Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Ct. No. EJ2518B, Gary M. Bubis, Judge. Affirmed.
BENKE, Acting P. J.
Sheila L. and Charles L. (together, the parents) appeal a judgment declaring their minor son, Spencer L., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing him from their custody. The parents challenge the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court alleging one-year-old Spencer was at risk of serious physical harm because Sheila continued to abuse drugs despite participating in the Substance Abuse Recovery Management System program; the parents had not complied with their case plans in the dependency proceeding for Spencer's six-year-old sister, S.L.; the parents refused to participate in two voluntary service plans on behalf of Spencer; and Charles was unable to protect Spencer because he left him in Sheila's care when he should have known Sheila was using drugs. The court detained Spencer in out-of-home care.
Although S.L. is not a subject of this appeal, she was removed from the parents' custody in 2004 based on findings of emotional abuse. S.L.'s dependency proceeding was initiated because Charles was arrested for child endangerment and spousal abuse when he held a knife to his neck, threatened to kill himself while holding S.L., and after releasing S.L. to police officers, he cut his neck three times.
Sheila had a lengthy history of substance abuse, including marijuana, cocaine, Vicodin, crystal methamphetamine and heroin. Despite participating in several drug treatment programs, she chronically relapsed. She believed her relapses were part of her recovery and minimized the risks her drug use had on her children. Charles had a history of using crack cocaine, but had been clean and sober for four years. Several months before Spencer's dependency petition was filed, Charles signed an agreement with Agency that he would not leave the children alone with Sheila, and he would have Sheila leave the family home and not allow her to care for the children if she appeared to be under the influence of drugs. However, Charles violated this "safety plan" several times by allowing Sheila to remain in the home even though she continued to test positive for drugs. He was unable to identify any signs of Sheila's relapse and did not take steps to protect the children.
Although Charles knew Sheila was unstable in her recovery, he often left the children with her while he went to a casino to gamble or watch sports on television. He claimed he was not aware of Sheila's drug use. However, Charles noticed that Sheila slept a lot during the day, went to a drug treatment program in the evening, came home and stayed up late. Sheila was too tired to get up in the morning and left the children's care to Charles. This pattern was unusual because Sheila did most of the parenting when she was clean and sober.
After Spencer was removed, Sheila entered a residential drug treatment program. Agency considered placing Spencer with Charles, but declined to do so because Charles had been evicted and did not have appropriate housing. Also, Charles took no responsibility for the children's removal. Although Agency had provided the parents with almost 36 months of services, neither had acquired the skills necessary to safely parent their children.
At a contested jurisdiction and disposition hearing, social worker Holly Kolerich testified she considered placing one of the children with Sheila in her residential drug treatment facility, but declined to do so because this was Sheila's fourth attempt at drug rehabilitation. Sheila admitted she chronically relapsed and "faked" her way through previous drug treatment programs. She needed to show she was stable in her sobriety before the children could be placed with her. She also needed to develop a relapse prevention plan and take responsibility for the removal of her children.
Kolerich further testified that after Sheila relapsed, Charles allowed her to remain in the home with the children in violation of the safety plan. Even if Charles had an appropriate home for the children, Kolerich would not place the children there because Charles had been unable to recognize the signs of Sheila's relapse and therefore could not protect the children from her drug abuse. Further, Charles had not complied with his case plan, which included attending Gamblers Anonymous and Narcotics Anonymous meetings and participating in a 12-Step program. Before the children could be returned to Charles, he needed to recognize the signs of drug relapse, take responsibility for his role in the children's removal and obtain a stable residence.
Sheila testified she agreed to participate in a residential drug treatment program in order to address her three-year addiction to Vicodin. She had not used drugs for 60 days. Sheila claimed her prescription medications caused her to stay awake until midnight, but she was able to get up in the morning to get S.L. ready for school. Sheila said Charles did not know she had relapsed because she was able to hide her drug use from him.
Charles testified that Sheila did not appear to be under the influence of drugs when she stayed up late and slept late the next morning. Sheila told him this pattern was caused by a change in her prescription medications. Charles denied having an addiction to gambling.
After considering the evidence and hearing argument of counsel, the court sustained the allegations of the petition, declared Spencer a dependent, removed him from parental custody and placed him in foster care. The court found Agency had made reasonable efforts to prevent the need for Spencer's removal and there were no reasonable means to protect Spencer without removing him from the parents' custody.
DISCUSSION
I
Charles challenges the sufficiency of the evidence to support the court's jurisdictional findings. He contends: (1) he did not know, and could not reasonably have known, about Sheila's ongoing drug abuse; and (2) at the time of the jurisdiction hearing, there was no evidence Spencer was at substantial risk of future serious physical harm based on Charles's earlier conduct. Sheila joins in this argument.
A
In reviewing the sufficiency of the evidence on appeal, we examine the entire record for substantial evidence to support the findings of the juvenile court. We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or reweigh the evidence. Rather, we draw all reasonable inferences in support of the juvenile court's findings, view the record favorably to the court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's inability to provide regular care because of the parent's substance abuse. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2, italics added.) The Legislature has emphasized that a child's well-being depends on a "home environment free from the negative effects of substance abuse . . . ." (Ibid.) In this regard, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)
The court may consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
B
Here, the evidence amply supported a finding Spencer was at risk of substantial physical harm or illness as a result of Sheila's drug abuse. Sheila admittedly has used drugs for many years. She unsuccessfully tried four times to treat her drug addiction and recently recognized her need for a residential treatment program. Sheila's pattern of relapsing and minimizing the risks inherent in drug use permits a reasonable inference this behavior will continue in the future without juvenile court intervention. (In re Jennifer P. (1985) 174 Cal.App.3d 322, 326.)
The evidence also supported a finding Charles failed to recognize when Sheila was using drugs, thus placing one-year-old Spencer at risk of harm. Even after Sheila tested positive for drugs on several occasions, Charles allowed her to remain in the family home and often left the children in her care. He was unable to identify signs of Sheila's relapse even though he was aware of her changed behavior. From this evidence, the court could reasonably find Charles knew or should have known about Sheila's continued drug use. Substantial evidence supports the court's jurisdictional finding Spencer was currently at risk of harm as a result of Sheila's substance abuse and Charles's failure to adequately supervise or protect Spencer.
II
The parents challenge the sufficiency of the evidence to support the court's dispositional order. Sheila contends the court should have placed Spencer with her in the residential drug treatment facility. Charles contends there was no evidence that removing Spencer from his custody was necessary to protect him from harm, and the court should have considered alternatives less drastic than removal.
A
Before the court may order a child physically removed from a parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous, and the child 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., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., at p. 1654.)
B
Here, the court removed Spencer from the parents' custody because the evidence showed Sheila continued to abuse drugs and Charles was unable to protect Spencer. Thus, Spencer was at substantial risk of harm if returned to either parent. The evidence further showed there were no reasonable means by which Spencer could be protected without removal from the parents' custody.
Sheila had received nearly three years of services, participated in four drug rehabilitation programs, manipulated the system and chronically relapsed. She minimized the effects of her drug use on her children. At the time of the disposition hearing, Sheila had been in residential treatment for only six weeks and expected to be there for another eight to 10 months. She required intensive therapy and treatment to address her long-standing addiction. In the social worker's opinion, Sheila needed to show stability in her sobriety, develop a relapse prevention plan and take responsibility for the removal of her children before Spencer could safely be returned to her custody. From this, the court could reasonably find placing Spencer with Sheila in her drug rehabilitation program was not a feasible alternative.
The evidence also supported a finding Spencer would be at risk of harm if returned to Charles's custody. Charles had been unable to protect Spencer from Sheila's drug use. He ignored the signs of Sheila's relapse and allowed her to care for the children after promising he would not do so. Charles took no responsibility for his role in the children's removal and made no effort to eliminate the problems that existed at the time Spencer was detained. The social worker believed Charles needed to learn to recognize the signs of drug relapse before Spencer could be safely returned to his care.
Charles asserts the court alternatively could have placed Spencer with him under Agency's supervision. However, Charles had not complied with his case plan in S.L.'s dependency proceeding, and he refused to participate in two voluntary service plans on behalf of Spencer. The court properly found there were no reasonable alternatives to removal. Substantial evidence supports the court's dispositional order.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., O'ROURKE, J.