Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK82071 Marilyn Mackel, Referee.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Father Jon V. (Father) appeals from a juvenile court order sustaining jurisdictional allegations that his eight-month-old daughter, J.V., was a person described by Welfare and Institutions Code section 300, subdivision (b). We find that substantial evidence supported the jurisdictional finding sustaining allegations that J.W. was a person described by section 300, subdivision (b). We affirm the order.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention and Section 300 Petition:
On March 31, 2010, a referral alleged general neglect and emotional abuse of four-month-old J.V. by her mother, Je.S. (Mother), who was a drug addict and used drugs in the child’s presence and who stayed at a motel with Mother’s friends, who also used drugs. A sheriff’s deputy accompanied a CSW to the motel, where they found J., Mother, and a male companion. Mother was hiding from Father because she was fearful of him and his relatives. She stated that on March 27, 2010, Father asked her to attend a party, where Father produced a small quantity of methamphetamine and asked her to join him and smoke to “make them happy.” Mother agreed to reduce the tension between her and Father. When they returned home, Mother informed Father she was ending their relationship, and left with J.. Mother returned the next day but was told that the apartment was no longer in her name. She begged Father not to kick her and J. out of the apartment as they had no place to go, but according to Mother, Father grabbed her hair, swung her around, ordered her to stop talking, and slammed her head on the refrigerator.
Mother was married to but separated from another man, with whom she had three children, and planned to divorce him but could not afford to do so. Mother had dated Father for three years and identified him as J.’s father. Father, also married with three children, was in the process of getting a divorce. Mother stated that domestic violence between her and Father started four months earlier when J. was born. Father became violent about twice a month, during which he would push Mother, yell at her, pull her hair, and throw her against furniture. Mother had come to the U.S. from the Philippines on a visa, which expired one year previously, and reported that Father threatened to have her deported. Mother minimized Father’s domestic violence and said she wanted to get back together. Mother admitted she began using methamphetamines with Father about four years earlier, and last used them in March 2010. Mother admitting using methamphetamines at parties, the last time two weeks previously. Mother stated she was not an addict, could stop any time, and agreed to test on demand. Mother drug tested negative on April 6, 2010. She reported that Father had a drug problem with methamphetamines and used methamphetamines at parties.
On May 5, 2010, the DCFS filed a petition alleging that J. was a person described by section 300, subdivision (b). Count 1 alleged that Mother and Father had a history of domestic violence and violent altercations in J.’s presence, including a March 28, 2010, incident in which Father grabbed Mother’s hair, swung her around, ordered her to stop talking, and slammed her head on a refrigerator. Father’s violent conduct, and Mother’s failure to protect J., endangered J.’s physical and emotional health and safety. In a January 2010, argument, Father grabbed Mother’s hair and arms, shoved her, and pushed her out of their apartment. Mother failed to take action to protect the child and allowed Father to live in the child’s home and to have unlimited access to J. Count 2 alleged that Mother was an occasional user of methamphetamines, rendering her periodically incapable of caring for J., and placing J. at risk of physical and emotional harm, damage, danger, and failure to protect. Count 3 alleged that Father was an occasional user of methamphetamines, which rendered him periodically incapable of providing regular care for J. Father was reported to have last used methamphetamines on March 27, 2010, and his substance abuse placed J. at risk of physical and emotional harm, damage, danger, and failure to protect.
At the May 5, 2010, detention hearing, the juvenile court found Father to be the presumed father of J. Mother’s counsel stated that Father came to court, and was upset by the drug allegation made against him. Mother informed her attorney that Father wanted her to lie, and left when she refused. The juvenile court ascertained that Mother and J. were living in the same home as Father. The juvenile court found that a prima facie case for detaining J. as a person described by section 300, subdivision (b) was established, and ordered J. detained from the parents and placed in the care and custody of the DCFS. The juvenile court ordered reunification services and monitored visits for both parents.
Adjudication and Disposition:
On June 4, 2010, Mother reported that Father was currently using drugs, there were drugs in the home, and Father had asked her to lie about his drug history to protect his employment. Mother also referred to domestic violence by Father. In an earlier statement, Mother had denied that Father had hit, pushed, and verbally abused her. Mother now retracted what she had said, and explained “I made myself look bad in order for him to look good.”
For the adjudication hearing, the DCFS reported that Father denied using drugs. Father stated that if he had not drug tested it was because his divorce attorney instructed him not to test because doing so would be an admission of guilt. He stated he was willing to test in order to prove he did not use drugs.
Father stated that he obtained his nursing degree in 2002 and was employed through the Loma Linda VA Hospital for seven years, but was presently on medical leave because of personal problems.
As of June 22, 2010, Mother and Father had reconciled their differences and were back together. The DCFS had serious concerns, however, because Mother previously stated that she was hiding from Father as she was fearful of him and his relatives, and that Father was a violent person and a drug user. Father denied using drugs, but failed to produce a negative toxicology result and had several “no show” test results, which were considered positive tests. Father said he was not complying with any programs as he felt that he would be admitting guilt if he enrolled in a program or submitted to drug testing. A CSW explained to him the importance of enrolling in recommended programs as the way to regain custody of J. A CSW explained to Father that a “no show” test result was considered a positive toxicology result, but Father repeatedly failed to submit to random drug testing.
On June 22, 2010, the juvenile court ordered the DCFS to provide Father referrals for weekly drug testing.
A Multi-Disciplinary Assessment Team evaluation of the family was completed on July 1, 2010. Father denied past or current drug use, and stated that he had not enrolled in substance abuse or parenting classes because the emergency response CSW told him that attendance in these classes was an admission of guilt and he would not admit to drug use. Father stated that he was an emergency room nurse and substance use would jeopardize his career. The evaluation findings recommended that Father attend parenting class, a domestic violence program, and individual counseling and continue court-ordered random drug testing.
On August 9, 2010, the DCFS informed the court that J. remained in the paternal grandparents’ home, and Mother had regular visits three times a week and was very appropriate during visits. Father cancelled most of his visits, and visited J. only once on July 13, 2010. Father previously informed his sister that he could not visit J. or drug test for the next two weeks as he was in training for a new job. Father had failed to submit to random drug testing on June 22 and 28, 2010, although he submitted to testing on June 29, 2010, and results were negative. Father did not drug test during July or the first week of August 2010. Father had not provided proof of enrollment in any recommended programs.
The juvenile court held a contested adjudication hearing on August 12, 2010. Father testified that he had no problems with methamphetamine, but admitted trying methamphetamine with Mother in December 2008 or January 2009. Father testified that he worked as a nurse at the Loma Linda VA Hospital beginning in 2003, where there was random drug testing. When asked “have you ever tested dirty for your employer, ” Father answered, “No, I haven’t much.” When asked again, “have you ever tested dirty, ” Father answered “No, I have not.” Father retired from his VA job and found employment as a travel nurse to different hospitals. Father testified that he drug-tested for employers in 2010, and offered to provide those tests to the CSW, but the CSW refused. Father was “pretty sure” he tested for the DCFS three times in June 2010, but admitted he had not tested in July or August 2010 or during the two weeks before the adjudication hearing. Father testified that he drug-tested when he started work at White Memorial Hospital a week after July 19, 2010, but did not have a copy of that drug test. He had copies of other drug tests he had taken in his employment as a travel nurse, but did not bring those copies to court and never presented copies to the CSW. Father testified that he had drug-tested three times since beginning his employment as a travelling nurse in May 2010, but had not brought proof of those tests to court.
The juvenile court found that the DCFS met its burden by a preponderance of the evidence, and stated that it “does not find the Father particularly credible.” At the August 12, 2010, hearing, the juvenile court adjudicated the matter, sustained the allegations of the petition and found that J. was a person described by section 300, subdivision (b), and declared J. to be a dependent child of the juvenile court. The juvenile court ordered J. to continue placement with the DCFS and ordered family reunification services for her, Mother, and Father. The juvenile court ordered Mother to complete a drug rehabilitation program with random testing, domestic violence counseling for victims, parenting class, and individual counseling. The juvenile court ordered Father to complete a drug rehabilitation program with random testing, domestic violence counseling for offenders, parenting class, and individual counseling. The juvenile court also made parental visitation orders.
Father filed a timely notice of appeal.
ISSUES
Father claims on appeal that:
1. Substantial evidence does not support the jurisdictional finding as to count three of the petition, which alleged that Father was an occasional user of methamphetamine; and
2. The dispositional findings and orders should be reversed.
DISCUSSION
Substantial Evidence Supports the Section 300, Subdivision (b) Jurisdictional
Findings as to Count 3
Father claims that substantial evidence did not support the jurisdictional findings as to count 3, which alleged that Father was an occasional user of methamphetamines, which rendered him periodically incapable of providing regular care for J., and was reported to have last used methamphetamines at a party on March 27, 2010.
A. Standard of Review
Section 300 sets forth the grounds for juvenile court jurisdiction over those who are declared dependent children of the court. Pursuant to section 300, subdivision (b), a child who “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... to provide regular care for the child due to the parent’s... substance abuse” is within the jurisdiction of the juvenile court and may be adjudged a dependent child of the court. The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is subject to the petition comes within the juvenile court’s jurisdiction. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.)
This court reviews jurisdictional findings according to the substantial evidence test, and thus we review the evidence before the juvenile court in the light most favorable to its order. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)
B. Substantial Evidence Supported the Jurisdictional Findings as to Count 3
Father argues that Mother had no personal knowledge that Father used drugs, and when asked how often Father used drugs she said she did not know because she did not see him do it. On March 31, 2010, however, Mother stated that at a party on March 27, 2010, Father produced a small quantity of methamphetamine and asked Mother to join him and smoke to “make them happy, ” and Mother obliged to reduce tension between her and Father. On April 1, 2010, Mother admitted to SPIRITT Family Services Up Front Assessment Counselor Daneyda Muniz that she began using methamphetamines four years earlier with Father and reported that Father had a drug problem with methamphetamines. On June 4, 2010, Mother reported that Father currently used drugs, and she had discovered a stash of methamphetamine in the bathroom. She stated that a year and a half earlier he hit her when she hid his drugs from him. In June 2010, Mother stated that Father had a history of drug abuse. At the adjudication hearing, Father admitted trying methamphetamine with Mother in December 2008 or January 2009. Although Father denied using methamphetamines, and Mother at times changed or recanted her statements, the trial court found that Father was not credible.
Father also wanted Mother to lie about the drug allegation against him, and left the May 5, 2010, detention hearing when Mother refused. On May 28, 2010, Father stated that he had not drug-tested because his divorce attorney instructed him not to test because that was like admitting guilt. On June 4, 2010, Mother again reported that Father asked her to lie about his drug history to protect his employment. Although Father stated his willingness to test in order to prove he did not use drugs ~(ibid.)~ by June 22, 2010, Father had failed to produce a negative toxicology test result and had several “no show” test results, which were considered positive tests. Father again reported that he had not submitted to drug testing because he felt doing so would be admitting guilt. Father failed to submit to random drug testing on June 22 and 28, 2010, although he tested on June 29, 2010, and results were negative. Father did not drug test during July or the first week of August 2010. On July 1, 2010, Father again stated that enrollment in substance abuse class was an admission of guilt and he would not admit to drug use, which would jeopardize his career as an emergency room nurse. At the adjudication hearing, Father testified that he had drug-tested when he started working at White Memorial Hospital a week after July 19, 2010, but did not have a copy of that drug test. Father testified that he had copies of other drug tests he had taken in his employment, but he did not bring those copies to court and never presented copies to a CSW. Father’s repeated failures to drug test provide additional evidence of drug use.
We conclude that substantial evidence supported the jurisdictional findings as to count three.
Father argues that there was no evidence that his drug use caused harm or injury to J. or placed J. at risk of physical or emotional harm, damage, danger, or failure to protect. That actual harm has not yet materialized, however, does not prohibit juvenile court jurisdiction; actual harm to a child is not required for the juvenile court and children’s social service agency to intervene. (In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3.) “ ‘The purpose of dependency proceedings is to prevent risk, not ignore it.’ ” (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104.) Section 300, subdivision (b) states that juvenile court jurisdiction can be established if “there is a substantial risk that the child will suffer” serious harm because of a parent’s failure to protect the child or inability to provide care due to a parent’s substance abuse. Father’s methamphetamine use risked harming J., as did his leaving methamphetamine in the home or his association with people who left methamphetamine in the home.
C. Father Has Forfeited Any Claim of Error in the Dispositional Orders
Father also claims that the dispositional order should be reversed. Father, however, makes no argument concerning the dispositional order or what part of that order—placement of J., reunification services, parental visitation, case plan ordered for Father, or otherwise—was erroneous and should be reversed. Thus this claim of error on appeal is forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 409-410.)
DISPOSITION
The order is affirmed.
We concur: CROSKEY, Acting P. J, ALDRICH, J.