaining the children (who remained with the paternal grandparents, with monitored visitation by Mother and Father), and set the matter over for further arraignment on September 9, 2009.
Father requested an attorney and a judgment of parentage. A Last Minute Information reported that Father and Mother were living together at an address in La Mirada. At a Team Decision-Making meeting on September 8, the parents agreed to a safety plan, assessments, and counseling for them and for the children. Father “admitted to using marijuana on a daily basis. He disclosed that he has a ‘medical marijuana’ prescription/license and uses marijuana for the treatment of a back injury and insomnia.” Father submitted to an “on demand” drug test.
At the arraignment hearing on September 9, 2009, Mother was not present. The court appointed counsel for Father but noted that Father had initially appeared and then “wandered off.” Father's counsel stated that Father had left because he was called back to work. The court found Father to be the presumed father of the children.
III. October 22, 2009 first amended petition
DCFS filed a first amended petition on October 22, 2009, and the court dismissed the original petition. The petition added to the allegations of failure to protect an allegation that Father had “a history of substance abuse including but not limited to cocaine and marijuana use and is a current excessive legal marijuana user,” and a history of mental illness, including schizophrenia, and that Father's substance abuse and mental illness endangered the children (count b-3).
IV. Jurisdiction/Disposition Report
The jurisdiction/disposition report, dated October 26, 2009, stated that the children were living with the paternal grandparents. Mother's address was confidential because of the domestic violence allegations. DCFS reported that Jarrod stated that he had seen Mother and Father fight, and “ ‘I saw my dad throw a shoe at my mom. He made a big hole in the wall,’ ” and he had heard Father cursing. Jarrod remembered the police coming to the home “ ‘a long time ago, he (dad) went to jail,’ ” and again in the most recent incident, where he and Jasmine were “only left alone for maybe one hour.” Jarrod knew that “ ‘[d]rugs are like drinking or smoking,’ ” and had seen Father smoke tobacco and drink two beers, but not every day.
Jasmine stated that she had seen her mother with bumps on her face and chin from falling down on the bed, and that after Father hit mother, “ ‘Then she go out the window. Then the police came to my door.’ ” While Jasmine was playing in her room, “ ‘I said no hitting to my mom and dad. He pushed my mom down.’ ”
A. Mother's statement
Mother stated that she and Father married in 1999, and he was violent throughout the marriage. After the September 8, 2009 Team Decision-Making Meeting, Father was angry at her because she “ ‘stuck up for his mom.’ ” He started cursing, slamming the U-haul truck, and driving uncontrollably. He said he was hearing voices and that they were telling him to cut Mother's throat and bury her. Father had not hit her since 2007, when he hit her with a belt and said, “ ‘[h]e wanted to kill [her].’ ” When he was very angry he would point to a bush in the back yard and make a shoveling motion to show that “ ‘he was going to bury [her].’ ” Mother said, “ ‘I can tell because I have seen it before, whenever he does drugs, his problems worsen.” People had told her that Father was using drugs other than marijuana.
On August 28, 2009, Father had gone into a rage and slammed his fist on the mattress, throwing things in the room. “ ‘He said “I'm gonna show you F'in mad. He threw the desk. He slammed his fists in the wall. I was still under the bed. I though[t] that I had to get out. I knew that he would not do anything to the kids because he never has. My kids were asleep in the room. My husband has never hurt the kids. He takes his anger out on me. I was afraid that he was going to come in, and I went out the window.’ ” She went to the laundry room in another apartment complex and sat down, shaken up. When she heard the police cars, she came out and they questioned her. She didn't think her husband would leave the kids.
Mother reported that the criminal case related to that day had been dismissed with three months of parenting education. She had obtained a restraining order against Father in 2007, but had continued to see him because she thought he was doing better. After Father went into a rage on August 28, 2009, she “ ‘saw very clearly that [she] can't be with him.’ ” She was living in a domestic violence center, something she was not able to cope with in 2007 because at that time she “ ‘had major depression and PTSD,’ ” and had to go to a hospital and see a therapist.
Mother stated that Father “ ‘has a bad problem with drugs. He would be smoking it (marijuana) every couple of hours, but he would not smoke it around the kids. When it (marijuana) would wear off, he would go and smoke more, just doing it throughout the day.’ ” Father had a prescription for medical marijuana, she thought for his back pain, but she believed he was overusing the drug. Father was using crack when she left him in 2002 or 2003, and also in 2005, but “ ‘[n]ever in front of the kids.’ ”
Mother knew father was once diagnosed with schizophrenia, but believed it was drug-induced. When on September 8 Father said he was hearing voices, Mother recounted that “ ‘[t]he kids had been with their grandma since August 28 because we were in jail. He called me over (to the house) and he said that the voices were telling him to cut my throat and bury me. He just wasn't thinking straight.’ ”
B. Father's statement
Father said that his relationship with Mother was violent “ ‘off and on,’ ” and they had gone to counseling a number of times about the violence. He remembered the first incident as “ ‘pinn[ing] her up against a refrigerator.’ ” He couldn't remember a lot of the things Mother said he had done, and said that Mother had destroyed his property (cut up pictures and cut his golf clubs with a knife). On August 28, Mother had asked Father to move back in with her. He had lost his job, and spent the night with Mother and the children. When the next morning, Mother wanted to talk, Father was frustrated. “ ‘I started yelling. I threw a table (we had already talked about demolishing it). Since I was so mad, I just thought to break the table.’ ” Mother jumped out the window and went to the neighbor's, and when he heard sirens, he decided to leave. “ ‘With the sheriff's [sic] there, the kids were never left alone more than 5 minutes.’ ”
Father believed the children had heard him fight with Mother but had not seen it. “ ‘I have never punched Jennifer. One time I did slap her across the face (in 2003 or 2004). One time she took my keys and I did have to chase her down. I have never made her bleed. She's had a couple of bruises from me squeezing to[o] tight.’ ” In 2007 he “ ‘went to jail for D.V. and spanking [Jarrod].’ ” Father was currently on probation, and didn't hit his children. He completed a year-long domestic violence program after the 2007 arrest, and was not presently in any counseling program.
When asked if he had ever been diagnosed or hospitalized with mental illness, Father stated that he was diagnosed many years ago with paranoid schizophrenia, but it was drug induced. His use of “ ‘Crystal-crank’ ” caused a “medical imbalance” (“I wasn't right”) for which he took Clomatin, Cojentine and Novane. He no longer took medication, did not think he had schizophrenia, and did not hear voices. He was a reformed methamphetamine user since 1997 or 1998, and had completed a four-month drug treatment program.
Father had a license to use medical marijuana for lower back pain, insomnia, and anxiety (from childhood abuse by his mother's old boyfriend). He never smoked marijuana around his children.
C. Paternal grandmother
The paternal grandmother was aware of the domestic violence between Father and Mother. Although she believed Father should not hit Mother at all, she knew Mother well (Father and Mother lived with her for a short while) and believed something was wrong with Mother, who acted like a child. The violence started a few months after the marriage. Father and Mother had gone to counseling but needed more, and both Father and Mother told her about the violence in their marriage.
Father had a drug-induced episode when he was 17 or 18 and was in a mental hospital. Father was using speed. He had a chemical imbalance, and the paternal grandmother stated, “ ‘he was Schizophrenic and I believe Bipolar. The schizophrenia was drug induced.’ ” Father “ ‘self medicates with pot’ ” because one of paternal grandmother's partners was emotionally abusive to Father when he was growing up. She believed Father was still bipolar, because he was very impulsive and sabotaged himself with his jobs. Father told her he was not currently hearing voices.
Paternal grandmother believed Father was “ ‘smoking pot too much,’ ” although less often since his recent release from jail. She was not aware that Father used any other drug.
D. September 9, 2009 arrest
Sheriff's deputies stopped Father on September 9, 2009, shortly after the children were detained on August 28, 2009 and the day after the Team Decision-Making Meeting. Father's vehicle matched the description of the car of a suspect in an earlier shooting. Father, who smelled of marijuana and had bloodshot and watery eyes, told the deputies that he had a marijuana pipe and marijuana inside the vehicle; the deputies found three glass marijuana pipes with residue, and marijuana in a container. Father was arrested for resisting the officers and for battery on a police officer. Father stated that the case was rejected by the district attorney and he is no longer incarcerated.
E. Mother's therapist
Mother's therapist evaluated Mother on September 23, 2009, and reported “ ‘Domestic violence appears to have escalated over time and with the spouse's increased drug use, according to client.’ ” Mother told the therapist that Father shoved her around but did not hit her during the last incident, although he had hit her in the past and she was once hospitalized (released the same day) for a broken rib. Mother told the therapist that Father had a long history of drug and alcohol abuse, and had been diagnosed with paranoid schizophrenia. Mother had been diagnosed with major depression and post traumatic disorder two years earlier, when separated from Father and living in a domestic violence shelter, after which she was hospitalized for two weeks and prescribed medication.
F. Father's assessment
DCFS reported to the Court on October 26, 2009 that it had received a psychological assessment of Father dated October 21, 2009, in which Father denied his past diagnosis of schizophrenia. Father also “denie[d] any domestic violence but stated having a lot of communication problems” with Mother. He admitted to a history of drug use, but said he had no problems related to it. His drug history included eighteen years of marijuana use, and medical use at present for back pain and insomnia. Father also had been charged with burglary, larceny, breaking and entering, and assault. He had been convicted twice and incarcerated for a total of four months. His most recent incarceration, for assault, lasted 30 days; he had been incarcerated 17 of the past 30 days and was currently on probation.
The assessment diagnosed Father with adjustment disorder with mixed anxiety and depressed mood, and recommended individual psychotherapy and a batterer support group. DCFS also informed the court that Father had persistently sought Mother's contact information, and that DCFS was concerned because of the history of domestic violence.
G. DCFS recommendation
The report recommended that the court declare Jarrod and Jasmine dependents, order the children suitably placed, and give DCFS the discretion to release them to Mother after she has completed her domestic violence shelter program, has obtained a psychological evaluation, and so long as she takes all prescribed medications, and enrolls in individual counseling. The report also recommended family reunification services for both parents, monitored visitation, and individual counseling for Father and Mother and both children.
V. October 26 hearing
Father and Mother were both present with counsel. The court asked, “Does mother waive reading of the petition, statement of rights, and enter a denial?” Mother's counsel answered, “Yes.” Counsel informed the court that they had settled the first two counts,3 leaving only the third count (Father's drug use) at issue. The court set the matter for a contested adjudication hearing in December 2009.
VI. December 2, 2009 adjudication hearing
Mother was not present, and her counsel waived her appearance. Mother pleaded no contest to the allegations.
Father was present with counsel. The court asked, “So father is pleading no contest to amended count (b)(1) [domestic violence]; is that correct?” Father's counsel answered, “That's correct. And did you want his waiver for that?” The court replied, “That's fine.” The court asked if there was any objection to the documents being received into evidence, and counsel for Father answered, “None.” Father's counsel called Father as the only witness and entered one document into evidence.
Father, who was 34, admitted to using cocaine when he was 25. He had also used methamphetamine when he was 19, but stopped that same year. He had completed an outpatient Redlands rehabilitation program to stop using cocaine and had never used any since.
Father had started using marijuana when he was 16, and although he had stopped for a while, he resumed using marijuana 10 years earlier to cope with his marriage to Mother and for insomnia, back pain, and depression. Father had a September 8, 2009 prescription for medical marijuana (his first) for his back pain, insomnia, and depression. He never smoked marijuana in front of the children, but had cared for them while under the influence. Father had been using marijuana before he got the prescription. Marijuana improved his mood, and he had never had an accident or harmed his children while under the influence. Although he had yelled at the children while under the influence, he also had yelled at them when sober. He stated that he was willing to stop using marijuana if he could get his children back.
On August 28, 2009, Father was angry with and yelling at Mother, threw a desk in the bedroom, and left the room to put on his shoes when she went out the window. He left to look for Mother at the neighbor's house. Father had a current prescription for marijuana and had smoked four or five times a day every day during the last five or six months. He had smoked the night before the incident and his arrest shortly thereafter, although he was not under the influence on either occasion. He and Mother had gone to counseling on domestic violence issues, and he had been convicted of misdemeanor spousal abuse in 2007. Father had not tried to stop smoking marijuana.
DCFS argued that Father was in “deep, deep denial that his drug use affects his ability as-as a parent.” DCFS pointed out that Mother stated the marriage was violent from its beginning in 1999, so it was simply not true that Father never harmed anyone while under the influence, pointing out the conviction in 2007 and the August 28, 2009 incident. “Given the amount of drugs that he used, I would submit that, while he claims he wasn't under the influence, the Department believes he was under the influence. And when he was arrested, approximately an hour after the incident occurred, he did have a drug pipe on him. And according to the police report, he was indeed under the influence, with very common marks of being under the influence of marijuana, including bloodshot eyes.” 4 Father's counsel responded that Father had testified he was not under the influence at the time of the incident, and that he testified that he used marijuana on and off for periods of time and it calmed him down. “[F]ather's marijuana smoking alone does not indicate that he is a risk to the child.' ”
The court commented, “that's a lot of marijuana that he's using,” and Father had obtained his prescription after the petition was filed, so “I think he's trying to get a valid reason to continue using marijuana, and so he went out and got a prescription for marijuana to allow him to continue to smoke it legally.” The court did not “think this is a legitimate marijuana case. There is an awful lot of marijuana being smoked by the father. And given his history, I think that's very concerning.”
The court continued: “In addition, I agree with county counsel and minor's counsel. The police officers who arrested him felt he was under the influence. He certainly had a lot of the common symptoms of it. I don't think father is in the best position to make the decision as to whether or not he was under the influence. I think, clearly, father's substance abuse has impacted his life, and not just the mother saying that but other family members.”
The court dismissed the section 300 subdivision (a) count, and sustained the domestic violence allegation under subdivision (b) (to which Father and Mother had both pleaded no contest).5 The court also sustained the subdivision (b) drug allegation against Father, which as amended read: “father ․ has a history of substance abuse including but not limited to cocaine and marijuana use and is a current excessive legal marijuana user. Such abuse by the children's father, endangers the children's physical and emotional health, safety and places the children at risk of physical and emotional harm, damage and danger.”
The court declared the children dependents, and found they were suitably placed with the paternal grandparents. The court ordered reunification services and ordered Father to take parenting education, substance abuse counseling with random testing, and domestic violence counseling. Mother was also ordered to take parenting education and individual counseling to address the domestic violence. Visitation was to be monitored (although visitation with Mother at the shelter was unmonitored) with discretion to liberalize.
Father filed a timely notice of appeal.
DISCUSSION
Father argues that we must reverse the court's jurisdictional and dispositional findings, because the court failed to arraign him on the original or amended petition, and failed to advise Father of his trial rights before the jurisdictional hearing. He also argues that substantial evidence does not support the finding that his marijuana use endangered the children or put them at risk.
I. The failure to advise Father of his rights was harmless error.
“A dependency proceeding is civil in nature and is designed not to prosecute the parent, but to protect the child. [Citation.] Nevertheless, a parent's fundamental right to care for and have custody of [his] child is implicated and may not be interfered with without due process of law. [Citations.] Among the essential ingredients of due process are the right to a trial on the issues raised by the petition, the right to confront and cross-examine witnesses, and to compel the attendance of witnesses. [Citation.]” (In re Monique T. (1992) 2 Cal.App.4th 1372, 1376-1377.) To this end, California Rules of Court, rule 5.534(k), requires that in a section 300 proceeding, the juvenile court must advise the parent of his or her due process rights (1) to assert the privilege against self-incrimination, (2) to confront and cross-examine the persons preparing documentary evidence submitted to the court, as well as witnesses testifying against the parents; (3) to use the court's process to bring in witnesses, and (4) to present evidence to the court. Rule 5.668(a) requires the court to give these advisements at the initial hearing on the section 300 petition. Rule 5.682(b) requires the court to give the rule 5.534 advisements at the beginning of the jurisdictional hearing, and in addition, requires the court to advise the parent that he or she has a right to a hearing on the issues raised by the petition (5.534(b)(1)) and the right to have a removed child returned to the parent within two working days, if the court concludes that the child does not come within the jurisdiction of the court under section 300 (5.534(b)(5)). Although it is error, “the failure to advise on the record is subject to harmless error analysis.” (In re Monique T., supra, 2 Cal.App.4th at p. 1378.) Further, although formal advisement of these rights may be waived by a parent represented by counsel, there must be a personal waiver by the parent; the court may not accept a waiver of those rights based only on counsel's representations. (In re Monique T., supra, 2 Cal.App.4th at p. 1377.)
If a parent wishes to admit the allegations, rule 5.682(c) provides: “the court must first find and state on the record that it is satisfied that the parent or guardian understands the nature of the allegations and the direct consequences of the admission, and understands and waives the rights in [rule 5.682(b) ].” After a parent pleads no contest, rule 5.682(f)(3) and (f)(5) provide that the court must make findings including that “[t]he parent ․ has knowingly and intelligently waived the right to trial on the issues by the court, the right to assert the privilege against self-incrimination, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the parent or guardian's behalf,” and that the no contest plea “is freely and voluntarily given.” Even given such requirements, “ ‘a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.]’ [Citation.].” (In re Patricia T. (2001) 91 Cal.App.4th 400, 404-405.)
The record in this case shows the juvenile court did not make the advisements or findings required by rules 5.534(k)(1) and 5.682 with regard to Father at any time during the proceedings. Father was not present at the September 2009 detention and arraignment hearings on the initial petition. At the October 26 hearing on the amended petition, the court asked Mother whether she waived reading of the petition and a statement of rights (to which her counsel answered yes), but did not direct any similar question to Father, who was present with counsel. At the adjudication hearing on December 2, the court asked if Father was pleading no contest to the domestic violence count (b-1), and father's counsel answered yes, adding, “And did you want his waiver for that?,” to which the court answered, “That's fine.” At no time did the court advise Father of his rights (and there was no such advisement to Mother). The record does not include any written waiver by Father of his rights, and the only mention of a waiver by Father was made by his counsel. DCFS admits that the court's failure to make the advisements was error.
Nevertheless, we conclude that the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (See In re Monique T., supra, 2 Cal.App.4th at p. 1378 [where Chapman standard is met, no need to consider whether to apply test of reasonable probability of a more favorable result under People v. Watson (1956) 46 Cal.2d 818, 836].) Father was represented by counsel, and he does not contend that his appointed counsel rendered ineffective assistance. Father pleaded no contest to the domestic violence allegation, for which there was overwhelming evidence. That evidence included a long history of domestic violence and Mother's restraining order against Father, which was in effect at the time of the violent incident during which Mother fled the apartment, and following which Father left the children alone to avoid the police, which led to the older child calling 911. Father does not argue that his plea of no contest was not voluntarily or intelligently made.
Further, unlike counsel in In re Monique T. (who waived the mother's right to a contested hearing and submitted on the petition, with no advisement of rights) Father's counsel did not waive Father's right to a contested hearing on the substance abuse allegation.6 The court set the matter for a contested hearing, and Father testified and submitted documentary evidence.
Father suggests that had he been advised that he could call witnesses on his own behalf, he could have called the physician who issued his prescription for medical marijuana. However, as Father testified, his prescription for medical marijuana was issued on September 8, 2009. As the court noted, this was after the detention of the children. There was ample evidence that he had been using marijuana frequently before the prescription, including Father's own testimony at the December 2, 2009 that he had been smoking marijuana four or five times a day for five or six months. Father's belated procurement of a prescription for medical marijuana is not a significant factor in determining whether Father's constant use of marijuana, including while caring for the children, supported the court's finding of jurisdiction.
II. Substantial evidence supports the jurisdiction finding concerning Father's substance abuse.
Father also argues that substantial evidence did not support the trial court's assertion of jurisdiction under count b-3, which alleged that his abuse of marijuana endangered Jarrod and Jasmine's physical and emotional health. We need not address this claim. When, as in this case, a dependency petition alleges multiple grounds for asserting jurisdiction, we may affirm the juvenile court's finding of jurisdiction “if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Father pleaded no contest to count b-1, which alleged that the seven-year history of domestic violence, and Father's recent violent conduct against Mother which resulted in the children being left alone, placed Jarrod and Jasmine at risk of severe physical and emotional harm. Ample evidence supported that count. “ ‘[D]omestic violence in the same household where children are living ․ is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 576.) Past violent behavior in a relationship is a predictor of future violence. (Ibid.) Given Father's well-advised no contest plea, we would affirm the court's assertion of jurisdiction whether or not the alternative ground for dependency jurisdiction-Father's drug abuse-was supported by substantial evidence.
Nevertheless, for Father's benefit, we address his contention. To assert dependency jurisdiction, the juvenile court must find by a preponderance of the evidence that the allegations of the petition are true. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; Cal. Rules of Court, rule 5.684(f).) Well-established rules govern our consideration of Father's challenge to the sufficiency of the evidence: “If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) “In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
The three elements for a finding under section 300, subdivision (b), are neglectful conduct by the parent in one of the specified forms, causation, and a substantial risk of serious physical harm or illness to the children. “The third element ․ effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future․ [Citations.]” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1395-1396.)
“The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.) Evidence of parental marijuana use can support a juvenile court's finding that returning a child to the parents would place a child at risk of harm, depending upon the circumstances and frequency of usage. In Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, the court of appeal concluded that evidence of periodic use of marijuana by a parent did not support a finding of a substantial risk of detriment to the children's physical or emotional well-being, when there was no evidence that the parent had a substance abuse problem, and the social worker testified that the parent did not have a drug problem that affected parenting skills. (Id. at p. 1337.) In In re David M. (2005) 134 Cal.App.4th 822, the court accepted as true that a mother who tested positive for marijuana at the time of the child's birth had a substance abuse problem. Nevertheless, the court reversed the jurisdictional finding, pointing out that under section 300, subdivision (b) (the section in issue here), “ ‘there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness' ” to support jurisdiction. (Id. at p. 829-830.)
Most recently, in In re Alexis E., supra, 171 Cal.App.4th 438, the appellate court rejected a substantial evidence challenge to the juvenile court's finding that a parent had a history of substance abuse, and that the parent's current use of medical marijuana presented a risk to the minor children. As in this case, a doctor recommended that the parent use medical marijuana (although, unlike this case, the recommendation came four months before the children were detained). The prescription “did not come into existence until long after Father began using marijuana, which means that Father was self medicating himself with it prior to that recommendation. Thus, Father was using the substance illegally prior to that recommendation, and that fact supports a finding of substance abuse.” (Id. at p. 451.) Further, the parent “uses marijuana when his children are in his home.” (Ibid.) “[E]ven legal use of marijuana can be abuse if it presents a risk of harm to minors.” (Id. at p. 452.) There was also evidence that the parent's marijuana use affected his demeanor toward the children, making him irritable. (Id. at p. 453.) The parent's diagnosis of panic disorder was consistent with the literature on the effects of marijuana use. (Ibid.) “[W]e have no quarrel with Father's assertion that his use of medical marijuana, without more, cannot support a jurisdiction finding that such use brings the minors within the jurisdiction of the dependency court․ However, we have just set out the ‘more’ that supports the court's finding that his use of medical marijuana presents a risk of harm to the minors.” (Ibid.)
In this case, Father's history of substance abuse is undisputed. Father, 34 at the time of the hearing, had used marijuana off and on since he was 16, regularly since 1999, and four or five times a day for the last five or six months. Father's history of substance abuse included the use of other drugs (cocaine and methamphetamine) and drug-induced schizophrenia.
The closer question is what evidence of risk to the children is posed by his marijuana use at the time of the hearing. There is no evidence that Father was using any drugs other than marijuana, or that he had used other drugs recently. We conclude that in this case, as in Alexis E., there was evidence of more than mere medical marijuana use by Father to support the court's finding that Father's use of the drug posed a present risk to the children.
Father testified that he smoked marijuana four or five times every day, and had done so for five or six months before the hearing date. Mother stated that Father smoked marijuana every couple of hours throughout the day, smoking whenever the effects of the marijuana would wear off. That in effect is evidence that Father had continually been under the influence of marijuana since the beginning of June or July 2009, months before both the domestic violence incident after which he left the children alone and his medical marijuana prescription.7 He testified that he had cared for the children while under the influence, and that he had not tried to stop smoking. While there was no evidence that the children saw him use marijuana, and there was evidence that they did not, the children's lack of awareness of their father's drug use does not negate the possibility of harm to them when they are under his care when he is under the influence of marijuana. Mother stated that Father's problems worsened when he used drugs. Further, Mother described an episode on September 8, 2009, the day Father received his prescription for medical marijuana, when Father cursed, slammed the truck, drove uncontrollably, and told Mother he was hearing voices telling him to cut Mother's throat and bury her. On September 9, 2009, when Father was arrested for resisting arrest and battery on a police officer, he smelled of marijuana, his eyes were bloodshot, and there were marijuana pipes and marijuana in his car.
Drawing all reasonable inferences in support of the finding and viewing all evidence to the juvenile court's order, we conclude that substantial evidence supported the court's conclusion that Father's history of substance abuse and his current constant use of marijuana four or five times a day had a negative effect on his behavior, and that the children were at risk as a result.
DISPOSITION
The December 2, 2009 jurisdictional and dispositional order is affirmed.
NOT TO BE PUBLISHED.
We concur:
FOOTNOTES
FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.. FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FN2. Although Mother had a restraining order against Father, she had let him into the apartment the night before and allowed him to stay overnight. Mother was arrested at the scene, and another deputy conducted a traffic stop on Father's car. Father was convicted of misdemeanor spousal abuse.. FN2. Although Mother had a restraining order against Father, she had let him into the apartment the night before and allowed him to stay overnight. Mother was arrested at the scene, and another deputy conducted a traffic stop on Father's car. Father was convicted of misdemeanor spousal abuse.
FN3. This refers to counts b-1 (domestic violence) and b-2 (leaving the children home alone), with count b-3 as the third count to be contested (substance abuse and mental illness).. FN3. This refers to counts b-1 (domestic violence) and b-2 (leaving the children home alone), with count b-3 as the third count to be contested (substance abuse and mental illness).
FN4. The police report describing Father as under the influence and the marijuana pipes and marijuana found in the car was not for Father's arrest for child abandonment, but for Father's stop on September 9 and his subsequent arrest for resisting arrest and battery against a peace officer.. FN4. The police report describing Father as under the influence and the marijuana pipes and marijuana found in the car was not for Father's arrest for child abandonment, but for Father's stop on September 9 and his subsequent arrest for resisting arrest and battery against a peace officer.
FN5. The amended allegation stated in count (b-1): “The children Jarrod [T.] and Jasmine [T.]'s mother, Jennifer [T.] and father Jarrod [T.] have a seven year history of domestic violence and engaging in violent altercations. On 8/28/09, the children were exposed to a violent altercation between the mother and the father in which the father threw a desk in anger in the children's home in the children's presence resulting in mother fleeing the home and both parents leaving the children home alone without adult supervision. Such violent conduct on the part of the father against the mother places the children at risk of severe physical and emotional harm, damage and danger.”. FN5. The amended allegation stated in count (b-1): “The children Jarrod [T.] and Jasmine [T.]'s mother, Jennifer [T.] and father Jarrod [T.] have a seven year history of domestic violence and engaging in violent altercations. On 8/28/09, the children were exposed to a violent altercation between the mother and the father in which the father threw a desk in anger in the children's home in the children's presence resulting in mother fleeing the home and both parents leaving the children home alone without adult supervision. Such violent conduct on the part of the father against the mother places the children at risk of severe physical and emotional harm, damage and danger.”
FN6. Although we do not rely on an assumption that Father was advised of his rights by counsel, Father's assertion of his right to a contested hearing makes it reasonable to assume that counsel informed Father that he had a due process right to such a hearing.. FN6. Although we do not rely on an assumption that Father was advised of his rights by counsel, Father's assertion of his right to a contested hearing makes it reasonable to assume that counsel informed Father that he had a due process right to such a hearing.
FN7. Father admitted that he had smoked marijuana the night before, but did not believe he was under the influence at the time of the violent incident on August 28, 2009. DCFS asked Father if he was under the influence when he was arrested shortly thereafter, and Father again answered that he did not think he was under the influence. DCFS then asked Father whether he would be surprised to hear that the police report stated that Father had a marijuana pipe with him when he was arrested, and Father answered that he would not be surprised. There is no police report indicating that Father appeared to be under the influence at the time of the incident on August 28 or at the time of his arrest shortly thereafter. The arrest at which Father smelled of marijuana, had bloodshot eyes, and had marijuana pipes in his car was on September 9, 2009, over a week later, when he was arrested for resisting the officers and battery on a peace officer. Apparently confusing the two arrests, DCFS argued that Father was under the influence at the time of the violence, based in part on the incorrect assertion that Father had appeared to be under the influence and had had marijuana pipes at the time of his arrest. The court appeared to accept the mistaken inference that Father possessed marijuana and appeared to be under the influence at the time of his arrest on August 28. Father's own testimony, however, was that he smoked four or five times every day. Further, the court also relied on the undisputed evidence of Father's longstanding substance abuse and self-admitted constant use of marijuana in concluding that the children were currently at risk.. FN7. Father admitted that he had smoked marijuana the night before, but did not believe he was under the influence at the time of the violent incident on August 28, 2009. DCFS asked Father if he was under the influence when he was arrested shortly thereafter, and Father again answered that he did not think he was under the influence. DCFS then asked Father whether he would be surprised to hear that the police report stated that Father had a marijuana pipe with him when he was arrested, and Father answered that he would not be surprised. There is no police report indicating that Father appeared to be under the influence at the time of the incident on August 28 or at the time of his arrest shortly thereafter. The arrest at which Father smelled of marijuana, had bloodshot eyes, and had marijuana pipes in his car was on September 9, 2009, over a week later, when he was arrested for resisting the officers and battery on a peace officer. Apparently confusing the two arrests, DCFS argued that Father was under the influence at the time of the violence, based in part on the incorrect assertion that Father had appeared to be under the influence and had had marijuana pipes at the time of his arrest. The court appeared to accept the mistaken inference that Father possessed marijuana and appeared to be under the influence at the time of his arrest on August 28. Father's own testimony, however, was that he smoked four or five times every day. Further, the court also relied on the undisputed evidence of Father's longstanding substance abuse and self-admitted constant use of marijuana in concluding that the children were currently at risk.
MALLANO, P.J. CHANEY, J.
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Docket No: B221443
Decided: December 15, 2010
Court: Court of Appeal, Second District, California.
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