Opinion
A147136
12-19-2016
In re O.C., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH & HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. 151727602)
Appellant D.F., mother of O.C. (the child), appeals from a December 10, 2015 dispositional order declaring the child a dependent of the court and removing the child from her custody. The appeal also brings up for review the juvenile court's findings that it had jurisdiction over the child pursuant to Welfare and Institutions Code, section 300, subdivision (b). Mother contends the record does not contain substantial evidence to support the juvenile court's jurisdictional findings and dispositional order. We disagree, and accordingly, affirm.
The child's biological father is not a party to this appeal.
All further unspecified statutory references are to the Welfare & Institutions Code. On appeal from a dispositional order, the jurisdictional findings can be reviewed. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249 ["[t]he parents have the right to challenge both the jurisdictional and dispositional findings and orders on appeal"]; see § 395.)
FACTUAL AND PROCEDURAL BACKGROUND
Because the child's father is not a party to this appeal, our recitation of the facts focuses primarily, if not exclusively, on mother's circumstances.
A. Section 300 Petitions
1. Detention Hearing
Mother was 20 years old when she gave birth to the child born January 2014. On August 15, 2015, when the child was 19 months old, respondent Mendocino County Health and Human Services Agency (the agency) filed a section 300 petition, later amended, seeking an adjudication that the child be declared a dependent of the court, in pertinent part, under subdivision (b) (failure to protect). The petition's allegations were based on father's substance abuse, domestic violence incidents between the child's parents, and mother's failure to protect the child from these domestic violence incidents. Following a detention hearing on August 20, 2015, the juvenile court removed the child from father's physical custody. The court placed the child in the care of the agency, with the understanding that the agency would allow the child to remain in mother's physical custody. The parents were not ordered to participate in any services. However, the court informed the parents that the agency would provide parents with service referrals, and, the parents' participation in counseling or domestic violence services would be considered in evaluating their efforts to reunify with the child. As ordered by the court, the agency social worker provided mother with referrals to Project Sanctuary, Women's Empowerment Group, and Intake Support Group.
2. Jurisdictional Hearing on Section 300 Petitions
On October 7, 2015, the court held a jurisdictional hearing on both the section 300 petition and amended section 300 petition, at which time both parents testified concerning their relationship. Following testimony and argument by counsel, the court found true, by a preponderance of the evidence, that the child was a person within the meaning of section 300, subdivision (b), as the child suffered harm, or there was a substantial risk of harm, due to the failure or inability of mother to protect the child from father's anger and violent behavior, domestic violence, and father's drinking. Pending a dispositional hearing, the child was allowed to remain in mother's physical custody and the agency was directed to provide mother with family maintenance services.
2. November 2, 2015 Agency Report and November 10, 2015 Warrant to Detain Child
The agency filed a November 2, 2015, dispositional report, addressing the current circumstances of mother and the child. Mother was receiving family maintenance services. She had been referred to Project Sanctuary for domestic violence counseling, but as of November 2, 2015, mother had not started counseling. Mother had also been referred to SUDT [Substance Use Disorder Treatment] services. Mother had been using marijuana for back pain from when she was pregnant with the child. Mother was informed that both the agency, the juvenile court, and SUDT services, had "a zero tolerance" policy regarding the ingestion of marijuana. Despite being so advised, as of November 2, 2015, mother continued to use marijuana and "this is a concern." Mother agreed to find alternative pain relief that was not addictive. Mother and the child were staying with friends and mother had no stable transportation. Mother was working with a "Parent Partner," who was providing support for mother and helping mother obtain housing.
The agency social worker concluded her report by noting that as of November 2, 2015, mother was "still coming to terms with her part in this dependency case," but mother stated she was willing to do whatever she was asked to do so that she could maintain physical custody of the child. According to the agency social worker, mother was not off to a good start in terms of participation in services or cooperating with the agency. Mother had no consistent telephone number where she could be reached, and, until recently, she had not provided clear information regarding where she was living with the child. Mother also failed to show up at two meetings with the agency's Safety Organized Practice (SOP) team on October 14, and October 26, 2015. Mother was not working and she was still using marijuana. The agency recommended the child remain in mother's home with family maintenance services, contingent on mother's compliance with the agency's case plan or the family maintenance plan ordered by the court.
The purpose of the SOP team was to identify necessary support services for mother and the child.
On November 10, 2015, a week after filing its dispositional report with the court, the agency secured a protective custody warrant to detain the child on the grounds that the child was not safe and at serious risk of harm in mother's custody. In support of the warrant, the agency social worker reported "growing concerns" about mother's ability to keep the child safe based on a number of factors, in particular mother's substance abuse: "[Mother] agreed to reduce her marijuana use to zero, but then failed to comply, and when confronted by the [social worker], openly admitted she had not done this;" and "[mother] appeared visibly under the influence of one or more controlled substances at the [agency] [o]ffice on 11/2/2015. It was suspected that [mother] was under the influence of methamphetamine by [agency supervisor] and another [a]gency staff person on that day; [mother] was repeatedly twitching and moving her mouth repeatedly. This test came back positive for marijuana, with higher numbers than before and was also positive for methamphetamine and amphetamine, with high numbers for both. Confirmed drug test result was received by [social worker] on 11/10/2015; date of this warrant application."
C. Subsequent Petition Pursuant to Section 342
Section 342 reads, in pertinent part: "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. . . . [¶] All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section."
Following the child's detention, the agency filed a subsequent petition pursuant to section 342, seeking an adjudication that the child be declared a dependent of the court under section 300, subdivision (b) (failure to protect). In support of the section 342 petition, it was alleged, as later amended by the court, in pertinent part, as follows: "? [Mother] stated that she use[d] marijuana for back pain [from] when she was pregnant with [the child]. . . . [Mother] agreed at detention at the initial advisement hearing in August 2015 that she would cease use of marijuana in order to have [the child] remain in her custody. And she agreed that she would explore non[-]addictive forms of pain management. Mother did not follow through with her promise. [¶] ? [Mother's] marijuana use had increased and she has started using methamphetamine. Mother tested positive for meth and marijuana on 11/02/15, she appeared visibly impaired and the child was in her care."
1. Detention Hearing on Section 342 Petition
On November 16, 2015, the court held a detention hearing on the section 342 petition, at which time the court heard testimony from agency social worker Jennifer Sookne, mother, and mother's friend M.L. The court also admitted into evidence the agency's detention report, with one caveat. Regarding the court's alleged policy of "zero-tolerance" for marijuana use, the court noted its position was "a little more nuance," but it was true the court did not want mother to use marijuana.
M.L. testified that since August 2015, mother and the child had been living with M.L. and her three children. Mother and the child slept on a couch. M.L. described her observations of mother's relationship with the child. M.L. had seen mother's "marijuana card," but M.L. had never seen mother use marijuana inside the house. Mother used marijuana outside the home on the porch at nighttime when all of the children were sleeping. M.L. never observed mother under the influence of marijuana and unable to pay attention to her child. M.L. had not seen any agency staff visit the home as M.L worked and she was not at home if any agency staff came to the house. M.L was not aware that mother tested positive for marijuana in late October 2015, or that mother tested positive for amphetamines and methamphetamine in early November 2015.
Agency social worker Jennifer Sookne testified she made several, albeit unsuccessful, attempts to evaluate the living conditions of mother and the child. On the one occasion she was able to meet with mother, Sookne observed M.L.'s home was appropriate for the child. Sookne also confirmed the agency's two unsuccessful attempts to conduct family team meetings on October 14, and October 26, 2015. Sookne also testified regarding mother's substance use. Sookne had been assigned the case since August 2015. Sometime in early September 2015, agency staff and mother met, at which time mother was told the child would be removed from her care unless she stopped using marijuana. Mother was amenable to diminishing her marijuana use. She was asked to drug test on two occasions at the agency, October 28, 2015, the first test to set a baseline for marijuana use, and again on November 2, 2015. Before the second test on November 2, mother exhibited behavior indicating she was under the influence of methamphetamine. Mother's second test detected marijuana and methamphetamine. On November 10, 2015, the agency received laboratory confirmation of mother's positive tests for marijuana and methamphetamine. The agency called mother and told her she needed to bring the child to the agency. Mother was initially uncooperative, but she ultimately cooperated and brought the child to the agency.
Sookne believed the child should be removed from mother's physical custody at that time for several reasons: (1) mother, who had no driver's license, was recently seen driving a car while the child was in the car; (2) mother stated she was no longer willing to stop using marijuana; (3) she had failed to participate in anger management counseling; (4) mother's November 2, 2015, drug test showed that mother's marijuana levels were going up and mother was now supplementing the marijuana with methamphetamine; (5) mother had a history of substance abuse and behavior changes when she was under the influence of methamphetamine and she had recently tested positive for methamphetamine; and (6) while mother had been staying in touch with the agency social worker on a daily basis, mother had not given the agency information about where she was staying so that the agency social worker could check on mother's housemates.
Mother testified regarding her use of marijuana. When she used marijuana, she "smoked joints" outside the house while the child was napping or sleeping at night, and the child was always inside the house in the care of someone. Mother did not feel the marijuana affected her at all, as it just calmed her and eased her back pain. She acknowledged that on the day of the child's initial detention hearing on August 20, 2015, she agreed in court that she would stop using marijuana. Thereafter, in September 2015, she met with agency staff and she again agreed to stop using marijuana by trying to wean herself off. At that time mother was using marijuana three or four times a day. Mother initially testified she had stopped smoking marijuana for "almost two weeks now" (since the beginning of November 2015), but later testified she had stopped smoking marijuana earlier in the middle of October 2015 (after the October 7, 2015, hearing on the section 300 petitions). Although she had allegedly stopped using marijuana in the middle of October 2015, the October 28, 2015, drug test detected marijuana, and, the November 2, 2015, drug test detected marijuana at an increased level from the first test. When asked to explain the positive tests for marijuana, mother testified she had smoked marijuana for the last four years, and the drug was probably going to be in her system for a while. She conceded the drug test detected an increase in marijuana use, but she insisted she had "stopped smoking" when it was made very clear to her that she could not smoke if she wanted to keep the child and she wanted the child to be with her. Mother also testified about her use of methamphetamine. Approximately four or five years before the hearing she had had a really bad substance abuse problem with methamphetamine. She "went to rehab" and "got clean," and she had not used methamphetamine for "a while." She could not explain the positive test for methamphetamine on November 2, 2015. She had been sick for approximately two weeks, but she had not taken any medication within the last month or two, other than marijuana.
Mother was also questioned about the service referrals she had received from the agency and her participation in those services. Mother had met with an agency staff member for a drug test assessment. The agency social worker did not perform an assessment at that time because mother informed the agency she was moving to Lake County, and her services would have to be transferred to that county. Mother also confirmed that in early October she had been given a referral to attend anger management services and explained her reasons for not participating in those services. Regarding her living circumstances, mother testified that approximately a week before the hearing she started to work at a department store and she ultimately secured a two-bedroom house on her own. Mother also admitted that on October 28, 2015, while she had no driver's license, she had driven a car with the child in the car. She was not then under the influence of marijuana.
Following argument by counsel, the court adopted the agency's recommendation to detain the child. In so ruling, the court explained: "The primary factors are [these], that the mother has admitted through her testimony that three to four years ago when she was still a teenager, she had a serious abuse problem that required that she attend a residential treatment facility. That she has a confirmed positive test for methamphetamines. That is very highly concerning for a parent . . . who has a one-year-old [] in custody and a self-admitted substance abuse problem. This isn't a case where [mother] came in and said you know, 'I smoked a joint after my friend told me it was laced with meth. It was a stupid decision. I did it once. I'll never do it again.' She's in denial, and the tests are pretty accurate. So I do have prima facie evidence that her situation has deteriorated and she hasn't been forthcoming with the social worker about what's really going on. [¶] I also share the concerns of child's attorney that [mother] has come in and promised to do a number of things in order to have her child remain in her care. She has not followed through on some of the things that the Court feels are quite important. Like discontinuing use of marijuana for pain medication. Exploring alternatives. Going to anger management. She was admittedly by her own testimony [at the earlier jurisdictional hearing on the section 300 petitions to being] in a domestic violence incident with the father. That was an important service that I would have hoped that she would start. [¶] Basically, I think that [mother's] cooperative with the things that she felt like doing, not necessarily with the things that the Agency thought were most essential to create a safe home for [the] child." The court scheduled combined jurisdictional and dispositional hearings on the section 342 petition and a dispositional hearing on the section 300 petitions.
At the time of the November 16, 2015, detention hearing, the child was 22-months old, just shy of a second birthday.
2. Combined Proceedings on Section 300 and 342 Petitions
A. Agency Section 342 Jurisdictional Report and December 3, 2015, Addendum to November 2, 2015 Disposition Report
On December 3, 2015, the agency filed two reports: a "section 342 jurisdictional report" and an "addendum to disposition report filed November 2, 2015."
In the section 342 jurisdictional report, the agency social worker repeated her previous descriptions of mother's circumstances since the initial hearings on the section 300 petitions in August and October 2015, including mother's temporary living arrangement, the agency's inability to make home visits except on one occasion, and mother's failure to attend agency meetings. Regarding mother's history of substance use, the agency social worker reported mother had stated initially that she used marijuana for back pain from when she was pregnant with the child. Soon after the jurisdictional hearing on October 7, 2015, the agency social worker and an agency supervisor met with mother and informed her that "there is a zero tolerance for marijuana use, even if the party has a 215 card," that there were other methods of pain management that were not addictive, and mother agreed to check out other methods of pain management with her physician. Mother also agreed to refrain from using marijuana, and the agency staff informed mother that the agency would confirm the fact that mother's THC levels were diminishing through drug testing. The agency social worker also confirmed that the drug rehabilitation programs in Mendocino County and Lake County had "zero policies for marijuana." To determine a baseline for mother's marijuana use, on October 28, 2015, mother was drug tested, and marijuana was detected at a "THC-COOH/Creatnine ratio" (THC) level of 444 ng (nanograms). On November 2, 2015, mother was again drug tested, and marijuana was detected at a THC level of 652 ng, over a 200-point jump since the previous test. On the day of the November 2, 2015 test, two agency staff members observed mother "with facial tics" normally associated with methamphetamine use. The November 2, 2015 drug test detected amphetamine at 2286 ng/mL (nanograms per milligram), and methamphetamine at 1014 ng/mL. At mother's request, the November 2, 2015, test was rechecked, and the results returned were the same with the same values. Mother's subsequent drug tests did not detect any amphetamines, but continued to detect marijuana at various THC levels: (1) 993 ng (November 10, 2015); (2) 1170 ng (November 16, 2015); and (3) 525 ng (November 25, 2016).
"THC [tetrahydrocannabinol] is the psychoactive ingredient in marijuana." (In re Johnny O. (2003) 107 Cal.App.4th 888, 890.)
At the November 16, 2015, detention hearing, mother's counsel indicated that mother had requested her November 2, 2015 drug sample be retested, and, mother had concerns about the same laboratory doing the retest. However, the agency used the same laboratory to retest the sample, to which mother did not later lodge any objection.
The agency also reported that because mother had no driver's license she was provided with gas vouchers so friends could drive mother and the child to services and to the agency. However, after an agency visit on October 28, 2015, mother was seen putting the child into a seat in a car, then getting into the driver's seat of the car, and driving away in the car. Additionally, after the section 342 detention hearing, mother visited the child at the agency office. On December 2, 2015, the agency had to cancel a visit because the child had the stomach flu. The agency social worker told mother that she would find out what the child was eating, but informed mother that the stomach flu was going around in the community.
As to service referrals, the agency social worker reported that mother was originally referred for domestic violence counseling with a particular staff member at Project Sanctuary and SUDT. However, mother had not attended individual counseling, and instead, had chosen to attend group sessions at the Women's Empowerment group and the Anger Management group. The agency social worker confirmed that mother had just begun to participate in the group meetings, having attended for two weeks as of December 3, 2015. Mother also met with a particular member of the agency's drug counseling program, and mother was told that because she was moving to Lake County, mother would need to participate in drug counseling in that county. The agency social worker contacted the drug counseling program in Lake County, and was informed that no referral would be accepted until mother had a residence address in that county, and as of December 1, 2015, mother was still not living in Lake County.
In its December 3, 2015, addendum to the November 2, 2015, disposition report, the agency social worker recommended that the court continue the child's current placement in foster care and offer both parents family reunification services. In support of the recommendation, the agency social worker explained mother's situation in the following manner: "I have no doubt that [mother] loves [her child], but until she has engaged in services, come[s] to grip[ ] with her issues and has a stable home for her child, she will not be able to care for [the child] in a way that will ensure [the child] is safe with her. [¶] [Mother] denies doing anything that puts [the child] at risk. She sees no problem with her marijuana use, denies that it in anyway affects her care of [the child], denies using methamphetamine when the test from November 2, 2015, has come back positive twice. She sees no concern with her driving without a license with [the child] in the car, and demands that [the child] be brought in for a visit when [the child] is sick. [¶] State regulations mandate that when there is a Court case, and the child is in a parent's home, that the Agency see that child in the home on at least a monthly basis; although early on in the court process, the Agency would expect to make more frequent home visits. The Agency has not been able to make any unannounced visits as the location where [mother] and [the child] were staying on a day to day basis was not known unless we spoke with [mother] to confirm it. At this time, [mother] will not state where she is living."
B. December 10, 2015 Hearing
On December 10, 2015, the court held combined jurisdictional and dispositional hearings on the section 342 petition and a dispositional hearing on the section 300 petitions. The court heard testimony from several witnesses including mother and agency social worker Jennifer Sookne. In its written order, the court noted it had received and considered the agency's November 2, 2015 disposition report, the section 342 jurisdiction report, and the December 3, 2015, addendum to the November 2, 2015, disposition report.
Mother testified she had stopped smoking marijuana in the beginning of October 2015, she started using THC drops at the beginning of November 2015, and she stopped using THC drops "somewhere around" November 30, 2015, and so she had been "two weeks clean and sober off . . . marijuana." Mother took a drug test two days before the hearing, and she believed the result detected marijuana "in the 400 range." Mother testified her use of medical marijuana had never prevented her from going to work or performing her work duties. Regarding her use of methamphetamine, mother admitted that when she was a teenager she abused methamphetamine, at the age of sixteen she received residential treatment for approximately 18 months, and, she had not used methamphetamine for four years. After she stopped using methamphetamine, mother still used marijuana, which she had been smoking since the age of 14. However, mother stopped using marijuana when she was pregnant with the child. When questioned about the November 2, 2015, positive test for methamphetamine, mother had no explanation for the test result. She denied she had used methamphetamine around the time that the test had been taken. Mother was willing to take, and had been waiting for, an assessment for a drug treatment program for two months.
Mother also testified that immediately before the November 16, 2015 hearing she had signed a tenancy approval for a home in Lake County. For various reasons, she had not actually signed a lease and moved into a new house until December 8, 2015, two days before the hearing. The house had a separate bedroom for the child. Mother was currently working as a front line cashier in a store, working 25 to 30 hours a week, with a work schedule where she had to be available every day, between 8:00 a.m. or 9:00 a.m. to 9:00 p.m. If the child was returned to her care, mother had arranged daycare for the child while she worked; the child's step-grandfather and the step-grandfather's 18 year-old-son agreed to watch the child.
Mother also testified regarding her interactions with the agency social worker, her recent participation in services, and, her reasons for not earlier participating in services. Mother was also questioned about some of the comments made by the agency social worker in her reports regarding mother's unwillingness to provide her residence address to the social worker, and mother's conduct when she learned the child would not be able to visit because the child was sick. Regarding the child's placement, mother testified she did not see any issue concerning her ability to care for the child if returned to her custody. She did not see any reason why the child needed to remain out of home while mother received services. Mother was willing to participate in services and keep all her appointments.
Agency social worker Jennifer Sookne testified concerning her interactions with mother. Sookne confirmed she had never seen mother in any interaction where she was unable to articulate, or appeared confused, or unable to respond appropriately. Sookne also testified regarding the issue of service referrals. Since the November 16, 2015, hearing, Sookne had not made any referrals for mother because mother had not been able to give the agency a residence address. Sookne understood mother could not give a residence address because she had not yet signed a lease. Sookne told mother that as soon as mother provided a residence address, Sookne would give mother referrals for services. As to earlier referrals, Sookne explained that mother had been given a referral for individual counseling, and not group sessions. Once Sookne learned that mother had been attending group counseling, Sookne told mother that she still needed to attend individual counseling, and mother had an appointment set up for such counseling. Sookne had also given mother a referral for "in-take support," in early September 2015. However, as far as Sookne knew, mother had not followed up on that referral.
When asked her concerns about returning the child to mother's care at that time, Sookne believed mother had made some bad choices in terms of driving without a license and her use of marijuana. Mother had been told she had to stop using marijuana, but it was not until after mother "actually heard" the court say that it did not want her to use marijuana at the November 16, 2015, hearing, that mother started to make changes. Since that time mother had been cooperative with testing and the agency social worker anticipated that mother's test results would show diminished marijuana levels. However, Sookne was concerned that mother's situation had not sufficiently stabilized to allow the child to return home. Mother had been given physical custody of the child with the understanding she would engage in services "from the beginning and now we are, September, October, November, three months [later], almost three and a half months [later]," and mother is still testing positive for marijuana and she just secured stable housing. Mother's drug tests had shown spikes in the marijuana levels, but the November 25, 2015, test showed the marijuana level had come down from the level detected in the November 16, 2015, test. Sookne was also concerned about the unexplained positive test for methamphetamine. The fact that the agency had not seen "it repeated so that i[t] lessens the concern . . . to some degree, but that it came out of the blue and she has no explanation for it is of concern." Sookne further testified that in the beginning mother had been cooperative, but got less cooperative, and then during the last week, mother began to again cooperate with the agency. Sookne's recommendation that the child remain out of the home while mother continued to receive reunification services was based on mother's need for a "stabilized" period, where she would be making good decisions, not use marijuana, and participate and make progress in services.
Following argument by counsel, the court found, in pertinent part, that jurisdiction was again appropriate as mother had failed to protect the child due to mother's substance abuse (§ 300, subd. (b)), as alleged in the 342 petition, amended by the court. "Turning to the disposition," the court found "it's a pretty close call for [mother]. She has demonstrated fairly good parenting. But it is also true as the Agency points out that there have been a number of poor decisions. We are really here on the initial disposition when something serious happened in August with this family. Basically, as I understood the situation, the parents were attempting to separate following some periodic episodes of drinking and domestic violence. . . . [M]other, she made a bad decision by how she [chose] to act . . . . She was not protective. She exposed herself and [the child] to danger. She did not jump right into services. She showed some hostility toward the social worker. She wasn't very forthright about not getting the referrals, and not being treated well by the Agency. I think the social worker tried desperately to engage this mother early on to keep the child in her care. And [mother] really didn't fully engage until the re-detention and she got real. The judge is serious. I need to do something different. I have seen her doing something different since November 16th. I do believe that she is now exploring other ways to manage her pain. She is trying to stop using marijuana in all of its forms so that she can be clear headed to take care of an almost two-year-old. She has finally found good housing. So she's not bouncing around trying to make the Agency figure out where she is. Well, that's good. [¶] Should she have her child back in her care? Well, here is the one that I have not been able to reconcile. . . . [S]he's a young lady with an admitted history of abusing methamphetamine. She got clean [a while] ago. And she had a positive test within the last few weeks for methamphetamine which she cannot explain. And methamphetamine use especially for someone who has had a problem with it [in] the past, really is a pretty big red flag for the safety of an almost two-year-old under the care of a single parent. [¶] So I . . . am going to follow the recommendation for family reunification . . . adding a component of parenting classes."
The juvenile court dismissed the allegations in the section 342 petition that on October 28, 2015, mother had no driver's license and she was driving with the child in the car while she was under the influence of marijuana, and mother "had been repeatedly evasive and not given the agency staff access to the child in the home with the exception of one occasion by pre-arranged visit." The court found that although it was true mother had no driver's license and she was seen driving with the child in the car, her conduct showed "poor judgment" but did not put the child "at significant risk of physical harm or injury" (§ 300, subd. (b). The court also noted it could not find mother was under the influence of marijuana at the time of the driving incident because there was no expert testimony confirming that mother's marijuana use physically impaired her ability to drive. Lastly, the court found mother's evasive conduct "at times" and her failure to give agency staff consistent access to the child in the home were factors to be considered by the court, but that such conduct did not support a finding that mother put the child at significant risk of physical harm or injury (§ 300, subd. (b)).
In its written jurisdictional findings and dispositional order, the juvenile court, in pertinent part, declared the child a dependent of the court based on the sustained allegation in the amended section 342 petition. The child was removed from mother's custody based on findings that reasonable efforts had been made to prevent or eliminate the need for removal. The court also found, by clear and convincing evidence, there was or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if the child was returned to mother's home at that time and there was no reasonable alternative means to protect the child. The court also found mother's progress towards alleviating or mitigating the causes necessitating the child's out of home placement had been "minimal." The agency was granted custody of the child and authorized to place the child out of the home, which placement was found to be necessary and appropriate. The case was "transferred for family reunification services." Mother's timely appeal ensued.
DISCUSSION
I. Standard of Review
"The burden of proof at the jurisdiction phase in the juvenile court is preponderance of the evidence; the burden of proof at disposition is clear and convincing evidence. (§ 355, subd. (a) [jurisdiction findings by preponderance of evidence]; § 361, subd. (c) [disposition findings by clear and convincing evidence].) Nonetheless, [as an appellate court,] we review both jurisdiction findings and the disposition order for substantial evidence. [Citations.]" (In re Chrisopher R. (2014) 225 Cal.App.4th 1210, 1216, fn. 4.) Under that rule, "we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather we '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. [Citation.]' [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.]" (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.) As we now explain, we conclude mother has failed to meet her burden. II. Substantial Evidence Supports Jurisdictional Finding Under Section 342 Petition
We acknowledge that the juvenile court made a jurisdictional finding against mother on the section 300 petitions, which finding is not challenged by mother on this appeal. Consequently, regardless of our ruling on mother's appellate challenge concerning the jurisdictional finding against her on the section 342 petition, the juvenile court will maintain jurisdiction over the child based on the unchallenged jurisdictional findings made against mother and the non-appealing father on the section 300 petitions. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [a "minor is dependent if the actions of either parent bring [the child] within one of the statutory definitions of a dependent"].) Nevertheless, we will exercise our discretion to reach the merits of mother's challenge to the jurisdictional finding sustained against her on the section 342 petition as the finding serves as the primary basis for the dispositional order that is also challenged on appeal. (See In re Drake M. (2012) 211 Cal.App.4th 754, 762.)
Mother challenges the section 342 jurisdictional finding, arguing that there was no substantial evidence that mother had a substance abuse problem that placed the child at substantial risk of harm. According to mother, the evidence of her medical marijuana use and her one positive test for methamphetamine did not constitute substantial evidence of a substance abuse problem justifying jurisdiction. We disagree.
As noted, the section 342 petition was based on an allegation that the child should be adjudicated a dependent of the court because, among other things, there was substantial risk that the child had suffered or would suffer harm because mother was unable to provide regular care due to her substance abuse. (§ 300, subd. (b).) Where the juvenile court is concerned with children "six years old or younger at the time of the jurisdiction hearing . . .[,] 'the finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm' [citations]." (In re Christopher R., supra, 225 Cal.App.4th at p. 1219.) "Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citation], the [juvenile] court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citation.] [¶] In addition, the Legislature has declared, 'The 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. . . .' [Citation.]" (In re Christopher R., supra, at pp. 1215-1216.)
The record shows that mother had a history of substance abuse based on her admitted use of marijuana starting at the age of 14, long before she obtained a medical marijuana card, and her admitted use of methamphetamine for which at the age of 16 she received residential treatment for approximately 18 months. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [finding of a history of substance abuse is supported by evidence of a parent's illegal use of marijuana long before obtaining a medical marijuana card].) Concededly, there was no claim mother was using medical marijuana outside the scope of the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5). Nonetheless, after the jurisdictional hearing in August 2015, mother agreed to reduce her use of medical marijuana, but she had not demonstrated her commitment to do so until after the detention hearing on the section 342 petition. It was not until after that detention hearing held on November 16, 2015, that mother's drug test detected marijuana at the lower THC level of 525 ng. After the October 28, 2015 baseline test detecting marijuana at a THC level of 444 ng, the next three tests detected marijuana at increasingly higher THC levels of 652 ng (November 2), 993 ng (November 10), and 1170 ng (November 16). Additionally, six weeks before the December 15, 2015, hearing, on November 2, 2015, agency staff members observed that mother appeared to be under the influence of methamphetamine and mother tested positive for methamphetamine on that day. Mother argues the November 2, 2015, positive test for methamphetamine was a one-time event and did not demonstrate she was likely to relapse in the future as she later tested negative for methamphetamine on three occasions over a two-week period (Novemeber 10, 16, and 25, 2015). Nonetheless, the juvenile court could reasonably find that given mother's history of methamphetamine abuse, her brief period of refraining from using methamphetamine was not sufficient to demonstrate her relapse was a one- time event that was not likely to recur. This is especially so given that mother could offer no explanation for the positive methamphetamine test. Nor did mother attempt to explain the agency staff's observations that mother appeared to be under the influence of methamphetamine on November 2, 2015. The juvenile court was not required to give credence to mother's testimony that she had been sober from methamphetamine for four years; she had not touched it; and she was "very proud of [her] sobriety and [she was] not trying to go back and ruin [the child's] life and the way [her] life was ruined." Rather, the juvenile court reasonably found that mother's ability to safely care for the 23-month-old child was called into serious question by evidence that mother had in effect failed to acknowledge a relapse in using methamphetamine, which was a "pretty big red flag," given her history of methamphetamine abuse and prior treatment. Because the young child would be totally dependent on mother for care and assistance, mother's apparent lack of insight into the insidious nature of methamphetamine supported the juvenile court's implicit finding that another relapse would put the child at substantial risk of harm. By her argument, mother is in effect asking us to "reweigh the evidence, . . ., which is inconsistent with our standard of review." (In re Liam L. (2015) 240 Cal.App.4th 1068, 1088.)
Methamphetamine is "[a] powerful and highly addictive synthetic stimulant . . . . 'Chronic methamphetamine abuse can lead to psychotic behavior including intense paranoia, visual and auditory hallucinations, and out-of-control rages that can result in violent episodes.' [Citation.]" (PDK Labs. v. United States DEA (D.C. Cir. 2006) 438 F.3d 1184, 1186.)
III. Substantial Evidence Supports Dispositional Order
Mother also argues there was insufficient evidence to support the dispositional order continuing the removal of the child from her custody. We disagree.
"Before the court may order a [child] physically removed from his or her 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).) A removal order is proper if it is based on proof of parental inability to provide proper care for the [child] and proof of a potential detriment to the [child] if he or she remains with the parent. [Citation.] 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. [Citation.]" (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)
In seeking reversal of the dispositional order, mother argues that at the end of the December 10, 2015, hearing, the juvenile court should have returned the child to her custody because she had made "great progress" in the short time since the filings of the section 300 and 342 petitions by obtaining housing, reducing her marijuana use, resuming employment, and attending classes. She also contends there was nothing to suggest she would not abide by the requirements of the juvenile court and the agency under a family maintenance plan as she had "always been cooperative" with the agency by checking in with the social worker on a daily basis and the agency social worker testified that she had a " 'fairly reasonable working relationship' " with mother. However, on appeal, we do not review the record for substantial evidence that would support a finding in favor of mother, as she suggests by her arguments. Rather, our authority is only to determine whether there is substantial evidence to support the court's dispositional order. "If this 'substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) "If such substantial evidence be found, it is of no consequence that the [trier of fact] believing other evidence or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]" (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.) Thus, we must reject mother's "attempt to reargue on appeal those factual issues decided adversely to [her] . . ., contrary to established precepts of appellate review." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) Whether mother's circumstances at the time of the December 2015 hearing demonstrated her ability to safely parent the almost two-year-old child as a single parent with family maintenance services was a "question addressed peculiarly to [juvenile] court[,] which heard [mother's] testimony and observed [her] demeanor" at the hearing, together with the other testimonial and documentary evidence admitted at the December 10, 2015, hearing. (In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749.) "The juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of appellate court deference. [Citation.]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We see no indication that the juvenile court did not fully and fairly consider mother's evidence as to her ability to care for the child under a family maintenance plan. In so doing, the juvenile court was not required to accept mother's testimony, even if supported in part by the testimony of the agency social worker. "It is well settled that the trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted. [Citations.] As [the court] said in Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777 , 'the [trier of fact] properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. [Citations.]" (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.)
Here, the juvenile court reasonably found that mother's progress in addressing the problems that lead to the filing of the section 300 and 342 petitions was "minimal." By the time of the December 10, 2015 hearing mother had stopped using marijuana in all forms for only two weeks, she had tested negative for methamphetamine on three occasions within a two-week period, she had secured housing for the child two days before the hearing, had participated in only some services for two sessions, and she had not yet been assessed for substance use. Additionally, the court was justifiably concerned about mother's positive test for methamphetamine for which she could offer no explanation. Thus, the juvenile court could reasonably find that mother had not shown sufficient progress in addressing the problems that led to the filing of the dependency petitions to allow for the return of the child under family maintenance services at the time of the December 2015 hearing. This is especially so as mother presented no independent evidence - by way of reports, letters, or testimony of current service providers, and other professionals who worked with mother - showing that she was ready to assume custody of the child on a full-time basis with family maintenance services. We see nothing in the record or the cases cited by mother from which we can conclude that the juvenile court was required, as a matter of law, to return the child to mother's care under a family maintenance plan at the time of the December 10, 2015, hearing. To reverse the dispositional order, we would have to conclude the juvenile court could have ruled in only one way, compelling a finding in favor of mother as a matter of law. We cannot so conclude in this case. Accordingly, we must uphold the dispositional order.
DISPOSITION
The jurisdictional findings and dispositional order, dated December 10, 2015, are affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Pollak, J.