Filed 5/30/13 In re Ashley M. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


In re ASHLEY M. et al., Persons Coming                               B243052
Under the Juvenile Court Law.                                        (Los Angeles County
                                                                     Super. Ct. No. CK93422)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

SCOTT M.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County. Donna
Levin, Juvenile Court Referee. Affirmed.


         Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and
Appellant.


         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
John C. Savittieri, Deputy County Counsel, for Plaintiff and Respondent.
       No appearance for Minors.
                                         ******


       Appellant Scott M. (Father) was involuntarily hospitalized after he had been
drinking for four consecutive days and expressed suicidal thoughts. Father’s girlfriend
arranged for the children Ashley M. and Robert M. to go with their mother, Danielle B.
(Mother) on the day Father was hospitalized. This was his third hospitalization during
the past year. The juvenile court sustained a petition pursuant to Welfare and Institutions
Code section 300, subdivision (b),1 which alleged that Father’s alcohol abuse and history
of mental and emotional problems placed the children at risk. Father appealed, asserting
that substantial evidence did not support the juvenile court’s jurisdictional findings.
       We affirm. The Los Angeles County Department of Children and Family Services
(Department) offered sufficient evidence to show there was a substantial risk the children
would suffer serious physical harm or illness from Father’s inability to provide regular
care for them due to his alcohol abuse and mental health issues.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Facts Preceding Detention.
       In September 2007, when Ashley was four years old, the family came to the
attention of Sacramento County Child Protective Services due to allegations that Father
sexually abused her. The allegations were assessed as being inconclusive. In 2008,
Father was arrested for disorderly conduct and being under the influence; he had
previously been arrested several times on varying charges, and had served time in prison.
Father was involuntarily psychiatrically hospitalized in April and September 2011.




1       Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.


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       The Department received a referral on March 29, 2012 that Father had been
brought in by law enforcement and hospitalized pursuant to section 51502 because he was
a danger to himself and others. Father was drunk and had been drinking for the past four
days. He told a friend he wanted to “‘Off himself.’” He likewise told law enforcement
officers that he wanted to end his life and had been drinking for several days. At the time
of the referral, the Department learned that Father had full custody of Ashley and Robert,
and Mother had lost custody. Before he was hospitalized, Father had left the children
with his girlfriend, Kim A., who contacted Mother to have her take the children. He was
released after a 72-hour hold.
       A Department social worker made unannounced visits to Father’s home on
March 30, April 7 and April 11, 2012, but did not make contact with anyone. On
April 12, 2012, Father telephoned the social worker. He admitted he had recently been
hospitalized and stated that he had allowed Mother to care for Ashley and Robert. He
added that the children had been missing Mother and it had been difficult for him to care
for them due to transportation issues. He denied that the children had been removed from
Mother’s custody, stating that he had sole physical custody and Mother had visitation
rights.3 He confirmed that Mother had picked up the children before he was hospitalized,
and therefore they were not present when law enforcement came to pick him up. He did
not admit or deny that he had a substance abuse problem and had been drinking for four


2       Section 5150 provides in relevant part: “When any person, as a result of mental
disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer, member of the attending staff, as defined by regulation, of an evaluation facility
designated by the county, designated members of a mobile crisis team provided by
Section 5651.7, or other professional person designated by the county may, upon
probable cause, take, or cause to be taken, the person into custody and place him or her in
a facility designated by the county and approved by the State Department of Social
Services as a facility for 72-hour treatment and evaluation.”

3      Father’s March 2012 declaration of custody alleged that Mother attempted suicide
and was hospitalized in August 2011; Mother denied the allegations and hospital records
did not support that claim.

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consecutive days, stating “‘I was just having some personal problems and I didn’t want
the kids to be around me.’” He denied that Mother or he had ever abused or neglected
the children. Approximately two weeks later, Father signed a safety plan which
permitted Mother to continue to care for the children during the Department’s
investigation. He refused to sign a release of the records concerning his hospitalization.
       The social worker interviewed Mother and the children on April 14, 2012. Mother
reported that Father and she had been separated for about two years, and similarly denied
any neglect or abuse of the children. She was currently residing with an aunt and uncle,
and confirmed that Father had custody of the children while she had visitation rights. She
stated that Father had had a “‘drinking problem’” and he drank almost daily, primarily
beer, when he resided with her. She was aware of his past hospitalizations, but denied
that he used drugs or had engaged in domestic violence. With respect to Father’s recent
hospitalization, Mother stated Kim A. informed her that Father was depressed, had been
drinking and expressed suicidal thoughts. She picked up the children before law
enforcement arrived.
       Nine-year-old Ashley stated that she had everything she needed while living with
Father, but she missed Mother. She reported that neither parent abused nor neglected her
or Robert. She did not know what drugs and alcohol were. Four-year-old Robert
appeared happy and well cared for.
       The Department concluded that Ashley and Robert were at “‘Very High Risk’”
due to Father’s mental, emotional and sobriety issues, as well as Mother’s failure to
obtain a custody order.
       Section 300 Petition.
       On May 9, 2012, the Department filed a section 300 petition alleging pursuant to
subdivision (b) that the children were at a risk of harm from Father’s history of substance
abuse and current alcohol abuse (paragraph b-1) and from his history of mental and
emotional problems, including his recent hospitalization to treat his psychiatric condition
(paragraph b-2).



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       Father and Mother appeared at a detention hearing the same day. The juvenile
court found a prima facie case for detaining the children; it removed them from Father’s
custody and permitted the Department to release them to Mother’s custody so long as she
continued to reside with her relatives. It further ordered weekly random alcohol testing
for Father and allowed him monitored visitation.
       Jurisdiction and Disposition.
       The social worker reinterviewed Father, Mother, Kim A. and the children for the
Department’s June 11, 2012 jurisdiction/disposition report. With respect to the petition’s
allegation concerning Father’s substance abuse, Ashley admitted she had seen Father
“drink beer . . . like one or two.” Kim A. stated that Father does not usually drink.
Mother stated that although Father had a drinking problem right after the two separated,
she was under the impression that Father had not been drinking since he gained custody
of the children. She added that he is stable and capable of caring for the children when
not drinking, but that he becomes emotionally depressed when he drinks alcohol. Father
admitted that he experimented with alcohol and drugs when he was a teenager and spent
time in Juvenile Hall. In 1993 he was arrested for driving under the influence, and in
1995 he was arrested for unlawfully possessing a firearm and spent six years in prison.
He admitted to having a problem with alcohol during that time in his life. He further
stated, however, that he needed to “detox” in 2011 and he was told the only way to
receive free “detox services” was to say he was a danger to himself or others.
       In connection with the second allegation concerning Father’s mental and
emotional condition, Mother denied any knowledge of Father’s prior hospitalizations and
said Father told her the Department’s account of his most recent hospitalization was
untrue. Though he conceded that his two 2011 hospital stays were the result of his
alcohol problem, Father denied ever being diagnosed with depression or being suicidal.
According to him, the March 2012 hospitalization was the result of a misunderstanding.
He admitted that at that time he “was having a hard time and [he] was drinking a lot,” and
called a friend to help him with the children. He said he began confiding in her and she
must have thought he was in trouble because the police soon arrived at his home offering

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him the choice of jail or the hospital; he chose the latter. Kim A. stated that she was
unsure whether Father was suicidal in March 2012, but she did come at his request and
got the children out of the house.
       More generally, Mother characterized the children’s custody arrangement as
voluntary and reported that since their separation she and Father had been able to
co-parent the children effectively. Nonetheless, in 2012 she agreed to have the family
law court grant full custody of the children to Father. At the time of the
jurisdiction/disposition report, neither child had received a regular medical checkup in
quite some time and had not been to a dentist in over two years.
       The Department opined “that both the mother and the father appear to minimize
the father’s mental health problems and repeatedly emphasize that each parent’s
individual problems have never affected or influenced the children,” and that their failure
to comprehend the serious nature of Father’s mental/emotional and sobriety issues placed
the children at risk of abuse and/or neglect. The Department recommended that the
children be detained, stating: “Based on the history of mental health hospitalizations as
to the father, the father’s prior and current alcohol issues, the father’s criminal record and
the mother’s prior mental health issues, the overall risk [to the future safety of the
children] is ‘high.’”
       In a June 11, 2012 last minute information for the court, the Department reported
that Father had completed four weekly random alcohol tests—all negative. At the
jurisdiction/disposition hearing the same day, the juvenile court admitted the
Department’s reports into evidence and heard counsels’ arguments. While Father’s
counsel sought dismissal of the petition, counsel for the Department and the children
asked the juvenile court to sustain it, with the exception of the reference to Father being
diagnosed with depression.
       The juvenile court found that the children were persons as described in
section 300, subdivision (b) and sustained the petition, striking the reference to a
diagnosis of depression because the Department did not present evidence to support that
allegation. The juvenile court characterized the matter as a “classic case where the father

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doesn’t want to face the seriousness of the alcohol problem.” Proceeding immediately to
disposition, the juvenile court declared the children dependents of the court pursuant to
section 300, subdivision (b), ordered the children removed from Father’s custody and
placed them with Mother. It also ordered a full alcohol treatment program for Father to
include random testing, a mental health psychiatric evaluation and parenting classes.
Father received monitored visitation. Mother submitted to the juvenile court’s
jurisdiction and received family preservation and other services.
         Father appealed. In January 2013, while the appeal was pending, the juvenile
court terminated jurisdiction with a family law order which awarded Father and Mother
joint legal custody of the children and Mother sole physical custody. We have taken
judicial notice of the juvenile court’s termination order. We note that “[t]he court’s
termination of jurisdiction does not, however, moot Father’s appeal. The court’s
jurisdictional findings as to Father, if erroneous, could have severe and unfair
consequences to Father in future family law or dependency proceedings.” (In re Daisy H.
(2011) 192 Cal.App.4th 713, 716; accord, In re D.C. (2011) 195 Cal.App.4th 1010,
1015.)
                                        DISCUSSION
         Though Father appealed from both the jurisdictional and disposition orders, he
challenges only the juvenile court’s jurisdictional findings under section 300,
subdivision (b). (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘Every brief
should contain a legal argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it without
consideration’”].) The statute provides, in pertinent part, that a child comes within the
jurisdiction of the juvenile court if “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, . . . by the inability of the
parent . . . to provide regular care for the child due to the parent’s . . . mental illness,
. . . or substance abuse.” (§ 300, subd. (b).) Jurisdiction under section 300,
subdivision (b) is warranted by a showing “the child has suffered or there is a substantial



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risk that the child will suffer, serious physical harm or abuse.” (In re Adam D. (2010)
183 Cal.App.4th 1250, 1261, italics omitted.)
       The Department bears the burden to “‘“prove by a preponderance of the evidence
that the child . . . comes under the juvenile court’s jurisdiction.”’” (In re Veronica G.
(2007) 157 Cal.App.4th 179, 185.) “On appeal from an order making jurisdictional
findings, we must uphold the court’s findings unless, after reviewing the entire record
and resolving all conflicts in favor of the respondent and drawing all reasonable
inferences in support of the judgment, we determine there is no substantial evidence to
support the findings. [Citation.]” (Ibid.) “‘The term “substantial evidence” means such
relevant evidence as a reasonable mind would accept as adequate to support a conclusion;
it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]’
[Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 574–575.) In determining whether
substantial evidence—contradicted or uncontradicted—supports the juvenile court’s
jurisdictional findings, “we draw all reasonable inferences from the evidence to support
the findings and orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and credibility are
the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
       Here, substantial evidence supported the juvenile court’s findings under
paragraphs b-1 and b-2 of the petition.4 In the petition’s first paragraph, the Department
alleged that Father “has a history of substance abuse and is a current abuser of alcohol,
which renders the father incapable of providing regular care and supervision of the
children.” It further cited the March 2012 incident and alleged that Father’s alcohol
abuse placed the children’s physical health and safety at risk. The juvenile court found
paragraph b-1 true as pled. Highlighting the seriousness of Father’s problem, the juvenile




4       We address the sufficiency of the evidence under both paragraphs of the petition,
even though a single basis of jurisdiction is sufficient to uphold the juvenile court’s order.
(E.g., In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045; In re Jonathan B. (1992) 5
Cal.App.4th 873, 875–876.)

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court observed that even though Father had been hospitalized to “detox” on more than
one occasion, he continued to drink, even with two young children under his care.
       By Father’s own admission, his problem with alcohol was long-standing and
unresolved. Father stated that he began experimenting with alcohol at age 13. During
the next 20 years, Father amassed a criminal record which included drunk driving
convictions in 1993 and again sometime after 2002. He admitted that in 2011 “he did
have an alcohol problem which resulted in two ‘detox’ stays at Henry Mayo.” With
respect to the March 2012 incident, Father admitted that he had been drinking for at least
four consecutive days because he wanted to “‘forget everything.’” Though Father noted
that the children were not with him during the 2011 incidents, the March 2012 drinking
incident occurred just two to three weeks after he gained full custody of the children and,
by his own account, the children remained in his custody during those four days of
drinking. Mother did not take custody of the children until the day Father was
hospitalized.
       Given these circumstances, substantial evidence supported the juvenile court’s
determination that the children’s safety remained at risk until Father received treatment
for his alcohol abuse. Even if we were to characterize the March 2012 hospitalization as
a single incident of endangering conduct, it would be sufficient to support jurisdiction.
As explained in In re J.N. (2010) 181 Cal.App.4th 1010, 1025, which involved a single
incident of a parent’s drinking and driving, the court explained that “[i]n evaluating risk
based upon a single episode of endangering conduct, a juvenile court should consider the
nature of the conduct and all surrounding circumstances,” including evidence of the
parent’s understanding of the endangering conduct, steps taken to address the problematic
conduct, and other indications that the conduct will not recur. Here, Father never
acknowledged the seriousness of his alcohol abuse and instead denied that his drinking
negatively affected the children. Though he did have four clean court-ordered alcohol
tests before the jurisdictional hearing, there was nothing in the record suggesting that he
was voluntarily participating in any type of alcohol treatment program. Nor was there



                                             9
any indication that Mother could assist him in treating his problem, as Father told her that
he had stopped drinking.
       Conceding that the Department offered evidence of his recent alcohol abuse,
Father argues that there was no evidence showing a nexus between his drinking and any
current risk to his children. We do not agree. Section 300.2 provides that the purpose of
the Welfare and Institutions Code provisions relating to dependent children is to secure
protection for children being harmed or who are at risk of being harmed, and that “[t]he
provision of a home environment free from the negative effects of substance abuse is a
necessary condition for the safety, protection and physical and emotional well-being of
the child.” (Italics added.) Though Father has made efforts to “detox,” the evidence
showed that he has been unable to provide a home environment free from alcohol abuse
for his children. Notwithstanding that the children remained in his care until the last day
of his four days of drinking, he continued to deny that his alcohol abuse remained a
current problem, stating: “In the past it was a problem (alcohol) but not now.” Mother
stated that Father could provide a stable environment for the children so long as he did
not drink. Ashley initially told the social worker she did not know what alcohol was, but
admitted in the jurisdiction/disposition report that “‘I know what alcohol is . . . it’s wine
and I don’t want to say the other thing. . . . Yeah . . . beer. I’ve seen my dad drink beer
. . . like one or two.’” Her statements demonstrated she had some awareness of Father’s
alcohol consumption and a desire to conceal it.
       A dependency court need not wait until the child has been seriously harmed by the
parent’s abuse or neglect before it assumes jurisdiction to protect the child. (E.g., In re
Heather A., supra, 52 Cal.App.4th at p. 194.) Evidence that while the children were in
Father’s care he drank for a period of several consecutive days to such an extent that he
required hospitalization, and thereafter failed to acknowledge that his drinking posed any
problem for his children, supported the finding that his alcohol abuse created a risk of
serious harm and neglect.
       Similarly, substantial evidence supported the jurisdictional findings under
paragraph b-2 of the petition that Father’s mental and emotional condition, including

                                              10
suicidal ideation, rendered him incapable of providing regular care and supervision of the
children and placed them at substantial risk of harm. Father had been involuntarily
psychiatrically hospitalized three times during the year preceding the section 300 petition.
Father continued to minimize the significance of these incidents, claiming that he falsely
represented he was a danger to himself or others in order to receive free services. He
attributed his most recent hospitalization to “personal problems” and stated the children
were with Mother while he was hospitalized because they had been missing her. Mother
initially denied knowledge of Father’s hospitalizations, but then acknowledged that
Father had been hospitalized on more than one occasion to address his mental and
emotional issues. Though Father claimed that Kim A. misunderstood his condition, she
stated that preceding Father’s most recent hospitalization, Father had been depressed, was
drinking and said that he felt like he wanted to commit suicide. Kim A. reported to the
Sheriff’s Department that she called law enforcement because she feared Father “was
going to hurt himself and possible [sic] the kids . . . .” The law enforcement officer who
completed Father’s application for a 72-hour detention for evaluation and treatment
reported that Father told him he wanted to end his life and had been drinking for several
days because he wanted to forget everything.
       Substantial evidence therefore demonstrated that Father’s mental health issues
periodically rendered him incapable of providing adequate care for the children. Even
though there was no evidence that Ashley and Robert had suffered actual physical injury
as the result of Father’s mental health issues, his continued efforts to minimize those
issues coupled with his inability to care for the children during periods of hospitalization
“pose[d] an inherent risk to their physical health and safety” (In re Rocco M. (1991) 1
Cal.App.4th 814, 824) and constituted substantial evidence the children were at risk of
future serious physical harm or illness.
       Contrary to Father’s assertion, we do not find that the circumstances presented
here are akin to those in In re James R. (2009) 176 Cal.App.4th 129. There, the court
reversed a juvenile court’s order under section 300, subdivision (b), based on the court’s
findings regarding the mother’s alleged mental health problems and substance abuse.

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(In re James R., supra, at p. 137.) The evidence of the mother’s substance abuse and its
possible relation to mental health problems was that the mother once had a negative
reaction from the combination of taking eight ibuprofen tablets and drinking beer. (Id. at
pp. 131–132.) When she realized she was having an adverse reaction, she called for help
and was hospitalized. The evidence further showed she was not intentionally trying to
harm herself, but needed the large dose of ibuprofen for pain relief, as she had built up a
tolerance for acetaminophen. (Id. at p. 132.) She admitted that she had previously been
hospitalized for mental health issues before her children were born and used illegal drugs
approximately seven years earlier. (Ibid.) Both her psychiatrist and the social worker
opined that the mother did not pose a risk to her young children. (Id. at pp. 133–134.)
Moreover, the mother and father lived together, and father at all times had been able to
provide adequate care for the children. (Id. at p. 134.) In light of this evidence, the
appellate court deemed speculative any causal link between the mother’s mental state and
future harm to the children. (Id. at p. 136.)
       In contrast to In re James R., the evidence in the instant case showed that Father
was drunk and depressed for several days while the children remained under his
individual care, that he had very recently been hospitalized with thoughts of suicide and
that his hospitalization rendered him incapable of caring for the children. Both Mother
and Kim A. acknowledged that Father was unable to care for the children when he was
drinking and depressed. More importantly, the mother in In re James R. recognized her
problems and voluntarily initiated services before being ordered to do so. (In re
James R., supra, 176 Cal.App.4th at p. 132.) Father never acknowledged his mental
health problems, choosing instead to minimize or deny them. Thus, the possibility of
recurring problems and risk to the children from Father’s mental health issues was far
more than speculative. (See Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074,
1104 [“‘The purpose of dependency proceedings is to prevent risk, not ignore it’”].)
Substantial evidence supported the juvenile court’s jurisdictional findings.




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                                    DISPOSITION
      The juvenile court’s jurisdictional and disposition orders are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                   FERNS
We concur:




____________________________, Acting P. J.
      ASHMANN-GERST


____________________________, J.
      CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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