In re Hanna F. CA2/2 ( 2021 )

Filed 4/5/21 In re Hanna F. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re Hanna F. et al., Persons Coming B306708
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 18CCJP03887)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent.
v.
S.F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Annabelle G. Cortez, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel for Plaintiff and Respondent.
Saulo F. (father) appeals from the juvenile court’s
jurisdictional findings and removal order concerning his children
Hanna F. (born September 2015) and Rachelle F. (born October
2016). The children had previously been in the custody of H.B.
(mother), thus father was a noncustodial parent at the time of the
removal.1 In making its removal order, the juvenile court relied
on Welfare and Institutions Code section 361, subdivisions (a)(1),
(c), and (d), and section 362, subdivision (a).2 Father argues that
substantial evidence does not support the juvenile court’s finding
that, as a noncustodial parent, father caused the children serious
harm or put them at risk of suffering serious harm. Father
further argues that the juvenile court improperly assessed
removal of Hanna and Rachelle from his custody under section
361, subdivision (d).
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The family’s prior child welfare history
Father filed a missing person report for Hanna in May
2016, reporting concerns for the child’s safety with mother, who
had mental health issues. In July 2016, the Los Angeles County
Department of Children and Family Services (DCFS) was advised
that mother was arrested while on probation for assault with a
deadly weapon. At the time of mother’s arrest one year old
Hanna was released to father.
Mother gave birth to Rachelle while incarcerated. Mother
was transferred to Metropolitan State Hospital because she was
found incompetent to stand trial.
1 Mother is not a party to this appeal.
2 All further statutory references are to the Welfare and
Institutions Code, unless otherwise noted.
2
In November 2016, DCFS filed a petition on behalf of
Hanna and Rachelle pursuant to section 300, subdivision (b),
alleging that they were endangered by mother’s mental health
issues.
In April 2017, the juvenile court assumed jurisdiction over
the children, and in May 2017, the children were released to
father, who was found to be non-offending.3
In May 2018, DCFS received a referral alleging that father
was neglecting the children and might be using drugs. Father
was said to be acting “crazy.” He would drink when he got his
welfare checks and hide alcohol in the home. Father would be
awake all night and sleep during the day when he was supposed
to be caring for the children. In August 2017, father had tried to
leave home with the children while he was drunk. The referral
was substantiated, and the children were detained from father.
In June 2018, a petition was filed on behalf of the children
alleging that they were endangered by mother’s history of mental
and emotional problems and failure to seek treatment, and
because father used methamphetamine, amphetamine, and
alcohol and had cared for the children while under the influence
of alcohol.
The juvenile court sustained the petition against both
parents and in August 2018, the court ordered that the parents
receive family reunification services. Father was ordered to
complete a full drug and alcohol program with aftercare, random
and on-demand drug testing weekly, and a parenting program.
3 Father had been found to be the presumed father of both
Hanna and Rachelle.
3
In February 2019, the juvenile court ordered that the
children be placed in the home of mother and that mother receive
family maintenance services.
In May 2019, father was dismissed from Clinica Romero
Substance Abuse Program due to inconsistent attendance.
Father also failed to appear for 10 of 11 drug tests between
February and July 2019. Father had completed a parenting
program, and was visiting twice weekly with the children. His
visits appeared to be appropriate, although he displayed a lack of
parenting skills.
On August 26, 2019, the juvenile court terminated
jurisdiction with a custody order granting mother sole legal and
physical custody of the children and granting father monitored
visitation.
Referral and detention in the present matter
On November 2, 2019, DCFS received a referral alleging
that mother left the children at a church providing food for the
homeless. A DCFS social worker responded to the police station
where the children were being held. The children did not know
their last name, did not know their mother’s name, and did not
know their address. The children were social and appeared
happy and healthy. An officer found a piece of paper with
mother’s identifying information in the children’s stroller. He
was unsuccessful in his efforts to locate mother at both residences
associated with mother.
DCFS was unable to reach either parent at their last
known telephone numbers.
On November 5, 2019, DCFS filed a section 300 petition on
behalf of the children, alleging that on November 2, 2019, mother
had left them alone at a church without making a plan for their
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ongoing supervision. The children were dirty with dried feces
and urine on their bodies. DCFS alleged that mother had a
history of mental and emotional problems, which rendered her
incapable of providing regular care and supervision for the
children.
At the detention hearing the next day, only father was
present. The court detained the children from the parents and
ordered monitored visits for father. The court ordered DCFS to
assess father’s fiancé.
Jurisdiction/disposition
In a jurisdiction/disposition report dated January 14, 2020,
DCFS reported that mother’s whereabouts remained unknown.
A DCFS social worker interviewed father by telephone on
January 2, 2020. Father had been concerned about the children
being in mother’s care, as she made strange statements and
appeared unstable. Father had been having monitored visits
with the children, but the visits stopped in October 2019 because
mother would not respond to father’s telephone calls. On
October 28, 2019, father filed a concealment report against
mother because mother was in violation of a court order allowing
him to see the children three times a week for three hours.
Father wanted custody of the children. He was engaged
and working full time. A December 2019 letter showed father
had enrolled in substance use disorder outpatient treatment at
Clinica Romero in November 2019. Father submitted two
negative drug tests in December 2019. A January 2020 letter
reported that father was attending the program, meeting with his
counselor, and testing weekly. The letter stated that father was
“exhibiting abstinence at this time and cognitively is in early
recovery to bring awareness to his Substance Use Disorder.”
5
Following their most recent detention, father was initially
consistent with his visitation of the children. However, after the
first month father’s visitation became inconsistent.
First amended petition, filed February 21, 2020
The first amended petition alleged an additional count
under section 300, subdivision (b), that the children were at risk
due to father’s history of substance abuse; failure to comply with
the juvenile court’s previous dependency orders; and failure to
reunify with the children.
Additional reports
In a last minute information for the court filed on February
21, 2020, DCFS reported that mother’s whereabouts remained
unknown. The children’s maternal grandfather expressed
interest in caring for the children.
In a supplemental report filed June 22, 2020, DCFS
reported that the children had been placed in the home of
maternal grandfather. Mother’s whereabouts remained
unknown.
Father was interviewed by telephone on June 5, 2020.
When asked when he last consumed methamphetamine or
amphetamine, father responded, “No comment.” When asked
when he last consumed alcohol, father responded, “No comment.”
Father stated, “That’s a past issue. I’m not using drugs.” When
asked to identify the reasons that the court granted the mother
sole custody and ordered him monitored visits on August 26,
2019, father stated that the court was biased.
Father began participating in the outpatient substance
abuse program offered at Clinico Romero in December 2019.
Father stopped participating in February 2020, as a precaution to
avoid becoming infected with COVID-19. Father stated that he
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was not interested in participating in a substance abuse program
at the time, as he had no need, and the court made no such order.
Father stated that he would like the children released to him at
the next hearing. He was open to the children being placed with
maternal grandfather if he needed to reunify with them.
Father’s fiancé, Y.G., was also interviewed. She had been
living with father for approximately one year and has one child in
common with father, L.F. Y.G. had no knowledge of father
consuming drugs or alcohol. Y.G. was receptive to Hanna and
Rachelle living in the home if the court were to order the children
released to father.
In a letter from the director of Clinica Romero dated
April 17, 2020, it was stated that father enrolled in a six-month
program in November 2019, but was discharged on March 16,
2020, due to his noncompliance with the agency’s rules.
Father’s random drug and alcohol testing results from
December 6, 2019 through May 26, 2019 showed four negative
tests (December 6, 2019; December 12, 2019; February 6, 2019;
and February 21, 2019) and eight missed tests. Three of the
missed tests were excused as the testing site was closed due to
the COVID-19 pandemic.
Father had trouble with visitation during the reporting
period. In April 2020, the children’s previous foster parent
indicated that father wanted to change the visitation schedule.
The foster parent was willing to modify the scheduled if father
would follow it. The caregiver indicated that father was “short-
tempered and easily angered” and expressed concern with
father’s attitude towards the caregivers. Father had been rude to
the caregivers, including stating “fuck you” and ending phone
calls abruptly. The children had overheard these calls, as they
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were on speaker. The caregiver stated that father yells at the
children when they refer to her as “mom,” and regularly spoke
poorly of DCFS. The caregiver felt nervous when father called
and was considering asking that the children be placed in
another home due to the father’s actions.
After the children were placed with maternal grandfather,
father was able to have monitored visits with the children at a
local park. Maternal grandfather reported that the children had
not disclosed any concerns regarding the visits with father, and
showed no signs of distress after the visits. Either maternal
grandfather or maternal uncle would monitor phone calls
between the father and the children. Y.G. was monitoring the
outdoor visits between father and the children, and found that
the visits were going well. Father engaged in age-appropriate
play with the children and provided snacks. The children
appeared happy during the visits.
On June 8, 2020, a DCFS social worker visited father’s
home, a one-bedroom apartment that he shared with his fiancé
and infant daughter, L.F. Father indicated that Hanna and
Rachelle would share the bedroom with L.F. The utilities in the
home were working, and the home was organized and well-kept.
Adjudication/disposition
On June 22, 2020, the juvenile court held a combined
adjudication and disposition hearing. Father was present.
In argument, counsel for the children joined with DCFS in
requesting that the petition be sustained in its entirety, noting
that father had been discharged from a drug treatment program
in May 2019 for failure to attend the program and multiple
missed drug tests. Father continued to miss drug tests and
8
suggested his drug problem was in the past, showing that he had
not acknowledged the problem.
Counsel for father asked that the count against father be
dismissed, arguing that father represented that the drug
program had closed due to the pandemic. Counsel conceded that
father had failed to enroll in the telephonic services offered by the
program. Counsel pointed out that there had been no suspicion
of father being under the influence during the present case.
The juvenile court sustained the petition in its entirety,
noting that father’s previous case ended with father having only
monitored visitation, and that he failed to complete a drug
program or submit to drug tests. The court found sufficient
evidence that father had failed to address the issues that
previously brought the family before the juvenile court and led to
father losing custody of his young children.
The court declared the children dependents, ordered that
they be suitably placed, and ordered that the parents receive
family reunification services. Father was ordered to participate
in a drug and alcohol program with individual counseling, and to
randomly test weekly for drugs and alcohol. The court made
removal findings by clear and convincing evidence pursuant to
sections 361, subdivisions (a)(1), (c), and (d), and section 362,
subdivision (a).4 The court ordered that the parents’ visits be
monitored and ordered DCFS to address liberalizing father’s
visits after he completed four consecutive clean drug tests.
4 Section 362, subdivision (a) allows the juvenile court to
“make any and all reasonable orders for the care, supervision,
[and] custody” of a child who has been adjudged a dependent
child of the court.
9
Notice of appeal
On July 16, 2020, father filed a notice of appeal from the
juvenile court’s jurisdictional and dispositional findings and
orders.
DISCUSSION
I. Justiciability of father’s claims
“As a general rule, a single jurisdictional finding supported
by substantial evidence is sufficient to support jurisdiction and
render moot a challenge to the other findings.” (In re M.W. (2015)
238 Cal.App.4th 1444, 1452.) Thus, “in normal circumstances a
finding against one parent is a finding against both in terms of
the child being adjudged a dependent.” (In re Janet T. (2001)
93 Cal.App.4th 377, 392.) Because father does not challenge the
jurisdictional finding concerning mother’s behavior, we first
address the issue of whether father’s claim is justiciable.
This court retains jurisdiction to consider the merits of a
parent’s appeal from a jurisdictional/dispositional finding if that
finding “‘(1) serves as the basis for dispositional orders that are
also challenged on appeal [citation]; (2) could be prejudicial to the
appellant or could potentially impact the current or future
dependency proceedings [citations]; or (3) “could have other
consequences for [the appellant], beyond jurisdiction” [citation].’”
(In re M.W., supra, 238 Cal.App.4th at p. 1452.)
In this case, father challenges the dispositional order
removing the children from his custody. Further, the
jurisdictional findings against him create the possibility of
prejudice in future family law or dependency proceedings. For
these reasons, we find father’s jurisdictional appeal to be
justiciable.
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II. Applicable law and standard of review
A finding that a child is described by section 300,
subdivision (b)(1) must be supported by evidence that the child
has suffered, or is at substantial risk of suffering, serious
physical harm or illness as a result of the parent’s inability to
protect and supervise the child. (§ 300, subd. (b)(1).) The
juvenile court must make its finding that a child is described by
section 300 by a preponderance of the evidence. (§ 355, subd. (a);
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) When a
juvenile court finds that a child is a person described by section
300, it may order and adjudge the child to be a dependent child of
the court. (§ 360, subd. (a).)
In enacting section 300, the Legislature intended to protect
children who are currently being abused or neglected, “and to
ensure the safety, protection, and physical and emotional well-
being of children who are at risk of that harm.” (§ 300.2.) The
focus of section 300 is on averting harm to the child. (In re T.V.
(2013) 217 Cal.App.4th 126, 133.) A current risk of harm can be
shown by evidence of past conduct, if there is a reason to believe
the conduct will recur. (In re Savannah M. (2005) 131
Cal.App.4th 1387, 1394.)
The Legislature has declared that “[t]he 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.) An
unresolved drug problem can compromise a parent’s ability to
care for his child, and justifies the assumption of jurisdiction. (In
re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
A juvenile court’s jurisdictional findings are reviewed for
substantial evidence. (In re Mariah T. (2008) 159 Cal.App.4th
11428, 438.) Under this standard of review, the entire record is
reviewed in a light most favorable to the findings and conclusions
of the juvenile court and deference is given to the lower court. (In
re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) The appellate
court does “not reweigh the evidence, evaluate the credibility of
witnesses, or resolve evidentiary conflicts.” (In re Dakota H.
(2005) 132 Cal.App.4th 212, 228.) If supported by substantial
evidence, the finding must be upheld, even if substantial evidence
may exist to support a contrary finding. (Ibid.)
III. The evidence supported the juvenile court’s finding
that the children were described by section 300,
subdivision (b)(1) due to father’s conduct
Father acknowledges that a parent’s substance abuse may
put a child at risk of suffering serious harm under section 300,
subdivision (b)(1). Father further acknowledges that he had not
fully complied with the dispositional treatment orders that were
made in the prior juvenile court case. However, father argues
that because he was a noncustodial parent with monitored visits,
he did not place his daughters at a substantial risk of serious
harm due to his prior history of substance abuse.
Father’s argument relies on the court-imposed restrictions
to his parenting to protect the children. This argument only
further advances the court’s jurisdictional finding. Father is not
denying drug problems in the past, which he had not yet resolved
to the satisfaction of the juvenile court. Father’s unresolved drug
problem placed the children at risk of harm. This is particularly
true due to their young age. Hanna and Rachelle were four and
three years old at the time of the proceedings in this case. As
such, they were “children of such tender years that the absence of
adequate supervision and care pose[d] an inherent risk to their
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physical health and safety. [Citations].” (In re Rocco M. (1991)
1 Cal.App.4th 814, 824; see also In re Christopher R. (2014) 225
Cal.App.4th 1210, 1219 [children “six years old or younger at the
time of the jurisdiction hearing” are “children of ‘tender years.’”].)
Father further argues that the jurisdictional finding as to
father was based on prior substance abuse, not current substance
abuse. Father argues that a finding under section 300,
subdivision (b), requires proof of a current risk to the child.
(Citing In re Destiny S. (2012) 210 Cal.App.4th 999, 1004.)
Father argues that a history of substance abuse alone is
insufficient to support dependency jurisdiction under section 300,
subdivision (b)(1). Instead, a jurisdictional finding requires
evidence that the children are currently at substantial risk of
suffering “serious physical harm or illness, as a result of the
failure or inability of [the children’s] parent or guardian to
adequately supervise or protect the child.” (§ 300, subd. (b)(1).)
Father argues that the evidence does not support a finding that
father is a current substance abuser. Father points to evidence
that he enrolled in a drug treatment program, and purportedly
stopped only to limit his exposure to COVID-19. Father points
out that he tested negative for drugs twice in December 2019 and
twice in February 2020, and that three of his missed tests were
excused due to the testing site closure. Further, father points to
the evidence of his fiancé, with whom father lived, who stated
that she had no knowledge of father consuming any drugs or
alcohol.
Contrary evidence in the record supported the juvenile
court’s finding of jurisdiction. While section 300, subdivision
(b)(1) requires proof of current risk to the child, a current risk of
harm can be shown by evidence of past conduct if there is reason
13
to believe such conduct will recur. (In re Savannah M., supra,
131 Cal.App.4th at p. 1394; In re Rocco M., supra, 1 Cal.App.4th
at p. 824.) A court need not wait until a child is seriously harmed
to assume jurisdiction over the child. (In re I.J. (2013) 56 Cal.4th
766, 773.) In this case, there was ample evidence that father’s
unresolved drug issues placed his children at present risk.
Despite enrolling in the same drug treatment program twice,
father never completed the program. The first time, he was
discharged due to inconsistent attendance. When he re-enrolled
during the present case, he claimed that he had stopped
attending as a precautionary measure to avoid exposure to
COVID-19. However, he later declared his unwillingness to
participate in the program because he did not feel the need and it
was not court-ordered. The court later received evidence that the
program had continued services telephonically during the
pandemic but father failed to participate. This led to father being
discharged from the program a second time.
Father’s failure to complete drug treatment put the
children at risk of harm as it was an indication that father had
not resolved his drug use issues. In addition, there was ample
evidence for the court to infer that father’s drug use continued.
While father described his drug use as a “past issue,” he declined
to comment on the last time he used drugs or alcohol. Father’s
failure to identify a date of sobriety supports a reasonable
inference that he continued to abuse substances. Further, father
missed multiple drug tests. When there is evidence that a parent
has missed drug tests, it is reasonable to infer that the parent is
declining to attend because the result will be positive. (In re
Kadence P. (2015) 241 Cal.App.4th 1376, 1384 [“a missed drug
test, without adequate justification, is ‘properly considered the
14
equivalent of a positive test result.’”].) Father had an extensive
history of missed tests, and in the present matter, had missed his
last three tests between March and May 2020.
Substantial evidence supports the juvenile court’s finding
that father’s unresolved drug abuse issues placed the children at
substantial risk of harm. Although father was a noncustodial
parent at the time of these proceedings, the evidence supports the
juvenile court’s decision that jurisdiction was warranted to
continue to protect the children from risk of harm from father’s
drug use.
IV. The juvenile court properly assessed the children’s
removal from father
Section 361, subdivision (c) addresses removal of a
dependent child “from the physical custody of his or her
parents . . . with whom the child resides at the time the petition
was initiated . . . .”
Section 361, subdivision (d) applies to parents with whom
the child did not reside at the time the dependency petition was
filed. The statute prohibits removal from such a parent in the
absence of clear and convincing evidence of a substantial danger
to the physical health, safety, protection, or physical or emotional
well-being of the child, and no reasonable means to protect the
child without removal.
Father contends the juvenile court erred in removing the
children from father’s care pursuant to section 361, subdivisions
(c) and (d). Father appears to argue that these subdivisions do
not apply because father was a noncustodial parent. However,
the juvenile court relied on multiple sections, noting that its
decision applied to both a noncustodial parent and a custodial
parent. The court explicitly cited section 361, subdivision (a), as
15
well as section 361, subdivision (d), which applies to parents with
whom the child does not reside.
Father argues that the juvenile court should have made an
assessment pursuant to section 361.2, which requires that after
removing the child from a custodial parent, the child be placed
with a noncustodial parent unless the court finds that the
placement with that parent would be detrimental to the safety,
protection or physical or emotional well-being of the child.
(Citing In re Andrew S. (2016) 2 Cal.App.5th 536, 545.) While
section 361, subdivision (d) addresses the removal of a child from
a parent with whom the child did not reside, but who still had
custody, father argues, section 361.2 is the proper statute when
removing a child from a noncustodial parent.
The juvenile court made the finding that is required under
section 361.2, stating that “it would be detrimental to return the
children to [father’s] care.” Ample evidence in the record
supported this finding, thus father suffered no prejudice from the
juvenile court’s failure to expressly cite section 361.2. (See In re
J.S. (2011) 196 Cal.App.4th 1069, 1078-1079.) Further, the court
expressly cited section 361, subdivision (d), which requires the
same detriment finding and explicitly applies to parents who like
father, did not reside with his children.5 No error occurred.6
5 Father argues that he suffered prejudice from the court’s
failure to cite section 361.2 because section 361.2 requires that
the detriment finding be made by clear and convincing evidence.
(Citing In re D’Anthony D. (2014) 230 Cal.App.4th 292, 301.)
However, section 361, subdivision (d) also requires the court to
make a removal decision by clear and convincing evidence.
(§ 361, subd. (d).) We must presume that the juvenile court
performed its duty in applying the clear and convincing standard
of proof, even if the juvenile court did not expressly state the
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DISPOSITION
The jurisdictional findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
standard of proof it applied in making its findings. (Evid. Code,
§ 664 [presumption that official duty has been performed.].)
6 Father makes a purely legal argument that the juvenile
court failed to rely on section 361.2. Father does not contend that
there was insufficient evidence to support the juvenile court’s
removal order, therefore we do not discuss this issue.
17