IN RE I.C.

No. D070996.

In re I.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.C., Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Elena S. Min , under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery , County Counsel, John E. Philips , Chief Deputy County Counsel, and Eliza Molk for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

HUFFMAN, Acting P. J.

A.C. (Father) appeals from the juvenile court's order denying his motion to dismiss the San Diego County Health and Human Services Agency's (the Agency) petition under Welfare and Institutions Code section 300, subdivision (b), on behalf of his minor son, I.C., and the court's jurisdictional order sustaining the petition.1 Father contends there was no substantial evidence to support these orders. I.C.'s mother, Al.C. (Mother) is not a party to this appeal. The Agency maintains the court's rulings were appropriate and supported by the record.2 We agree and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

I.C. was born in June 2013. The Agency opened I.C.'s dependency case after the Department of Homeland Security (DHS) arrested Mother on June 30, 2016, for crossing the border from Mexico with approximately 15 kilograms of methamphetamine in her gas tank. Mother was charged with possession and transportation of methamphetamine, and child endangerment. I.C., who was in Mother's car at the time, was detained at Polinksy Children's Center (Polinsky). The Agency filed a petition under section 300, subdivision (b), alleging Mother left I.C. "unattended and inadequately supervised," citing the arrest incident. The petition further alleged I.C. was "present in the car and there is a substantial risk [he] will suffer serious physical harm. . . ."

The Agency's detention report, prepared by social worker Gwendelyne McCreesh, included input from the parents and a DHS agent, among others. Mother said she and Father had been together for 10 years (married for six), and indicated the family's primary residence was in Kern County. She addressed the arrest, explaining she had gone to Cancun for four days with friends and parked her car at a friend's house in Tijuana. She arrived home on or around June 21. She returned to her friend's house on June 30 because she forgot her bag and went to retrieve it with I.C. While in Tijuana, Mother and her friend ate at IHOP. Mother said she was not aware of the drugs, would not do anything to jeopardize I.C., and that they were good parents.

A different social worker met with Father at the Child Welfare Services (CWS) office and reported he had a "heavy scent of alcohol coming from him." When asked if he had been drinking, Father said he had a couple of beers. Father denied knowing about the allegations against Mother. He reported she had gone to Tijuana to pick up birthday presents for I.C. The detention report also reflected a prior dependency referral for Father from June 2012, when Father was arrested for driving under the influence (DUI) while Mother and their older child, N.C., were in the car.

McCreesh spoke with the DHS agent. He reported Mother's demeanor was very nonchalant. Mother requested a lawyer after being read her rights, so they were unable to question her.

The Agency indicated it had "grave concerns for minors being directly exposed to criminal activity," and Mother "used . . . [I.C.] in trafficking a large amount of drugs across the border which is highly dangerous. . . ." The Agency also had concerns for I.C.'s safety if he were returned to Father, citing his arrival at the CWS office smelling of alcohol. The juvenile court detained I.C.

The Agency's jurisdiction and disposition report addressed a new referral as to Father, the parents' criminal histories, and further input by the parents and law enforcement. In July 2016, the Kern County Child Abuse Hotline received a referral that Father appeared intoxicated and smelled heavily of alcohol, while N.C. was possibly in his care in San Diego. Kern County conducted an investigation and the referral was closed. A Kern County social worker had met with the parents and Father reported he had some beer before going to the CWS office, but a friend drove him and he was not caring for N.C. at the time. The social worker did not believe there were any protective issues for N.C.

Mother's criminal history reflected two convictions in 2008, one under Health and Safety Code section 11383.7, subdivision (b)(1) for possession of substances with the intent to sell or furnish for the manufacture of methamphetamine, and another for misdemeanor theft. Father had a lengthy criminal history, including a 1995 conviction for burglary and receipt of stolen property, a 2008 conviction under Health and Safety Code section 11383.7 (as well as warrants in 2010, 2012, and 2014), DUI incidents in 2008, 2012, and 2014 (with the 2008 DUI being dismissed and the disposition of the latter two unclear), and a 2010 probation violation relating to a firearm restriction.

McCreesh spoke with the parents again. Mother reported the criminal charges against her were dropped and there was no evidence to prove them. She indicated the 2008 conviction was for possession of Claritin. Father again stated Mother went to Mexico with I.C. to pick up presents. He added she was going to pass through the paternal great-aunt's house in San Clemente to pick up other things. When asked if he had any knowledge about Mother crossing with drugs, Father did not make a statement. He acknowledged his conviction for receipt of stolen property and other incidents, but did not address the drug-related matters and denied any recent arrest, probation, or parole.

Input by law enforcement came from another DHS agent and the district attorney (DA). The DHS agent reported he spoke with the DA, it was not a "slam dunk kind of a case," and Mother was not charged because she had no criminal history. The agent also reported there was "history of car . . . and plate swapping" and "[t]he guy got caught driving the car that they swapped plates with," but neither the agent, nor the report elaborated on this statement. The DA reported charges were not filed "because there was no admittance or knowledge from the mother that drugs were in the vehicle" and Mother was not heading to San Diego County, citing the DHS report. The DHS report reflects Mother stated at the border that that she was going to North Hollywood. The DA explained there was not enough evidence and noted they were unable to ask her further questions. The DA also stated that if Mother were arrested again on the same charges, there was a possibility she could be charged for this incident.

By this point, I.C. was in a foster home. Both parents understood why the Agency was involved and agreed to do reunification services. Father stated he "will do whatever it takes to get [I.C.] back." When asked about her needs, Mother stated she should get I.C. because it was "not [her] fault," "there was no evidence [she] knew about the drugs," and she "would not put him in that situation." When asked about his needs, Father said "I need to do some classes."

The Agency concluded I.C. still was not safe in his parents' care, noting among other things, the parents' criminal histories and their stories about Mother's arrest "not match[ing] up." The Agency believed Father had some knowledge of Mother's activities, due to these inconsistencies, but was a nonoffending parent due to not being present during the arrest. The Agency found Mother's behavior reflected a lack of concern for I.C. and a lack of knowledge of the dangers associated with drug distribution, and that she failed to accept responsibility for the drugs in her car (or to provide an alternate explanation). It found neither parent grasped the severity of Mother's actions and their impact on I.C.

The Agency provided an addendum report in August 2016. The Kern County social worker advised McCreesh he had asked Father to drug test, but Father declined, indicating he is not a drug user. The Agency also filed a case plan changing its recommendation to placement with the parents.

The juvenile court held the jurisdiction and disposition hearing. The Agency reports were entered into evidence, and county counsel did not call witnesses. Father moved under section 350, subdivision (c) (section 350(c)) for the court to dismiss the petition, which Mother joined. As we discuss in more detail post, this section permits the court to dismiss a petition after the close of the Agency's evidence, if the Agency has not met its burden of proof. At jurisdiction, that burden is preponderance of the evidence. (§ 355, subd. (a).) If the court denies the motion, the parents can present evidence. (§ 350, subd. (c).)

The court first found by a preponderance of the evidence that "Mother . . . did drive across the border, knowingly, with methamphetamine concealed in her vehicle," and that she put I.C. in harm's way when she did so. The court stated its concern was a "common sense one," explaining, in part, that "it's not reasonable to believe that an individual would randomly stash a large quantity of narcotics . . . which has a . . . monetary value, and then simply leave that quantity in the gas tank of the vehicle for someone else to, at some point, profit from. . . ." The court concluded it was "reasonable to infer that Mother had knowledge of the fact that narcotics were in her vehicle. . . ." The court acknowledged Mother denied knowledge of the drugs and that the DA had not filed charges. However, the court explained, "[t]he issue that the court has in this setting is very different from an analysis of whether this case could be proved beyond a reasonable doubt."

The court then addressed Father, finding: "[his] history with alcohol is of concern to the court. And the fact that he came to the social worker meeting . . . appear[ing] to be under the influence of alcohol with a heavy smell of alcohol, leaves the court with concern for Father and his substance abuse issues."

Finally, the court focused on the parents' criminal histories. With respect to Mother, the court observed theft is a crime of moral turpitude that "impact[s] on truth and veracity," and also noted her 2008 methamphetamine-related conviction. As for Father, the court reviewed his criminal record, noting, among other things, the alcohol and drug-related incidents. The court explained the 2008 DUI was dismissed and "[i]nstead, Father pled guilty to what is called a wet reckless, driving recklessly under the influence of alcohol. . . ."

The court found, by a preponderance of the evidence, that the Agency met its burden. The court advised the parents that "at this point, under Section 350(c)," they could "offer evidence on their behalf." Counsel for Mother and Father declined to offer evidence, and the hearing proceeded to closing arguments. In its closing, county counsel explained "[t]he reason the Agency is recommending placement with the parents is there are things we can put in place so that the child can be protected without removing the child," but indicated "[i]t's very important that the court does take jurisdiction."

The court found, by a preponderance of the evidence, that the petition allegations were true. The court incorporated its findings from the section 350(c) motion, and supplemented them, finding "there is a substantial risk of physical harm to this child, not only now but in the future." The court explained it based its decision "not only on the parents' history of criminal conduct. . . . But also, based upon current behavior in this case. . . ."

The juvenile court proceeded to disposition and found parental placement appropriate. The court found by clear and convincing evidence that "the conditions still exist which justified this court's initial assumption of jurisdiction, . . . and the conditions are likely to exist if supervision is withdrawn." Father timely appealed.

DISCUSSION

A. Motion to Dismiss

Father argues the juvenile court erred in denying his motion to dismiss under section 350(c). This section provides:

"At any hearing in which the probation department bears the burden of proof, after the presentation of evidence on behalf of the probation department and the minor has been closed, the court, on motion of the minor, parent, or guardian, or on its own motion, shall order whatever action the law requires of it if the court, upon weighing all of the evidence then before it, finds that the burden of proof has not been met. That action includes, but is not limited to, the dismissal of the petition and release of the minor at a jurisdictional hearing. . . . If the motion is not granted, the parent or guardian may offer evidence without first having reserved that right."

The Agency brought its petition under section 300, subdivision (b)(1). That subdivision applies when a child "has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child. . . ." "The Agency had "the burden to prove these jurisdictional facts by a preponderance of the evidence." (In re D.C. (2011) 195 Cal.App.4th 1010, 1014; § 355, subd. (a).)

Father contends substantial evidence review applies, while the Agency suggests substantial evidence applies only to the factual findings, and abuse of discretion review is appropriate. Although the parties do not cite (and we are not aware) of cases addressing the standard of review for denial of a section 350(c) motion, we review a grant of dismissal under section 350(c) for substantial evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200 (Sheila B.) [affirming dismissal; "the appropriate standard of review is for this court to determine whether the trial court's order was supported by substantial evidence."].) Given the fundamental issue under section 350(c) concerns sufficiency of the evidence, we conclude substantial evidence review is appropriate whether the motion is denied or granted. The Agency's reliance on In re Roberto C. (2012) 209 Cal.App.4th 1241 (Roberto C.) is misplaced. Roberto C. does contain language indicating the juvenile court there did not abuse its discretion under section 350(c), but it cites Sheila B. and states "we review the decision . . . under the substantial evidence test." (Roberto C., at p. 1254.)3

On substantial evidence review, "[w]e resolve conflicts in favor of the decision, and do not reweigh the evidence or determine the credibility of the witnesses." (Roberto C., supra, 209 Cal.App.4th at p. 1254; see In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.) ["[W]e draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary finding.]".) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (T.V., at p. 133.)

Viewing the record favorably to the juvenile court's decision, and drawing all reasonable inferences, we conclude there is substantial evidence to support the court's denial of the motion to dismiss.

First, there was evidence sufficient to establish, by a preponderance of the evidence, that Mother knowingly transported the drugs, including the amount of methamphetamine at issue, the parents' inconsistent stories, and their criminal histories. Father offers several arguments here, contending there is no evidence Mother had knowledge of the drugs, the criminal charges were dropped, and Mother was a "blind mule" used to transport drugs unknowingly. None are persuasive.

With respect to Mother's knowledge, we recognize she denied knowing about the drugs and stated she would not jeopardize I.C. But the court impliedly rejected Mother's version of events, which is a credibility determination we will not revisit. The other evidence in the record supported the inference that she was aware of the drugs. (County of Kern v. Jadwin (2011) 197 Cal.App.4th 65, 73 ["substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom"]; cf. People v. Bloom (1989) 48 Cal.3d 1194, 1208 ["[e]vidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence"].)4

As for the criminal charges, a DA's decision not to proceed in a criminal case does not undermine the existence of substantial evidence in a dependency proceeding. (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 563 ["[A] failure to convict a parent [of conduct] in a criminal proceeding—where the burden is a high one—'beyond a reasonable doubt'—does not establish that the parent did not commit [that conduct] for purposes of a proceeding where the burden is lower—'preponderance of the evidence'—as it is in dependency cases]; id. at p. 562 ["The [DA]'s office may have had reasons for not prosecuting . . . wholly independent" from whether the person committed the crime.].)

Finally, the parents did not raise the blind mule argument below or offer evidence at the hearing to support it. Father cites articles about blind mules in his reply brief, but these materials were not before the trial court and we will not consider them. (See In re Zeth S. (2003) 31 Cal.4th 396, 400 [reviewing court generally may not "receive and consider postjudgment evidence that was never before the juvenile court"].) We also reject Father's assertion that the DA's statement that "there was no admittance or knowledge from the mother that drugs were in the vehicle" reflects the DA "implicitly acknowledged Mother may have been a `blind mule.'" This statement just reflects Mother did not admit she was aware of the drugs. In any event, it still would be reasonable to conclude that a blind mule would not be entrusted with a large amount of methamphetamine and Mother was not acting in this capacity.5

Second, Mother's criminal history not only provides support for her knowledge of the drugs, but also reflects her conduct was not isolated and could recur. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco) ["While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. . . . `[T]here must be some reason to believe the acts may continue in the future.'"].) Father disputes the relevance of Mother's criminal history, contending she did not have a record of transporting drugs and her drug conviction involved precursors for manufacture, not sales. But past conduct can be relevant, without being identical.

Third, and focusing on Father, the Agency believed he knew of Mother's conduct leading to her arrest. Even assuming he was unaware, his own conduct contributes to a substantial risk of harm for I.C. He has a lengthy criminal history, including multiple drug-related warrants and convictions, which continued after his older child was born. There is also evidence Father has issues with alcohol that are likely to continue, as evidenced by the DUI incidents (including the 2012 DUI with N.C. in the vehicle) and his decision to drink before going to the CWS office.

Father contends his refusal to drug test and criminal history "alone are insufficient bases" for jurisdiction without present risk of harm. The court did not focus on the drug test, and the issues here pertain to criminal activity and Father's alcohol use, not drugs. Sergio C. (1999) 70 Cal.App.4th 957, cited by Father, is thus inapposite. (Id. at p. 959 [reversing order requiring father to drug test, due to lack of alleged drug use].)6 As for Father's criminal history, this was not the only evidence supporting jurisdiction, and there was evidence of a present risk of harm, including the events leading to Mother's arrest and Father's use of alcohol before the CWS meeting. Father attempts to explain that conduct, stating "he was forthcoming about drinking a few beers, but had not driven to the meeting and was not caring for . . . [N.C.] at the time." But he does not explain why he was drinking before the meeting in the first place. Father also cites the Kern County investigation, which appeared to follow a referral based on Father's drinking and concluded there was no risk to N.C. The court was entitled to give greater weight to the DUI history and Father's conduct at CWS, than those investigation findings, and we will not reweigh the evidence.

Taken as a whole, the parents'"comments and conduct offered no indication" that their drug-related activities or Father's issues with alcohol use were "unique situation[s]" or that "[they were] unlikely to engage in similar behavior in the future." (In re John M. (2012) 212 Cal.App.4th 1117, 1124-1125.)

We address two remaining arguments by Father. First, Father contends In re Ricardo L. (2003) 109 Cal.App.4th 552 (Ricardo L.) and In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.) support reversal. We disagree. In Ricardo L., the Court of Appeal reversed a jurisdictional order, where the only evidence of substantial risk was the siblings' status as dependents and allegations in their dependency petitions. (Ricardo L., at p. 567.) Here, the evidence in the record pertains to I.C., and is sufficient to establish he is at substantial risk of harm. J.N. involved reversal of a jurisdictional order based on a single DUI incident and likewise is distinguishable. (J.N., at p. 1022.) There, the parents became intoxicated during dinner with their children and, while driving the family from the restaurant, the father was in a car accident. (Id. at p. 1017.) The Court of Appeal found, among other things, no evidence of substance abuse, no evidence the parents' understanding of the risks of alcohol use was so deficient they were unable to protect the children, the parents were remorseful, and the children were otherwise well cared for. (Id. at p. 1026.) Here, in contrast, the evidence reflected past and current endangering conduct, that the parents did not appreciate the severity of the problem, and that their remorse appeared focused on separation from I.C., not acceptance of responsibility for their actions. As for I.C.'s care, that is not at issue here; his safety is.

Second, Father contends the parental placement reflects "neither the Agency nor the court believed there was a substantial risk of harm to I.C.." We construe Father's contention to be that a jurisdictional finding of substantial risk of harm is inconsistent with a disposition order permitting I.C. to live with his parents. We disagree. At disposition, "[t]he juvenile court has broad discretion in crafting a disposition pursuant to a child's best interest." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) "Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal." (In re Cole C. (2009) 174 Cal.App.4th 900, 902-903.) By ordering that I.C. be placed with his parents, the court was impliedly concluding there were reasonable means to protect him without removal, and that this was in his best interest—not that no substantial risk of harm existed. To the contrary, the court's findings reflect it believed that risk remained, in the event supervision were withdrawn. Given the different considerations and burdens that apply at jurisdiction and disposition, we see no inconsistency in adjudicating I.C. a dependent and ordering him placed with his parents under Agency supervision.

We conclude substantial evidence supports the court's denial of the section 350(c) motion.

B. Jurisdictional Findings

"On appeal, the jurisdictional findings are reviewed under the substantial evidence test." (In re S.O. (2002) 103 Cal.App.4th 453, 461.) Father argues there was no substantial evidence to support the juvenile court's jurisdictional findings. But the parents did not offer any evidence subsequent to denial of the section 350(c) motion, meaning the same record was before the court on jurisdiction. For the reasons discussed ante, that record contained substantial evidence to support the court's jurisdictional findings.

DISPOSITION

The orders are affirmed.

BENKE, J. and HALLER, J., concurs.

FootNotes


1. Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2. I.C. joins the arguments of the Agency.
3. Even under an abuse of discretion standard, our review would turn on sufficiency of the evidence. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065-1067 [adopting abuse of discretion but acknowledging that "evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling"].)
4. On reply, Father contends the parents' inconsistencies were not sufficient to reflect they were aware of the drugs. We need not consider points raised for the first time on reply (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10), and would not find the argument persuasive, regardless.
5. We note the DHS officer mentioned car and plate swapping, but it is not clear what he was talking about, the DHS report reflects Mother's car was registered to her, and Father does not allege there was any issue with Mother's car or plate.
6. The Agency contends the drug test includes ethanol and Father was asked to test because he arrived at CWS smelling of alcohol. The record does not reflect why the Agency asked for the drug test, so we need not address this contention.

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