Filed 12/26/14 Modified and certified for publication 1/14/15 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.C., A Person Coming Under the B255676
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. CK60359)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Carlos E.
Vasquez, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Tyson B. Nelson, Deputy County Counsel, for Plaintiff and Respondent.
__________________________
Father M.C. appeals from the juvenile court orders taking jurisdiction of his son
J.C. and placing him in foster care. We affirm because the court assumed jurisdiction in
part based on misconduct by the mother and because substantial evidence supports the
jurisdictional and dispositional findings.
FACTS AND PROCEDURAL HISTORY1
On March 12, 2014, mother C.M. pled no contest to a petition filed by the Los
Angeles County Department of Children and Family Services (DCFS) that asked the
juvenile court to assume jurisdiction over three-month-old J.C. because the child was
born with methamphetamine in his system and mother had a long history of drug abuse.
(Welf & Inst. Code, § 300, subd. (b).) Father submitted on the petition based on the
various DCFS reports and other documentary evidence admitted in evidence. The trial
court assumed jurisdiction of J.C. based on J.C.’s positive test, mother’s drug abuse, and
on father’s failure to protect J.C. from mother’s drug abuse.
At an April 7, 2014 dispositional hearing, the trial court denied reunification
services for mother, placed the child in foster care, and ordered reunification services for
father. The trial court declined to place the child with either father or paternal
grandparents based on father’s and mother’s previous history with the DCFS, which
included incidents of domestic violence and drug use and questions about father’s mental
health.
Father contends the trial court erred because: (1) there was insufficient evidence
that he knew or could have done anything to stop mother’s drug use during her
pregnancy; and (2) there was no evidence he posed a risk of harm to J.C.
1
As with most dependency cases the background facts are somewhat lengthy. We
have tailored them to fit the issues raised on appeal.
2
DISCUSSION
1. Because Jurisdiction Was Proper Based on Mother’s Conduct, We Need Not
Consider Whether It Was Also Proper Based on Father’s Conduct
Because the juvenile court assumes jurisdiction of the child, not the parents,
jurisdiction may exist based on the conduct of one parent only. In those situations an
appellate court need not consider jurisdictional findings based on the other parent’s
conduct. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) Nevertheless, we may exercise
our discretion to reach the merits of the other parent’s jurisdictional challenge in three
situations: (1) the jurisdictional finding serves as the basis for dispositional orders that
are also challenged on appeal; (2) the findings could be prejudicial to the appellant or
could impact the current or any future dependency proceedings; and (3) the finding could
have consequences for the appellant beyond jurisdiction. (In re Drake M. (2012)
211 Cal.App.4th 754, 762-763.)
Father does not claim any error based on the juvenile court’s assumption of
jurisdiction based on mother’s conduct. Accordingly, DCFS contends that the general
rule applies and that we should therefore affirm based on the uncontested jurisdictional
findings made against mother. Although father contends that the Drake M. exceptions
apply here, he does not explain why, meaning he has not suggested any legal or practical
consequences that might flow from this finding either within or outside the dependency
proceedings. (In re Drake M., supra, 211 Cal.App.4th at p. 763.) We therefore deem the
issue waived. (Alliance for Children’s Rights v. Los Angeles County Dept. of Children
and Family Services (2002) 95 Cal.App.4th 1129, 1139, fn. 4.)
We alternatively conclude on the merits that the three Drake M. exceptions are not
applicable here. Even if the current jurisdictional finding were erased, father is still left
with an established history with DCFS based on incidents involving previous children
from his relationship with mother, children over whom DCFS earlier assumed custody.
These include sustained allegations of domestic violence, drug abuse, father’s mental
health issues, and general neglect. The dispositional order in this case was based in large
3
part on father’s past history and his failure to adequately address his mental health issues.
Therefore the jurisdictional findings in this case did not affect the dispositional order, and
we do not see how the current findings might further prejudice father in the future.
Next, we alternatively hold that the jurisdictional findings were supported by
substantial evidence.
2. Substantial Evidence Supports the Jurisdictional Finding
Jurisdiction was sustained as to father because he failed to protect J.C. from
mother’s drug abuse during her pregnancy. (Welf. & Inst. Code, § 300, subd. (b).)
Father contends there was insufficient evidence to support this finding because he and
mother had separated, leading him to doubt whether the child was his2 and mother was in
a drug rehab program during her pregnancy and told him she was no longer taking drugs.
Based on this he told DCFS, “how am I supposed to protect the child when it was in the
mother’s womb and we weren’t even together at the time. I was under the impression
that she was not using anymore because that’s what she was telling me. . . . I didn’t hear
about any drug use until the [social worker] called my dad and informed him that the
baby was born.”
We review the dependency court’s findings under the substantial evidence
standard. We must affirm the court’s findings unless, after reviewing the entire record
and resolving all conflicts and drawing all reasonable inferences in favor of the order, we
determine there is no substantial evidence to support them. Substantial evidence is
evidence that is reasonable, credible, and of solid value. (In re Christopher C. (2010)
182 Cal.App.4th 73, 84.)
Father and mother began using drugs together when they were both around 15
years old. Although not married, they had stayed together as a couple for approximately
10 years and had two children before J.C. was born in January 2014. Father claimed he
was unsure whether J.C. was his child because he and mother had separated, but, before
2
Parentage was confirmed by DNA testing.
4
paternity was confirmed, believed the child was likely his. Thus, even though the parents
were no longer living together at the time of conception, it is clear they were still
romantically involved with each other. Father also told DCFS that the “[l]ast I knew she
was using was the last time I used; August 2013. I thought she was doing well.” DCFS
contends, and we agree, that this statement gives rise to an inference that father was still
doing drugs with mother when she was more than five months pregnant with J.C., a child
he believed was likely his own. That gives rise to another inference – that instead of
taking steps to stop mother’s drug use during the first five months of her pregnancy,
father instead abetted and encouraged it.
Father challenges these inferences, claiming they are undercut by the following
statements in the record: (1) his February 2014 interview where he said that except for a
one week relapse he had been sober for a year; (2) his statement that he separated from
mother because he wanted to become sober but she was still using drugs; (3) his
statement that he asked for a paternity test because he and mother had separated and were
not living together when J.C. was conceived or during the pregnancy; and (4) mother
was in a substance abuse program during the pregnancy. These factual assertions are, at
best, overstatements that are either unsupported by the record or overcome by the
inferences discussed above that are favorable to the trial court’s jurisdictional order. We
take each in turn.
(1) Father’s February 2014 statement that he had been continuously sober for six
months confirms his statement that he did drugs with mother in August 2013. His
statement that he had been “working toward sobriety for 12 months” with a one-week
relapse is ambiguous at best. Given that the child was conceived in April 2013, it is
reasonable to infer that mother was using drugs at that time and thereafter, and that father
knew about it.
(2) & (3) Father’s separation from mother, presumably sometime before J.C. was
conceived in April 2013, does not necessarily preclude father’s inferential knowledge of
mother’s drug use during pregnancy.
5
(4) Father cites to a letter showing that mother enrolled in a residential drug
treatment program on November 18, 2013, and moved out one month later. Nothing in
this evidence precludes a finding that mother was using drugs before that time and that
father knew about it.
Because there was sufficient evidence that father knew mother was taking drugs
while she was pregnant and did nothing to protect his unborn child from her conduct, we
affirm the juvenile court’s jurisdictional order.
3. Substantial Evidence Supports the Dispositional Order
In order to remove a dependent child from the parents’ home there must be clear
and convincing evidence of a substantial danger to the child’s health, safety, and
emotional well-being that cannot be eliminated by reasonable means. (Welf. & Inst.
Code, § 361, subd. (c)(1).) We review the juvenile court’s findings under the substantial
evidence standard. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Father planned to live with his parents. He contends the juvenile court should
have placed the minor with him because he would have help from his parents or,
alternatively, placed the minor with father’s parents and allowed him to live in their
home. Father contends the trial court erred by removing J.C. because he had been drug-
free for seven months, successfully participated in an outpatient treatment program,
completed a parenting program, and was observed to be comfortable holding the minor
and tending to his needs, including feeding and changing his diapers.
A March 31, 2014, letter from father’s drug treatment program reported that even
though he had good attendance and was still testing clean, his participation was
“sluggish.” Father was also a “no-show” for two tests. Given his years-long struggles
with drug abuse, his seven months of sobriety did not mean that he was no longer at risk
of relapsing. This is highlighted by the fact that his two older children had been removed
from the home because of mother’s and father’s drug use, after which he entered a drug
treatment program, suggesting that he was prone to relapses. The parents also had a
history of domestic violence as recently as 2012, and father had never received a mental
6
health evaluation. Based on this, we hold there was substantial evidence that J.C. would
be at risk if he were returned to father.3
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders concerning appellant
C.M. are affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J .
FLIER, J.
3 Father asks us to take judicial notice of recent juvenile court orders placing the
minor in his care. We deny that request because the issue presented to us is whether the
juvenile court’s jurisdictional and dispositional orders were correct when made.
Although father may have subsequently convinced the juvenile court that custody with
father was no longer detrimental to J.C., that circumstance does not change our task here.
7
Filed 1/14/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.C., A Person Coming Under the B255676
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. CK60359)
AND FAMILY SERVICES,
Plaintiff and Respondent,
ORDER FOR PUBLICATION AND
v. MODIFICATION OF OPINION
[NO CHANGE IN JUDGMENT]
M.C.,
Defendant and Appellant.
THE COURT:
IT IS HEREBY ORDERED that the opinion filed in the above matter on
December 26, 2014, is certified for publication with the following modification:
On page 5, first partial paragraph, where the last sentence ends with “abetted and
encouraged it.” Add the following sentence after it that reads: “Under the facts of this
case, we conclude there was substantial evidence to support the jurisdictional findings
based on father’s conduct.”
There is no change in judgment.
_________________________________________________________________
BIGELOW, P. J. RUBIN, J. FLIER, J.