In re COLE Y., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.Y., Defendant and Appellant.
No. B256594
Second Dist., Div. One.
Jan. 28, 2015.
1444
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn Harrison, Assistant County Counsel, and Melinda A. Green, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
BENDIX, J.*—K.Y. (Father) appeals from the juvenile court‘s March 25, 2014 jurisdictional and dispositional orders (1) declaring five-year-old Cole Y. a dependent of the court pursuant to
We conclude that substantial evidence supported the juvenile court‘s jurisdictional order, but that the March 25, 2014 dispositional order must be reversed to the extent it conditioned the family court‘s modification of the juvenile court‘s custody and visitation exit order upon proof of Father‘s completion of drug and parenting programs and counseling. In all other respects, the dispositional order is affirmed.
The section 300, subdivision (b) petition
On March 14, 2014, the Los Angeles County Department of Children and Family Services (DCFS) filed a first amended petition under
Events leading up to the filing of the section 300, subdivision (b) petition
DCFS conducted several interviews, whose substance it reported to the juvenile court. We now summarize DCFS‘s reports.
On January 9, 2014, DCFS received a referral of general neglect of Cole by Father. That day, after Father reported to police Cole had been missing for two hours, the police found Cole walking with Amber, three to four miles from home. She was “‘extremely high‘” with “facial sores commonly seen on narcotics users” and in possession of codeine. Amber was also in an agitated state. She said she had known Father for a few months and called him “‘Babe.‘” Amber stated Father was known to allow women who had been released from jail to stay in his home. He bought them drugs and had sex with them. Amber had a long criminal history and was on probation with a search condition. Amber had been released from jail a week earlier. She had misdemeanor and felony convictions for narcotics related arrests from February 2013 to December 2013.
Father told police Amber was Cole‘s babysitter and he had left Cole with Amber to give the cleaning lady a ride home. Initially, Father denied knowing anything about Amber and said he had hired her just two days earlier. Then he told police he had known her for a few months and that Amber and Danielle, a friend of Father‘s, had stayed overnight at his house a few months earlier. After police found methamphetamine and pipes in Amber‘s room,
Father stated he had not seen any drugs in Amber‘s room “or anything that made him think about her having drug issues” for the two days she had stayed in his home. Father said he would not allow Amber back in the house to collect her belongings. Father was unable to provide Danielle‘s phone number. Father denied that he had ever been arrested and claimed to be unaware that Danielle had ever been arrested or that Amber had a long criminal history.
DCFS reported Cole was appropriately dressed and his room was neat and clean. Cole told DCFS Father took good care of him; Father took him to school and cooked meals for him. Cole said he felt safe with Father. Cole said he also felt safe with Mother and he liked Amber.
Paternal grandmother and Mother stated Father was a very good father. Mother said she and Father had interviewed babysitters in the past and he usually hired responsible babysitters. In an emergency, Mother and Father had used a babysitting Web site where the sitters were screened and subjected to background checks. She believed that Father was scared by the incident and would never “‘do it again.‘” Mother took care of Cole in her home Sunday afternoon through Wednesday night and every other Friday. Paternal uncle stated Father‘s “choice in women is not too good,” but he believed him to be a good father.
A neighbor told DCFS Father had “a long history of having police come to visit him” and there was domestic violence when Mother had lived in the house with Father. The police told the neighbor Father had various women live with him in exchange for “favors.” The neighbor witnessed people smoking in a car parked outside Father‘s home, which might have indicated drug activity. She said Father did not watch Cole and assumed other people would look after him.
DCFS observed Amber‘s room was immediately next to Cole‘s room. Amber had a hookah on her shelf and two “inappropriate adult sexually provocative posters” on her wall, which DCFS recommended Father remove.
Father‘s drug tests in February 2014 were negative, but he subsequently failed to schedule a drug test after promising to do so and failed to give permission for an assessment to be done. On February 25, 2014, DCFS informed the juvenile court that Father might not understand that he had to comply with drug tests and requested that the juvenile court “clearly” order Father to comply with random and on-demand drug tests as a condition to Cole‘s remaining in Father‘s home.
DCFS filed the original section 300 petition on February 18, 2014. After Father tested positive for methamphetamine on February 28, 2014, DCFS filed the first amended section 300 petition on March 14, 2014.
Events subsequent to the filing of the first amended section 300 petition
On March 7, 2014, Cole was removed from Father‘s care and released to Mother. Mother told DCFS that Father had a history of “taking in women who had been previously incarcerated and giving them room and board for undisclosed services.” Mother stated she was not surprised about the allegation that Father had left Cole in the care of a drug user because she “has always had serious concerns about [Father‘s] choices in regards to the women he spends time with.” Mother stated past allegations of Father‘s drug use were true and she and Father had used methamphetamine in 2009. Mother reported Cole was “‘terrified‘” of Father and could not sleep at night, and Father had shown up unannounced at Mother‘s home and Cole‘s school. Mother was currently working as a loan officer and was living in a two-bedroom suite at a hotel, which DCFS deemed appropriate for Cole until she could save enough money for an apartment. The social worker observed that Cole appeared to be closely bonded to Mother.
After the positive drug test result, Father told DCFS he had been taking ADHD medication, which he believed caused his positive drug test. At the time he was tested, Father did not tell DCFS or the laboratory, Pacific Toxicology, that he had been taking ADHD medication. An employee of Pacific Toxicology stated the ADHD medication “might show up as amphetamine ... [but] there is no known prescription medication that would show up as methamphetamine on a drug panel.” Father subsequently tested negative for drugs on March 13, 2014, and April 1, 2014.
At the jurisdictional hearing on March 25, 2014, DCFS investigator Jeff Steinhart testified Father was a drug user and had a previously sustained allegation of methamphetamine use. In connection with the current matter, Father had tested positive for methamphetamine and amphetamine. Mr. Steinhart was not aware of evidence that Father had ever used drugs while caring for Cole. Mr. Steinhart testified there was “no direct evidence” that Father knew Amber was a drug user, but that even if Father did not know, he was still neglectful in leaving Cole with a babysitter he had known for only two days. Mr. Steinhart testified Father had told police he had met Amber only two days before she took Cole, but Amber told police she was in a relationship with Father and referred to him as “‘Babe.‘” Father told Mr. Steinhart he had met Amber through Danielle, but Father was unable to provide Danielle‘s contact information.
Jeffrey Maier testified he was a toxicology technologist employed by Pacific Toxicology. Mr. Maier testified that Father‘s positive drug test was as “close to a hundred percent as I can get.” He testified there are no over-the-counter preparations that would cause a false positive for methamphetamine and “prescription medications only containing methamphetamine would cause a positive result.”
Father testified Amber was referred to him by a friend as a babysitter who needed a place to stay. Father stated he had known her only two days, but later admitted Danielle had introduced Amber to him two months previously and Amber had spent the night at his house. He stated he had no reason to know she was a drug user. He denied knowing she kept drugs or drug paraphernalia in her bedroom. He stated that on the day of the incident, he had left Cole with Amber for half an hour, then came home at 4:30 p.m. to a note from Amber saying she was taking Cole for a walk. He waited half an hour, then searched for them. Father notified police only at 7:00 p.m. He denied testing positive for methamphetamine, stating he had tested positive for amphetamine. He believed his ADHD medication caused the positive result for amphetamine. He denied ever using methamphetamine or amphetamine in Cole‘s presence. He denied having “any incidents that brought the attention of the DCFS.”
After Father testified, his counsel stated he did not have a basis to request striking the positive drug test results and withdrew previously submitted evidentiary objections.
After argument of counsel, the juvenile court sustained the first amended petition. The juvenile court stated it was weighing the evidence in its totality.
“[T]aking into consideration the totality of the evidence the testimony of [Father], which the court did not find to be credible,” the court terminated jurisdiction with a family law exit order, placing sole physical custody of Cole with Mother and joint legal custody with Mother and Father. The court ordered monitored visits for Father, “And with regards to any liberalization of those visits, the family court can determine that when they see fit.” It also ordered Father to complete a drug program and to participate in a parenting program and individual counseling. In referring to the family court custody order, the juvenile court stated, “And in order to modify the court‘s orders, ... Father will have to complete ... a full drug program with weekly testing, a parenting program and individual counseling.” This appeal followed.
DISCUSSION
Standard of review
The juvenile court‘s jurisdictional finding that the minor is a person described in
Substantial evidence supported the juvenile court‘s jurisdictional findings under section 300, subdivision (b)
Father contends that Cole was not at substantial risk of any future serious harm for two reasons: (1) Father‘s use of an unfit babysitter was an isolated incident; and (2) Father‘s single positive drug test does not constitute substantial evidence and there was no evidence Father had exposed Cole to drug use or cared for him while under the influence of drugs.
“‘A jurisdictional finding under
Viewing all conflicts in favor of DCFS and drawing all reasonable inferences in support of the judgment, as we must (In re Veronica G. (2007) 157 Cal.App.4th 179, 185 [68 Cal.Rptr.3d 465]), we conclude that substantial evidence supported the juvenile court‘s assertion of jurisdiction over Cole.
The unfit babysitter argument
Father argues that In re Savannah M. (2005) 131 Cal.App.4th 1387 [32 Cal.Rptr.3d 526] (Savannah) is controlling here because he left Cole in the
It is true that the appellate court in Savannah reversed the juvenile court‘s jurisdictional finding under
The juvenile court found different facts in the case before us. The court found Father was not a credible witness and that he was familiar with methamphetamine use despite his protestations to the contrary. Because an allegation regarding his use of methamphetamine had been sustained against him and he currently tested positive for methamphetamine, the court reasonably could have rejected his testimony that he had never used methamphetamine. Father also claimed that the positive test was for amphetamine—and not for methamphetamine—and was the result of his use of ADHD medication. Because Father had not told DCFS or the laboratory that he was taking ADHD medication until the positive drug test result, the court reasonably could have found him not credible. The court could have reasonably relied instead on the testimony of Mr. Maier, who confirmed the positive drug test for methamphetamine and stated “prescription medications only containing methamphetamine would cause a positive result.”
Based on Father‘s shifting versions of how long he had known Amber, Amber‘s insistence on calling him “Babe,” and his history of inviting drug addicts into his home in exchange for sex and drugs, the juvenile court also could have rejected Father‘s testimony that he knew Amber for only two days and that he was unaware of her past criminal history and drug use. According to the police, Father had previously invited heavy narcotics users into the house to babysit Cole. Mother testified about her serious concerns about the women Father brought into the house and was not surprised at the allegation that Father had knowingly left Cole in the care of a drug addict. As stated, it is within the juvenile court‘s province to weigh the credibility of the witnesses. (In re Precious D., supra, 189 Cal.App.4th at pp. 1258-1259 [issues of fact and credibility are questions for the juvenile court].)
The single positive drug test argument
Father contends there was no substantial evidence supporting the juvenile court‘s finding that Cole was at serious risk of physical harm because Father had only negative drug test results after one positive test for amphetamine and methamphetamine, and there was no evidence he had ever used drugs while caring for Cole or exposed him to any drug use. He relies principally on In re Destiny S. (2012) 210 Cal.App.4th 999 [148 Cal.Rptr.3d 800] (Destiny S.) for this assertion.
In that case, the juvenile court asserted jurisdiction under
We reversed. We held marijuana use alone would not support the jurisdictional finding, nor would tardiness to school one year earlier but not presently. (Destiny S., supra, 210 Cal.App.4th at p. 1003.) Similarly, methamphetamine use nine years earlier and one positive methamphetamine and marijuana test result—followed by three negative ones—did not constitute substantial evidence to support the juvenile court‘s jurisdictional finding. Finally, we noted that Destiny was a preteen. (Id. at p. 1004.)
Father contends that Destiny S. is controlling because Father‘s subsequent drug tests were negative and there was no evidence he had ever used drugs while caring for Cole or had exposed him to any drug use. He also contends his home and Cole‘s room were nicely furnished. He points out that Cole was neat, clean, appropriately dressed, healthy, and stated he wanted to live with Father and had never been physically abused.
We conclude that substantial evidence supported the juvenile court‘s finding that Cole was at serious risk of physical harm.
Conditioning the family court‘s modification of the juvenile court‘s custody and visitation exit order on proof of Father‘s completion of certain programs and counseling violated section 302, subdivision (d)
Father argues that the juvenile court‘s exit order requiring Father to complete drug and parenting programs and individual counseling before the family law court could modify the juvenile court‘s exit order conflicts with
In In re Chantal S. (1996) 13 Cal.4th 196, 203 [51 Cal.Rptr.2d 866, 913 P.2d 1075] (Chantal), the Supreme Court held that under
DCFS cites the authority a juvenile court has to issue collateral orders in crafting an exit order to argue that the juvenile court‘s order here was well within its discretion. As a general proposition, DCFS is correct that juvenile courts may require participation in counseling and other programs in an exit order. The juvenile court did so here. The issue before us is different, to wit, whether the juvenile court had authority to condition the family court‘s modification of an exit order upon the completion of counseling and other programs in the face of a statute—
The March 25, 2014 dispositional order is reversed to the extent it conditioned modification of the family court‘s custody and visitation order upon proof of Father‘s completion of drug and parenting programs and counseling. In all other respects, the March 25, 2014 jurisdictional and dispositional orders are affirmed.
Rothschild, P. J., and Chaney, J., concurred.
BENDIX, J.*