Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Kern County. Super. Ct. Nos. JD114088, JD114089 Robert J. Anspach, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
Samantha M. appeals from jurisdictional findings and the consequent dispositional order that removed her sons, Brayden R. and Cameron R., from her physical custody. Samantha contends the juvenile court erred in finding jurisdiction under Welfare and Institutions Code section 300, subdivision (b) and the order temporarily removing the boys from her physical custody was not supported by evidence that removal was necessary to avoid a substantial danger to the boys’ physical health. (§ 361, subd. (c)(1).) As we shall explain, we disagree and will affirm the juvenile court’s jurisdictional findings and dispositional order.
The boys’ father, Gregory R., to whom Samantha was engaged, was killed in an automobile accident in January 2006.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL HISTORIES
On December 14, 2006, the Kern County Department of Human Services (Department) received a referral which alleged Samantha was smoking methamphetamine and sleeping while the boys roamed the house. The reporting party went to Samantha’s home and had to knock several times before Samantha woke to answer the door; the children were filthy and only in diapers. The reporting party also stated the children had been to the emergency room due to incidents occurring while they were not supervised properly, such as ingesting medication. While the Department was investigating this referral, another referral was received on January 24, 2007, which stated there was no food in the home and Samantha refused to seek medical attention for a burn a child incurred from sitting on a heater while Samantha was sleeping.
This was not the first referral the Department had received regarding Samantha. On November 15, 2006, the Department received a referral which alleged neglect of the boys. After a social worker visited Samantha’s home to investigate, the allegation was determined to be unfounded.
On January 25, 2007, a social worker went to Samantha’s home to investigate. The social worker found there was food in the home, which was clean. Samantha denied using drugs and said she supervised the boys and got them medical care when needed. The social worker looked for burn marks on Cameron, but did not see any. Samantha voluntarily submitted a drug test, which confirmed positive for amphetamines at a strong level and methamphetamines at a very strong level. When advised of the results, Samantha denied using drugs. Samantha submitted another drug test on February 27, which also came back positive for amphetamines and methamphetamine at levels indicated to be strong. Although Samantha continued to deny she used drugs, she agreed to participate in voluntary family maintenance (VFM) services. The Department substantiated the allegations from the December 2006 referral, but concluded the allegations from the January 2007 referral were unfounded.
The social worker later received a report from the Kern County Sheriff’s Department which documented burn marks on the right side of Cameron’s buttock. The injury was determined to be accidental, therefore the sheriff’s department did not take any further action on the case.
On March 7, the social worker visited Samantha to present the VFM case plan. The social worker talked to her about the second positive drug test. Samantha admitted using methamphetamine, but claimed she used it one to two times per month and only when the boys were not present. The social worker asked Samantha to submit another drug test, but she was unable to provide a urine sample after two attempts. The social worker counseled Samantha that she needed to address her grief and drug abuse for the boys’ sake. Samantha agreed to accept VFM, which included parenting and substance abuse counseling, as well as drug testing.
The social worker also talked to Samantha about the police report regarding the burn incident. Samantha told the social worker it was actually Brayden who was burned when he accidentally backed into a wall heater after taking a bath. Samantha did not tell the social worker during the earlier visit that Brayden was the one injured because she was afraid child protective services would take the boys.
Samantha’s VFM case was assigned to another social worker, Jody Brewer. On March 20, Brewer came to Samantha’s home for a visit. Samantha asked Brewer to come back later, as her grandfather was over, who did not know about her involvement with CPS. Brewer agreed to return the following week. Brewer gave Samantha information on the drug call-in system and told her to start the next day. Samantha said she had the necessary identification and would be able to participate in the program without any problems.
Brewer visited Samantha’s home on April 3. Brewer found the home to be clean and there was adequate food for the children. Samantha said she had attended six sessions of substance abuse counseling and gave Brewer a copy of drug test results for March 28 and 29, and April 2, all of which showed negative results for illegal substances. Samantha also said she was waiting for an opening in a parenting class and had an appointment for a psychiatric evaluation.
On April 17, Brewer and another social worker, Mario Rojas, made an unannounced visit to Samantha’s home. Brewer documented the visit as follows: “I was conducting a normal unannounced home call to my families in Taft when SSW Mario Rojas and I arrived at the home of Samantha M[] and her two sons, Cameron, age 1 and Brayden R[], age 3, to be unattended, outside of the home. I asked Brayden to show SSW Rojas where he got out at, as the front door was locked and I did not know of any other way to get the mother’s attention. Brayden then showed SSW Rojas how he repositioned the wooden piece to lean against the wall so that he could climb back inside. SSW Mario Rojas observed that the window had recently been broken, as there were shards of glass around the window outside and inside of the home. I knocked and rang the door bell yelling at the front for no less than 15 minutes while I observed the 1 year old child, Cameron R[], to be wandering about the house alone. The child was looking at me through the glass door and when he realized that he could not open the door, he then went back to laying on the floor in his pallate that had been laid out for him. Mario went around the back of the home to see if there was an open door or window to get Brayden back into the home. The child then showed Mario how he climbed out of and into the window to leave the home. He took a large wooden beam and repositioned it against the wall and walked back into the home. I yelled at Brayden from outside of the home to bang on his mother’s bedroom door which was still shut while I continued to ring the door bell over and over again.”
Brewer further documented that when Samantha finally emerged from her bedroom and let the social workers into the home, she was extremely groggy. When asked what she was doing, Samantha did not respond. When asked if she knew Brayden had been outside by himself, Samantha responded she was sleeping as she had just learned her grandmother died. Samantha became erratic and went from screaming, to jumping up and down, to throwing herself on the floor, and said she would kill herself if the children were taken. Rojas observed the residence and found the entire home in disarray, with trash strewn about the home and the kitchen “a complete mess.” No food was in the cabinets or refrigerator, and Cameron was in a dirty diaper and Brayden only in swim trunks. There was old food on plates and an open 24-ounce beer can near Samantha’s bed. An uncovered inflated pool was out in the front yard where Brayden had been. The window Brayden climbed in and out of was not cleanly broken and “had shards of broken glass still inside of it.”
Due to Samantha’s hysterical behavior, the social workers called law enforcement for back-up. Sheriff’s Deputies McCall and Leonard responded to the call. The social workers placed the boys in the car. Deputy McCall assessed Samantha for being under the influence and concluded she was not under the influence of any stimulant. Deputy Leonard took photographs of the home and the window Brayden crawled through. Brewer decided to remove the children, as she felt they were in imminent danger and would not be safe in Samantha’s care. After leaving with the children, Brewer called Deputy McCall and asked him to send a female deputy out to drug test Samantha. A female deputy came to the house that evening and again the following day, but no one came to the door.
The Dependency Petition
The following day, April 18, Samantha’s case was turned over to another social worker, who talked to Samantha about the reasons the boys were placed into protective custody. Samantha claimed the boys had been in bed with her in her bedroom and she had not been sleeping; she heard the doorbell when it first rang. She denied that Brayden was outside the house. Although the window was broken, Samantha believed if Brayden had gotten out through it, he couldn’t have gotten back into the house because the window was too high off the ground. Samantha said she had taken painkillers her uncle gave her to calm her nerves, as her grandmother was dying, but they did not make her sleep. Samantha explained the beer was from the night before and she drank half the can. Samantha agreed to go to the sheriff’s substation that day to be drug tested, but explained she would have to call for a ride and would call the social worker back. Thirty minutes later, the social worker called Samantha and asked if she had arranged transportation. Samantha said she was still working on it and would call back, but never did.
Samantha’s substance abuse counselor told the social worker he had not seen Samantha, nor had she drug tested, since April 2, although she had completed her intake on April 5. Samantha came in for her first drug test on March 19, which the counselor did not record because he expected it to be dirty. He confirmed Samantha tested clean on March 22 and 29, and April 2. The counselor believed Samantha was motivated and teachable, and explained she did not have anyone to watch the boys because her grandfather could not provide daycare since her grandmother was dying.
The social worker talked to Rojas about Brayden’s location when he arrived at the home. He said Brayden was playing in the front yard. When Rojas asked him how he got out of the house, Brayden responded, “Out the window,” and then “went and showed me.” A whole panel of glass was missing from the window. Rojas said Brayden got back into the house through the window, which was at least three feet off the ground, by putting boards up against and the wall and climbing up to get in and out.
On April 19, Samantha told the social worker she did not go to the substation to drug test because she could not find a ride and she did not call back because of the long distance charges. Samantha said she was willing to drug test and her counselor would test her.
That same day, the Department filed petitions with respect to each child under section 300, subdivision (b). The pertinent allegations in Brayden’s petition read: “b-1 The 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 the mother … to adequately supervise the child. On April 19, 2007, the child, Brayden, was outside unsupervised while the mother was sleeping. The child crawled through a window, which was broken with exposed shards of glass.… The child’s sibling, Cameron, was awake and unsupervised w[a]ndering throughout the home. The mother could not be aroused from sleep for approximately fifteen minutes.… [¶] b-3 The child has suffered, or there is a substantial risk that the child will suffer, serious harm or illness by the inability of the mother, …, to provide regular care to the child due to the mother’s use of controlled substances. On January 25, 2007, and February 27, 2007, the mother tested positive for methamphetamine.…” Cameron’s petition contained the same allegations, the only differences being the descriptions in paragraph b-1 of Brayden as “the child’s sibling” and Cameron as “the child.”
The petitions also contained a paragraph b-2, which alleged that Samantha failed to provide the boys with adequate food, clothing or shelter. Following a mediation, the Department agreed to dismiss this allegation in its entirety. The Department also agreed to strike an allegation contained in paragraph b-1 that an “uncovered pool was also found” near where Brayden was playing, since there was no evidence it contained water. At the jurisdictional hearing, the juvenile court granted the Department’s request to dismiss the b-2 allegation and strike the allegation regarding the pool.
The Jurisdictional/Dispositional Hearing
The juvenile court ordered the boys detained on April 20. At the detention hearing, Samantha told the social worker she had tested the day before as she had promised, but she did not have the results. She also said there was no water in the pool, no shards of glass in the broken window, and she was awake, not sleeping. The social worker asked Samantha to wait after the hearing so they could go over the case plan, but Samantha left without going over the case plan or submitting to a drug test.
During a supervised visit on April 24, Samantha refused to sign the initial case plan, because the court had not yet ordered her to do so, and claimed she could not stay to provide a sample for drug testing, as she had to leave. The social worker interviewed Deputy McCall, who said he did not think Brayden could have gotten into or out of the house through the window because it was four feet off the ground. Deputy McCall did not see any boards near the window, which he noticed was broken with glass in the frame. After this conversation, the social worker again spoke with Rojas, who confirmed he watched Brayden place boards against the window and crawl into the house through the window, and said he continually had to keep Brayden from climbing into the window, as there was glass there. When told that Deputy McCall didn’t see any boards, Rojas said Samantha must have moved them because they were there and he would be willing to testify that Brayden climbed in and out of the window. The social worker also spoke with Brewer, who maintained that Brayden had crawled in and out of the window with the assistance of the boards from the outside and a table pushed against the wall on the inside. When told of Deputy McCall’s statements, Brewer said she was willing to testify that she and Rojas saw Brayden climb in and out of the window, and they had to keep him from doing so.
On May 3, Samantha, who said she was testing for her counselor, was advised to drug test through the call-in system, as that was the only acceptable program through the Department. Samantha said she had started a substance abuse program in March and was on the waiting list for a parenting class. On May 9, the social worker was informed Samantha, who failed to test on May 3 after her number had been called, had been discharged from the substance abuse program due to lack of attendance. The social worker who observed Samantha’s visits with the boys reported Brayden exhibited fearless behavior during visits, such as riding his bike down steep inclines to the parking lot, and although he had fallen more than once, he had gotten back up and resumed the behavior, which Samantha was not successful in mitigating.
A contested jurisdictional and dispositional hearing was held on June 27. Brewer testified that when she and Rojas arrived for an unannounced visit at Samantha’s house in the early afternoon on April 17, Brayden was alone in the front yard, which had a four foot chain link fence around it with a gate that was closed, but not locked. Brewer knocked and banged on the door, and rang the doorbell, for “a long time.” Brewer could see inside the home, and saw Cameron laying on a “little blanket” on the floor playing with a car. Rojas and Brayden were with her while she was knocking on the door, but after five to ten minutes they went around the side of the house so Rojas could see if the back door was open while Brewer continued knocking on the front door. Brewer saw Brayden inside the home. She yelled for him to bang on his mother’s bedroom door, which he did. After a little while, Samantha came out of her room and opened the front door.
Brewer testified that her statement in the jurisdiction report that when she arrived at Samantha’s house, “her two sons, Cameron, age 1 and Brayden R, age 3, to be unattended, outside of the home,” was a “typo,” and confirmed that Brayden was the only child outside.
In her report, Brewer described Cameron as laying on a “pallate,” which to her meant a “blanket laid there purposefully for him to lay on and play,” not a wooden pallet.
Brewer estimated it took Samantha 15 to 20 minutes to come to the door after Brewer started banging on it. Samantha remained in the house the entire time Brewer was there. Brewer did not see Brayden get back into the home, but assumed he climbed in through the window. Brewer testified Samantha told her she was in her room sleeping because her grandmother had died, but Brewer later learned from another social worker that her grandmother had not died. Brewer asked Rojas to step outside the home to call law enforcement because she felt Samantha’s behavior was erratic and a danger to the children. Brewer was in the home when law enforcement came.
When Brewer was in the home, she saw that the side window in the living room was broken and little pieces of glass sticking up in “certain areas” of the window frame. She did not see any glass on the floor or any cuts, scrapes or bruises on Brayden, who was barefoot and wearing only swim trunks, to indicate he was injured by climbing through the window. Brewer saw Brayden try to climb out of the window three times; she pulled him out twice and Rojas pulled him out once. A coffee table was pulled up to the side of the window, which Brayden would try to use to climb out of the window. Brewer said Brayden was standing on top of the table and had a foot on top of the window sill when she pulled him back in, but he never got back outside while she was there.
Brewer did not look to see if there was anything outside the window that Brayden could have stepped on to climb down from the window. She remembered going outside where the window was when she saw Brayden throwing papers out of the window, but she did not remember looking for a board or for a way to get into the house through the window. Brewer testified Rojas told her Brayden had put up a board. Brewer did not notice if there were any other ways he could have gotten into the home. Brewer said the risks of harm to Brayden from being outside without adult supervision included being taken by someone or being hurt without Samantha’s knowledge.
Rojas testified that Brayden was playing alone in the front yard when he and Brewer arrived. After Brewer knocked on the front door for about five minutes, Rojas walked around the corner of the house to knock on the back door, followed by Brayden. As they were walking to the back of the house, Rojas asked Brayden how he got outside. Brayden said he got out through the window. Rojas saw that the window, which looked to be open, did not have any glass in it. Rojas got close enough to the window to see that “in between where the glass goes … there were tiny pieces of minute glass not quite sticking up, but some of them were sticking up but not all, but there was glass around the window.” Rojas saw a “stick” leaning against the wall and another “stick” laying flat on the ground. Rojas described the stick leaning against the wall as “not quite a two-by-four, but it was a smaller stick like from a fence like. Smaller stick, maybe about 18 inches tall leaning against the wall of the house.” On cross-examination, Rojas estimated the stick to be a two-by-two.
According to Rojas, Brayden showed him how he used the stick to climb into the home, but Rojas did not see him actually climb through the window. Rojas believed Brayden could have used the stick as a ramp to get in and out of the window. Rojas did not know how far the window was from the ground, but estimated it was “probably two and a half feet.” When shown a picture of a window at the home, Rojas testified the window in the picture was about three and a half or four feet from the ground, but he did not think the window was the same one and the window he was talking about was about three feet off the ground.
James Cranmer testified that he took the picture of the window, which was the only broken window at the home.
Rojas left Brayden by the window and went to the back door, which he found to be locked. Rojas looked through a window in the back door, but did not see anyone in the home. After knocking for about two minutes, Rojas saw Brayden come through the living room and try to open the front door. Rojas did not know how Brayden got back into the home, and although Rojas did not see Brayden go through the window, he later assumed he came through it. Rojas did not see any other way Brayden could have gotten back into the house other than through the window. After Brayden tried to open the front door, Rojas saw Samantha walk to the front door and open it to let in Brewer. Rojas then went around to the front door and came into the house. While he and Brewer were talking to Samantha inside the house, Rojas saw Brayden try to climb onto the coffee table, which was next to the window; it looked like Brayden was going to climb out the window, so Rojas grabbed him and pulled him back.
Deputy McCall, who did not prepare a report of the incident, testified it took him five to fifteen minutes to get to the home after receiving the call to assist the Department. When he got there, the only person outside was the female CPS worker. Deputy McCall went into the home; the mother was inside, along with the two children and the female CPS worker. Deputy McCall checked the mother to see if she was under the influence; she did not appear to show enough symptomology to make him believe she was under the influence of any drug. The mother, who was acting “very erratic,” admitted to him that she had just woken up.
At the CPS worker’s request, Deputy McCall took photographs of the interior of the residence. Deputy McCall saw the broken window, but did not recall if there were any fragments along the edge of the framing and did not notice any. After being at the residence a couple of minutes, the CPS worker asked him to step around the side of the house so she could show him where she believed the child got out of the home. Deputy McCall looked at the window from the outside of the house and estimated it to be about four to four and a half feet off the ground. Deputy McCall did not recall seeing any items around the outside of the window or directly below it; neither did he see any boards or sticks, or anything directly underneath the window that could have been used as a ramp to get into the window. Deputy McCall did not recall seeing a stick that was approximately two-by-two by 18 inches, or anything leaning against the wall. He did not see either of the children climb through the window. In the window’s broken condition, Deputy McCall believed if a child had gotten up into the window, he could have fallen out of it. According to Deputy McCall, the mother was in his presence from the time he arrived at the home to the time he left.
While discussing the jurisdictional allegations with the attorneys, the court stated: “I’m disappointed in the report. Too many errors, you know. Too many – you’re trying to build something out of something that is significant but trying to make it bigger. We rely on these reports. We treat them as gospel true and sometimes they’re not.” The Department’s attorney responded they were having the trial because of the mother’s claim the child was not outside the house at all. The court responded that was right, but it was criticizing “all the other things in the report that are exaggerated and then taken out of context. And you ask me to look at these reports day in and day out and take them as gospel true.”
After hearing further arguments on jurisdiction, the court found with respect to the (b)(1) allegation that “the minor is in substantial risk because of inadequate supervision. This child was unsupervised outside the home while the mother was sleeping, and the other child was also unsupervised in the home for a period of at least 15 minutes. The Court finds this is not an isolated occurrence based upon the previous finding of a substantiated allegation occurred in December alleging the same circumstances of unsupervision.” With respect to the (b)(3) allegation, the court found “the use of drugs by the mother during the period of family maintenance presents a risk … to these minor children.”
The hearing immediately proceeded to disposition. The report prepared for the dispositional hearing showed that on May 15, the social worker advised Samantha of the requirements needed to receive a recommendation of family maintenance, including that she provide a pattern of clean drug testing, refrain from using medications prescribed for people other than herself, and reenroll immediately in substance abuse counseling. On May 17, Samantha said she had not been drug testing because she did not have the phone number or group number. A social worker gave her the information she needed. On May 22, the social worker tried to drug test Samantha, but she was unable to produce a urine sample. Samantha claimed she was unable to test with a referral because she did not have identification. Family maintenance requirements were again discussed with Samantha, and she was given a referral to drug test. Two days later, the social worker provided Samantha with information on obtaining a valid identification and she submitted to a drug test. Samantha reenrolled in substance abuse counseling on May 29, but again failed to participate and as of June 22, termination from the program was imminent. On June 19, Samantha told the social worker she would get a photo identification, but as of June 21, she still had not gotten one.
The report also listed Samantha’s history of drug testing. Samantha was presumptive positive on May 3, 8, 17, and 22, as she did not appear for drug testing through either the call-in system or the crime lab referral. The May 24 drug test showed elevated levels of amphetamines, but because she did not meet the screening cut-off, the test was marked negative and a confirmation was pending. The June 5 test was suspicious due to low sample chemistry, which could indicate either female problems or dilution with bleach or another chemical, although it appeared to the crime lab criminalist to be due to a female problem. Samantha could not provide a sample on June 7, and was presumptive positive. A June 12 test was positive for amphetamines, but could not be confirmed due to an insufficient sample. A June 14 oral test conducted at Kern County Mental Health was negative.
After hearing argument regarding disposition, the court found the children came within section 300, subdivision (b), adjudged them dependents of the juvenile court, and ordered them removed from Samantha’s physical custody and Samantha be provided reunification services.
DISCUSSION
Jurisdictional Findings
Samantha argues insufficient evidence exists to support the juvenile court’s finding that the boys are dependents of the court pursuant to section 300, subdivision (b) (failure to protect). We disagree.
“When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence – that is, evidence which is reasonable, credible and of solid value – to support the conclusion of the trier of fact.” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In making this determination, we may not reweigh the evidence or pass on the credibility of witnesses but rather must resolve all conflicts and indulge all legitimate inferences in favor of the prevailing party. (Ibid.; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
At a jurisdictional hearing, the juvenile court “‘shall first consider … whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300.’” (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.)
“While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics omitted.) Thus previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. (Ibid.; In re Steve W. (1990) 217 Cal.App.3d 10, 22.)
The juvenile court found jurisdiction under section 300, subdivision (b) which provides, in pertinent part, that a minor comes within the juvenile court’s jurisdiction if “[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 … by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s … substance abuse.” The statutory definition consists of three elements: (1) neglectful conduct by the parent of one of the specified forms; (2) causation; and (3) “serious physical harm or illness” to the child, or a “substantial risk” of such harm or illness. (In re Rocco M., supra, 1 Cal.App.4th at p. 820.)
Samantha first argues there is no credible evidence to support the factual allegations in the petition and even if there is, no evidence was presented that there was a substantial risk the boys would suffer serious physical harm or illness by (1) her failure or inability to adequately supervise the boys, and (2) her inability to provide regular care for them because of her substance abuse.
Where a petition is sustained based on several allegations, each allegation need not independently support jurisdiction; the court can take jurisdiction on evidence of a “pattern of behavior” resulting in a substantial risk of harm to the children. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1650.) Here, considering the allegations of inadequate supervision and Samantha’s history of drug use as a whole, we find substantial record evidence to support the juvenile court’s conclusion. (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 600 [we consider all the allegations in the petition in context and as a whole in reviewing the trial court’s findings].) There was substantial evidence of a pattern of behavior – including failure to supervise the boys and drug abuse by Samantha – that put the boys at risk of physical harm.
This pattern began with the December 2006 substantiated referral that Samantha was using methamphetamine and sleeping while the boys roamed the house. Although Samantha denied using drugs, she tested positive for methamphetamine in January and February. Samantha was provided VFM and began substance abuse counseling, which included drug testing, but she stopped attending and testing on April 2, two weeks before the April 17 incident. According to social workers Brewer and Rojas, when they came to Samantha’s home on April 17, Brayden was playing alone outside the home and Cameron was playing alone inside the house. They testified it took them 15 to 20 minutes to arouse Samantha by knocking and banging on the front and back doors, and when she finally answered the door, she appeared to have been sleeping. Samantha told the social workers and Deputy McCall she had been sleeping.
While Samantha had agreed through VFM to submit to drug testing and attend substance abuse counseling, she stopped attending counseling and was dropped from the program in May, and failed to drug test on five occasions, resulting in presumptively positive results. Two other tests were positive for amphetamines, but one was in the process of being confirmed and the sample for the other was insufficient to provide confirmation. While Samantha re-enrolled in substance abuse counseling at the end of May, she failed to participate and by the time of the jurisdictional hearing, she was on the verge of being terminated from the program.
This evidence was sufficient to support the petition’s allegations that on April 17, Brayden was outside unsupervised while Samantha was sleeping, Cameron was awake and unsupervised in the home, and Samantha could not be aroused from sleep for approximately 15 minutes, and that Samantha tested positive for methamphetamine in January and February. Moreover, the evidence shows Samantha continued to have difficulty with substance abuse and supervision of the boys. If they were to wander outside without adult supervision, as Brayden did, they would be exposed to a whole host of dangers, including possible injury from cars should they run out into the street, all of which subjected them to substantial risk of serious physical harm. The boys’ young ages – about three and one years – rendered them helpless to protect themselves, and deserving of special protection. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) For children of such tender years, “the absence of adequate supervision and care poses an inherent risk to their physical health and safety.” (Ibid.) Together, the evidence supporting the allegations demonstrated a pattern of lack of supervision and drug use that justified the court’s jurisdiction over the boys.
Samantha asserts the social workers’ testimony cannot be used to support jurisdiction because the juvenile court found them not to be credible. The juvenile court, however, made no such finding. While the court expressed dismay about errors and exaggerations in the social workers’ accounts in the jurisdictional report, since the court found that Brayden was unsupervised outside the home and Cameron unsupervised in the home for at least 15 minutes while Samantha was sleeping, it obviously also found credible the social workers’ testimony on these key points. We have no power to reach a contrary result, and leave such issues of fact and credibility to the province of the juvenile court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
For this reason, we also reject Samantha’s assertion there is no credible evidence that Brayden actually crawled in and out of house through the window, or that there were shards of glass in the window. The social workers’ testimony provides such evidence, despite being contradicted by Deputy McCall’s testimony. Moreover, even if we accept Samantha’s assertion that Brayden did not use the window to get into the house or that the window did not contain shards of glass, the juvenile court reasonably could have concluded, as it did, that the social workers found Brayden unsupervised outside the home and they could not arouse Samantha from sleep for 15 minutes. Once the court accepted the social workers’ testimony on these points, the court reasonably could conclude he was at risk of harm because he was unsupervised, regardless of how he got in and out of the house. Accordingly, the issues of how Brayden accessed the home or the condition of the window are actually red herrings, as they went only to the social workers’ credibility, not to whether Brayden was at risk of harm. Put another way, Brayden was at risk of harm because he was unsupervised outside the home, not because he may have used the window to climb into and out of the house.
Samantha next argues that although she tested positive for methamphetamine in January and February, there is no evidence she had a current problem with illegal substances because she was in treatment and did not have any positive tests after February. Essentially, Samantha contends there is no evidence of a current risk of harm from her drug use to support jurisdiction because there is no evidence she continued to have a substance abuse problem at the time of the June jurisdictional hearing.
Samantha is correct that there must be evidence of a current risk of harm to support jurisdiction. “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Indeed, “previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) On the other hand, “[w]hile jurisdiction must be asserted on the basis of conditions which exist at the time of the jurisdictional hearing, the court is not required to disregard the mother’s prior conduct. [Citation.] ‘[P]ast events can aid in a determination of present unfitness.’” (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)
While Samantha asserts there is no evidence she had a substance abuse problem at the time of the June hearing, Samantha ignores the evidence that she stopped attending substance abuse counseling on April 2, and subsequently was terminated from the program, and although she had signed up again by the end of May, by the time of the June hearing, she had stopped attending and was in danger of being terminated again. Moreover, although she had no confirmed positive drug tests from April through June, she did have presumptive positive tests due to her failure to test four times in May and once in June, one May test showed elevated levels of amphetamines and was in the processing of being confirmed at the time of the hearing, a June test was suspicious, and another June test was positive for amphetamines, but could not be confirmed due to an insufficient sample. Since Samantha was not attending substance abuse counseling and avoiding drug testing, the juvenile court reasonably could conclude that as of the June hearing, Samantha had an on-going substance abuse problem that was still in need of treatment. Although Samantha asserts we should ignore the presumptive positive tests because she had excuses for failing to provide samples, we cannot do so, as we are unable to reweigh the evidence and must accept the evidence favorable to the juvenile court’s order.
Samantha essentially asks this court to reweigh the evidence by accepting the exculpatory version of events she offered to social workers, as reported in the jurisdiction report, and rejecting the social workers’ testimony and reports. As noted above, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. We accept the evidence most favorable to the order as true and discard the unfavorable as not having sufficient verity to be accepted by the trier of fact. Samantha has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (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.) She has failed to do so.
Dispositional Order
Samantha contends the court erred in removing the boys from her custody. She asserts there was no clear and convincing evidence warranting removal.
When a parent challenges a dispositional finding, the question is whether substantial evidence supports the finding. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581 [although trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].) In resolving this question, we view the evidence in the light most favorable to the trial court’s determination, drawing all reasonable inferences in favor of the determination and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
As relevant here, 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 there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) The parent’s level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision].) 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, citing In re B.G. (1974) 11 Cal.3d 679, 699.)
We conclude that application of the appropriate standard of review, bearing in mind the heightened burden of proof below, requires that we affirm the court’s dispositional order because it is supported by substantial evidence. Samantha came to the Department’s attention in December 2006 because she failed to supervise her sons. Although she subsequently tested positive for methamphetamine, she initially denied using drugs, but later admitted using a couple times a month. The Department offered VFM services, including substance abuse counseling and drug testing, which Samantha accepted. While Samantha participated in substance abuse counseling for a couple weeks and had tested negative for drugs during that period through the counseling program, she stopped attending counseling and was dropped from the program. Social workers thereafter found the boys playing unsupervised – Brayden outside the home and Cameron inside it – while Samantha slept in her bedroom. After the boys were detained on April 17, Samantha did not re-enroll in substance abuse counseling until the end of May and even then, she failed to participate and was at risk of again being dropped from the program. In addition, she failed to drug test four times in May and had several suspicious tests. While Samantha tested negative once in June, she failed to demonstrate a pattern of sobriety.
Because Samantha did not show she was able to maintain a safe, drug-free environment, did not appear motivated to participate in a case plan, and failed to make substantial progress toward alleviating the conditions that led to the boys’ removal, the social worker recommended against returning the boys to Samantha’s care at that time. Under the circumstances, the court reasonably concluded it would not be safe to return the boys, who were very young, until Samantha had benefited from intensive services to enable her to understand the dangers to the boys from the lack of supervision and ensure she remained drug free. While Samantha points to other evidence that she asserts shows the boys would not be at risk of harm if returned to her care, she ignores the evidence that shows such a risk. Samantha’s drug abuse, coupled with her apparent disregard for the boys’ welfare as evidenced by her failure to adequately supervise them and her failure to avail herself of services, supports the court’s order.
The cases Samantha relies on, In re Basilio T. (1992) 4 Cal.App.4th 155, and In re Jasmine G. (2000) 82 Cal.App.4th 282, do not compel a different result. In Basilio T., the court found insufficient evidence to remove the minors, who had been declared dependents due to several incidents of domestic violence but had not themselves been physically harmed. The court concluded that since this was not an extreme case of parental abuse or neglect and the minors were not physically harmed, they could have been returned to their parents under strict supervision. (Basilio T., supra, 4 Cal.App.4th at pp. 170-172.) In Jasmine G., the court reversed a dispositional order, finding no substantial evidence to support removal of a teenage daughter from parents who had harshly disciplined her, but were attending parenting classes, expressed remorse and had foresworn corporal punishment. (Id. at pp. 285-286, 288-289.)
In contrast to these cases, Samantha exhibited a pattern of failing to adequately supervise the boys and did not avail herself of services designed to minimize the risk of harm had the boys been returned to her. The risk of harm to the boys is substantially greater than the risk to the minors in these cases, since the boys were left unsupervised, exposing them to many potential hazards. Samantha recognizes the harm, but argues there was no risk because the Department was willing to return the boys with family maintenance services if “she danced their jig and sang their tune.” Given the boys’ young ages and that Samantha had tested positive for methamphetamines, it was reasonable for the Department to require Samantha to show an ability to remain drug free and a willingness to address the issues that led to the boys’ detention before recommending the boys be returned on family maintenance. Instead of doing so, she avoided drug testing and dropped out of substance abuse counseling. The risk of harm to the boys is her lack of insight into the problems that led to removal, and the danger that remained from her failure to address those problems.
In sum, we find substantial evidence supports the juvenile court’s removal order and therefore uphold the order temporarily removing the boys from her custody.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.