In re Julian E. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. J519239B
- Trial judge
- Sharon L. Kalemkiarian
- Outcome
- affirmed — Affirmed.
- Area
- dependency
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court sustained a dependency petition and removed the child from the father's custody, finding clear and convincing evidence of a substantial danger to the child's health and safety due to unsafe housing conditions and the father's substance abuse history. The Court of Appeal affirmed the order, holding that substantial evidence supported the detriment finding and that the father failed to demonstrate that reasonable means existed to protect the child without removal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order removing the child from the father's custody under Welfare and Institutions Code section 361, subdivision (c)(1).“The juvenile court removed Julian from the custody of his parents and placed him in the care of a relative.” | substantial evidence | correct | agree with court The appellate court correctly applied the substantial evidence standard, which is the appropriate standard of review for dependency dispositional orders. The court properly noted that the appellant bears the burden of showing the evidence is not of a sufficiently substantial nature to support the findings. The court's analysis correctly focuses on whether the record contains evidence of a sufficiently substantial nature to support the detriment finding, rather than reweighing the evidence. |
Finding that there were no reasonable means to protect the child's physical health without removing the child (detriment finding).“We are not persuaded by the argument there were reasonable means to protect Julian's physical health without removing him from the home because the juvenile court could have ordered the Agency to assist Christian in finding suitable housing, implement a safety plan and make unannounced child welfare checks on Julian's behalf.” | substantial evidence | correct | agree with court The court correctly rejected the father's argument that alternative measures (housing assistance, safety plans, unannounced visits) were reasonable means to avoid removal. The court reasoned that the father's recent methamphetamine use and lack of a relapse prevention plan were sufficient to sustain the detriment finding, and that the father had not taken steps to secure suitable housing. This aligns with the statutory requirement that the court find no reasonable means to protect the child without removal. |
Authorities
- relied: In re T.V. (2013) 217 Cal.App.4th 126 — The focus of the statute is on averting harm to the child, and jurisdictional findings are prima facie evidence the minor cannot safely remain in the home.
- relied: In re Cole C. (2009) 174 Cal.App.4th 900 — In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention.
- relied: In re Kristin H. (1996) 46 Cal.App.4th 1635 — In reviewing the court's findings and orders under section 361, subdivision (c), the appellate court employs the substantial evidence test, bearing in mind the heightened burden of proof.
- relied: In re Dakota H. (2005) 132 Cal.App.4th 212 — The appellant has the burden to demonstrate there is no evidence of a sufficiently substantial nature to support the findings or orders.
- relied: Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402 — The appellate court draws all legitimate and reasonable inferences in support of the judgment.
- relied: In re Rocco M. (1991) 1 Cal.App.4th 814 — The juvenile court considers the child's age and ability to protect himself in determining if the child is at risk of harm.
The appellate opinion: sound — The opinion is sound because it correctly applies the substantial evidence standard of review to the dependency dispositional order and properly analyzes the statutory requirements for removal under Welfare and Institutions Code section 361. The court addresses the appellant's specific arguments regarding reasonable alternatives to removal and supports its conclusion with relevant case law and record evidence.
How this analysis was made · dispute it
unusual dispositionThe juvenile court sustained a section 300, subdivision (b) petition and, at disposition, removed seven-year-old Julian from his father Christian's custody under Welfare and Institutions Code section 361, subdivision (c)(1), finding substantial danger from the unsanitary and hazardous residence, Christian's methamphetamine use, and his continuing contact with the substance-abusing mother, and finding no reasonable means short of removal. The Court of Appeal applied substantial evidence review (mindful of the clear and convincing burden) and affirmed, rejecting Christian's arguments that he had mitigated the risk through voluntary services and that housing assistance, a safety plan, and unannounced visits were reasonable alternatives to removal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dispositional finding under section 361(c)(1) that returning Julian to Christian's custody would pose a substantial danger to his physical health, safety, protection, or physical or emotional well-being“The juvenile court could reasonably conclude that Christian needed to make greater progress in substance abuse treatment before Julian could be safely returned to his care. That, alone, is sufficient to sustain a detriment finding.” | substantial evidence | correct | agree with court The record described in the opinion (positive methamphetamine test with denial of recent use, early-stage recovery with no relapse plan or sponsor, a home still unsuitable for a child despite improvements, lack of insight into the home's dangers, and ongoing contact with an untreated substance-abusing mother) supports a substantial danger finding under In re T.V. and In re Cole C., which permit the court to weigh past conduct and current circumstances and to focus on averting harm. The appellate court correctly declined to reweigh the father's favorable evidence (bond, clean tests, treatment progress), consistent with In re Dakota H. and In re Kristin H. |
Dispositional finding under section 361(c)(1) that there were no reasonable means to protect Julian without removing him from parental custody“Christian did not take any steps to locate more suitable housing for himself and Julian, and did not ask the social worker for assistance.” | substantial evidence | correct | agree with court The court addressed the proposed alternatives (housing assistance, safety plan, unannounced welfare checks) and reasonably found them insufficient given the father's recent methamphetamine use, early recovery, lack of insight, and failure to seek better housing after repeated warnings; this is a defensible application of the statute. The analysis is brief, however, and does not engage published decisions such as In re Hailey T. and In re Ashly F. that have reversed removal orders where in-home services and unannounced visits were viable, so the result is supportable but the reasoning is thin. |
Authorities
- relied: In re T.V. (2013) 217 Cal.App.4th 126 — Removal does not require that the parent be dangerous or the child actually harmed; the focus of section 361 is averting harm, and jurisdictional findings are prima facie evidence the child cannot safely remain in the home.
- relied: In re Cole C. (2009) 174 Cal.App.4th 900 — In deciding whether a child can safely remain in the parent's custody, the court may consider the parent's past conduct, current circumstances, and response to the conditions that led to intervention.
- relied: In re Kristin H. (1996) 46 Cal.App.4th 1635 — Removal findings are reviewed for substantial evidence, bearing in mind the heightened clear and convincing burden of proof.
- relied: In re Dakota H. (2005) 132 Cal.App.4th 212 — The reviewing court does not reweigh evidence or assess credibility; the appellant bears the burden of showing there is no substantial evidence to support the findings.
- relied: In re Rocco M. (1991) 1 Cal.App.4th 814 — A child's age and ability to protect himself are relevant to the risk-of-harm analysis.
- relied: Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402 — All legitimate and reasonable inferences are drawn in support of the judgment on substantial evidence review.
- missed: In re Hailey T. (2012) 212 Cal.App.4th 139 — Removal order reversed where reasonable alternatives such as unannounced visits, in-home services, and strict supervision could have protected the child; the court must genuinely consider less drastic alternatives.
- missed: In re Ashly F. (2014) 225 Cal.App.4th 803 — Section 361(c)(1) requires the court to consider whether reasonable means short of removal, such as in-home services and unannounced visits, could protect the child, and the agency must document efforts to prevent removal.
The appellate opinion: sound with gaps — The opinion correctly states the substantial evidence standard with the heightened burden and answers the father's arguments with a detailed record of methamphetamine use, early recovery, an unsuitable home, lack of insight, and continued contact with the untreated mother, which adequately supports both the danger and no-reasonable-means findings. It treats the reasonable-alternatives argument summarily, without addressing published decisions (e.g., In re Hailey T., In re Ashly F.) that scrutinize whether in-home services and unannounced visits could suffice, so the result is defensible but the analysis has a gap.
Opinion
Filed 6/6/16 In re Julian E. 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 JULIAN E., a Person Coming Under the Juvenile Court Law. D069811 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J519239B) Plaintiff and Respondent, v. CHRISTIAN E., Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Sharon L.
Kalemkiarian, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Christian E. appeals an order removing his son, Julian E., from his custody under Welfare and Institutions Code section 361, subdivision (c)(1).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Julian E. is the seven-year-old son of Christian and Shannon S. On August 24, 2015, the San Diego County Health and Human Services Agency (Agency) detained Julian in protective custody and filed a petition under section 300, subdivision (b). The petition alleged Julian had suffered, or was at risk of suffering, serious physical harm or illness as a result of unsafe living conditions and parental substance abuse.
Christian lived in a rented room in a large house. During the Agency's child welfare investigation, Christian twice refused to allow a social worker to enter the home, denying that Julian and Shannon lived at the residence. When another resident permitted police officers to enter the home, the officers confirmed that Julian and Shannon were living in the home. Conditions in the home and on the property were substandard. There were animal and human feces and urine on the floor of the home, cockroach infestations in the bedrooms and bathrooms, and spider webs stretching from floor to ceiling in a hallway. There were plates of old food covered with cockroaches in the kitchen and living room. Trash and debris were scattered throughout the house and yard. Christian and Shannon appeared to be under the influence of drugs.
1 Further statutory references are to the Welfare and Institutions Code. 2 Julian's hands, legs and clothing were dirty. He could not tell the social worker the last time he had bathed. Julian had a speech impediment. He had never attended school. Although it was late afternoon, Julian had not had anything to eat that day.
The social worker asked Christian and Shannon to work with the Agency to develop a plan for Julian's safety. They did not cooperate. Christian denied using drugs but tested positive for methamphetamine on August 24. He had felony convictions for the sale of marijuana and hashish. Shannon had a significant child welfare history with her older children due to her substance abuse and mental health problems. One of Julian's half brothers was currently a juvenile court dependent.
The Agency provided a list of East County service referrals to Christian on August 20, when Julian was detained, and again on September 4. The referrals included substance abuse treatment classes, parenting classes, domestic violence classes, counseling and emergency shelters. The Agency emailed a list of TERM therapists to the parents on October 27, asking them to contact a therapist. The Agency explained that participation in services was voluntary. Christian voluntarily participated in drug tests.
He tested clean five times. Christian entered substance abuse treatment on December 7, 2015. His counselor reported that Christian had excellent attendance and was "going above and beyond" in the program.
Christian and Julian had positive and loving visits several times a week. When Julian saw Christian, he ran to his father and leaped into his arms. Christian was affectionate with Julian. They were closely bonded. Christian's parenting skills were adequate. Julian missed his father very much. The Agency increased visits over the 3 holidays to allow full day visits on Christmas Eve, Christmas Day and New Year's Day at the paternal grandparents' home.
The jurisdictional and dispositional hearings were continued to January 15, 2016, for compliance with the Indian Child Welfare Act. The social worker reported that she visited Christian's home on October 21, 2015. The exterior grounds appeared to be cleaner. Christian's room was small but clean, but had areas of mold in it. He had to walk outside around the house to access the bathroom and kitchen. The front deck of the home had animal feces on it and a urine smell, and appeared to be decaying in places. A bathroom smelled of urine and had cockroaches, but was otherwise clean. The social worker heard rodents scurrying in the ceiling. Eight other people lived in the home, some with significant mental health problems. There were woodpiles in the backyard that would pose a risk to a child playing in the yard. Police officers said there was a history of drug sales and drug use at the house. The social worker told Christian the residence was not a suitable place for Julian. In December, Christian told the social worker he moved to a larger room in the residence with inside access to a bathroom.
The social worker recommended the juvenile court remove Julian from the custody of his parents. If Christian agreed to some parameters, the social worker would authorize unsupervised visitation between Christian and Julian. Christian's home was not suitable for Julian, and Christian did not understand how the conditions of his home presented a health and safety risk to Julian. During her investigation, the social worker learned that the home had a reputation for housing persons with mental health problems.
Additionally, there was a history of drug sales in the home. In addition to the risks at his 4 residence, Christian recently began a substance abuse treatment program. He had yet to develop a relapse prevention plan, obtain a sponsor and structure a support system.
Christian acknowledged he was in contact with Shannon. Shannon did not seek treatment for her long-standing substance abuse and mental health problems.
Christian asked the juvenile court to place Julian in his care. Christian acknowledged there were ongoing problems with bugs and mice in the home. He said the odors in the home were caused by a sewage pipe problem down the street. Christian testified he completed parenting classes and six drug tests. He denied being under the influence of drugs the day Julian was detained in protective custody. Christian said he had used drugs less than 10 times in the past two years. He acknowledged his home was not ideal and planned to move as soon as he could afford to do so. Christian had removed the wood piles in the yard after the social worker identified them as a risk to Julian's safety. There were elderly and disabled persons living in the home. None was dangerous. Christian did not have a romantic relationship with Shannon. His relationship with her was familial, as father and mother to Julian. Christian said Julian would not be at risk of harm in his care.
The juvenile court sustained the section 300 petition by clear and convincing evidence. It found that Shannon had a lengthy history of substance abuse and instability.
As long as Christian was involved with Shannon, Julian would be at risk of harm. When Julian was detained, he had not eaten and he was dirty and inappropriately clothed. The housing conditions did not meet minimal standards of safety for a child, and the presence of mentally ill individuals increased the risk to Julian.
5 At the dispositional hearing, the juvenile court considered the strong, positive relationship between Christian and Julian, Julian's wishes, and Christian's progress with voluntary services. The juvenile court found that the conditions of Christian's residence, his history of methamphetamine use, and his relationship with Shannon presented a substantial danger to Julian's physical health, safety, protection, or physical or emotional well-being. The juvenile court removed Julian from the custody of his parents and placed him in the care of a relative.
DISCUSSION
Christian contends the juvenile court's order removing Julian from his care is not supported by substantial evidence. He argues that by the time of the dispositional hearing, he had mitigated the protective risk to Julian by participating in voluntary services, testing negative for drugs, and improving his living conditions. Christian asserts there were reasonable alternatives to removing Julian from his care, such as providing housing assistance, implementing a safety plan and conducting unannounced visits to check on Julian's welfare.
A
Statement of Law and Standard of Review A dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence that there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child (detriment finding).
6 (§ 361, subd. (c)(1).) 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. (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
"The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home." (In re T.V., supra, 217 Cal.App.4th at p. 135.) In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (In re Cole C.
(2009) 174 Cal.App.4th 900, 917.) The juvenile court also considers whether there are any reasonable protective measures and services that can be implemented to prevent the child's removal from the parent's physical custody. (§ 361, subd. (c)(1); see §§ 202, subd. (a), 16500.5, 16501, 16501.1.)
In reviewing the court's findings and orders under section 361, subdivision (c), we employ the substantial evidence test, bearing in mind, however, the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We review the trial court's findings to determine whether there is substantial evidence in the record that supports the findings. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden to demonstrate there is no evidence of a sufficiently substantial nature to support the findings or orders. (In re Dakota H. (2005)
132 Cal.App.4th 212, 228.) We draw all legitimate and reasonable inferences in support of the judgment. (Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 408.)
7 B There Is Substantial Evidence to Support the Removal Order Christian does not meet his burden on appeal to show that the evidence on which the juvenile court relied is not of a sufficiently substantial nature to support the detriment finding at the dispositional hearing. The record shows that Christian exposed Julian to his own and Shannon's substance abuse, provided an unsanitary and hazardous home for him, and neglected his needs for food, adequate care, education and supervision. Despite a positive test for methamphetamine and admitted past drug use, Christian denied recent drug use. The social worker testified that Christian was doing well in substance abuse treatment, but was in the early stages of recovery. In addition, Christian did not recognize the danger presented by his home environment to Julian. Although conditions in the home were improved by the time of the dispositional hearing, they were still not suitable for a child of Julian's age.
We are not persuaded by the argument there were reasonable means to protect Julian's physical health without removing him from the home because the juvenile court could have ordered the Agency to assist Christian in finding suitable housing, implement a safety plan and make unannounced child welfare checks on Julian's behalf.
(§ 361, subd. (c)(1).) This argument ignores Christian's substance abuse history, including his recent methamphetamine use. The juvenile court could reasonably conclude that Christian needed to make greater progress in substance abuse treatment before Julian could be safely returned to his care. That, alone, is sufficient to sustain a detriment finding. The record further shows that on several occasions, the social worker 8 told Christian his home was not suitable for Julian. Christian did not take any steps to locate more suitable housing for himself and Julian, and did not ask the social worker for assistance.
In considering Christian's past conduct and current circumstances, as well as Julian's age and ability to protect himself (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), the juvenile court reasonably determined Julian was at risk of harm in Christian's care, and there were no reasonable means to protect Julian's physical health without removing him from the custody of his parents. (§ 361, subd. (c)(1).) While the record shows that Christian and Julian are very well bonded, and that Christian voluntarily participated in some of the services the Agency offered to him prior to the dispositional hearing, the juvenile court properly focused on averting any harm to Julian in removing him from substandard housing and care. (In re T.V., supra, 217 Cal.App.4th at pp. 135- 136.) We conclude that there is substantial evidence to support the juvenile court's detriment finding and removal order.
9 DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- San Diego County Health & Human Services Agency v. Tyrone V. D063023 · 2013-05-29
- Candari v. Los Angeles Unified School District No. B218306 · 2011-03-08
- In Re Cole C. D053845 · 2009-06-04
- San Diego County Health & Human Services Agency v. Christina N. No. D045824 · 2005-08-26
- In Re Kristin H. Docket Nos. H014212, H014894 · 1996-07-01
- In Re Rocco M. A050854 · 1991-12-11