Opinion
B303030
02-23-2021
In re I.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. HECTOR G., Defendant and Appellant.
Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP06954B) APPEAL from a judgment of the Superior Court of Los Angeles County, Rashida Adams, Judge. Affirmed. Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Hector G. appeals from the juvenile court's jurisdiction findings and disposition order declaring his two-year-old daughter I.G. a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b), and removing I.G. from his custody under section 361, subdivision (c). Father contends the evidence was insufficient to support the jurisdiction findings and removal order. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Dependency Referral and the Department's Investigation
Father and J. B. (Mother) are the parents of I.G, a girl born in October 2018. Mother also has a daughter, A.L., born in June 2016, from a prior relationship with Juan L. This matter came to the attention of the Los Angeles County Department of Children and Family Services (Department) on September 17 and September 18, 2019 based on referrals alleging domestic violence between Father and Mother and Mother's "disclosure that she had a desire to cut herself with a kitchen knife." On September 17, paramedics took Mother to the hospital, and the hospital staff placed Mother on an involuntary hold pursuant to section 5150.
On September 18, 2019, Father told the Department that Mother had "a history of mental health issues and has expressed suicide ideation in the past." Although Mother "was placed on psychotropic medication to regulate [her] mood," Father told the Department that Mother "has not been taking medication because she does not like how it makes her feel." Mother also had a history of postpartum depression following A.L.'s birth and had attempted suicide by running into traffic. On September 17, after Father accused her of infidelity, Mother "grabbed a glass 'bug zapper' and slammed it on the ground." She then "grabbed a piece of the glass and cut her wrists." Because the "cuts appeared superficial," Father "eventually convinced [M]other to go inside and wash up the cuts." Once inside, they resumed their argument until David Soto, a provider with the Welcome Home Baby program, arrived for a scheduled visit. Father and Soto agreed Father should leave with I.G. to allow Mother "to cool down."
Father stated that he and Mother had been "best friends since high school." After Father was incarcerated when he was 17 years old "for armed robbery and sentenced to 3 years for failure to surrender," Mother began a relationship with Juan and had her first child, A.L. After Father's release from prison, Mother "bounced back and forth between" Father and Juan. She eventually left Juan for Father when she was pregnant with I.G. Father "described himself as 'the jealous type' as he has insecurities about [M]other's fidelity because she has been unfaithful in the past." He also reported there had been recent tension in their relationship because "he fractured his arm and has been unable to work." Mother was working full time, "where [F]ather assumed that role in the past," and Mother "question[ed] why [F]ather did not clean the house while she was at work." Father reported that his not working "also leads to stress about finances as their lease is up soon and the family is unsure if they would be able to stay in the home."
Although Father admitted "he smoked marijuana and drinks alcohol," he denied doing so while I.G. was in his care. During a home assessment, the Department "observed an excess[ive] amount of beer bottles and alcohol bottles outside the kitchen door." Father claimed he was collecting the bottles for recycling. The Department also saw "marijuana containers and marijuana pipes" on a table at the side of the house. Father stated that "the children were not allowed to enter the side of the home" and "that he would store the marijuana out of reach of children." He also stated he was willing to submit to a drug test. Father "denied using other substances."
Aileen B., the maternal aunt, reported Mother "suffer[ed] from anxiety" and had "episodes" that involved crying and yelling. Mother had "gotten physical" with Father and Aileen. Mother tended to start arguments with Father and others in the home, and she punched Father in the head on a prior occasion. Aileen never saw Father hit Mother. Due to Mother's impulsive and unpredictable behavior, Father, Aileen, and Aileen's boyfriend G.H. had agreed not to allow Mother to be alone with the children. G.H. had observed Mother attack both Father and Aileen. Neither Aileen nor G.H. reported any concerns about Father.
In her September 19, 2019 interview with the Department at the hospital, Mother reported that Father was "'controlling.'" According to Mother, "[F]ather tracks her phone via 'Find my iPhone' and accuses [her] of being with other men if she arrives home late from work." During the September 17 incident, "[F]ather 'triggered' her" because he accused her of cheating. Mother stated her "anxiety got the best of [her]." She broke a "glass bug zapper" and cut herself "out of frustration." Mother acknowledged her actions had placed her life and I.G.'s life "at risk." She also stated that she knew she needed help for her mental health issues and that she was willing to take her prescribed psychotropic medication and participate in therapy.
Mother admitted that she had been physically aggressive with Father in the past and that she "punched him in the head as she had 'built up anger' towards [F]ather's accusation of cheating." She denied Father was ever physically aggressive with her. According to Mother, she and Father smoked marijuana, and Father "drinks beer often." They also used cocaine together on one occasion while they were outside the home and the children were not in their care. Mother "reported that [F]ather has been out of work since July 2019 after he fractured his arm when he fell off a skateboard." Mother stated "that she does not know if [F]ather is being truthful because she knows that he had a verbal argument with his supervisor around the same time." Mother also stated "that she feels stressed, overwhelmed, and has all the financial burden on her shoulders while [F]ather does not make an effort to seek employment." Mother had an informal custody arrangement with Juan in which A.L. spent alternate weeks with each parent. Mother communicated well with Juan and his family, and did not have any concerns about A.L. in his care. She agreed to allow A.L. to remain in Juan's care during the Department's investigation so Mother could "focus on treatment for her mental health concerns."
In his interview with the Department, describing Mother as "a beautiful mother who goes out of her way to protect the kids," Juan did not express any concerns about Mother's ability to care for A.L. or I.G. Juan was aware Mother suffered from mental health issues and "experienced postpartum depression with [A.L.]." Juan acknowledged Mother "tend[ed] to bounce back and forth between him and [Father], which has caused a lot of problems." Shortly after I.G.'s birth, Mother left Father and reunited with Juan. Mother and Juan lived together with the children for about a month before Mother left Juan and returned to Father.
On September 24, 2019, the Department interviewed Mother following her discharge from the hospital. Although she had not argued with Father since returning home, Mother told the Department that she had "decided to leave [F]ather." "Mother stated that she arrived to her decision after reflecting that she is able to be independent as [F]ather has not helped her in several months." "Mother stated, 'I have paid for everything, rent, bills, his clothes, everything. I don't need him. All he is really providing is childcare for [I.G.].'" Mother had not informed Father of her decision. Mother "decided to wait until she is stabilized on medication/treatment as she is worried about how she will be triggered by [F]ather's reaction."
In a further interview, after the Department informed Father that he had tested positive for amphetamine and methamphetamine on September 20, Father "appeared shocked" by the results. He stated that he had gone to a bar with friends on September 15 and that "he had gotten drunk and did not want to return home intoxicated so he 'snorted' what he thought was 'cocaine,' which he obtained from a friend at the bar." Father told the Department he "did not realize that he had snorted methamphetamine[ ]." Father "stated that he did not want to share [the test] results with [M]other." Father stated "that he had used methamphetamine[ ] as [a] minor, but stopped as he was arrested." He admitted that he had used cocaine at least three times since his release from prison. At a September 24 meeting with the Department, Mother, Father, and the paternal grandmother, Father signed a safety plan in which he agreed to enroll in Narcotics Anonymous by September 27 and "refrain from drug and alcohol use." Prior to the meeting, Father had disclosed to Mother that he had used cocaine. At this time, Father did not disclose his methamphetamine use to Mother. Mother stated "that she was aware of the cocaine because they had used [cocaine] together several weeks ago." At a further meeting with the Department on October 4, 2019, Father agreed to "stay on track" with the "substance abuse" issues, "continue to go to Narcotics Anonymous" and "get a sponsor," and "complete a substance abuse assessment."
On October 3, 2019, Father tested positive for cocaine and marijuana, and Mother tested positive for marijuana. When informed of his test results, Father stated he had used cocaine in the past, but had "not used recently." Father was not forthcoming with the Department about his drug use. Father also stated, "[H]e was reluctant to share results with [M]other because she would be upset." In discussing her positive marijuana test results with the Department, Mother said "that she was open to [the Department] about smoking marijuana and does not have an issue with quitting her use." When informed of Father's drug test results, Mother "stated that [Father] has not been honest with [M]other about his drug use and is concerned that [F]ather is using substances without her knowledge." She stated that she was "committed to protecting her children" and that she "does not want [F]ather around [I.G.] if he continues to use." "Mother indicated that she would have a conversation with [F]ather to determine what he is using and stated that she plans on leaving [F]ather due to drug use and other relationship issues."
Mother and Father "agreed that [I.G.] should not be left alone in [F]ather's care due to [F]ather's unaddressed substance abuse issues." On October 11, Mother and Father agreed to allow I.G. to continue to reside with the paternal grandmother during the Department's investigation. Although the paternal grandmother "was unaware of [Father's] substance use," she stated that she was "willing to protect" I.G. and "supervise contact between [F]ather and [I.G.]."
On October 18, 2019, Mother informed the Department that Father had disclosed his drug use to her and that Mother "had decided to end their relationship." "Mother indicated that after their lease is up, [M]other and [F]ather intend to go their separate ways." On October 23, Mother reported she was able to secure housing for herself and I.G. with the maternal grandfather. The maternal grandfather reported, "[H]e would be willing to be a support to [M]other by ensuring [M]other takes medication as indicated and attends all mental health services." Father "indicated that he does not know where he will be residing."
As of October 24, 2019, the Department observed that Mother was "receptive to receiving help to address mental health issues," was "motivated to change," and "has extended family support." The Department concluded: "[M]other has demonstrated protective capacities as evidenced by: [M]other actively participating in mental health treatment . . . , taking all prescribed psychotropic medication, leaving [F]ather when [M]other became aware of [F]ather's drug use, establishing an appropriate plan for [A.L.] to reside with [Juan], and agreeing to reside with maternal grandfather . . . for additional support, stability, and supervision." Regarding Father, the Department concluded that I.G. was "at a high risk of abuse and neglect by [F]ather "because of "[F]ather's substance use of methamphetamine[ ] and cocaine, and ongoing verbal disputes with [Mother]." Acknowledging that he had "'messed up'" by using drugs, Father stated "it would be best if he voluntarily 'gave up' custody of [I.G.] until he was able to get back on his feet." The Department reported that Father gave "verbal consent for a voluntary detention of [I.G.] due to [his] ongoing drug use and recent homelessness." The Department recommended that the juvenile court detain I.G. from Father and release her to Mother. The Department also recommended that A.L. "remain in the care of [Juan]."
B. Dependency Petition and Detention Hearing
On October 28, 2019, the Department filed a dependency petition on behalf of I.G. and A.L. containing one count pursuant to section 300, subdivision (a), and four counts pursuant to section 300, subdivision (b)(1). In counts a-1 and b-3, the petition alleged, Mother's and Father's "violent altercation in which [Mother] struck [Father's] face with [her] fist" and Father's failure to protect I.G. from Mother's "violent conduct" placed I.G. "at risk of serious physical harm." In count b-1, the petition alleged, "[Father] has a history of substance abuse including marijuana, methamphetamine and cocaine and is a current abuser of marijuana, methamphetamine, amphetamine and cocaine which renders [Father] incapable of providing regular care and supervision of [I.G.]." In this count, the Department further alleged: Father "was under the influence of illicit substances in the presence of [I.G.]. [I.G.] is of such tender age as to require constant supervision and [Father's] substance abuse interferes with [Father's] ability to provide care and supervision of [I.G.]." Count b-1 further provided, "[M]other knew of [Father's] substance abuse and failed to protect [I.G.]." In count b-2, the petition alleged that Mother "has a history of substance abuse including marijuana and is a current abuser of marijuana and cocaine" and that Father failed to protect I.G. The petition in count b-4 alleged, "[Mother] has a history of mental and emotional problems including suicidal ideations and suicide attempts which renders [Mother] incapable of providing regular care and supervision of [A.L.] and [I.G.]." The count also alleged that Father and Juan failed to protect their children from Mother's mental health and emotional issues.
At the detention hearing on October 29, 2019, the juvenile court found Father was the presumed father of I.G. and Juan was the presumed father of A.L. Father's counsel informed the court that Father "would be submitting as to detention as his housing is very fragile at the moment, but he would be requesting unmonitored visits with [I.G.] or, if the court is so inclined, to allow him to have unmonitored visits after three clean tests for meth and reduced or low levels of marijuana." Father's counsel added that "it did appear that the results of the meth [test results] are going down." Based on Father's drug use, the Department and I.G.'s counsel opposed Father's request for unmonitored visits. I.G.'s counsel argued, "I would oppose unmonitored visits for [Father] given his history of abusing multiple substances, including meth and cocaine that he used to sober up, due to his alcohol use as well as admitting to using alcohol and marijuana."
The juvenile court found a prima facie showing had been made that I.G. and A.L. were persons described by section 300. The court detained I.G. from Father and placed her with Mother under the Department's supervision. The juvenile court found: "The court orders [Father] to have monitored visitation at this time. The court notes that, as the evidence has been presented today, there are recent tests from [Father] of substances, including not only methamphetamine but also cocaine and admitted use. This is a very young child. So at this time, the court is ordering monitored visitation." The juvenile court ordered Mother not to monitor Father's visits. Regarding A.L., the juvenile court found "that there are services available to prevent detention from [Mother] and [Juan]." The juvenile court ordered A.L. released to her parents under the Department's supervision and on the condition that A.L. continue to reside primarily with Juan. The juvenile court scheduled the jurisdiction and disposition hearing for December 13, 2019.
C. Jurisdiction/Disposition Report
Mother reported that she and Father used alcohol and marijuana "to relax." While Mother only consumed alcohol in social situations, Father's "use of alcohol intensified when he sustained an injury [to his arm] and was not working." Mother denied using "illicit substances such as methamphetamine, amphetamine and cocaine." She also denied knowing that Father used methamphetamine or cocaine. Mother reported "feeling very upset" when she learned of Father's positive drug tests. She stated "the use of illicit drugs [was] a deal breaker for her in a relationship." Mother acknowledged she had "a history of mental health and emotional problems." According to Mother, she had symptoms of postpartum depression following A.L.'s birth. In late 2016 or early 2017, when Mother attempted suicide, Father and Juan were present. Father "caught her mid-air during the course of [the] attempt to jump in front of a moving vehicle."
Although Mother denied having suicidal ideations during the September 2019 incident, "she [was] in agreement with a depression/anxiety related diagnosis" and was "glad" to participate in mental health services. Mother reported she had panic attacks because she was "the only parent earning an income." When she arrived home from work, Father would "absolve himself from caretaking responsibilities regarding [I.G.] without providing her with an opportunity to settle in." Mother acknowledged "feelings of anxiety affected her mood and manifested in negative behavior." Juan reported that Mother had expressed concern about Father's "excessive drinking of alcohol" and the "limited source of income via employment by her spent on alcohol."
In his interview, Father indicated the issues related to domestic violence and his drug and alcohol use "were already reflected" in the Department's detention report. Father told the Department that any "additional statements [were] not necessary." Father was "especially reluctant to provide additional statements regarding domestic violence" because "written concerns make [Mother] sound as an aggressor." While Father admitted he and Mother had a history of verbal altercations, including the September 2019 incident that preceded Mother's hospitalization, he denied there were any physical altercations between them. Father told the Department that the September 2019 verbal altercation was "sparked by trust issues due to past infidelity." Father "acknowledged his use of alcohol increased significantly during the period of time he was unemployed due to sustaining an arm injury while riding a skateboard." Father admitted, "the use of other illicit drugs such as methamphetamine, amphetamine and cocaine but declined to provide further detail." Father denied that Mother had any prior knowledge of his "illicit drug use regarding methamphetamine, amphetamine and cocaine." Father refused "to provide any statements regarding [Mother's] mental and emotional health" and "requested [the Department] ask [Mother] herself." Father reported that he and Mother "remain[ed] in a relationship and already [were] in process of taking steps to resolve their issues in relationship."
In its report, the Department confirmed that Father had a prior felony conviction for robbery with use of "a deadly or dangerous weapon" (Pen. Code, §§ 211, 12022, subd. (b)(1)). In 2013, the criminal court sentenced Father to three years in prison. The Department reported that Father "remains on parole." Father was residing in Mother's car. Although he did not provide any test results, Father told the Department that he was participating in random drug and alcohol testing and that he had made an appointment at a recovery center for drug and alcohol services. Father reported that he was visiting with I.G. one to two times per week.
The Department recommended the juvenile court declare I.G. and A.L. dependents of the court and order family reunification services for Father and family maintenance services for Mother and Juan. The Department concluded that Mother and Father were "mutual combatants" in the domestic violence incidents. According to the Department, even if Father did not "become physically aggressive during [the] course of a verbal altercation," he was "emotionally abusive by making constant accusations regarding infidelity." The Department added that Father "also appeared to exhibit traits typically associated with a batterer such as extremely jealous behavior." The Department also observed that Father "was not initially truthful regarding his use of substances" and that Mother "should have known" about "the extent of [Father's] illicit drug use."
In a last-minute-information report filed on December 13, 2019, the Department stated Juan had reported his suspicion that Mother and Father were violating the juvenile court's order. According to Juan, Mother picked up A.L. on December 4 for a scheduled visit. Later, one of Juan's brothers saw Mother and Father together in a car, and then saw Mother drop off Father prior to returning to Juan's home. When the Department asked A.L. about the visit, she disclosed that Father had joined them at a restaurant. Mother "adamantly denied" that Father had attended her visit with A.L. and that she had been monitoring Father's visits with I.G.
D. Jurisdiction and Disposition Hearing
At the December 13, 2019 jurisdiction and disposition hearing, the juvenile court admitted into evidence the Department's various reports and a letter dated December 12, 2019 from the Boyle Heights Family Recovery Center. According to the letter, Father had enrolled in a treatment program on November 18. His program consisted of individual and group counseling, early recovery skills, drug and alcohol education, and relapse prevention. He had attended eight group sessions and seven individual sessions and had tested positive for marijuana on November 18. After stating that Father displayed "a positive attitude and outlook toward his recovery services," the letter described Father's "prognosis at this time" as "fair."
In asking the juvenile court to sustain counts b-1 and b-4, I.G.'s counsel argued "that the crux of this case is [Father's] substance abuse issues and [Mother's] mental health issues." I.G.'s counsel, however, joined with Mother's counsel in asking the juvenile court to strike Mother from count b-1 and dismiss counts a-1, b-2, and b-3. After hearing the further argument of counsel, the juvenile court sustained an amended version of the dependency petition. The court dismissed count b-2 based on Mother's drug and alcohol use, struck the allegations from count b-4 that Juan failed to protect A.L. from Mother's mental health and emotional issues, and sustained the remaining counts. The juvenile court declared I.G. and A.L. dependents of the court under section 300. In sustaining counts a-1 and b-3 based on Mother and Father's "violent altercation" and Father's failure to protect, the juvenile court found Mother had engaged in "ongoing violent behavior" toward Father in the presence of I.G., and Father "clearly knew of Mother's volatile and violent behavior as he was the person calming [her] down." In sustaining count b-1 based on Father's substance abuse and Mother's failure to protect, the juvenile court found Father had abused "multiple substances, not just marijuana but also cocaine [and] methamphetamine," and Mother knew of Father's substance abuse because she had "used cocaine with him" on a prior occasion. As to this count, the juvenile court further found: "[I.G.] is extremely young. The extent of the Father's substance use and abuse places [I.G.] at substantial risk of suffering serious physical harm due to his substance abuse." In sustaining count b-4 based on Mother's mental health issues and Father's failure to protect, the juvenile court ruled that the evidence showed "a pattern and history and unresolved nature of Mother's mental and emotional problems," which "impaired her ability to safely care for" her children. The court also found Father "clearly did know of [Mother's] mental and emotional problems and . . . the effect they were having on her ability to safely care for the children."
Turning to disposition, the juvenile court ordered A.L. released to Mother and Juan under the Department's supervision. The juvenile court ordered I.G. removed from Father's custody and remain placed with Mother under the Department's supervision. The juvenile court ruled: "The court's determination is based on the facts as found true in the sustained petition regarding the Father's unresolved substance abuse. The court notes that the [Father] appears to struggle with use of multiple substances. Not only was there evidence before the court regarding [Father's] use of substances, such as cocaine and methamphetamine[ ], . . . revealed during the investigation of this matter but also his own acknowledgment of a period of alcohol abuse, which was a point of contention between himself and [Mother]. Due to the extent of it, [Mother] made statements corroborating this in the jurisdiction and disposition report. [I.G.] is one year old. She is of tender years. The court finds that the Department has established by clear and convincing the evidence that removal from [Father] is necessary. The court finds the Department made reasonable efforts to prevent the need for removal, and there are no services available to prevent removal. The evidence before the court regarding [Father's] efforts to address the substance abuse are extremely new, in their infancy. The court finds that at this point, there are not services to prevent removal from [Father]. The court therefore orders [I.G.] removed from [Father.]" The juvenile court ordered the Department to provide services to Father, including parenting education and individual counseling to address case issues. The juvenile court ordered monitored visitation for Father with I.G.
Father timely appealed.
DISCUSSION
Father challenges the sufficiency of the evidence supporting the juvenile court's jurisdiction findings and disposition order. Father specifically contends the evidence was insufficient to support a finding of jurisdiction over I.G. based on his substance abuse issues (count b-1) and his failure to protect I.G. from Mother's domestic violence (count a-1) and mental health and emotional issues (count b-4). As to count b-1, Father argues, "Substantial evidence does not support the court's true finding for two reasons 1) Father was not a substance abuser; and 2) if the court could find that he was a substance abuser, his use did not cause a substantial risk that the child would be subject to neglect." Father also contends there was insufficient evidence to support the juvenile court's order removing I.G. from his custody.
Because Mother did not appeal the juvenile court's jurisdiction order and Father does not challenge the jurisdiction findings involving Mother, I.G. will remain a dependent of the juvenile court regardless of the outcome of Father's appeal. (In re Briana V. (2015) 236 Cal.App.4th 297, 308 ["'A jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent.'"].) We nevertheless exercise our discretion and reach the merits of Father's challenge to the jurisdiction findings as to count b-1 concerning Father's substance abuse because those findings "serve[d] as the basis for the dispositional orders" removing I.G. from Father's physical custody. (In re D.P. (2015) 237 Cal.App.4th 911, 917; accord, In re Madison S. (2017) 15 Cal.App.5th 308, 329; In re J.C. (2014) 233 Cal.App.4th 1, 4; In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) Further, "[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." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; accord, In re D.P., at p. 917; In re J.C., at p. 4; In re Drake M., at pp. 762-763.) Accordingly, we decline to address Father's challenges to the juvenile court's jurisdiction findings related to his failure to protect I.G. from Mother's domestic violence (count a-1) and Mother's mental health issues (count b-4) because Father has not shown how the resolution of those claims would have "'a single specific legal or practical consequence . . . either within or outside the dependency proceedings.'" (In re Madison S., at p. 329; accord, In re J.C., at p. 4.) Although Father argues the jurisdiction findings based on his failure to protect I.G. formed the basis for the juvenile court's order that he participate in counseling to address case issues, including domestic violence, he does not challenge that portion of the disposition order on appeal. Moreover, Father's challenge to jurisdiction based on his failure to protect I.G. from Mother's domestic violence is limited to count a-1 under section 300, subdivision (a). Father does not challenge the juvenile court's same true finding regarding count b-3 under section 300, subdivision (b)(1).
A. Substantial Evidence Supported the Jurisdiction Finding Based on Father's Substance Abuse
1. Applicable Law and Standard of Review
The purpose of section 300 "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2; see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.) "At the first stage of dependency proceedings, the juvenile court determines whether the child is subject to juvenile court jurisdiction; [the Department] has the burden to prove jurisdiction by a preponderance of the evidence." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) "At the second stage, the juvenile court must decide where the child will live while under juvenile court supervision; to support removal from parental custody, [the Department] has the burden to prove by clear and convincing evidence that there is a risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety." (Ibid.; see § 361, subd. (c); In re D.P. (2020) 44 Cal.App.5th 1058, 1068; In re D.C. (2015) 243 Cal.App.4th 41, 51, 54.)
We review challenges to the sufficiency of the evidence underlying jurisdiction findings and disposition orders for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Yolanda L., supra, 7 Cal.App.5th at p. 992.) "'Substantial evidence is evidence that is "reasonable, credible, and of solid value"; such that a reasonable trier of fact could make such findings.'" (In re L.W. (2019) 32 Cal.App.5th 840, 848; accord, In re D.C., supra, 243 Cal.App.4th at p. 52.) "'But substantial evidence "is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal.'"" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) ""'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.'"" (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; see In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a "juvenile court's conclusion 'supported by little more than speculation' [is] not based on substantial evidence"].)
"'"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.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court."'" (In re I.J., supra, 56 Cal.4th at p. 773; accord, In re S.R. (2020) 48 Cal.App.5th 204, 219.)
"The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re E.E. (2020) 49 Cal.App.5th 195, 206; accord, In re D.B. (2018) 26 Cal.App.5th 320, 328-329; In re D.C., supra, 243 Cal.App.4th at p. 52.)
2. Substantial Evidence Supported the Jurisdiction Finding
Section 300, subdivision (b)(1), provides, in relevant part, that a child comes within the jurisdiction of the juvenile court 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 or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." A finding of jurisdiction under section 300, subdivision (b)(1), requires the Department "to demonstrate three elements by a preponderance of the evidence: (1) one or more of the statutorily specified omissions in providing care for the child . . .; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C., supra, 15 Cal.App.5th at p. 561; see In re R.T. (2017) 3 Cal.5th 622, 628.) "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.'" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384; accord, In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216; In re S.O. (2002) 103 Cal.App.4th 453, 461.)
For children of "tender years" under the age of six, "'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.'" (In re Christopher R., supra, 225 Cal.App.4th at p. 1220; In re Drake M., supra, 211 Cal.App.4th at p. 767; but see In re David M. (2005) 134 Cal.App.4th 822, 825, 830 [requiring social services agency to offer evidence mother's substance abuse and mental illness caused harm to her two-year-old and two-day-old children, although mother's substance abuse and mental health issues were accepted as true, because harm "'may not be presumed'"].)
In addition, the Legislature has declared, "The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. Successful participation in a treatment program for substance abuse may be considered in evaluating the home environment." (§ 300.2.) "Exercise of dependency court jurisdiction under section 300, subdivision (b), is proper when a child 'is of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] health and safety.'" (In re Kadence P., supra, 241 Cal.App.4th at p. 1384; accord, In re Christopher R., supra, 225 Cal.App.4th at p. 1216; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
Here, the juvenile court reasonably found that Father had an "unresolved substance abuse" problem that placed his then one-year-old child at substantial risk of harm. The Department first made contact with the family on September 18, 2019, based on a referral alleging domestic violence between the parents. At that time, Father admitted to recreational use of alcohol and marijuana, but "denied using any other substances." Two days later, on September 20, Father tested positive for amphetamine, methamphetamine, and marijuana. When presented with the results, although he admitted past use of methamphetamine before his prison term, contrary to his prior denial of any current illicit drug use, Father claimed he had "snorted" a substance he believed was cocaine "because he had gotten drunk and did not want to return home intoxicated."
At a September 24 meeting with the Department, Father signed a "safety plan" in which he agreed to immediately enroll in Narcotics Anonymous and refrain from any "drug or alcohol use." However, 10 days later, despite his awareness that he was under Department scrutiny, Father tested positive for cocaine and marijuana and had not enrolled in a drug program. When the Department informed him of that test result, Father minimized his culpability, stating that he had "not used recently." Accordingly, even when faced with positive drug tests, Father was not forthcoming with the Department about the extent of his drug use. He also lied to Mother about his drug use "because she would be upset." Father's use of alcohol "intensified" after he injured his arm in a skateboarding accident and stopped working in July 2019. Father agreed that he "should not be left alone" with I.G. because of his "unaddressed substance abuse issues." Father also consented to I.G.'s detention from him because of his "ongoing drug use." When the Department questioned him for its jurisdiction/disposition report, Father "acknowledged the use of other illicit drugs such as methamphetamine, amphetamine and cocaine," but he refused "to provide further detail" to the Department about his drug use. Father's drug use substantially contributed to Mother's decision to separate from Father.
The juvenile court reasonably concluded Father's "efforts to address the substance abuse [were] extremely new, in their infancy." While Father agreed in the safety plan to enroll in a Narcotics Anonymous by September 27, he did not enroll in a drug program until November 18. Although his program's "progress letter" disclosed that Father had "drug tested positive" for marijuana on November 18, the letter did not reveal whether there were any subsequent drug tests or whether Father had tested negative for other substances. The "progress letter" also did not provide any explanation as to why the program concluded that Father's "prognosis" was only "fair."
Given Father's failure to cooperate with the Department and his failure to take responsibility for his actions, substantial evidence supported the juvenile court's finding that Father had a substance abuse problem. "[B]ecause [I.G.] is an infant, 'the finding of substance abuse [by Father] is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm.'" (In re Christopher, supra, 225 Cal.App.4th at p. 1220; see In re Drake M., supra, 211 Cal.App.4th at p. 767 [because "child was only 14 months old," the Department "needed only to produce sufficient evidence that father was a substance abuser in order for dependency jurisdiction to be properly found"].)
To be sure, the "tender years" presumption of a substantial risk of harm arising from a finding of the parent's substance is rebuttable. (In re Christopher, supra, 225 Cal.App.4th at p. 1219.) The record does contain some evidence supporting Father's claim that I.G. could be safe in his care. But the burden of rebutting the "tender years" presumption rested on Father and, as such, we may reverse the court's finding his substance abuse created a substantial risk of harm for I.G. only if the contrary finding was compelled as a matter of law—that is, only if Father's evidence was "'uncontradicted and unimpeached'" and "'of such a character and weight as to leave no room for a judicial determination that it was insufficient'" to carry his burden. (See Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978- 979; Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734; see also In re R.V. (2015) 61 Cal.4th 181, 201 [where party fails to meet its burden on an issue in the trial court, "the inquiry on appeal is whether the weight and character of the evidence . . . was such that the [trial] court could not reasonably reject it"].) Given the still-ongoing and uncertain nature of his treatment program, Father's evidence I.G. had not yet been injured as a result of his substance abuse falls far short of meeting that standard.
Father's contention he "does not fit the description of a substance abuser" as defined in the Diagnostic & Statistical Manual of Mental Disorders (DSM) is unpersuasive. In In re Christopher R., supra, 225 Cal.App.4th 1210, this court explained the DSM's definition of substance abuse "is not a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court, and we are unwilling to accept [the appellant's] argument that only someone who has been diagnosed by a medical professional or who falls within one of the specific DSM-IV-TR categories can be found to be a current substance abuser." (Id. at p. 1218.) Moreover, cases finding a substantial risk of harm to a child based on a parent's drug use "'tend to fall into two factual patterns. One group involves an identified, specific hazard in the child's environment—typically an adult with a proven record of abusiveness. [Citations.] The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.'" (Id. at p. 1220.) As stated, where, as here, the child is six years old or younger at the time of the jurisdiction hearing and thus falls within the second group, the juvenile court's "'finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm.'" (Id. at p. 1219.)
The latest version of the DSM, the Fifth Edition (DSM-5) published in May 2013, "more broadly defined classification of 'substance use disorders'" and now "combines substance abuse and dependence." (In re Christopher R., supra, 225 Cal.App.4th at p. 1218, fn. 6.) The Fifth Edition "identifies 11 relevant criteria, including 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. 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.)
Here, Father's substance abuse justified the juvenile court's exercise of jurisdiction over I.G. (See In re J.M. (2019) 40 Cal.App.5th 913, 922 [children age three and under were at substantial risk of harm based on mother's positive test for methamphetamine and cocaine and use of marijuana]; In re Kadence P., supra, 241 Cal.App.4th at p. 1384-1385 [mother's substance abuse problem and attempts to conceal it placed her infant daughter at substantial risk of harm, even though the child had not yet been harmed]; In re Christopher R., supra, 225 Cal.App.4th 1210 at p. 1220 [father's persistent drug use rendered him incapable of providing regular care for his infant child].)
B. Substantial Evidence Supported the Juvenile Court's Order Removing I.G. from Father's Custody
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child.'" (In re D.P., supra, 44 Cal.App.5th at p. 1065; accord, In re G.C. (2020) 48 Cal.App.5th 257, 265; In re D.C., supra, 243 Cal.App.4th at pp. 51, 54; see § 361, subd. (c)(1).) The juvenile court must determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
"In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B., supra, 26 Cal.App.5th at p. 332; accord, In re N.M. (2011) 197 Cal.App.4th 159, 170.) "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.'" (In re N.M. at pp. 169-170; accord, In re V.L. (2020) 54 Cal.App.5th 147, 154; In re D.B., at p. 328.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012 (O.B.); accord, In re V.L., supra, 54 Cal.App.5th at p. 155 ["O.B. is controlling in dependency cases"].) We review the entire record to determine whether the removal order is supported by substantial evidence. (V.L., at p. 155; In re D.B., supra, 26 Cal.App.5th at pp. 328-329; see O.B., at p. 1011.)
The same evidence that supported jurisdiction amply supported the removal order. Father nevertheless argues the juvenile court could have allowed "him placement of [I.G.] so long as he participated in his substance abuse treatment program and continued to test negative or with low levels of marijuana to demonstrate his abstinence from substance use." Father further argues that he showed "insight" into his substance abuse when he admitted to the Department that he had "'messed up'" and "voluntarily 'gave up' custody of [I.G.] until [he] was able to get back on his feet." At the disposition hearing, the juvenile court was reasonably concerned about protecting an "extremely young" child. As stated, the juvenile court reasonably concluded that Father's "efforts to address the substance abuse" were "extremely new, in their infancy." Father minimized his drug use, delayed enrolling in a treatment program, and refused to discuss his drug use with the Department. Given Father's continual lack of forthrightness about his substance abuse issues, the juvenile court reasonably concluded that I.G. could not safely remain in Father's care. (See In re Drake M., supra, 211 Cal.App.4th at p. 766 ["[t]he 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"].)
There was substantial evidence from which a reasonable trier of fact could have found it highly probable there was a substantial risk of physical harm to I.G. if she was returned home to Father, there were no reasonable alternatives to removal, and the Department expended reasonable efforts to eliminate the need for removal. (O.B., supra, 9 Cal.5th at p. 1011; see In re I.J., supra, 56 Cal.4th at p. 773 ["'[w]e do not reweigh the evidence'"]; In re S.R., supra, 48 Cal.App.5th at p. 219 [same].)
DISPOSITION
The juvenile court's jurisdiction findings and disposition order are affirmed.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
PERLUSS, P. J.
SEGAL, J.