Opinion
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of San Diego County, No. EJ003275, Ronald F. Frazier, Judge.
McINTYRE, J.
Kevin R. appeals findings and orders adjudicating his son, Thomas R., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b). (Further statutory references are to the Welfare and Institutions Code.) He also appeals an order removing Thomas from his parental custody under section 361, subdivision (c)(1). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kevin is the father of Thomas R., who was born in August 2008. Thomas's mother, S.C., does not appeal. In August 2010 the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b), alleging Thomas had suffered, or there was a substantial risk he would suffer, serious physical harm or illness as a result of the presence of drugs and drug residue within his reach and his parents' history of substance abuse.
The juvenile court detained Thomas in protective custody and placed him with a paternal aunt. The Agency offered in-patient drug treatment, parenting education and counseling services to Kevin and S.C.
At the jurisdiction and disposition hearing on October 4 and 29, 2010, the court admitted the Agency's reports in evidence. The parties stipulated to Kevin's testimony. We review the evidence in the light most favorable to the judgment. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 582, citing Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
The social worker reported that in February 2010 Thomas was detained in protective custody because Kevin was too intoxicated to care for him, and the home in which they were staying was without gas or electricity. Thomas was returned to his mother's care the next day. A few weeks later, the Agency learned Thomas tested positive for methamphetamine. The Agency was unable to locate the family.
In July 2010 the Agency received a referral alleging S.C. attacked her roommate and was using methamphetamine. S.C. said she last used methamphetamine in January 2010. With S.C.'s permission, the police searched her bedroom and found a baggie containing methamphetamine residue, a baggie containing six Benadryl pills and an unknown pill. The baggies were in S.C.'s jewelry box, which was on a desk within Thomas's reach.
The day after Thomas was detained in protective custody, Kevin was charged with eight criminal offenses, including possession of burglary tools, possession of a controlled substance and drug paraphernalia, and the sale of a hypodermic needle/syringe without a permit. He acknowledged using methamphetamine. Kevin had a 20-year criminal history that included an eight-year prison sentence for assault with a deadly weapon, domestic violence and other offenses. He violated parole on drug charges.
The social worker believed that Kevin and S.C., who were in an on-again, off-again relationship, were still using drugs. Kevin was belligerent and irate with the social worker and his speech was often slurred. On six occasions Kevin said he would submit to a drug test but he did not attend any of the appointments. Kevin was reluctant to participate in drug treatment and said he did not have a drug problem.
The parties stipulated that if Kevin were to testify he would state he was not Thomas's sole caregiver in February 2010 and did not live at the home in which the drugs and drug residue were found. Kevin did not submit to drug testing because the court had not ordered him to do so.
The juvenile court sustained the petition under section 300, subdivision (b), and removed Thomas from parental custody. The juvenile court ordered the parents to participate in a substance abuse program and other services and submit to random drug tests.
DISCUSSION
Kevin contends the jurisdiction and disposition findings and orders are not supported by substantial evidence. He further argues Thomas should have been placed in his custody because he was a nonoffending parent.
A.
At the time of the jurisdiction hearing, the court considers only the question whether the child is described by one or more subdivisions in section 300. Under section 300, subdivision (b), the Agency must show that the parent's neglectful conduct has caused the child to suffer serious physical harm or illness, or creates a substantial risk that the child will suffer such harm or illness. (Cf. In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The Agency has the burden of proving by a preponderance of the evidence that a child is a person described by section 300. (§ 355, subd. (a).)
We review the trial court's findings to determine whether there is substantial evidence in the record that supports the findings. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the findings or orders. (In re Dakota H., 2005, 132 Cal.App.4th 212, 228.)
Kevin argues there is not sufficient evidence to support the jurisdictional findings because Thomas's positive test for methamphetamine in February 2010 was remote in time, and Thomas's mother was solely responsible for the conditions in the home. Kevin contends there is no evidence to show that Thomas suffered any serious harm as a result of his exposure to methamphetamine in February, or that the circumstances at the time of the jurisdictional hearing posed a substantial risk of serious physical harm or illness to Thomas. We reject Kevin's arguments.
The record contains ample evidence to support the findings that Thomas suffered, or was at substantial risk of suffering, serious harm because his parents did not provide him with a suitable home and had a history of drug use. In February 2010 Thomas was in Kevin's care for three weeks. Kevin was unable to care for his son because he was under the influence of drugs or alcohol. Contrary to Kevin's assertion there is no evidence he was using drugs, the record shows that Kevin had a 20-year history of substance abuse and he was still using methamphetamine in July 2010.
Kevin's contention there is no evidence to show that Thomas was harmed, or was at risk of harm, by his parents' history of drug use is wholly without merit. Thomas tested positive for methamphetamine in February 2010. The social worker stated methamphetamine exposure impacts a child's mental and physical condition and affects his or her well-being. The Legislature has found that the use of methamphetamine and other drugs in the home is contrary to a child's welfare. (§ 300.2 [the provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety and well-being of the child].)
"Exposure to alcohol, cocaine, methamphetamine, and PCP may produce signs and symptoms of intoxication. These signs and symptoms may include lethargy, vomiting, seizures, apnea, coma, and death." (Wells, Substance Abuse and Child Maltreatment (2009) 56 Pediatric Clinics of North America 345, 351, <http://pediatrics.uchicago.edu/chiefs/CPS/documents/4.PediatricsClinicsarticlesubstanceabuseandchildmalt.pdf> [as of June 20, 2011].) The social and emotional development of children of methamphetamine users is often at risk. "Long term risks may include developmental disorders, cognitive defects, learning disabilities, poor social adjustment and language deficits." (Young & Wurscher, Methamphetamine Use and the Impact on Child Welfare <http://www.ncsacw.samhsa.gov/files/508/CWLA_MethTeleconference. htm> [as of June 20, 2011] [presented at CWLA Methamphetamine Teleconference, Sept. 22, 2005].)
We draw all legitimate and reasonable inferences in support of the judgment. (Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 408.) Thomas was delayed in emotional development, coping behaviors and ability to communicate his needs to another person. He required behavioral interventions due to his self-injurious behaviors, aggression, feces spreading and language delays. The juvenile court could reasonably determine that Thomas had suffered, or was at substantial risk of suffering, serious harm as a result of his parents' history of ongoing substance abuse. We conclude that there is substantial evidence to support the jurisdictional findings and orders under section 300, subdivision (b).
B.
A dependent child may not be taken from the physical custody of the parent under section 361, unless the court finds there is clear and convincing evidence that there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical healthwithout removing the child. (§ 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
In reviewing the court's findings and orders under section 361, subdivision (c), we employ the substantial evidence test, bearing in mind, however, the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Kevin's argument he was entitled to custody of Thomas as a nonoffending parent is wholly without merit. Ignoring the standard of review on appeal, Kevin blames S.C. for the conditions of the home and attempts to relitigate the evidence. The record contains substantial evidence to support the finding that Kevin was also responsible for Thomas's unsuitable and unsafe home environment. The owner of the home reported that Kevin was living there. S.C. said Kevin visited the home regularly. Further, even if Kevin was a nonoffending parent within the meaning of section 361.2, subdivision (a), his drug use, criminal history, lack of suitable residence and Thomas's exposure to methamphetamine while in his care would constitute ample evidence of detriment, precluding Thomas's placement with Kevin.
In determining whether a child may be safely maintained in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; see In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044.) The court also considers whether there are any reasonable protective measures and services that can be put into place to prevent the child's removal from the parent's physical custody. (§ 361, subd. (c)(1); see §§ 202, subd. (a), 16500.5, 16501, 16501.1; 42 U.S.C. §§ 629, 629a).
Instead of mitigating the conditions that led to Thomas's detention in protective custody, Kevin responded to juvenile court intervention by using methamphetamine and incurring eight criminal charges. He denied he had a substance abuse problem, refused the Agency's offer of residential substance abuse treatment and avoided drug tests. Kevin's sister (and Thomas's caregiver) said Kevin had not made any changes in his lifestyle. He was unpredictable. Kevin's contact with Thomas vacillated between excessive telephone contact and total neglect.
The Legislative states, "[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. Successful participation in a treatment program for substance abuse may be considered in evaluating the home environment." (§ 300.2.) Here, Kevin made no effort to address his substance abuse problems. We conclude that there is substantial evidence to support the findings that there was, or would be, a substantial danger to Thomas's health, safety and well-being if returned home, and there were no reasonable means to protect Thomas's physical health without removing him from parental custody. (§ 361, subd. (c)(1).)
DISPOSITION
The findings and orders are affirmed.
WE CONCUR: NARES, Acting P. J., IRION, J.