Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. No. SJ11783A/B.
IRION, J.
M.L. appeals orders declaring her minor children, S.S. and J.S. (together minors) dependents of the juvenile court under Welfare and Institutions Code sections 300, subdivision (b) and removing them from her custody under section 361, subdivision (c)(1). M.L. challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. We affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2007, the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court on behalf of six-year-old S.S. and two-year-old J.S. under section 300, subdivision (b), alleging the minors were at risk of suffering substantial harm. As alleged in the petitions, drug enforcement agents conducted a search of M.L.'s home and found illegal drugs within reach of the minors. Specifically, the police found J.S. walking around in the home holding a plastic baggie containing methamphetamine.
According to the Agency's detention report, social worker Shawn Frank interviewed S.S. on at least two occasions and learned that M.L. abused drugs while he and J.S. were in the home. S.S. told Mr. Frank that M.L. would smoke cigarettes and "do drugs." When asked what kinds of drugs M.L. abused, S.S. said M.L. would place some "white powder" into a "rectangular thing" and then sniff the powder into her nose. He said the last time she abused drugs was about two days before the police raid. S.S. reported that M.L. and her friends would smoke "black stuff" and "get high" with two of her friends. Concerning violence in the home, S.S. claimed M.L. did not beat him but that she did hit with a belt "the other night." He also described a second incident of violence where his mother "smashed" a brick into another woman's head.
Mr. Frank met with M.L. to discuss her involvement with illegal substances and questionable individuals using drugs. M.L. claimed she had not abused drugs since high school. She admitted to smoking marijuana in the past and that she occasionally drank alcohol. She denied having a violent past but did admit to being arrested in late 2006 for attempting to engage in prostitution. When Mr. Frank questioned her about the details surrounding the police search of her home and how J.S. came into contact with the bag of methamphetamine, she claimed the drugs were not hers and instead belonged to her cousin's friend, Tiffany. Tiffany had left her purse in the hallway and J.S. retrieved the methamphetamine from the purse.
The court held a detention hearing, made a true finding on the petition and detained the minors. The court ordered that M.L. participate with her case plan, including the Substance Abuse Recovery Management System (SARMS) program.
In the jurisdiction and disposition report, the Agency recommended the minors be removed from M.L.'s custody. M.L. did not have a clear understanding of the risk the minors faced by having questionable individuals frequent the home. M.L. denied that her children were at any risk and did not acknowledge the immediate and long-term threat that drugs posed to the minors' overall health and safety. In addition, M.L. maintained an uncooperative attitude toward social workers. Situations arose where M.L. would become hostile and angry with social workers and at times, she used inappropriate language.
The social worker believed M.L. needed to participate in reunification services and learn to appreciate the danger her children faced because of her actions and alleged drug use. M.L. had been provided referrals for services and was in the process of being offered supervised visits with the minors.
At the contested jurisdiction and disposition hearing, Mr. Frank provided testimony concerning the degree of risk the minors faced were they to be returned to M.L.'s custody at this stage in the proceedings. Mr. Frank opined the minors would be at "high" risk for several reasons. First, M.L. failed to accept responsibility for the drug incident in her home, and she continued to deny that minors were at any risk. M.L. instead blamed law enforcement for allowing her children to come into contact with the methamphetamine. Second, M.L. continued to live in the same apartment with the same roommates and had not taken any steps to mitigate the harm the children might face if exposed to methamphetamine. Mr. Frank attempted to explain to M.L. that methamphetamine can be absorbed by children through their skiN.M.L. did not appear to grasp the severity of this risk. Mr. Frank also considered S.S.'s statements in making his risk assessment. Mr. Frank believed S.S.'s repeated statements recalling that he saw M.L. abuse drugs, sniffing white powders, and smoking "black stuff" to be very consistent and reliable.
Mr. Frank also expressed concerns regarding M.L.'s unpredictable behavior toward social workers. M.L. often acted extremely hostile and exhibited irrational behavior while communicating with social workers, and she appeared to be more concerned with her own interests instead of those of the minors. Mr. Frank did acknowledge, however, that the bag of methamphetamine found on the day of M.L.'s arrest did not belong to M.L. and that M.L. appeared to be sober at the time of her arrest. Mr. Frank believed that if M.L. participated in services and made progress, the minors could be returned to her care. He suggested M.L. actively participate in counseling, parenting classes, SARMS and a psychological evaluation to address her hostile behavior toward others.
M.L. testified at the hearing that the drugs found in her home did not belong to her. She admitted to becoming angry with the social worker but claimed she never yelled or used profanities. She believed the social worker was manipulative and did not want her to successfully reunify with the minors. M.L. did not understand why S.S. told social workers that she snorted drugs or got high. She denied that she smoked in the presence of the children and stated S.S. was just a child with a vivid imagination that said "crazy things."
After considering the testimony presented at the contested hearing and the evidence presented in the Agency's jurisdiction and disposition report, the court found by clear and convincing evidence that the petitions' allegations were true. The court further found it had jurisdiction and declared the minors dependents, removed them from M.L.'s care and placed them in foster care. The court expressed concern regarding M.L.'s inability to understand how she placed the minors at risk though her lifestyle and associations with other people. The court also noted that the Agency made reasonable efforts to prevent or eliminate the need for removal and ordered M.L. to comply with her case plan.
DISCUSSION
I.
Substantial Evidence Supports the Court's Jurisdictional Findings
M.L. contends the evidence was insufficient to support the court's findings under section 300, subdivision (b). She asserts there was no evidence the minors had already suffered, or were at risk of suffering, serious physical harm as a result of the presence of drugs in the home. She further asserts S.S.'s statements concerning her drug use in the home were not credible.
A.
Standard of Review
We review M.L.'s challenges to the court's jurisdiction and dispositional findings by looking at the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile 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.) When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B.
The Minors Required the Juvenile Court's Protection
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 failure to adequately supervise or protect the child or provide adequate medical treatment. 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.) 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.)
M.L. denied abusing drugs and claimed the last time she smoked marijuana and was several years ago. However, S.S. told social workers he had seen M.L. abuse drugs. He gave detailed explanations of M.L. smoking to get high and sniffing a white powder into her nose. In addition, at the time the police searched M.L.'s home, two-year-old J.S. was found carrying a plastic bag of methamphetamine. Even though the bag of methamphetamine did belong to a third party, M.L. failed to recognize the risk of harm these illegal substances could pose to the minors. Therefore, the minors continued to remain at risk from M.L.'s failure to provide "a home environment free from the negative effects of substance abuse . . . ." (§ 300.2.) Because of M.L.'s ongoing denial and S.S.'s statements, it was reasonable for the court to infer that in the future, she would allow other individuals to bring illegal substances into her home that could be accessible to the minors. The minors here are six and two years old. As the court in In re Rocco M. (1991) 1 Cal.App.4th 814 reasoned, leaving an illicit substance out in the presence of minors places them at risk because it may create an opportunity for the minors to ingest the drugs. (Id. at pp. 825-826.) Even without ingestion, the presence of drugs in the home was harmful as drugs could be absorbed through the skin.
Further, abusing drugs in the presence of the minors could result in a situation where M.L. neglected the minors, placing them at risk of harm because of her failure to adequately supervise and protect them. Similar to domestic violence, drug use in the presence of children constitutes neglect in that it is a failure to protect children from the substantial risk of exposure to illegal and dangerous substances. (See In re Heather A., supra, 52 Cal.App.4th at p. 194.) Neglect is also evident in an environment that condones and therefore promotes drug use. (See In re Rocco M., supra, 1 Cal.App.4th at p. 825.) By exposing the minors to the illegal use of controlled substances, M.L. was acting "in a fashion incompatible with parenthood." (See In re Carmaleta B. (1978) 21 Cal.3d 482, 489.)
M.L. also makes strong attempts to discredit S.S.'s credibility concerning his statements that he witnessed her abusing drugs. However, S.S.'s statements, M.L.'s failure to acknowledge the risks and the fact that J.S. was found carrying a baggie of methamphetamines provide sufficient evidence to support the court's jurisdictional findings. In any event, this court does not have the "power to judge the effect or value of the evidence . . . . Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Substantial evidence supports the court's finding the minors were at substantial risk of serious harm or illness by their exposure to drugs.
II.
Substantial Evidence Supports the Court's Dispositional Findings
M.L. contends the evidence did not support the court's dispositional order removing the minors from her custody. M.L. first argues the facts do not warrant removing the minors from her custody because the order was based on a single incident of drug exposure and there was no evidence that she suffered from a drug abuse problem. M.L. also argues the minors' removal was unnecessary because there were less drastic alternatives than removal available to the court.
A.
Standard of Review
Before the court may order a child physically removed from his or her parent, it 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. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that 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 for removal to be appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, 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.)
B.
The Minors Remained at Risk in M.L.'s Care
As discussed previously with respect to the court's jurisdictional findings, substantial evidence supports the court's finding that exposure to drugs and M.L.'s drug use placed the minors at substantial risk of harm. J.S. had been found in the home carrying a bag of methamphetamine. Further, although only one incident of drug exposure had been reported, S.S. reported that he saw M.L. abusing drugs on more than one occasion.
In addition to being exposed to drugs, the minors were at risk in M.L.'s care because she failed to understand that drugs posed an immediate threat to the children's overall health and well-being. She also did not fully understand that her association with individuals who used drugs in the children's living space could create situations that compromise their safety. The social worker reported the minors were not safe and remained at high risk until M.L. acknowledged the danger drugs posed to the minors' safety and health. The court was entitled to find the social worker's opinion credible and give great weight to his risk assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)
The court acknowledged M.L. for having a strong desire to be a good mother. Nevertheless, the court noted she needed to appreciate that she was placing the minors at risk by allowing them to grow up in a drug prone environment. Until that time, it was too soon to safely return the minors to her care. Substantial evidence supports the court's dispositional order removing the minors from M.L.'s care.
C.
The Court Did Not Err by Electing Not to Order Less Restrictive Alternatives
M.L. also challenges the dispositional order because the court did not consider alternatives less drastic than removal. She asserts the court should have allowed the minors to remain in her custody under supervision by social workers and warnings.
Before the court removes a child from parental custody, it must find there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. (c)(1).) Although the court is required to consider alternatives to removal, it has broad discretion in making a dispositional order. (§ 361, subd. (c)(1).)
M.L.'s argument fails because substantial evidence shows that the Agency made reasonable efforts to prevent the need for the minors' removal, but that such measures were not sufficient in the end to protect the minors. The Agency had offered M.L. referrals for services but M.L. did not enroll in services. She instead did not cooperate with social workers and declined to take steps to minimize the risk to the minors. Social worker Mr. Frank believed M.L. did not see the impact drug use could have on her parenting or the impact illegal activity could have on the minors. The social worker further stated the minors remained at risk because M.L. minimized the seriousness of the situation. The minors would not be safe in M.L.'s care without her accepting responsibility for exposing the minors to drugs and without receiving services. Thus, placing the minors in her care under the supervision of social workers and warnings was not a viable option. Under these circumstances, the evidence supports the juvenile court's finding that no reasonable means to protect the minors were available without removing S.S. and J.S. from M.L.'s custody. (See In re B.G., supra, 11 Cal.3d at pp. 698-699.)
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.