Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Ct. No. EJ2930A-B, Gary Bubis, Judge. Affirmed.
IRION, J.
Lisa B. appeals a judgment declaring her minor sons Aaron B. and Noah B. (together, minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing them from her custody under section 361, subdivision (c). Lisa challenges the sufficiency of the evidence to support the court's jurisdictional findings and dispositional order. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2007 the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b) alleging eight-year-old Aaron and two-year-old Noah were at substantial risk of harm because Lisa's alcohol abuse caused her to neglect the minors and she previously failed to comply with voluntary services. The court detained the minors in out-of-home care.
The petition originally alleged Noah ingested Lisa's sleeping pills, but the court later deleted that language.
Agency's investigation showed Lisa had mental health issues and was arrested three times for driving under the influence; she denied having problems with alcohol or depression; she was in the process of being evicted from her apartment for reasons that included failing to supervise her children; she spent 11 days in jail for stealing a cable box; and during a hospitalization, she tested positive for amphetamines and had a bottle of alcohol in her purse.
Lisa's teenage son Ryan was not in her custody due to her ongoing substance abuse, depression and parental neglect. Agency offered Lisa voluntary services from April to November 2007. Although Lisa agreed to abstain from drinking alcohol and submit to random drug tests, she failed to cooperate. Lisa missed visits with the minors, was often late and terminated visits early. The social worker attributed Lisa's neglect of the minors to her substance abuse and depression.
At a contested jurisdiction and disposition hearing, Lisa testified she did not have a drinking problem. However, she admitted having been arrested and incarcerated for driving under the influence of alcohol.
Lisa presented the testimony of two friends and the maternal grandmother, who said Lisa was a good mother who did not abuse alcohol or have mental health issues.
Social worker Robyn Allen testified Lisa's problems persisted even though Lisa signed a voluntary services contract. Lisa had alcohol in her apartment. Allen smelled alcohol on Lisa's breath on two occasions. Aaron arrived at school chronically late and with poor hygiene. When Allen made a home visit, Lisa spent 10 minutes trying to find Aaron, who was outside playing on the grounds of their large apartment complex.
According to an addendum report, further investigation showed Lisa had been arrested four times for driving under the influence. Lisa had an outstanding warrant for violating the terms of her probation. The social worker believed Lisa's substance abuse negatively impacted her parenting ability. Services had not been successful in alleviating the risk factors. Aaron's teachers said Aaron had the potential to be a good student but was underperforming because he lacked support from his mother. Once Aaron was detained in foster care, the school staff noticed he was clean, attended school daily, arrived on time and completed his homework assignments.
A court order provided for supervised visits between Lisa and her son Ryan, who lived with his father. During a recent unsupervised visit, Ryan reported that Lisa had been drinking a lot and had exhibited bizarre behavior. Eight-year-old Aaron was aware his mother drank beer every day.
Lisa continued to see herself as a victim, and she failed to take responsibility for her actions. Agency's many attempts to help Lisa had been unavailing. Lisa had a pattern of not returning telephone calls and evading contact with the social workers.
According to another addendum report, which the court considered only for disposition, Lisa contacted Ryan after the last court hearing and told him to lie to the social worker. When the social worker spoke to Ryan, he said Lisa did not have a drinking problem.
The court sustained the allegations of the petition under section 300, subdivision (b). The court declared the minors dependents, removed them from Lisa's custody, ordered them placed in foster care and ordered Lisa to comply with the requirements of her case plan.
DISCUSSION
I
Lisa challenges the sufficiency of the evidence to support the court's jurisdictional findings. She asserts there was no showing her use of alcohol or failure to comply with two voluntary services contracts resulted in physical harm or a substantial risk of physical harm to the minors.
A
In reviewing the sufficiency of the evidence on appeal, we examine the entire record for substantial evidence to support the findings of the juvenile court. We do not evaluate 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 juvenile court's findings, view the record favorably to the court's order and affirm the order even if there is other evidence supporting 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 court's order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
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 inability to provide regular care because of the parent's substance abuse. 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 . . . ." (Ibid.) 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.)
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.)
B
Here, the evidence showed Lisa had a history of untreated alcohol abuse and depression. She had been arrested four times for driving while intoxicated. Lisa refused voluntary services and denied having mental health issues or a problem with alcohol. She continued to drink in the presence of her children and did not recognize the risk that her alcohol abuse posed to them.
We agree that a parent's consumption of alcohol, without more, cannot support juvenile court jurisdiction. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397.) Here, however, the record showed Lisa did not just use alcohol; she abused it. Her claim that she does not drink excessively is belied by the evidence in the record, including her four arrests for driving while intoxicated.
Lisa cites In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 to support her argument that a parent's use of alcohol alone cannot justify the court's jurisdictional order. In that case, the court properly assumed jurisdiction because the mother neglected the minor and had a filthy home. (Id. at pp. 58-59.) The evidence also showed the father had a problem with alcohol. (Id. at p. 57.) In dicta, the court noted the father's alcoholism, standing alone, was insufficient to support a finding of dependency. However, the father had not appealed and thus, that issue was not squarely before the court. (Id. at p. 59, fn. 2.)
Lisa's reliance on In re David M. (2005) 134 Cal.App.4th 822, 830 (David M.) and Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346 (Jennifer A.) to support her position is misplaced. In David M., the court reversed a jurisdictional finding under section 300, subdivision (b) because despite the parents' mental health issues and the mother's history of marijuana use, there was no evidence the minors were or would be harmed. (David M., at p. 830.) Between the detention and jurisdiction hearings, the mother consistently tested negative for drugs. Although the mother tested positive for ethanol, the social services agency did not allege her use of alcohol impaired her ability to care for the minors, and thus, that fact could not be used to support jurisdiction. (Ibid.) In Jennifer A., the court held the mother's use of marijuana on one occasion was insufficient to show a substantial risk of harm to the minors. (Jennifer A., at p. 1346.)
Here, in contrast, the petition alleged, and the evidence shows, Lisa's alcohol abuse is current and ongoing, causing her to neglect the minors and physically endanger them by the real possibility she will drive under the influence of alcohol while they are in the car. This case does not involve a single incident of neglect or lapse in parental judgment where there was no reason to believe it would ever reoccur. (Cf. In re Savannah M., supra, 131 Cal.App.4th at p. 1397 [jurisdiction could not be based on single incident of sexual abuse by acquaintance of parents in whose care minors were left even though parents' alcohol use may have affected their judgment in allowing acquaintance to be alone with minors]; In re W. O. (1979) 88 Cal.App.3d 906, 910 [jurisdiction not supported by "remote possibility" of harm to minors by presence of drugs, which were inaccessible to minors, in the home].) Lisa's chronic intoxication and repetitive drunk driving, coupled with her denial of any alcohol abuse and her failure to participate in voluntary services, permits a reasonable inference this behavior will continue in the future. The court's exercise of jurisdiction was based on reasonably foreseeable future harm to the minors. (In re D.R. (2007) 155 Cal.App.4th 480, 486.)
The case originally came to Agency's attention in 2006 when a referral was made that Lisa was drinking and driving with the minors in the car. Although the referral was closed as "inconclusive for physical abuse and neglect," it is indicative of potential physical harm to the minors from Lisa's habitual intoxication.
Further, Lisa has shown she has impaired judgment that interferes with her ability to adequately parent the minors. Although neglecting Aaron's hygiene and allowing him to miss school and engage in destructive behavior does not itself create a substantial risk of serious physical harm or illness, it is symptomatic of Lisa's neglectful lifestyle caused by her alcohol abuse. Given Lisa's lack of insight, failure to take responsibility for her problems and inability or unwillingness to get treatment, the minors were at risk of serious physical harm without juvenile court supervision. Substantial evidence supports the court's jurisdictional findings.
II
Lisa challenges the sufficiency of the evidence to support the court's dispositional order. She asserts there was no evidence that removing the minors from her custody was necessary to protect them 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. (1996) 46 Cal.App.4th 1635, 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
The court removed the minors from Lisa's custody because her alcohol abuse adversely impacted her ability to properly parent them. Lisa was unable to provide the minors with a home "free from the negative effects of substance abuse." (§ 300.2.) The fact Lisa was arrested four times for driving under the influence of alcohol allows an inference this behavior will continue in the future, thus endangering the minors if they remain in her care. The evidence supported a finding the minors were at substantial risk of harm if returned home.
Lisa asserts placing the minors with her under formal supervision by Agency was a reasonable alternative to removal. However, Lisa was given several opportunities to comply with services, but she was unable to mitigate the risk to the minors. Despite losing custody of her older son because of her alcohol abuse, depression and neglect, Lisa remained in denial, saw herself as the victim and took no responsibility for her actions. Substantial evidence supports a finding there were no reasonable alternatives to removal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.