Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J40055
RICHMAN, J.
Mother P.L. has six children. The two eldest live with P.L.’s mother under a guardianship, and the next three in age (A.L., H.L., and S.L.) were removed from her care and placed for adoption by the juvenile court. The sixth child, H.L-F., was born in February 2010, a mere nine days after the juvenile court had terminated P.L.’s parental rights to her three younger children. Six weeks after H.L-F. was born, respondent Solano County Department of Health and Social Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300, seeking to have the newborn declared a dependent due to the lengthy substance abuse history of P.L. and father H.F., and the parents’ recent failure to reunify with their three other children. The juvenile court sustained the petition, declaring H.L-F. a dependent of the court and ordering family maintenance services for P.L. P.L. appeals from the jurisdictional order, contending there was insufficient evidence to support the court’s findings. We disagree and affirm.
All subsequent statutory references are to the Welfare and Institutions Code.
P.L.’s two oldest children, Isabella and Christian, do not share the same father as her four younger children.
H.F. is not a party to this appeal. We therefore omit details concerning him except where relevant to the issues before us.
BACKGROUND
P.L.’s history with the Department is lengthy, dating back to 2001 and arising out of her severe, long-untreated substance abuse problem which rendered her incapable of providing care for her children. A detailed chronology can be found in our February 4, 2011 nonpublished opinion in H.F.’s appeal, no. A127658. We summarize the salient points here.
That appeal by H.F. challenged, first, the court’s denial of his section 388 petition seeking to reinstitute reunification services as to A.L., H.L., and S.L. and, second, the adequacy of the Department’s notices under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We rejected his section 388 challenge, but conditionally reversed for the Department to comply with the notice requirements of ICWA.
P.L. came to the Department’s attention in May 2001, when her first daughter, Isabella, was born. At the time of her birth, both Isabella and P.L. tested positive for methamphetamines. In April 2006 and August 2007, P.L. gave birth to sons A.L. and H.L., respectively. Again, P.L. and the newborns tested positive for methamphetamines. Although the Department did not take custody of A.L. or H.L. at birth, it did so in December 2007, when law enforcement officers found drug paraphernalia in the family’s apartment and arrested P.L. on an outstanding warrant. A section 300 petition was filed alleging failure to protect A.L. and H.L., failure to provide for their support while P.L. was incarcerated, and abuse or neglect of a sibling. (§ 300, subds. (b), (g), and (j).) The court declared A.L. and H.L. dependents and ordered the Department to provide P.L. and H.F. with reunification services. H.F. engaged in the services and initially made some progress in overcoming his substance abuse problem, but P.L. made little to no effort to ameliorate the concerns that led to the Department’s involvement.
Sister S.L. was born in October 2009 and, like her brothers and half-sister before her, tested positive for drugs at birth. A section 300 petition was filed the next day. S.L. was detained and declared a dependent of the juvenile court. The court ordered reunification services for H.F., but bypassed services for P.L. who had failed to make progress in treating her substance abuse problem, did not visit with A.L. and H.L., and was not participating in her case plan.
On February 3, 2010, after P.L. and H.F. failed to reunite with A.L., H.L., and S.L., the court terminated their parental rights pursuant to section 366.26 and placed the children for adoption.
On February 12, 2010, less than two weeks after the section 366.26 hearing, P.L. gave birth to H.L F., the child at issue in this appeal. Six weeks later, the Department filed a section 300 petition as to H.L-F., although it did not remove her from P.L.’s care. The petition alleged that P.L. and H.F. failed to protect H.L-F. within the meaning of section 300, subdivision (b). In factual support, the Department represented that H.L-F.’s siblings, A.L, H.L., and S.L., were dependents of the juvenile court. The parental rights of P.L. and H.F. to these three children had been terminated “due to issues of substance abuse and neglect.” The parents “failed to comply with prior Court ordered case plans; including, but not limited to, abstaining from drugs, securing appropriate and adequate shelter, parent education and visitation, ” conduct that placed H.L-F. at “substantial risk of serious physical harm.” (Allegations b-1 [P.L.], b-3 [H.F.].) The Department also alleged that the parents had “a history of abusing controlled substances, including methamphetamines, ” which “rendered [them] unable or unwilling to provide adequate care for the minor’s siblings, A.L., H.L. and S.L., and places the minor, H.L-F., at risk of serious physical harm or illness.” (Allegations b-2 [P.L.], b-4 [H.F.].)
P.L. and H.L-F. tested negative for drugs at the time of H.L-F.’s birth.
The petition also alleged abuse or neglect of H.L-F.’s siblings within the meaning of section 300, subdivision (j). As factual support, the Department reiterated that P.L. and H.F.’s three other children were dependents of the juvenile court due to the parents’ substance abuse problems and neglect, the parents had failed to comply with their case plans and reunify with their children, and their parental rights had been terminated. (Allegations j-1 [P.L.]; j-2 [H.F.].)
A March 23, 2010 detention report explained that P.L. was living with H.L-F. at the Reynaissance Family Center, and that H.F. was homeless. According to a social worker who had met with P.L. shortly after H.L-F. was born, P.L. reported that she had been clean and sober since April 2009, although she had only been participating in a treatment program since December 12, 2009. She had received pre-natal care starting in December 2009, about two and a half months before H.L-F.’s birth. P.L. expressed reservations about trusting the social worker because of her experience with the Department with regard to her three other children.
A social worker also met with P.L. and H.F. on March 4, 2010 as they returned to the Reynaissance Family Center following an appointment. Because the facility did not allow men in the building, H.F. was unable to stay. During his brief encounter with the social worker, however, he advised that he had not used drugs since November 2009 and was willing to drug test. He refused to submit to a hair strand test, however, claiming his hair would grow back gray. P.L. likewise refused a hair strand test, claiming it caused bald spots.
During the visit, P.L. represented that she had entered a substance abuse program on December 12, 2009 through Project Aurora, which also offered parenting classes and counseling, and was attending NA/AA meetings three times per week. P.L. and H.F. were also purportedly very involved with their church, attending Bible study regularly. When the social worker advised that she wanted to hold a team decision making meeting to discuss the Department’s concerns and decide on appropriate services for the family, P.L. responded that she did not need any services because she was already in recovery and had all the support she needed. The social worker explained that although P.L. appeared to be doing well in her recovery, the Department wanted to support her efforts through family maintenance services. P.L. was then given a drug testing referral. P.L.’s Project Aurora counselor advised the social worker that since P.L. began treatment with Project Aurora, she had consistently tested negative for drugs.
According to the detention report, a team decision making meeting was held on March 16, 2010. P.L. and H.F. were both present, as were a number of their supporters, including members of their families and church and P.L.’s treatment program, as well as P.L.’s Project Aurora counselor and the house manager of the Reynaissance Family Center. It was decided at the meeting that H.L-F. would remain in P.L.’s care at the Reynaissance Family Center, and that P.L. would continue with her counseling program, substance abuse treatment services, and parenting classes. H.F. agreed to arrange a substance abuse assessment because he claimed to want treatment.
At the conclusion of the detention report, the Department recommended that the court leave H.L-F. in P.L.’s care under the Department’s supervision and order family maintenance services “as there is a substantial risk of harm to the physical and emotional well-being of the child, and there are no reasonable means to protect her without Court intervention.”
Appended to the detention report was a letter from P.L.’s substance abuse counselor, attesting that P.L. had been enrolled in Project Aurora since December 12, 2009, was attending group counseling sessions five days a week and NA/AA meetings three days a week, was in compliance with her treatment plan, participated well in all assigned activities, and had no positive results in her random drug testing. Additional attachments confirmed that P.L. received pre-natal care during her pregnancy with H.L F., and was receiving other counseling, support, and parenting education. Also appended were the February 8, 2010 orders following the section 366.26 hearing in which P.L. and H.F. lost their parental rights to their three older children.
On April 22, 2010, the court followed the recommendations of the Department and did not detain H.L-F., but did order services for both parents, including substance abuse treatment and testing, parenting education, and counseling. After multiple continuances, the court set a contested jurisdictional hearing for June 15, 2010.
In a June 14, 2010 addendum to the March 23, 2010 detention report, the Department advised the court that it had received the results for P.L.’s 17 drug tests between December 21, 2009, and April 28, 2010, all of which were negative. It had also received a negative urine drug screen from May 12, 2010, although the report indicated that P.L. had refused to submit to a hair strand test on that date.
The Department again commended P.L. for engaging in substance abuse treatment, consistently testing negative for drugs, and cooperating with the Department. Despite this progress, however, it concluded that H.L-F. came within the court’s jurisdiction because “she is at high risk of abuse by her parents based on their very recent history of substance abuse, poor decision making and failure to meet the case plan objectives in order to reunify with their older three children.”
The documents appended to the addendum included P.L.’s drug testing results, as well as numerous documents from the juvenile court proceedings pertaining to A.L., H.L., and S.L., including the section 300 petitions, the six-month status review findings and orders for A.L. and H.L. terminating reunification services to P.L., the jurisdiction and disposition findings and orders for S.L. bypassing reunification services for P.L., the 18-month permanency hearing findings and orders, and the section 366.26 hearing findings and orders terminating P.L.’s parental rights to all three children.
On June 15, 2010, the date set for the contested jurisdictional hearing, counsel for H.F. requested a continuance, representing that H.F. was at a doctor’s appointment with H.L-F. and was unable to get to court in time for the hearing. The court granted the request, continuing the matter for a combined jurisdictional/dispositional hearing on August 3, 2010.
The Department filed a combined jurisdiction/disposition report on July 30, 2010. As supporting evidence for the jurisdictional allegations, the Department referenced the documents appended to the June 14, 2010 detention report addendum, including P.L.’s negative drug test results. The Department noted, however, that at a July 14 visit, it had requested that P.L. submit to a urine screen by the next day as well as a hair strand test. She refused to submit to the hair strand test, claiming it would leave a bald spot on her hair, and did not submit to the urine screen until July 20, 2010. The Department also appended a NA/AA attendance sheet showing P.L.’s attendance at eight meetings from June 30, 2010 through July 20, 2010.
The Department commended P.L. for engaging in substance abuse treatment, consistently testing negative on her drug screens, and cooperating with the Department. It nevertheless recommended that the court declare H.L-F. a dependent and that she remain in P.L.’s care under family maintenance services. It explained: “The Department is currently involved due to the parents’ long substance use history and the parents history of unsuccessfully treating their substance use which has led to them failing to reunify with three of their children (their parental rights as to the three older children were also terminated). The parents’ substance use along with the prior case history causes the risk of abuse and neglect to be high. The Department is also concerned that father has failed to drug test and engage in substance abuse assessment. The Department also is concerned based on the mother’s refusal to hair strand test. Based on the high risk and prior Child Welfare Services and Juvenile Court involvement, the Department believes that further Juvenile Court involvement is necessary and the Department recommends that Family Maintenance Services be offered to the mother, P.L. and the [sic] Family Reunification Services not be offered to the father, H.F.” The Department expressed hope that P.L. would continue to remain substance free and that after six months of family maintenance services, jurisdiction could be terminated.
The contested jurisdiction/disposition hearing was held on August 3, 2010. Social worker Brian Bouknight testified that P.L.’s substance abuse problem dated back at least nine years but that she had been in a formal treatment program since December 2009. He described her recovery as relatively recent, given the length of her substance abuse history, a factor that impacted his assessment that H.L-F. was at high risk of harm. In light of this assessment, he recommended that H.L-F. remain under the court’s supervision, although she did not need to be removed from P.L.’s care.
Despite that the matter was continued to accommodate H.F., he failed to appear at the hearing.
Mr. Bouknight confirmed that he had asked P.L. on multiple occasions to submit to a hair strand test but that she had refused to do so, expressing concerns about what it would do to her hair. He explained that the test would confirm whether there had been any drug use over the past 90 days, which was more accurate than urine screens. Despite her failure to hair strand test, he did not recommend H.L-F.’s removal from P.L.’s care, explaining that even if a hair strand test came back positive, “I have nothing to believe that [H.L-F.’s] in any imminent risk of harm at this point.”
Mr. Bouknight testified that as far as he knew, P.L. was no longer in regular contact with H.F., who had not submitted to drug testing and was not in contact with the Department. He was concerned about P.L.’s ability to maintain her sobriety when she was in regular contact with H.F., because H.F. had not complied with the Department’s requests to drug test.
When asked by counsel for H.L-F. whether he was satisfied that P.L. was fully participating in her treatment program, Mr. Bouknight responded that his one concern arose earlier that day when a provider at P.L.’s treatment program called him to report that P.L. had advised her that she, P.L., was not going to attend the program that day because Mr. Bouknight was going to come by for a home visit. Mr. Bouknight explained at the hearing that he had contacted P.L. early in the morning to arrange a time when he could drop off a bus pass, and she had advised him she would be around all morning, failing to tell him that she would be skipping her program in order to wait for him. He testified that he would have hoped for better organization and communication by P.L., because the substance abuse treatment program needed to be her first priority. Mr. Bouknight confirmed that, otherwise, he was very satisfied with his interactions with P.L. and H.L-F., and that H.L-F. was being “[v]ery, very well taken care of.” He also reiterated that P.L. now had infrequent contact with H.F. and had not seen him for a long time.
Mr. Bouknight confirmed that the need for jurisdiction was based on, in the words of H.L-F.’s counsel, “an extremely long and severe substance abuse history for both parents..., ” a history so severe that it led to the termination of parental rights for their three older children. He opined that there needed to be a longer period of engagement in services, particularly substance abuse treatment, before the Department could be assured that P.L. has fully recovered from her substance abuse problems and did not present a danger to H.L-F.
Under cross-examination by counsel for P.L., Mr. Bouknight confirmed that P.L. was participating in a treatment program at Project Aurora, and that she sought help through that program before H.L-F.’s birth and without any assistance from the Department. He also confirmed that P.L. had been submitting to urine screening from December 2009 up through the hearing, with consistently negative results. He further confirmed that on July 14, 2010, he requested that she drug test by the following day, and that, contrary to the representation in the jurisdiction/disposition report, she had in fact tested the following day, although it was not at the facility he intended.
Following Mr. Bouknight’s testimony, counsel for the Department began argument by commending P.L. for the progress she had made. According to counsel, however, it was not enough: “[G]iven Ms. L.’s long history of substance abuse and her relatively short engagement in formal treatment, [the] Department feels that the risks to this very young child are very high. [¶] The allegations are factual. We would ask the court to sustain all of the allegations and to follow the recommendations and take jurisdiction and order family maintenance services to Ms. L. so that we can have her engage with drug court and hopefully all things will go well and six months from today, which is the date for disposition, we would see a termination of services with custody-full custody to Ms. L.”
Counsel for H.L-F. agreed “a hundred percent” with the recommendation to continue providing family maintenance services, explaining, “I feel we should have jurisdiction because of the severity of the substance abuse problem that [P.L.] suffered from that put the other children at such risk and, you know, not, and not once, not twice, but three other children went through the Child Protective Services process and it’s very recent.”
After counsel for H.F. objected and submitted, counsel for P.L. asked that the court not sustain any of the allegations against P.L. She acknowledged that many of the factual allegations relating to P.L.’s drug history and her other three children were true. Nevertheless, she disputed that there was a current substantial risk to H.L-F. The evidence, including the Department’s report and Mr. Bouknight’s testimony, showed that P.L. has done such a “model job” that there was no risk to H.L-F. Counsel summarized that P.L. has been in self-initiated treatment since December 2009, had an acceptable place to live for H.L-F. and herself, was meeting all of H.L-F.’s needs, and had separated herself from H.F.
Following all that, the court found that the Department had proven the allegations in the petition by a preponderance of the evidence, stating, “As [counsel for the Department and P.L.] indicated, [the allegations] are primarily factual in nature. You know, they did happen. As [counsel for P.L.] indicated, the actual basis for jurisdiction is the substantial risk, and I agree with the comments of [counsel for the Department] given the severity of Ms. L.’s prior-well, the past severity of her addiction I don’t think that the period of sobriety has been long enough for me to find that there’s no-it’s hard to state the-the evidential evidence findings in a negative, but I do make the finding that there is still substantial risk. [¶] There have been other cases where I’ve done that where people are still living in a sheltered environment and I do want to commend her, though, for the efforts that she’s made and look forward to her being in drug court. I think we can provide assistance and support for her to do that.” The court then ordered continued family maintenance services for six months, setting a review hearing for February 3, 2011.
On August 10, 2010, P.L. filed a timely notice of appeal.
DISCUSSION
P.L. presents one argument on appeal: the juvenile court’s finding that H.L-F. came within its jurisdiction was unsupported by the evidence. We review such a claim to determine if there is any substantial evidence to support the conclusion of the trier of fact. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Substantial evidence is evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214. See also In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319 [“We review the findings and orders under the substantial evidence test. We affirm the rulings of the juvenile court if there is reasonable, credible evidence of solid value to support them.”].) We are to resolve all conflicts in favor of the respondent (here, the Department), and must not substitute our deductions for those of the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16; In re Bernadette C. (1982) 127 Cal.App.3d 618, 627.)
As a procedural matter, the Department contends that P.L. is actually challenging the sufficiency of the allegations in the section 300 petition, a challenge she forfeited by failing to test the petition by way of a timely demurrer below. Its argument is premised on P.L.’s concession that paragraphs b-1 through b-4 are essentially factually accurate. P.L.’s claims go beyond the sufficiency of the allegations in the complaint, however. She concedes the factual chronology of the proceedings concerning A.L., H.L. and S.L., but nowhere does she concede that her history placed H.L-F. at a substantial risk of serious physical harm, as alleged. Her appeal is thus proper.
As noted above, the petition alleged that H.L-F. came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) and (j). Subdivision (b) describes a child in need of the protection of the juvenile court as one who “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 the inability of his or her parent or guardian to adequately supervise or protect the child... or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
As factual support, the Department identified two concerns, the first of which was P.L.’s failure to reunify with A.L., H.L., and S.L. According to the petition, P.L. recently “failed to comply with prior Court ordered case plans; including, but not limited to, abstaining from drugs, securing appropriate and adequate shelter, parent education and visitation.” This conduct resulted in the termination of P.L.’s parental rights to three of her children and, the Department alleged, placed H.L-F. at substantial risk of serious physical harm. The second concern was P.L.’s history of substance abuse: “The mother, P.L., has a history of abusing controlled substances, including methamphetamines. Such abuse has periodically rendered her unable or unwilling to provide adequate care for the minor’s siblings, A.L., H.L., and S.L., and places the minor, H.L-F., at risk of serious physical harm or illness.” The Department submitted extensive evidence to substantiate these allegations.
The Department’s evidence showed that A.L., H.L, and S.L. all tested positive for drugs at birth. Despite its offer of services, P.L. failed to make any progress in her case plan, take steps towards sobriety, or maintain consistent visitation with the children. Ultimately, services were terminated (they were bypassed entirely for S.L.), as were P.L.’s parental rights. At no point from the time of detention to the time of termination did P.L. make progress in alleviating the problems that led to the dependencies. This history is relevant to the consideration of whether H.L-F. needed the court’s protection. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169 [“In determining whether the child is in present need of the juvenile court’s protection, the court may consider past events.”.)
At the same time, the Department’s evidence showed that P.L. had been in a treatment program since December 12, 2009 and had consistently tested clean since then. However, given this short period of recovery (seven and one-half months) relative to her lengthy history of drug abuse (at least nine years), the risk of relapse remained high. The Department’s concern about this risk was compounded by P.L.’s steadfast refusal to submit to a hair strand test. While her random, urine screenings dating back to December 2009 had been negative, a hair strand test would have been a more reliable indicator of whether she was truly remaining drug-free without relapses.
As P.L. notes, the Department offered no evidence that the newborn had in any way been neglected or abused and, indeed, social worker Bouknight testified that H.L-F. was “[v]ery, very well taken care of” by P.L. But jurisdiction does not require demonstrated abuse or neglect. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 [“[T]he minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.”].) Instead, the standard is whether there is a substantial risk of harm to the child (§ 300), and P.L.’s lengthy history of drug abuse compared to her relatively short period of recovery was substantial evidence that such a risk existed. This conclusion amounts to more than mere speculation or conjecture-more than mere “[p]erceptions of risk, ” as P.L. puts it. Rather, it is grounded in the very significant possibility of relapse. Neither of the cases heavily relied upon by P.L.-In re David M. (2005) 134 Cal.App.4th 822 and In re James R. (2009) 176 Cal.App.4th 129-are to the contrary.
P.L. also points to Mr. Bouknight’s testimony that he did not believe H.L-F. to be in “any imminent risk of harm” at the time of the jurisdictional hearing. But, again, the standard is substantial risk, not imminent risk, of harm. In light of P.L.’s lengthy drug history that led to her failure to reunify with three of her children compared to her recent sobriety, we conclude that the juvenile court’s jurisdictional finding under section 300, subdivision (b) was supported by substantial evidence.
Because substantial evidence supported jurisdiction under section 300, subdivision (b), we need not address whether jurisdiction also existed pursuant to subdivision (j).
We close with accolades for P.L., who has made impressive progress in turning her life around and giving H.L-F. a chance at life in the care of her mother, a chance that her five siblings did not have. Entering a treatment program on her own initiative at a time when the Department was no longer providing services and remaining drug-free are significant accomplishments of which P.L. should be proud. We hope that P.L. maintains this sobriety and proves to be one of the “success stories” of the dependency proceedings.
DISPOSITION
The order is affirmed.
We concur: HAERLE, ACTING P.J., LAMBDEN, J.