MATTHEW v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Petitioner Mathew Y. (father) is the presumed father of Christian Y., Jagger Y. and Tyler Y., dependents of the juvenile court.   Father petitions for an extraordinary writ challenging the juvenile court's order of August 30, 2010.   In that order, the juvenile court sustained the supplemental juvenile dependency petition of real party in interest Los Angeles County Department of Children and Family Services (DCFS), terminated family reunification services for father, and scheduled a permanent placement hearing pursuant to Welfare and Institutions Code section 366.26.¹  We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Y. Family and Father's and Mother's History of Drug Abuse, Domestic Violence, and Crime

Before the commencement of this action father and Renee Y. (mother) were married and living with their three boys, Christian (born in February 2003), Jagger (born in June 2004) and Tyler (born in May 2007).   Unfortunately, all was not well in the Y. family.   There was a history of domestic violence between mother and father that started before Christian, Jagger and Tyler were born.   For example, in December 2001, while mother was living with father and her son Zachary S., a mandated reporter alleged that mother assaulted father.   Zachary reported that mother was often drunk and that he had witnessed numerous episodes of domestic violence.²

Mother had a history of substance abuse and related crime.   Between 1987 and 2001, mother was convicted of driving under the influence of alcohol or drugs (twice), disorderly conduct, and inflicting corporal injury on a spouse or cohabitant.   In addition, the DCFS received five referrals from 1998 to 2001relating to mother's substance abuse and domestic violence and the effect of such conduct on Zachary.

Father too had a history of substance abuse and related crime.   Between 1998 and 2004, Father was arrested for petty theft, driving with a suspended license (twice), and possession of a controlled substance.   In May 2004, father was convicted of the felony of possession of a controlled substance.

In March 2007, a court case was opened for Jagger due to domestic violence between mother and father and the failure of mother and father to protect Jagger.   In April 2007, a court case was opened for Christian due to general neglect.   In February 2008, both cases were closed with a family law custody order.

2. The Commencement of This Action

In the early morning hours of March 7, 2009, paramedics found mother and Tyler sleeping in an alley near their home.   Although it was 47 degrees, Tyler was only wearing a diaper and a short sleeve shirt.   The paramedics transported mother and Tyler to a hospital to be treated for hypothermia and called the police.   Mother advised the police that she left her residence on March 6, 2009 at 5:00 p.m. to avoid a dispute with father.

After mother tested positive for amphetamine and methamphetamine, the DCFS was called to investigate.   Mother advised a DCFS social worker that she obtained her drugs from father and that the building they resided in was a haven for drug users.   She also stated that father was “abusive” toward her.   At the time, father was under house arrest for violating his probation related to his conviction for possession of narcotics.

On March 11, 2009, the DCFS filed a juvenile dependency petition requesting that the juvenile court assert jurisdiction over Christian, Jagger and Tyler.   On that same day, the juvenile court found that a prima facie case for detaining the children was established and ordered that father and mother be given family reunification services.   Christian and Jagger were placed with their paternal grandmother and Tyler was placed with his paternal grandfather in a foster home ³ .  Mother and father were allowed monitored visits.

3. The Original Juvenile Dependency Petition Was Sustained

On May 5, 2009, pursuant to a mediation agreement, father and mother pleaded no contest to certain allegations in the juvenile dependency petition.   In accordance with the agreement, the juvenile court dismissed certain allegations and sustained certain allegations.   The juvenile court found that it had jurisdiction over the children under section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling] based on the episode that occurred on March 7, 2009, mother's unresolved history of substance abuse, including use of amphetamine and methamphetamine, the “domestic altercations” between mother and father, and father's unresolved history of illicit drug use.   Pursuant to the recommendation of the DCFS, the court ordered the DCFS to provide family reunification services to father and mother.   The court also permitted mother and father to continue their monitored visits of the children.

4. At the 12-Month Review the Juvenile Court Ordered the Children to be Returned to the Custody of Their Parents

At first, family reunification services appeared to be successful.   Mother and father received psychotherapy with a clinical psychologist and enrolled in a variety of programs, including programs for substance abuse and domestic violence.   Further, except for his first test, in which he tested positive for amphetamines, father passed a number of drug tests.   Mother too tested negative on many occasions, though she tested positive for methamphetamine on April 11, 2009.

On March 3, 2010, the juvenile court held the 12-month review of the case.   At that time, the court ordered that the children be placed in the home of father and mother and adopted a permanent plan for the children to be returned to live with their parents.   The court also maintained jurisdiction over the children and scheduled an 18-month review of the matter in September 2010.

5. The Supplemental Juvenile Dependency Petition

On May 7, 2010, things took a dramatic turn for the worse.   On that day, mother tested positive for amphetamine and methamphetamine and father failed to appear for his scheduled drug test.   When father was asked by the DCFS about mother's test, father stated:  “I know mistakes happen.   That place [the testing facility] is a joke.”   Mother stated:  “I'm not saying that I did it, but things sometimes happen and people make mistakes.”   A DCFS social worker explained to father that due to his “no show” on the same day as mother's positive test, the children could not remain in his care since the DCFS considers all missed appointments for drug tests as positive tests.

On May 26, 2010, the DCFS filed a supplemental juvenile dependency petition pursuant to section 387.   In that petition, the DCFS alleged, inter alia, that mother and father had a history of drug abuse and were current users of illegal drugs, that mother tested positive for amphetamine and methamphetamine on May 7, 2010, that father failed to appear for a random drug test on that day, and that mother's and father's drug use endangered the physical and emotional health and safety of the children.   The DCFS prayed for an order removing the children from the home of mother and father and placing them with a relative.

6. May 26, 2010, Hearing

On May 26, 2010, the juvenile court held a preliminary hearing on the supplemental petition.   Father appeared and stated to the court that he missed the May 7, 2010, drug test because he had to work and there was traffic on the way to the test.   Father's counsel argued that father “inadvertently” missed the test.   The court found that a prima facie case for the supplemental petition was established.   Nonetheless, the court ordered the DCFS to continue to provide family reunification services to mother and father.

7. The Drug Tests on July 30 and August 9, 2010

On July 30, 2010, both mother and father failed to appear for a randomly scheduled drug test.   On August 9, 2010, father again failed to appear for a drug test.   On that same day, mother tested positive for amphetamine and methamphetamine.

8. Hearing and Order on August 30, 2010

On August 30, 2010, the juvenile court held a jurisdictional and dispositional hearing on the supplemental petition.   At that hearing, mother testified that she “probably” used illegal drugs in May and August of 2010.   She further provided the following testimony regarding father's drug use:

Question:  “Who are you living with now?”

Answer:  “I live with the father.”

Question:  “Does he use?”

Answer:  “He has.   He has.   Yes.”

Later, during cross-examination, mother testified as follows:

Question:  “[T]o your knowledge, when is the last recent time that he [father] has used any [i]licit drugs?”

Answer:  “He-it's just really dangerous to answer that question.   I do not know sometimes similar to Twin time.” ⁴

Question:  “Did you see him use it?”

Answer:  “I guess.   Yes.”

Father testified that the last time he used illegal drugs was four months ago, at “around the time [he] missed the test [in May 2010] and the mother tested dirty.”   He further testified that he missed the drug tests on July 30 and August 9, 2010, because he was working at that time as a grip for Warner Brothers.

At closing argument, father's counsel argued that mother was simply guessing about father's drug use.   However, the juvenile court indicated that mother's testimony might have been influenced by father's presence.   The court stated:  “I sure don't want to be in that house [mother's and father's] this night because the whole time she's talking, he's shaking his head in disagreement.”

The juvenile court stated that it found mother credible and that it did not believe father's claim that the last time he used drugs was in May 2010.   It further found that both mother and father were using drugs as of August 2010.   The court also found that the previous case plan of returning the children to the custody of mother and father had not been successful in ensuring the safety and protection of the children and that it did not appear likely or probable that the parents would reunify with their children if they were given additional time beyond the 18-month review scheduled in September 2010.   Based on these and other findings, the court sustained the supplemental petition, terminated reunification services, and scheduled a hearing pursuant to section 366.26 regarding the termination of the parental rights of mother and father on December 29, 2010.   This petition followed.

CONTENTIONS

Father contends that substantial evidence did not support the juvenile court's order sustaining the supplemental petition.   He further contends that substantial evidence did not support the juvenile court's dispositional findings and orders.

DISCUSSION

1. Standard of Review

The DCFS may file a supplemental juvenile dependency petition to change or modify a previous disposition order when it concludes that the order was not effective to protect a child declared a dependent of the juvenile court.  (See § 387, subds. (a) & (b);  Cal. Rules of Court, rule 5.560(c).)  At the conclusion of a hearing on a supplemental petition, the juvenile court must make findings that (A) “[t]he factual allegations [of the petition] are or are not true” and (B) “[t]he allegation that the previous disposition has not been effective is or is not true.”  (Cal. Rules of Court, rule 5.565(e)(1).)  “If a dependent child was returned to the custody of a parent or guardian at the 12-month review or the 18-month review or at an interim review between 12 and 18 months and a 387 petition is sustained and the child removed once again, the court must set a hearing under section 366.26 unless the court finds there is a substantial probability of return within the next 6 months or, if more than 12 months had expired at the time of the prior return, within whatever time remains before the expiration of the maximum 18-month period.” ⁵  (Cal. Rules of Court, rule 5.565(f).)

“We review a determination on a section 387 [supplemental] petition to see if substantial evidence supports that finding.”  (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)  “ ‘On review, this court will view the juvenile court record in the light most favorable to that court's order․  We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court․  Issues of fact and credibility are matters for the trial court alone;  we may decide only “ ‘ “whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.”  ․’ “ ‘ “ (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)

2. There Was Substantial Evidence to Support the Juvenile Court's Jurisdictional Findings

“The ‘jurisdictional fact’ necessary to modify a previous placement is that the previous disposition has not been effective in the rehabilitation or protection of the minor.”  (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.)   In this case, the juvenile court found that father and mother had relapsed into using illegal drugs and thus the family reunification services previously ordered were not effective.

Father argues that there was no evidence that he was currently using illegal drugs, i.e. at the time of the August 30, 2010 hearing.   He relies on his own testimony that the last time he used illegal drugs was in May 2010 and requests this court to disregard mother's testimony because she was “incoherent.”   We reject this argument.

The juvenile court stated that it did not believe father's testimony.   As the trier of fact, it was entitled to make this finding.   Indeed, there was ample evidence in the record that undermined father's credibility.   At the hearing on May 26, 2010, father stated to the court that the reason he missed the May 7, 2010, drug test was because he was at work.   Father, however, subsequently admitted under oath that he was using illegal drugs in May 2010.   The juvenile court thus could have reasonably concluded that father lied at the hearing on May 26, 2010, and that the reason he did not appear at the May 7, 2010, drug test was because he knew he would have tested positive.

Moreover, there was undisputed evidence that father missed the drug tests scheduled on July 30 and August 9, 2010, and that prior to those tests the DCFS informed father that a missed test was tantamount to a positive test.   Based on this evidence alone, the juvenile court could have reasonably found that father was using illegal drugs at or about the time of the August 30, 2010 hearing.

In addition, mother's testimony, when interpreted in a light most favorable to the juvenile court's decision, lends support to the court's finding that father continued to use illegal drugs after May 2010.   At the August 30, 2010, hearing, mother was asked whether father “use[s]” illegal drugs, and she responded, “Yes.”

Father attempts to impeach this testimony by relying on his counsel's cross-examination of mother regarding the last time she saw father use illegal drugs.   The juvenile court, however, indicated that mother was watching father shake his head in disagreement while she answered a question about father's drug use.   She also testified that it was “really dangerous” to testify about this matter.   In light of the history of domestic violence between father and mother, the juvenile court could have reasonably found that mother was intimidated from stating the complete truth about father's drug use during cross-examination but was more candid when she previously stated that father was currently using illegal drugs.   We cannot second guess the juvenile court's determination of mother's credibility.

We conclude that there was substantial evidence supporting the juvenile court's jurisdictional findings.

3. There Was Substantial Evidence to Support the Juvenile Court's Dispositional Findings and Orders

“If, at the section 387 adjudication, the court finds the previous disposition was not effective in the protection or rehabilitation of the child, the court is required to hold a disposition hearing.  [Citation.]  If the proposed removal of the child is from a parent or guardian, the court must apply one of the applicable standards found in section 361, subdivision (c).”  (In re Javier G. (2006) 137 Cal.App.4th 453, 462.)

Section 361, subdivision (c), provides that a dependent child may not be taken from the physical custody of his parents unless the juvenile court finds clear and convincing evidence that one of five described circumstances exist.   One such circumstance is that “[t]here 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.” (§ 361, subd. (c)(1).)   Here, the juvenile court found by clear and convincing evidence that this circumstance existed.

Father argues that “a single relapse for father in May, some four months prior to the adjudication” was insufficient to support the juvenile court's finding that there was a substantial danger to the children's physical and mental health.   The premise of father's argument is incorrect.   When we view the evidence in a light most favorable to the juvenile court's order, as we must, there was evidence of more than a “single relapse” of drug use by father.   There was evidence that father missed at least three drug tests in May, July and August, 2010, indicating that he was using illegal drugs for months prior to the juvenile court's disposition, thereby endangering the physical and emotional well-being of the children.   This constitutes substantial evidence in support of the juvenile court's dispositional findings and orders.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

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

FN2. Mother no longer has custody of Zachary..  FN2. Mother no longer has custody of Zachary.

FN3. Tyler was later placed in a foster home with non-relatives..  FN3. Tyler was later placed in a foster home with non-relatives.

FN4. Mother and father both enrolled in the Twin Town Treatment Centers.   Father was enrolled there from July 2009 to November 2009..  FN4. Mother and father both enrolled in the Twin Town Treatment Centers.   Father was enrolled there from July 2009 to November 2009.

FN5. In most cases reunification services should not be provided for a period of more than 18 months.  (In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445.).  FN5. In most cases reunification services should not be provided for a period of more than 18 months.  (In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445.)

KLEIN, P. J. ALDRICH, J.