Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INJ021610, Samuel Diaz, Jr., Judge.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
L.N. (mother) appeals from the juvenile court’s jurisdiction and disposition orders regarding her son, W.I. She argues the evidence fails to support (1) the court’s jurisdictional finding under Welfare and Institutions Code section 300, subdivision (b), and (2) the court’s disposition order removing the child from her custody. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
This matter came to the attention of the Riverside County Department of Public Social Services (the Department) in July 2010 when it received a 10-day referral alleging general neglect. An unnamed source alleged that mother had a history of drug use and began using drugs again within the previous three weeks. Mother was reportedly using prescription medication, Oxycontin in the past, and Percocet. If she planned to use drugs, she left the child with family members. According to the maternal grandfather (grandfather), mother had a party on July 12 and the child was awake past midnight; mother had attended a substance abuse counseling session on July 14 under the influence, and she failed to attend her July 15 session.
On July 17, 2010, grandfather reported that he returned the child to mother’s home and found mother under the influence, barely able to keep her eyes open. He further reported the home smelled like “something burnt.”
The social worker visited mother’s home on July 26, 2010. Mother admitted she had a history of drug use, including Oxycontin, Percocet, and Marijuana. She denied using drugs in the child’s presence; however, she had last used opiates four days prior and had last used marijuana one week prior. The social worker offered services to mother, but she declined because she had previously attended a program and did not find it necessary.
On September 14, 2010, when the social worker conducted a follow-up visit, mother was living with grandfather. Mother was unkempt and had multiple marks throughout her face and body. She stated they were scabs, explaining that she had always been a “‘picker’” and “it gets worse when she uses.” Mother stated she began using methamphetamine about one and a half months ago and had last used a few days prior. Mother admitted needing help and said she had contacted the “MOMS” program.
On September 20, 2010, a second referral was sent to the Department alleging a family disturbance at the grandfather’s home. Law enforcement was called. The reporting party stated that tin foil wrapped in the shape of a pipe was found in mother’s room. Mother reportedly admitted smoking marijuana in the room in the child’s presence. She admitted to the social worker that she had used the foil pipe to smoke marijuana, and that she had left the foil pipe on the floor. The social worker noted the foil pipe was within the child’s reach, but mother explained that the child “does not get into things he shouldn’t....” Regarding the family disturbance, mother claimed she and grandfather argued and he physically assaulted her. Grandfather stated that he had confronted mother about the drug paraphernalia found in the living room. He and mother argued and the situation escalated. Grandfather denied striking her but admitted restraining her in self-defense.
On September 22, 2010, the Department initiated this dependency action with a petition alleging the child (born in April 2008) came within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (g). According to the petition, mother had a chronic untreated history of abusing controlled substances, limited judgment and anger management issues. The father was not a member of the child’s household, had failed to provide for the child, and his whereabouts were unknown.
On September 23, 2010, the juvenile court found that a prima facie showing had been made that the child came within section 300, found substantial danger to the child, and ordered him detained. The matter was continued for a jurisdictional hearing.
In the jurisdiction/disposition report filed on October 13, 2010, the Department noted that mother was 21 years old and had first used drugs at age 10. She admitted having a history of abusing controlled substances, and seeking treatment a few times. After turning 12, she went to a “behavioral school” where she remained for 18 months. She was also in a facility for behavioral issues when she was 14 or 15. Her son was born prematurely at 29 weeks, weighing just under three pounds. He spent two months in the neonatal intensive care unit.
Mother was enrolled in the MOMS program where she was receiving treatment for her substance abuse, parenting skills, anger management, and counseling. Mother appeared motivated to continue to seek treatment to address her substance abuse issues, had a positive outlook, and was working hard on improving her lifestyle. The Department recommended that the court find the allegations in the petition to be true, that the child be declared a dependent of the court, remaining out of mother’s care and custody, and that mother be offered family reunification services.
On October 18, 2010, the juvenile court held the jurisdiction hearing. Mother was present. The Department recommended that the court sustain the petition, declare the child a dependent, and order out-of-home placement and family reunification services. Mother submitted on the petition allegations but “not with the disposition.” Instead, she requested family maintenance services.
The court sustained the petition, finding allegations b-1, b-2, and b-3 to be true, but striking g-1. It found the child came within section 300, subdivision (b) and adjudged him a dependent child. The court also found that mother came within section 361, subdivision (c)(1), ordered the child removed from her physical custody and placed in the custody of the Department, and ordered family reunification services. Mother was allowed supervised visitation twice a week for one hour each. Mother appealed.
II. SUFFICIENT EVIDENCE OF JURISDICTIONAL FINDINGS
Mother contends there was insufficient evidence to support the juvenile court’s finding as to allegations b-1 through b-3, inclusive. Specifically, she argues that “a close look at the facts reveals that although [she] is using drugs and has anger issues, it is not sufficient to find that as a result of these problems the [child] had suffered, or there was a substantial risk [he] would suffer, serious physical harm or illness.”
A. Standard of Review
“In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court’s order, and affirm the order even if there is other evidence that would support a contrary finding. [Citation.] When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)
B. Analysis
In order to find true allegations under section 300, subdivision (b), the juvenile court must find 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.)
Mother repeatedly argues there is no evidence her son has suffered harm or illness, or that there is a substantial risk that he will suffer serious physical harm or illness. “An act or acts of abuse do not in themselves provide a basis for juvenile court jurisdiction. There must be some reason to believe the acts may continue in the future.” (In re Jennifer P. (1985) 174 Cal.App.3d 322, 326.) Thus, the juvenile court was required to consider whether the conditions alleged in the petition existed at the time of the adjudication and the likelihood the acts alleged would recur in the absence of court intervention. “‘In determining whether the child is in present need of the juvenile court’s protection, the court may consider past events. [Citation.]’ [Citation.]” (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, 749, fn. 6.)
Although mother notes she has used drugs in the past, she argues she is not a “chronic” user, her use has never been “tied to any actual harm to [her son] or to a substantial risk of serious harm to [him, ] and there is no evidence as to how her son may be harmed by her use. She further points out that no drugs were located within her son’s reach. Thus, she argues the Department was only able to suggest “potential harms, ” which are “insufficient to support a finding that [her son] was at substantial risk of future harm.” We disagree.
According to the record before this court, mother had a history of substance abuse, admitted to being under the influence of narcotics while caring for her son, admitted to using methamphetamine a few days prior to September 14, 2010, and admitted to storing a pipe used to smoke marijuana in a place accessible to her son. While nothing serious has happened to her child, the fact remains that the circumstances present an environment ripe for it. In claiming otherwise, mother points to other evidence presented in the trial court that arguably would support a different outcome. In other words, mother apparently would have us reweigh the evidence and reach a result that favors her. However, our function as an appellate court is to review the decision the trial court made and to affirm that decision if it is supported by the evidence. Simply put, we are not at liberty to reweigh the evidence and resolve conflicts therein. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) More importantly, mother’s argument is like that of an alcoholic who has lost his/her license due to having too many driving under the influence citations without actual accidents. Because there is no accident does not mean there is no risk of a future accident.
The same reasoning applies to the evidence supporting the b-2 and b-3 allegations. Regarding allegation b-2, mother acknowledged her violent outbursts with grandfather, , admitted being involved in verbal and physically abusive relationships, and recognized that she had unresolved issues with certain family members. Initially, she seemed willing to address those issues; however, later, she “changed her mind, stating she does not feel it necessary to receive such services as she does not need to have a relationship with those family members.” Regarding allegation b-3, the child’s father continually made excuses why he could not come to visit the child and be there for him. Although mother had dated the father for two years, “she did not know that much about him, as they did not indulge in each others [sic] pasts.”
Based on our review of the record, we find sufficient evidence to support the juvenile court’s finding of jurisdiction.
III. SUFFICIENT EVIDENCE OF DISPOSITIONAL FINDINGS
Mother challenges the juvenile court’s dispositional findings, contending (1) the court failed to state a factual basis for removing the child, and (2) “the evidence did not support a finding of substantial danger to [the child’s] physical health, safety, protection, or physical or emotional well-being if he were returned home.” We conclude there was sufficient evidence to support the court’s decision to remove the child, and any error in not explicitly stating its findings was harmless. (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.)
A. Standard of Review
“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. [Citations.] The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.] The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C., supra, 174 Cal.App.4th at p. 917.)
B. Analysis
Here, the juvenile court found that there was “clear and convincing evidence that the mother comes within... section 361[, subdivision ](c)(1)” and that reasonable efforts were made to prevent the need for removal. As previously noted, the evidence showed that mother had a history of substance abuse and abusive relationships. Additionally, she was experiencing instability in both work and living arrangements. From July through September 2010, the number of referrals to the Department suggests her substance abuse was on the rise to the point where even she recognized the need to seek help. Although mother had been living with grandfather, after engaging in a domestic disturbance with him, he asked her to move out. While mother finds great significance in the fact that the police and the social worker permitted her son to remain in her custody, the court’s considerations are not limited to what actions were taken by the police or the social worker. Rather, the court considered the facts that (1) mother was recently abusing drugs; (2) she was engaging in domestic violence; (3) she was the sole provider for the child; (4) she smoked marijuana in front of him; and (5) she knew he had access to her paraphernalia.
Ultimately, although the court may not have stated a clear factual basis for its removal order, any error was harmless “because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody. [Citation.]” (In re Diamond H., supra, 82 Cal.App.4th at p. 1137.)
IV. DISPOSITION
The orders are affirmed.
We concur: RICHLI J., CODRINGTON J.