Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK58842, Robert L. Stevenson, Referee.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
C.C. (Mother) appeals from the order declaring her son, M.S., to be a dependent of the court under Welfare and Institutions Code section 300. She contends substantial evidence does not support the sustained jurisdictional allegations or the dispositional order removing the child from her custody and granting sole legal and physical custody to S.S. (Father) and terminating jurisdiction. She further contends that the court erred by ordering monitored visitation for Mother. Because substantial evidence supports each of the court’s findings, we affirm the challenged orders.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
M.S. was the subject of a prior dependency case filed in 2005 when Mother was arrested and later convicted of charges related to driving a vehicle containing firearms and drugs. He was declared a dependent in April 2005, and Mother was given 12 months of family reunification services but failed to reunify with M.S. In May 2006, the juvenile court placed him in Father’s care and issued a family law order granting Father physical custody of M.S. while both parents retained legal custody. Father was permitted to allow Mother unmonitored visitation, at his discretion.
Mother and Father reunited, but then later separated again. Father allowed M.S. to live with Mother because he believed she had completed her drug program, and that she was sober and doing well.
In June 2008, however, law enforcement officials executed a search warrant at the home Mother and M.S. shared with a maternal aunt and maternal grandmother. They found marijuana in an amount consistent with personal use. The search took place as part of a multi-agency action intended to address illegal activity committed in the Drew Street community of Northeast Los Angeles by the “Avenues” gang, which activity included possession of illegal firearms, drug sales, and murders. Mother was arrested and placed in federal custody, and charged with conspiracy to distribute controlled substances. (21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A).)
DCFS filed a section 300 petition on June 30, 2008, alleging that M.S. was a child described in section 300, subdivision (b), in that Mother created a detrimental home environment that placed him at risk of physical harm, damage, and danger. DCFS alleged in count (b)(1) that Mother had exposed the child to illicit drug trafficking and criminal gang activity, and that she had been arrested and charged with conspiracy to distribute a controlled substance. Further, M.S. was a prior dependent of the juvenile court due to Mother exposing him to illicit drugs and firearms. In count (b)(2), DCFS alleged that federal law enforcement officers served a search warrant at the child’s home, and found marijuana in the home within access of the child. In count (b)(3), DCFS alleged that Mother had suffered a conviction for possession of a controlled substance, and that her history of substance abuse (including abuse of cocaine, methamphetamines, and marijuana) and current abuse of marijuana rendered her incapable of providing M.S. with regular care and supervision, and placed him at risk of physical harm, damage, and danger.
In a detention report, the assigned social worker reported that on the date of her arrest, Mother admitted she was on probation, and was required to submit to drug testing. She also admitted to past use of methamphetamines, marijuana, and crack cocaine. Mother said she had smoked marijuana the previous day, and did so once a week outside of the family home, when M.S. was not home. When asked if there had been past incidents of domestic violence with Father, she denied it and said they were not together. Mother told the social worker she believed she was being arrested because she associated with people in her neighborhood whom she had known since elementary school. She denied engaging in criminal activity, and denied having gang ties or being a gang associate.
The social worker also spoke to M.S., who was well-groomed and appeared to be healthy and developmentally on target. He said he liked living with Mother and his maternal grandmother, said he did not know what drugs were, and denied seeing guns in the home.
According to the social worker, Father said he maintained close contact with Mother and M.S. He said Mother previously used methamphetamines (but no other narcotics), but she seemed to be sober and not using any narcotics “from what [he could] tell.” He also said Mother told him she was “trying to do better” by not hanging around with gang members in the area. He did not think Mother was involved in any criminal activity. Father said he had been on parole for a weapons charge and had violated parole in 2001 by associating with other gang members. He denied being involved in any criminal or gang activity since 2001.
The social worker inspected Father’s home and found it to be clean and neat. She saw M.S.’s belongings throughout the home. DCFS released M.S. to Father, who was considered to be a non-offending parent.
The court held a detention hearing on June 30, 2008. The court found Father to be M.S.’s presumed father, having received a statement regarding parentage filed by Father. Mother remained incarcerated and was not present in court. The court found a prima facie case to detain M.S., and ordered that he be released to Father. DCFS was ordered to provide family maintenance services to Father. Father’s counsel notified the court that if it took jurisdiction over the case, Father intended to request custody of M.S. under section 361.2.
Section 361.2 provides as follows: “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” If the court places the child with that parent, it may order that the parent become legal and physical custodian of the child, and may also order that the noncustodial parent have visitation. The court shall then terminate its jurisdiction over the child. (§ 361.2, subd. (b)(1).) Alternatively, the court may order that the parent assume custody subject to the jurisdiction or supervision of the juvenile court. (§ 361.2, subd. (b)(2) & (3).)
An arraignment hearing for Mother on the allegations of the petition was scheduled for July 3, 2008. Mother, who remained in federal custody, was not present, and the court continued the matter to permit Mother’s counsel to submit a report regarding how to proceed given Mother’s incarceration. In addition, the court set an adjudication and disposition hearing for August 14, 2008.
In a Jurisdiction and Disposition Report filed for the August 2008 hearing, the social worker stated that M.S. was very affectionate toward Father, and enjoyed living with him. M.S. said that Father took good care of him and did not use physical discipline. M.S. also said that he had observed Mother smoking, but when asked to describe what she smoked, he said he did not know, and did not remember. He said Mother’s friends visited her but he was not aware if they were gang members. However, he recalled that Mother was once in a fight and had bled as a result. On another occasion, two of Mother’s friends, a male and a female, were fighting in Mother’s bedroom and were hitting one another. M.S. saw Mother pulling the woman’s hair. M.S. reported that Mother slept a lot during the day during the time he lived with her, but she still took care of him, took him to school, and fed him.
According to the report, Father believed that Mother had been wrongly accused, and that she had never participated in drug trafficking, and was never a gang member. She used methamphetamines when they were together, but stopped while she was pregnant with M.S.; she resumed the drug use after M.S. was born. After Mother was arrested in 2005, Father and M.S. moved into the apartment where Father still resided. After the court terminated jurisdiction in 2006 in the first dependency case involving M.S., Mother continued to attend a substance abuse program, and Father saw a significant positive change in her, although she never showed him proof of completion of her substance abuse program. She seemed more responsible, had attained a normal weight, and seemed more focused. He agreed to let M.S. live with her as he believed she was sober, and because the maternal grandmother and maternal aunt also resided in the home. M.S. had been living with her for about nine months. He was not aware that Mother was using any kind of drug, as he saw her weekly and never observed her to be under the influence. Mother’s family never expressed any concern to him that she was abusing drugs again M.S. was in good health and never said Mother was using drugs, neglecting him, or mistreating him.
Father admitted that in 2005 he was involved in an incident of domestic violence with Mother, during which he pulled Mother’s hair as they argued. M.S. was home, but asleep at the time. Father was ordered by the criminal court to complete 52 hours of domestic violence classes, and he was due to complete the classes in September 2008. He had completed 12 of 40 days of community service ordered by the criminal court. Father also admitted to a history of using marijuana, but said he had stopped three years ago.
Because Mother remained in custody, the social worker was unable to interview her. The social worker, however, did interview the maternal grandmother, who said that she had moved out of the apartment she had shared with Mother and the maternal aunt. After she moved, she had weekly contact with Mother by phone or in person until Mother’s incarceration, and telephone contact with Mother after her incarceration. The maternal grandmother said Mother had friends who were gang members, but Mother was not a gang member herself and did not bring gang members to her home.
Regarding Mother’s prior drug use and earlier arrest, the maternal grandmother stated that she had not known Mother was using drugs until she was arrested. She maintained that Mother’s latest arrest for conspiracy to distribute a controlled substance was unfounded. She had not suspected any drug use, drug trafficking, or gang activity by Mother since M.S. began living with Mother again.
For the adjudication and disposition hearing, DCFS recommended that reunification services not be offered to Mother pursuant to section 361.5, subdivision (b)(10), which permits services to be denied if the parent previously failed to reunify with a sibling or half-sibling and that child was removed from the parent. DCFS pointed to the fact that Mother failed to reunify with M.S., and Father was awarded physical custody of him in 2006. DCFS recommended that the court declare M.S. a dependent child, and order the provision of family maintenance services for the child and Father, including counseling for perpetrators of domestic violence, drug testing, and parent education for Father.
Mother’s counsel filed a report on Mother’s behalf regarding how she wished to proceed while she remained in federal custody. She pointed out that denial of reunification services under section 361.5, subdivision (b)(10) did not apply in this case because that section refers to the prior dependency of a sibling or half-sibling. Mother denied the allegations in the section 300 petition, and stated her intention to move for nonsuit pursuant to section 350, subdivision (c), arguing that the evidence did not support a finding of jurisdiction over M.S.
On August 14, 2008, the court held the adjudication hearing. Mother remained incarcerated, but had authorized her attorney to proceed with trial in her absence. The court denied DCFS’s request for a continuance to obtain the attendance of the primary investigator in Mother’s federal criminal case. The court took judicial notice of the prior sustained petition against Mother regarding M.S. as well as the minute orders in that case. The court also received into evidence the reports filed with respect to the current petition.
After hearing argument, the court first dismissed count (b)(1) (that Mother had exposed M.S. to drug trafficking and gang activity, had been arrested and charged with conspiracy to distributed a controlled substance, and that M.S. was a prior dependent of the juvenile court), and count (b)(2) (that federal law enforcement officers served a search warrant at the child’s home, and found marijuana in the home within access of the child). However, the court sustained count (b)(3) as amended, which alleged that Mother had a history of substance abuse (including abuse of cocaine, methamphetamines, and marijuana) and was a current abuser of marijuana, which rendered her incapable of providing the M.S. with regular care and supervision. Further, the count alleged that marijuana was found in Mother’s home on June 25, 2008, and Mother had a criminal history of a conviction of possession of a controlled substance.
In sustaining count (b)(3), the court stated that Mother’s admission to using marijuana recently, standing alone, would not justify a finding of jurisdiction. But the totality of the circumstances did justify such a finding: Mother had been convicted of possessing a controlled substance in 2005; Father stated that Mother used drugs in the past; Mother admitted current use of marijuana at the time of her arrest; and federal authorities found marijuana in her home. Taken together, the court reasoned, these circumstances proved by a preponderance of evidence that M.S. was placed at risk of harm.
Proceeding to disposition, the court found pursuant to section 361.2 that Father was a non-offending parent and that it was in M.S.’s best interest to live with Father. The court granted legal and physical custody of M.S. to Father, and directed him not to release the child to Mother at any time unless authorized by the court to do so. The court found that continued jurisdiction was not necessary, and terminated jurisdiction.
See footnote 2, ante.
DISCUSSION
I. Sufficiency of the Evidence to Support the Finding of Jurisdiction
Mother argues that the allegations of the petition as pleaded were not sufficient to establish jurisdiction, as there was no evidence that Mother was incapable of caring for M.S. due to her drug use or any other cause. Mother, Father, and the maternal grandmother reported that Mother took good care of M.S. and was sober. Mother argues that the evidence did not demonstrate that her drug use posed a current risk to M.S., and that “[t]he court simply pieced together the marijuana in her possession, her admission of using it weekly, her conviction in 2005 for possession of a controlled substance and the prior dependency to conclude that mother is a risk to her child,” when in fact “there is not a sufficient nexus between” those factors and a risk of harm to M.S. According to Mother, her drug use was not shown to harm or affect M.S. in any way, and therefore the court’s findings under section 300, subdivision (b) were not supported by substantial evidence. We disagree.
The Standard of Review
“We review the juvenile court’s jurisdictional findings for sufficiency of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We review the record to determine whether there is any substantial evidence to support the juvenile court’s conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) ‘However, substantial evidence is not synonymous with any evidence. [Citations.] 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.)” (In re David M. (2005) 134 Cal.App.4th 822, 828.)
The Finding of Jurisdiction Under Section 300, Subdivision (b)
As here relevant, a juvenile court may determine a child is subject to the court’s jurisdiction 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 a parent’s failure or inability to adequately supervise or protect the child, or a parent’s inability to care for the child due to the parent’s substance abuse. (§ 300, subd. (b).)
“‘The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ (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.... [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 Nicholas B. (2001) 88 Cal.App.4th 1126, 1137.)” (In re David M., supra, 134 Cal.App.4th at p. 829. But see In re David H. (2008) 165 Cal.App.4th 1626, 1641-1643 & fn. 14 [allegations of a substantial current risk of serious physical harm not required to establish jurisdiction under § 300, subd. (b); allegation of past harm sufficient].)
Mother likens this case to others in which appellate courts have found that sustained allegations were insufficient to authorize taking jurisdiction. (Citing In re Nicholas B., supra, 88 Cal.App.4th at p. 1134 [bruise on child’s face not a severe injury sufficient for jurisdiction]; In re Jamie M. (1982) 134 Cal.App.3d 530, 541 [minors could not be removed from custody of schizophrenic parent absent evidence that mental illness affected minors]; In re W.O. (1979) 88 Cal.App.3d 906, 909 [marijuana and cocaine found in home and father’s admission of use of small amounts of cocaine did not justify removal from custody]; In re David M., supra, 134 Cal.App.4th at p. 829 [no evidence of specific, defined risk of harm to children resulting from mother’s or father’s mental illness, or mother’s substance abuse].)
Mother argues that here, the evidence was uncontradicted that M.S. was healthy and well cared for and that his life was untouched by knowledge of or contact with illegal drugs or gangs, and that there was no evidence linking her marijuana use to her parenting skills or judgment. The court reasonably concluded, however, that the entirety of the evidence points to a contrary conclusion.
In April 2005, little more than three years before Mother’s arrest by federal authorities in the present case, M.S. had been declared a dependent and removed from Mother’s custody because of her illegal possession of drugs and firearms in a vehicle. At the time, she also abused methamphetamines and other drugs. She failed to reunify with M.S. after receiving family reunification services for one year. M.S. was in her custody at the time the current petition was filed only because Father erroneously thought Mother was sober and not using drugs and therefore allowed her to have physical custody. Of course, he was wrong about her lack of drug use – she admitted to ongoing use of marijuana, which she kept in the family home. In addition, M.S. told the social worker that he had twice seen Mother involved in fights; he saw her pulling a woman’s hair, and saw that she was bleeding after another fight. M.S. reported that Mother slept a lot during the day, although she still took care of him. Further, it is undisputed that Mother’s home was located in the midst of gang territory and that a number of people in her neighborhood with whom she had grown up and with whom she continued to socialize were gang members. Mother’s lifestyle – current marijuana use and possession of marijuana in the home, association with gang members, engaging in violent activity in M.S.’s presence – demonstrated a troubling carelessness about M.S.’s well-being, particularly in light of her prior drug abuse, her conviction for drug possession, the prior finding of dependency jurisdiction over M.S., and mother’s prior failure to reunify with him.
In short, it was not unreasonable for the court to infer, on the entire record here, that Mother’s behavior placed M.S. at substantial risk of serious physical harm. This is not a case, as described by Mother, “of a mother who had made significant changes in her life and was able to care for her son,” having “dealt with her substance abuse problems, had a job and stable housing.” Rather, although Mother had perhaps resolved her methamphetamine addiction, the court was not required to ignore the serious warning flags raised by her ongoing marijuana use and other behavior.
Mother points to the fact that Father and the maternal grandmother reported to DCFS that she took good care of M.S. and was sober, and that they did not believe she was involved in gang activity. But the court could reasonably discount their opinions. Father did not live with Mother and did not know about her marijuana use. The maternal grandmother had lived with Mother and M.S. and saw them frequently, but failed to detect Mother’s current drug use, just as she had not known in 2005, despite living with Mother, that Mother was addicted to methamphetamines. Thus, opinions of Father and the maternal grandmother could reasonably be viewed as unreliable.
We conclude that substantial evidence supports the court’s finding that M.S. was at substantial risk of serious physical harm.
II. Termination of Jurisdiction Pursuant to Section 361.2
A. Consideration of Detriment to M.S.
As applicable here, section 361.2 permits the juvenile court to grant custody to a non-offending, currently non-custodial parent who can provide care for the child, either by terminating jurisdiction without giving reunification services to anyone (§ 361.2, subd. (b)(1)), or by retaining jurisdiction and providing services only to the new custodial parent. (§ 361.2, subd. (b)(2).) In fact, section 361.2 provides that the court shall place the child with the non-custodial parent if that parent requests it, unless the court finds the placement would be detrimental. (See In re Janee W. (2006) 140 Cal.App.4th 1444, 1451; In re Erika W. (1994) 28 Cal.App.4th 470, 475.) A court’s ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
Mother contends on appeal that the court erred in terminating its jurisdiction because it failed to consider whether placing M.S. with Father would be detrimental. She argues that Father had given up custody of M.S. to Mother without any proof she had completed her reunification plan, and that Father also had a criminal history. DCFS recommended below that the court retain jurisdiction and provide reunification services to Father. However, M.S.’s counsel opined that the court should dismiss the petition and simply return M.S. to the care and custody of Father.
First, we note that pursuant to section 361.2, the consideration of detriment occurs as part of the court’s decision whether to place the child with the non-custodial parent in the first place, not when the court is deciding whether to retain jurisdiction. Mother does not argue that the child should not have been placed with Father because doing so would be detrimental. In any event, we find that the court did in fact consider detriment. The court made clear to Father that he was prohibited from releasing M.S. back to Mother without court authorization, and Father indicated he understood that prohibition to be a condition of having the child placed with him. DCFS never indicated that placing the child with Father would be detrimental; it merely recommended a period of continued supervision given Father’s prior drug use and criminal history. Father assured the social worker that he had long ago discontinued his drug use and criminal activity, and DCFS observed that he had stable employment and housing, and that M.S. was doing very well in Father’s care. The court’s finding that M.S. could be safely placed with Father was clearly appropriate.
As to whether the court erred in terminating jurisdiction pursuant to section 361.2, Mother has not demonstrated error. Father had previously been awarded sole physical custody of M.S. and the juvenile court had terminated jurisdiction. Father’s transgression thereafter was in allowing Mother to have physical custody of M.S., a mistake which the court concluded Father was not going to repeat. We will not interfere with the court’s exercise of its discretion under section 361.2 to terminate jurisdiction.
DCFS notes in its appellate brief that it did not appeal from the juvenile court’s order terminating jurisdiction, and therefore it does not take a position as to this issue.
B. Notice of Intention to Proceed Under Section 361.2
Mother argues that the court failed to give her notice that it intended to bypass reunification services and instead apply section 361.2. DCFS had recommended to the court that no reunification services should be provided to Mother pursuant to section 361.5, subdivision (b)(10) [permitting denial of services where parent failed to reunify with sibling]. However, early in the proceedings, Father indicated that if the court took jurisdiction over the case, Father intended to request custody of M.S. under section 361.2. Having been informed that Father, the noncustodial parent, desired to assume custody of M.S., the court was required to consider placing the child with him. (See § 361.2, subd. (a).) There was no failure of notice here. Because we conclude that the court properly applied section 361.2 and properly terminated jurisdiction, we need not consider Mother’s argument that section 361.5, subdivision (b)(10), is inapplicable.
III. Monitored Visitation
Finally, Mother contends on appeal that there was not substantial evidence to support the court’s order that visitation between Mother and M.S. should be supervised. This contention requires little discussion. Given Mother’s history of drug use and her admission that she currently used marijuana, monitored visitation was appropriate. In addition, pending resolution of the federal criminal charges brought against her, the order of monitored visitation certainly did not constitute an abuse of discretion.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.