Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ007449, Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kate M. Chandler, under appointment by the Court of Appeal, and Richard Pfeiffer for Defendant and Appellant Father.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
All statutory references are to the Welfare and Institutions Code.
Mother and father appeal separately from dependency orders entered at the jurisdictional and dispositional hearings. Both parents argue there was not substantial evidence of risk or serious physical harm establishing jurisdiction and justifying removal of the minor child, Jacob A. They also contend reasonable efforts were not made to prevent Jacob’s removal at the dispositional hearing.
At oral argument, the parties discussed whether the case may be moot because Jacob has been returned to his father. But the appellate record does not permit us to consider this point.
In summary, the facts of this case show a volatile family experiencing a period of turmoil during which the parents sold their house, separated, and eventually reconciled in Nevada. During this time, for about six months from May 2007 until the dispositional hearing in October 2007, Jacob was effectively abandoned by his parents.
We acknowledge a close question is presented, particularly on the issue of removal at the dispositional hearing, but we conclude that the whole record supports the dependency court’s determinations.
2. Factual and Procedural Background
Parents were married in 1987. The minor child, Jacob A., was born in March 1994. Parents had a history of four child welfare referrals for domestic violence and drug use in 2002, 2003, and March and April 2007 in San Diego County.
Two older sisters, not the subject of this appeal, were born in 1987 and 1991.
In May 2007, father’s second cousin contacted DPSS for the County of Riverside about Jacob. The cousin reported to the social worker that father, mother, Jacob, and Jacob’s sister, Emily, had moved in with him four weeks previously. Then mother and Emily moved to Indiana, leaving father and Jacob. Father was not supervising Jacob who was not attending school. The second cousin did not know whether Jacob was receiving regular meals and he was unwilling to become the child’s primary caretaker. The second cousin also said he had discussed the situation with mother who had not responded.
Department of Public Social Services.
DPSS filed an original juvenile dependency petition on May 23, 2007, alleging the parents’ failure to supervise or protect, including substance abuse by the parents and domestic violence between the parents, and no provision for support. (§ 300, subds. (b) and (g).) DPSS further asserted father had left Jacob unsupervised for four and five days at a time and father had gambled at the Pechanga casino, leaving Jacob in the car. Father’s saliva test had been positive for methamphetamine and Jacob had admitted seeing father smoking marijuana. Mother knew about father’s drug use but had left Jacob with him and moved to Indiana.
When the social worker made contact with him, Jacob was asleep in a bedroom with dog feces in baggies on the floor. Jacob did not know where his father was or when he would return. The social worker took Jacob to the DPSS office and Jacob called his father who said he would come to the office.
In an interview, Jacob displayed a flat affect and spoke timidly. He was inconsistent and confused when describing his parents’ situation. He said he was not presently enrolled in school and his father and he usually ate out for their meals. His father had taken him to a friend’s house where people smoked marijuana although his father refrained. Jacob denied being left in the car while his father gambled or attended parties.
Father said they were living with his cousin while his wife visited relatives in Indiana. There had been episodes of domestic violence between them and mother was suffering mental illness. She had falsely accused father of using and selling drugs. Father believed his wife was using methamphetamine. Father maintained he took Jacob with him everywhere but he never left him alone for long periods of time. He did not leave him in the car while “he partied with friends or gambled.” Instead, he accused mother of excessive gambling. He admitted Jacob had not attended school for five weeks because he could not be enrolled so late in the year. Mother had handled all medical and dental care for Jacob.
Father seemed to be under the influence of a drug and he admitted smoking marijuana occasionally. He claimed he had not used methamphetamine for five to seven years but he had a history of drug use and a criminal record involving at least three incidents of domestic violence and four incidents of substance abuse between July 2004 and March 2007. He discounted his previous drug-related arrests.
The social worker contacted mother in Indiana who explained she had moved to Indiana to escape father “because he was abusive and using drugs.” Mother said there was not enough room for Jacob in the small Indiana apartment. Mother said father had begun using methamphetamine five years before. Mother denied she had any history of drug use. Mother also tried to minimize the degree of past abusiveness by father. Mother said father had intimidated Jacob but Jacob wanted to stay with father who had been “clean for three weeks.” Mother also claimed she was planning for father to take Jacob to his paternal grandmother’s home in Laughlin, Nevada and, from there, have Jacob fly to Indiana.
Mother explained she had removed Jacob from school three months ago for homeschooling because they were selling their house. She believed father was reenrolling him in school. Jacob has asthma but the family did not have medical coverage. The social worker had to obtain a refill of Jacob’s inhaler prescription.
Father stated his deceased paternal great-grandmother was a registered member of the “Mission Indian, Pala tribe.” Father was not a registered tribal member. DPSS prepared and gave ICWA notice.
At the detention hearing on May 24, 2007, the dependency court sustained the findings under section 300, subdivisions (b) and (g), and further found the child’s removal was justified and reasonable efforts had been made to prevent his removal. Jacob was placed with his maternal aunt and uncle in Oceanside.
The jurisdictional/dispositional report for June 2007 included an interview with Jacob. He said his father was working in Nevada and his mother was living in Indiana with his sisters. He had not liked living with his father’s cousin. He was happy to be living with his uncle. His father had allowed him to associate with drug users. He admitted the allegations concerning his father’s drug use and domestic violence.
Father denied the allegations against him and mother. Father was living in Oceanside and Laughlin but had not been visiting Jacob.
Mother admitted some allegations but denied that father had inflicted physical harm, that she used drugs, or that either of them could not provide for Jacob. Mother was planning to move back to Temecula in July 2007.
The paternal grandmother, Marsha M., said father had been using drugs for several years and that he needed to be in treatment. Her opinion was that Jacob should live with mother. Both parents were opposed to relinquishing Jacob for adoption.
In an addendum report dated July 30, 2007, DPSS recommended that Jacob be declared a dependent and the parents be offered reunification services. DPSS also recommended mother receive placement if she obtained housing separately from father and provided a clean drug test. According to the addendum, Jacob was still living with his maternal uncle but he was proving troublesome and the uncle did not want to continue as caretaker. Father had not participated in visitation and was not responsive to the social worker’s calls. Mother was still in Indiana but planning to return to Temecula.
On July 23, 2007, the social worker had talked by telephone with mother in Laughlin. Mother announced the parents had reconciled and were staying there because of work opportunities and affordability. Father had provided a negative drug test for employment. They were moving into a four-bedroom house on August 1. They were also planning to enroll in counseling and domestic violence and substance abuse programs.
The court set a contested jurisdictional hearing for October 2007 and ordered father to take a hair follicle test.
Both parents provided negative drug tests on July 30, 2007, but father refused to submit to a hair follicle test. During the next several months, the parents continued to express ongoing anger and hostility about Jacob not being returned to them. There were problems with visitation and parents participating in services in Laughlin. Jacob was relocated from his uncle’s house to a foster care home.
In October 2007, the court found Jacob was a dependent child of the court within the meaning of section 300, subdivision (b). The court made findings about clear and convincing evidence of substantial danger to Jacob and the need for his removal. The court removed him from parents’ care and custody. (§ 361, subd. (c)(1).) The court ordered parents to be provided with and participate in reunification services.
Both parents appeal.
3. Discussion
As a preliminary matter, we reject father’s repeated contention on appeal that he had provided a negative hair follicle drug test before the jurisdictional hearing. The record does not support father’s interpretation of it. In July 2007, the court ordered father to take a hair follicle test but he refused. At the hearing in October 2007, the court discussed with counsel that father had refused to take the hair follicle test and that father was then willing to cooperate. But, on the date of the hearing, he had not yet submitted to the test.
a. Jurisdiction
Parents argue there was not substantial evidence to support the court’s jurisdictional findings that Jacob was at substantial risk of serious physical harm when he was detained while living with father in the cousin’s home and subsequently at the time of the jurisdictional hearing. The standard of review favors respondent: “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 Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (Ibid.; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
In determining whether there is substantial risk of serious physical harm, In re Rocco M. (1991) 1 Cal.App.4th 814, 820, speaks of “three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” Domestic violence in the same household where children are living is neglect; it was a failure to protect Jacob from the substantial risk of encountering the violence and suffering serious physical harm or illness, including secondary abuse. Such neglect causes the risk. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-195.) Furthermore, there does not have to be evidence of actual injury. The state may act to prevent the possibility of future harm. (In re Eric B. (1987) 189 Cal.App.3d 996, 1004.)
Here substantial evidence supported the allegation under section 300, subdivision (b), that father had committed domestic violence against mother on various occasions in San Diego. Notably, on at least one occasion, he knocked her down in the presence of Jacob and Emily. Although mother chose to make light of these episodes, the multiple incidents certainly suggested they might occur again after parents apparently reconciled.
Additionally, substantial evidence supported the allegation that father abused controlled substances. Father admitted and other evidence demonstrated that he had used methamphetamine and marijuana for many years. He was still involved with drugs when mother left Jacob with him and departed for Indiana. He exposed Jacob to drug users. At the time of the jurisdictional hearing in October 2007, father had not yet complied with the court’s order to submit to a hair follicle drug test. For these reasons, the trial court was entitled to infer that Jacob was subjected to a substantial risk of serious physical harm when he was placed in “an environment allowing access to drugs, with nothing to prevent him from succumbing to the temptation to ingest them.” (In re Rocco M., supra, 1 Cal.App.4th at p. 825.) Father’s conduct seemingly condoned and encouraged drug use. (Ibid.)
Father’s ongoing drug use and acts of domestic violence were exacerbated by mother’s unwillingness to acknowledge his conduct and protect Jacob from its effects. Neither parent had seriously pursued reunification services. Father had enrolled in only one anger management course in Nevada. Under such circumstances, there was clear and convincing evidence Jacob could be at substantial risk for serious physical harm if he was not declared a dependent of the court.
b. Section 361
Parents also argue substantial evidence did not support Jacob’s removal: “Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor 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 minor and proof of a potential detriment to the minor if he or she remains with the parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.)” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)
Again the substantial-evidence test applies, “. . . however bearing in mind the heightened burden of proof.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) For the same reasons as discussed above, we conclude substantial evidence supported a removal order. Father’s criminal record, his history of drug use, the domestic violence between parents, and mother’s insistence on minimizing the foregoing—all are factors supporting Jacob’s removal. Even Jacob himself has expressed ambivalent feelings about returning to parents. In September 2007, he told the social worker he would be happy to stay in his foster placement.
c. Reasonable Efforts to Prevent Removal
Lastly, parents argue the court failed properly to make a determination that DPSS had made reasonable efforts to prevent the need for removal. (§ 361, subd. (d).) Based on the record, we conclude the court made the necessary determination.
Parents maintain Jacob could have remained in their care under DPSS supervision. We disagree. In San Diego, parents had made little or no progress toward alleviating the conditions that caused the referrals in that county. Instead, they separated and mother fled the state. Mother allowed Jacob, under father’s care, to leave school. Father offered no supervision or structure. Instead, he exposed Jacob to criminal conduct and left him in the car while he gambled. For several months after Jacob’s initial detention, parents took few steps to improve the situation. They did not always maintain regular and appropriate contact with Jacob. Even though parents finally reconciled, the record offered little reason to hope the situation would be better. Father’s drug problems and the domestic violence issues continued to be unresolved. Allowing Jacob to be with parents was not a reasonable alternative under the circumstances.
4. Disposition
We affirm the jurisdictional and dispositional orders of the dependency court.
We concur: Ramirez, P. J., Hollenhorst, J.