In re Michael C. CA2/2 ( 2014 )

Filed 11/24/14 In re Michael C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re Michael C. et al., Persons Coming B255782
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK02202)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALI C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Valerie
Skeba, Juvenile Court Referee. Affirmed.
Lauren Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
******
Ali C. (Father) challenges the juvenile court’s jurisdictional and dispositional
orders removing his two children from his sole custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father has two children with A.C. (Mother)--Michael (born 2001) and Alicia (born
2006). Mother has been diagnosed with bipolar disorder and schizophrenia. The
children lived with Father. Late one night, Father decided to clean his loaded shotgun
after having somewhere between 12 and 72 ounces (the equivalent of one to six 12-ounce
bottles) of beer. The gun went off, and blew a hole in the wall of his apartment just 20
feet from where the kids were sleeping. Father left the apartment, and drove to his
mother’s house to hide the shotgun. Father pled no contest to a felony count of
discharging a firearm with gross negligence (in violation of Pen. Code, § 246.3, subd.
(a)), and was sentenced to three years of probation, including one year of jail.
The Los Angeles County Department of Children and Family Services
(Department) filed a petition to remove the children from Father’s custody. The petition
alleged two grounds upon which the children were placed at risk of harm: (1) Father’s
discharge of the firearm in close proximity to the children; and (2) Father’s alcohol
abuse. At the jurisdictional hearing, the court considered evidence that Father had been
convicted of driving under the influence of alcohol in 2011 ; that he drank alcohol when
the children were present, and had been drinking the night of the shotgun incident ; and
that Michael and Mother were both aware of Father’s drinking, including that he drank to
“calm down.”
The trial court determined it had jurisdiction and sustained both allegations in the
Department’s petition. The court expressed concern with Father’s ever-changing account
as to what happened the night of the shooting: Father first denied being there when the
shotgun went off, but later admitted he had been the one holding the shotgun after
consuming various quantities of beer (40 ounces, then 72 ounces, then “one,” “two or
three” beers). The court went on to conclude that Father exhibited poor judgment by
cleaning a loaded shotgun while drinking and thereafter attempted to hide the shotgun by
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leaving his children unattended while he drove (presumably while intoxicated) to his
mother’s house. The court declared Michael and Alicia dependents of the court, and
placed them with Father’s brother (Uncle), with whom the children had a longstanding
and good relationship.
Father appealed. (Mother is not a party to this appeal.)
DISCUSSION
I. The Jurisdiction Order
A court may assert jurisdiction over a child when that child “has suffered, or
[when] 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.” (Welf. & Inst. Code, § 300, subd. (b).)1 We must affirm
a trial court’s exercise of jurisdiction over a child if it is supported by substantial
evidence. (In re Mariah T. (2008) 159 Cal. App. 4th 428, 438; accord, In re I.J. (2013) 56
Cal. 4th 766, 773 [“‘“We do not reweigh the evidence or exercise independent judgment,
but merely determine if there are sufficient facts to support the findings of the trial
court.’””].) Father argues that the evidence presented as to each allegation was not
substantial.
More specifically, Father contends that the Department did not establish that he
poses a substantial risk of present harm to his children. He relies upon In re J.N. (2010)
181 Cal. App. 4th 1010. In re J.N. held that a “single episode of [past] parental conduct”--
in that case, one incident of driving under the influence of alcohol while children were in
the vehicle--usually did not establish a substantial present risk to the children and thus
did not support the assertion of jurisdiction. (Id. at pp. 1022, 1026.) Because, in Father’s
view, the Department is seeking to assert jurisdiction solely on the basis of his “single
incident” of negligently discharging a shotgun, In re J.N. applies and there is insufficient
evidence that he poses a current risk to his children.
1 All further statutory references are to the Welfare and Institutions Code.
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As an initial matter, the courts are divided on whether the Department must always
establish a current risk of harm. In re J.N. so requires, but other cases consider serious
past harm or risk of harm to be sufficient. (In re J.K. (2009) 174 Cal. App. 4th 1426, 1435
& fn. 5.) We need not decide which line of cases to follow because the evidence in this
case establishes a risk of present harm under In re J.N. The court in In re J.N. limited its
holding to cases in which the evidence demonstrated no more than a “single episode of
parental conduct”; the court explicitly distinguished cases in which the evidence revealed
an “ongoing substance abuse problem,” which sufficed to establish a present risk of
harm. (In re J.N., supra, 181 Cal.App.4th at p. 1022; accord, In re John M. (2013) 217
Cal. App. 4th 410, 419; In re R.C. (2012) 210 Cal. App. 4th 930, 943-944.) The evidence in
this case entails more than a single incident of misconduct. Father regularly consumed
alcohol, and had twice driven while intoxicated (the night of his 2011 DUI conviction
and the night of the shooting). Indeed, Father’s drinking lead to two criminal
convictions--namely, his 2011 DUI conviction and his recent firearm discharge
conviction. This evidence amply demonstrates an “ongoing substance abuse problem”
posing a present risk of harm, even under In re J.N.
Father also challenges the court’s determination that he abused alcohol. He cites
In re Drake M. (2012) 211 Cal. App. 4th 754. In re Drake M. held that a parent’s lawful
use of marijuana did not support a finding of “substance abuse” sufficient to exert
jurisdiction over a child without proof of (1) a medical professional’s opinion that the
parent abused the substance; or (2) a diagnosis that the parent suffered from a mental
health disease contained in the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM). (Id. at p. 766.) Father
contends that the Department did not present either type of evidence, and that he is
accordingly entitled to dismissal of the petition.
In our view, the methods of proving substance abuse cited by In re Drake M. were
meant to be illustrative, not exclusive and exhaustive. In re Drake M. cited Jennifer A v.
Superior Court (2004) 117 Cal. App. 4th 1322, 1347, and Jennifer A. did not purport to
proclaim absolute evidentiary prerequisites. Moreover, later courts have not read In re
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Drake M. as making a doctor’s opinion or a DSM diagnosis mandatory. (In re Rebecca
C. (2014) 228 Cal. App. 4th 720, 725; In re Christopher R. (2014) 225 Cal. App. 4th 1210,
1218.) We are consequently disinclined to adopt Father’s gloss on In re Drake M.,
particularly when the net effect is to dictate to the Department how it must in every case
carry its burden of proof. Because, as explained above, the evidence of Father’s alcohol
abuse is substantial, we will not overturn the trial court’s order under In re Drake M.
II. The Disposition Order
A child may not be removed from his or her parent’s custody unless a court finds,
by clear and convincing evidence, that (1) there would be a “substantial danger” to the
child’s “health, safety, protection, or physical or emotional well-being” if the child were
returned home; and (2) “no reasonable means” short of removal exist to protect the
child’s health. (§ 361, subd. (c)(1).) We review removal orders for substantial evidence
(In re J.S. (2014) 228 Cal. App. 4th 1483, 1493), and the court’s jurisdictional findings are
prima facie evidence that the child cannot safely remain in the home. (§ 361, subd.
(c)(1).)
Father contends the evidence was insufficient to justify removing Michael and
Alicia from his custody. He argues the court erred by not considering alternatives less
drastic than removal and suggests the court could have ordered the social workers to
“closely monitor” the children in Father’s home when he was released from custody.
While it is true the court must consider alternatives to removal, it has broad discretion in
making a dispositional order. (§ 361, subd. (c)(1).) Mother was incapable of providing
care for the children, and she and Father had earlier signed affidavits consenting to
placement of the children with Uncle following their detention. Furthermore, at the time
of the disposition hearing Father was incarcerated and did not present the juvenile court
with an appropriate plan for placement of the children. Under these circumstances, the
evidence supports the court’s finding that no reasonable means to protect Michael and
Alicia were available without removing them from Father’s custody.
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DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
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