In re S.P. CA4/2 ( 2021 )

Filed 3/29/21 In re S.P. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.P., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E075722
Plaintiff and Respondent, (Super.Ct.No. RIJ2000285)
v. OPINION
C.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.
Affirmed.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant.
Gregory P. Priamos, County Counsel, and James E. Brown, Anna M. Marchand,
and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
1
I
INTRODUCTION
C.B. (Mother) appeals the juvenile court’s jurisdictional and dispositional findings
sustaining a dependency petition pursuant to Welfare and Institutions Code1 section 300,
subdivision (b), and removing her toddler daughter, S.P., from Mother and Father’s
custody.2 Mother argues the evidence was insufficient to support the court’s
jurisdictional findings and the order removing S.P. from her custody. We conclude
substantial evidence supports the juvenile court’s findings and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public
Social Services (DPSS) on May 24, 2020, when an immediate response referral was
received alleging the parents had been involved in a domestic violence incident. Father
was “yelling loudly, using profanity and kicking the door” of their motel room at around
3:00 a.m. for 30 to 45 minutes before Mother opened the door. The motel manager called
law enforcement due to Father’s violent behavior and concern for S.P., who was four
months old at the time. Father’s actions caused $500 worth of damages.
Father fled the scene before law enforcement arrived. Mother told law
enforcement that she would reunify with Father because they did not have any problems
1 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 K.P. (Father) is not a party to this appeal.
2
or issues with domestic violence. Law enforcement noted Mother had no other place to
reside, no money, and was homeless. She did not exhibit signs of being under the
influence, but law enforcement observed Mother with marks on her arm that may have
indicated she was using drugs. Mother stated that she smoked marijuana and drank
alcohol sometimes but denied using any other substances.
Mother denied any domestic violence with Father. She claimed that Father was
drunk, and that Father was fine after she opened the door for him. Mother explained that
she locked Father out of their room because he was drunk, and she wanted to sleep. She
denied being afraid of Father. S.P. appeared adequately cared for and Mother had proper
provisions for the child. Mother declined referrals to domestic violence shelters,
explaining that she had stayed in a shelter and did not want to go back. DPSS paid for
Mother and S.P. to stay at a different motel as she did not have the resources to do so.
Mother refused to give the social worker any contact information for Father and also
refused to drug test.
On May 25, 2020, the next day, when another social worker followed up with the
family, an unidentified male opened the door of Mother’s motel room. The man had a
“clear pocket pipe in his mouth which he put away quickly.” He tried to hide the pipe in
his hand. The man denied he was the child’s father, said the pipe was “chap stick,” and
quickly exited the motel room. Mother again refused to drug test, stating testing was
against her religion. The social worker gave Mother a list of domestic violence shelter
referrals and a referral to services. Mother did not want any of her family members
3
involved, and again denied the domestic violence allegations and refused to go to a
shelter. DPSS arranged for Mother to stay another night at the motel.
The social worker made an unannounced visit to the motel on May 26, 2020.
Mother again stated that there was no domestic violence between her and Father. She
also said that she could not stay at the same motel another night, because the manager
had accused her of stealing from other rooms. DPSS made arrangements for her to stay
at a shelter, but Mother declined and asked the social worker if the worker could pay for a
night at a different motel. She also refused to drug test, again asserting it was against her
religion. While the social worker was at the motel, one of Mother’s cousins picked her
and S.P. up from the motel. The social worker spoke with the cousin who reported that
Mother and S.P. could not stay in his home. Mother stated that she had another cousin
that was willing to allow her to stay with them. Mother denied having any information
on Father’s whereabouts and reported that she had been unable to contact him.
On May 27, 2020, the social worker called Mother to inquire as to where she and
S.P. were living. Mother asserted that she was staying with another cousin but was not
sure where the cousin lived. She also stated that she was having a three-hour surgery that
morning to have gallstones removed and that she would give the cousin’s name and
contact information to the social worker after the surgery. Later that day, the social
worker called Mother again. Mother reported the surgery went well and that she was
giving S.P. a bath. She also stated that she was too tired to give the social worker the
name and contact information of the cousin. Thereafter, the social worker made an
4
unannounced visit to the cousin’s home with law enforcement and placed S.P. in
protective custody. Mother was arrested on an outstanding warrant for taking a vehicle
without consent. A “syringe, oxygen mask, and a plastic bag of marijuana” were found
in S.P.’s diaper bag. DPSS had attempted a follow-up visit where Mother had been
residing, but she had moved out of the motel she was staying, and she would not answer
any phone calls.
Mother has a history with child protective services. On January 7, 2020, DPSS
received a general neglect referral alleging Mother had a history of multi-substance
abuse. Mother admitted abusing alcohol. She also reported that she stopped using
cocaine when she found out she was pregnant and that she last used marijuana three
months ago. The referral was “[e]valuated out.”
On February 21, 2020, DPSS received another general neglect referral alleging
that Mother brought S.P. for a well-child visit and she appeared “very agitated.” She also
stated that she had an extensive history with methamphetamine and marijuana and
claimed to be clean with the exception of still smoking marijuana. Mother reported that
she was using cocaine when she gave birth to S.P. but had tested negative when she gave
birth. She declined DPSS’s several requests to drug test. The referral was closed as
“[i]nconclusive” as Mother had moved away and DPSS could not locate her.
Mother reported that she was born in California, lived in Georgia for 17 years, and
relocated with Father to California about six months ago. When she relocated, Mother
left behind two children, aged 12 and 11 years old, with their father in Georgia.
5
On May 29, 2020, DPSS filed a petition on S.P.’s behalf pursuant to section 300,
subdivisions (b) and (g). As to Mother, the petition alleged that (1) the parents engaged
in domestic violence while in the presence of the child (b-1); (2) Mother had an
unresolved history of abusing controlled substances; she refused to submit to drug
testing; and a syringe and marijuana were found in the child’s diaper bag (b-3);
(3) Mother suffered from unresolved mental health issues (b-4); (4) Mother lived a
transient lifestyle and lacked appropriate resources to provide for the child with a safe
and stable home environment (b-5); and (5) Mother had a criminal history to include
arrests and/or convictions for taking a vehicle without consent (b-6). Regarding Father,
the petition alleged that (1) the parents engaged in acts of domestic violence (b-1);
(2) Father abused controlled substances (b-2); and (3) Father’s whereabouts were
unknown and he had failed to make himself available to provide care and support for his
child (g-1).
On June 1, 2020, at the detention hearing, Mother was present and was appointed
counsel to represent her. Father was not present. Mother had been released from custody
on May 29, 2020. Mother’s attorney informed the juvenile court that she would consent
to urinalysis drug testing and take a drug test on June 3, 2020. The court formally
detained S.P. from parental custody and ordered DPSS to provide Mother services
pending the jurisdictional/dispositional hearing. Mother was also provided with
supervised visitation and ordered to drug test.
6
Father’s whereabouts remained unknown to DPSS. Mother reported she had
contact with Father by phone, but declined to provide the phone number to DPSS and
stated that she did not know his whereabouts. DPSS attempted to locate Father and
discovered that Father had been arrested for public intoxication and was in custody on
May 20, 2020, but was released the same day. This was four days before the current
referral was received.
Mother continued to deny the allegations in the petition. She denied ongoing
domestic violence and denied S.P. was in any harm from the parents’ argument. She
claimed the syringe found in the diaper bag was to flush the saline through her
nephrostomy bag to clean it. She reported having kidney stone medical issues for the
past five years and having a nephrostomy bag as a result. She said that she was
hospitalized for four days recently due to her medical condition. Mother denied having
any mental health problems and was willing to participate in a mental health evaluation.
She also stated that she was stable, always had a place to live, and was currently
unemployed. She noted that she had been living with a male friend in a one-bedroom
apartment for the past three to four weeks. Mother further reported that she had smoked
marijuana since she was 14 years old and still smoked twice a week. She denied using
any other drugs. Mother’s June 3, 2020 urinalysis drug test was negative for all
substances, except marijuana.
DPSS recommended the juvenile court find true the allegations in the petition and
that Mother be provided with reunification services. Mother’s case plan required her to
7
attend counseling/mental health services, a domestic violence program, parenting
education classes, and substance abuse services. DPSS provided Mother with referrals on
June 2, 2020. S.P. adjusted well in her caregiver’s home and was thriving. Mother had
regular contact with S.P. and was appropriate in visits.
On June 15, 2020, the maternal grandmother contacted DPSS to express an
interest in having S.P. placed in her care. The maternal grandmother stated that she had
offered to care for S.P. in the past, but Mother declined. She expressed concern about
Mother’s “party lifestyle.” She indicated that Mother had a substance abuse history and
believed Mother had worked as a prostitute. The maternal grandmother explained that
Mother had been made to leave her residence in Georgia due to having different men
coming in and out of the home and that she had half-nude pictures of herself on her
Facebook page as a way to solicit men.
The social worker spoke with Mother on June 25, 2020. During the phone call,
Mother raised her voice, used profanity, and threatened the social worker. Specifically,
Mother “indicated she is from Compton and knows people, stating that if I do not give
her child back to her, she will find me.” The social worker attempted to deescalate the
situation several times without success.
Mother did not appear for a July 7, 2020 random urinalysis drug test and declined
to participate in an oral drug test on July 15, 2020. Mother stated that she did not need
services. In addition, although she agreed to allow DPSS to complete a home evaluation
on July 21, 2020, on July 15, 2020, she reported she was not ready for DPSS to conduct a
8
home evaluation where she was living. She, however, claimed to have provisions for
S.P. She visited the child, but declined to wear a mask due to COVID-19. On June 29,
2020, Father showed up to a visit, but was turned away by the foster service agency
worker who was monitoring the visit.
On August 5, 2020, Mother reported being unsure if her residence could be used
for a home evaluation, because the person she lived with did not like any government
agencies and she was uncertain he would allow the social worker in the home. Mother
later informed DPSS that her current residence could no longer be considered for a home
evaluation. DPSS provided Mother with a list of shelters that would accept children.
Mother said she would enter a shelter on August 10, 2020. She later informed the social
worker that she had entered a shelter, but she was not available to complete a home
evaluation and would call the worker to reschedule the appointment. DPSS reported that
it was unable to confirm whether Mother had a safe home environment or provisions for
her child, because she had not provided a residence to complete the assessment. Mother
still refused to participate in services or drug test and continued to live a transient
lifestyle.
The contested jurisdictional/dispositional hearing was held on August 17, 2020.
Following oral argument from the parties, the juvenile court amended allegation b-1 to
conform to proof, striking “‘acts of domestic violence’” from the petition and changing
the allegation to “‘engaged in an altercation while in the presence of the child.’” The
court also struck “‘unresolved’” from allegation b-3 and struck allegation b-4 relating to
9
Mother’s unresolved mental health issues and allegation b-6 relating to Mother’s criminal
history. Thereafter, the court found true the allegations in the petition as amended. The
court found S.P. came within section 300, subdivisions (b)(1) and (g) and declared S.P. a
dependent of the court. The court also found S.P.’s removal from parental custody was
necessary and provided Mother with reunification services. The court denied services to
Father under section 361.5, subdivision (b)(1). The court ordered Mother to participate in
her case plan and informed Mother that a missed drug test would be considered a positive
test.
On August 24, 2020, Mother did not appear for a random drug test. She also
refused to submit to an on-demand drug test on September 16, 2020.
On September 10, 2020, Mother timely appealed from the juvenile court’s
jurisdictional and dispositional orders.
III
DISCUSSION
A. Jurisdictional Findings
Mother contends there was insufficient evidence to support the section 300,
subdivision (b) jurisdictional findings against her. Mother does not challenge the
allegations against Father.
Initially, Mother asserts the justiciability doctrine does not apply because
sustaining the allegations against her subjects her to registration on the Child Abuse
Central Index (CACI) under the Child Abuse and Neglect Reporting Act if not reviewed
10
by this court on appeal. DPSS argues Mother’s jurisdictional arguments are not
justiciable.
1. Justiciability Doctrine
The juvenile court assumed jurisdiction based on findings against both Mother and
Father, but Father has not appealed, and Mother does not challenge the jurisdictional
findings concerning him. Thus, DPSS contends, Mother’s appeal is non-justiciable
because the juvenile court would retain jurisdiction despite a favorable ruling on
Mother’s appeal. (In re Briana V. (2015) 236 Cal.App.4th 297, 308 [“‘[A] jurisdictional
finding good against one parent is good against both.’”]; In re I.A. (2011) 201
Cal.App.4th 1484, 1492 (I.A.) [“an appellate court may decline to address the evidentiary
support for any remaining jurisdictional findings once a single finding has been found to
be supported by the evidence”].)
Under the doctrine of justiciability, courts generally do not act upon or decide
moot questions or abstract propositions, nor do they issue advisory opinions. (I.A., supra,
201 Cal.App.4th at pp. 1490-1491.) “An important requirement for justiciability is the
availability of ‘effective’ relief—that is, the prospect of a remedy that can have a
practical, tangible impact on the parties’ conduct or legal status.” (Id. at p. 1490.) “For
this reason, an appellate court may decline to address the evidentiary support for any
remaining jurisdictional findings once a single finding has been found to be supported by
the evidence,” or is unchallenged. (Id. at p. 1492.)
11
On the other hand, an exception to this general rule has been recognized: “[W]e
generally will exercise our discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) serves as a basis for the dispositional orders
that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or
could potentially impact the current or future dependency proceedings [citations]; or
(3) ‘could have other consequences for [the appellant], beyond jurisdiction’ [citation].”
(In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).)
Generally, to acquire jurisdiction under subdivision (b) of section 300, the juvenile
court was obliged to find that the child “has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result” of specified forms of
parental neglect, including substance abuse, domestic violence, and failure to protect the
child. (§ 300, subd. (b).) Findings that Mother “knowingly or negligently” harmed the
child or exposed her to a substantial risk of physical harm are “pernicious” and “could
potentially impact the current or future dependency proceedings.” (In re M.W. (2015)
238 Cal.App.4th 1444, 1452.) The jurisdictional findings are also the basis for the
dispositional order that Mother challenges on appeal. We therefore will exercise our
discretion to review the juvenile court’s jurisdictional findings against Mother.
2. Jurisdictional Findings Against Mother
“On appeal, ‘[a] dependency court’s jurisdictional findings are reviewed under the
substantial evidence test. [Citation.] Under this test, we resolve all conflicts in the
evidence, and indulge all reasonable inferences that may be derived from the evidence, in
12
favor of the court’s findings.’ [Citation.] ‘The judgment will be upheld if it is supported
by substantial evidence, even though substantial evidence to the contrary also exists and
the trial court might have reached a different result had it believed other evidence.’
[Citation.] Importantly, issues of credibility in this context are questions for the trier of
fact. [Citation.] Substantial evidence may include inferences, so long as any such
inferences are based on logic and reason and rest on the evidence. [Citation.]” (In re
Madison S. (2017) 15 Cal.App.5th 308, 318.)
Additionally, “‘[w]hen a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s jurisdiction, a reviewing
court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need not consider whether any
or all of the other alleged statutory grounds for jurisdiction are supported by the
evidence.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773-774.)
Mother asserts there was insufficient evidence to support the court’s true findings
as to allegations b-1 (parents engaged in an altercation while in the presence of the child),
b-3 (history with substance abuse), and b-5 (living a transient lifestyle and lacking
resources to provide for child). A child comes within the jurisdiction of the juvenile
court pursuant to section 300, subdivision (b), if “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent . . . to adequately supervise or protect the child,
13
or the willful or negligent failure of the child’s parent . . . to adequately supervise or
protect the child from the conduct of the custodian with whom the child has been left, or
by the willful or negligent failure of the parent . . . to provide the child with adequate
food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian
to provide regular care for the child due to the parent’s . . . mental illness, developmental
disability, or substance abuse.” (§ 300, subd. (b).)
There are three elements to the section 300, subdivision (b) jurisdictional finding:
“‘(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and
(3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or
illness.’ [Citation.]” (In re Isabella F. (2014) 226 Cal.App.4th 128, 139-140; cf. In re
R.T. (2017) 3 Cal.5th 622, 629 (R.T.) [parent’s neglectful conduct sufficient but not
necessary to support § 300, subd. (b)(1) jurisdiction].) “Although section 300 generally
requires proof the child is subject to the defined risk of harm at the time of the
jurisdiction hearing [citations], the 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 currently 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.’ [Citations.]” (In
re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384, superseded by statute on other
grounds in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
14
Mother claims the evidence fails to show S.P. was at risk due to the altercation
with Father (allegation b-1), noting she acted protectively towards the child and neither
she nor the child were harmed during the motel incident. The record indicates Father was
observed to be “yelling loudly, using profanity and kicking the door” of the parents’
motel room for about 30-45 minutes at 3:00 a.m. before Mother allowed him inside. He
was drunk and caused $500 worth of damage to the room. The motel manager described
Father’s behavior as violent in nature and was concerned for S.P., who was four months
old at the time. Mother minimized Father’s actions and claimed that this was the first
incident. However, the officer who arrived at the scene “expressed concerns regarding
domestic violence between the parents.” In addition, Mother had also previously been
given resources to domestic violence shelters and had stayed in a shelter.
Furthermore, Mother had unstable housing and refused to the allow the social
worker to conduct a home evaluation of her residence, despite the record showing
concerns with whom Mother resided with. On one occasion, an unidentified male opened
Mother’s motel room door with a clear pipe in his mouth. The man denied he was Father
and quickly exited the room. Mother further refused to drug test, and her past history
with child protective serves indicated she had been successful in avoiding dealing with
her issues by changing residences and refusing to communicate with DPSS. During
DPSS’s investigation of the February 2020 referral, Mother moved out of the motel she
was staying in and did not answer any calls from a social worker. Mother took the same
approach in the present case, with Father fleeing the scene and Mother denying any
15
issues. Mother also fled Georgia with Father about six months prior to this dependency
proceeding, leaving behind her two older children.
Moreover, Mother refused to give DPSS Father’s contact information, despite
having contact with Father. The record indicates Mother had contact with Father as
Father had attempted to contact the child at a visit supervised by a foster family services
agency. A reasonable inference is that Mother was providing Father with information as
to her and the child’s whereabouts. Father fled the scene when law enforcement arrived
and his whereabouts remained unknown throughout the dependency proceedings.
Because Mother appeared to be concealing Father’s whereabouts and DPSS was unable
to contact Father to interview him concerning the allegations, ongoing concerns existed
that placed the child at risk of harm due to the parents’ altercation while in the presence
of the child.
A number of courts have upheld jurisdictional findings under section 300,
subdivision (b), where there was evidence that the children were exposed to domestic
violence and evidence supporting an “ongoing” concern about the children’s exposure to
domestic violence. (See In re T.V. (2013) 217 Cal.App.4th 126, 134-135; In re R.C.
(2012) 210 Cal.App.4th 930, 942.) Children can be “put in a position of physical
danger from [spousal] violence” because, “for example, they could wander into the room
where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or
leg . . . .” (In re Heather A. (1996) 52 Cal.App.4th 183, 194, disapproved on other
16
grounds in R.T., supra, 3 Cal.5th at p. 628.) We find substantial evidence here supports
the court’s true finding as to allegation b-1.
We now turn to the court’s true finding as to allegation b-3. Mother asserts there
was no evidence that she had a history of abusing controlled substances or evidence to
show a nexus between her marijuana use and any risk to S.P. We disagree.
Mother repeatedly declined to drug test as being against her religion. She later
drug tested, but had chosen both the method of testing, urinalysis, and the date of testing
of June 3, 2020. DPSS had requested Mother to drug test on other days, but she
repeatedly refused. Following the August 17, 2020 jurisdictional hearing, the juvenile
court ordered Mother to drug test and she again refused to test. While Mother disputed
the claim that she was using drugs, with the exception of marijuana, and asserted that she
had not used prior to S.P.’s birth (approximately for four to five months), the juvenile
court was free to disbelieve her, especially since she refused each on-demand request to
drug test, which the court could properly consider the “equivalent of a positive test
result.” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 (Christopher R.).)
The record indicates Mother had a history of abusing drugs. On May 24, 2020,
Mother admitted that she smoked marijuana and drank alcohol sometimes but denied the
use of any other substances. However, law enforcement observed Mother with marks on
her arm that indicated drug use on this same day. On February 21, 2020, Mother reported
an extensive history with methamphetamine and marijuana. She stated that she had
smoked marijuana since she was 14 years old and admitted that she was using cocaine
17
when she gave birth to S.P. The maternal grandmother reported that Mother had a
substance abuse history and believed Mother had worked as a prostitute.
Moreover, on the day S.P. was taken into protective custody, a syringe and a
baggie of marijuana was found in the child’s diaper bag. Although Mother later claimed
the syringe was to flush saline through her nephrostomy bag to clean it, a reasonable
inference can be made that the syringe could also be used to administer drugs. Mother
provided no documentation concerning her medical condition. The court could have
disbelieved Mother’s explanation, especially because Mother repeatedly refused to drug
test and admitted using drugs up until S.P. was born, which was only four months before
the child was detained. (See Christopher R., supra, 225 Cal.App.4th at pp. 1218-1219
[the court upheld the jurisdictional finding that the father’s daily marijuana use posed a
substantial risk of harm to his three-month-old daughter].)
Regarding causation and harm or substantial risk of harm due to Mother’s
substance abuse, when children are very young, “‘the absence of adequate supervision
and care poses an inherent risk to their physical health and safety.’” (Christopher R.,
supra, 225 Cal.App.4th at p. 1220.) In other words, “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 physical harm.” (Drake M., supra, 211 Cal.App.4th at
p. 767; see Christopher R., at p. 1220.) Here, S.P. was four months old when she was
detained and approximately seven months old at the time of the jurisdictional hearing.
18
The Legislature has recognized that, in general, substance abuse has a negative
effect on the home environment and the safety of children living in that environment.
(§ 300.2 [“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.”].) When a parent’s substance abuse problem amounts
to a lifestyle problem, the home environment usually is permeated with the negative
effects of drug abuse. A parent’s drug-centered lifestyle may be found to expose a child
to substantial risks, i.e., the risk of seriously compromising the child’s physical and
emotional well-being and the risk that the child will ingest drugs. (In re Rocco M. (1991)
1 Cal.App.4th 814, 825-826.) Using drugs while responsible for a child’s welfare and
leaving drugs within a child’s reach simply are not “parental acts.” (In re Leticia S.
(2001) 92 Cal.App.4th 378, 382.) Substantial evidence supports the juvenile court’s
finding that there was a substantial risk S.P. would suffer serious physical harm or
neglect by virtue of Mother’s substance abuse and its impact on her ability to supervise
and care for her daughter. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
Mother also asserts that allegation b-5 is not supported by substantial evidence.
She argues there was no nexus between her lifestyle and any harm or risk or harm to S.P.
As found true by the juvenile court, allegation b-5 states: “The mother lives a transient
lifestyle, and lacks appropriate resources to provide the child with a safe and stable home
environment.”
19
Although Mother correctly notes poverty alone is not a valid basis for asserting
jurisdiction, this case involves more than poverty. Substantial evidence shows that
Mother failed to provide S.P. with a safe and stable home environment. From May 24,
2020 to the August 17, 2020 jurisdictional hearing, it appears Mother resided in five
different locations. Mother consistently refused referrals to shelters where she could
reside with a child. She also refused family support and declined referrals to other
services. She further refused to allow DPSS to evaluate her residence on several
occasions. An inference can be made that she refused home evaluations because she was
residing with Father. Without this evaluation, DPSS was unable to ascertain whether
Mother could provide S.P. with a stable and safe home environment.
Further, Mother was asked to leave the second motel because she was accused of
stealing items from other rooms. She was also arrested on May 27, 2020, on a warrant
for taking a vehicle without consent. And she left her elder two children in Georgia to
come to California. Mother’s transient lifestyle was not based on poverty, but a choice
she made. She chose not to receive any assistance from her family. She also declined
DPSS’s numerous referrals to obtain a stable residence for herself and S.P. Substantial
evidence supports the court’s finding of jurisdiction based on allegation b-5.
Mother’s substance abuse issues, her transient lifestyle, altercation with Father,
and her refusal to cooperate with DPSS support the jurisdictional findings.
20
B. Dispositional Findings
Mother also contends there was insufficient evidence to support removing S.P.
from her custody and that there existed reasonable means to prevent removal of S.P. from
her care. We disagree.
“A dependent child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence . . . . [¶] (1) [That] [t]here is or would
be a substantial danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing the minor
from the minor’s parent’s . . . .” (§ 361, subd. (c)(1).)
“Because we so abhor the involuntary separation of parent and child, the state may
disturb an existing parent-child relationship only for strong reasons and subject to careful
procedures.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) California law therefore
“requires that there be no lesser alternative before a child may be removed from the home
of his or her parent.” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284; § 361,
subd. (c)(1).) But, “‘“[t]he parent need not be dangerous and the minor need not have
been actually harmed before removal is appropriate. The focus of the statute is on
averting harm to the child.” [Citation.] The court may consider a parent’s past conduct
as well as present circumstances. [Citation.]’” (In re John M. (2012) 212 Cal.App.4th
1117, 1126.)
21
We review a juvenile court’s dispositional order removing a child from parental
custody for substantial evidence, “‘bearing in mind the heightened burden of proof.’” (In
re Hailey T. (2012) 212 Cal.App.4th 139, 146.) “Clear and convincing evidence requires
a high probability, such that the evidence is so clear as to leave no substantial doubt.” (In
re Isayah C. (2004) 118 Cal.App.4th 684, 695.) Still, the appellant bears the burden of
showing “‘there is no evidence of a sufficiently substantial nature’” to support the
dispositional removal order. (In re D.C. (2015) 243 Cal.App.4th 41, 55, superseded by
statute on other grounds in In re A.M., supra, 47 Cal.App.5th at p. 322.)
Here, substantial evidence—evidence so clear as to leave no substantial doubt—
shows that removing S.P.’s from Mother’s custody was necessary to protect S.P.’s
physical and emotional well-being, and there were no other reasonable means by which
S.P.’s well-being could be protected without removing her from Mother’s custody.
(§ 361, subd. (c)(1).) Substantial evidence shows that, by the time of the August 17,
2020 dispositional hearing, Mother had repeatedly refused to drug test, failed to provide
Father’s contact information to DPSS, continued to deny domestic violence issues with
Father, refused to enter a shelter, declined DPSS’s repeated requests to conduct an
evaluation of Mother’s residence, had recently been arrested for a serious crime, and was
not fully cooperating with DPSS or fully participating in her services. Mother had also
changed her residence approximately five times in a four-month period and had recently
left her two elder children in Georgia. Mother had no adequate support and refused
assistance from her family. Given that Mother did not have an adequate support system
22
or “safety network” to care for S.P., S.P. was at a substantial risk of serious physical
harm if returned to Mother’s care. Thus, Mother’s ability and willingness to properly
care for S.P. was in serious question by the time of the dispositional hearing.
Mother claims there were less drastic alternatives to removing S.P. from her care,
including placing S.P. with Mother at a shelter pursuant to a family maintenance plan.
We disagree. Mother declined DPSS’s repeated requests to enter a shelter and was
evasive concerning Father’s whereabouts. She also refused DPSS’s requests to evaluate
her residence for potential placement of S.P. in her home, and also declined any
assistance from her family. The record also shows that Mother had previously avoided
contact with DPSS and moved from motel to motel, as well as from Georgia to California
six months before S.P. was detained. In sum, it was necessary to remove S.P. from
Mother’s custody, as there were no less drastic alternatives to removing S.P. from
Mother’s custody.
IV
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
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