Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 510822B, George W. Clarke, Judge.
NARES, J.
Joy O. appeals a judgment declaring her minor son, Austin E., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing him from her custody. Joy challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007 five-year-old Austin accompanied his father, Randall E., to a drug sale. Randall and the paternal grandmother were part of a large drug trafficking operation. Randall and Austin lived in the grandmother's home, where glass pipes, a baggie with methamphetamine residue and other drug paraphernalia were found. Randall and the grandmother were arrested. The San Diego County Health and Human Services Agency (the Agency) detained Austin but released him to Joy the next day. The social worker explained to Joy the details of Austin's detention and advised her of the safety risks that Randall and the grandmother pose to Austin.
Joy had a criminal history, including numerous arrests for domestic violence and drug-related crimes. She admitted having used marijuana but said she had been sober for 10 years even though she never completed a drug treatment program. Joy also had numerous child welfare referrals involving Austin and his older brother Randy.
Soon after Austin was released to Joy, she lost her job and housing. She and Austin were living in a motel. Because Joy seemed hyperactive and unable to focus, social worker Nicole Tarvin asked her to take a drug test. Tarvin gave Joy referrals for help with housing and food. Arrangements were made for Joy to have weekly in-home support and parenting classes, but when she did not maintain contact with the community services worker, these services were terminated.
Several weeks later, Joy met with Tarvin and said Austin was with the grandmother. When Tarvin reminded Joy that the grandmother had placed Austin at risk, Joy said the grandmother would never do anything to harm Austin, and insisted Austin was safe in her care. Joy signed a voluntary services contract which included drug testing and treatment, domestic violence treatment and parenting classes, but she did not maintain contact with the Agency.
Tarvin interviewed Austin at the home of the paternal great-aunt. Austin spontaneously told Tarvin he sees Randy smoking "weed," explaining Randy buys it and "uses this pipe and it bubbles." Austin was able to draw a picture of the pipe. He said Joy and the grandmother are present when Randy smokes weed and Joy gets angry at Randy.
The great-aunt reported Austin was living at a campground with Joy and Randy. Austin showed the great-aunt a baggie of marijuana he was holding and said, "Look, Aunt Jill, weed." Joy took the baggie from Austin and put it in Randy's pocket.
The Agency filed a petition in the juvenile court under section 300, subdivision (b) alleging Austin was at substantial risk of harm because Joy allowed him to be supervised by the grandmother despite knowing she had been arrested on drug charges. Agency further alleged Austin was exposed to his older brother smoking marijuana. The court detained Austin with the great-aunt and ordered liberal supervised visitation for the parents.
After Austin was detained, Tarvin offered Joy services, but she refused the social worker's help. Tarvin noted Joy experienced mood swings, had difficulty focusing, was easily angered and showed unrealistic thinking and poor judgment.
At a contested jurisdiction and disposition hearing, Tarvin testified Joy recently moved to a house where a man named Steve lived. Tarvin tried to contact Steve to do a background check, but he did not return her telephone call. Joy reported she had participated in eight therapy sessions, but Tarvin was unable to contact the therapist to verify this.
Tarvin testified about the risk factors for Austin. She explained he was a five-year-old boy who needed adults to protect him. Austin had lived with his father, who sold drugs, in a home where there was drug paraphernalia and methamphetamine residue. When Tarvin first met Austin in May 2007 he did not know what drugs were. Within a month and a half of living with Joy, Austin was able to describe how to smoke marijuana, what it looked like and how it bubbled in a pipe. Austin and the grandmother said Randy smoked marijuana in Austin's presence. Although Joy did not condone Randy's marijuana use, she did not know how to handle the situation.
Tarvin had previously admonished Joy that the grandmother was not a safe caregiver for Austin and explained the details of the grandmother's drug arrest. Nevertheless, Joy allowed the grandmother to care for Austin because she trusted the grandmother and believed she would not harm Austin. Tarvin was concerned about Joy's lack of insight and judgment, and questioned her ability to accept responsibility and provide Austin with proper supervision. Tarvin also noted Joy had a history of domestic violence, several arrests for battery and she had violated restraining orders.
Although Joy recently began participating in services, Tarvin was still concerned about Austin's safety in her care. According to the grandmother, Joy admitted having smoked methamphetamine, which Tarvin believed was a recent occurrence. Joy's ability to maintain stable housing was questionable, given her several moves in the past few months. Additionally, Tarvin's attempts to meet Joy's roommate Steve had been unsuccessful because he had not returned Tarvin's call, and Tarvin had not yet conferred with Dr. Matthews regarding Joy's therapy.
Joy testified Randy had used marijuana since he was 14 years old, and his drug use was an "on-going battle" for her. Although Joy denied knowing Randy brought drugs into the home, she admitted he had a "bong" in the motel room where he, Joy and Austin lived. Joy also admitted the grandmother stayed with them at the motel and camped with them when they left the motel. Joy said she had found employment and had arranged daycare for Austin. She had begun parenting classes and was willing to randomly drug test. Joy claimed her roommate Steve returned Tarvin's telephone call and left her a message.
At the time of the hearing, Randy was 18 years old.
After considering the evidence and hearing argument of counsel, the court sustained the allegations of the petition, declared Austin a dependent and removed him from parental custody. The court placed Austin with a relative and ordered reunification services for the parents, including liberal supervised visitation.
DISCUSSION
I
Joy challenges the sufficiency of the evidence to support the court's jurisdictional findings. She asserts Austin was not exposed to a substantial risk of serious physical harm at the time of the hearing and there was no evidence he would be seriously harmed in the future.
A
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Rather, we 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. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2, emphasis added.) The Legislature has emphasized that a child's well-being depends on a "home environment free from the negative effects of substance abuse . . . ." (§ 300.2.) In this regard, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.)
The court may consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
C
Here, the undisputed evidence showed Joy allowed Austin to be in the grandmother's care, despite knowing the grandmother was recently arrested for drug trafficking and had drug paraphernalia and methamphetamine residue in her home. Joy's insistence the grandmother was an appropriate caregiver for Austin was indicative of her lack of insight and judgment regarding providing a safe environment for a five-year-old child.
The evidence also showed Joy allowed Austin to be exposed to Randy's ongoing drug use. Joy knew Randy smoked marijuana and nevertheless wanted him to help care for Austin. During the short time Austin lived with Joy, he became familiar with drugs and was able to describe how Randy smoked "weed" in a pipe. Randy smoked marijuana in Austin's and Joy's presence. Austin himself came in possession of a bag of marijuana and presented it to his great-aunt. Joy's response was to take the baggie and give it to Randy. Joy's inability or unwillingness to protect Austin from the hazards of Randy's marijuana use showed she could not provide him with a home environment free from the negative effects of drugs. (§ 300.2.)
Joy asserts she did not pose a current risk of harm to Austin at the time of the hearing because Randy no longer lived with her and she agreed she would never again leave Austin with the grandmother. However, these were not isolated incidents unlikely to recur. (Cf. In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396-1397 [single incident of sexual abuse by family friend not likely to recur where parents responded appropriately to ameliorate risk].) Rather, Joy's pattern of disregarding or minimizing the risks inherent in drug use permits a reasonable inference this behavior may continue in the future. Although Randy did not live with Joy at the time of the hearing, there is nothing to indicate Joy would be able to protect Austin from further exposure to drugs, given Joy's admitted "on-going battle" with Randy's marijuana use. Further, the court was entitled to believe Joy did not yet have sufficient insight to understand how she had endangered Austin by placing him in situations where drugs were used. Substantial evidence supports the court's jurisdictional finding that Austin was currently at risk of harm in Joy's custody. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [risk to child's physical health and safety is inherent in absence of adequate supervision and care]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1651 [drug paraphernalia within minor's reach indicates gross lack of attention to minor's welfare].)
II
Joy challenges the sufficiency of the evidence to support the court's dispositional findings. She asserts there was no evidence that removing Austin from her custody was necessary and essential to protect him from harm, or that there were no reasonable alternatives to removal.
A
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
B
Here, the court removed Austin from Joy's custody under section 361, subdivision (c)(1) because the evidence showed Joy exposed Austin to drugs by leaving him with the grandmother and allowing Randy to smoke marijuana in Austin's presence, and thus Austin was at substantial risk of harm if returned home. The evidence also supported a finding there were no reasonable means by which Austin could be protected without removal from Joy's custody. Austin was a five-year-old boy who needed a responsible adult to protect him and provide him with a drug-free home. Joy ignored Agency's admonitions against leaving Austin with the grandmother, and she did not have the parenting skills to protect Austin from Randy's drug use or the insight to appreciate the risks of drug exposure. Joy had previously declined Agency's offer of services, and just recently began therapy and a parenting class. Further, Tarvin was unable to assess Joy's home for Austin's placement because the man who lived there failed to return Tarvin's telephone call.
Joy argues Tarvin's failure to complete a background check on Steve improperly shifted the burden to her to show there is no substantial danger in returning Austin to her custody. However, Tarvin testified she could not evaluate Steve because he did not return her telephone call, and without Steve's willingness to talk to her, she could not recommend that Austin live in that home. The court was entitled to find Tarvin's testimony credible and give great weight to her assessment and opinion. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
The absence of reasonable alternatives to removal, coupled with the identified risk Joy posed to Austin, was sufficient to support a finding there were no reasonable means of protecting Austin without removing him from Joy's custody.
Joy's suggestion of alternatives to removal such as stringent supervision by Agency or a "no contact" order between Randy and Austin, coupled with a "warning" to Joy that failure to comply would result in Austin's removal, are unrealistic given Joy's history of disregarding Agency's admonitions and violating restraining orders.
C
Joy further asserts the court erred by not expressly stating it had considered less drastic alternatives to removing Austin from her custody. However, when the juvenile court does not state the factual basis for an order, we may infer the basis from the evidence. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219; In re Corienna G. (1989) 213 Cal.App.3d 73, 83.) If the evidence is sufficient to support the basis, the error is deemed harmless. (In re Basilio T. (1992) 4 Cal.App.4th 155, 171.) The evidence here was sufficient to support the court's factual findings regarding the need for removal. Based on this evidence, we infer the court considered less drastic alternatives to removal, but found there was a substantial risk of harm to Austin if he remained in Joy's custody. Joy was not prejudiced by the absence of a more explicit finding. (In re Jason L., supra, at pp. 1218-1219; In re Basilio T., supra, at p. 171.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.