Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J40279
Pollak, J.
Father appeals from a jurisdictional order finding that his infant son came within the meaning of Welfare and Institutions Code section 300, subdivision (b), and a dispositional order removing the child from his custody and requiring supervised visitation. He contends there was no substantial evidence to support the jurisdictional or dispositional orders and that the court abused its discretion in ordering that visitation be supervised. We affirm.
Factual and Procedural History
In August 2010, following a contested jurisdictional hearing, the court found that the infant came within the meaning of section 300, subdivision (b), in that “there is a substantial risk that the child will suffer serious physical harm or illness as a result of the failure or inability of his or her parent... to supervise or protect the child adequately [and] by the inability of the parent... to provide regular care for the child due to the parent’s... substance abuse.” The court found true the following allegations: “b-1) On or about July 28, 2010, the father... was arrested for possession and sales of illegal substances that were contained within his home and the room that he shared with his son.... Some of the sales occurred in the house itself and the yard. [Father] endangered the safety and well-being of the child by allowing him to live in an environment where weapons, drugs and drug paraphernalia were easily accessible to a child or infant, and if accessed or ingested, could have caused injury or death. [Father’s] substance abuse interferes with his ability to adequately care for and support his child and places the child at risk of abuse and neglect. [¶] b-3) The mother... has a history of substance abuse that renders her unable to provide adequate care and support for the minor.... [Mother’s] substance abuse includes, but is not limited to, using methamphetamine and marijuana during her pregnancy with the minor, and with the minor’s sibling, who is not a subject of this petition. If left untreated, the mother’s continued substance abuse places the child... at substantial risk of abuse or neglect.”
The court’s findings were based in part on the social worker’s jurisdictional report, which stated that on July 28, 2010, the Solano County Sheriff’s Department executed a search warrant at father’s residence. In father’s bedroom, officers discovered methamphetamine, amphetamine pills, 33 grams of marijuana, a digital scale, small clear baggies, and a methamphetamine pipe. Elsewhere in the house officers found additional narcotics as well as a firearm and ammunition. The child was found sleeping in the living room near two dozen insulin needles filled with a brownish liquid. One of the police officers who conducted the investigation of father’s alleged drug sales and who executed the search warrant at father’s home confirmed at the hearing the information contained in the social worker’s report. He also testified that he saw father conduct drug transactions on the front porch and that he arranged for a confidential informant to purchase methamphetamine from father inside the home.
On September 15, following a contested dispositional hearing, the court found by clear and convincing evidence under section 361, subdivision (c)(1) that “there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.” The court found further that reasonable efforts were made to prevent or eliminate the need for removal of the child from the home. The court continued the child’s placement with his paternal aunt and uncle. Reunification services were ordered for both parents, including supervised weekly visits between father and son. The social services agency was given discretion to expand both the frequency and duration of the visits and eliminate the supervision requirement.
Father filed a timely notice of appeal.
Discussion
1. Jurisdictional Order
The court found by a preponderance of the evidence that the child was a dependent child within the meaning of section 300, subdivision (b). The statutory definition of section 300, subdivision (b) consists of three elements: “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Father contends that the jurisdictional finding under section 300, subdivision (b) must be reversed because there is no evidence that his conduct places the child at a substantial risk of harm. Father does not dispute the family’s prior dependency referrals, his three prior convictions for narcotics sales and his arrest following the search of his home. He also acknowledges that he occasionally uses marijuana, that police found a used methamphetamine pipe and marijuana in a “cubby” in the bedroom he shared with his son. Finally, he acknowledges the mother’s substance abuse issues and that in the past he allowed her supervised access to the child. He argues, however, that there is no nexus between his alleged drug sales, drug use, mother’s substance abuse and any current, substantial risk of harm to the child. He suggests his son was “by all accounts and at all times loved, protected and well-cared for.” He notes that prior to his arrest, he was participating in voluntary family services and his social worker evaluated his home, finding it in “good condition, clean and free of any hazards” and finding that father was “able to adequately discuss [the child’s] care and health.”
A section 300, subdivision (b) finding can properly be based on evidence of a hazard in the child’s environment through the risk that the child will ingest hazardous drugs left in a place accessible to the child. (In re Rocco M., supra, 1 Cal.App.4th at p. 825.) Here, the hazards included not just the marijuana and methamphetamine pipe the police found in the child’s room, but also the needles and narcotics found throughout the house. Father argues that the fact that his infant son could not yet crawl undermines any finding that the child “could somehow gets his hands on, or be harmed by, the contraband present in the home at the time of father’s arrest.”While father may be correct that the minor was not yet mobile at the time of the hearing, he was only months away from mobility and nothing in the record suggests that father would, without intervention, change his behavior. Indeed, the jurisdictional report indicates that when father was arrested for narcotic sales in 2001, officers found six plastic baggies containing methamphetamines on the floor of the bathroom within reach of two of the father’s other children, then aged one and two years old.
Moreover, father’s criminal history and recent arrest for selling drugs out of his home further support jurisdiction in this case. As the police officer testified at the jurisdictional hearing, in addition to the danger posed by the narcotics themselves, “any time you have a sale of narcotics within a residence it has the very high potential for violence within that place as well.” The firearm and ammunition found in the house support this opinion. While the criminal charges against father may still be pending, the police officer’s testimony regarding his observation of the crimes and the evidence that was recovered during the execution of the search warrant amply support the court’s finding of a risk of harm to the minor for purposes of establishing jurisdiction.
2. Dispositional Order
The trial court found by clear and convincing evidence that there was a substantial danger to the child’s safety and well-being and no reasonable means of protecting him without his removal from the father’s home. (§ 361, subd. (c).) The court explained that the decision was based in part of father’s “history of drug-related violations, and partly because of the lack of contact that he’s had with the Department with respect to his new residence and the drug testing.” The court rejected father’s suggestion that he had made significant changes since the petition was filed, including obtaining a new residence. The court observed that this case is “based on the danger associated with being around the sale and use of serious drugs. And I don’t think enough has happened that would cause circumstances today to be very much different or any different than the circumstances were at the detention hearing and the jurisdictional hearing.” Applying the substantial evidence standard of review (In re Mark L. (2001) 94 Cal.App.4th 573, 580), we find sufficient evidence for removal based on the evidence of drug use and drug sales in the home.
Father suggests that “less drastic alternatives to removal” could have, and should have, been employed to ensure the child’s protection. He suggests that the court should have ordered the social services agency to evaluate his new residence and once it was deemed appropriate, “the juvenile court could have simply ordered family maintenance services pursuant to section 362, subdivision (b).” As noted above, however, the father had a prior substantiated referral to the social services agency following his arrest in 2001 and at the time of his arrest on his current charges, father was participating in voluntary family services. He therefore was aware of what was required to ensure a safe home but had repeatedly failed to take the steps necessary to render it safe. There is no reason to believe that the provision of additional in-home services would have sufficiently protected the child.
Father also argues that the court abused its discretion in ordering that his visitation be monitored. In light of his criminal history and drug use, the court reasonably ordered supervised visitation, at least until the department concluded that the supervision requirement could be lifted.
Disposition
The jurisdictional and dispositional orders are affirmed.
We concur: McGuiness, P. J., Siggins, J.