In re Ender H. CA2/3 ( 2021 )

Filed 8/13/21 In re Ender H. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re ENDER H., et al., Persons B311003
Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 20CCJP04185A
FAMILY SERVICES, & B)
Plaintiff and Respondent,
v.
JOSE G.,
Defendant and Appellant;
ENDER H., et al., Minors, etc.,
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Judge. Reversed.
Zaragoza Law Office and Gina Zaragoza, under
appointment by the Court of Appeal, for Defendant and Appellant
Jose G.
Lori Siegel, under appointment by the Court of Appeal, for
Minors and Appellants Ender H. and Jacob H.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel for Plaintiff and Respondent.
_________________________
The juvenile court sustained allegations of domestic
violence and methamphetamine abuse against Jose G. (father)
and asserted jurisdiction over his two sons, Ender H. and Jacob
H. Although the juvenile court had returned the children to
father’s custody by the time of the disposition hearing, the
juvenile court declared the children dependents, retained
jurisdiction, and ordered family preservation services. Father
and the minors now appeal the jurisdictional and dispositional
orders. We agree there was insufficient evidence to support the
jurisdictional orders. Accordingly, we reverse.
BACKGROUND
I. Report of neglect and investigation
The family consists of father, 10-year-old Ender, and eight-
year-old Jacob. In mid-July 2020, the family came to the
attention of the Los Angeles County Department of Children and
Family Services (DCFS) when it received a report they were
living in an abandoned home without utilities. The property’s
manager told social workers that the house was going to be
demolished so he let the family live there. Paternal aunt, her
children, and paternal aunt’s boyfriend also lived in the house;
however, the house was divided into units, and she lived in one
separate from father. Father and his sons had been living in the
house for six to seven months. However, the home had no
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electricity, gas, or running water. The property manager said
that the children were nonetheless well cared for, and he had no
concerns about domestic or substance abuse.
Father explained that he had been homeless for two to
three years. He worked as a gardener. The family used to live
with the children’s mother, but she was deported after attacking
father with a knife in 2018. Since then, father had been his sons’
sole caregiver. When father’s motel vouchers ran out, he could
not afford to pay for a motel. He planned to get new vouchers
once the house was demolished. Due to his bad credit and
immigration status, father had not been able to find an
apartment and, although he had researched shelters, he did not
feel comfortable sharing living spaces with strangers.
In their current home, father and the two boys shared a
bedroom, which, although cluttered, was organized. The utilities
had been shut off for several weeks, but father got water from a
fire hydrant, accessed electricity from a light post using extension
cords, and used a portable stove and microwave to make food. He
kept a cooler for fresh food and bought tacos and food from
McDonalds to feed the children. They showered at father’s
workplace. The children were current with immunizations and
well-child examinations. Father used cash assistance for food,
basic necessities, and transportation.
Before the COVID-19 pandemic, the children had regularly
attended school and an afterschool program. Ender was a good
student and had no problems, but Jacob misbehaved, and father
had been advised to enroll Jacob in therapy. But because father
had to work, father had not wanted to commit Jacob to a program
until father could ensure he could take him. During the
pandemic, father took the children everywhere with him, as he
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did not want to leave them in paternal aunt’s care. Other family
members either could not help or helped very little.
Father disciplined the children by verbally warning them
or taking away their phones or outside playtime. He denied
using physical discipline.
The social worker interviewed Ender, who appeared
developmentally and physically age appropriate. His clothes
were dirty as if he had been playing outside in the dirt, and his
legs and knees were dirty, as if he had been sitting on the floor or
running around. Ender reported that his father did not
physically discipline him, and he had never seen his father fight
with anyone. Ender knew about the incident between his parents
but did not remember much about it. Although DCFS had been
told that paternal aunt’s boyfriend had choked her, Ender denied
seeing them fight. Ender said that father did not use drugs or
drink alcohol. Ender also said that he liked where he lived
because he was with his father and cousins. He confirmed much
of what father said about how they lived, including that he had
enough to eat and was able to shower either at his father’s
workplace or at home. Sometimes he could not sleep because he
could hear rodents walking underneath the house. Ender denied
having any worries other than being forced to leave his home. He
liked his life, but he hoped to have his own room in a “regular
house.”
The younger child, Jacob, reported that he and his brother
were never left alone without an adult, and sometimes they went
to work with their father or stayed with their grandmother.
Jacob said he ate daily and confirmed that he either showered at
father’s workplace or at home using water from the fire hydrant.
He too liked where he lived and denied ever sleeping in a car or
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on the street. Jacob could not remember any fighting between
his parents, and he denied seeing any fights between paternal
aunt and her boyfriend. He also denied that anybody in his home
used drugs or subjected him to corporal punishment. He had no
worries, and, when asked about his dreams, he said he wanted
his own room and bed.
Jacob’s teacher said that Jacob was intelligent and did his
classwork but not his homework. Jacob was not malnourished
but when he came to school dirty, she sent him to the nurse to
clean up. Sometimes he came to school inappropriately dressed
for the weather, so she gave him clothing the school had. Father
was extremely difficult to get hold of, and he never answered his
phone. The teacher had no concerns about abuse and did not
suspect any drug use. However, she did not think Jacob was
attached to father because Jacob never mentioned him. At the
beginning of the pandemic, Jacob had been given a laptop on
which to do his homework and Wi-Fi access, but he never logged
on or completed his schoolwork. When the social worker asked
father about Jacob not attending school, father admitted that he
had “fail[ed]” to ensure Jacob attended school remotely but
explained that he had to be at work when the children had to be
in school.
Father’s other sister told the social worker that father’s
problems began when mother was deported, and father had no
place to live. Father and the children slept in his van until they
got motel vouchers. The van was stolen from father, along with
their property. The family had lived with father’s sister for nine
months, but when she became a live-in nanny, they moved into
the abandoned house. Sister said that father ensured the
children’s needs were met despite his difficult circumstances, and
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she had no concerns about neglect or substance or alcohol use by
father.
Paternal uncle also reported that father took the children
with him wherever he went. He too had no concerns about drug
use.
Weeks after the social worker had first made contact with
the family, they were still living at the abandoned house. When
the social worker told father that his housing situation had to
change, he said he would try to get motel vouchers but remained
adamant about not going to a shelter, preferring to exhaust his
resources before resorting to that option. Within a week of that
discussion, father had moved his family into a motel.
The social worker also told father she was concerned that
he used methamphetamine. Although father initially had denied
using any substances other than an occasional beer, he later
admitted he had first used methamphetamine in 2018 when he
was working two jobs and needed to stay awake. He used it
periodically, with the last time being four months earlier when
the children were in school. But he denied using
methamphetamine in front of the children or while caring for
them. Father agreed to take a drug test, which was scheduled for
July 23, 2020. That day, however, father confessed to the social
worker that he had used methamphetamine on the 4th of July
but hadn’t wanted to tell her for fear of losing the children. The
children were not present when he used, but he understood he
had made a mistake. Father took a drug test on July 24, 2020,
and it was positive for methamphetamine. When the social
worker said that this result was inconsistent with father having
last used on July 4, 2020, because methamphetamine does not
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typically stay in the body’s system for 20 days, father maintained
that July 4 was when he last used.1
II. Removal and petition
On August 6, 2020, DCFS removed the children from
father’s care. The social worker noted that when she first
interviewed father on July 13, 2020, he had made eye contact
with her and understood what she was telling him. But when
she saw him on August 6, 2020, he had limited eye contact,
sporadic rapid eye movement, and difficulty processing
information. Even so, father’s second drug test on August 4, 2020
produced negative results.
DCFS then filed a Welfare and Institutions Code2 section
300 petition. The petition alleged under section 300, subdivisions
(a) and (b), that mother brandished a knife at father in the
children’s presence, thereby endangering their health and safety
and placing them at risk of serious physical harm. The petition
further alleged under section 300, subdivision (b), that father
historically and currently used methamphetamine and
1 A toxicologist told the social worker that
methamphetamine generally can be detected in the body’s system
for five days after it is used. Some people’s systems remove it
faster and others more slowly. While it was therefore possible
that if father last took methamphetamine on July 4, 2020 it could
still be in his system 20 days later on July 24, 2020, there was
little chance that father’s version of events was true. But the
toxicologist could not rule it out without more information and
testing.
2All further undesignated statutory references are to the
Welfare and Institutions Code.
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amphetamine and that the family lived in an unsanitary and
hazardous home environment. The juvenile court detained the
children and removed them from father. However, if father had
four consecutive negative drug tests, the children would be
released to him.
III. Jurisdiction/disposition report and last minute information
Father continued to test negative for drugs, so the children
were returned to him on September 4, 2020. The family was now
living at a transitional housing facility.3 Families generally may
live at the facility for six months but that was increased to nine
months due to COVID. The facility requires all adults to
participate in on-site individual therapy, although that service is
offered only in English, which father does not speak. The facility
provides case management and life skills to help families find
permanent housing. Father had enrolled in a finance class and
was looking into a parenting class. The children were in the Boys
and Girls Club.
Father also provided additional information about the 2018
domestic violence incident with mother. According to father,
mother was angry because she thought he had brought pizza for
only one child instead of the entire family. Mother tried to stab
father, so he left the room to separate himself from her. Father
either told the children to call the police or called them himself.
Father said that although he and mother argued in front of the
children, this was the only incident involving physical violence.
3Although the juvenile court’s minute order of September
4, 2020 states that the children were released to father that day,
a letter from the transitional housing facility stated that the
family had been living there as of August 18, 2020.
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The social worker spoke to mother, who admitted that she went
after father with a knife because she was mad. However, the
children were not present and found out about the incident when
the police came. Mother was not aware that father used drugs,
and she had no concerns that he neglected the children.
IV. Jurisdiction and disposition hearings
A. Jurisdiction hearing
At the contested December 2020 jurisdiction hearing, the
family’s case manager at their transitional housing facility
testified that she had no concerns about father being under the
influence of any illegal substance and, to her knowledge, he was
not in a program to maintain sobriety. All families are drug-
tested when they move into the facility, and father’s drug tests
continued to be negative. Father was not refusing services, and
the children were well cared for.
The juvenile court denied father’s motion to dismiss the
entire petition, but it did dismiss the count alleged under section
300, subdivision (a), regarding serious physical harm due to
domestic violence, and the count alleged under section 300,
subdivision (b), regarding the family’s living conditions.
However, the juvenile court sustained counts regarding failure to
protect due to domestic violence and failure to protect due to
father’s substance abuse. The juvenile court said that father had
never addressed the domestic violence with mother and had
thereafter exposed his children again to domestic violence by
living with his sister, who was in a violent relationship. As to
father’s methamphetamine use, the juvenile court said that four
months of clean tests were insufficient to give it confidence he
would not use again when under stress. The juvenile court also
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did not believe that father had last used on July 4, 2020, and
honesty was part of sobriety.
B. Disposition hearing
The juvenile court held the disposition hearing in February
2021. Last minute information for that hearing indicated that
father was enrolled in parenting classes but not individual
therapy due to his work schedule. Father had housing referrals
but no time to follow up on them. His weekly drug tests
continued to be negative. Jacob was receiving mental health and
wraparound services. Although father and the children’s counsel
asked the juvenile court to terminate jurisdiction, it instead
declared the children dependents and ordered them placed with
father in DCFS-approved housing. The juvenile court also
ordered family preservation services and father to continue
submitting to random drug testing and to attend parenting
classes and individual counseling.
DISCUSSION
I. Sufficiency of the evidence
Father contends there is insufficient evidence to support
the jurisdictional findings of domestic violence and of substance
abuse under section 300, subdivision (b). After setting forth the
standard of review, we address the sufficiency of the evidence to
support those findings.
A. Standard of review
Section 300, subdivision (b), provides that a child is within
the juvenile court’s jurisdiction if 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 the
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parent to adequately supervise or protect the child. A challenge
to the sufficiency of the evidence supporting jurisdictional
findings and disposition orders under that section requires us to
determine if substantial evidence, contradicted or not, supports
them. (In re I.J. (2013) 56 Cal.4th 766, 773.) In making this
determination, we draw all reasonable inferences from the
evidence to support the juvenile court’s findings and orders and
review the record in the light most favorable to its
determinations, while noting that issues of fact and credibility
are in the juvenile court’s province. (Ibid.) We do not reweigh
the evidence or exercise independent judgment but merely
determine if there are sufficient facts to support the juvenile
court’s findings. (Ibid.) We review the whole record in the light
most favorable to the judgment to determine whether the record
discloses substantial evidence such that a reasonable trier of fact
could find the order appropriate. (Ibid.)
B. Sufficiency of the evidence to support the domestic
violence allegation
The juvenile court sustained the allegation that the
children were at risk because of the 2018 domestic violence
incident between mother and father. Physical violence between
parents may support jurisdiction under section 300, subdivision
(b), if there is evidence the violence is ongoing or likely to
continue, and that it directly harmed the child physically or
placed the child at risk of physical harm. (In re Daisy H. (2011)
192 Cal.App.4th 713, 717.) Past conduct can be probative of
current conditions, but the question under section 300,
subdivision (b), remains whether the circumstances at the time of
the hearing subject the minor to the defined risk of harm. (In re
M.W. (2015) 238 Cal.App.4th 1444, 1453.)
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In re Daisy H., supra, 192 Cal.App.4th at page 717, for
example, involved a single incident of abuse by the father against
the mother that had occurred several years before the petition
was filed. Other than this single incident, the children were
healthy and well-groomed, the parents were separated, and there
was no evidence the children were currently abused or exposed to
abuse. The juvenile court nonetheless found it had jurisdiction
under section 300, subdivisions (a) and (b). (In re Daisy H., at
p. 716.) The Court of Appeal reversed and found the evidence
insufficient to support a finding of past or present domestic
violence that placed the children at a current substantial risk of
physical harm. (Id. at p. 717; accord, In re M.W., supra, 238
Cal.App.4th at p. 1454 [single incident of domestic violence seven
years before hearing insufficient to support jurisdiction].)
Similarly, in In re Jonathan B. (2015) 235 Cal.App.4th 115,
120, the father hit the mother when they were living together.
Five years later, they were no longer living together, but he hit
her a second time when she was picking up things for the
children. (Ibid.) This time she called the police. This Division
found that the evidence was insufficient to support jurisdiction,
noting that the first incident was five years in the past, the
parents were not together during the unforeseeable second
incident, and the mother appropriately called the police after the
second incident. (Ibid.) We therefore concluded that there was
insufficient evidence the children were at substantial risk of
suffering serious physical harm inflicted nonaccidentally by the
mother or through her failure to protect them. (Id. at p. 121.)
The case before us similarly involves one incident of
domestic abuse that occurred two years before the petition was
filed. In that isolated incident, mother was the attacker; father
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was the victim. Since then, mother has been deported and had
only telephonic contact with the children. She therefore does not
pose a current or future threat to them. Although the children
were in the home during the incident, it does not appear that
they witnessed it, and neither child could remember it when
interviewed in connection with the petition. Further, when
mother assaulted father in 2018, he responded appropriately by
separating himself from mother and ensuring that the police
were called. (See, e.g., In re M.W., supra, 238 Cal.App.4th at
p. 1454 [mother responded to incident by calling police and
cooperating with them].) Father’s steps to protect himself and
the children undercuts DCFS’s argument he is in denial about
what happened or minimized it. Moreover, there has never been
an allegation that father himself abused the children, and there
certainly was no evidence of it. Thus, there is no evidence the
children are at risk of current abuse or exposure to abuse.
Nor do we agree that paternal aunt and her boyfriend’s
allegedly abusive relationship is sufficient to fill the evidentiary
gap. Father and paternal aunt lived in the abandoned home for a
time but had separate living spaces. The family was no longer
living with paternal aunt at the time of the jurisdiction hearing.
Moreover, the children denied seeing any abuse. On this record,
father’s decision to live in the abandoned home cannot be
characterized as exposing his children to domestic abuse within
the meaning of subdivision 300, subdivision (b).
C. Sufficiency of the evidence to support the drug abuse
allegation
The juvenile court’s second ground for jurisdiction was
father’s alleged abuse of methamphetamine. To find an
allegation true under section 300, subdivision (b), there must be a
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showing that at the time of the jurisdictional hearing the child is
at substantial risk of serious physical harm in the future because
of the substance abuse. (In re Israel T. (2018) 30 Cal.App.5th 47,
51.) In making this determination, substance use must not be
confused with substance abuse. A parent’s drug use alone cannot
support juvenile court jurisdiction. (In re Drake M. (2012) 211
Cal.App.4th 754, 764.) This rule includes a parent’s use of even
“hard” drugs like methamphetamine. (In re Destiny S. (2012) 210
Cal.App.4th 999, 1003; In re L.C. (2019) 38 Cal.App.5th 646, 654;
In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.) Jurisdiction
instead must be based on a parent’s substance abuse and,
further, that abuse must result in a risk of serious physical harm
to the child. (In re J.A. (2020) 47 Cal.App.5th 1036, 1046; In re
Destiny S., at p. 1005.)
In In re L.C., supra, 38 Cal.App.5th at pages 649 to 650, for
example, the child’s guardian tested positive for
methamphetamine over about a two-week period and then had
three negative tests. The guardian said he had used
methamphetamine six or seven times, and when he did use, he
stayed at a hotel away from the child and left the child with a
dependable sitter. The guardian had no physical indicia of
methamphetamine abuse, and the child was well cared for. The
guardian ensured that the child attended all doctor
appointments, took her to and from school, and helped her with
schoolwork. The Court of Appeal reversed the juvenile court’s
order of jurisdiction under section 300, subdivision (b)(1), finding
first that the evidence established merely that the guardian used,
rather than abused, methamphetamine. He had used it at most
seven times over a 10-month period, he did not crave or buy it,
and there was no evidence he was under the influence when
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performing caregiving tasks. (In re L.C., at p. 652.) Second, the
Court of Appeal found no evidence the guardian ignored parental
responsibilities because of his occasional methamphetamine use.
(Id. at p. 653; accord, In re Rebecca C. (2014) 228 Cal.App.4th
720, 727–728 [no evidence mother’s drug relapse caused harm or
risk of harm to child].)
As in In re L.C., there is insufficient evidence in the present
case either that father abuses methamphetamine or that any
such abuse has caused or created a risk of harm to the children.
Father admitted using methamphetamine in 2018 to stay awake
so that he could work. He further admitted using it periodically,
with the last time being on July 4, 2020. Father tested positive
for methamphetamine on July 24, 2020, and based on that last
test, the juvenile court was entitled to believe that father had
used closer to that date. But even assuming that the last time
father used methamphetamine was within a week of July 24,
that fact is not sufficient to sustain a finding of
methamphetamine abuse as opposed to mere use.
The social worker did not report seeing any drug
paraphernalia in the abandoned home the family was living in
when first contacted. Nobody—not the property manager where
the family lived, father’s extended family, the children, Jacob’s
teacher, mother, or the family’s case manager at the transitional
living facility—saw any evidence of substance abuse or had
concerns about it. None of these people saw father use drugs or
saw him under the influence of drugs. And although the social
worker thought that father had sporadic rapid eye movement and
difficulty processing information on August 6, 2020, when she
removed the children from his care, father’s August 4, 2020 drug
15
test came back negative, as did all weekly drug tests post-July
24, 2020.4
Nor does the record show that father was lying about his
drug use in such a manner that a reasonable inference he was
hiding an addiction could arise, as was the case in In re K.B.
(2021) 59 Cal.App.5th 593, 601. In that case, mother denied drug
use despite a positive test, admitted drug use only when pressed,
made other inconsistent statements about her usage, went to bed
at 5:00 p.m. every day, sometimes had to be awoken to take the
children to school, tested positive during pregnancy for
methamphetamine, had a prior arrest for possessing a controlled
substance, and the family’s pastor thought that mother had a
history of drug use. (Id. at pp. 595–597, 601–602.) While father
here did initially deny using methamphetamine and might have
lied about when he last used it, the evidence in this case is
nothing like that in In re K.B. Indeed, father admitted to the
social worker that he had used methamphetamine in July 2020
and acknowledged his mistake. After his initial positive drug
test, his weekly drug tests were all negative. This sparse
evidence is in stark contrast with the extensive evidence in In re
K.B.
In short, the evidence at most shows some drug use. It
does not show use arising to the level of abuse. In addition, there
is no evidence that the children suffered serious physical harm or
were at substantial risk of suffering such harm because of
father’s substance abuse, as required by section 300, subdivision
(b)(1). When the social worker first encountered father, he was
4 Father missed one test in September 2020 because he had
to pick up the children.
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caring for the children under impossible circumstances and
making rational decisions about their care. He, for example, took
them with him to work when he could, improvised ways to
provide water and electricity, ensured the children ate daily, and
reasonably evaluated that the family was better off in the
abandoned home rather than in a shelter. Before COVID, the
children were attending school and an aftercare program. All
persons interviewed indicated that the children were well cared
for by father. The children themselves reported being adequately
fed, provided for, and happy living with father. Father therefore
maintained a job and cared for the children under incredibly
stressful, challenging circumstances. No serious harm or risk of
it is therefore shown on this record.
DCFS, however, suggests that father’s drug use caused him
to be homeless, which in turn created a risk of harm to the
children. We agree with a general observation that drug abuse
can contribute to homelessness. But no evidence supports such a
link here. All that can be said on this record is poverty caused
the family’s homelessness.
We therefore reverse the jurisdictional findings for
insufficient evidence. Accordingly, we also reverse the
dispositional order. (See, e.g., In re Roger S. (2018) 31
Cal.App.5th 572, 583.)
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DISPOSITION
The jurisdictional and dispositional orders are reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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