In re D v. CA2/8

Filed 3/9/16 In re D.V. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re D.V., a Person Coming Under the B262198
Juvenile Court Law.

LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK87942)
FAMILY SERVICES,

Plaintiff and Respondent,

v.

D.V. SR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Marguerite
Downing, Judge. Affirmed.

Nancy E.B. Nager, under appointment by the Court of Appeal, for Defendant and
Appellant.

Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel and Jacklyn K. Louis, Deputy County Counsel, for Plaintiff and
Respondent.
__________________________
 One-year-old D.V. lived with appellant D.V. Sr. (father), when he was detained.
Father was not, however, named in the Welfare and Institutions Code section 300
petition. Instead, dependency jurisdiction was based solely on mother’s drug use and
failure to reunify with D.V.’s half-siblings. (Welf. & Inst. Code, § 300, subds. (b), (j).)1
On appeal, father contends: (1) the disposition order removing D.V. from father’s
custody was not supported by sufficient evidence and (2) it was an abuse of discretion to
order father to participate in drug testing and a drug treatment program.2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules of appeal from a disposition order (In
re A.R. (2015) 235 Cal.App.4th 1102, 1115 (A.R.)), the evidence established that mother
was homeless when D.V. was born in August 2013. Father, who lived in a single family
home on the 1200 block of Towne Avenue in Los Angeles, picked up D.V. at the hospital
and D.V. lived with father until he was detained more than one year later. During that
time, mother lived there occasionally.
A. Referral, Protective Custody Warrant and Detention
On October 29, 2013, the Department of Children and Family Services (DCFS)
received a general neglect referral for D.V., then known as “Baby Doe.” The “referral
address” was father’s home on Towne Avenue, but DCFS social worker Maresca did not

1 All future undesignated statutory references are to the Welfare and Institutions
Code. Mother is not a party to this appeal.

2 Father also challenged the monitored visits condition. But on December 18, 2015,
father was given unmonitored visits. DCFS moved to dismiss as moot the portion of
father’s appeal challenging the monitored visits condition of the disposition order. In his
response to the motion, father stated that he would not be filing any opposition. Because
father currently has unmonitored visits, the issue of whether it was error to order
monitored visits is now moot and we do not address it. (See Biosense Webster, Inc. v.
Superior Court (2006) 135 Cal.App.4th 827 [in appeal challenging TRO on grounds of
notice and merits, after the notice issue rendered moot by subsequent proceedings, the
appellate court considered merits challenge].)

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know that. When Maresca went to father’s home to investigate on October 31, 2013, the
adult male who answered the door said he lived there alone and did not know anyone by
mother’s name.
From Department of Public Social Services (DPSS) records, Maresca learned that
mother had been homeless since June 2013. Maresca contacted mother’s DPSS social
worker and the social worker assigned to a dependency case involving D.V.’s half-
siblings.3 The DPSS social worker reported that mother picked up her aid at the DPSS
office on Central Avenue; mother appeared intoxicated the last time the DPSS social
worker saw her. From the half-siblings’ social worker, Maresca learned that DCFS was
also looking for half-sibling K.B., whom DCFS suspected was being prostituted by
mother.
On December 18, 2013, the DPSS social worker provided Maresca with a
telephone number for mother. Unbeknownst to Maresca, it was father’s telephone
number. The next day, Maresca made contact with mother at that number and told
mother about the referral for “Baby Doe.” Mother said “Baby Doe” had been named
D.V.; D.V. was living with father and mother had not seen him for three months.4
Mother would not provide her own contact information to Maresca and said she did not
know father’s address or telephone number. That, of course, was untrue since mother
was speaking to Maresca on father’s telephone.
On December 20, 2013, half-sibling E.H.’s father told Maresca that mother was
living with her “boyfriend,” D.V., mother’s 18-year-old son and half-sibling K.B. at an
address on Towne Avenue. Since it was father’s home address, it is reasonable to infer
that the “boyfriend” was father. E.H.’s father told Maresca that both mother and father

3 D.V. was the youngest of mother’s seven children, D.V.’s half-siblings. The half-
siblings are: D.B. (born in 1996 and killed in a gang shooting in 2014); K.B. (born 1999;
mother’s Family Reunification (FR) terminated in 2012); Q.B. (born 2000; mother’s FR
terminated in 2012); C.M. (born 2002; status unknown); M.B. (born 2005; status
unknown); and E.H. (born 2012; “Non-reunification” ordered in 2013).
4 If mother’s timeline is credited, D.V. was in father’s sole custody when the
referral was made in October 2013.

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abused marijuana and alcohol. Maresca tried but once again failed to make contact with
mother at father’s home.
On December 26, 2013, DCFS filed a section 300 petition alleging dependency
jurisdiction based on mother’s history of substance abuse which had resulted in her losing
custody of three half-siblings (§ 300, subds. (b) and (j)). The petition named father but
no conduct by father was alleged as the basis of dependency jurisdiction. The petition
stated father’s whereabouts were unknown but identified father’s Towne Avenue address
as mother’s address.
That day, the juvenile court issued a protective custody warrant for D.V., which
remained in effect until D.V. was detained almost nine months later on September 16,
2014.5 A jurisdictional hearing was scheduled for October 7, 2014.

B. Jurisdiction and Disposition

When father was interviewed at the DCFS office on September 25, 2014, he
denied that he abused drugs or alcohol and denied ever seeing mother smoke marijuana
or cocaine. Father was not concerned that mother drank “a couple beers.”
Father and mother both appeared on October 7. Father filed a Notification of
Mailing Address which listed the Towne Avenue address as his address. Mother’s
Notification of Mailing Address identified the DPSS office as her address, but gave
father’s telephone number. Father was declared D.V.’s presumed father. Father asked
that D.V. be immediately returned to him or, alternatively, for a pre-release investigation
(PRI) report. The matter was continued to October 15, 2014 for a PRI hearing as to
father and to December 11, 2014 for adjudication.
The PRI report revealed that father had a 2010 domestic violence arrest (father had
since completed domestic violence counseling) and a history of arrests and convictions
related to possession of marijuana for sale. The report described father’s home as “very
neat and clean and the father has lived in the home for one year and four months. The

5 D.V. was detained when mother and father brought D.V. to a juvenile court
hearing regarding one of D.V.’s half-siblings.

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home has all accommodations (beds and closet space) for the child. The father has
everything he needs for the baby including a crib, baby tub, diapers, toys, car seat and
plenty of clothing. [D.V.] will share a room with his father as it is a small one bedroom
home. The father reports no other persons reside in the home.” But the veracity of
father’s statement that he lived alone was undermined when the social worker called
father not long after she left the house and mother answered the phone. DCFS
recommended against placing D.V. with father because father failed to protect D.V. when
D.V. was living with father and it appeared mother was still living in father’s home. The
juvenile court ordered D.V. to remain detained pending the jurisdiction hearing on
December 11, 2014.
Following a physical examination on December 3, 2014, D.V. was diagnosed with
three conditions: (1) fetal alcohol syndrome (FAS), (2) developmental delay; and
(3) failure to thrive. The doctor attributed both the developmental delay and the failure to
thrive in part to the FAS. Additionally, the failure to thrive was caused by insufficient
nutrition while in the custody of the biological parents. As a result of these conditions,
D.V. already demonstrated delays in language, fine motor skills, swallowing and chewing
“and likely in cognitive areas. This is consistent with diagnosis of FAS and
microcephaly (organic brain damage).” The doctor believed D.V. “will likely have
serious developmental disabilities and special needs and need to have parents able to
dedicate themselves to his care. Will need stable, nurturing home focused on his
development and care.” DCFS reported these findings to the juvenile court in a Last
Minute Information filed on December 11, 2015, the day of the jurisdiction hearing.
There was no testimony at the hearing. In addition to the Last Minute Information
and medical report, the juvenile court received into evidence the detention, jurisdiction
and PRI reports and attachments. Based on this evidence, the court sustained the petition,
finding D.V. to be a dependent child pursuant to subdivisions (b) and (j) of section 300
based on mother’s substance abuse and failure to reunify with the half-siblings.
Regarding disposition, father argued D.V. should be returned to father because
father was nonoffending, was unaware of the protective custody warrant and DCFS had

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made no effort to contact him even after mother told the social worker father’s name
during the telephone call on December 20, 2013. DCFS and counsel for D.V. opposed
returning D.V. to father’s custody. In addition to evidence that mother was still living
with father, DCFS argued that whether or not a supplemental petition was filed alleging
father had failed to protect D.V., the medical report established that father had in fact
done so and for that reason D.V. could not be safely returned to father’s custody.
The juvenile court found by clear and convincing evidence that removal was the
only reasonable means to protect D.V.’s physical and emotional health. Recognizing that
father was “nonoffending” the court observed that father “is going to have to do some
programming to show the court he can follow the court orders since the parents failed to
comply with the court’s earlier orders.” The disposition order gave father monitored
visits (later changed to unmonitored) and directed him to participate in random drug
testing and individual counseling to address “co-dependency, substance abuse awareness,
child protection.” DCFS was given discretion to liberalize father’s visits.
Father timely appealed.

DISCUSSION

A. Sufficient Evidence Supports the Removal Order
Father contends the finding that D.V. could not be safely returned to his custody
was not supported by substantial evidence. He argues there was no evidence that return
to father posed any risk of detriment to D.V. and no evidence that there were no
reasonable means to protect D.V. other than removal. More specifically, father argues
there was no evidence he knew about the protective custody warrant before D.V. was
detained and he should not be held responsible for D.V.’s failure to thrive while in
father’s custody. We find no error.
We review an order removing a child from parental custody for substantial
evidence. (A.R., supra, 235 Cal.App.4th at p. 1115.) Substantial evidence is evidence
which is reasonable, credible, and of solid value. “ ‘The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in light of the whole record.’

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[Citation.]” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.) The party
challenging the juvenile court’s findings and orders bears the burden of showing that they
are not supported by substantial evidence. (In re F.S. (2016) 243 Cal.App.4th 799, 812.)
Father has failed to meet that burden.
Because D.V. was living with father at the time the petition was filed in December
2013, removal is governed by section 361, subdivision (c).6 In relevant part, that
subdivision reads: “A dependent child shall not be taken from the physical custody of his
or her parents or guardian or guardians with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and convincing evidence of”
one of five specified circumstances. (§ 361, subd. (c).) Relevant here is the circumstance
that there “is or would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361,
subd. (c)(1).) The focus of the statute is on averting future harm but a parent’s past
conduct is relevant to the decision. (In re F.S., supra, 243 Cal.App.4th at p. 813.) And a
parent’s “documented untruthfulness with DCFS in the past,” gives the juvenile court
reason to reject a parent’s assurances that the child is not at future risk. (Id. at p. 815.)
“ ‘Removal “is a last resort, to be considered only when the child would be in
danger if allowed to reside with the parent.” [Citation.]’ [Citation.]” (A.R., supra,
235 Cal.App.4th at p. 1115.) Section 361, subdivision (c)(1) identifies two reasonable
means to avoid removal: (A) removing an offending parent from the home or (B)
allowing the “nonoffending parent or guardian to retain custody as long as that parent or
guardian presents a plan acceptable to the court demonstrating that he or she will be able
to protect the child from future harm.” (§ 361, subd. (c)(1)(A), (B).) The term
“nonoffending parent” refers to a custodial parent who is not the perpetrator of any child
abuse or neglect. (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505.)

6 Placement with a non-custodial parent is governed by section 361.2.

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 Here, there was substantial evidence that return to father on December 11, 2015,
would place D.V. at risk of future detriment and there was no reasonable means to protect
D.V. other than removal. These facts were undisputed: (1) D.V. lived with father from
the time he was born until he was detained about one year later; and (2) D.V. suffered
from failure to thrive attributable in part to insufficient nutrition while in father’s custody.
There was no evidence that father obtained any medical help for D.V. while D.V. was in
his custody, including the usual “well baby” checkups. Father’s past failure to properly
care for D.V. while D.V. was in his custody is evidence from which it can reasonably be
inferred that D.V. could not safely be returned to father’s custody. The juvenile court
could reasonably conclude that father’s completion of two individual counseling sessions
and six sessions of a parenting class was not enough to assure D.V.’s safety in father’s
custody.
That father was “nonoffending,” in that dependency jurisdiction was not based on
any conduct by father, also does not compel a contrary result. Section 361,
subdivision (c)(1)(A) and (B) apply only to nonoffending parents. The fact that a
custodial parent is nonoffending is a necessary prerequisite to a finding under that statute
but it does not automatically follow that a child of a nonoffending parent may safely be
returned to that parent. There must also be a showing that either the offending parent can
be removed from the home (§ 361, subd. (c)(1)(A)) or the nonoffending parent has “a
plan acceptable to the court demonstrating that he or she will be able to protect the child
from future harm.” (§ 361, subd. (c)(1)(B).) There was no such showing. From the
evidence that father told the PRI investigator that he lived alone but mother answered
father’s telephone later that same day, the juvenile court could reasonably conclude that
mother was living with father and father was not being truthful with the PRI investigator.
Thus, the court had reason to believe that mother could not be removed from the home.
There was also no evidence that father had a plan to protect D.V. from mother in the
future.
Father’s argument that he did not know about the protective custody warrant until
D.V. was detained is not persuasive. Even assuming father did not know about the

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warrant, there was substantial evidence from which the juvenile court could conclude
father was helping mother to evade DCFS. Specifically, it is reasonable to infer that
father was the man social worker Maresca spoke to at father’s home on December 20,
2013, and that father lied when he told Maresca that he did not know mother. Father’s
home was one of several locations to which notice of the February 5, 2014 jurisdiction
hearing was mailed to mother.
B. No Abuse of Discretion to Order Drug Testing and Drug Program Participation
Father contends it was an abuse of discretion for the juvenile court to include
orders that father drug test and participate in a drug treatment program in the disposition
order. He argues there was no evidence that father used or abused drugs or alcohol. We
disagree.
The juvenile’s court’s exercise of discretion to create a dispositional order that will
best serve and protect the child’s interests will not be reversed in the absence of a clear
abuse of that discretion. (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) In
reviewing a disposition order for abuse of discretion, we “ ‘ “must consider all the
evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light
most favorable to the trial court’s ruling. [Citation.] The precise test is whether any
rational trier of fact could conclude that the trial court order advanced the best interests of
the child.” ’ [Citation.]” (In re Natalie A. (2015) 243 Cal.App.4th 178, 186-187 (Natalie
A.).)
In fashioning a dispositional order, the juvenile court is not limited to addressing
the problems described in the sustained section 300 petition. It is not even necessary for
there to be a jurisdictional finding as to the particular parent upon whom the court
imposes a dispositional order. (In re Briana V., supra, 236 Cal.App.4th at p. 311.)
Natalie A. offers guidance. In that case, dependency jurisdiction over three
children, all under six years of age, was based on the mother’s substance abuse; all three
were returned to the father’s custody. Based on two incidents in which father left the
children without adult supervision, the juvenile court sustained a supplemental petition
alleging the father’s current marijuana abuse rendered him incapable of caring for the

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children. On appeal, the father challenged the sufficiency of the evidence to support
jurisdiction arguing his occasional use of marijuana did not constitute “abuse” and that it
was an abuse of discretion to order him to drug test and complete a drug treatment
program. The appellate court affirmed the jurisdiction order, reasoning “the juvenile
court could reasonably have inferred a nexus between father’s drug use and his failure to
ensure his young children were safely cared for and supervised.” (Natalie A., supra,
243 Cal.App.4th at pp. 185-186.) It also affirmed the disposition order reasoning the
“evidence established that father’s marijuana abuse posed a substantial risk to the
children in light of their very young ages.” (Id. at p. 187.)
Like the order in Natalie A., the dispositional order in this case was supported by
the evidence and was rationally tailored to protect D.V.’s best interest. General neglect,
evidenced by the failure to thrive diagnosis, is the condition that led to D.V.’s
dependency. The failure to thrive was attributable to insufficient nutrition. Although the
petition did not name father, the evidence showed that D.V. was living with father during
the relevant time period. A witness told the social worker that father and mother were
both current substance abusers. Although father denied the charge, it is corroborated by
father’s drug-related criminal history. On this record, the juvenile court could reasonably
have inferred that father had a substance abuse problem and that there was a nexus
between father’s substance abuse and his failure to ensure that D.V. was properly cared
for. It was not an abuse of discretion for the juvenile court to conclude that drug testing
and drug treatment programs for father were reasonably necessary to eliminate the
conditions that led to D.V.’s dependency.
DISPOSITION
The disposition order is affirmed.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J. GRIMES, J.

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