Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Imperial County, No. JJP1975-JJP1977, JJP2283, Juan Ulloa, Judge.
BENKE, J., Acting P.J.
The Imperial County Department of Social Services (the Department) appeals an order dismissing a petition filed on behalf of Blake H. under Welfare and Institutions Code section 300, subdivisions (b) and (j). The Department also appeals an order denying a petition under section 387 to remove Blake's three older siblings, Ashley H., D.H. and M. H., from their mother's care. We affirm in part, reverse in part and remand with directions.
Further statutory references are to the Welfare and Institutions Code.
INTRODUCTION
This appeal concerns four children who now range in age from one to five years. Their parents, Sandra P. and Larry H., have a substantial history of methamphetamine use. The three older children, Ashley, D.H. and M.H., (collectively, the older children) were adjudicated dependents of the juvenile court in May 2008, and were returned to Sandra's care at the 18-month review hearing. Three months later, after Sandra relapsed, the Department detained the three older children and their baby brother, Blake, in protective custody. The Department filed a petition under section 300, subdivisions (b) and (j) (petition) on behalf of Blake, which was sustained by the court, and a section 387 petition requesting removal of the older children from parental custody for placement in foster care. At a combined disposition hearing on the section 300 and section 387 petitions, the court dismissed dependency jurisdiction in Blake's case and denied the Department's petition to remove the older children from Sandra's care.
The Department contends the juvenile court erred at the disposition hearing when it reconsidered its prior jurisdiction findings and orders in Blake's case and dismissed the petition without prior notice to the parties. It asserts section 390 governs the dismissal of a petition at the disposition hearing and, therefore, the court erred when it did not make the findings required by section 390. The Department further argues the court's finding the Department did not make reasonable efforts to prevent or eliminate the need to remove Blake from his mother's care is not supported by substantial evidence. Finally, the Department contends there is not substantial evidence to support the denial of the section 387 petition filed on behalf of the older children.
As we will explain, section 360, subdivision (d) states the court may assume jurisdiction at a disposition hearing. If the court does not assume jurisdiction, the court may dismiss the petition. (Cal. Rules of Court, rule 5.695(a).) These provisions do not require the court to make the findings required under section 390 when dismissing a section 300 petition at a disposition hearing. We hold that the court's discretion to dismiss a section 300 petition is limited by the goal of the dependency system to provide maximum safety and protection to the child. (§ 300.2.)
All further rule references are to the California Rules of Court.
Here, we conclude that the court abused its discretion when it did not assume jurisdiction in Blake's case. Further, the court's finding that the Department did not make reasonable efforts to prevent or eliminate the need for Blake's removal from parental custody is not supported by substantial evidence. Finally, we conclude there is substantial evidence to support the court's order denying the Department's petition to remove the older children from their mother's care under section 387.
FACTUAL AND PROCEDURAL BACKGROUND
Ashley, D.H., M.H. and Blake are now ages five years, three years, two years and one year, respectively. Ashley was born while Sandra was serving a prison sentence for a drug-related conviction. D.H. tested positive for methamphetamine at birth in March 2007. The Department provided preplacement preventative services to the family, including drug treatment services. M.H. was born in April 2008. She tested positive for methamphetamine and required monitoring for withdrawal symptoms.
Sandra has an older daughter who was not in her custody and is not a subject of these proceedings.
The Department initiated dependency proceedings after M.H.'s birth, alleging there was a substantial risk of harm to the older children because of Sandra's and Larry's use of methamphetamine, and their failure to provide adequate medical care to treat Ashley's head lice, and D.H.'s head lice, ear infection and severe diaper rash.
After sustaining the section 300 petitions, the court removed the older children from parental custody and ordered a plan of family reunification services. Larry did not participate in court-ordered substance abuse treatment. He used methamphetamine throughout the proceedings. Sandra participated in court-ordered services; however, she tested positive for methamphetamine in August, September, November, and December 2008, and in February and March 2009. Sandra maintained her sobriety during the last five months of her pregnancy with Blake, who was born healthy in August 2009. Sandra and Larry separated in September 2009. The Department did not initiate dependency proceedings on Blake's behalf.
At the 18-month review hearing in November 2009, the court found that Sandra made substantial progress in mitigating the causes of the older children's dependencies. The court returned the older children to her care, finding there was no longer a risk of detriment to the children.
The social worker visited Sandra's home on December 18, 2009, January 6 and 20, and February 4 and 19, 2010. Larry was present each time. The parents later admitted he was living at the residence. On January 6, the older children tested positive for methamphetamine. D.H. also tested positive for codeine. Sandra denied exposing her children to drugs and suggested they had been exposed outside the home. On January 22, Sandra tested positive for amphetamine and methamphetamine. On February 4, Sandra tested positive for methamphetamine, amphetamine, marijuana, and opiate metabolites, and the older children tested positive for methamphetamine and amphetamine with higher levels than in the previous month. On February 10, Sandra tested positive for marijuana and methamphetamine. She later admitted she used methamphetamine approximately once a week during her relapse.
On February 19, 2010, the Department detained all four children in protective custody. Blake was diagnosed with bronchopneumonia. He also had a serious diaper rash which, according to his physician, resulted from lack of appropriate care. The Department filed a section 300 petition on behalf of Blake, alleging he was at substantial risk of harm because of his parents' methamphetamine use and his siblings' exposure to methamphetamine and codeine, and his medical condition. (§ 300, subds. (b), (j).)
The Department also filed a section 387 petition on behalf of the three older children, alleging placement with their mother had not been effective in protecting the children due to their exposure to methamphetamine, parental drug use and Larry's presence in the home.
The Agency asked the court to bypass reunification services for Blake, place the older children in foster care and set a section 366.26 hearing for all the children.
At the jurisdiction hearing, the court found that Blake was a child described by subdivisions (b) and (j) of section 300. The court also determined the factual allegations of the section 387 petition were true as to the older children and the prior disposition had not been effective. The court scheduled concurrent disposition hearings for the older children and Blake.
At the May 17, 2010 disposition hearing, Sandra testified she voluntarily entered a residential substance abuse treatment program in San Diego County on March 10, 2010. She received permission from the residential program to have her children with her. The residential program was from six to 24 months. After she completed the residential program, Sandra planned to enter an aftercare program which would provide housing for her and the children. Sandra attended parenting programs, drug and alcohol treatment, including a 12-step program, life skills classes, mental health services and counseling seven days a week. She underwent random drug tests at least every two weeks. All her tests had been negative for drug use.
Sandra testified she had been sober for approximately nine or 10 months before relapsing in January 2010. She was learning how to prevent relapse. Sandra believed the program provided the proper structure to help her manage her life with her children. Sandra had no contact with Larry and did not intend to maintain their relationship.
Arcenia Martinez, the social worker for the older children, testified she did not believe there was a risk the children would be exposed to drugs in Sandra's care while Sandra was living at the treatment center. However, because of Sandra's history of substance abuse, the social worker was "a little bit concerned" the children were at risk.
Velda Lewis, the social worker assigned to Blake's case, stated Blake did not test positive for drugs because he did not have enough hair to provide a test sample. Lewis recommended the court not offer reunification services to the parents in Blake's case. Sandra had had more than 18 months of services. She maintained her sobriety only for a short time after the older children were returned to her care. Blake's age was also a factor in Lewis's recommendation to proceed to a section 366.26 hearing.
Sandra's grandmother (Grandmother) testified she knew Sandra was addicted to drugs. Sandra asked for help when she finally realized she had to stop using drugs or she would not be a mother to her children. Grandmother and Sandra found a residential treatment program that had the best success rate. With Grandmother's financial assistance, Sandra was able to enroll immediately in the treatment program. Grandmother was present at all the children's visits with Sandra. They were overjoyed to see their mother.
In Blake's case, the trial court determined the Department did not meet its burden to prove that Sandra had resisted treatment for her substance abuse problem, as required under section 361.5, subdivision (b)(13). The court stated that after Sandra's relapse, she had embraced treatment by entering a more intensive substance abuse treatment program. The court determined there was not a substantial risk of harm to Blake in Sandra's care, reasoning that, unlike the older children, Blake did not test positive for drugs and was detained primarily because he had bronchopneumonia and a diaper rash, both temporary conditions. The court found that the Department did not make reasonable efforts to prevent or eliminate the need for Blake's removal from Sandra's care. After a request by the Department to clarify the order, the court stated it was dismissing the section 300 petition because there was insufficient risk to Blake to justify juvenile court intervention.
With regard to Ashley, D.H. and M.H., the court found that the older children clearly had been exposed to drugs over a two-month period, if not longer. Despite Sandra's relapse, she recently had made substantial progress toward alleviating or mitigating the causes that necessitated the children's detention. The court denied the Department's request to set a section 366.26 hearing, and instead returned the older children to Sandra's care under a plan of family maintenance services, conditioned on Sandra's residence and participation at the residential treatment program.
DISCUSSION
I
Dismissal of Blake's Section 300 Petition at the Disposition Hearing
The Department contends the court erred when it reconsidered its jurisdiction finding that Blake was a child described by section 300, subdivisions (b) and (j), and dismissed the petition at the disposition hearing without proper notice to the parties and without making the findings required under section 390.
Sandra and Larry contend the Department has forfeited the issue by failing to object to the dismissal of the section 300 petition at the disposition hearing. Sandra further asserts rule 5.695(a) grants the court the authority to dismiss a section 300 petition at the disposition hearing without a formal motion for reconsideration. Larry argues section 390 is not the exclusive statute governing dismissal of a petition at a disposition hearing. He argues there is substantial evidence to support the court's finding under section 390 or rule 5.695(a).
Minors' appellate counsel states the court had the authority to dismiss the petition pursuant to its power to make appropriate orders in the best interests of the child, and was not constrained by the requirements of section 390.
A
The Department forfeited its claim by not raising the matter in the trial court; however, we exercise our discretion to review the issue
A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 (Dakota H.).) A party may not assert theories on appeal which were not raised in the trial court. (Id. at p. 222, citing Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.)
The Department contends it did not forfeit the issue because the ruling occurred at the end of the hearing and the Department did not have the opportunity to object. The Department suggests this court should exercise its discretion to review whether the trial court was required to provide notice to the parties and whether section 390 controls the dismissal of a section 300 petition at the disposition hearing.
The record shows the Department did not object to the court's dismissal of Blake's dependency petition on procedural or substantive grounds. Thus, the court did not have the opportunity to consider whether notice was required before it could dismiss a section 300 petition at the disposition hearing and whether section 390 was the appropriate legal standard for dismissal.
The application of the forfeiture rule is not automatic. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We take this opportunity to clarify the procedural and substantive law that governs the dismissal of a section 300 petition at the disposition hearing, and exercise our discretion to review the issues raised on appeal. (Ibid.)
B
At the disposition hearing, the trial court has the discretion to adjudge a child a dependent under section 360, subdivision (d)
The Department characterizes the court's findings at the disposition hearing as a reconsideration of its jurisdiction findings in Blake's case. It asserts that Sandra, during her closing argument, asked the court to reconsider the jurisdiction findings, and the court implicitly granted her request without proper notice to the parties. The Department relies on In re Andrew A. (2010) 183 Cal.App.4th 1518 (Andrew A.), in which this court held that the trial court's reconsideration of its jurisdiction findings at a hearing on a subsequent petition under section 342 was improper because the parties did not receive prior notice that the issue would be decided at that hearing. (Id. at p. 1527.)
Section 342, which governs a subsequent petition filed on behalf of a child when there are new facts or circumstances other than those originally sustained under section 300, is not relevant here. Rather, this case is controlled by section 360, which describes and limits the court's discretion to enter judgment at a disposition hearing. Thus, Andrew A. does not assist the Department. In that case, this court held that a properly noticed motion for reconsideration was required because the trial court's ruling which rescinded its jurisdictional findings under section 300 occurred at a subsequent hearing under section 342, not at a disposition hearing. (Andrew A., supra, 183 Cal.App.4th at p. 1529.)
Under certain conditions the court may order a legal guardianship for the child. (§ 360, subd. (a).) The court may, without adjudicating the child a dependent, order the agency to provide services and supervision to and the family. (§ 360, subd. (b); see § 360, subd. (c); see also §§ 301, 16506, 16507.3.) Subdivision (d) of section 360 provides if the child is described by section 300, the court may order and adjudge the child to be a dependent of the court.
In contrast to the proceedings in Andrew A., the hearing in Blake's case was a disposition hearing. While the jurisdiction hearing addresses the question whether the child is described by section 300, the question whether the child should be adjudged a dependent of the juvenile court is not determined until the disposition hearing. (In re Heather B. (1992) 9 Cal.App.4th 535, 543; see Andrew A., supra, 183 Cal.App.4th at p.1529, rule 5.695(a) ["At the disposition hearing, the court may: [¶] (1) Dismiss the petition with specific reasons stated in the minutes... "].)
The juvenile court has the authority to dismiss a section 300 petition at the disposition hearing without providing additional notice to the parties other than the notice required under section 291. (Andrew A., supra, 183 Cal.App.4th at p.1529; § 360, subd. (b).) We conclude the court may proceed with a disposition hearing without providing notice to the parties that it may consider entering a judgment consistent with section 360, subdivision (d) and rule 5.695(a).
C
Section 360, subdivision (d) does not require the court to make section 390 findings
The Department contends the court erred when it dismissed Blake's petition without making the findings required by section 390. Section 390 provides the court may dismiss a dependency petition or may set aside the findings and dismiss the petition if it finds "the interests of justice and the welfare of the minor require the dismissal" and the parent no longer needs treatment or rehabilitation. (Ibid.; In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014.) The Department argues Sandra is in need of treatment and Blake's welfare requires the court to maintain jurisdiction.
In Andrew A., this court stated the trial court may dismiss the petition at a disposition hearing "on whatever valid grounds it finds to be applicable." (Andrew A., supra, 183 Cal.App.4th at p. 1529.) The Department argues this language refers to the findings required under section 390. In support of its interpretation, the Department points out that rule 5.695(a) cross-references a number of statutes, including section 390. The Department also contends section 5 of the Judicial Council Forms, form JV-416, which is an optional form that may be used when the court dismisses a section 300 petition at the disposition hearing, incorporates the language of section 390 and requires the court to find the parent is not in need of treatment or rehabilitation before it may dismiss the matter. The Department does not cite any statute or case in support of its position.
We are not convinced section 390 is the only legal standard that may apply when the court decides whether to assume jurisdiction of the child at the disposition hearing. (§ 360, subd. (b).) Section 360, subdivision (d), which governs the court's discretion to enter judgment after a disposition hearing, provides if the court finds that the child is described by section 300, it may order and adjudge the child to be a dependent of the juvenile court. Section 360, subdivision (d) does not refer to section 390. (See Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818 [the statutory language is generally the most reliable indicator of legislative intent].) Further, rule 5.695(a), which governs dispositional orders, simply states the court may dismiss the petition at the disposition hearing with specific reasons stated in the minutes.
The principles that constrain and guide the court's discretion to dismiss a petition at the disposition hearing must be ascertained by reference to the dependency system of which it is a part. (In re Nolan W. (2009) 45 Cal.4th 1217, 1235 [given the complexity of the dependency scheme, a single provision cannot properly be understood except in the context of the entire dependency scheme].) We look to the context of the dependency system in determining the limits of the court's discretion to dismiss a section 300 petition at the disposition hearing. (Nolan W., at p. 1235.)
When a child is described by a provision of section 300, the primary consideration of the trial court must be on the maximum safety and protection of children who are being abused, neglected, abandoned or exploited, and ensuring the safety, protection, and physical and emotional well-being of children who are at risk of that harm. (§ 300.2; In re Maria R. (2010) 185 Cal.App.4th 48, 65; see In re Paul W. (2007) 151 Cal.App.4th 37, 44; In re Hadley B. (2007) 148 Cal.App.4th 1041, 1048; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1235 [court stands in loco parentis to a child in a proceeding whose primary consideration is the child's welfare].) This is particularly true where the child's parent has a substantial and tenacious history of substance abuse. (§ 300.2 [the provision of a home environment free from substance abuse is a necessary condition for the safety, protection, and physical and emotional well-being of the child].)
Here, the trial court found there was "lack of evidence of risk" to Blake and dismissed the section 300 petition filed on his behalf. The court based its findings on Sandra's voluntary participation in a residential treatment program and the fact that Blake did not test positive for methamphetamine exposure, as had the older children. The court further noted although Blake had bronchopneumonia and a diaper rash when detained, these were temporary conditions that had been resolved.
We conclude the court abused its discretion when it dismissed the petition filed on Blake's behalf. The court found that the older children had "clearly been exposed to drugs" for at least two months, if not longer. There is no rational basis to distinguish Blake from his siblings, who tested positive for exposure to methamphetamine and other drugs. (See § 300, subd. (j) [providing for jurisdiction when the child's sibling has been abused or neglected under subdivision (b)].) Blake lived in the same home as his older siblings, under the same conditions. His mother and siblings tested positive for exposure to methamphetamine and other drugs in January and February 2010. Blake did not test positive for methamphetamine exposure because he was not tested. Under these circumstances, the only reasonable inference that can be drawn is that the youngest child in the home, who was more likely to be in close contact with a parent because of his infancy, was also exposed to methamphetamine and other drugs. Further, Blake's medical conditions, while temporary, were indicative of parental neglect.
Contrary to orders limiting his contact with the children to supervised visits, Larry was living with Sandra and the children from December 2009 until the Department removed the children in February 2010. Larry acknowledged he continued to use methamphetamine during this time.
Sandra has a substantial history of substance abuse, treatment and relapse. She had a protracted relationship with Larry, who did not make an effort to overcome his methamphetamine addiction and brought drugs into the home for his and Sandra's use. Sandra said their life revolved around drug use from the day they met. Sandra was clearly in need of further treatment. (See § 390.) At minimum, she anticipated participating in treatment for several years. Sandra acknowledged she could not care for her four young children without outside structure and support.
These factors clearly show there is a substantial and continuing risk to Blake from Sandra's history and pattern of methamphetamine use, the challenges of caring for four children under the age of five during substance abuse treatment and recovery, and her on-again/off-again relationship with Larry, who had not been amenable to treatment. Sandra exposed her children to methamphetamine and other drugs and was unable to properly care for them. These circumstances show a continuing pattern of abuse and neglect, and indicate the conditions that led to Blake's dependency proceedings were likely to exist if supervision was withdrawn. (§ 300.2; see § 364, subd. (c).)
The court's order dismissing the petition did not provide for maximum safety and protection for Blake, who had been exposed to parental substance abuse and denied adequate care, and did not ensure his safety, protection, and physical and emotional well-being as a child who was at risk of harm. (See In re Maria R., supra, 185 Cal.App.4th at pp. 63, 65, citing § 300.2.) We conclude that the court abused its discretion when it dismissed the section 300 petition filed on Blake's behalf. (§ 300.2.)
II
REASONABLE EFFORTS
The Department challenges the court's finding that the Department did not make reasonable efforts to prevent or eliminate the need to remove Blake from his home.
The Adoption Assistance and Child Welfare Act of 1980 (42 U.S.C. § 602 et seq.) requires a participating state to ensure that reasonable efforts will be made to prevent or eliminate the need for removing the child from his or her home, and to make it possible for the child to safely return home (reasonable efforts). (42 U.S.C. § 671(a)(15).) The California Legislature requires the agency to make family reunification services available to "families whose child has been adjudicated or is in the process of being adjudicated a dependent child of the court under the provisions of Section 300." (§ 16507, subd. (a).) These services may include, but are not limited to, case management, counseling, emergency shelter care, emergency in-home caretakers, temporary in-home caretakers, respite care, therapeutic day services, teaching and demonstrating homemakers, parenting training, substance abuse testing, and transportation. (§ 16501, subd. (a)(1).)
At the disposition hearing, the court is required to determine whether reasonable efforts were made to prevent or to eliminate the need for removal of a minor from his or her home. (§§ 361, subds. (d), (e)(1), 366.) We review the court's finding for substantial evidence.
In March 2007, after D.H. tested positive for methamphetamine exposure at birth, the Department offered preplacement preventative services to the parents. These services included counseling, case management, parent training, public assistance and transportation services, and drug and alcohol testing.
From March 2008 to November 2009, the Department provided reunification services to the family, including parenting classes, therapy, outpatient substance abuse treatment and drug testing. The Department also helped Sandra move into a shelter care facility after Blake's birth.
After the older children were reunified with Sandra, the family received maintenance services consisting of outpatient substance abuse treatment, parenting assistance, counseling, random drug testing, transportation, case management services and crisis intervention.
The court terminated Larry's reunification services at the 18-month review hearing.
At the close of the disposition hearing on the petitions under sections 300 and 387, the court found that the Department's efforts to maintain the older children in Sandra's care were reasonable, and stated, "I don't know what else the social worker could have done at that time." The court also found that the Department did not make reasonable efforts to prevent or eliminate the need for Blake's removal from the home.
There is no evidence in the record to support the finding the Department did not make reasonable efforts in Blake's case. Efforts to prevent removal of the child from the home are family-based and must be appropriate for each family based on its unique circumstances. (§ 16507, subd. (a); cf. In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
Before Blake was born, Sandra received approximately 18 months of preventive and reunification services designed to ameliorate the risks to her children of her methamphetamine use and poor parenting skills, as detailed above. She continued to receive family reunification services, including substance abuse treatment, for three months after Blake's birth and family maintenance services for another three months. The record clearly shows the Department identified the problems leading to the loss of custody and offered services to the parents that were designed to remedy those problems. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The record does not show what more the Department could have done to prevent or eliminate the need to remove Blake from his home. (§§ 361, subds. (d), (e)(1), 366.) We conclude there is not substantial evidence to support the trial court's reasonable efforts finding in Blake's case. The record clearly supports the finding that the Department made reasonable efforts to resolve the problems that had led to Blake's removal from his home, and any inference to the contrary is unreasonable.
III
The Department contends there is not substantial evidence to support the trial court's finding the older children were not at substantial risk of harm in Sandra's care.
When the court has made a true finding on a section 387 petition and has determined the previous disposition is no longer effective in protecting a child, then, in a separate dispositional phase, the court must determine, by clear and convincing evidence, whether removal of the child from his or her placement is required under one or more of the grounds specified in section 361, subdivision (c). (§ 387; rules 5.565(e); 5.695(d); In re H.G. (2006) 146 Cal.App.4th 1, 11-12; In re Paul E. (1995) 39 Cal.App.4th 996, 1003-1006.) Here, to remove the older children from Sandra's physical custody, the court was required to find there was a substantial danger to the physical health, safety, protection or physical or emotional well-being of the children, or there would be if the children were returned home, and there was no reasonable alternative means to protect them. (§ 361, subd. (c)(1); rule 5.695(d)(1).)
We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. The burden is on the appellant to show there is no evidence of a substantial nature to support the challenged finding or order. (In re H.G., supra, 146 Cal.App.4th at pp. 12-13; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The Department does not meet its burden to show there is no substantial evidence to support the dispositional order maintaining the older children in Sandra's care. (In re H.G., supra, 146 Cal.App.4th at pp. 12-13.) The court placed great emphasis on Sandra's voluntary admission to the residential program and found that she had "embraced treatment." Sandra did not test positive for drugs after she entered the facility. The court found credible Sandra's description of the program and her participation in it, which included a panoply of services seven days a week, including parenting, alcohol and drug treatment and testing, a 12-step program, mental health and counseling. Sandra planned to participate in the aftercare program and live in facility-supported housing, where she could live with the children for up to two years. She was no longer involved with Larry and had the support of her relatives. Social worker Martinez testified she did not believe the children would be at risk of drug exposure while in Sandra's custody at the treatment center.
A judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (Dakota H., supra, 143 Cal.App.4th at p. 230, citing Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) We conclude there is substantial evidence to support the trial court's finding that Sandra had mitigated the risk to the children's safety and well-being. The court credited Sandra's testimony that the residential treatment program would provide the necessary structure and support to resolve her substance abuse problems and safely care for her children. The court conditioned its order on Sandra's continued participation and residence at the substance abuse treatment program. Thus, the record shows there were reasonable alternative means to protect the children without removing them from Sandra's care. (§ 387; rule 5.570(e); In re H.G., supra, 146 Cal.App.4th at p.12.)
DISPOSITION
The order dismissing the section 300 petition as to Blake and the finding the Department did not make reasonable efforts to prevent or to eliminate the need for Blake's removal from his home are reversed. The matter is remanded to the juvenile court with directions to hold a new disposition hearing for Blake. In all other respects, the findings and orders are affirmed.
WE CONCUR: NARES, J., HALLER, J.