Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK70893, Stephen C. Marpet, Commissioner.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Aleen L. Langton, Deputy County Counsel, for Plaintiff and Respondent.
DOI TODD, J.
Y.P. (mother) appeals from the juvenile court’s order finding jurisdiction over four of her daughters under Welfare and Institutions Code section 300, subdivision (b). She contends there was insufficient evidence that her daughters were at substantial risk of harm due to her substance abuse problem. We agree and reverse.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Minors J.V. (age 13), J.V.2 (age 11), S.V. (age 9) and K.V. (age 4) first came to the attention of respondent Los Angeles County Department of Children and Family Services (the department) on October 22, 2007, when school officials reported that S.V. had a swollen eye. S.V. stated that while visiting the home of her paternal grandparents and her older half-sister A., A. hit her. The department’s social worker privately interviewed S.V.’s sisters, J.V. and J.V.2, who were with her at the grandparents’ home and who denied having knowledge of the incident. The social worker also interviewed mother, who could not get a straight answer from S.V. as to who had hit her. During her interview with the social worker, mother disclosed that she had a history of abusing methamphetamine, she had last relapsed in February 2007, and she was participating in an outpatient substance abuse treatment program.
A., who is mother’s first child, is not a subject of this appeal.
On November 8, 2007, mother’s substance abuse counselor informed the social worker that mother was being discharged from the program due to her lack of participation. Mother had tested positive for methamphetamine three times in July 2007, but had tested negative since then. Mother admitted to the social worker she was aware that she was being discharged from the program, and attributed her attendance problems to transportation difficulties and having to care for four children.
On November 14, 2007, the department held a team decision meeting to determine whether a voluntary family maintenance case would benefit the family. Mother attended the meeting and stated that she understood her addiction and the risk of relapse, but the social worker did not believe that mother understood the importance of continuing with her treatment program in order to maintain her sobriety. The team members decided that a voluntary program would not benefit the family and that a court-ordered family maintenance program was necessary. Mother agreed to participate in a court case.
On December 9, 2007, the department filed a petition under section 300, subdivision (b), on behalf of J.V., J.V.2, S.V. and K.V., alleging that mother had a 12-year history of substance abuse, that she was a frequent user of methamphetamine, that she had failed to complete a substance abuse treatment program, and that her use of illicit drugs endangered the minors’ physical and emotional health and created a detrimental home environment, placing the minors at risk of physical and emotional harm and damage.
The department’s detention report stated that the minors appeared bonded with mother and each other and that they remained in mother’s custody. Mother reported that she had limited support from family members. She also admitted that she was having trouble dealing with the revelation in 2004 that S.V. had been sexually abused because mother herself had been sexually abused. The social worker categorized the family as being at “very high” risk for future abuse. The detention report noted that there was a previous referral in 2002 for general and severe neglect by mother and the minors’ father, but the results were inconclusive. The department attached a November 2007 progress report from mother’s substance abuse treatment program, which stated that while mother had previously shown favorable results in her program, she was currently at risk of relapse. The department also submitted an information for court officer advising that the social worker had made an unannounced visit to mother’s home on December 12, 2007. Mother reported feeling sick and was lying down, the home was dirty with food on the counter and dishes in the sink and clothes scattered about. Mother admitted that she had difficulty keeping the house clean. Mother appeared withdrawn and displayed signs of depression, including an inability to maintain her personal well-being.
Mother attended the initial court hearing on December 14, 2007. Her attorney represented that mother was participating in another substance abuse treatment program and that mother felt she could use the department’s assistance. The court ordered mother to participate in weekly drug testing, a drug program and a psychological evaluation.
In its January 29, 2008 jurisdiction and disposition report, the department reported that the minors appeared to be happy, healthy and strongly bonded to mother, and that mother appeared to have solid support from her own mother. None of the minors had developmental problems or exhibited symptoms of emotional distress, and the three school-age children were all attending school. The minors’ immunization records appeared to be current. The social worker noted that the minors appeared to be receiving sufficient care and supervision, though mother admitted there was a need to improve certain aspects of the overall management of her home. Mother, age 31, became pregnant with A. at the age of 14. Mother admitted that she had used drugs on and off for 12 years, but denied that she was a current or frequent user. She entered her first substance abuse treatment program in 2003 and participated in the outpatient program for six months while pregnant with K.V.. She admitted relapsing shortly after K.V. was born. Mother then entered a residential treatment program and graduated six months later, followed by a three-month stay at a sober living residence with three of her children (J.V. resided with her maternal grandmother) and 18 months of a transitional living program. Mother’s attendance at her current outpatient treatment program had improved in December, but had been less consistent in January. While mother was an active participant in group counseling and seemed to understand what was required of her, her counselor was concerned that mother appeared depressed at times and her motivation seemed to wane. Overall, mother was reported to be working hard and making progress in the program and all five of her random drug tests had been negative. Mother reported experiencing frequent bouts of depression. The social worker reported that at times mother seemed overwhelmed by her responsibilities as a single parent, and opined that mother’s situation was “precarious given her recent relapse and questionable ability to maintain her sobriety.” The department recommended that the minors remain with mother and that the family be given family maintenance services.
In a February 13, 2008 interim report, the department reported that mother had attended three of the last seven group counseling sessions offered at her substance abuse treatment program and that she continued to participate in random drug testing. Mother admitted she had poor attendance in her program. The social worker stated that at times mother appeared overwhelmed and unmotivated, but remained committed to participating in the program and counseling. Mother had begun to follow through with counseling services for the children. The social worker made an unannounced visit at mother’s home on February 11, 2008, and the three older children who were present appeared healthy and well-groomed. The youngest child was at the maternal grandmother’s home. S.V. had begun individual counseling to address her sexual abuse, J.V.2 anticipated reenrolling in individual counseling to address her temper, and J.V. made no complaints about the family’s situation and reported that the family was doing fine and that she and her sisters assisted mother in housekeeping.
At the contested adjudication hearing on February 13, 2008, attorneys for both mother and the minors requested that the petition be dismissed. The minors’ attorney argued that even when mother was struggling with her drug abuse, she always made an appropriate plan for her daughters, who were cared for by the maternal grandmother. The court sustained the petition as pled, ordered the children to remain with mother, ordered mother to complete a substance abuse program with weekly random drug testing and counseling and to attend narcotics anonymous classes four times per week, and ordered the family preservation program to assist mother. The court set the matter for July 15, 2008 to address termination of jurisdiction. This appeal followed.
We deny the department’s request to take judicial notice of a postjudgment order issued August 20, 2008. (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
DISCUSSION
Mother contends there is insufficient evidence to support the juvenile court’s finding of jurisdiction under section 300, subdivision (b). We agree with mother.
Standard of Review
When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) “If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial court’s findings. All reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.)
But substantial evidence is not synonymous with any evidence. (In re Savannah M., supra, 131 Cal.App.4th at p. 1393.) “A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.] ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ [Citation.]” (Id. at pp. 1393–1394; accord, In re David M. (2005) 134 Cal.App.4th 822, 828.)
Jurisdiction Under Section 300, Subdivision (b)
A juvenile court may determine that a child is subject to the court’s jurisdiction under section 300, subdivision (b), if it finds by a preponderance of the evidence that “[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 inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s . . . substance abuse.” (§ 300, subd. (b); In re David M., supra, 134 Cal.App.4th at p. 829.) The department has the burden of presenting sufficient evidence of the necessity for juvenile court jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196, 210.)
Three elements are necessary for a jurisdictional finding under section 300, subdivision (b): “(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.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element “effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]” (In re Savannah M., supra, 131 Cal.App.4th at p. 1396.) Section 300, “‘subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. [Citation.]’” (In re David M., supra, 134 Cal.App.4th at p. 829.) Thus, to affirm the juvenile court’s jurisdictional finding, there must be substantial evidence in the record that there was a substantial risk the minors would suffer serious physical harm or illness from mother’s inability to provide regular care of the minors due to her substance abuse. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 567.) Such evidence is lacking here.
On the one hand, the evidence is uncontroverted that mother has a longstanding history of substance abuse and that her most recent period of sobriety only dates back to July 2007. It is also undisputed that mother suffers from what appear to be bouts of depression. On one of the social worker’s unannounced visits to mother’s home, the home was found to be dirty and unkempt and mother admitted that she had trouble keeping the house clean. On the other hand, the evidence is also uncontroverted that at all times since the department’s involvement in this case in October 2007, the four minors appeared to be happy, healthy, well-groomed, well cared for and supervised. The three school-age children were attending school and their immunizations appeared to be current. None of the minors were exhibiting any developmental delays or signs of emotional distress and they appeared to enjoy living with mother. While the social worker made a second unannounced visit of mother’s home, there is no description of the state of the home, only the report that the three minors who were present appeared healthy and well-groomed. And while mother initially told the social worker that she had little family support, the subsequent jurisdiction and disposition report stated that mother had solid support from her own mother. The record shows that the minors did spend time at the maternal grandmother’s home.
This was not a case where the department became involved because there was a referral of neglect due to mother’s substance abuse. Rather, the department became involved due to an unrelated and unsubstantiated report of physical abuse of S.V. by her older half-sister. Although there was a referral of neglect by mother in 2002, there are no facts in the record about this prior investigation, which was apparently inconclusive. Thus, there is no evidence in the record that the minors had been neglected or had suffered any serious physical harm as a result of mother’s past substance abuse. In In re Ricardo L., the appellate court reversed the juvenile court’s finding of jurisdiction where there was no evidence of the father’s substance abuse history, other than two prior drug arrests, or of his history of neglect or failure to provide shelter or medical treatment. “Without the history of abuse and neglect, it is nearly impossible to determine whether [the minor] is at risk of suffering from the same abuse and neglect.” (In re Ricardo L., supra, 109 Cal.App.4th at p. 567.)
We agree with appellant that this case is similar to In re David M., supra, 134 Cal.App.4th 822, where the appellate court held there was no substantial evidence that the minors, one of whom was removed at birth, were at risk of substantial harm under section 300, subdivision (b). While accepting as true that the minors’ mother had a continuing substance abuse problem and that both she and the father had mental health issues, the court concluded that no evidence was presented that these problems had caused, or created a substantial risk of causing serious harm to the minors. (In re David M., supra, at p. 830.) While the court stated that it was possible to identify many possible harms that could come to pass, without more evidence than was presented, such harms were merely speculative. (Ibid.) The court also noted that the evidence was uncontradicted that the older minor was healthy, well cared for and loved, that the parents were providing him with a decent home and that mother had negative drug tests for the past four and a half months. (Ibid.)
The same is true here. By the time of the adjudication hearing in February 2008, mother had been testing negative for drugs for more than six months and was participating in an outpatient substance abuse program. Though she was not attending the group sessions as often as her substance abuse counselor would have liked, she was making overall progress. Her counselor and the social worker were understandably concerned that she was at risk of relapse. But there was no evidence that mother was currently abusing drugs and it was mere conjecture that she might relapse. Most importantly, there was no evidence that even when mother had relapsed in the past that her parenting judgment or skills were affected or that her substance abuse had created a detrimental home environment. There was no evidence that mother’s home was chronically dirty. While mother stated once that she struggled to keep a home filled with four minors tidy, there was no evidence that the minors were exposed to any hazards in the home and they always appeared healthy and well-groomed. As the court in In re David M. stated, “[t]he record on appeal lacks any evidence of a specific, defined risk of harm to either [minor] resulting from mother’s or father’s mental illness, or mother’s substance abuse.” (In re David M., supra, 134 Cal.App.4th at p. 830.)
DISPOSITION
The order declaring J.V., J.V.2, S.V. and K.V. dependents of the court is reversed.
We concur: BOREN, P. J., ASHMANN-GERST, J.