California Court of Appeals, Second District, First Division
In re JOHN M., a Person Coming Under the Juvenile Court Law.
JOHN M., SR., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v.
Pub. Order Date: 6/21/13
APPEAL from an order of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK34003
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jessica S. Mitchell, Senior Associate County Counsel.
John M., Sr. (father), appeals the dependency court’s jurisdictional and dispositional order denying him custody of his son John M. (John). Father, who was incarcerated at the time of John’s detention and who was the subject of an amended petition, argues that Welfare & Institutions Code section 361.2 provides that a noncustodial parent is entitled to placement consideration without regard to whether such parent is offending or nonoffending. Conceding that, in dependency court, he did not raise the possibility of John’s placement with him, father argues nonetheless there was no forfeit. Father also argues that insufficient evidence supports the jurisdictional findings against him. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 21, 2012, DCFS filed a petition alleging that Toni R. (mother) had bipolar disorder, a 25-year history of substance abuse, and was a current daily abuser of heroin, alcohol, and prescription medication. The petition alleged two counts against mother under section 300, subdivision (b).
The detention report stated that John was placed in foster care, and that John’s older sibling, J.R., had been removed from mother’s care in 1998 and adopted as a result of mother’s substance abuse in 2002. At the time of J.R.’s detention, mother and father had custody of John, but father was in prison. John’s parents’ home was in an unsanitary and unsafe condition, with no utilities and no bed for the minor to sleep on. Mother, in addition to a history of substance abuse, had a history of arrests and convictions for drug related offenses, including possession of a controlled substance.
Department of Children and Family Services (DCFS) received the current referral on January 28, 2012 based on mother’s treatment at an emergency room for pain in her left elbow. Mother admitted to emergency room staff that she was injecting heroin into her left arm. After mother’s discharge from the hospital, DCFS assessed John’s parents’ home for a safety plan. On February 1, 2012, the social worker conducted an unannounced home visit, and mother admitted she used heroin daily. Mother also took numerous medications for her bipolar disorder. On February 6, 2012, during a follow-up visit, the social worker found the home in disarray, and instructed mother to clean and purchase groceries.
On February 15, 2012, John’s maternal grandfather Kenneth R. informed DCFS that John was in the custody of paternal aunt Anna M. against the orders of DCFS, and mother had disappeared. Father was incarcerated in Wasco State Prison.
Anna told DCFS that she had been sober for the past seven years, and had room to care for John. Kenneth was unwilling to care for John. Anna told the social worker that she had previously cared for John because mother was unable to care for him due to her substance abuse. John told DCFS that he did not want to reside with Kenneth.
At the February 21, 2012 hearing, the court found that father was John’s presumed father. Mother, whose location remained unknown, was ordered to a drug treatment program with random testing, and given once a week monitored visitation. On March 13, 2012, Christina O., John’s adult paternal cousin, was given the right to make educational decisions for John.
On March 20, 2012, DCFS filed an amended petition, adding the allegations under section 300, subdivisions (a) and (b) that Kenneth had physically abused John by hitting him with a belt on the buttocks, and that mother failed to protect John. The petition further alleged under section 300, subdivision (b) that father had a history of substance abuse, including heroin, and that mother and father had a history of engaging in verbal altercations.
DCFS’s March 20, 2012 detention report stated that John remained in foster care placement. Mother had an extensive criminal background dating from 1986 including arrest and convictions for various drug offenses, prostitution, disorderly conduct, and robbery. DCFS’s jurisdictional report dated March 20, 2012 added that John was doing well in his placement. Father was in prison for a July 2011 altercation with mother in front of father and mother’s apartment, at which time mother sustained injuries to her face and head. Neighbors told the paternal aunt that mother threw herself on the car and would not let father leave. Mother told police the mirror broke off and hit her face. However, after leaving a party in their car, father hit mother with his fists repeatedly, causing injuries to mother’s head. John, who was not in the car at the time, believed mother had simply cut her head on the car’s mirror. John stated his parents were “[v]ery, very super nice.” John had seen mother hit father with her hand, and denied that mother and father threw objects at each other. John admitted that Kenneth had disciplined him with a belt. John did not know whether his parents used drugs or alcohol.
John told the social worker mother and father fought at home. Mother sometimes slapped father because they were mad at each other. Although the parents yelled at each other, John did not know why they were angry. John denied that father hit mother. When his parents ...