Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK70515, Stephen Marpet, Juvenile Court Referee.
Joseph D. Mackenzie, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
E.S. (“the mother”) appeals from an October 21, 2008 juvenile court order sustaining a June 23, 2008 Welfare and Institutions Code section 300 petition as to her son M.H. (“the infant”). The infant’s two older siblings (M.R. and M.H., Jr.,) are dependents of the court pursuant to an amended section 300 petition which was sustained in January 28, 2008. The mother argues there was insufficient evidence to support the petition as to the infant because there was no evidence that the conditions still existed which required the dependency action for the older siblings. We disagree and affirm the dispositional order but correct a clerical error.
All further statutory references to Welfare and Institutions Code unless otherwise indicated.
II. BACKGROUND
On October 26, 2007, the Los Angeles County Department of Children and Family Services (“the department”) filed a petition on behalf of four-year-old M.R. and one-year-old M.H., Jr. pursuant to section 300, subdivisions (a) (serious physical harm; counts a-1 and a-2) and subdivision (b) (failure to protect; counts b-1 through b-7). The petition contained allegations against M.H., Sr. (the father of the infant and M.H., Jr.) and D.R. (the father of M.R.). Neither the older siblings nor their respective fathers are a subject of this appeal. But a material part of the evidence concerning the risk to the infant involves documents prepared and events occurring prior to his birth. Thus, it is appropriate to set forth evidence concerning the risk to M.R. and M.H., Jr. because it relates to the infant who was born during the dependency proceedings pertaining to the two older siblings.
The October 26, 2007 detention report stated that the family came to the department’s attention on July 19, 2007 due to allegations of general neglect by the mother and substantial risk of abuse by M.H., Sr. as to the infant’s two older siblings. A party reported that a concerned relative disclosed an incident where “Tony,” the boyfriend of J.C. (the maternal aunt), was involved in a fight with maternal uncle, J.S. The fight took place in the mother’s and M.H., Sr.’s home. According to the unidentified source, “people” were looking for Tony. The unidentified “people” wanted to kill him. M.H., Sr. was purportedly a gang member and had two other gang members residing in the home where there was a gun.
The maternal aunt’s children were detained and placed in protective custody after a May 2007 referral about the home environment which involved alleged gang members with weapons and drugs being allowed in the residence. The mother had a follow-up visit on August 1, 2007. The mother was re-interviewed regarding the allegations. The mother denied witnessing the fight between Tony and the maternal uncle. There had been a fight involving J.C., the maternal aunt, and the mother. According to the detention report, “[The m]other reported she and the [J.C.] were involved in a physical altercation after she was upset at [J.C.’s] boyfriend for ‘putting his hands on her brother’ and [J.C.] becoming upset and defending her boyfriend ‘Tony.’” The mother denied that M.H., Sr. resided in the home and there were weapons in the residence. The mother had a strained relationship with the maternal aunt. The mother believed the maternal aunt attempted to cause problems. This was because J.C. was upset about the detention of her children.
The mother was advised about a meeting of the maternal aunt and grandmother on July 27, 2007. In the meeting, the maternal aunt, J.C., and the maternal grandmother, E.S., reported that the mother was to blame for the negative home environment. They stated that the mother allowed gang members, drugs, and weapons in the home. They described the mother as being aggressive and refusing to vacate the residence. The maternal grandmother was afraid because of a prior assault. The mother had previously assaulted E.S. About a week before the meeting, the mother had attacked J.C. in the presence of the children .M.R. had seen the fight between the mother and J.C. M.R. was frightened and attempted to protect her younger brother, M.H., Jr. by hovering over him during the fight.
The mother denied the allegations of J.C. and E.S. about the gang members and weapons. The mother also denied any drug use. However, the mother has a criminal history which included a drug arrest for controlled substance possession. The mother stated that she would submit to a drug test in order to clear her of any narcotics abuse allegations. As of August 1, 2007, the home was found to be in a satisfactory condition. However, attempts to contact the mother between August 2 and August 23, 2007 were unsuccessful.
On August 23, 2007, the social worker found M.H., Sr. in the home with M.H., Jr. M.H., Sr. denied residing in the home. M.H., Sr. stated: he lived with an aunt; he denied allegations regarding weapons use and that he was affiliated with a gang; he had previously belonged to a gang but claimed now he was an employed family man; he only wanted to provide for his family; and he limited his visits to his family because the mother’s home was located in a rival gang’s territory. The mother was allegedly going to relocate to M.H., Sr.’s residence. The social worker expressed concern about the home environment, the alleged drug abuse, and the mother’s evasive behavior. This behavior included failing to contact the social worker and submit to a drug test. On August 29, 2007, a paternal great aunt, T.L., stated that M.H., Sr. resided with her. The paternal great aunt expressed concern about the children due to the mother’s home environment.
On September 5, 2007, the mother left a message saying she was upset. The department report related: “On [September 5, 2007,] a telephone message was received from [the] mother stating she was upset as she believed [the social worker] was harassing her and there was no purpose of [the] investigation as all reported allegations were false. [The m]other reported she would be speaking to her [Department of Public Social Services] Social Worker[, Reyna Segura,] regarding [the] alleged harassment.” The department unsuccessfully tried to contact the mother in the month of September 2007. On October 12, 2007, the department contacted Ms. Segura. Ms. Segura had spoken with the mother regarding the pending investigation. The mother was advised to assist with the investigation.
On October 19, 2007, the social worker contacted a deputy sheriff, identified only as Deputy Forlano, who had made unsuccessful attempts to investigate child abuse reports. Deputy Forlano knew about the home. The parents were involved in an investigation including the murder of one the maternal aunt’s boyfriends in front of the home.
On October 23, 1007, the social worker and Deputy Forlano went to the mother’s home. The mother was confronted about the home environment, evasiveness, and failure to drug test. The mother claimed she was moving out of the residence with all of the narcotic and gang problems. The mother claimed to be moving to the home of the paternal great aunt and uncle. But, the paternal great aunt denied that any such move was contemplated. The mother’s home was in a deplorable condition including dirty clothing throughout the residence. There was: rotten food on top of the stove as well as dirty dishes; a cockroach infestation; a minimal amount of food none of which appeared to have any nutritional value for two young children; trash throughout the home; and graffiti on a children’s chair and on the walls from two rival gangs. Also present were: drug paraphernalia; liquor bottles and cans; paint spray cans; a paint gun; and a knife which was on the kitchen floor and easily accessible to the children. The department attached pictures documenting the condition of the home.
The mother admitted previously using marijuana but initially denied recent use. The mother subsequently admitted she smoked marijuana three months prior to October 2007. The mother denied the allegations concerning M.H., Sr. The mother stated, “I know my house is not safe for my kids.” M.H., Sr. stated that he made attempts to have the mother relocate with him due to concerns about her home environment. M.H., Jr. had stayed with M.H., Sr. for some time. However, M.H., Sr. had returned M.H., Jr. because the mother threatened to report his conduct to the authorities. The maternal grandmother reported that she was concerned for her grandchildren because of the amount of men that would come and go from the residence. The mother confirmed that she had no control over the people who entered her home. She stated, “They could come in and out as they please.”
The paternal grandmother, Y.Z., wanted the children placed in her home. The paternal grandmother was concerned about what went on in the mother’s home (including the murder that took place in front of the house). The paternal grandmother and others had offered to have the mother stay with them. But the mother always returned to the dangerous home environment.
The mother has a criminal history which includes: narcotics possession; carrying a loaded firearm; possession of a controlled substance for sale; and assault weapon possession. The mother also had an active warrant for drug possession .M.H., Sr. had convictions for: carrying a stolen loaded firearm; carrying a concealed weapon with a prior conviction; and marijuana possession. After an assessment was conducted to determine the risks to the children, the department detained M.R. and M.H., Jr.
On October 26, 2007, the juvenile court ordered M.R. and M.H., Jr., the two older siblings, detained. The department was ordered to provide family reunification services. The parents were given monitored visits. M.H., Sr. was found to be the presumed father of M.H., Jr. D.R. was found to be the presumed father of M.R.
In December 2007, the department reported that M.R. and M.H., Jr. were living with a maternal great aunt, G.A., on an extended visit. M.R. stated there were a lot of people coming in and out of the home. They were mostly the friends of the maternal uncle. When the people would come into the home, she and her young cousins, the maternal aunt’s children, would have to stay in their room. M.R. stated that M.H., Sr. did not live in the home but was always there. M.R. said that M.H., Sr. was mean .M.R. reported that M.H., Sr. pulled the mother’s hair. Also, M.H., Sr. would yell at the mother. According to M.R., M.H., Sr. easily became angry and would break things. M.R. related that M.H., Sr. “broke a wall,” the mother’s IPOD, and makeup. M.R. did not see the fight between the mother and maternal aunt. However, M.R.’s cousins said that the two women pulled each other’s hair.
The mother admitted fighting the mother but said during the fracas M.R. was not home and M.H., Jr. was asleep. The mother said the unsanitary condition of the home was due to the maternal aunt, Tony, and the paternal uncle. The mother said the paternal aunt and uncle frequently allowed people to come and go. The mother said no one listened to her when she complained about the people. The mother would make her children stay in the bedroom. The bedroom was actually a television room which had no door for privacy. The mother had shared a bedroom with the paternal uncle. However, he and his friends would occupy the room and “kick” the mother and the children out of the bedroom. The mother denied her brother was a gang member but said that he and his friends defaced the home with graffiti. The mother also denied that M.H., Sr. was a gang member. However, she stated that he did not frequent the home because she lives in area which is the territory of a rival gang of M.H., Sr.’s. One of the J.C.’s boyfriends, who was from the same gang as M.H., Sr., was murdered in front of the home near the sidewalk area.
The mother reported that M.H., Sr. had been violent in the past breaking things, kicking doors, and destroying property. The mother did not state that he had been physically violent towards her. The mother felt M.H., Sr. needed anger management treatment. M.H., Sr. reported that he was no longer involved in his gang’s activities. However, he also stated that he did not frequent the mother’s home because his rival gang lived in the same area as she did. He admitted smoking marijuana in the past but denied having a drug problem. M.H., Sr. denied currently smoking marijuana.
A.C., one of the maternal aunt’s children, reported that the mother and J.C., the maternal aunt, frequently argued and fought in the home. On one occasion, the mother pulled J.C.’s hair. J.C. responded by scratching the mother’s eyes. According to A.C., the fights sometime are over the mother’s boyfriend, M.H., Sr., whom J.C. does not like. A.C. did not like the mother. This is because the mother brought a lot of people into the house. A.C. described the people as gang members. A.C. said that the mother would leave the children in the care of the paternal uncle. A.C. described M.H., Sr. as a bad person. He would all of a sudden break things when he became mad at the mother. He broke a video game and a door when he was angry with the mother. Despite his violent behavior, the mother would continue to allow him to spend the night in the home. A.C. saw the mother and M.H., Sr. smoke out of a glass pipe which contained a black dirty substance. The paternal uncle also smoked out of the glass pipe. A.C. saw the pipe in the mother’s bedroom. They would smoke the pipe on the outside back area of the home. A child of J.C. described the chaotic environment in the home. The youngster described: a fight between the mother and J.C.; the need to summon the police to stop one of the fights; attacks by the father on the mother; destruction of property by M.H., Sr. when he became angry; gang members defacing walls inside the residence; gang members coming and going in the home; and the smoking of drugs by M.H., Sr, and the mother. Another child of J.C. confirmed much of the foregoing.
The mother tested for drugs on October 24, 2007, and the results were negative. The mother began drug treatment in a program which convened four days a week. According to a counselor, the mother was making an effort and testing clean .M.H., Sr. missed a narcotics test and had not enrolled in nor began participating in drug treatment. However, M.H., Sr. was enrolled in a parenting class. M.R. and M.H., Jr. were doing well in the home of the maternal great aunt, G.A. The parents visited regularly. The maternal great aunt had to terminate a telephone call between the mother and M.R. on Thanksgiving. The mother was crying because M.H., Sr. was dating a new woman. The mother arrived on the Friday after Thanksgiving and was crying and screaming at M.R. The mother appeared to be upset about the fight she had with M.H., Sr. on Thanksgiving.
At the December 4, 2007 jurisdiction hearing, the department filed a first amended petition which added that D.R. had a criminal history (§ 300, subd. (b) (count b-7)) and a domestic violence allegation against the mother and M.H., Sr. (§ 300, subd. (b) (count b-8). The matter was continued to January 28, 2008 for mediation.
An interim report was filed by the department on January 24, 2008. On January 24, 2008, Children’s Social Worker Kristie Moore spoke to the mother’s counselor at the Bienvenidos Family Services program, Cynthia Cortez. Ms. Moore reported: “Ms. Cortez reports that the mother is in full compliance with the program. She further reports that the mother’s prognosis for treatment is positive.... Ms. Cortez reports that the mother needs to focus more on her parenting skills.” The mother continued to be involved with M.H., Sr. According to the social worker, the relationship was unhealthy and could affect the mother’s sobriety. M.H., Sr. had only recently enrolled in treatment. The mother had not been completing random drug testing through Pacific Toxicology which the department had arranged. The mother had failed to appear for several tests. The mother claimed she had failed to appear for testing because she did not have any identification. However, the mother had been provided with a letter along a picture as a form of identification for the tests.
The mother was also four months pregnant. During a visit with the children at the maternal great aunt’s home, the mother’s behavior caused concern. The mother complained about the children and was lying down on the couch, eating, and watching television. The mother refused to leave the home stating she wanted to stay with the children. The mother told M.R. during a visit, “You’re getting on my nerves!” The mother also would not change M.H., Jr.’s diaper during a visit saying that because the children were not in her custody she did not have to do it.
The father continued participating in his parenting class. However, the father did not participate in a substance abuse treatment program or random drug testing. The father had an intake assessment appointment on January 25, 2008. He did not visit regularly. He had a nonchalant attitude about his sobriety.
The children were thriving in the maternal great aunt’s home. Kindergartner M.R. behaved as if she were an adult. She is very protective of her brother referring to him as her baby when she interacted with him. The social worker, Ms. Moore, wrote: “This is indicative of the child becoming parentified. In fact, the mother recently told the child that she will be ‘changing diapers again’ when she gives birth in the upcoming months. The department will monitor [M.R.’s] behavior and possible refer to age appropriate counseling if needed.”
On January 28, 2008, the parties reached an agreement on the section 300 petition. The juvenile court sustained the first amended petition under section 300, subdivision (b). The juvenile court dismissed the allegations pursuant to section 300, subdivision (a). As sustained, the petition alleged: the two older siblings’ physical and emotional health and safety were endangered by a detrimental home environment, where they were placed at risk of physical and emotional harm, damage and danger; the mother established an endangering and detrimental home environment for the two older siblings by possessing, on or about October 23, 2007, drug paraphernalia including a drug pipe in the home, within access to them; the mother exposed the two older siblings to gang members including M.H., Sr., who frequented the home and had unlimited access to the youngsters; the mother exposed the two older siblings to gang activity including paraphernalia and grafitti; a homicide occurred in front of the home; the mother’s home contained spray paint cans, a paint gun, and a knife on the kitchen floor within reach of the two older siblings; the mother has a history of engaging in physical altercations with the two older siblings’ maternal grandmother, E.S.; the mother had a filthy and unsanitary home environment which contained cockroach infestation, numerous piles of clothing, trash, liquor bottles, and beer cans on the floors, decayed food on the stove and dirty dishes; the mother and M.H., Sr. engaged in domestic violence; and M.H., Sr. had become violent by breaking things and destroying property.
The juvenile court declared M.R. and M.H., Jr. to be dependents and ordered them suitably placed. The department was ordered to provide family reunification services. The parents were given monitored visits. The juvenile court ordered the mother and M.H., Sr. to each complete: 12 consecutive random drug tests; if a test was missed, they were to enroll in drug counseling and continue to test; a parenting course; and an anger management program. The mother and M.H., Sr. were also ordered to clear up any existing criminal warrants.
On April 17, 2008, the department reported that the mother still had an active warrant issued April 11, 2001, for controlled substance possession .M.H., Sr. had current warrants for: marijuana possession; an open container of alcohol possession in public; and driving with a suspended license. Both parents had been picked up by the police regarding testimony in the murder which had occurred in front of mother’s home. The mother had missed classes and drug testing while she was incarcerated from February 13 through 21, 2008. M.H., Sr. received community referrals for court ordered classes on February 25, 2008. However, he had not enrolled in any classes. The mother indicated that she was trying to comply with the juvenile court’s orders. The mother was concerned about M.H., Sr.’s noncompliance. This was because it would interfere with the couple’s living arrangements and plans to live together with the children. The mother and M.H., Sr. carpooled on weekly weekend visits with M.R. and M.H., Jr. According to a social worker, both children were doing well with their maternal great aunt. At the review hearing, the juvenile court gave the department discretion to liberalize the mother’s visits.
On June 23, 2008, the department filed a section 300 petition on behalf of the infant. The petition alleged the infant’s physical and emotional health, safety, and well being were at risk because: the mother and father, M.H., Sr., have a history of engaging in domestic violence altercations (count a-1); M.H., Sr. became violent by breaking objects and destroying property (count a-1); the mother has a history of illicit drug use and is a current marijuana user (count b-1); the mother has a criminal conviction for controlled substance possession (count b-1); the mother failed to regularly participate in court ordered substance abuse treatment program and random drug testing (count b-1); M.H., Sr. has a history of illicit drug use including ingesting marijuana; M.H., Sr. has a criminal conviction for marijuana possession (count b-2); and M. H., Sr. has failed to participate in a court ordered substance abuse treatment program and random drug testing (count b-2). The petition also alleged that the mother and M.H., Sr. established a detrimental home environment for the older siblings by: having narcotics paraphernalia including a drug pipe in the infant’s siblings’ home to which they had access (count b-3); allowing gang members to frequent their home with unlimited access to the siblings (count b-3); and having in the home spray paint cans, a paint gun, and a knife to which the siblings’ had access (count b-3). The petition further alleged that the infant’s older siblings were current dependents of the juvenile court due to the: parents’ domestic violence; substance abuse of the mother and M.H., Sr.; and the dangerous and detrimental home environment (count b-4).
The infant’s detention report stated that he had been placed in the maternal great aunt’s home with his older siblings. A Team Decision Meeting was held on May 15, 2008, prior to the infant’s birth. The mother was asked if she was having contact with M.H., Sr. The mother denied having contact with M.H., Sr. because he no longer resided with her. The mother agreed to contact the department when she gave birth to the newborn. The mother waited four days to report the infant’s birth which occurred in June 2008. A home assessment showed that the mother provided the basic necessities for the infant. Social Worker Adriana Garcia requested that the mother protect the child from M.H., Sr. because of his failure to cooperate with the department and complete the court ordered classes and drug testing program. Ms. Garcia subsequently learned that five days after giving birth to the infant, the mother drove M.H., Sr. to a job interview.
Ms. Garcia contacted Ms. Cortez, the program coordinator for the Bienvenidos program. Ms. Cortez reported that the mother’s case was closed on May 23, 2008, due to inconsistent compliance in the programs. This was prior to the infant’s birth. The mother’s participation was inconsistent with several absences: between January 2008 and March 2008 the mother attended only 27 of 48 classes; in April 2008, the mother missed 6 out of 17 group sessions; and in May 2008, the mother did not attend any sessions at all. Ms. Cortez said the mother was “‘inconsistent and was not consistent enough”’ to remain completely sober. Ms. Cortez further stated: “‘Mother needs more time in the program, more education and knowledge to maintain in recovery. Mother makes poor choices which lead her to make unhealthy decisions.’”
On June 13, 2008, M.H., Sr. was asked to contact Ms. Garcia with personal address information and contact telephone numbers. But he had not contacted Ms. Garcia with any information .M.H., Sr. had been given a second referral package in April 2008. This was after he indicated that he had not enrolled in any court ordered programs except the parenting class. M.H., Sr. stated that he had not complied with court ordered programs because he was seeking employment and his agency had not given him stable work. He indicated his focus was on providing for the newborn. When questioned about the older children’s needs, he began to cry. M.H., Sr. asked the social worker for another opportunity to change and comply with court orders.
On June 18, 2008, a Team Decision Meeting was held. At the meeting, the department staff discussed concerns about the mother’s previously discussed minimal compliance with the Bienvenidos program and her random drug testing history. The department staff also discussed: M.H., Sr.’s failure to comply with court orders; misleading information provided by the mother; and the mother’s failure to protect the infant from M.H., Sr. The mother declined the department’s offer to reside with the infant in a women’s in-patient shelter that would protect them from M.H., Sr. who had not complied with the juvenile court’s orders. As a result of the meeting and the mother’s refusal to take steps to protect the infant, he was detained. The mother admitted that M.H., Sr. was at the hospital when the infant was born. She admitted giving M.H., Sr. a ride to a job interview five days after giving birth. The mother explained, ‘“[H]e showed up at the house and asked [her] to drive him in his car to his job interview.”’
In a June 23, 2008 status review report for M.R. and M.H., Jr., the department reported: the mother was living with M.H., Sr.’s grandmother; the mother had enrolled in an anger management class; the mother denied living with M.H., Sr.; the children were doing well in the maternal great aunt’s home; the mother was requesting transportation costs for visits to Costa Mesa; the maternal great aunt informed the social worker, Ms. Garcia, that the mother had lied about visiting the children in Costa Mesa; and the mother visited the children only when they were driven to her. The mother was inconsistent with drug testing. The mother did not have any positive tests with the Bienvenidos program but she had failed to appear for testing on January 28, 2008 and March 4, 2008. The mother had no positive tests while subject to the department’s testing protocol. However, the mother missed eight tests in the time period between November 30, 2007 and April 28, 2008. An assessment was made of the mother and it was found that the risk level was low. The department recommended continued family reunification services for the mother. M.H., Sr. had only one drug test result which took place on October 24, 2007, and was negative. He missed at least 13 drug tests thereafter. The department recommended termination of family reunification services as to M.H., Sr.
The infant’s detention hearing was held on June 23, 2008. The juvenile court found M.H., Sr. to be the infant’s alleged father. The juvenile court ordered the infant detained. The juvenile court informed M.H., Sr. that the department was recommending no reunification services be provided. This was because of M.H., Sr.’s poor performance in the prior dependency case. The mother was given unmonitored visits. The juvenile court ordered the department to initiate a Team Decision Meeting as to the infant. The juvenile court acknowledged that the infant was born without drugs in his system and that the mother seemed to be complying with her case plan. The department was ordered to evaluate releasing the infant to the mother if it was appropriate.
In a progress report dated July 1, 2008, the department stated that relatives’ homes were being assessed for placement of the infant. He had been placed with a non-relative because the maternal great aunt could not provide care for him due to her work schedule. On June 27, 2008, in compliance with the juvenile court’s order, the department held a Team Decision Meeting to assess release of the infant to the mother. The mother’s attendance and performance at the Bienvenidos program was reviewed. Ms. Cortez, from Bienvenidos program, stated, “Although the mother is not considered an immediate threat, I believe she needs 6 to 9 months of recovery in our program.” The department continued to have concerns about the mother’s determination and commitment to reunification with her children. The department noted that, even though the mother had no positive test results, she had failed to demonstrate consistency in the rehabilitation process in compliance with court ordered programs as well as providing consistent random drug samples. The department further noted that the mother resided with M.H., Sr.’s relatives. M.H., Sr. visited the home but refused to comply with juvenile court orders and missed his random drug tests. At the progress hearing on July 1, 2008, the juvenile court ordered unmonitored visits be provided with all three children.
On July 22, 2008, the department reported that the infant was in a foster home with a non-relative. The department reported that there was evidence of continued dysfunction in the family home. The mother and M.H., Sr. both denied any substance abuse problems. However, family members described witnessing drug use and drug paraphernalia in the home by the mother, M.H., Sr. and others. The department reiterated that the mother had an active warrant dated April 11, 2001, for controlled substance possession .M.H., Sr. was arrested for marijuana possession on March 8, 2008. Neither the mother nor M.H., Sr. had submitted to 12 consecutive random tests. The mother’s anger resulted in her physically attacking several family members. The mother and M.H., Sr. had engaged in domestic violence in their relationship. M.H., Sr. had become extremely violent throwing and breaking items in the home.
The mother denied that she and M.H., Sr. had a history of domestic violence. She denied he pulled her hair, broke objects, or destroyed property. The mother described an incident where she left the room after a heated discussion and closed the bedroom door. M.H., Sr. kicked the door making a hole in the door. The mother once again denied having a history of drug use. According to the mother, she used marijuana only once when she was 14 years old and then only for a “special” occasion. When questioned about her possession of a controlled substance criminal conviction, the mother refused to cooperate. Rather, the mother stated, “I don’t know why you are asking me about the past back when I was young and stupid.” The mother denied having any drug paraphernalia in the home. She stated that the items belonged to her younger brother. The mother admitted that she had once belonged to a gang but stated that once the department’s case was opened, in her words, she had cleaned up her act.
M.H., Sr. acknowledged that: he witnessed gang members going into the family home; he moved from the home because it was in a rival gang territory; and he was a member of a specific gang. M.H., Sr. denied: having a drug problem; having a history of engaging in domestic violence; and he was physically aggressive towards the mother. He admitted he broke a cellular telephone when he was frustrated with the mother. He explained that on one occasion when they were arguing he kicked a door. However, he denied that it was forceful enough to put a hole in the door. He denied having an anger management problem. M.H., Sr. claimed he was currently enrolled in and had attended three anger management classes. M.H., Sr. and the mother both indicated that they thought the infant had been detained for no reason.
On July 22, 2008, over the department’s objection, the juvenile court ordered the infant released to the mother for an extended visit. The juvenile court imposed the following conditions: the mother was to continue to comply with her case plan; the mother was to continue to randomly produce clean drug tests; the mother and infant were to reside in the paternal great grandmother’s home; M.H., Sr. was not to reside in the home or visit the children there; and M.H., Sr.’s visits were to be monitored but the mother could not be the monitor. The mother was given unmonitored day visits with M.R. and M.H., Jr.
In an interim review reported dated September 5, 2008, the department reported: the infant remained on an extended visit with the mother; the mother was living with the paternal great grandmother; the mother appeared to be complying with the case plan; she was enrolled in and participating in all court-ordered programs; and the mother was more honest with the department and was providing for the infant’s needs. The mother was offered employment with full benefits by the maternal great aunt and a good place to live. However, the mother refused the offer and obtained employment from a local agency. The older siblings continued to reside with the maternal great aunt. The mother indicated that if the two older children were returned to her care, she would have a hard time complying with the court ordered programs. The department recommended that the infant be placed with the mother under the department’s supervision. The social worker reported: M.H., Sr. had not complied with the case plan; M.H., Sr. had little contact with M.H., Jr.; and M.H., Sr. was having monitored visits with the infant. The department recommended termination of reunification services for M.H., Sr. as to the infant.
At the hearing on September 5, 2008, the juvenile court ordered the infant released to the mother on condition that she continue in her programs and she did not monitor the visits for M.H., Sr. The mother was given unmonitored overnight visits with M.H., Jr. and M.R. The matter was continued to October 21, 2008 for an assessment of the mother’s living situation and for an investigation of the parents’ compliance and progress.
For the October 21, 2008 hearing, the department reported that: the infant was residing with the mother in the home of the paternal great grandmother; the mother enrolled in an anger management program on April 23, 2008; the mother was terminated on September 8, 2008, because of an excessive amount of absences from classes; the mother had missed nine drug tests through the department from November 30, 2007, and October 10, 2008; the mother had tested with negative results at the Bienvenidos program; and on September 24, 2008, the mother was terminated from Bienvenidos AIA, an in home support program. As part of the Bienvenidos program, the mother was to maintain contact with a case worker, Linda Evans. Ms. Evans indicated the mother was only cooperative once in August 2008. Ms. Evans stated: “‘Mother started breaking away from keeping in contact and scheduling appointment with me, maybe because she is not ready to live the recovery life and is not accepting of welcoming others who want to help her make better lifestyle choices.’ ‘Mother is so closed off that she turned down the offer for us to assist with seeking housing.’ I gave her a referral to go live away from the father of baby who is not complying with court orders. I offered the mother referrals to live in a sober living apartment complex for single mothers and their children in Monterey Park with rental assistance but she refused to follow up and take the offer. Mother needs to make up her mind and decide whether she wants to stay in relationship with father of baby or not and move out of his family’s home. Mother did not make efforts in transitioning into sober living housing close to her other program at Shiloh where she attends one block away. I also referred her to another more structured housing project located in the City of Los Angeles but she turned it down too.’”
Ms. Evans also stated: “‘Mother needs a lot more to learn to stay clean. I am not saying that she is testing dirty but she is heavily influenced by the baby’s father and is not totally ready to be independent.’ ‘Mother needs [the department] to stay on top of her to keep her motivated to continue to attend all her classes.’ ‘She needs something to motivate her.’ ‘There is difference between a healthy mind and an addict’s mind. Mother is too immature and not ready to live a sober healthy living lifestyle. Mother needs to make better choices for her children.”’ The mother had not had visited overnight with M.R. and M.H., Jr. The visits had not started because the mother had been indecisive about scheduling them.
M.H., Sr. enrolled in a drug and alcohol substance abuse outpatient program on June 20, 2008. He was terminated on September 15, 2008 for poor attendance. The father was also terminated from a parenting class he enrolled in on September 6, 2008. He was reinstated for the parenting class on October 3, 2008. The father missed all the random drug testing appointments. M.H., Sr. did not make any significant strides to reunify with M.H., Jr. According to a social worker, M.H., Sr. would just enroll in programs and then be terminated for failing to attend the programs. Although M.H., Sr. was employed full time, he did not support his children.
The department stated that the mother had refused offers by her biological father, the Bienvenidos AIA program, and the maternal great aunt to acquire housing in an area that is not affiliated with gang members. The maternal great aunt’s offer included an offer for full time employment with benefits. The mother’s reluctance to accept offers to help raised safety concerns about her relationship with M.H., Sr. The mother refused to move from the home of M.H., Sr.’s relatives. The department had been unable to verify whether the mother and the paternal great grandmother were allowing unmonitored contact with the infant. The department social worker believed that the mother was allowing M.H., Sr. to have access to the infant. This was because the social worker contacted M.H., Sr. to schedule visits with the infant. The mother would then not bring the infant to the weekly monitored visit. M.H., Sr. would not appear for the visit. However, neither the mother nor M.H., Sr. would contact the department to cancel the visits.
The department recommended: M.R. be placed with her father, D.R., in Illinois; reunification services be terminated as to M.R.; family reunification services be terminated as to M.H., Sr.; and family reunification services continue as to the mother and M.H., Jr. and the infant. On October 21, 2008, the juvenile court found the mother was in compliance with the case plan. With respect to M.R. and M.H., Jr., the juvenile court ordered the two older siblings placed in the mother’s care and custody under the department’s supervision. However, this recommendation was subject to the proviso that the mother reside with the paternal great grandmother.
With respect to the infant, the mother’s attorney argued that the juvenile court should dismiss the petition. The infant’s counsel joined in the request. The juvenile court struck allegations from the June 23, 2008 petition: the mother was a current marijuana user and she had failed to regularly participate in a court ordered substance abuse treatment program and random drug testing. The juvenile court also struck the allegations: in counts a-1 (domestic violence); b-3 (the conditions of the mother’s home); and b-4 (domestic violence). The juvenile court found by a preponderance of evidence that the infant was a dependent child as described by section 300, subdivision (b) in that M.R. and M.H., Jr. were dependents. The juvenile court denied M.H., Sr. reunification services pursuant to section 361.5, subdivision (b)(10). The juvenile court ordered: the department to provide family maintenance services to the mother; the mother not monitor M.H., Sr.’s visits; the mother provide random weekly drug tests; the mother continue her programs; and the mother complete anger management classes. This timely appeal followed.
III. DISCUSSION
A. Sufficiency of the Evidence
Relying primarily on In re Rocco M. (1991) 1 Cal.App.4th 814, 824-825, the mother contends that there was insufficient evidence of a substantial risk of injury to the infant in this case. In Rocco M., a mother challenged a dependency order for insufficiency of evidence for failure to supervise an 11-year-old boy. The juvenile court judicially noticed a prior dependency proceeding when the child was much younger. The Rocco M. opinion stated: “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (Id. at p. 824.) The Rocco M. opinion concluded, “Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason to believe the acts may continue in the future.’” (Ibid.) The Rocco M. opinion then stated it was questionable whether the dependency order for an 11-year-old boy could be based solely on his mother’s past conduct neglecting him as an infant. (Id. at p. 825.) Nevertheless, the Rocco M. decision was not premised solely on past parental misconduct. Rather, the Rocco M. opinion explained: “We need not decide whether this evidence alone might have supported the dependency order, however, because we hold that the trial court could find a substantial risk of serious physical harm in the fact that Rocco’s mother created the danger that Rocco would ingest hazardous drugs. We begin with a purely legal premise, i.e., that a child’s ingestion of illegal drugs constitutes ‘serious physical harm’ for purposes of section 300. [Citation.]... The trial court could reasonably find that it did, in four distinct ways: (1) by placing or leaving drugs in a location or locations where they were available to Rocco; (2) by frequent and prolonged absences which created the opportunity for Rocco to ingest the drugs; (3) by neglecting Rocco’s needs in a way which might be reasonably expected to create the kind of emotional and psychological conditions in which substance abuse typically thrives; and (4) by exposing Rocco to her own drug use, thus impliedly approving such conduct and even encouraging him to believe that it is an appropriate or necessary means of coping with life’s difficulties.” (Ibid.)
The mother argues that there was insufficient evidence of a substantial risk the infant would suffer serious physical harm or illness due to her failure to protect or supervise him at the time of the jurisdictional hearing. The mother reasons there were no new events to support dependency jurisdiction for the infant during the eight months between October 26, 2007, when the petition for the older siblings were filed and June 23, 2008 when the present proceedings commenced. And she argues there were no new events between his birth in June 2008 and the jurisdictional hearing on October 21, 2008. The mother’s challenge to the sufficiency of evidence to support the juvenile court’s jurisdictional finding is reviewed in a light most favorable to the challenged order. And all conflicts and inferences are resolved in favor of the order. (In re Alexis S. (2009) 171 Cal.App.4th 438, 450-451; In re Rocco M., supra, 1 Cal.App.4th at p. 820.)
We conclude the juvenile court’s jurisdictional findings are supported by the record. To begin with, the Rocco M. decision did not actually decide the issue as stated by the mother. Rather, the Rocco M. decision actually supports the result in this case because the juvenile court’s findings are not confined solely to past conduct. On January 28, 2008, nine months before the juvenile court sustained the October 26, 2007 petition to protect the infant, the juvenile court sustained a petition on behalf of his two older siblings. The mother came to the attention of the juvenile court as a result of her home environment which included: drug paraphernalia, spray paint cans, a paint gun, and knife were within access of the children; gang members frequented the home; the children were confined to a bedroom while the mother, M.H., Sr., and numerous other people “partied”; numerous people slept on the floors and furniture in the home; the mother engaged in fights with the maternal grandmother and the maternal aunt in front of several children; and the mother was a victim of domestic violence by M.H., Sr. Further, in October 2007, small children described seeing the mother, M.H., Sr. and others smoke a black substance from a glass pipe. The mother denied using drugs and claimed the narcotics paraphernalia in the home belonged to her younger brother. However, it is undisputed that the mother had a criminal conviction for possession of a controlled substance. Although drug abuse allegations were dismissed without prejudice as to the October 26, 2007, petition, the dismissal was conditioned on each parent providing 12 clean, consecutive random drug tests. Neither the mother nor M.H., Sr. complied with the 12 consecutive random tests condition. Thus, even though the juvenile court determined that the mother had complied with the case plan, it is undisputed that the mother never provided 12 consecutive drug tests.
During the proceeding, the mother would enroll in and later be terminated from programs. As late as October 2008, the department reported that the mother was terminated from the Bienvenidos program for nonattendance. As noted, the mother’s counselor, Ms. Evans, stated: “‘Mother needs a lot more to learn to stay clean. I am not saying that she is testing dirty but she is heavily influenced by the baby’s father and is not totally ready to be independent.’ ‘Mother needs [the department] to stay on top of her to keep her motivated to continue to attend all her classes. She needs something to motivate her.’ ‘There is difference between a healthy mind and an addict’s mind. Mother is too immature and not ready to live a sober healthy living lifestyle. Mother needs to make better choices for her children.”’ As of April 17, 2008, the department reported that the mother still had an active warrant dated April 11, 2001 for controlled substance possession. The mother’s failure to consistently resolve her own issues with drugs was sufficient to establish a risk for the infant.
In addition, there was evidence that the mother’s relationship with M.H., Sr. posed a substantial risk to the infant. The mother admitted she drove M.H., Sr. to a job interview within days of giving birth to the infant. The mother was living in the home of M.H., Sr.’s grandmother. The mother also appeared to allow unmonitored access to the infant even though M.H., Sr. refused to comply with the case plan .M.H., Sr. was the subject of an arrest warrant for marijuana possession .M.H., Sr. provided only one drug test throughout the proceedings. M.H., Sr. had convictions for marijuana possession .M.H., Sr. was arrested as recently as March 8, 2008, for marijuana possession .M.H., Sr. was an admitted gang member (although he claimed it was a past association). Likewise, the mother ultimately admitted she was a gang member (but also denied current membership). Nevertheless, both the mother and M.H., Sr. were arrested concerning the murder that occurred in front of the mother’s home. The murder victim was a member of the same gang as M.H., Sr. The mother continued to associate with M.H., Sr. whose lifestyle was considered a risk to her continued sobriety by two of her counselors at the Bienvenidos program. Under the circumstances, the juvenile court findings that the infant was a person described by section 300, subdivision (b) must be upheld.
We also disagree with the mother that the jurisdictional findings must be reversed because the infant’s counsel advocated that the petition be dismissed. An attorney’s unsworn statements and argument are not evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454; Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090-1091.) Thus, the juvenile court’s order is not deficient merely because it was inconsistent with the arguments of the infant’s lawyers.
Similarly, the mother’s argument that the order must be reversed because the purpose of dependency proceedings is protection of child and not punishment of the parent lacks merit. No doubt, a juvenile court in a dependency proceeding intervenes to protect a child and not to punish a parent. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233; In re Malinda S. (1990) 51 Cal.3d 368, 384; In re B.D. (2007) 156 Cal.App.4th 975, 983.) However, there is no evidence that the juvenile’s court’s findings were based on anything other than an exercise of jurisdiction to protect the infant. Hence, her argument lacks merit.
B. Clerical Error
The juvenile court orally struck the allegations as to count a-1. However, the minute order does not reflect that the juvenile court struck count a-1. The conflict between the reporter’s and clerk’s transcript must be resolved in favor of the reporter’s transcript. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249; Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 569-570; see also People v. Smith (1983) 33 Cal.3d 596, 599 [reporter’s transcript prevails unless the particular circumstances requires a different result].) Thus, the October 21, 2008 minute order is modified to state that the allegation in count a-1 is stricken.
IV. DISPOSITION
The dispositional order is affirmed. The clerk’s minutes for October 21, 2008 are to be corrected as set forth in the body of the opinion.
We concur: ARMSTRONG, J., MOSK, J.