Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. SJ12133, Garry G. Haehnle, Judge.
NARES, J.
Jason N. appeals jurisdictional and dispositional orders regarding his daughter, L.N. He contends substantial evidence does not support the jurisdictional and dispositional findings, and there were reasonable means to protect L.N. short of removing her from parental custody. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On February 17, 2009, the San Diego County Health and Human Services Agency (the Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b) on behalf of one and one-half-year-old L.N. on the basis of domestic violence between L.N.'s mother, Maria R., and Jason, and on Jason's substance abuse. The petition described a domestic violence incident on July 12, 2008, and alleged Jason used marijuana and alcoholic beverages to excess; Maria had found syringes in his pants pockets; he admitted using marijuana; and he had a history of using heroin and was currently using methadone.
Statutory references are to the Welfare and Institutions Code.
Jason was L.N.'s primary caregiver each day while Maria was at work. L.N.'s 14-year-old half sister, Yazmin R., and 18-year-old half brother, Carlos R., reported that on February 9, 2009, Jason acted drunk and grabbed L.N., calling her by another name. Carlos said Jason drinks a lot and uses drugs. On February 11 Carlos called police and said Jason was drunk and acting strange. Staff at a nearby convenience store had earlier reported Jason causing a disturbance at the store that day. Jason had lost his job there for being under the influence of drugs or alcohol. Carlos said Jason used marijuana and the family often saw it and smelled it on Jason. They also found needles in the apartment. Carlos said Jason was often drowsy while he was caring for L.N. Yazmin said some days when she arrived home from school and asked Jason whether he had fed or changed L.N., he was unable to answer and sometimes his eyes were half closed and he was "zoning out." Carlos said Jason had driven several times while under the influence of drugs or alcohol and he and Yazmin had asked him to slow down. Maria said she was aware of Jason's drinking and marijuana use.
Jason had three positive tests for methamphetamine. However, the drug prescribed to treat his attention deficit hyperactivity disorder could cause a positive test for methamphetamine.
Yazmin and Carlos said Jason and Maria argued every day, especially when Jason was drunk or using marijuana, and they frequently argued in L.N.'s presence. Maria denied there was domestic violence, but she had obtained a restraining order against Jason, which stated he had threatened physical violence and was verbally abusive.
At the detention hearing, the court ordered L.N. detained out of the family home and continued the previous temporary restraining order. Subsequently it vacated the family court restraining order and issued a juvenile court restraining order.
Jason said he first used drugs at age 17. He began using heroin in 2003 or 2004, but stopped when he began attending a methadone clinic. Before being in a relationship with Jason, Maria was married for several years to a man who had abused her. She said about one year after beginning her relationship with Jason, she saw him use drugs and act out while under the influence.
At the jurisdictional and dispositional hearing on April 1, 2009, the social worker testified Jason told her he was L.N.'s primary caretaker for 8 to 10 hours each day. She said Yazmin and Carlos described Jason rolling tobacco or marijuana cigarettes. She said Maria reported finding marijuana in Jason's pockets and marijuana residue in the car. However, Carlos also smoked marijuana regularly and he had access to the car. The social worker said Jason reported he had not had any positive heroin tests since July 2008. He had positive tests for marijuana in July 2008 and February 2009. The social worker recommended Jason participate in the Substance Abuse Recovery Management System to aid him in abstaining from marijuana and alcohol.
Yazmin testified Jason had moved out of the family home in February. She described the event when Jason appeared to be drunk and used a different name when referring to L.N. Yazmin said this was the only time she had seen him act this way. She said she once saw him roll something into tobacco paper, but did not know whether it was tobacco or marijuana. She testified she had found a bong in the car one year earlier, but she had never seen Jason smoke anything out of the bong, inject himself or smoke anything from a spoon. She denied telling the social worker that she had found empty beer bottles in the home and said she had never seen Jason drink more than two bottles of beer at one time. She testified there were never marks or bruises on L.N. when she came home after school, and L.N. was always wearing a clean diaper and had been fed.
The court found the allegations of the petition true, declared L.N. a dependent child of the juvenile court and ordered her removed from the family home and placed in foster care.
DISCUSSION
I
Jason contends there was not substantial evidence to support the jurisdictional findings. He argues the Agency did not show that the one domestic violence incident and his occasional use of drugs or alcohol presented a substantial risk to L.N.
A. Applicable Legal Principles
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B. Application
Substantial evidence supports the court's finding under section 300, subdivision (b) that L.N. was at substantial risk because of domestic violence and Jason's substance abuse. Jason and Maria had engaged in one documented incident of domestic violence, and Yazmin and Carlos said they argued every day. Yazmin and Carlos described times when they would take L.N. to their rooms because Jason and Maria were arguing and L.N. was crying. Jason and Maria minimized the domestic violence.
Maria had been in an abusive marriage with Carlos's and Yazmin's father. She said after she left their father, she began domestic violence abuse prevention classes. However, she then began a relationship with Jason, and, even though she said she had tried to leave him in the past, she returned to the relationship. She continued to leave L.N. in Jason's care while she was working although she was aware of his alcohol and marijuana use.
Maria acknowledged Jason's substance abuse was a factor in their arguments and his aggressive behavior. Yazmin said when she arrived home from school and Jason had been caring for L.N., he could not always remember if he had fed or changed L.N. Carlos said Jason had driven with L.N. in the car several times while he was under the influence of drugs or alcohol. The foster mother reported smelling alcohol on Jason's breath when she spoke with him at a March 2 visit, indicating he continued to drink after L.N. was removed from the home. The social worker opined Jason's drinking would affect his ability to care for a young child.
Substantial evidence supports the jurisdictional findings.
II
Jason asserts there was not sufficient evidence to support the dispositional findings and orders, and argues the court erred by finding there were no reasonable means to protect L.N. short of removal. He maintains since he had moved out of the home, the court should have left L.N. with Maria.
A. Applicable Legal Principles
Section 361, subdivision (c)(1) provides in part:
"A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of...:
"(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody."
"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) The reviewing court will not reverse the court's order in the absence of a clear abuse of discretion. (Id. at p. 1104.)
B. Application
The social worker recommended L.N. be removed from the family home because Maria continued to leave L.N. in Jason's care even though he appeared to be using alcohol and marijuana while caring for her and had problems with managing his anger. Jason and Maria minimized their domestic violence, and the evidence indicated Jason continued to use alcohol after L.N. was removed. Maria had lived for several years with an abusive man and she then began a relationship with Jason. Yazmin and Carlos said Jason and Maria argued every day, and there was one documented incidence of physical violence. The social worker proposed Maria participate in therapy, counseling for victims of domestic violence and parenting education. At the time of the jurisdictional and dispositional hearing, Maria reported she had begun therapy and had completed four domestic violence orientation classes. Her case plan provided for her to continue treatment. There was no evidence at the time of the hearing of what progress Jason and Maria had made in their services.
Substantial evidence supports the dispositional findings and orders. The court did not err by ordering L.N. be removed from the family home.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.