Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. CK82852 Jacqueline Lewis, Commissioner.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
Stephanie D. (Mother) appeals from the September 22, 2010 jurisdiction and disposition orders of the juvenile court adjudging minors M.W., D.M., Levi M., and Faith M. dependents of the court pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect). Mother challenges the sufficiency of the evidence to support the court’s jurisdictional findings. We conclude the evidence was sufficient to support the court’s jurisdictional findings and affirm the orders of the court.
Statutory references are to the Welfare and Institutions Code.
D.M.’s, Levi’s, and Faith’s father, D.M. Sr. (Father), and M.W.’s father, Lawrence W., are not parties to this appeal.
BACKGROUND
On June 28, 2010, the Department of Children and Family Services (DCFS) filed a section 300 petition alleging pursuant to subdivision (b) as follows: “b-4 [Mother] is a current abuser of marijuana and alcohol, which renders [Mother] incapable of providing the child with regular care and supervision. On 8/18/09 and on prior occasions, [Mother] was under the influence of illicit drugs and alcohol while the children were in [Mother’s] care and supervision. On 9/30/09, [Mother] had a positive toxicology screen for marijuana. [Mother] has failed and refused to drug test since 9/30/09. [Mother’s] abuse of illicit drugs and alcohol endangers the children’s physical and emotional health and safety, creates a detrimental home environment and places the children at risk of physical and emotional harm and damage. [¶] b-5 [Father] has a history of substance abuse and is a current abuser of marijuana and alcohol, which renders [Father] incapable of providing the children [D.M.], Levi and Faith with regular care and supervision. On 9/30/09, [Father’s] urine was diluted, resulting in an invalid drug test, and [Father] has failed and refused to drug test since 9/30/09. [Father] has a criminal history of convictions of Driving Under the Influence and Possession of Marijuana for Sale. [Father’s] abuse of illicit drugs and alcohol endangers the children’s physical and emotional health and safety, creates a detrimental home environment and places the children at risk of physical and emotional harm and damage.”
At adjudication, an allegation under section 300, subdivision (g) (no provision for support) against Lawrence W. was dismissed without prejudice. Also, further allegations under section 300, subdivision (b), and allegations under section 300, subdivision (a) (serious physical harm) and section 300, subdivision (j) (abuse of sibling) were dismissed.
M.W. was born in February 1997, D.M. in May 2001, Levi in October 2006, and Faith in November 2007. In 2003, DCFS received and closed as unfounded a referral that Mother was neglecting the minors. In 2007, a referral made because Faith was born with a positive toxicology for marijuana was closed in 2008 as inconclusive.
On August 17, 2009, and August 18, 2009, DCFS received referrals that Mother had punched M.W. and D.M. with her fist, that the family home had not had utilities for two months, and that there was suspected drug and alcohol use in the home. On August 19, 2009, Mother told DCFS that “she smoked marijuana last month but she does not do it anymore.” Mother stated Father did not use drugs, but had previously used alcohol and was attending court-ordered Alcoholics Anonymous for a conviction for driving under the influence (DUI). Although Mother admitted she sometimes hit M.W. and D.M. with a closed fist on their arms and legs, she denied hitting them hard. She also denied hitting them with a belt. She admitted she yelled and cursed at them.
Mother said she had not had gas or electricity in the home for one week because she was waiting for help from social services. She claimed there always was food in the home and that the minors currently lived with the paternal grandparents, with whom they had resided for seven years. She said a family member who did not like Mother and “wants money from the children” made the report to DCFS.
M.W. told DCFS that Mother yells at the minors and hits them with a belt on the legs and with a fist on the shoulders and upper body “for no reason.” The most recent incident occurred seven days previously, when Mother hit her with a belt. M.W. said that although she was not afraid of Mother, she wanted to live with her grandparents. M.W. said the minors had been going to the grandparents’ home every day to eat and bathe. M.W. stated that there was no hot water or electricity in Mother’s home and there had been no gas since June. She said that except for her bedroom and D.M.’s bedroom, the home was unclean and full of roaches and “little flies.” M.W. said that Mother smoked marijuana in front of the minors at home and while driving. She said Father smoked marijuana and drank alcohol. M.W. stated that Mother had smoked marijuana the previous day.
D.M. stated that he ate and bathed daily at his grandparents’ home and wanted to live there. He stated Mother hits him on the bottom with a belt and yells and curses at him. D.M. said the small mark on his knee was caused by Mother hitting him with a belt. Mother also had punched him a long time ago. D.M. never had been hit by Father, but he saw Father hit the other minors. D.M. said Mother smoked “weed” in his presence. He stated that when Mother “smokes weed she is loud and she and [Father] become argumentative when they are under the influence of marijuana.” He said he was afraid of Mother and did not feel safe with her. D.M. said Father also drinks alcohol. Levi and Faith were too young to make a statement and had no visible marks or bruises.
Although Father denied that he or Mother hit the minors, he stated that he had spanked them with an open hand on their hands when they had misbehaved. Father also denied he and Mother used drugs. He said he drank beer on the weekends, but not in front of the minors.
A month later, on September 29, 2009, M.W. reported she had not seen Mother use marijuana since DCFS’s August visit, but Mother still yelled at the minors. D.M. said Mother had not hit him since the last visit, but he had seen Mother hit the other minors.
On September 30, 2009, Mother’s urine test was positive for marijuana. Father’s urine was diluted but still tested positive for marijuana and alcohol. At a team decision meeting (TDM) on October 6, 2009, Mother admitted she had hit the minors with a belt when they misbehaved. She also said she smoked marijuana two or three times a week, but not in the minors’ presence. Father said that he continued to participate in Alcoholics Anonymous for a DUI conviction in 2003, but he smoked marijuana two or three times a week and drank alcohol on the weekends. Mother and Father agreed to participate in voluntary maintenance services, including family preservation, parent education, and random drug testing. DCFS reported all utilities were operable.
On June 17, 2010, another TDM was held to address Father’s and Mother’s lack of compliance with random drug testing. Father stated he had not been able to test because of his work schedule. Mother stated she had not been able to test because she had been unable to take the minors to the testing site with her, the testing site was “too far, ” and she needed to be home when the minors arrived home from school. At the TDM, Mother said she did not want services anymore and “requested that a petition be filed with the Juvenile Dependency Court.” Mother and Father refused to submit to an “On-Demand Drug Test.” Father and Mother stated that “marijuana did not pose any danger to [the minors]” and “refused to acknowledge that [marijuana] is an illegal substance.”
On June 22, 2010, M.W. and D.M. told DCFS they had never been spanked and denied previously saying they had been spanked. D.M. also denied ever having had bruises. Both M.W. and D.M. said they were disciplined by being given time-outs and having television privileges taken away. DCFS observed that a reward system rewarding the minors for completing chores was posted in the living room and that there were no marks or bruises on any of the minors. The utilities were operable. DCFS reported that after Mother’s and Father’s positive drug test on September 30, 2009, Mother and Father missed the next 10 tests.
DCFS reported Mother had failed to show up to court in an unspecified criminal matter in May 2009 and both Father and Mother had been charged in June 2009 with receiving stolen property. Between 1997 and 2005, Father had been arrested and sentenced to probation for alcohol and drug-related charges and had served jail time for weapons possession. In 1993 he had served a sentence in prison for attempted second degree robbery and possession of a firearm. In 1992 he had served a sentence in “jail” for second degree robbery.
At a hearing on June 28, 2010, the juvenile court determined Father to be the presumed father of D.M., Levi, and Faith. DCFS and the minors’ attorney agreed to the minors’ being left in Mother’s and Father’s care. The court released the minors to Mother’s and Father’s care but admonished Mother and Father to participate in drug testing. The court warned Mother and Father that if the levels of marijuana in their systems did not go down, it would reconsider detaining the minors.
In its jurisdiction/disposition report, DCFS reported that on July 9, 2010, both M.W. and D.M. denied all of their previous statements to DCFS. M.W. said she did not remember making them. D.M. said he had been confused by the questions and claimed he got his scars when he “‘fell on [his] bike.’” DCFS determined that “[d]ue to the specific nature of [M.W.’s and D.M.’s] original statements as to the physical abuse in the home, ” the original statements were credible. DCFS believed that it was highly likely Mother and Father persuaded M.W. and D.M. to recant their statements. Mother stated she never had hit the minors with a belt, but only spanked them with her open hand. She said any marks on D.M. were from accidents. She also said Father never had spanked the minors. She denied drinking alcohol but stated she had occasionally smoked marijuana. She stated she had smoked marijuana in August because she was upset that her family let D.M. go to a liquor store by himself after a little boy had been killed. She said she and Father had stopped smoking marijuana right after the case started. Father denied the physical abuse allegations and stated neither he nor Mother used marijuana anymore. Mother and Father said they had taken five weeks of parenting classes, which were very helpful.
A last minute information showed that Mother and Father had tested positive for marijuana on July 19, 2010. On September 14, 2010, Mother tested positive for marijuana and her levels had risen. Father failed to test as scheduled on September 7, 2010.
At the adjudication hearing on September 17, 2010, Mother testified that although she had never physically abused the minors, she had physically disciplined them. The last time she had used physical discipline was in December 2009. Mother stated she had completed a parenting class that had taught her better ways to discipline the minors. She stated she disciplined the minors by taking away their toys, putting them in time-outs, or giving them extra chores or homework to do. Mother testified she never had smoked marijuana in front of the children or while driving the children. She stated her car had been repossessed in October 2009, and she had not driven a car since then because her license had been suspended in December 2009. Mother stated that the minors said Mother had smoked marijuana while driving only because the social workers had put words in the minors’ mouths. Mother acknowledged that marijuana was a controlled substance. Mother testified she had never bought marijuana but only used it when she was hanging out with friends. She stated she recently had tested positive for marijuana because she had smoked it on Labor Day. The reason she had smoked marijuana on Labor Day was because “[i]t was a holiday” and she was around the “wrong people.” She testified that she had not been able to participate in drug testing because she had not been given bus passes for the minors. She also testified that she had been able to smoke marijuana out of the minors’ presence when the minors had been at school or when her friends or family picked them up for overnights or birthday parties. Mother stated that sometimes she had been under the influence of marijuana when the minors returned home. She stated that although it was not “a good idea” to be under the influence of marijuana when caring for the minors, the minors had not been harmed.
On September 20, 2010, the allegations under section 300, subdivision (b) were amended to add to paragraph b-4 of the petition that “[Mother’s] last positive drug test was on 9/14/10, ” and the allegations under section 300, subdivision (b) were amended to add to paragraph b-5 of the petition that “Father’s last no-show for drug testing was 9/7/10.” The juvenile court dismissed, among others, allegations of physical abuse because there was no evidence of current risk. The court sustained the petition under section 300, subdivision (b) as amended. The court stated it strongly believed there was a nexus between Mother’s and Father’s drug use and the neglect of the minors. The court stated Mother’s and Father’s home had been “over a period of time filthy, without running water, without electricity.” The court further noted there had been physical abuse and Father had a DUI. The court said it believed M.W.’s statements that Mother had used marijuana at home and while driving the minors. The court did not believe Mother’s statement that she had stopped driving in October 2009. The court noted that the minors had to eat and bathe at their grandparents’ home, that D.M. had specifically described Mother’s and Father’s behavior as loud and argumentative when they had been under the influence of marijuana, and that he did not feel safe. The court stated that Mother and Father had been given an entire year to show improvement, yet they continued to use marijuana, refused to admit it was an illicit substance, and failed to drug test. The court stated that Mother had others care for the minors so she could continue to use marijuana, “at the very least on holidays.”
At the disposition hearing on September 22, 2010, DCFS testified that there were no safety issues observed during a home visit made within the last 20 days and that the family showed “cohesiveness.” During the visit, the minors had been watching television, and M.W. had been preparing pizza under the supervision of Mother. DCFS did not have a recommendation regarding placement but was investigating whether the children could be placed with relatives. Also, the minors had been placed that day in three different foster homes. The juvenile court admitted evidence that Mother had enrolled in an outpatient drug program that day.
The juvenile court declared the minors to be dependents of the court under section 300, subdivision (b). The court stated DCFS had provided numerous services to the family prior to filing a petition, yet the parents had “thumbed their nose” at DCFS and had refused to stop using drugs. The court stated Mother’s testimony that she sent the minors away so she could use drugs was “appalling.” The court stated that although DCFS reported the minors were “okay” on a recent visit, there was “a year of documented neglect issues” of the minors.
The juvenile court stated it was a “good sign” that Mother had signed up for a drug program. But the court did not believe that Mother’s enrollment on the day the minors were detained constituted clear and convincing evidence that the minors could safely be returned to Mother’s and Father’s care. The court ordered the minors placed under the supervision of DCFS for suitable placement and ordered DCFS to investigate placement with relatives. The court ordered family reunification services for Mother and Father consisting of drug rehabilitation with random testing and individual counseling to address case issues. Mother’s and Father’s visits were ordered monitored.
Mother appealed from the juvenile court’s orders.
DISCUSSION
Sufficient evidence supported the juvenile court’s finding of jurisdiction under section 300, subdivision (b)
Mother challenges the sufficiency of the evidence as to the juvenile court’s finding of jurisdiction under section 300, subdivision (b). We conclude that sufficient evidence supports the court’s finding of jurisdiction.
The juvenile court’s jurisdictional finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule 5.684(f).) “‘“When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]”’ [Citation.] While substantial evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation or conjecture cannot support a finding. [Citation.]” (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left....”
“A jurisdictional finding under section 300, subdivision (b) requires: ‘“(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or illness.” [Citation.]’ [Citations.] The third element ‘effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).’ [Citation.]” (In re James R. (2009) 176 Cal.App.4th 129, 135.)
“Section 300.2 provides that the purpose of the provisions in the Welfare and Institutions Code relating to dependent children is to provide protection for children being harmed or who are at risk of being harmed.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 452.) Section 300.2 further provides that “[t]he provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.)
Mother contends that there was insufficient evidence of serious harm or substantial risk of serious harm to support jurisdiction under section 300, subdivision (b) because by December 2009, Mother had taken parenting classes and had implemented strategies to discipline the minors without resorting to physical means; by June 2010, Mother and Father had been able to resolve their difficulties with housing and utilities; although Mother admitted to periodic use of marijuana and being under the influence when the minors were returned to her care from school or visits with family, there was no evidence she was “inebriated to the point of endangerment”; on September 22, 2010, DCFS testified that on a recent visit the family showed “cohesiveness” and there were no safety issues; the minors had not been removed from the Mother’s and Father’s custody in August 2009 when there were greater safety concerns; and the juvenile court struck the allegations of physical abuse from the section 300 petition before sustaining it. In support of her argument, Mother cites In re David M. (2005) 134 Cal.App.4th 822, In re Alexis E., supra, 171 Cal.App.4th at page 438, and Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.) for the proposition that drug use, without more, does not support a finding of jurisdiction pursuant to section 300, subdivision (b). Thus, she claims that because there was no evidence that Mother endangered the minors as she continued to use marijuana, it was error for the juvenile court to assert jurisdiction.
We conclude that the cases cited by Mother support, rather than challenge, the juvenile court’s finding of jurisdiction. In In re David M., supra, 134 Cal.App.4th 822, the appellate court reversed the juvenile court’s jurisdictional order because there was no evidence tying the mother’s marijuana use to actual harm or a substantial risk of serious harm to the minors. In that case, although the mother had tested positive for marijuana at the birth of her youngest child, that child was healthy and tested negative for marijuana at birth. The evidence showed that the older son was healthy, well cared for and loved, and was being raised in a clean, tidy home. And the mother and father had been cooperative and compliant with services offered to the family. Before the jurisdiction hearing, the mother had tested negative for drugs 18 times over four and one-half months and any missed tests had been excused. (Id. at p. 830.)
In In re Alexis E., the appellate court found that sufficient evidence supported section 300, subdivision (b) jurisdiction over three minors, ranging in age from nine to 11, based on the father’s use of medical marijuana. (Alexis E., at p. 453.) The court affirmed the juvenile court’s assertion of dependency jurisdiction because the evidence showed there was more than just “the mere use of marijuana” by the father. (Id. at p. 452.) There, the father exposed the minors to secondhand marijuana smoke; the father’s marijuana use made him irritable and impatient and negatively affected his demeanor toward the minors and his girlfriend; the minors reported being afraid of the father when he yelled at them; the father used physical punishment on them and was violent toward his girlfriend; and DCFS reported that the father sounded hysterical, yelled, and used profanity during a phone call—significant in light of the fact that one of the effects of marijuana use is intense anxiety or panic attacks. (Id. at pp. 451–453.)
Here, there was more than just evidence of Mother’s drug use. Although the allegations of physical abuse were dismissed and the family appeared cohesive and utilities were operable on a recent visit, Mother has had ongoing problems with her drug use. After testing positive for marijuana on September 30, 2009, Mother and Father agreed to participate in random drug testing. But Mother and Father subsequently refused to comply with random drug testing, claimed that marijuana was not dangerous to the minors, refused to acknowledge that marijuana use is illegal, and continued to use. Unlike the mother in In re David M., supra, 134 Cal.App.4th at page 830, who tested negative for drugs 18 times, Mother refused to submit to testing until a few days before the adjudication, when she tested positive. Mother admitted at the adjudication that although she had continued to use marijuana, it was always out of the presence of the minors. But the court could reasonably believe that Mother had continued to smoke marijuana in front of the minors and drive while under the influence of marijuana. And the court could well believe that the minors’ statements to DCFS that Mother had stopped smoking in front of them was a result of coaching by Mother and Father, as believed by DCFS. And even if Mother did not continue to smoke in front of the minors, she admitted that she had been under the influence of marijuana when the children returned home to her from school or from visits. Although Mother admitted it was not “a good idea” to be under the influence of marijuana while she cared for the minors, she claimed the minors had not been harmed. But an unresolved drug or alcohol abuse problem may impair a person’s ability to parent and thus afford a basis for the assertion of dependency jurisdiction. (See Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.) The evidence showed that marijuana had a negative impact on Mother’s behavior and demeanor toward the minors. D.M. stated that Mother got loud and argued with Father when they smoked marijuana. D.M. had said that he was afraid of Mother, and both D.M. and M.W. had said they wanted to live with their grandparents.
Over the course of a year, Mother’s marijuana levels had risen even though she had been specifically warned by the court that the minors might be detained if her levels rose. Also, Mother claimed she was unable to get away from the minors so she could do drug testing, yet she was able to have the minors cared for and get transportation when she wanted to smoke marijuana with her friends. We conclude that Mother’s history of noncompliance with testing, continued use of marijuana, and last-minute enrollment in a drug program shows that she refuses to take her drug abuse problem seriously.
Nor does Mother’s citation to Jennifer A. assist her. In Jennifer A., the appellate court concluded the evidence was insufficient to support the finding that returning the minors to the mother’s custody would create a substantial risk of detriment pursuant to section 366.22. (Jennifer A., supra, 117 Cal.App.4th at p. 1346.) In that case, the minors had not been removed from the mother’s custody in the first place due to the mother’s drug use, but because she had left them alone on one occasion to go to work, believing that the father (whose car had broken down, unbeknownst to her) would arrive shortly to care for them. (Id. at pp. 1343–1344.) At the section 366.22 hearing, the evidence showed that the mother had complied with the reunification plan, had been fully employed for two years and recently received a promotion, was cooperative with DCFS, had always acted appropriately, and had displayed appropriate parenting skills. There was no evidence of a history of mental illness, incarceration, or a substance abuse problem affecting her parenting skills. The court found that the mother’s one positive drug test and several missed or diluted tests between the 12-month review report/hearing and the 18-month review report/hearing did not mean that “the children’s return to [her] would create a substantial risk of detriment to the physical or emotional well-being of the children in light of the factors in this case militating in favor of their return.” (Id. at p. 1346.)
Section 366.22, subdivision (a) provides that after the child has been removed from the custody of his parent, the permanency review hearing shall occur. It further states that: “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).)
Mother is not like the mother in Jennifer A., who had a long history of compliance with reunification services. The children were removed in Jennifer A., not due to the mother’s drug use, but because she had left them alone on one occasion to go to work. Here, on the other hand, the allegations against Mother were based on her past and current history of drug use. Unlike the mother in Jennifer A., Mother does not yet have a history of compliance with reunification services, including completion of drug testing and drug programs. In fact, whenever Mother tested, she tested positive for marijuana.
We conclude that sufficient evidence supports the juvenile court’s finding of jurisdiction.
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are affirmed.
We concur: CHANEY, J., JOHNSON, J.