Opinion
E067441
06-30-2017
In re H.R. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J267008, J267009, J267010, J267011, J267012, J267013, J267014) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
In August 2016, the family came to the attention of plaintiff and respondent San Bernardino County Children and Family Services (CFS) after defendant and appellant J.R. (mother) and her youngest child, H.R., tested positive for methamphetamine at the time of H.R.'s birth. The family consisted of mother, A.R. (father), and seven children: H.R. (female, born Aug. 2016), E.R. (male, born Dec. 2014), N.R. (male, born Aug. 2013), T.R. (male, born Sept. 2010), A.R. (female, born Dec. 2006), P.R. (male, born Aug. 2005) and J.E. (male, born Aug. 2002) (collectively, the children).
J.E.'s father is S.E. He is not a party to this appeal.
According to the attending nurse, mother arrived by ambulance at St. Mary's Hospital; she was described as pale and nonresponsive, with her eyes rolled to the back of her head. Mother disclosed to the nurse that she did not have any prenatal care and admitted to using methamphetamine on a daily basis. After giving birth to H.R., mother was on a Bi-Pap machine in the Intensive Care Unit. A cardiologist was going to evaluate mother because her heart appeared to be damaged due to extensive drug abuse. H.R. was in the Neonatal Intensive Care Unit (NICU) and was experiencing respiratory distress. Father and the other children were not present at the hospital. Father called and spoke to one of the nurses on duty. He asked about the gender of H.R. and then discontinued the call.
On August 24, 2016, the social worker spoke with mother. Mother disclosed that father was recently unemployed and struggling due to a back injury. The family was having financial difficulties and were in danger of losing their home. Mother admitted to using methamphetamine and stated, "There was so much to do in the house to get ready for the baby. . . . I would use three (3) to four (4) times a day prior to getting pregnant just to keep up with everything and when I found out I was pregnant I was trying to wean myself off of it and would use just a couple of times a day like once (1) or twice (2)." Mother also stated that the doctors told her that she had an enlarged heart with fluid surrounding it due to her drug use.
That same day, the social worker attempted to interview father at the family home; no one answered the door. The social worker returned later in the day with a deputy sheriff. Again, no one answered the door. After spotting children through the window, the deputy knocked louder and father finally answered the door. The deputy recognized signs of drug use and asked father when he last used. After initially denying that he had used, father admitting to using methamphetamine earlier that day. Father was arrested for being under the influence.
The social worker entered the home and observed complete disarray with items of clothing, food and other items everywhere in the house. The stove looked like it was taken apart, there were overfilled trash bags, and an open gallon of milk on the floor. The laundry room had dirty dishes, clothes and bottles of chemicals on the floor. The garage was an office containing computer part and wires covering the entire floor. The doorway to the first bedroom was covered in debris; the children had to climb over it to get to their beds. The room was filled with boxes, clothes and trash. The second bedroom was in the same condition as the first bedroom. The bathroom was filthy with glass jars containing unknown substances and medicine sitting out on the counter, along with bathroom cleaner.
J.E., age 14, was observed to be dirty with soiled clothing. He stated that he did not know when he had last taken a shower and did not remember the last time he went to the doctor. P.R., age 11, appeared to take care of all the younger children and was observed ordering everyone around. The children listened to P.R. as if he were the parent. P.R. was wearing a dirty, stained shirt, and a pair of jeans with two very large holes. He was not wearing shoes and his feet appeared to be dirty. When the social worker told P.R. that everyone looked dirty, he stated that he thought they last took a bath in December, when they were at their grandparents' house. P.R. confirmed that the children did not go to the doctor. A.R., age nine, was observed sleeping under the cushions of the couch with dirty clothes covering her up like a blanket. Her clothes were dirty and her long hair had knots in it. T.R., age five, was observed as having a dirty face and arms. N.R., age three, did not appear as dirty as the older children. E.R., age one, was dressed only in a urine-soaked diaper, but was cleaner than the other children. P.R. stated that it was his job to change E.R.
After father's arrest, the children were taken into custody. Father asked the social worker to call the paternal grandparents to see if they could care of the children. The paternal grandparents were approved and the children were placed in their care, including H.R. after her discharge from the hospital.
No prior criminal history or child welfare history was found as to either mother or father.
On August 29, 2016, section 300 petitions were filed on behalf of the children. As to H.R., the petition alleged that she came within section 300, subdivisions (b)(1) (failure to protect); (g) (no provision for support); and (j) (abuse of sibling). Specifically, the petition alleged: (1) B-1: Mother used methamphetamine throughout her pregnancy, resulting in a positive test for H.R. at birth; (2) B-2: Mother failed to protect H.R. by not receiving prenatal care and her drug lifestyle impacted mother's ability to parent; (3) B-3: Father's lifestyle of substance abuse impaired his ability to provide adequate care for H.R.; (4) B-4: Father knew or should have known of mother's drug use during her pregnancy and failure to get prenatal care; (5) G-5: Mother was in the hospital and did not arrange for the care of H.R.; (6) G-6: Father was arrested and incarcerated and unable to provide care for H.R.; and (7) J-7 and J-8: Mother and father (parents) failed to provide adequate shelter, food, clothing and safety for all of H.R.'s siblings in that the home was extremely cluttered with foreign debris, and spoiled food was left on the counters and floor with dangerous objects and material to the extent that it was a safety hazard to the child.
As to P.R., N.R., T.R., A.R. and E.R., the petitions alleged that they came within section 300, subdivisions (b)(1) (failure to protect) and (g) (no provision for support), specifically as follows: (1) B-1 and B-3: Parents have a substance abuse lifestyle that impairs their ability to provide adequate care for the children; (2) B-2 and B-4: Parents failed to provide adequate shelter, food, clothing and safety for the children in that the home was extremely cluttered with foreign debris, and spoiled food was left on the counters and floor with dangerous objects and material to the extent that it was a safety hazard to the children; (3) G-5: On or about August 24, 2016, mother was in the hospital and did not arrange for the care of the children, leaving them without provisions, adequate care and support; and (4) G-6: On or about August 24, 2016, father was arrested and was incarcerated with an unknown release date, and was unable to provide care and support for the children.
The petition filed as to J.E. contained the substance abuse allegation as to mother (B-1), the allegation concerning mother's failure to provide adequate food, shelter and clothing (B-2 & B-3), and mother's failure to arrange for care while she was in the hospital (G-5). The petition did not include allegations as to father.
The B-4 and G-6 allegations pertaining to S.E. are not relevant to this appeal.
The detention report dated August 30, 2016, indicated that risk assessment services, case management, and safety planning were provided to the family, and reasonable efforts were made to prevent or eliminate the need for the children's removal from the home.
An additional information to the court filed August 30, 2016, reported that on August 29, 2016, the social worker was informed by St. Mary's Hospital that mother left the hospital against medical advice. Hospital records showed that mother's heart was working only at 10 percent; extensive use of methamphetamines caused irreparable damage to mother's heart and she should be placed on hospice care.
The detention hearing was held on August 30, 2016, and was attended by mother. Father was present before the matter was called, but he had to leave due to an undisclosed emergency. The court found a prima facie case established for detention outside the home, ordered the children placed in the temporary custody of CFS, and ordered the children detained with paternal grandparents. Parents were ordered to submit to random substance abuse testing and ordered to appear at the jurisdiction hearing. Mother was ordered to drug test that day.
The jurisdiction and disposition report filed September 16, 2016, recommended that the court find the allegations regarding the lack of prenatal care for H.R., and father's incarceration to be not true, and the remainder of the allegations to be true. It was also recommended that the children remain in out-of-home care and that reunification services be provided to both parents. According to the report, neither mother nor father made themselves available during the course of the jurisdiction and disposition interview process. The social worker interviewed P.R. and J.E. with respect to their parents' drug use and both children denied seeing either parent using drugs, or acting drunk or high. Although mother tested negative after the detention hearing, as of the date of the report, the parents failed to comply with random drug testing thereafter.
Regarding the state of the home, both P.R. and J.E. stated that the home was not that bad and that their parents were under a lot of stress. J.E. stated that they tried to clean it up, but it was hard with six children and a baby on the way. The report contained photographs taken by law enforcement at the time of removal that depicted the deplorable state of the home.
The prognosis for the children returning home was poor in that the parents were not cooperative in communicating with CFS to address the allegations. Moreover, the parents had not addressed the condition of the home and the safety of the children.
According to the report, H.R. was not experiencing any drug withdrawals at that time, and slept and ate well. The remaining children were reportedly doing well. The older children had been home schooled but were adjusting well to attending public school.
Neither mother nor father appeared at the jurisdiction and disposition hearing on September 20, 2016. The hearing was set contested on behalf of parents and was continued. The contested hearing was held on October 25, 2016. Mother appeared via telephone and father did not appear. The hearing was continued at the request of CFS and mother.
An additional information to the court was submitted on November 14, 2016. The form indicated that father had not made himself available to the social worker to be interviewed. Paternal grandfather relayed to the social worker that father was afraid to meet with CFS because he believed that anything he said would be used against him in court.
On November 15, 2016, the contested hearing took place; parents both attended. The detention report, the jurisdiction and disposition report, and the additional information to the court were admitted into evidence. Neither parent presented evidence, only argument through counsel. Father's counsel asserted an objection to the allegation concerning substance abuse because father denied having a substance abuse issue, and challenged CFS on their evidence of his use of illicit substances. Father contended that CFS failed to bring forth any evidence regarding drug use by father. Father also denied the allegation concerning lack of provision for the children. Counsel stated, "Though the home may have had some clutter in it, there's no indication that the children were malnourished in any way." Counsel went on to describe the home as "a little bit messy," and argued that was not sufficient to sustain jurisdiction.
Mother's counsel advised that mother denied any admissions or acknowledgments of drug use in the reports. Counsel argued other than the positive tests for mother and H.R. at the time of H.R.'s birth, there was no other evidence that the drug use was an ongoing problem. Counsel acknowledged the home was "cluttered" but argued there was no safety risk to the children. Counsel reported mother's statements that she had great difficulty reaching the social worker and tried on a number of occasions to set up visits unsuccessfully. Mother also objected to the substance abuse program as she felt one isolated incident of one positive test did not necessitate a true finding.
The children's counsel asked the court to find the allegations true, citing to the very dangerous amount of items in the home, including where the children slept. The Children's counsel argued that it was not a safe place for the children. Counsel for CFS asked that the court find the allegations true based on the parents' admission they used methamphetamine and the state of the home. Counsel for CFS also informed the court that the social worker stated he had not received any messages from the parents, despite providing his cell phone number for their use.
Following argument, with respect to H.R., the juvenile court found allegation B-1, B-3, J-7, and J-8 true. As to E.R., N.R., T.R., P.R., and A.R., the court found allegations B-1 through B-4 true. As to J.E., the court found allegations B-1 through B-3, and G-5 true. The children were declared dependents of the court, removed from parents' custody, and parents were ordered to participate in a reunification plan.
Mother and father each filed a notice of appeal on December 27, 2016.
DISCUSSION
Mother challenges the dispositional order removing the children from her physical custody.
A. JUSTICIABILITY OF MOTHER'S CLAIM
Mother claims that "the court of appeal may address mother's challenge about jurisdictional findings pertaining to her despite the juvenile court's other grounds for asserting jurisdiction pertaining to her children's fathers." The People contend that "review of mother's jurisdictional allegations is not justiciable."
As a general rule, "'[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.'" (In re I.J. (2013) 56 Cal.4th 766, 773.)
This rule is sometimes described as a matter of mootness. (E.g., In re I.A. (2011) 201 Cal.App.4th 1484, 1489-1490.) It could also be viewed as a matter of standing. (See Code Civ. Proc., § 902 [appellant must be aggrieved].)
"A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established. [Citation.] As a result, it is commonly said that a jurisdictional finding involving one parent is '"good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent."' [Citation.] For this reason, an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence." (In re I.A., supra, 201 Cal.App.4th at p. 1492; accord, In re J.C. (2014) 233 Cal.App.4th 1, 3-4; In re Briana V. (2015) 236 Cal.App.4th 297, 308-311 (Briana V.).)
In this case, mother challenges the jurisdictional allegations sustained as to her conduct, but does not challenge the jurisdictional allegations sustained as to father. Here, father's counsel filed a letter brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, stating that no issues were found and asking that father be given 30 days to file a letter to make a good cause showing that an arguable issues does exist. Father did not file a personal brief. On April 14, 2017, we exercised our discretion to forgo a review under People v. Wende (1979) 25 Cal.3d 436 and dismissed father's appeal as abandoned under In re Sade C. (1996) 13 Cal.4th 952, 993-994. Therefore, the jurisdictional findings as to father are not challenged.
In In re I.A., supra, 201 Cal.App.4th 1484, the court declined to consider a father's challenge to the jurisdictional findings against him as non-justiciable, when separate jurisdictional findings against mother remained unchallenged. The court held that there was no genuine challenge to the court's assumption of dependency jurisdiction, and as a result, any order entered would have no practical impact on the pending dependency proceeding, thereby precluding a grant of effective relief. (Id. at pp. 1490-1491.) There, the father contended that the court should exercise its jurisdiction because the findings could have consequences for him beyond jurisdiction. The court, however, declined to consider the allegations, and stated: "While there is no doubt the court retains the discretion to consider alternative jurisdictional findings [citation], Father has not suggested a single specific legal or practical consequence from this finding, either within or outside the dependency proceedings." (Id. at p. 1493.)
There are three recognized instances in which an appellate court could exercise its discretion to reach the merits of a jurisdictional finding: "Courts may exercise their 'discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) "could have other consequences for [the appellant], beyond jurisdiction."'" (In re D.P. (2015) 237 Cal.App.4th 911, 917.)
Mother relies on In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.). There, the court considered the jurisdictional finding involving the father, even though the jurisdictional findings involving the mother were unquestioned. It explained: "[T]he outcome of this appeal is the difference between father's being an 'offending' parent versus a 'non-offending' parent. Such a distinction may have far reaching implications with respect to future dependency proceedings in this case and father's parental rights. Thus, although dependency jurisdiction . . . will remain in place because the findings based on mother's conduct are unchallenged, we will review father's appeal on the merits." (Id. at p. 763; accord, In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
We do not understand Drake M. to mean that we must review a jurisdictional allegation every time it would make the difference between a parent being offending rather than nonoffending. Otherwise, Drake M. would be flatly contrary to the cases, cited above, holding that an appellate court may decline to review a jurisdictional finding against one parent if a jurisdictional finding against the other parent is supported by substantial evidence. Rather, we understand Drake M. to allow review when the parent's status as offending rather than nonoffending is reasonably likely to make a difference—or, in the words of Drake M., to "have far reaching implications." (Drake M., supra, 211 Cal.App.4th at p. 763.)
Here, mother asserts that her challenge on appeal meets all the circumstances from Drake M. "because [1] her children were removed from her physical custody because of her substance abuse and failure to maintain a safe home; (2) those findings could certainly prejudice her moving forward where the concurrent plan is for all of her children to be adopted; and (3) among the 'other consequences' of the challenged findings, her children are no longer in her care and reunification services may, because of the children's ages, only be offered until May 2016." With regard to the jurisdictional allegations providing the basis of a challenged dispositional order, as will be discussed post, mother's challenge to the dispositional orders is without merit. Therefore, they cannot be used to provide a basis for review of her jurisdictional allegations. As to the remaining arguments, mother has failed to provide specific description of why the Drake M. factors apply in her case.
In Briana V., supra, 236 Cal.App.4th 297, the father relied on Drake M., supra to argue a reversal of the jurisdictional findings would result in him becoming a nonoffending parent. The court refused to extend Drake M. beyond its limited holding and stated:
"Thus, in this case, as opposed to Drake M., there is not a single jurisdictional finding making the difference between father being a so-called offending or a nonoffending parent. The Drake M. decision does not suggest that this court must address each of several jurisdictional findings against a parent because if all such findings are reversed, the parent will be nonoffending. This would completely undermine the general rule that we need not address jurisdictional findings involving one parent where there are unchallenged findings involving the other parent. [Citation.] Instead, it would turn this rule on its head, requiring the appellate court to address all jurisdictional findings against a parent even when the jurisdictional findings involving the other parent are not challenged. This takes the Drake M. exception too far." (Briana V., supra, 236 Cal.App.4th at pp. 309-310.)
However, mother, in her reply brief, argues that Briana V., supra, 236 Cal.App.4th 297, does not apply to this case because "the appealing father is a registered sex offender, 'a prima facie offending parent.'" in Briana V. Although the facts in Briana V. and the facts in this case are different, the reasoning in Briana V. still applies. In fact, the court never posited that Briana V. should only apply to cases where a parent was a prima facie offending parent. Instead, when the court noted that Drake M. "does not apply where, as here, several jurisdictional findings have been sustained involving different conduct of the parent," it was "particularly true where, as here, the parent is a registered sex offender." (Briana V., at p. 310.) The court did not limit its holding to cases where the parent is a registered sex offender.
Therefore, mother's challenge to the jurisdictional allegations sustained against her are not justiciable because (1) there were multiple allegations asserted against mother, none of which, if reversed, would make her nonoffending; and (2) mother only challenges the jurisdictional findings raised against her, not the findings raised against father, and the findings sustained against father alone were sufficient to find jurisdiction over the children
B. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S JURISDICTIONAL FINDINGS
Even if mother's allegations are justiciable, substantial evidence supports the juvenile court's jurisdictional findings.
1. LEGAL BACKGROUND
When an appellate court reviews the jurisdictional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. (In re Natalie A. (2015) 243 Cal.App.4th 178, 184.) The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence "means evidence that is 'reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.'" (In re E.D. (2013) 217 Cal.App.4th 960, 966.)
The appellant has the burden to show that the evidence was not sufficient to support the findings and orders. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The reviewing court may not reweigh the evidence or express an independent judgment. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Rather, the reviewing court must determine whether "a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
If a child is found to be a person described by section 300, and thus a dependent of the juvenile court, the court "may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362.) The juvenile court has broad discretion to fashion a disposition order. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) The appropriate test for abuse of discretion is whether "'the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Although dependency jurisdiction attaches to a child, not to his or her parents, an appellate court has the discretion to reach the merits of a challenge to any jurisdictional finding when that finding may be prejudicial to the appellant. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re D.P. (2014) 225 Cal.App.4th 898, 902.)
2. ANALYSIS
Section 300, subdivision (b)(1), allows the juvenile court to assume jurisdiction when "[t]he child has suffered, or 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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."
In order to make a dependency finding, the juvenile court must find by a preponderance of the evidence that the following three elements are met: "(1) neglectful conduct or substance abuse by a parent in one of the specified forms (2) causation, and (3) serious physical harm to the child, or a substantial risk of such harm." (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-725.)
Mother challenges the jurisdictional findings regarding her substance abuse and the state of the home because there was not a current substantial risk that the children would suffer serious physical harm. Mother contends that her substance abuse, without more, is an insufficient basis for dependency jurisdiction. As for the state of the home, mother argues that none of the children were harmed by the safety hazards of other observed conditions of the home.
As for mother's substance abuse, the record is clear that mother abused methamphetamine before and during her pregnancy with H.R. In fact, both mother and H.R. tested positive for methamphetamine when H.R. was born. As a result, H.R. was placed in the NICU and experienced respiratory distress. When mother was first interviewed by the social worker, she admitted to using methamphetamine. Mother stated that there was so much to do; she could not do it all. She also admitted to using three or four times a day prior to finding out that she was pregnant. After mother learned that she was pregnant, she used methamphetamine once or twice a day. Mother's drug use was so considerable that it resulted in her suffering from an enlarged heart surrounded by fluid. Hospital records showed that mother's heart was only functioning at 10 percent because of her extensive methamphetamine use. It was recommended that mother be placed in hospice care because of the condition of her heart. In her reply brief, however, mother argues that the claims about mother's "'long[-]standing and pervasive' substance abuse" is only an "opinion [that] would need to be from expert testimony [CFS] did not offer at trial." Contrary to mother's argument, mother told the social worker that doctors had informed her she had an enlarged heart due to her drug use and "'there is fluid surrounding my heart.'" Moreover, neither mother nor father challenged a report indicating that "[a]ccording to the social worker at the hospital, the medical records show that the mother's heart was only working at ten (10) percent; that the extensive use of methamphetamines caused irreparable damage to her heart and she should be placed on hospice care." Therefore, based on mother's admission to the social worker and the social worker's review of the hospital records, sufficient evidence supports the finding that mother's methamphetamine use caused permanent damage to her heart.
In cases involving children of tender years, the finding of substance abuse establishes prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm. (Drake M., supra, 211 Cal.App.4th at p. 767.) Mother, however, argues that "tender years" should be for children under the age of two. The case makes no such distinction. Here, there are seven children involved; four of the seven were five years old or under.
Moreover, mother argues that "at least with respect to the older children, those children not 'of tender years,' a parent using drugs—even 'hard drugs' like methamphetamine—is not, without more, a sufficient basis for dependency jurisdiction." The key words are "without more." Here, the allegation concerning mother's methamphetamine use cannot be viewed in a vacuum as it was brought in conjunction with an allegation concerning the state of the home and the children. The reports submitted to the court, which were not disputed by either mother or father, described the home as in complete disarray with items of food, clothing, trash and other items strewn about everywhere. The stove had been taken apart, there were trash bags filled with overflowing trash, and an open gallon of milk on the floor. The laundry room had dirty dishes, clothes and bottles of chemicals on the floor. The garage had been used as an office and had computer parts and wires covering the entire floor. The doorway to the children's bedroom was blocked to such an extent that the children had to climb over the debris to get into their beds. The two bedrooms were filled with boxes, clothes and what looked like trash. The bathroom was observed to be very dirty with glass jars containing an unknown substance, and medicine sitting out on the counter along with bathroom cleaner. The jurisdiction and disposition report contained photographs taken by law enforcement that provided clear depictions of the family home.
In addition to the filthy home, the children were also dirty. J.E. and P.R. were wearing dirty clothes and their bodies were also dirty. P.R. believed the last time the children had bathed was eight months prior. P.R. and J.E. confirmed that the children did not go to the doctor. A.R. was sleeping under the cushions of the couch using dirty clothes as a blanket. Her clothes were dirty and her hair was knotted from not being brushed.
Contrary to mother's attempt to reweigh the evidence, the severity of mother's substance abuse, the deplorable conditions of the home, and the unkempt status of the children were sufficient to support a finding that the children were at a substantial risk of harm.
In re M.R. (2017) 8 Cal.App.5th 101 is instructive. In In re M.R., the mother was involved in a drunk driving incident with her four-year-old and 21-month-old children in the backseat. The mother failed her field sobriety tests and her blood alcohol level was measured at .14 percent. She was arrested for driving under the influence and the children were released to the father. Both parents downplayed the mother's consumption of alcohol that night. (Id. at p. 104.)
At detention, the children were released to their parents and the court ordered random drug and alcohol testing for the mother and the father. During later interviews, the parents continued to downplay the mother's drunken state during the incident, and both stated that there was no need for the case or services. Both parents tested negative for drugs and alcohol. The department, however, remained concerned about the parents' alcohol use and referenced an incident from January 2012, when an incident of domestic violence occurred while the parents had been drinking. The mother was found guilty of a misdemeanor violation for driving with a blood alcohol level over .08 percent and sentenced to three years' summary probation. She was ordered by the criminal court to complete a three-month first offender alcohol and drug education-counseling program. At jurisdiction, the court sustained the allegation concerning mother's conviction for drunk driving and ordered six months of services. (In re M.R., supra, 8 Cal.App.5th at pp. 105-107.)
On appeal, the parents argued that one incident could not support a finding that there was a current or future risk to their children. The appellate court disagreed and found that the incident that led to the filing of the dependency proceeding was quite serious, the parents' minimization of the mother's conduct called into question their general judgment, and the parents' acceptance of responsibility seemed to worsen rather than improve as the dependency progressed. Additionally, at the time of the dependency hearing, the mother had not yet participated in any services and did not proffer a date when her participation would begin. (In re M.R., supra, 8 Cal.App.5th at p. 109.) The appellate court found the trial court justifiably concluded that there remained a risk to the children if and when the parents' alcohol use resumed. (Id. at p. 110.)
The same analysis and logic apply here. There is no dispute that mother's substance abuse was so long-standing and pervasive that it physically damaged her body, causing her heart to function at only 10 percent. Mother admitted to using methamphetamine three or four times a day just to keep up with the children, and continued to use daily even after finding out she was pregnant. In addition, the state of the home was so deplorable that it posed a risk not just to the older children, but especially to the multiple younger children in the home. P.R.'s assumption of parental roles over the younger children also shows that neither parent was caring for the children. Like the parents in In re M.R., neither mother nor father, at the time of the jurisdiction and disposition hearing, had engaged in services or made any efforts towards resolving their issues. To the contrary, the parents tried to avoid the social worker and did not make themselves available to be interviewed.
Additionally, mother admitting to using methamphetamine in order to keep up with home life in raising six children. With the birth of H.R., mother would have to contend with caring for seven children. Mother did not indicate that she found other avenues for stress relief or that she obtained assistance in helping with the children, should they be returned to her care. Moreover, mother provided no evidence that the deplorable conditions in the home had been ameliorated.
Although mother claims that none of the children were physically harmed by her substance abuse or the state of her home, "[t]he juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's negligent conduct." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 994; see also In re N.M. (2011) 197 Cal.App.4th 159, 165.) Here, there was sufficient evidence of neglectful conduct in mother's pervasive substance abuse and the deplorable condition of the home to support a finding of risk of harm to the children.
C. SUBSTANTIAL EVIDENCE SUPPORTS THE DISPOSITIONAL ORDERS REMOVING THE CHILDREN FROM PARENTS' CUSTODY
Mother contends that there was insufficient evidence to support the removal order.
1. STANDARD OF REVIEW
In reviewing a challenge to the removal order at disposition, "'the substantial evidence test is the appropriate standard of review. Thus, in assessing this assignment of error, "the substantial evidence test applies to determine the existence of the clear and convincing standard of proof."'" (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
2. THE REMOVAL ORDER IS SUPPORTED BY SUBSTANTIAL EVIDENCE
"Under section 361, subdivision (c)(1), a dependent child may not be taken from the physical custody of the parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence '[t]here 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.'" (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
"'The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.]' [Citation.] '"The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances.'" (In re John M., supra, 212 Cal.App.4th at p. 1126.)
As described in detail ante, there was substantial evidence to support the court's jurisdictional findings that mother suffered from substance abuse issues and that the children were at risk of harm due to the condition of the home, and that the condition of the home and children was deplorable.
Subsequent to removal, mother failed to keep in contact with the social worker or engage in services. Mother faults the social worker for failing to provide further evidence of the need for removing the children from mother or reporting any further reasonable efforts to prevent the need for removal. However, it was mother's inaction and failure to make herself available to the social worker that resulted in any lack of updated information and provision of services. Mother cannot avoid the social worker, then argue that the juvenile court's orders must be reversed because the social worker failed to provide updated information.
Mother further contends that the court failed to state the specific facts justifying the removal order under section 361, subdivision (d). The evidence, however, showed that mother had a long-standing substance abuse history and subjected the children to deplorable living conditions. Mother failed to avail herself of services following detention, and did not make any progress towards ameliorating the issues that led to detention of the children. "Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody." (In re Diamond H. (2000) 82 Cal.App.4th 1126, 1137, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735.)
DISPOSITION
The juvenile court's jurisdiction findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.