Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD219877, JD219878
CANTIL-SAKAUYE, J.
Zane C., father of the minor children Meadow C. and Noah C., appeals from orders entered at the jurisdictional hearing and the dispositional hearing, adjudging the minors dependents, removing them from father’s custody and denying him reunification services. (Welf. & Inst. Code, §§ 356, 360, 395.) Father contends there was insufficient evidence to support the jurisdictional findings, there was insufficient evidence to support removal and the court abused its discretion in failing to order reunification services for father. We shall affirm.
There is a third child, Sahara, who is not the subject of this appeal.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
RELEVANT FACTUAL BACKGROUND
The Child Protective Services Referral For Meadow:
When Meadow was born in August 2001, both she and mother tested positive for marijuana. Mother claimed she had inhaled secondhand marijuana smoke. There was a referral to Child Protective Services (CPS), but the disposition was unknown.
On July 14, 2002, mother and father got into a fight that resulted in an allegation of domestic violence. Mother kicked out the windshield of father’s car when Meadow was present and strapped in her car seat.
The Dependency Proceedings Regarding Meadow And Noah:
Mother then became pregnant with Noah. She began prenatal care at five months. In the course of her prenatal care, on August 11, 2003, mother tested positive for amphetamines and THC. She admitted the marijuana use and claimed she had stopped using two weeks before. Mother also stated father smoked marijuana regularly. She denied amphetamine use. Informal supervision services were offered and accepted. As part of those services, mother submitted to two drug tests, each of which was positive for marijuana and father submitted to one drug test which was also positive for marijuana. As of September 2003, the parents had ceased contact with the social worker and were noncompliant in their case plan.
Noah was born in October 2003. At birth, Noah tested positive for methamphetamines and mother tested positive for both methamphetamines and THC. The parents were both noted to be actively using methamphetamines. Noah was placed into protective custody, but father absconded with Meadow. At the detention hearing on October 17, 2003, mother claimed she had spoken with father twice, but did not know where father was.
From the October 17, 2003 detention hearing, to the November 10, 2003 jurisdictional report, mother was only in contact with the social worker once. Specifically, she left a voicemail message on October 22, 2003, saying she had been trying unsuccessfully to track down father. Mother did not leave a current phone number or address. Mother had an appointment scheduled with the social worker on October 22, 2003. She did not attend the appointment and the social worker was unable to determine her whereabouts.
With respect to the allegations of the petition regarding Meadow and Noah, mother admitted she had used marijuana four to five times a day during her pregnancy with Noah and had been using it “on and off” since she was 14. She denied using methamphetamine, but supposed Noah might have tested positive due to her exposure to secondhand smoke or that she could have been given a marijuana joint laced with methamphetamine. She did not believe father was currently using marijuana and denied he used methamphetamines. Mother acknowledged that neither she nor father had been compliant with the services made available to them. Father remained at large with Meadow.
Father, mother and Meadow were found by law enforcement on November 5, 2003, and Meadow was detained. Father then indicated he would work with the Department of Health and Human Services (DHHS) to regain custody of his children. He also informed DHHS that he did not feel his daughter needed to be placed in protective custody, as she was not at risk in his care.
With respect to the allegations in the petition, father admitted he knew mother was using drugs during her pregnancy, including methamphetamine. He maintained her drug use did not negatively affect her parenting and she did not use drugs in front of Meadow. Father acknowledged he used marijuana on a daily basis to help with his problems with asthma and stress. It is “just like eating” to him and he believed his life would be in jeopardy if he quit using marijuana. He denied smoking in front of his children. Father maintained there was no history of domestic violence and the incident with the windshield was an isolated event. Father acknowledged that he and mother had failed to fully participate in the informal supervision program. He stated this was because they had only recently moved into a stable home and had not wanted others involved in their CPS issues. Father blamed CPS for the family once again being homeless, and felt he did not need to abide by the program’s requirements because the child was safe.
The court found the allegations true and adjudged the children dependents of the court. The parents agreed to participate in Dependency Drug Court, substance abuse services and parent education. They were granted supervised visits with the children.
By October of 2004, mother was doing well with her services, and had been clean and sober for seven months. Father, however, was “minimally engaged in his services” and had had several positive drug tests. Father gave a variety of reasons for those positive tests, including that his mother-in-law was putting methamphetamine and amphetamine in his food, his inhaler made him test positive, his drug counselor told him to use, and his wife was spiking his food and drinks with drugs. Accordingly, father’s reunification services were terminated on November 2, 2004. The children were placed with their mother on that same date. They were doing well and appeared happy and healthy. The children had weekly supervised visits with father. Based on mother’s progress in her reunification services, and the fact that she had ended her relationship with father, dependency jurisdiction was terminated on April 19, 2005.
The Dependency Proceedings Regarding Meadow, Noah And Sahara:
In late 2005, mother became pregnant again. Mother attended three prenatal appointments, beginning on May 31, 2006. At those three prenatal visits, mother refused to submit urine samples or complete her labs, despite being repeatedly informed how important those tests were. In June 2006, Sahara C. was born at home. Despite the fact that mother was in labor for two hours, no one called an ambulance to take her to the hospital until 15-20 minutes before Sahara was born.
Mother claimed she went to six or seven appointments and that the doctor’s reports were wrong.
A urine sample was procured from mother and was negative. Mother refused to allow Sahara to be drug tested. The refusal to allow Sahara to be drug tested, combined with the parents’ past history led to the detention of all three children. A meconium test later revealed Sahara to be positive for THC and methamphetamine.
Mother claimed she willingly provided this sample. A nurse at the hospital, however, reported mother refused the initial request she drug test, and when she was giving a sample, mother claimed she was unable to provide one. The nurse heard sounds consistent with urination, but mother claimed she was discharging blood. The nurse reported the sounds were not consistent with discharging blood. Also, the nurse reported mother’s bladder was full prior to entering the bathroom and when she returned to bed, her bladder was empty. The doctor then ordered a blood test. Mother initially agreed and then refused. The nurse was able to obtain a small amount of urine from mother and it tested negative for illicit drugs. Mother stated the nurse was lying about her dumping her urine and being unwilling to drug test.
A. The Petition That is the Subject of this Appeal
The petition that is the subject of this appeal alleged that mother had a history of substance abuse from which she had failed or refused to rehabilitate, and that all three children had tested positive at birth for drug exposure. It alleged that father had a history of substance abuse from which he had failed or refused to rehabilitate and had failed to engage in court ordered family reunification services which resulted in the termination of reunification services. The petition further alleged that mother had failed to comply with court orders regarding father’s return to the home and unsupervised contact with father.
Mother maintained she and father were clean and sober. Other than that information, she refused to give statements to the social worker or cooperate with the investigation.
Father also denied the allegations in the petition. He claimed he was currently not using drugs and refused to give a statement to the social worker or cooperate with the investigation.
The meconium sample obtained from Sahara was positive for marijuana, amphetamines and methamphetamines. Sahara showed symptoms of drug withdrawal. Sahara’s doctor expressed concerned about Fetal Alcohol Syndrome and failure to thrive, based on Sahara’s development.
Mother maintained the meconium test should not have been done since she did not consent to it. She also claimed the results were falsely positive or “doctored” somehow.
The parents consistently attended supervised visits with their children, which went well. The children appeared bonded to their parents and enjoyed spending time with them. During those visits, father told Meadow that the drug test was a lie and that she would be home in 25 days because everything was a lie.
While living in her foster home, Meadow then reported domestic violence and substance abuse in the home. Meadow stated that, “her father throws her mother down on the couch, on the bed, and against the wall when he is angry, and that this has occurred on multiple occasions.” She also reported her parents “yell at each other, scratch each other, and call each other names such as ‘Bitch,’ and that her mother cries sometimes because she is hurt.” These altercations had occurred within the last year. She and Noah are present during these fights and are upset by them. Meadow has told Noah to hide so he would not be hurt, and stood between her parents telling them to stop fighting.
Meadow also reported that drugs are “weed.” She stated her father and his friends smoke “weed” in the house when she is at home, and sometimes mother smokes as well. She reported “a lot of people come to their home and ‘do like dad does and smoke[] like dad.’”
The parents were informed of Meadow’s statements and denied them. During a subsequent supervised visit, father questioned Meadow about her statements. The parents also told Meadow not to talk to the people that keep her and Noah “safe,” because the parents wanted her to come home.
At the jurisdictional hearing, Meadow testified. In her testimony, she described what “weed” is and what it looks like. She testified mother and father smoked “weed” out of a medium sized white pipe. She testified father’s friends come over and smoke out of the pipe also. They smoke in the family room with the door shut, while she is in the living room. She testified they smoked “most days.” Mother denied smoking anything in the house, and believed Meadow was coerced by the social worker into making these statements.
Meadow also described her parents fighting. She testified they yelled at each other and her father hit her mother. She and her brother were present when these fights happened and Meadow told Noah to hide in her Barbie tent. This occurred when she was four years old. Father acknowledged the children hid in the Barbie tent when he and mother would fight and that Meadow had gotten between them during fights. He denied ever hitting his wife and claimed that someone was influencing her to make false statements.
Meadow turned four on August 7, 2005. The hearing took place on November 3, 2006.
The social worker testified that Meadow appeared to be “mimicking domestic violence incidents she had seen in the home of her parents.” Specifically, Meadow would start fighting with another foster child in the home and then want to sit on the couch with her arm around him, immediately following the fight. The foster mother noted this is typically what Meadow will do after a fight with another foster child. It appeared to the foster mother that Meadow was trying to make up with the other child.
Based on Meadow’s statements regarding domestic violence, the petition was amended to include allegations that for the past year mother and father engaged in domestic violence in the presence of the children.
The court found the substance abuse allegations for both parents true and the domestic violence allegations true. The court expressly found Meadow’s testimony convincing and did not believe she had been coerced into making statements. In making its jurisdictional finding, the court also relied on the meconium test results and Sahara’s symptoms consistent with drug withdrawal, mother’s refusal to give lab tests at her prenatal visits, the parents’ history of drug abuse and mother’s refusal to allow a urine sample to be taken from Sahara.
At the dispositional hearing, the court found the bypass provisions of section 361.5, subdivision (b)(13) applied to mother and section 361.5, subdivisions (b)(10) and (b)(13) applied to father. The court then preliminarily found “by an admittedly close call” that offering reunification services to the parents was in the children’s best interests. The main basis for this finding was Meadow’s testimony and demeanor. The court also relied on the July 25, 2006 report of DHHS, which indicated offering services was in the children’s best interests, as the “parents had previously evidenced an ability to benefit from services and comply with court orders.” Although, the court noted that was more accurate relative to mother than to father.
Under section 361.5, subdivision (b)(13) reunification services need not be provided if the court finds by clear and convincing evidence, “[t]hat the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.” (§ 361.5, subd. (b)(13).)
Under section 361.5, subdivision (b)(10) reunification services need not be provided if the court finds by clear and convincing evidence, “[t]hat the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian.” (§ 361.5, subd. (b)(10).)
Mother immediately indicated her willingness to participate in drug court. Father indicated he would not be willing to participate in any drug court program. The court allowed father the opportunity to speak further with his attorney, and advised father that it could not “in good conscious [sic] say you get services under th[e] circumstances. . . . That’s the ruling for right now. Services for the mom, not for the dad.”
Father reaffirmed his unwillingness to comply with any drug programs, voluntary or involuntary. He indicated he was willing to drug test, but could not “subject [himself] to going through all that it’s requiring.” The court then ruled it had reconsidered and did not find by clear and convincing evidence that it would be in the children’s best interest to provide services. The denial was based on the finding it would be fruitless to offer these services to father.
DISCUSSION
I.
Substantial Evidence Supports the Jurisdictional Finding
Father appeals and contends the jurisdictional order as to Meadow and Noah is not supported by substantial evidence. Specifically, father argues there was no evidence that parental drug use or domestic violence harmed or posed any specific threat to Noah and Meadow’s health and safety. We disagree.
Our review of the sufficiency of the evidence is limited to whether the judgment is supported by substantial evidence. “Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.) Appellants have the burden of proving the evidence was insufficient to sustain the juvenile court’s findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Subdivision (b) of section 300 provides for jurisdiction where “[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 . . . to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, . . .” (§ 300, subd. (b).)
Jurisdiction may be upheld if the evidence supports one of several grounds on which the juvenile court relied, even though the evidence may be insufficient to support all of the grounds relied on by the court. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record supports the juvenile court’s jurisdictional findings under section 300, subdivision (b).
“[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the minors] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) When children are present in the home during incidents of domestic violence, “[o]bviously the children [are] put in a position of physical danger from this violence . . . .” (Id. at pp. 193-194.) “Both common sense and expert opinion indicate spousal abuse is detrimental to children.” (In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.) Furthermore, domestic violence impacts children, even if they are not the ones being physically hurt, “because they see and hear the violence and the screaming.” (In re Heather A., supra, at p. 192; see also In re Jon N. (1986) 179 Cal.App.3d 156, 161.)
Father argues there was not substantial evidence supporting the domestic violence allegation, because Meadow’s testimony did not corroborate the statements given to the social worker. We disagree with his construction of the record.
Meadow’s testimony was corroborative of her statements to the social worker. She continued to maintain that her father hit her mother and that she got in between her parents when they fought and told Noah to hide when her parents fought so he would not be hurt. Father confirmed in his testimony that there was domestic violence in the house, although he denied being the perpetrator. He also affirmed that Meadow got between him and mother when they fought and that Noah and Meadow hid in the Barbie tent during at least one of their fights. In addition, the social worker and foster mother testified that Meadow was mimicking domestic violence behavior she had seen in her home in her interactions with other foster children she lived with. This is substantial evidence of domestic violence in the children’s presence and supports the court’s jurisdictional finding.
We also note that Meadow’s testimony was taken after father questioned her about these statements at a visit.
In addition to the domestic violence allegations, there were allegations of substance abuse. The Legislature has determined “[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.)
Here, the evidence showed the parents had a lengthy history of drug abuse, including both marijuana and methamphetamine. Mother had delivered three children, each of which tested positive at birth for drugs. Both parents regularly smoked marijuana in the home when the children were present and exposed their children to “a lot” of father’s drug using friends on an almost daily basis. Meadow was aware of the drug use and exposed to it sufficiently that she could describe what “weed” looked like, the manner in which it was consumed and the paraphernalia associated with its use. The parents were apparently willing to put the health of their unborn child, Sahara, at risk in an effort to avoid mother’s drug use being detected, by delaying prenatal care until one month before Sahara’s birth, refusing urine samples and lab tests during prenatal exams, failing to call the ambulance until well into mother’s labor and refusing tests for Sahara once she was born. The juvenile court reasonably could infer from these facts, that the parents’ pattern of abuse of illegal drugs interfered with their ability to provide proper care for the minors, and that their conduct placed the minors at a substantial risk of suffering serious physical harm. Accordingly, there was substantial evidence supporting the jurisdictional finding.
Even mother acknowledged that having Sahara at home was a serious risk.
II.
Substantial Evidence Supports the Order of Removal
Father next contends there was insufficient evidence to support the order removing Meadow and Noah from his custody. Again, we are not persuaded.
To support an order removing a child from parental custody, the court must find clear and convincing evidence “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the . . . parent’s . . . physical custody.” (§ 361, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor[.]” (§ 361, subd. (d).) “The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in In re Renee J. (2001) 26 Cal.4th 735, 749, fn. 6.)
Again, removal findings are reviewed under the substantial evidence test set forth above, drawing all reasonable inferences to support the findings and noting that issues of credibility are matters for the trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
We have already concluded there was substantial evidence to support the juvenile court’s jurisdictional finding that there existed a substantial risk to the children in father’s care. We reach a similar conclusion with regard to removal of the minors.
Father argues that parental drug use, without more, is insufficient to support a removal order. This argument ignores the reality of the evidence in this case.
There was not only evidence of parental drug use. There was evidence that the children were aware of and exposed to the drug use and the drugs and paraphernalia associated with using such drugs. While Meadow testified she did not know where the marijuana was kept, she was able to describe what marijuana looked like, that it was smoked like cigarettes or out of a pipe and to describe the pipe used. All of this demonstrates the children were witnesses to their parent’s drug use. It also demonstrates that the drugs and paraphernalia were in places to which the children had access to the drugs. There was also evidence of other drug users coming to the home to join the parents in their drug use.
In addition to the evidence of drug use which put the children at risk, there was evidence of domestic violence in their presence. Domestic violence in the same household as children creates a substantial risk that the child will suffer serious harm and supports removal of the minor. (See, e.g., In re Heather A., supra, 52 Cal.App.4th at pp. 194-196.)
Nothing in the record suggests that there are any in-home services available to mitigate the risk to the children. To the contrary, the parents have continued to deny any substance abuse problems and either refused to participate in voluntary services or continued their drug abuse. Neither parent took any steps to address the issues which put the children at risk. In light of the parents’ complete failure to comply with voluntary services, the juvenile court’s removal order is supported by substantial evidence.
III.
The Court Did Not Abuse its Discretion in Denying
Father Reunification Services
Father’s final contention is that the trial court abused its discretion in not ordering reunification services after finding that reunification services were in the children’s best interests under section 361.5, subdivision (c). We disagree. Father does not challenge the findings under section 361.5, subdivisions (b)(10) and (b)(13).
The Legislature has determined that, in some situations, parents are not entitled to reunification services. Section 361.5, subdivision (b) lists those circumstances. However, subdivision (c) also states that the court may provide services where, “based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child. [¶] The failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent’s behavior is unlikely to be changed by services are among the factors indicating that reunification services are unlikely to be successful. The fact that a parent or guardian is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse.”
As section 361.5, subdivision (c) makes clear, services may be provided if the juvenile court finds either that services are likely to prevent further abuse or that due to the bond existing between parent and minor, denial of services will be detrimental to the minor. In this case, the juvenile court found the services were fruitless, that is they were not likely to prevent further abuse.
Initially, in the July 25, 2006 report, the social worker recommended the parents be offered reunification services believing such services to be in the best interests of the children, although it was noted that the parents were not entitled to such services. The social worker noted, “[t]he parents [have] previously evidenced an ability to benefit from services and comply with Court orders. The children appear bonded to their parents during the visits, and they appear to enjoy spending time with their parents.” The parents were offered a variety of voluntary programs. They chose not to participate in those services.
By October 18, 2006, the social worker changed her mind. She determined, “[b]ased on the parents’ lack of participation in services since the inception of the case in June of 2006, the father’s failure to follow Court orders regarding the content of his conversations during the supervised visits, the parents’ ongoing denial regarding domestic violence and substance abuse and the risk their behaviors pose to the children, the failure of the parents to benefit from past participation in services, and the negative impact of the parents’ behaviors on the children as evidenced by Sahara’s positive drug tests and the statements and behaviors by the children, Noah and Meadow,” it was not in the best interests of the children to offer reunification services.
The court found the initial social worker’s report more persuasive. Specifically, the court noted, “[t]he main factor which was in both recommendations was the failure of the parents to take advantage of voluntary services since detention. The parents’ refusal to participate so far puts them behind and makes this a close case, but there is enough time to make substantive progress before the next hearing.”
The court believed it was a close call but, assuming both parents were willing to participate in reunification services, preliminarily found that providing services would likely prevent further abuse and be in the children’s best interests. The court then stated, “before I go through that . . . are [the parents] going to participate in drug court?” Mother immediately stated she would, if that was what was required. Father, however, indicated he would not participate in any drug program. He stated he was willing to drug test, but nothing more, because he could not “subject [himself] to going through all that it’s requiring.” The court noted then that it would not find by clear and convincing evidence that it would be in the children’s best interests to provide services to father, the court stated, “[i]t would be silly for me to, under the present circumstances, to find by clear and convincing evidence that it’s in the best interest to provide you services. I can tell -- I heard you say, you said it loud enough where I could hear it -- you said you wouldn’t sign anything. That sounds like what you’re saying now. You’re not going to follow court orders. . . . I can’t in good conscious [sic] say you get services under these circumstances.” The court, however, deferred a final ruling on services until father had the opportunity to discuss the matter with his attorney.
After having time to discuss the matter fully with his attorney, father persisted in his position that he would not enter either a voluntary or involuntary drug program. The court appropriately considered this in reaching its final determination as to reunification services for father and did not find by clear and convincing evidence that it was in the best interest of the children to provide reunification services for father, because it would be fruitless to offer services under the circumstances.
Contrary to father’s claim, this was not an abuse of discretion. It is clear from the record that the court’s initial statements regarding reunification services were preliminary in nature. After sharing its initial thoughts on services, the court requested additional input from the parents. Based in part on this input, the court determined it was not in the children’s best interests to offer services to father.
“Reunification services are voluntary, . . . and an unwilling or indifferent parent cannot be forced to comply with them.” (In re Mario C. (1990) 226 Cal.App.3d 599, 604.) Given father’s complete denial of any substance abuse problem, his previous failure to complete reunification services, his unwillingness to participate in voluntary services and his self-proclaimed refusal to participate in any further services the juvenile court could find, as it did, that providing reunification services to father would be unlikely to prevent further abuse.
DISPOSITION
The court’s orders are affirmed.
We concur: SCOTLAND, P.J., HULL, J.