Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) No. DP017336
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
RYLAARSDAM, ACTING P. J.
R.W., father of S.C. (the child), born in November 2002, appeals from a dispositional order entered after the juvenile court declared the child a dependent. (Welf. & Inst. Code, §§ 300 & 395, all further statutory references are to the Welfare and Institutions Code; In re Daniel K. (1998) 61 Cal.App.4th 661, 667 [“In a section 300 proceeding, the order entered at the dispositional hearing is a final judgment”].) Father challenges the sufficiency of the evidence to supporting both the court’s jurisdictional finding and the portion of its subsequent dispositional order maintaining the child in the custody of the Orange County Social Services Agency (SSA). Since the evidence supports the juvenile court’s rulings, we shall affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Both of the child’s parents have long criminal records which involved drug use. The child’s mother, A.M., had five other children all of whom had previously been declared dependents of the juvenile court.
In September 2007, SSA received a report alleging potential physical abuse and general neglect of the child. After investigation, SSA determined the physical abuse claim was unfounded while the neglect allegation was inconclusive. But the child did report seeing her parents “smoking ‘white crumbs in a cigarette and weed’....” Father voluntarily participated in parenting classes, which he completed in March 2008.
Sometime between that month and May 2008, father, who had custody of the child but was living in a homeless shelter, agreed to place the child in the care of Z.M., an acquaintance, while he looked for work and permanent housing. Mother’s whereabouts were unknown. Father and Z.M. had known each other for about 20 years. Z.M. also had an extensive criminal record, including drug-related offenses, and had her parental rights to two children terminated in prior dependency proceedings.
On July 30, 2008, SSA took the child into protective custody after Z.M. contacted the agency and complained father refused to cooperate in supporting the child. SSA filed a petition seeking to have the child declared a dependent on grounds that included failure to protect. (§ 300, subd. (b).) The child was placed in a foster home.
Z.M. told a social worker she believed father abused drugs, particularly cocaine. She claimed that, after leaving the child in her care, father only saw her when he needed her for some reason, such as attending a welfare office appointment. On another occasion the child had a fever, but father refused to give Z.M. her medical card. He eventually took the child to the doctor himself. Z.M. denied father visited the child, kept in contact by telephone, or provided food stamps. After father did find work, Z.M. asked him for some money. He refused, calling her request “extortion.”
School records showed the child attended kindergarten at a Santa Ana school between October 2007 and February 2008 with 7 absences. Between mid-February and mid-April, she attended a Garden Grove school and had 3 absences. Z.M. claimed that, once in her care, the child no longer attended school because father refused to cooperate in enrolling her. An assessment Z.M. obtained from a third school district concluded the child was not prepared for first grade and should repeat kindergarten.
When interviewed by the social worker and in his testimony at the jurisdictional hearing, father disputed the foregoing claims. He claimed he gave Z.M. $300 in food stamps and brought her groceries. Father also said he spent time with the child on weekends and spoke with her by telephone every day, and that Z.M. Frequently brought the child to his workplace. Through Z.M.’s ex-husband, the social worker was able to verify father did visit the child once in June and that Z.M. brought the child to father’s work on one other occasion.
At the jurisdictional hearing, father denied knowing about Z.M.’s criminal history and the loss of two children in prior dependency proceedings. But the social worker testified father admitted knowing about Z.M.’s prior involvement in the juvenile dependency system and that he claimed to have seen her at a location called “Crack Alley” where illegal drug sales frequently occur.
Father denied having a substance abuse problem, claiming he had only used marijuana 25 years ago. But he admitted having a criminal record that included drug-related charges such as possession of both cocaine and drug paraphernalia. Father claimed that, on each occasion, the contraband belonged to someone else.
When contacted after the detention hearing, father initially refused to participate in any services, including drug testing. Eventually, he grudgingly agreed to participate, but did so sporadically. Father completed a parenting class, but was dropped from therapy for nonattendance and was denied acceptance into a substance abuse treatment program because he refused to admit having a drug problem. As for drug testing, father missed the first 10 scheduled testing dates. Once he began to test in November, he continued to miss some tests. Of the random drug tests father did perform, three resulted in positive findings for cocaine use while a fourth test was rejected because the number on the specimen container did not match the number on the paperwork. Father claimed mistakes by the testing facility caused the positive results.
DISCUSSION
1. The Jurisdictional Ruling
As to father, the juvenile court declared the child to be a dependent, finding under section 300, subdivision (b) that, by leaving “the child in the care of an unrelated caretaker without... support” and rejecting the caretaker’s request for financial assistance, he “failed to [either] provide the child with shelter, food, education and supervision” or “ensure that the child’s day to day needs were being met,” and that “his ability to effectively parent the child” was “impair[ed]” by his unresolved substance abuse. Arguing his situation is the result of economic conditions, not drug abuse, and challenging the credibility of Z.M., father claims the evidence fails to support the juvenile court’s jurisdictional findings. The juvenile court’s decision is supported by the record.
Section 300, subdivision (b) declares a child may be declared “a dependent child of the court” 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 the willful or negligent failure of the child’s parent... to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s... substance abuse.” As the juvenile court acknowledged, this subdivision “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.)
“We review the juvenile court’s jurisdictional findings” under the substantial evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 828.) “On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; see also In re David M., supra, 134 Cal.4th at p. 828 [“we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible”].)
Father left the child with a woman who he admitted knowing had already lost two children through dependency proceedings. Although father did not acknowledge being aware of Z.M.’s criminal record, given the length of their relationship and the extent of her criminal activity, it is unlikely he was completely ignorant of it. In fact, father claimed to have seen Z.M. in an area known for illegal drug sales.
According to the social worker’s reports, father failed to provide any support for the child and rarely saw or had contact with her after leaving her with Z.M. The social worker reported that Z.M. claimed father even accused her of attempting to extort money when, after he found work, she asked for financial assistance. In response, father attacks the credibility of Z.M. But these facts were derived from the social worker’s testimony and her reports which the court found “were more accurate.” In contrast, the court expressly questioned the credibility of father’s testimony. “The court was entitled to find the social worker’s opinion credible and give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 918; see also In re Heather A. (1996) 52 Cal.App.4th 183, 193 [under the substantial evidence doctrine “issues of fact and credibility are the province of the trial court”].) Thus, father’s attack on the credibility of the evidence contradicting him lacks merit.
The same is true for the finding that father’s condition was the result of his unresolved substance abuse, not some prior work-related injury or mere inability to find steady employment. Father’s criminal record included arrests for possession of drugs and drug paraphernalia. The mere fact he claimed the contraband seized during the arrests belonged to someone else did not mean the juvenile court was obligated to discount his criminal record. The same is true for father’s inconsistent drug testing, which included numerous missed tests and three positive tests for cocaine.
Finally, father challenges the finding he failed to provide for the child’s education, claiming it was not mandatory that she attend school before first grade. While that may be true, the parents enrolled her in kindergarten. Furthermore, because she missed four months of schooling during the year, an assessment determined she would have to repeat it before going to first grade. Thus, the evidence supports the juvenile court’s conclusion father failed to adequately provide for the child’s education.
As a result, father’s attack on the sufficiency of the evidence to support the juvenile court’s jurisdictional finding lacks merit.
2. The Dispositional Ruling
Next, father attacks the portion of the juvenile court’s dispositional order maintaining the child in an out-of-home placement. He argues the record lacks clear and convincing evidence to support this portion of the order or the finding there were no reasonable means of protecting the child absent her removal from his custody. This contention lacks merit as well.
To support removing a child from a parent’s physical custody, a court “must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. [Citations.] The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. [Citation.] The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C., supra, 174 Cal.App.4th at p. 917.)
As with evidentiary challenges to a juvenile court’s jurisdictional ruling, “the ‘substantial evidence’ test is the appropriate standard of review for... dispositional findings. [Citations.]” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Thus, “we review the record in the light most favorable to the dependency court’s order to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence. [Citation.]” (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
The appellate record supports the juvenile court’s custody order. Even after completing a parenting class, father left the minor with a person he knew was not an appropriate caretaker or without making any attempt to determine if she could properly care for the child. The evidence also supports a finding that, after leaving the child in Z.M.’s care, father made no attempt to provide support for the child even though he had the means to do so, and rarely saw or called the child to check on her circumstances. Furthermore, the juvenile court could conclude father’s actions resulted from his unresolved substance abuse.
While given the chance to correct his errors during the extensive delay between the initial detention hearing and the jurisdictional and dispositional hearings, father either resisted opportunities offered to him or grudgingly participated. His drug testing included not only three positive results for cocaine use, but numerous missed tests. He was dropped from a counseling program for failing to attend therapy sessions. Because he refused to admit his drug use, father was precluded from participating in a substance abuse treatment program. According to the social worker’s report for the dispositional hearing, father was again unemployed and “living in a homeless shelter that does not accept children,... without any source of income.” The social worker also noted “the frequency of his visits [with the child] has... declined” with only one visit “in the last month....”
Father’s reliance on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 and In re G.S.R. (2008) 159 Cal.App.4th 1202 lacks merit. Jennifer A. concerned an order terminating reunification services and the scheduling of a permanency planning hearing under section 366.26 where the parent had substantially complied with her reunification plan. Furthermore, the drug use involved in that case, marijuana, had not been the basis for the dependency proceeding. In re G.S.R. held the juvenile court violated a nonoffending father’s right to due process when it terminated his parental rights even though there had been “no judicial finding of a lack of parental fitness” (In re G.S.R., supra, 159 Cal.App.4th at p. 1211) and “[t]he record strongly suggests the only reason [the father] did not obtain custody of the boys was his inability to obtain suitable housing for financial reasons.” (Id. at p. 1212, fn. omitted.) Finally, given father’s ongoing drug problem, lack of an income source, and residence in shelter prohibiting children, the record also supports a conclusion “there are no reasonable means” to protect the child “without removing [her] from [her] parent’s... physical custody.” (§ 361, subd. (c)(1).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.