Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, Super. Ct. No. JJV060954. Charlotte A. Wittig, Juvenile Court Referee.
Colin J. Heran, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and P. Jarrett Cline, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
This is a mother’s appeal from the jurisdictional and dispositional orders of the juvenile court. The juvenile court adjudged appellant Kim M.’s three minor children dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b), and ordered family maintenance services be provided. We conclude the jurisdictional findings of the court are not supported by substantial evidence and will reverse.
All further references are to the Welfare and Institutions Code.
Factual and Procedural Histories
On the morning of July 6, 2006, Kim’s sons, Ethan (age 13) and Gabriel (age 10), were detained by Visalia police after the officers arrested Kim for participation in an armed robbery. A third child, 15-year-old Ruthanne, was not at home, but was traveling with a horse-riding team on which she participates. Kim denied involvement in the robbery and no charges were brought against her. Respondent Tulare County Health and Human Services Agency (Agency) filed a petition alleging that all three children came under the provisions of Welfare and Institutions Code section 300, subdivision (g), in that the mother was incarcerated and the father’s location was unknown. At the initial detention hearing, Kim was no longer in custody and the two boys were returned to her care. Kim refused to reveal where Ruthanne was located. Later, it was discovered that Ruthanne was staying with an older adult half brother, Garrett, after returning from her horse-riding trip. Ruthanne later rejoined her mother. The children’s father was identified as Manuel M. Kim and Manuel were married for 10 years. According to the social worker, they currently have a “conflictual relationship.” Kim has primary physical custody of the children and the two share legal custody pursuant to a family court order.
The original dependency petition was ultimately dismissed and the Agency filed an amended petition dropping the subdivision (g) allegations and adding a subdivision (b) allegation claiming that Kim’s substance abuse made her unable to provide regular care for the children and placed them at substantial risk of harm. Later, a second allegation was added alleging that Manuel had not protected the children from Kim’s substance abuse. Manuel has not appealed.
At the joint jurisdictional/dispositional hearing, the social worker presented information obtained from interviews with a number of family members, including Kim’s brother, R.H., Kim’s two adult children, Mercedes and Garrett, their father G.M., and Manuel. These individuals all reported that Kim has a long history of drug use and expressed the suspicion that Kim currently is using illegal drugs. All said that she associates with drug users and gang members.
According to Manuel, Kim’s drugs of choice are methamphetamine, crank, and cocaine. Manuel claims the children looked like “little orphan[s]” when they came to visit and that he purchased all their clothes. He indicated that Kim does not take the children to the doctor because she cannot afford the co-pay, and that when Ethan came to visit last summer he had serious tooth decay and needed braces. In addition, there is little food in the house and Ruthanne stayed away because she did not like the environment. Manual also claimed the family moved a lot (Mercedes said four times last year) since Kim did not use the support money he pays for the children and she fails to pay bills. He said Kim was “neglecting the children’s needs” and that their home was filthy. He related that Kim has mood swings and calls him screaming, but does not make sense. Manuel reported that Ethan told him Kim locks herself in the bedroom and uses drugs. Manuel did not say when Ethan reported this or how Ethan knew what Kim did in the locked room.
Garrett said Kim exhibits signs of current drug use, including mood swings, associating with drug users, being unstable, and picking at her face. He stated his mother does not use the child support money she receives for the children and that all the children’s clothes are purchased by Manuel. He said Ethan told him last year that he smelled marijuana in the apartment.
Mercedes indicated that her mother refused to answer when asked directly if she was using drugs. She said in the past she had purchased drugs for her mother and sold them for her. G.M. said he no longer has contact with Kim but that she has always been a drug abuser, has always had housing issues, and has never been able to maintain employment. His statement contains no current information regarding Kim’s lifestyle, other than a comment he heard last year from Ruthanne that the hot water had been off in the apartment for several months.
The social worker reported that Kim’s last substance abuse arrest was on February 10, 2003, for felony possession of a controlled substance. She violated her Proposition 36 probation and charges were reinstated in June 2006 because she had failed to comply with the terms of her probation. Kim tested positive on June 8, 2005, and refused to test on April 4 and June 21, 2005.
In contrast to the family interviews, the social worker reported that the children were physically and emotionally healthy, happy, and well-bonded to Kim. The children were observed to have excellent hygiene and appropriate dress. There are no medical or dental issues and the children’s immunizations are current. There are no reported school or legal problems with the children. All three children are involved in extracurricular activities. All of the children deny seeing their mother use illegal drugs or having unmet needs.
To the contrary, the children indicated they had no real relationship with their father, whom they had not seen for a year at the time of their detention. In fact, Ethan became upset when asked about his relationship with his father, telling the social worker that the last time he saw his father they had argued. Ethan said Manuel took the child’s clothes, money, and video games from him because Ethan said he did not want to live with him. Gabriel said he does not really know his father and that his father does not call him.
The juvenile court found the allegations of the petition true, adjudged the children wards of the court, and ordered that family maintenance services be provided.
Discussion
Sufficiency of the evidence to support jurisdictional findings
We begin with Kim’s challenge to the jurisdictional findings made by the juvenile court alleging they are based on insufficient evidence. After a thorough review of the evidence, we are compelled to agree.
At a jurisdictional hearing, a court’s finding that the children who are the subjects of the petition are children described in section 300 must be supported by a preponderance of the evidence. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the children within the jurisdiction of the juvenile court is admissible. (§ 355.) We review the jurisdictional findings by determining whether substantial evidence, contradicted or uncontradicted, supports them. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Tania S. (1992) 5 Cal.App.4th 728, 733.) “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation].” (In re Heather A., supra, at p. 193.)
The juvenile court sustained the allegations of the petition alleging that the children were in need of dependency as defined by section 300, subdivision (b), and finding that the three children were at substantial risk of serious physical harm or illness because Kim’s substance abuse made her unable to provide regular care for the children and unable to supervise or protect the children adequately. The court’s findings were based on the social worker’s report relating Kim’s substance abuse and her criminal history, including her positive test in June 2005 and her refusal to submit to drug tests in April and June 2005. The court also commented upon Kim’s frequent moves.
The purpose of section 300 is to identify those children over whom the juvenile court may exercise its jurisdiction and adjudge dependents. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) Although there is evidence to support the court’s finding that Kim has a history of substance abuse and may even currently be using drugs, there is no evidence that ties Kim’s substance abuse to her care of the children or the environment in which the children live. A parent’s criminal history or even pending criminal charges is not alone sufficient to prove detriment to the children. (See In re Aaron S. (1991) 228 Cal.App.3d 202, 210-211 [incarceration alone not ground for dependency].) Nor is a parent’s drug use alone sufficient to establish a substantial risk of serious harm. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 825-826; In re Ashley G. (1988) 205 Cal.App.3d 1235, 1243.)
The interviews with various family members, some of whom had not had regular contact with Kim or the children in recent years, do not speak to the current conditions of the home. Garrett, R., and G. live in Los Angeles and Mercedes lives out of state. The record does not establish the last time they saw Kim or the children prior to Kim’s arrest. Manuel reported that Kim had a long history of drug abuse and that he suspected she was currently using drugs. He indicated that she moved around a lot, associated with drug users and gang members, experienced mood swings, maintained a filthy home, and failed to obtain dental care for Ethan. Manuel lives in Anaheim and has not lived with Kim for many years. According to the children, Manuel had not seen them for at least a year at the time of the hearing. While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
We first address Manuel’s assertion that Kim fails to care for the children’s medical and dental needs. There is no evidence establishing that Manuel has the expertise to know whether “severe tooth decay” is present or whether a child “needs” braces. To the contrary, the social worker reported that the children currently have a dentist and there are no identified needs. Manuel said Kim did not take the children to the doctor, but fails to assert that there was a need to go to the doctor. According to the social worker, the children have a doctor and there are currently no health problems.
Manuel’s assertion that he pays for all the children’s clothes does not establish need. He is their father and it is appropriate for him to purchase their clothes. He contends that Kim does not use the money he pays for child support to benefit the children, but fails to identify any specific unmet needs. Manuel’s beliefs that Kim was not charged with the robbery because she cooperated with police, and that the children are in danger because gang members might retaliate, are speculative. Speculation and conjecture do not provide substantial evidence of a disputed fact. (Roddenberry v. Roddenberry (1996)44 Cal.App.4th 634, 651.) Manuel fails to give a time frame or context for Kim’s alleged mood swings and erratic behavior. For all we know, this behavior is reserved for Kim’s interaction with Manuel.
The reports made by Mercedes and Garrett that their mother has a long history of drug abuse is not current information, and the suspicion that she is currently using drugs is speculative. We are not concerned with Garrett’s assertion that Manuel buys the children’s clothes, and Garrett offers no evidence of other unmet needs. We are concerned about Garrett’s report that Ethan said last year he smelled marijuana at his mother’s house; however, there is no evidence that Ethan knows the smell of marijuana or what the circumstances were surrounding the alleged incident. A witness may only testify with respect to facts about which he or she has personal knowledge. (Evid. Code, § 702.) The children deny seeing their mother use illicit drugs. At this point, Ethan’s statement is without foundation to establish that Kim has used drugs in the home.
There is no evidence that the children have been homeless or are harmed by the reported frequent moves. There are no reports of school problems. There is no evidence that Kim uses the children to perform drug courier services or that the children are placed at risk by Kim’s sleeping patterns. Ruthanne did state that her mother’s friends are loud and she is not comfortable around them, but there is no evidence that these are the same people (the drug users and gang members) Mercedes referred to as associates of her mother’s. Evidence that Kim associates with drug users, without any further specifics, does not support an inference that the children’s well-being is at risk.
The lack of connection between the evidence and the Agency’s burden of proof is illustrated by the social worker’s report that, when she visited Kim’s apartment, another social worker waiting outside observed a car parked in front of Kim’s apartment being worked on by two individuals. According to the observing social worker, one of the individuals was under the influence of methamphetamine. No evidence linking this information to the mother was provided, nor was there any evidence this person lived in the apartment complex or had access to the children. For all we know, this was a chance occurrence unconnected with Kim or the children. To prove a fact in dispute, evidence must be relevant and provide a logical connection between the fact presented and the fact to be proven. (Evid. Code, § 210.)
Kim’s brother R. admitted that he did not know if Kim was currently using drugs. He gave no evidence about the current condition of the children or their home environment, other than the family moves around a lot. G.M. said he no longer has contact with Kim. His only comment about current conditions is something he heard from Ruthanne. There is no evidence to establish how Ruthanne knew the gas was off due to nonpayment of the bill or to prove that the lack of hot water is sufficient to place a child at risk of serious harm. This is the statutory threshold for dependency jurisdiction. (§ 300.)
“Substantial evidence” is not synonymous with “any evidence.” Substantial evidence is evidence of ponderable legal significance, reasonable in nature, and of solid value. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318-1319; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.) It is relevant evidence that a reasonable mind might accept as adequate to support a conclusion essential to the case. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335; Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651.) Mere conjecture does not constitute substantial evidence. Although a social worker’s report is admissible evidence in jurisdictional hearings (Cal. Rules of Court, rule 5.684(c)), speculation and opinion do not become fact simply by their inclusion in a social worker’s report. (See In re Basilio T. (1992) 4 Cal.App.4th 155, 165 [statement from witness not competent to testify will not support court’s finding even though found in social worker’s report].)
Even if we were to agree that Kim’s relatively recent criminal history, her arrest in 2003, her positive test on June 8, 2005, and her refusal to test in April and June 2005, confirm her family’s suspicions and establish relatively current drug use, this alone does not support dependency jurisdiction. There is no evidence about the extent or frequency of her use and no evidence of any negative impact on the children likely to lead to serious harm. The focus of a juvenile dependency proceeding is the well-being of the children. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599 [dependency proceedings brought on child’s behalf, not to punish parents].)
The circumstances under which a juvenile court may take jurisdiction of a child are narrowly defined by statute. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) Here, the only substantial evidence concerning the children’s current well-being is positive. The social worker reports that Kim is the primary caregiver and that all three of her children are strongly bonded to her and are comfortable in her presence. Contrary to Manuel’s assertion, the social worker reported that all three children had “excellent hygiene,” were appropriately dressed when interviewed, and have no health issues. The children do not complain of hunger, nor is there any evidence of inadequate food. The social worker reported that all three children had established relationships with a doctor and a dentist, were current in their immunizations, and are physically and emotionally healthy. The only problem reported was Ethan’s emotional stress concerning his relationship with Manuel, which was severe enough that the social worker recommended mental health services, to which Kim agreed.
The children are involved in extracurricular activities. There are no reported problems in school or known legal history involving the children. The prior dependency history for this family included three reports of abuse by Manuel in 1991, 1992, and 1993, and involved Mercedes and Garrett. The investigation found inconclusive evidence of abuse. There are four allegations involving Kim, including use of a belt against Mercedes; being homeless and using drugs; the home being filthy and the children dirty; and Kim testing positive for barbiturates. The Agency determined all of these reports, the last in March 1996, to be unfounded. As a result, they cannot provide evidence of current neglect or abuse. The children all deny seeing any drug use in their home and appear to have no discernable needs that are not being met. All three children, who are old enough to express themselves, say they feel safe and cared for in their mother’s home.
“The goal of dependency proceedings, both trial and appellate, is to safeguard the welfare of California’s children.” (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) Our federal Constitution, however, protects parents’ rights to care for, have custody of, and manage their children as a fundamental liberty interest that cannot be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood. (In re Isayah C. (2004) 118 Cal.App.4th 684, 696-697; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828.) Social workers may not impose their own value system on parents, no matter how admirable, and may not interfere with the parents’ rights to make fundamental parenting decisions. (In re Paul E. (1995) 39 Cal.App.4th 996, 1005.) The record contains no evidence that the children’s home environment has been or is currently detrimental to their physical or emotional well-being. (See Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1751 [allegation of petition must be supported by substantial credible evidence of detriment to child].)
This case stands in sharp contrast with, for example, In re Stephen W. (1990) 221 Cal.App.3d 629, 642, where there was uncontradicted evidence that the mother was a heroin addict and had ingested heroin on the day prior to her baby’s birth. In addition, there was evidence that the baby was born with opiates in his system and suffered harm as a result. Further, an expert opined that heroin addicts were unable to care properly for newborn infants. The children here, in contrast, are not helpless infants. There was no expert opinion linking the mother’s drug use with her ability to parent and no past harm alleged or proven.
Manuel claims Ethan was exposed to drugs while in utero, but there is no evidence to substantiate this claim and no evidence that Ethan was harmed as a result.
In In re Ashley G., supra, 205 Cal.App.3d at page 1243, the court, while observing that drug abuse does not always result in a disability that requires termination of parental rights, found evidence to support the juvenile court’s termination order where there was evidence that the mother was a regular PCP abuser, that the child was a three-year-old in need of constant care and supervision, and, from an expert, that the use of PCP by a parent would pose an immediate danger to any child supervised by that parent. (Ibid.) This is a substantially different record from the one we have here.
This case also lacks the proof found in In re Rocco M., supra, 1 Cal.App.4th at page 825. In Rocco M., the court found evidence that an 11-year-old child was at substantial risk of ingesting drugs as a result of his mother’s substance abuse because there was evidence that drugs were placed or left in a location where they were available to the child; the mother was frequently gone for prolonged periods of time, presenting the child with an opportunity to ingest the drugs; and the mother neglected the child’s needs in a way which might create the emotional and psychological conditions leading to substance abuse by the child. Lastly, by exposing the child to her own drug use, the mother impliedly encouraged the child to believe drugs were a legitimate means of coping with life’s difficulties.
We do not condone Kim’s use of illegal drugs, past, present or future, or her attitude that drug use is not a “big deal.” Drug use is illegal. The issue, however, in dependency proceedings is whether a parent’s conduct is harmful to the children or puts the children at risk of serious harm. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 716.) The dependency scheme recognizes that “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.” (§ 300.2) Here, however, the Agency has not met its burden of proof because there is no evidence of any negative effects on the current home environment of these children. As a result, the jurisdictional order must be reversed. In light of this, we do not address the remaining contentions raised by the mother on appeal.
DISPOSITION
The jurisdictional and dispositional orders of the juvenile court are reversed. We deny the mother’s request for judicial notice, filed on April 23, 2007, as moot.
WE CONCUR: Levy, J., Gomes, J.