Filed 9/30/20 In re Ad.C. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re Ad.C., a Person Coming B304326
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19LJJP00817)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Stephanie M. Davis, Judge Pro Tempore. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal,
for Defendant and Appellant A.C.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Kimberly Roura, Deputy County Counsel, for
Plaintiff and Respondent.
The Los Angeles County Department of Children and Family
Services (DCFS) filed a dependency petition seeking juvenile court
jurisdiction over Ad.C., the son of E.S. (Mother), not a party to this
appeal, and A.C. (Father), after learning Father had been convicted
of felony child endangerment for driving while severely intoxicated
with then two-year-old Ad.C. in the car. Father contends this
was a one-time incident that is insufficient to support the juvenile
court’s finding that Ad.C. would be at risk of serious physical
harm, as described by Welfare and Institutions Code1 section 300,
subdivision (b)(1), were he to remain in Father’s care. As of the
date of the jurisdictional hearing, Father had been participating
in all services required by the criminal court, was compliant with
all DCFS requests and requirements, and recognized he had made
a “stupid mistake.” Father continued to maintain, however, that
on the night in question, he drank only four to five beers over the
course of the entire afternoon, a claim incompatible with the fact
that his blood-alcohol content (BAC) percentage late that same
evening was 0.19—more than twice the legal limit.
We consider whether substantial evidence supports the
juvenile court’s order sustaining the petition. For the reasons
set forth below, we conclude that it does. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Family Background
Mother and Father have been together for approximately
six years. Mother, Father, and their son Ad.C. (born in February
2017) live together in the home of Ad.C.’s paternal grandparents
and paternal uncles. Mother cares for Ad.C. full time, and Father
1 Subsequent statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
2
works in construction to provide for the family. The family has no
DCFS history prior to the current proceedings.
B. Incident Triggering DCFS Involvement
The family came to the attention of DCFS when Father
was arrested on September 2, 2019 while driving back from a
rodeo he attended with his cousin and then two-year-old Ad.C.
Around 1:00 a.m. that night, police observed Father’s vehicle
swerving into the lane for opposing traffic at 45 miles per hour
with a flat front tire, the rim of the tire and the exhaust pipe both
dragging on the ground and emitting sparks. When the police
stopped Father’s vehicle, they found Father in the driver’s seat,
Father’s cousin in the passenger seat, and Ad.C. in his car seat
crying. Both Father and his cousin appeared to be intoxicated.
Father smelled of alcohol, had slurred speech, red eyes, could not
follow simple directions, and could not stand up straight without
assistance. Police also observed three open containers of alcohol on
the floorboards in the front seat. Father denied being intoxicated,
refused a field sobriety test, and stated he was not aware his vehicle
had a flat tire. The police report notes that the fresh damage
to Father’s vehicle was consistent with a traffic collision.
After Father was taken into custody later that night, law
enforcement determined his BAC to be 0.19, over twice the legal
limit of 0.08. The police alerted DCFS, contacted Mother, and
released Ad.C. to Mother’s care.
Approximately a week after Father’s arrest, a social worker
interviewed both parents. Mother denied Father had ever driven
under the influence with Ad.C., and reported that he drank alcohol
only socially. Father likewise reported he drank alcohol only
socially, and denied having an alcohol problem. He acknowledged
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drinking a total of four to five beers at the rodeo, and denied feeling
intoxicated when he chose to drive home that night.
As a result of the drunk driving incident, Father was
convicted on October 8, 2019 of misdemeanor driving under
the influence (DUI) and felony child endangerment. Father was
sentenced to four years of probation. As a part of his sentence,
he was required to: complete a three-month, licensed first-offender
alcohol and drug education and counseling program; complete a one
year parenting program; abstain from alcohol; complete the hospital
and morgue program; and complete the victim impact program of
Mothers Against Drunk Driving (MADD).2 Father was initially
required to wear an alcohol monitoring bracelet as well, but the
criminal court permitted him to remove it around October 28, 2019.
C. Section 300 Petition and Assessment of Voluntary
Supervision Option
On November 13, 2019, DCFS filed a section 300 petition
alleging Ad.C. was at risk of suffering serious physical harm as a
result of Father’s drunk driving incident.3 The juvenile court found
2 The court further ordered Father to complete a 52-week
domestic violence treatment program, apparently in error, which
was ultimately suspended.
3 Specifically, the petition alleged a single basis for
jurisdiction under section 300, subdivision (b) as follows:
“On 09/02/2019, . . . [Ad.C.’s] father, [A.C.,] placed the child in a
detrimental and endangering situation by driving a vehicle while
under the influence of alcohol while the child was a passenger in
the vehicle. On 09/02/2019, the father was arrested for [d]riving
under the [i]nfluence of [a]lcohol with a BAC of 0.19. Such a
detrimental and endangering situation established by the father
endangers the child’s physical health and safety and creates a
4
a prima facie case for the petition and permitted Ad.C. to remain
released to his parents on the condition that Father comply with the
services ordered by the criminal court. The court further directed
DCFS to assess the possibility of a “[section] 301 contract”—a
voluntary agreement between DCFS and the parents that they
participate in services for a limited period of time in lieu of
continuing dependency jurisdiction.4 (See § 301.)
DCFS ultimately advised the court it was not in agreement
with a section 301 contract, citing the substantial risk created by
the events described in the petition and Ad.C.’s being “of a young
and vulnerable age” and “requir[ing] constant supervision and
care.”
D. Jurisdiction Report
In advance of the adjudication hearing, DCFS reported that
Father’s criminal history included only one conviction aside from
those associated with the drunk driving incident underlying the
petition: a conviction for selling alcohol to an underage person in
the summer of 2018. Father explained that this conviction resulted
detrimental home environment, placing the child at risk of serious
physical harm, damage, danger and death.”
4 Section 301 provides in pertinent part that when DCFS
“determines that a child is within the jurisdiction of the juvenile
court . . . the social worker may, . . . subsequent to dismissal of
a petition already filed, and with consent of the child’s parent or
guardian, undertake a program of supervision of the child” with the
goal of “ameliorat[ing] the situation that brings the child within . . .
the jurisdiction of Section 300 by providing or arranging to contract
for all appropriate child welfare services pursuant to Sections 16506
and 16507.3, within the time periods specified in those sections.”
(§ 301; see also § 16507.3 [limiting time frame for voluntary family
maintenance services to six months in most cases].)
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from his working at a liquor store and having not paid sufficient
attention when checking an underage customer’s identification.
Father initially entered a conditional plea, under which the case
was to be dismissed if Father performed 50 hours of community
service and obeyed all laws; if he failed to do so, the court would
impose a sentence of 24 months probation and a fine. In February
2019, the criminal court sentenced him to 24 months of probation
and a fine, suggesting Father did not complete his community
service.5
The jurisdiction report reflected that Father was compliant
with the service requirements associated with his drunk driving
conviction. He had completed the MADD victim impact program,
was participating in the parenting class and alcohol program, and
was enrolled to participate in the Hospital and Morgue program
starting at the next available date. Father reported having found
many of these services helpful. Father said he learned from the
MADD program how a bad decision can change lives and hurt
innocent people, and how this had happened to his family as a
result of his choices. He stated that the parenting class was helpful
for learning how to talk to children. He did not comment on the
alcohol program, which consisted of six classes spread over three
months, three of which he had attended so far.
Father said he would comply with any DCFS services
ordered and would agree to DCFS making unannounced visits
to his home and submit to drug and alcohol testing. The record
reflects that Father has been tested for drugs and alcohol twice
since the incident, each time with negative results.
5 Thatprobation was terminated as a result of the convictions
and sentence related to the September 2019 incident.
6
DCFS reported that Father continued to claim he drank
“[f]our or five” beers “early on in the afternoon” at the rodeo, after
which he ate food. He stated that he could not remember when
he drank his last beer, but that “it wasn’t late.” Father stated that
he felt he “was good to drive” the night of the rodeo, but “that was
my mistake obviously.” Father further denied having ever drunk
excessively (other than on the night in question) and stated he
currently did not drink at all. He acknowledged he had “made a
stupid mistake like I did when I was a teenager when I was young,”
and recognized the negative consequences that choice had had on
his family. Father denied he had been driving on a flat tire, stating
instead that his tire popped just before the police pulled him over.
The report also described a social worker’s visit with Mother
and Ad.C. on December 6, 2019. The worker examined Ad.C., who
appeared to be healthy and bonded with Mother, showing no signs
of injury or abuse. The social worker reported no safety concerns
regarding the family home.
DCFS recommended that the juvenile court sustain the
petition, order the parents to participate in voluntary family
maintenance services pursuant to section 360, subdivision (b), and
terminate the dependency proceedings. (See § 360, subd. (b) [“If
the court finds that the child is a person described by Section 300,
it may, without adjudicating the child a dependent child of the
court, order that services be provided to keep the family together
and place the child and the child’s parent or guardian under the
supervision of the social worker for a time period consistent with
Section 301.”].)
DCFS recommended these services include, in addition to
Father’s criminal court-ordered programs, an outpatient alcohol
program, an Alcoholics Anonymous 12-step group, drug and alcohol
testing, and “[p]arenting [e]ducation.”
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E. Adjudication and Disposition Hearing
At the adjudication portion of the January 13, 2020 hearing,
the court sustained the petition as written, and expressly found
Mother to be non-offending.
At the disposition portion of the hearing, the court considered
DCFS’s recommendation to proceed with voluntary services under
section 360, subdivision (b). The court acknowledged Father “ha[d]
taken responsibility for his actions and . . . ha[d] been participating
in services” ordered in criminal proceedings. “[B]ecause of the
progress of the father and [because] the mother is non-offending,”
the court found informal services, as opposed to continuing
dependency proceedings, were appropriate. The court understood
DCFS’s recommendation as “recogniz[ing] how well the father ha[d]
done” and seeking to supervise him “as an incentive to continue . . .
in these programs.” The court noted that “[t]here is a substantial
risk. Especially if the father does not complete these programs.
That’s what will make it a substantial risk.” The court therefore
agreed that it was necessary for DCFS to “keep an eye on [Father]
and . . . make sure that he does complete the programs,” and found
“[p]ursuant to [section] 360[, subdivision] (b)” that “[Ad.C.] is a
person described under [section] 300” and ordered Ad.C., Mother,
and Father “placed under the supervision of [DCFS] for a time
period consistent with . . . section 301.” The court further ordered
DCFS to “provide services to the family to help the family remain
together.”
Father filed a timely notice of appeal from the court’s
“[January 13, 2020] jurisdictional findings and all other orders of
the court.”
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DISCUSSION
Father argues substantial evidence does not support the
juvenile court’s order sustaining the petition, and that we should
therefore reverse both that order and the dispositional6 order
requiring DCFS supervision under section 360, subdivision (b).
(See In re Heather A. (1996) 52 Cal.App.4th 183, 193 [jurisdictional
findings reviewed for substantial evidence].) Specifically, Father
argues that the petition was based on an isolated drunk driving
incident which, although serious, is alone insufficient to establish a
significant risk of harm to Ad.C. According to Father, the evidence
suggests neither that Father had an ongoing substance abuse
problem, nor any other facts making it likely Father would repeat
his “stupid mistake.” We disagree.
In order to sustain a petition under section 300, a significant
risk to the child must exist “ ‘at the time of the jurisdiction
hearing. . . .’ [Citation.]” (In re David M. (2005) 134 Cal.App.4th
822, 829, quoting In re Savannah M. (2005) 131 Cal.App.4th
1387, 1396; see In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [“the
question under section 300 is whether circumstances at the time
of the hearing subject the minor to the defined risk of harm”].)
Although the juvenile court may base a finding of such risk on
a parent’s harmful conduct in the past, there must be some non-
speculative basis for concluding that such past conduct is likely
to continue in the future. (In re Nicholas B. (2001) 88 Cal.App.4th
1126, 1135 [if the “incident [of parental misconduct] was not likely
to recur, then the petition failed to allege facts to demonstrate
present or future risk of physical harm”]; In re Ricardo L. (2003)
6 Section360, subdivision (b) orders for informal supervision
are construed as dispositional orders. (In re Adam D. (2010) 183
Cal.App.4th 1250, 1260.)
9
109 Cal.App.4th 552, 565 [“[P]revious acts of neglect, standing
alone, do not establish a substantial risk of harm; there must
be some reason beyond mere speculation to believe they will
reoccur”].) Even “a single episode of endangering conduct” may
support a current risk, if the totality of the evidence suggests the
incident is likely to reoccur. (In re J.N. (2010) 181 Cal.App.4th
1010, 1025; see, e.g., In re M.R. (2017) 8 Cal.App.5th 101, 107
[single drunk driving incident sufficient for jurisdictional finding].)
In determining whether this is the case, “a juvenile court should
consider the nature of the [past] conduct and all surrounding
circumstances,” as well as “evidence of the parent’s current
understanding of and attitude toward the past conduct . . . or
participation in educational programs, or other steps taken,
by the parent to address the problematic conduct in the interim,
and probationary support and supervision already being provided
through the criminal courts that would help a parent avoid a
recurrence of such an incident.” (In re J.N., supra, 181 Cal.App.5th
at pp. 1025–1026.)
Two cases are particularly instructive here, as they
both involve jurisdictional allegations based on a single instance
of drunk driving: In re J.N., supra, 181 Cal.App.4th 1010 and
In re M.R., supra, 8 Cal.App.5th 101. In re J.N. involved a father
who drove with a BAC of 0.20, collided with another car, and
ultimately crashed into a light pole, all with his three children—
ages four years, eight years, and 14 months—in the car. (In re
J.N., supra, 181 Cal.App.4th at pp. 1014–1016.) The mother was
in the car as well and had a BAC of 0.11. (Id. at p. 1017.) One of
the children had unfastened her car seat, and was propelled out
of her seat during the collision, sustaining injuries to her head that
required stitches. (Id. at pp. 1016–1017.) The father attempted
to flee the scene of the collision with one of the children, and both
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parents were aggressive and uncooperative with police that
evening. (Id. at pp. 1015–1016.) As a result of the incident, the
father was charged with child endangerment and several other
criminal violations. (Id. at p. 1019 & fn. 7.) The eldest child told
social workers that both parents very rarely drank (id. at p. 1017),
and both the father and the mother denied having any substance
abuse problems. (Id. at p. 1020.) Both parents acknowledged,
however, that they had drunk to excess on the night of the accident:
The mother told DCFS that “[s]he could not remember how much
beer she drank that night but acknowledged that she had been
drinking beer like she was drinking soda” (id. at pp. 1017–1018),
and the father “admitted that, on the night of the accident, [the]
mother and [the father] had about nine beers during dinner.”
(Id. at p. 1018) The father “recognized that he had made ‘a bad
decision to drive,’ which he regret[ted]” and “appeared cooperative
and remorseful.” (Ibid.)
On these facts, the Court of Appeal concluded that, “[d]espite
the profound seriousness of the parents’ endangering conduct . . .
there was no evidence from which to infer there is a substantial
risk such behavior will recur.” (In re J.N., supra, 181 Cal.App.4th
at p. 1026.) In reaching this conclusion, the appellate court noted
the lack of evidence suggesting that the mother or the father had a
substance abuse problem, and the lack of any other non-speculative
basis on which to conclude that the parents’ judgment or parenting
skills were so deficient that either was unable to adequately
supervise and protect the children. (Ibid.) The court acknowledged
“a valid concern that . . . [the] mother seemed to minimize her and
her husband’s alcohol use and the ramifications of alcohol use,” but
found this to be an insufficient basis for the jurisdictional findings,
given that “the criminal court had ordered [the] mother to complete
substance abuse and parenting programs and placed her under
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probation supervision[,] and [s]ignificantly, both parents were
remorseful, loving, and indicated that they were willing to learn
from their mistakes.” (Ibid.)
In re M.R. involved a mother convicted of driving under
the influence after she was caught driving 83 miles per hour with
a BAC of 0.14 and her four-year-old and 21-month-old children in
the car. (In re M.R., supra, 8 Cal.App.5th at p. 103.) The father
was in the car as well. Both parents consistently maintained that
the mother had “ ‘had a couple of beers’ ” that evening, but that
she “ ‘wasn’t drunk,’ ” and that she did not have a drinking problem.
(Id. at p. 105.) The mother further denied a documented incident
of domestic violence with the father several years prior, which had
involved alcohol. (Ibid.) Although the parents initially expressed a
willingness to cooperate with DCFS in order to keep their children,
they later “claimed [DCFS] involvement with the family was
unwarranted.” (Ibid.) The criminal court ordered the mother to
participate in parenting classes and an alcohol and drug education
and counseling program. The mother completed neither, and had
only taken three parenting classes. (Id. at p. 106.) The mother
had also taken three drug and alcohol tests as of the jurisdictional
hearing, all of which were negative. (Id. at p. 105.)
The opinion in In re M.R. distinguished In re J.N. by
noting that the parents in In re M.R.—unlike those in In re J.N.—
(1) “continued to minimize the seriousness of the incident during
the dependency proceedings” and (2) had not “taken any significant
steps to participate in educational programs concerning the
problematic use of alcohol that gave rise to the substantial risk to
the children’s safety.” (In re M.R., supra, 8 Cal.App.5th at p. 107.)
The parents’ minimization of the incident—specifically, the mother
“maintaining she had consumed just one or two beers despite
evidence of significant intoxication”—appears to have been the most
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significant factor for the appellate court in In re M.R., which
explained that, “unlike [In re] J.N., the parents’ minimization
of [the] [m]other’s conduct . . . did call into question their general
judgment.” (Id. at p. 109, italics added.) The court viewed this
as “[e]xacerbat[ed]” by “the fact that the parents’ acceptance
of responsibility seemed to worsen, rather than improve, as
dependency proceedings progressed.” (Ibid.) Finally, the In re
M.R. court noted the mother’s being “subject to criminal court
supervision” did not support the mother’s appeal, given her lack
of effort to participate in the services ordered as part of that
supervision. (Id. at pp. 109–110.) The court also noted that the
past “alcohol-related episode of domestic violence,” although not
suggesting an ongoing substance abuse problem, provided “further
reason why the court could justifiably conclude there remained
a risk to the children.” (Id. at p. 110.) On these bases, the
court found substantial evidence supported the juvenile court’s
dispositional order under section 360, subdivision (b), requiring
DCFS supervision for the family. (Id. at p. 107.)
Considering the facts before us against a backdrop of
these two decisions, “draw[ing] all reasonable inferences from
the evidence” in favor of the juvenile court’s order, and “review[ing]
the record in the light most favorable to the court’s determinations”
(In re M.R., supra, 8 Cal.App.5th at p. 108), we conclude that
substantial evidence supports the juvenile court’s order here as
well. As did the Court of Appeal in In re M.R., we find it significant
that Father continues to deny he drank to excess—even in the face
of evidence proving otherwise. Specifically, Father continues to
claim that he only had five beers with food over the course of the
afternoon—something virtually impossible, given his BAC of 0.20
at 1:00 a.m. later that night. The juvenile court could reasonably
infer from this juxtaposition that Father is either in denial or lying
13
about choices that placed his young son in extreme danger, and
that, unlike the parents in In re J.N., Father’s “general judgment”
and “understanding of the risks of inappropriate alcohol use [are]
so materially deficient that . . . [he] is unable ‘to adequately
supervise or protect’ ” his child. (In re J.N., supra, 181 Cal.App.4th
at p. 1026, quoting § 300, subd. (b)(1).) This inference is
strengthened by the extreme level of intoxication involved and the
way Father was driving—on the wrong side of the road with sparks
flying from a vehicle with only three functioning tires—which was
so egregious it led to a felony conviction for child endangerment.
Father correctly notes that, unlike the parents in In re M.R,
Father appears to have taken significant steps towards completing
the programs ordered by the criminal court, and has exhibited
a positive attitude toward them. He also does not have any
previous instances of misconduct related to intoxication, as did
the parents in In re M.R. But in reviewing for substantial evidence,
“we do not consider whether there is evidence from which the
juvenile court could have drawn a different conclusion,” but rather
“whether there is substantial evidence to support the conclusion
that the court did draw.” (In re M.R., supra, 8 Cal.App.5th at
p. 108; In re Katrina C. (1988) 201 Cal.App.3d 540, 547 [“the power
of an appellate court asked to assess the sufficiency of the evidence
begins and ends with a determination as to whether or not there
is any substantial evidence, whether or not contradicted, which
will support the conclusion of the trier of fact”], italics added.)
As noted, Father’s implausible minimization of his alcohol intake
on the evening in question provides such evidence. Moreover,
the court could have discounted the significance of Father’s
efforts in light of his apparent failure to complete the community
service requirement of his previous conviction, and based thereon
concluded that continuing supervision of some type was reasonably
14
necessary to assure Father continues to participate in his alcohol
counseling and other programs. Thus, in sustaining the petition
and ordering DCFS supervision pursuant to section 360,
subdivision (b), “the juvenile court carefully calibrated its
jurisdictional finding[ ] and dispositional order to the facts before
it.” (In re M.R., supra, 8 Cal.App.5th at pp. 107, 110.) We find no
reversible error in this decision, and therefore affirm.
DISPOSITION
The January 13, 2020 order of the juvenile court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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