In re Joseph B. CA4/1 ( 2014 )

Filed 1/9/14 In re Joseph B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOSEPH B., a Person Coming Under
the Juvenile Court Law.
D064328
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1118)
Plaintiff and Respondent,
v.
ANGELO B. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant Angelo B.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and
Appellant Jamie M.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Angelo B. and Jamie M., the parents of Joseph B., appeal the juvenile court's
jurisdiction and disposition order under Welfare and Institutions Code section 300,
subdivision (b).1 Jamie and Joseph became homeless after they left Angelo following a
fight between Jamie and Angelo. Joseph was detained in protective custody after Jamie
checked herself in to a mental health facility reporting that she had thoughts of harming
Joseph. The court determined removal was necessary and it would be detrimental to
place Joseph with either parent based upon evidence of mental health issues, substance
abuse, and domestic violence. Angelo challenges the jurisdictional finding that he had
been unable to protect and supervise Joseph and further challenges the dispositional
finding in which the court declined to place Joseph with Angelo. Jamie contends there is
no substantial evidence to support the court's finding that it would be detrimental to
return Joseph to her care, claiming her mental health has stabilized. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Detention
1 All further references are to the Welfare and Institutions Code unless otherwise
indicated. An order under section 300 is an appealable judgment. (§ 395, subd. (a).)
2
In January 2013, when Joseph was 11 months old, Jamie, checked herself into a
mental health facility reporting she had thoughts of hurting Joseph. Jamie has a history
of mental illness including a diagnosis of borderline personality disorder and bipolar
disorder requiring medication, which she had not been taking for several months.
Joseph came to the attention of the San Diego County Health and Human Services
Agency (Agency) after the Agency's child abuse hotline received a report that Jamie and
Joseph had recently moved to San Diego, perhaps to get away from the baby's father.
The report indicated that friends watched Joseph because they were scared of what Jamie
would do. Jamie had dropped Joseph off in a carrier at a childcare parking lot. She had
also been kicked out of her mother's home and they had stayed in several places where
drugs were used. The referral stated that Jamie could not cope with the baby and had
thoughts of wanting to physically harm him.
Jamie reported to the investigating social worker that her relationship with
Joseph's father, Angelo, was very abusive. Angelo would come home high on
methamphetamine or alcohol and would hit her and force her to have sex with him. She
reported that Angelo beat her up in front of her older daughter.2
Jamie and Joseph lived in Nevada with Angelo until June of 2012 when Jamie was
escorted from the property by the sheriff following an incident of domestic violence,
which Jamie said occurred because she would not allow Angelo to have sex with her.
2 Jamie has an older daughter from another marriage who lives with her father.
Jamie had unsupervised visits with that child until the girl's father reported Jamie was
"losing it" during visits. The judge in that case ordered Jamie to continue with her
medication, maintain sobriety and to not allow Angelo around her daughter during visits.
3
After this incident, she and Joseph ended up living out of her car. Jamie felt
overwhelmed and had not taken her medications since October 2012 because she was not
able to provide an address for Medicaid benefits. Jamie admitted to a history of
substance abuse, including use of methamphetamine within recent months.
When Jamie's cousin learned that Jamie and Joseph were homeless, she invited
them to stay with her. Jamie arrived in California at the end of December 2012, but had
left Joseph in the care of a friend until she could stabilize her mental health. The cousin
drove to Las Vegas, Nevada, to get the child. The cousin reported she was concerned
that Jamie would go back to Nevada and resume a relationship with Angelo.
Joseph was detained in protective custody due to Jamie's unstable mental health
and because there was concern she would flee with Joseph to resume a violent and
dysfunctional relationship with Angelo.3
Jamie reported having a hard time connecting with the child and feeling a lot of
resentment towards him. She saw him as a reminder of a bad relationship and the
product of someone who abused and raped her for years. However, she also reported that
she loved Joseph, he was her hope, and she felt that she would not have a purpose to live
without him.
The social worker confirmed domestic violence episodes with Angelo. In
September 2010, both Jamie and Angelo were arrested for domestic battery on each
3 Angelo testified that he called child protective services in Nevada around the time
Joseph was taken to San Diego. There is no indication in the record that Nevada took any
action on this report.
4
other. Angelo stated he obtained a temporary restraining order against Jamie. In March
2011, Angelo's brother called sheriff deputies reporting Angelo forcibly entered a home
and began fighting the residents. Earlier, Angelo had fought with his brother, grabbed his
neck and tried to strangle him, but Ryan, one of the residents, intervened. Ryan also
intervened in a fight between Jamie and another woman, putting Jamie in a chokehold.
Angelo confronted Ryan about the incident and fought with him. The brother reported
that every time Angelo drinks alcoholic beverages, he gets very violent.
The Agency filed a petition under section 300, subdivision (b). The detention
report recommended Joseph be detained because there was substantial danger to the
physical and emotional health of the child and there was no reasonable means by which
he could be protected without removing him from the parents' or guardians' physical
custody. There was substantial evidence that Jamie was likely to flee the jurisdiction of
the court because Jamie wanted to return to Nevada to obtain housing. Jamie had
unresolved mental health issues and had been both a victim and perpetrator in domestic
violence.
II.
Detention Hearing
Since the child had lived out of state within the prior six months, the court
exercised emergency jurisdiction over the child at the detention hearing and indicated it
would make an inquiry under the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) (Fam. Code, § 3400 et seq.).
5
At the January 24, 2011 hearing, the court found the Agency made a prima facie
showing that Joseph was a child described by section 300, subdivision (b), and that initial
removal was necessary.4 Detention was necessary because of a substantial danger to the
physical health of the child and there was no reasonable means to protect his physical or
emotional health without removing him from parental custody. The court ordered the
Agency to evaluate Jamie's cousin's home for placement. If Joseph was to be placed with
the cousin, the court gave the social worker discretion to allow Jamie to reside in the
home, but in a supervised setting, and only if Jamie was actively engaged in services.
III.
Jurisdictional Hearings
In February 2013, Jamie supported placement with her cousin and "vehemently
expressed that she would not want [Angelo] to be considered for a possible placement
option." Angelo, however, wanted Joseph placed with him and stated he could provide
his son with a stable and nurturing home. The Agency's jurisdiction/disposition report
4 Section 300 provides in pertinent part: "Any child who comes within any of the
following descriptions is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court: [¶] . . . [¶] (b) The child has suffered, or
there is a substantial risk that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian to adequately supervise or
protect the child, or the willful or negligent failure of the child's parent or guardian to
adequately supervise or protect the child from the conduct of the custodian with whom
the child has been left, or by the willful or negligent failure of the parent or guardian to
provide the child with adequate food, clothing, shelter, or medical treatment, or by the
inability of the parent or guardian to provide regular care for the child due to the parent's
or guardian's mental illness, developmental disability, or substance abuse. . . . The child
shall continue to be a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious physical harm or illness."
6
informed the court Joseph had not yet been placed with Jamie's cousin because Jamie was
living in the home and she was not actively engaged in services.
At the February 14, 2013 hearing, Angelo appeared through appointed counsel and
entered a denial to the petition. The court ordered the Agency to provide voluntary
services to Angelo and allowed telephonic or Skype visitation. The court indicated it
would make the appropriate inquiry with Nevada regarding the UCCJEA and would set a
special hearing regarding this issue. After discovering that no proceedings had been filed
in Nevada regarding this child, the court proceeded with jurisdiction.5
Jamie later moved out of the cousin's home to accommodate Joseph's placement
with the cousin. He did well and Jamie had liberal supervised visits.
In March 2013, the court found the allegations in the petition true and sustained
the jurisdictional allegations under section 300, subdivision (b). The court noted that
disposition was contested by both parents. The Agency recommended that Joseph remain
placed with the cousin and that Jamie receive reunification services, but live out of the
5 At a special hearing, the court informed the parties that it had contacted the
chambers of the presiding judge for Clark County, Nevada and learned there were no
family or juvenile cases regarding Joseph. The Nevada court provided information about
a case regarding Jamie's daughter from a previous relationship. An order was entered
precluding Jamie from having any contact with Angelo during her visits with her
daughter. The order required Jamie to continue treatment with her psychiatrist, to stay on
her medications and to stay clean and not use any illegal drugs. The California juvenile
court in this case interpreted the UCCJEA as requiring it to confirm that there are no
pending cases regarding the child in the home state jurisdiction and that if, after that
inquiry is made, the other court does not assert jurisdiction and no parent or other
individual files an action in the other state, then the California court may proceed. The
court indicated that if one of the parents filed a proceeding in another state, then the
UCCJEA inquiry would be raised again. No party objected.
7
home. Jamie asked that she be allowed to move into the home with Joseph or that the
child be placed with the cousin. Because Angelo requested custody, the Agency
requested an expedited evaluation of Angelo's home pursuant to the Interstate Compact
on the Placement of Children (ICPC). (Fam. Code, § 7901 et seq.).
IV.
Contested Disposition Hearings6
A.
While Jamie participated in services for several months, Jamie sent a number of
concerning text messages in April 2013 indicating she intended to kill herself. In May,
she moved back to Las Vegas, Nevada. She now hoped Joseph would be placed with
Angelo.
In a May home interview, a Nevada social worker reported that Angelo initially
stated he had been sober since 2010, but then admitted to drinking at least a "six-pack a
week." The social worker also observed that he appeared anxious and exhibited
symptoms similar to withdrawal symptoms, such as tics and sweating profusely.
B.
When the contested disposition hearing proceeded in June 2013, Angelo admitted
he had three convictions for driving under the influence (DUI) in the 1990's, the third
being a felony. In 2002 his probation was revoked after he tested positive for
methamphetamine and he served 16 months in prison.
6 The contested disposition hearing was continued several times to obtain an ICPC
report from Nevada of Angelo's home.
8
He claimed he went to a voluntary treatment program for 28 days when he worked
for a commercial airline in Texas. He also said he participated in Alcoholics Anonymous
(AA) meetings, but he stopped attending AA meetings in 2005 claiming he had not had
anything to drink for eight years.
He was convicted of a misdemeanor DUI in Las Vegas in 2009. He claimed he
had his grandmother's prescription pain medicine when he was pulled over. However, he
obtained the DUI after he tested positive for marijuana. He was placed on a three-year
probation, which again required classes.
Angelo admitted he told the Nevada social worker that he drinks "a six-pack a
week." He testified, however, that he only drinks three or four drinks when he goes to
karaoke. He denies drinking and driving and denies that he drinks when the children are
around. During the same interview in Nevada, Angelo reported for the first time that he
had been treated for bipolar disorder and last took medication for that condition in 2004.
Angelo was arrested for domestic violence with Jamie in 2010 in which they both
claimed to be the victim. Angelo was also arrested following the altercation with his
brother in March 2011. He pleaded to a lesser charge and paid a fine.
Angelo asked the court to place Joseph with him arguing that he did not do
anything wrong to have Joseph kept from him. He believed he was in the best position to
take care of Joseph and he has a support system. If given custody of Joseph, he could
bring Joseph to work with him at his mother's real estate office, where other relatives
would care for him or he would put Joseph in daycare.
9
Angelo testified that if Joseph was placed in his care, he would be willing to
refrain from the use of alcohol or controlled substances, participate in AA or Narcotics
Anonymous (NA) meetings and participate in random drug testing.
Angelo was aware that Jamie moved back to Nevada and he had no problem with
Jamie having visits. Angelo testified he speaks to Jamie all the time by phone or by text.
He socialized with her since she returned to Nevada. She has a job and he helped her out
with a place to stay.
Angelo planned to go to Texas during the summer to stay with his ex-wife and
Joseph's half-brother and two half-sisters while the kids were out of school. He also
wanted to assist his daughter, who has cerebral palsy, after a scheduled surgery. He
denied that there would be any domestic violence issues between him and his ex-wife.
The court found it would be detrimental to place Joseph with Jamie. While Jamie
did actively participate in voluntary services, the court was concerned that she moved
back to Las Vegas and removed herself from services and assistance. The court was also
concerned about the suicide threats, which suggested Jamie was not able to provide stable
and protective care for her child.
The court also found it would be detrimental to place Joseph with Angelo at the
time, but requested additional information to consider Angelo's placement request. The
court based its finding on Angelo's significant substance abuse history including a series
of DUI's that the court described as "very troubling and clearly escalating."
The court also found detriment based upon Angelo's history of domestic violence
with Jamie, including an incident of violence in the presence of a child. The court stated,
10
"What is particularly concerning to the court is what I assessed, after having watched
father on the stand, is his lack of insight of his role in terms of the domestic violence.
The reports before the court are quite clear. Father blanketly denies—and I have
concerns about his credibility at this point—that he was ever physical with mother, that
he hit mother, although, she had very significant bruising, and reported on more than one
occasion that father had been violent towards her. [¶] Father's assessment of this was
that he was, essentially, the victim at all times, and would, essentially, allow her back in
. . . his life. The reason I find this troubling as to the question of placement today of
Joseph with the father is that nothing has been addressed with respect to father's view of
domestic violence. [¶] And while he gave the court some explanations . . . generally
how domestic violence can impact a child, he does not seem to have an awareness about
protecting himself and his role in terms of protecting Joseph. [¶] Moreover, the court
also has concerns about the father's ability to accurately assess mother's situation. And
even when he thinks that she is in a mental health crisis, he continues to engage with
her."
The court was also concerned that Jamie and Angelo were now living in proximity
to each other again and were communicating. The court concluded it had real concerns,
"based on the record before me today, that there is not a protective system in place such
that Joseph could be put with father, can be protected from domestic violence, verbal and
otherwise between the parents."
The court ordered Angelo be drug tested, he enroll in a domestic violence
program, and his case plan include a full substance abuse assessment. The court also
11
wanted additional information about services available to Jamie and what services might
be available to Angelo in Texas if he went there for an extended visit. The court
continued the disposition hearing for this additional information.
C.
Prior to the next hearing, Jamie submitted information indicating she was
accessing services in Nevada, she was no longer homeless, and she had a weekly income.
The social worker noted that, based on recent telephone conversations, Jamie's mental
health appeared to be stabilized. She was more lucid and routinely expressed interest in
Joseph's well being. The social worker, however, wanted to speak with Jamie's
psychiatrist before recommending unsupervised visits.
Angelo completed a chemical dependency assessment in Texas, which indicated
he meets the criteria for dependence, but that he is in sustained remission. He also
submitted to random drug testing, which was negative. Angelo was enrolled in, but had
not yet started, a domestic violence program in Texas. The Nevada report made the
home study contingent on completion of a drug and alcohol evaluation, a mental health
evaluation and proof of employment.
D.
At the continued hearing on July 23, 2013, Angelo was living in Texas with his
ex-wife and their children. He was getting paid by Texas to act as a caregiver for his
special needs daughter. While he and his ex-wife were discussing getting back together,
there were no immediate plans for reunification.
12
Jamie now opposed placement with Angelo because he was not living in Nevada
and she was concerned that Angelo needed to obtain the services recommended by the
Agency. She also requested reunification services with Joseph.
The court denied Angelo's request for reconsideration of the detriment finding.
While the court commended Angelo for the steps he had taken, the court indicated that
the same concerns existed as they did at the contested jurisdiction hearing and the court
wanted a completed ICPC evaluation. The court also wanted confirmation of attendance
at AA or NA meetings, as well as alcohol and drug testing and reports regarding his
domestic violence treatment.
The court granted Angelo an extended visit with Joseph so that he could spend
vacation time with his half-siblings and could visit relatives, including his mother in Las
Vegas. The court ordered that Joseph's visit with his mother be supervised by someone
other than Angelo.
The court reiterated its findings for removing Joseph from Jamie and making a
detriment finding as to Angelo. The court ordered the Agency to prepare a case plan for
Angelo and an ICPC for Jamie.
DISCUSSION
I.
Substantial Evidence Supports the Jurisdictional Finding
A.
"A dependency proceeding under section 300 is essentially a bifurcated
proceeding. The court first determines whether the minor is a dependent child subject to
13
the jurisdiction of the court within the description set out in section 300. . . . [¶] Once
the court has determined the minor is a person described by section 300 and has assumed
jurisdiction it 'shall then proceed to hear evidence on the question of the proper
disposition to be made of the minor . . . .' (§ 356.) . . . Before a dispositional order which
awards custody to a nonparent without the consent of the parents can be rendered, there
must be a clear and convincing showing an award to the parents would be detrimental to
the child and that an award of custody to a nonparent is essential to avert harm to the
child and required to serve the best interests of the child." (In re Jamie M. (1982) 134
Cal. App. 3d 530, 535, italics omitted.)
At the jurisdiction phase, under section 355, subdivision (a), the Agency is
required to " 'prove by a preponderance of the evidence that the child who is the subject
of a petition comes under the juvenile court's jurisdiction.' " (In re Brison C. (2000) 81
Cal. App. 4th 1373, 1379.) "The basic question under section 300 is whether
circumstances at the time of the hearing subject the minor to the defined risk of harm."
(In re Nicholas B. (2001) 88 Cal. App. 4th 1126, 1134.) For the court to exercise
jurisdiction under section 300, subdivision (b), there must be "evidence indicating that
the child is exposed to a substantial risk of serious physical harm or illness." (In re
Rocco M. (1991) 1 Cal. App. 4th 814, 823.)
"On appeal, the 'substantial evidence' test is the appropriate standard of review for
both the jurisdictional and dispositional findings. [Citations.] The term 'substantial
evidence' means such relevant evidence as a reasonable mind would accept as adequate to
support a conclusion; it is evidence which is reasonable in nature, credible, and of solid
14
value." (In re J.K. (2009) 174 Cal. App. 4th 1426, 1433.) "It is the trial court's role to
assess the credibility of the various witnesses, to weigh the evidence to resolve the
conflicts in the evidence. We have no power to judge the effect or value of the evidence,
to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in
the evidence or the reasonable inferences which may be drawn from that evidence.
[Citations.] Under the substantial evidence rule, we must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact." (In re Casey D. (1999) 70
Cal. App. 4th 38, 52-53.)
B.
Angelo argues on appeal that there was no substantial evidence to support the
jurisdictional finding that he was unable to protect and supervise Joseph. Angelo did not
raise this argument before the juvenile court. Instead, at the jurisdiction hearing, his
counsel merely requested that the petition be amended to strike the word "failed" from
the petition, arguing that he did make a report once he learned Joseph had been taken
from Nevada. The court amended the petition as requested leaving the allegations that
Angelo had been unable to protect and supervise Joseph. The court sustained the petition
and made a true finding of jurisdiction under section 300, subdivision (b). Angelo's
acquiescence waived his right to claim error as a basis for reversal on appeal. (In re N.M.
(2011) 197 Cal. App. 4th 159, 166 ["It is well settled that attacks on the legal sufficiency
of a petition cannot be made for the first time on appeal"]; see also In re Marriage of
Hinman (1997) 55 Cal. App. 4th 988, 1002 [" 'An appellate court will ordinarily not
15
consider procedural defects or erroneous rulings . . . where an objection could have been,
but was not, presented to the lower court by some appropriate method. [Citations.]'
[Citation.] Failure to object to the ruling or proceeding is the most obvious type of
implied waiver"].)
Even if Angelo did not forfeit the right to challenge the sufficiency of the evidence
regarding jurisdiction, he cannot prevail on such a claim. The purpose of dependency
proceedings is to protect children, not to punish the parents. "Therefore, the court takes
jurisdiction over children (§ 300); it does not take jurisdiction over parents. Moreover,
the court has jurisdiction over the children if the actions of either parent bring the child
within one of the statutory definitions in section 300. [Citation.] The court gains
jurisdiction over a parent when the parent is properly noticed. [Citation.]" (In re Joshua
G. (2005) 129 Cal. App. 4th 189, 202, italics added.)
In this case, Angelo does not dispute that the Agency properly sought detention of
Joseph when Jamie was in a state of distress. At the time of the jurisdictional hearing, the
court had information regarding Jamie's unresolved mental health issues as well as her
history of substance abuse and domestic violence charges. This alone was sufficient for
the court to take jurisdiction over the child.
In addition, however, there was evidence that Angelo was unable to protect or
supervise Joseph. Jamie's reports of domestic violence at the hands of Angelo were
confirmed by police reports, and an order from another court prohibiting Angelo from
having contact with Jamie during visits with her daughter. Additionally, the Agency
expressed concern about placement with Angelo due to his criminal history.
16
Angelo argues that he "took appropriate steps when mother left the state with
Joseph" by filing a report with child welfare officials in Nevada in December and by
"refus[ing] to continue his relationship with mother, due to her behavior." However, as
the court pointed out, there is no indication that Angelo intervened to care for or protect
Joseph during the months that Jamie and Joseph were homeless in Nevada when they
were bouncing from house to house. It also does not appear that Angelo came to see the
child until March 2013, months after he was detained.
Based upon the record in this case, we conclude there was substantial evidence to
support the court's jurisdictional finding.
II.
Substantial Evidence Supports the Court's Dispositional Finding
A.
"After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. [Citation.] At the dispositional hearing, the court must
decide where the child will live while under the court's supervision." (In re N.M., supra,
197 Cal.App.4th at p. 169.) "A removal order is proper if based on proof of a parental
inability to provide proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous
and the minor need not have been actually harmed before removal is appropriate. The
focus of the statute is on averting harm to the child.' [Citation.] The court may consider
a parent's past conduct as well as present circumstances." (Id. at pp. 169-170.)
17
"Before the court issues a removal order, it must find the child's welfare requires
removal because of a substantial danger, or risk of danger, to the child's physical health if
he or she is returned home, and there are no reasonable alternatives to protect the child.
[Citations.] There must be clear and convincing evidence that removal is the only way to
protect the child." (In re N.M., supra, 197 Cal.App.4th at p. 170.)
While the parents emphasize the requirement for the juvenile court to find "clear
and convincing" evidence of detriment before ordering removal at a disposition hearing,
this is not the standard applied on appeal. We again apply the substantial evidence rule to
review the court's factual determination regarding disposition. As we have explained,
" 'on appeal from a judgment required to be based upon clear and convincing evidence,
"the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence
is applied, giving full effect to the respondent's evidence, however slight, and
disregarding the appellant's evidence, however strong." [Citation.]' [Citation.] 'We have
no power to judge the effect or value of the evidence, to weigh the evidence [or] to
consider the credibility of witnesses . . . .' " (In re Mark L. (2001) 94 Cal. App. 4th 573,
580-581, fn. omitted.)
As with the jurisdiction finding, the evidence supports the disposition finding.
The record shows that the court carefully considered the evidence and weighed the
credibility of the witnesses in making its determination that it would be detrimental to
place Joseph with either parent at the time. We agree with the juvenile court that it is
commendable that both parents have accessed services and appear to be making strides to
18
improve their situations. However, at the time of the disposition hearings, the court had
serious ongoing concerns about the ability of either parent to protect and care for Joseph.
B.
Unlike in Blanca P. v. Superior Court (1996) 45 Cal. App. 4th 1738, 1751, where a
therapist had only vague concerns about parenting insights, in this case Jamie has a
documented mental illness that requires medication and treatment. While she did seek
treatment, she left California without completing that treatment and her therapist
expressed concern about her mental health and the ability for her to provide a safe
residence for Joseph. This along with the fact that she sent a series of suicide notes
before moving back to Nevada was substantial evidence to support the court's conclusion
that Jamie was significantly unstable to provide stable and protective care for Joseph at
the time. The fact that Jamie has since accessed care in Nevada and appears to have had
some success in stabilizing her mental health is positive and may lead to reunification,
but that issue is not before us.
C.
With regard to Angelo, the court acknowledged that under section 361.2 it was
required to consider placement with him as the noncustodial parent unless it found by
clear and convincing evidence that placement with that parent would be "detrimental to
the safety, protection, or physical or emotional well-being of the child." (In re Marquis
D. (1995) 38 Cal. App. 4th 1813, 1829.) The court made this finding and it is supported
by substantial evidence.
19
The record supports the court's concern about Angelo's long history of substance
abuse, going back to his teens, and dependency upon multiple substances, which led to
criminal behavior and interfered with his ability to maintain employment. The court had
justifiable concerns that even after three DUI convictions, Angelo violated his probation
by testing positive for methamphetamine. Then, after serving time in prison for the
violation, he again tested positive for driving under the influence of marijuana. While
Angelo claims he has been sober since 2010, he disclosed to a Nevada social worker that
he still engages in social drinking every week while playing games or going to bars.
The Legislature recognizes that providing children with "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.) It is for this
reason that the court properly required Angelo to participate in a complete substance
abuse assessment as well as drug and alcohol testing and documentation of his
participation in AA and NA meetings.
The record also supports the court's finding based upon concerns about domestic
violence. While Angelo suggested that the incidents of domestic violence with Jamie
were due to her mental health issues and that he was the victim, the court did not find his
testimony credible. Even if his testimony were to be believed, the court found it
troubling that Angelo would continue to engage with Jamie, particularly while he is
seeking placement of the child. In addition, there was evidence that Angelo's ex-wife left
him after an incident where Angelo became physical and it scared her enough to call the
20
police. At the time of the continued disposition hearing in July 2013, Angelo had not yet
started a domestic violence program.
Under these circumstances, the court properly found detriment to place with
Angelo and ordered him to address both the domestic violence and substance abuse
issues.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
MCDONALD, J.
IRION, J.
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