In re Alexzander C. ( 2017 )

Filed 11/29/17; Certified for Publication 12/13/17 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ALEXZANDER C. et al., B282183
Persons Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. CK81787)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICHARD C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Terry T. Truong, Commissioner. Affirmed.
Mary C. Wickman, County Counsel, R. Keith Davis,
Assistant County Counsel, William D. Thetford, Principal Deputy
County Counsel, for Plaintiff and Respondent.
Daniel G. Rooney, for Defendant and Appellant.
___________________________
Richard C. (Father) challenges the juvenile court’s
jurisdictional finding that his children were at substantial risk of
serious physical harm due to his use of methamphetamine.
Father also contests the dispositional order removing the
children from his custody. We affirm.
FACTS
Father and Alina C. (Mother) are parents to minors
Alexzander C. and Catrina C., and to adult children, Cassandra
C. and Moises C.
I. Prior Dependency Matter
The family was previously reported to the Los Angeles
Department of Children and Family Services (DCFS) in 2009 for
general neglect of Moises, Alexzander, and Catrina. A petition
was filed under Welfare and Institutions Code section 300,
subdivision (b),1 alleging Mother had an unresolved history of
drug use which prevented her from providing regular care to her
children. The allegations of neglect were substantiated as
Mother tested positive for methamphetamine, the children’s
attendance at school was poor, and the home was “not in the best
condition.” Mother continued to test positive for
methamphetamine from October 2009 to March 2010. She tested
negative from May 2010 to June 2010, but then failed to appear
for any further drug testing.
The court placed the children with Father, who had tested
negative for drugs, and ordered Mother to participate in
individual counseling, drug testing, and parenting classes.
On August 6, 2010, Mother advised DCFS that she was moving to
Ontario and did not intend to return home. She believed Father
1 All further section references are to the Welfare and
Institutions Code unless otherwise specified.
2
took good care of the children and they would not miss her. As a
result, jurisdiction was terminated for Mother’s failure to comply
with the court’s orders and Father was granted sole custody of
the children. Monitored visits were ordered for Mother. Mother
moved back in with Father and the children in 2013 or 2014.
Mother cared for Alexzander and Catrina while Father worked.
II. Current Dependency Matter
On December 16, 2016, DCFS received another report of
general neglect against Mother and Father, alleging they were
drug addicts and used methamphetamine in the home. The
individual also reported Father was a member of a gang and sold
drugs in the home. At the time, Alexzander was 13 years old and
Catrina was 11. The case social worker arranged to interview
Father, Mother, Alexzander, and Catrina on December 28, 2016.
When she arrived, Mother was sweeping the floor and was
expecting her. The case social worker observed the home to be
neat and clean with working utilities and a sufficient amount of
food. The children shared a bedroom, each sleeping on a twin
bed, and the parents shared the other bedroom in the home.
She did not observe any drug paraphernalia or alcohol in the
home or notice any safety hazards.
Both Father and Mother denied any drug use and were
observed to be well groomed and clean. They were cooperative
during the interview. A background check revealed Mother had
two convictions for petty theft. Father did not have a criminal
record.
The case social worker assessed the children for physical,
sexual, and emotional abuse in the home, but found none.
All four family members denied any domestic violence occurred in
the home, stating the children’s electronics were usually taken
3
away as punishment. The parents reported the children were
current with their immunizations, went to the doctor if they were
sick, and did not have any medical conditions. Alexzander told
the case social worker he was in eighth grade and received A’s
and B’s in school. He also reported he has perfect attendance and
is never late. Catrina reported she is in fifth grade and gets good
grades.
After Mother’s and Father’s drug tests came back positive
for methamphetamine and amphetamines, the case social worker
notified Father that she had concerns for the children’s safety.
On January 9, 2017, the case social worker took the children into
protective custody pursuant to a removal order.
A juvenile dependency petition under section 300,
subdivision (b) was filed on January 12, 2017, alleging Mother
has a history of substance abuse and is a recent user of
amphetamine and methamphetamine, who is incapable of caring
for the children appropriately. The petition referenced the prior
dependency matter, noting Mother was ordered to have only
monitored visits with the children, yet moved back in with them.
The petition also alleged Father has a history of substance abuse
and is a recent user of amphetamine and methamphetamine,
which rendered him incapable of providing the children with
appropriate care and supervision. The juvenile court ordered the
children detained with their adult sister, Cassandra, and ordered
the parents to participate in random drug testing.
A. Jurisdiction/Disposition Report
In the jurisdiction/disposition report, DCFS concluded the
children were at “high risk” of harm due to Mother and Father’s
methamphetamine use. The report noted that Father allowed
Mother to move back home knowing she had not resolved her
4
drug issues. According to DCFS, “[m]ethamphetamine is an
inherently dangerous drug known to cause visual and auditory
hallucinations, sleep deprivation, intense anger, volatile mood
swings, agitation, paranoia, impulsivity, and depression. As
such, a person under the influence of this drug cannot be trusted
to safely and appropriately care for a child.”
In its interviews with family members, no one expressed
any concerns with Mother and Father’s drug use to DCFS. In
fact, everyone expressed surprise that the parents used
methamphetamine, despite the substantiated findings from the
prior dependency matter. Mother reported she had used
methamphetamine since she was 17 years old. She abstained
from drug use during each of her pregnancies, but resumed using
methamphetamine to lose weight after giving birth. She reported
her mother and father were drug users and there was a family
history of alcoholism and drug abuse.
At the time of the prior dependency matter, Mother moved
in with her sister in Ontario for three or four years, but kept in
touch with Father and the children. She continued to do drugs
on the weekends while she lived with her sister. She moved back
when she had problems with her sister’s husband. Once she
moved home, her drug use increased, along with Father’s.
She believed she and Father “were functional users, so good
that our kids never knew about our drug use until now that all
this happened.” She explained to DCFS she used
methamphetamine to deal with her toothaches. She and Father
drank methamphetamine when the children were at home by
mixing it with water, but snorted it when the children were not
at home. She used methamphetamine two or three times a day.
She refused to smoke it because she observed that her friends
5
who smoked it lost their children. She told the case social
worker, “We thought we were doing good because we were not
smoking it or shooting up like them but we now realize that it is
time to stop, we are too old for this, we are hitting our 50’s, we
could have been healthier.”
Father admitted to DCFS that he began using
methamphetamine at 21, after Mother introduced it to him.
He has used it continuously, though less often (once or twice a
month) at times and more often now (four times a day). Father
stated he used the drug to deal with his back pain. When asked
why he did not simply go to the doctor for pain medication, he
responded, “Because it was easier to use meth for pain rather
than going to a doctor and waiting in line to get medication but
then you become addicted. It just had to come to this for us to
stop using.”
He kept the methamphetamine in his wallet, which he
always kept with him. Father denied any issues with his family
or work as a result of his drug use. He stated he had been
employed in the public works department in the City of Artesia
for the past 29 years.
Father and Mother attempted to enroll in the drug
treatment program at Kaiser after the children were detained,
but the program refused to accept both of them due to
confidentiality issues. Kaiser recommended Father participate in
a program in Orange County, but that was too far for him. Father
stated they were looking for other nearby treatment programs
they could attend together.
6
The children were interviewed by the case social worker at
Cassandra’s home and denied knowing their parents used drugs,
though they had learned about drugs at school. Alexzander knew
what methamphetamine looked like from a school presentation
and he stated he had never seen anything that looked like it at
home. He also denied ever seeing his parents “high.” He
understood that to mean they had red eyes and appeared drowsy.
The children confirmed they had enough to eat at home, had
clothes to wear, and were not abused in any way. They both
wanted to return to their parents’ custody.
Cassandra denied ever seeing her parents use drugs
despite visiting their home daily. Although Cassandra was 18 at
the time of the prior dependency matter, she also denied knowing
of their drug use in 2009 and 2010. When Mother moved out
during the prior dependency matter, Cassandra helped Father
care for the children. Cassandra stated she had no concerns
about Mother’s drug use when she returned. Cassandra assured
DCFS she did not experience any form of abuse or neglect as a
child. She told the case social worker that “[t]hey are good
parents, they always made sure that we all went to school, we
were kind of spoiled.”
In interviews with DCFS, Mother’s sister and childhood
friend both denied knowing about Father’s drug use. They
admitted they knew of Mother’s drug use after the prior
dependency matter in 2010, and suspected Mother used
methamphetamine at times because her weight would fluctuate
and her teeth were in bad condition. However, neither saw
Mother use drugs or suspected she used drugs after 2014.
Mother’s sister was not concerned with the parents’ drug use.
7
DCFS noted the family’s strengths were that the children
appeared healthy, they did well in school, and they denied ever
witnessing any drug use. In addition, Mother and Father
appeared committed to complying with all court orders to reunify
with the children, and had tested clean in random drug testing in
January and February 2017. Nevertheless, DCFS considered the
children to be at a “high risk” of future harm due to Mother’s and
Father’s unresolved history of drug use, along with their failure
to comply with previous case plan orders, and their failure to
complete a drug treatment program.
B. Adjudication Hearing
At the contested hearing on March 2, 2017, the juvenile
court admitted into evidence DCFS’s reports as well as stipulated
testimony from Mother and Father. It was stipulated that
Mother would testify that she was not currently using or abusing
drugs, including methamphetamine, and had tested clean.
Father’s stipulated testimony was much the same as Mother’s.
Both Father and Mother were set to begin a drug counseling
program on March 14, 2017. Both Mother and Father argued for
dismissal on the ground they were drug users, not abusers, and
their use had no adverse impact on the children. Counsel for
DCFS and the children opposed dismissal of the petition.
The juvenile court found by clear and convincing evidence
that substantial danger exists to the physical health of the
children and there is no reasonable means to protect them
without removal from their parents’ custody. Among other
things, the juvenile court found that Mother and Father are
“recent user[s]” of amphetamine and methamphetamine which
“placed the children at risk of harm.”
8
The juvenile court did not believe the parents’ argument
that the children were doing well despite the parents’ drug use.
The court found “the only reason why these children are doing
fine is because they do have relative support, and they are older.”
The court reminded Mother, “You failed to reunify with your
children the first time around because you did nothing, nothing,
to get them back.” As to Father, it stated, “You allowed her to get
back into your home when she did nothing . . . to reunify with
your children.” The court ordered reunification services,
including participation in drug testing, a drug treatment
program, and counseling. Father timely appealed.2
2 Mother does not challenge the findings against her and is
not a party to this appeal. As a result, there is a justiciability
issue since “ ‘ “the minor is a dependent if the actions of either
parent bring [him] within one of the statutory definitions of a
dependent.” ’ ” (In re I.A. (2011) 201 Cal. App. 4th 1484, 1492.)
Father, however, contends Mother’s issues are “virtually
identical” and “intertwined” with his, thus “giving rise to
standing for Father to raise those issues that impact on their
related interests.” (See In re Patricia E. (1985) 174 Cal. App. 3d 1,
6, disapproved on another ground in In re Celine R. (2003) 31
Cal. 4th 45, 60.) DCFS does not address the justiciability issue.
Because the jurisdictional findings against Father and Mother
are essentially the same and serve as the basis for a dispositional
order that is also challenged on appeal, we will exercise our
discretion to consider Father’s claims on the merits. (In re Drake
M. (2012) 211 Cal. App. 4th 754, 762–763 (Drake M.); see also In re
D.C. (2011) 195 Cal. App. 4th 1010, 1015; In re Anthony G. (2011)
194 Cal. App. 4th 1060, 1064–1065.)
9
DISCUSSION
Father challenges the trial court’s findings for lack of
substantial evidence,3 contending he and Mother did not abuse
drugs and their use of methampthamine was not linked to a risk
of harm to the children. Father also contends the juvenile court’s
disposition order removing the children was in error. We find
substantial evidence supports the juvenile court’s findings and
orders.
A. Standard of Review
When an appellate court reviews the jurisdictional or
dispositional findings of the juvenile court, it looks to see if
substantial evidence, whether contradicted or uncontradicted,
supports the findings. (In re Natalie A. (2015) 243 Cal. App. 4th
178, 184; In re Kristin H. (1996) 46 Cal. App. 4th 1635, 1654.)
The appellate court must review the evidence in the light most
favorable to the trial court’s order, drawing every reasonable
inference and resolving all conflicts in favor of the prevailing
3 Father also argues the allegations sustained in the petition
do not support jurisdiction because the juvenile court failed to
find there was a substantial risk of “serious physical harm” as
required under section 300, subdivision (b)(1). Instead, the
juvenile court expressly excised the words “serious” and
“physical,” finding only that there was a “risk of harm.” Father
has forfeited this issue for failure to challenge the sufficiency of
the dependency petition on its face. (In re John M. (2012) 212
Cal. App. 4th 1117, 1123; In re Christopher C. (2010) 182
Cal. App. 4th 73, 82.) In any event, substantial evidence supports
a finding there exists a risk of serious physical harm due to the
parents’ drug abuse. (In re John M., supra, 212 Cal.App.4th at
p. 1123 [“ ‘ “[I]f the jurisdictional findings are supported by
substantial evidence, the adequacy of the petition is
irrelevant” [Citation.]’ ”].)
10
party. (In re Misako R. (1991) 2 Cal. App. 4th 538, 545.)
Substantial evidence “means evidence that is ‘reasonable,
credible and of solid value; it must actually be substantial proof
of the essentials that the law requires in a particular case.’ ”
(In re E.D. (2013) 217 Cal. App. 4th 960, 966.)
Appellant has the burden to show that the evidence was
not sufficient to support the findings and orders. (In re Geoffrey
G. (1979) 98 Cal. App. 3d 412, 420.) The reviewing court may not
reweigh the evidence or express an independent judgment. (In re
Stephanie M. (1994) 7 Cal. 4th 295, 318.) Rather, the reviewing
court must determine whether “a reasonable trier of fact could
have found for the respondent based on the whole record.”
(Kuhn v. Department of General Services (1994) 22 Cal. App. 4th
1627, 1633, italics omitted.)
B. The Substance Abuse Finding Was Supported By
Substantial Evidence
Father admits he is a “user” of methamphetamine but
contends he is not an “abuser” of it, and thus the court should not
have sustained the petition. We disagree.
A child may be declared a dependent of the court as a result
of “the inability of the parent . . . to provide regular care for the
child due to the parent’s . . . substance abuse.” (§ 300, subd.
(b)(1).) Substance abuse for purposes of section 300, subdivision
(b), is shown by a diagnosis from a medical professional or by
evidence of criteria recognized by the medical profession as
indicative of a substance abuse disorder. (Jennifer A. v. Superior
Court (2004) 117 Cal. App. 4th 1322, 1346; Drake M., supra, 211
Cal.App.4th at p. 766.)
11
The court in Drake M., for example, relied on the fourth
edition of the Diagnostic & Statistical Manual of Mental
Disorders (DSM) to arrive at the criteria which demonstrate
substance abuse, including the failure to fulfill major life
obligations, recurrent use of drugs in physically hazardous
situations, legal problems stemming from drug use, or continued
use despite interpersonal or social problems exacerbated by
drugs. (Drake M., supra, 211 Cal.App.4th at p. 766.)
In In re Christopher R. (2014) 225 Cal. App. 4th 1210
(Christopher R.), the court relied on the fifth edition of the DSM,
which identified 11 criteria for the diagnosis of substance use
disorders. These criteria include cravings and urges to use the
substance; spending a lot of time getting, using, or recovering
from use of the substance; giving up important social,
occupational or recreational activities because of substance use;
and not managing to do what one should at work, home or school
because of substance use. Under this analysis, the presence of
two or three of the 11 specified criteria indicates a mild substance
use disorder; four or five indicate a moderate substance use
disorder; and six or more a severe substance use disorder. (Ibid.)
Under the criteria outlined in Drake and Christopher R.,
substantial evidence supports a finding Father has a
methamphetamine abuse disorder. First, he has cravings and
urges to use methamphetamine. Father admitted to the DCFS
investigator he was “addicted” and “could not stop.” Further, he
has used methamphetamine continuously for more than 25 years.
Father admitted his drug use was a “habit” and he used his
toothaches and back pain as an excuse to continue using. He
stated, “I just needed it every day to keep me going because if I
would have stopped, I would have been like in a [coma], I would
12
have been sleeping a lot and I couldn’t do that because I had to go
to work so I kept doing it.”
Moreover, the amount of time he spends using
methamphetamine has increased dramatically. He reported using
it “occasionally” in the beginning. Then he used it every weekend
for many years until about three or four years ago, when Mother
returned home. After her return, he increased his use to four
times a day.
Further, his and Mother’s drug use has resulted in
recurrent legal problems, namely, the current and prior
dependency matters. Even though he received a negative test in
2009, Father admitted he used methamphetamine while the
dependency matter was ongoing. He was unable to stop despite
fearing that his children would be taken away from him.
To compound the problem, Father denies needing a
program to help him and Mother remain drug-free. He believes
he can remain clean on his own, despite his long history of
addiction. Indeed, Father believes he is “immune to it” because
he has used methamphetamine for so long. This is more than
sufficient evidence to demonstrate a substance abuse disorder
pursuant to section 300, subdivision (b).
Although Mother has not challenged the findings against
her, we note that Mother has been diagnosed with a “moderate
methamphetamine use disorder” by Dr. Lauren Walton of Kaiser
Permanente. This diagnosis alone is sufficient evidence of a drug
abuse disorder. Additionally, Mother exhibits all the hallmarks
of drug abuse that Father does.
13
C. The Finding of Risk of Serious Physical Harm
Was Supported By Substantial Evidence
According to Father, there is no risk of serious physical
harm to the children from his methamphetamine abuse because
they are doing well. Substantial evidence suggests otherwise.
There are three elements for jurisdiction under subdivision
(b) of section 300: (1) neglectful conduct or substance abuse by a
parent in one of the specified forms, (2) causation, and (3) serious
physical harm to the child, or a substantial risk of such harm.
(In re Rebecca C. (2014) 228 Cal. App. 4th 720, 724–725.) The
third element “effectively requires a showing that at the time of
the jurisdictional hearing the child is at substantial risk of
serious physical harm in the future (e.g., evidence showing a
substantial risk that past physical harm will reoccur).” (In re
Savannah M. (2005) 131 Cal. App. 4th 1387, 1396.) Thus, the
juvenile court is not required to “wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child.” (Christopher R., supra, 225 Cal.App.4th at
p. 1216.)
In In re Rocco M. (1991) 1 Cal. App. 4th 814 (Rocco M.), the
court found a substantial risk of serious physical harm to an 11-
year-old child because his mother created the danger that he
would ingest hazardous drugs. (Id. at p. 825.) The court
explained, “By placing drugs under his nose, setting the wrong
example, and leaving him entirely to his own devices over
prolonged periods of time, [the mother] certainly subjected him to
a substantial risk that he would eventually succumb” to the
temptation to take drugs himself. (Id. at p. 826.) In particular,
the mother exposed the child to her own drug use, “thus impliedly
approving such conduct and even encouraging him to believe that
14
it is an appropriate or necessary means of coping with life’s
difficulties.” (Id. at p. 825.) The Rocco M. court emphasized its
conclusion was based not on the mother’s “apparent dependency
on drugs or alcohol, but on her creation of a home environment
providing Rocco with the means, the opportunity, and at least the
potential motives to begin abusing drugs himself.” (Id. at p. 826.)
As in Rocco M., Father’s tolerance of drug use and denial of
his drug problem sets the wrong example for Catrina and
Alexzander. Father has been addicted to methamphetamine—
“an inherently dangerous drug known to cause visual and
auditory hallucinations, sleep deprivation, intense anger, volatile
mood swings, agitation, paranoia, impulsivity, and depression”—
for over 25 years. Father’s drug use has increased dramatically
in recent years.
Although he claimed he took it for back pain, he later
acknowledged that was an “excuse” and he was unwilling to
simply ask for pain medication from a doctor. Despite these
admissions, Father denies his methamphetamine use has
resulted in any problems for him or for his children. He also
denies needing help to resolve a 25-year long drug habit.
Although the children claim they did not know their
parents were using methamphetamine, they were certainly
aware of it by the time of the adjudication hearing. Despite
knowing of the dangers of drug use from school, Alexzander was
not worried about his parents’ drug use. Instead, Alexzander
believed they would simply stop taking drugs and go to classes.
This supports an inference that 14-year-old Alexzander has
assimilated Father’s attitude that his drug addiction is not a
problem and can easily be addressed. As in Rocco M., Father’s
emphasis on how his drug use helped him do his job and deal
15
with back pain could send a message to the children that daily
use of methamphetamine is an appropriate means of coping with
life’s difficulties.
Additionally, Mother’s and Father’s conduct provided the
children with the opportunity and means to begin experimenting
with drugs themselves. Father was at work all day, allowing
Mother to care for the children. He admits she “would sleep a lot
sometimes[,]” thus leaving the children unsupervised.
It is reasonable to conclude that the children had access to
the methamphetamine used by Father and Mother. Mother
and Father ingested methamphetamine multiple times a day in
the house, which leads to the obvious inference that
methamphetamine can be found in the house. There is no
evidence of where Mother stored her supply of
methamphetamine, but Father stated he kept his in his wallet.
Although he claimed he had the wallet with him at all times, he
admitted he was asleep while it was in his pocket or underneath
a cushion in the couch. That is sufficient to provide access for an
enterprising 14 year old or an 11 year old.
Here, Father sent the message that methamphetamine use
did not present a problem and he provided opportunity and
access to the drug. Under Rocco M., this is sufficient evidence to
establish a substantial risk of serious physical harm to the
children.
Father contends there is no link between his drug use and
a risk of harm to the children. Father focuses on the fact that the
children do well in school and have adequate shelter, food, and
clothing. However, the juvenile court disbelieved the children’s
safety and success was a result of Mother’s and Father’s
parenting. The court instead found “the only reason why these
16
children are doing fine is because they do have relative support,
and they are older.”
Substantial evidence supports the trial court’s finding: the
children are 14 and 11 years old. Moreover, Cassandra, who is a
preschool teacher, reported she was at Mother and Father’s house
daily. She also helped Father care for the children while Mother
lived in Ontario. On the other hand, Father allowed Mother to
return home knowing she had not resolved her drug habit.
Indeed, Father knew Mother used methamphetamine two or
three times a day, yet allowed her to drive the children to and
from school. It is reasonable to infer from these facts that
Cassandra, and not Father or Mother, provided the children with
the safe and healthy environment leading to their success.
In any event, we do not reweigh the evidence or overturn a
lower court’s finding that was based on substantial evidence.
(See Drake M., supra, 211 Cal.App.4th at p. 766 [“the trial court
is in the best position to determine the degree to which a child is
at risk based on an assessment of all the relevant factors in each
case”].) Even if we find Father and Mother provided a safe and
healthy home environment, that does not negate the substantial
evidence of a risk of harm to them from the parents’ abuse of
methamphetamine.
Finally, Father argues that a risk of serious physical harm
cannot be presumed solely because he abuses methamphetamine,
relying on In re Rebecca C., supra, 228 Cal. App. 4th 720 and
Drake M., supra, 211 Cal. App. 4th 754. We agree that Father’s
use of methamphetamine, without more, cannot bring the
children within the jurisdiction of the dependency court.
However, we have set out in detail the “more” that supports the
17
court’s finding that his methamphetamine use presents a
substantial risk of serious physical harm to the children.
D. The Removal Order Was Supported By
Substantial Evidence
Father next contends the juvenile court lacked authority to
remove the children from his and Mother’s custody. We reject
this argument for the same reasons we find substantial evidence
supports the jurisdictional findings above.
At the adjudication hearing, the juvenile court found by
clear and convincing evidence that substantial danger exists to
the physical health of the children and there is no reasonable
means to protect them without removal from their parents’
custody. This finding comports with section 361, which prohibits
the removal of a child from his parents’ physical custody unless
the juvenile finds by clear and convincing evidence “[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 or guardian’s
physical custody.” (§ 361, subd. (c)(1).)
“A removal order is proper if 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
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 N.M. (2011)
197 Cal. App. 4th 159, 169–170.)
18
We review a removal order for substantial evidence
notwithstanding the clear and convincing standard used by the
juvenile court. (In re Kristin H., supra, 46 Cal.App.4th at
p. 1654.) “Thus, on appeal from a judgment required to be based
upon clear and convincing evidence, ‘the clear and convincing test
disappears . . . [and] the usual rule of conflicting evidence is
applied, giving full effect to the respondent’s evidence, however
slight, and disregarding the appellant’s evidence, however
strong.’ [Citation.]” (Sheila S. v. Superior Court (2000) 84
Cal. App. 4th 872, 881–882.)
Substantial evidence supports the juvenile court’s finding
that it was necessary to remove the children from Mother’s and
Father’s custody to protect them from a substantial danger to
their physical health, safety, or protection. In addition to the
evidence supporting the jurisdictional finding of risk of harm,
discussed extensively above, neither Mother nor Father had
begun a treatment program at the time of the disposition
hearing. Moreover, Mother had previously failed to comply with
the court’s orders and Father had allowed Mother to return home
knowing she had not addressed her drug problems. Thus, the
danger to the children was ongoing until Father and Mother
fulfilled the court’s reunification orders.
Father contends the alternative to removal is to allow the
children to remain with Father and Mother. In support of this
contention, Father repeats his argument that he and Mother had
provided a safe and healthy home for the children and would
continue to do so. As discussed above, the juvenile court
disbelieved that the children’s home life and success at school
was a result of Father’s and Mother’s efforts. Instead,
substantial evidence supports a finding that there existed a
19
danger to the children’s physical health or safety. Allowing the
children to remain in the home was not a viable alternative to
removal.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
BIGELOW, P.J.
We concur:
RUBIN, J.
FLIER, J.
20
Filed 12/13/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ALEXZANDER C. et al.,
Persons Coming Under the
Juvenile Court Law. B282183
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. CK81787)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICHARD C.,
Defendant and Appellant.
THE COURT*:
The opinion in the above entitled matter filed on
November 29, 2017, was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
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* BIGELOW, P. J. RUBIN, J. FLIER, J.
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