In re J.L.

Filed 8/28/08 In re J.L. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Natasha L. appeals from the juvenile courts order declaring her eight-year-old daughter, J.L., and five-month-old son, Justin L., dependent minors, vesting Justins custody in the Orange County Social Services Agency (SSA), and vesting J.L.s custody with her father, Cesar G., with exit orders.^[1] She maintains the evidence was insufficient to support the findings of jurisdiction and removal. We disagree and affirm the courts order.

I

The 2003-2004 Prior Dependency Proceedings Regarding J.L.

In August 2003, then four-year-old J.L. was taken into protective custody and placed with her father, Cesar. In November, J.L. was declared a dependent child under Welfare and Institutions Code section 300, subdivision (b).^[2]The petition alleged Natasha left J.L. in the care of a maternal aunt and failed to provide adequate means of support or information about when she would return. Natasha had a chronic personal and criminal history of illegal drug[] use, which impaired her judgment. She had failed to participate consistently in her court-ordered Penal Code section 1210, subdivision (b), drug treatment program. It was reported Natasha had asked J.L. to urinate into a cup for Natasha to use for her own drug tests. Natasha often left J.L. with her maternal aunt, Sabrina V., for months at a time without making adequate provisions for the childs care and support. On one occasion, Natasha left J.L. home alone.

Natasha was offered reunification services, which included drug testing, counseling, and treatment. J.L. was placed with her father, Cesar. Natasha received family reunification services from August 2003 to November 2004, and family maintenance services from November 2004 to May 2005. In January 2004, the case was transferred to Los Angeles County, and jurisdiction was terminated in March 2005. J.L. was placed in Cesars primary custody.

The Underlying Petition Filed July 2007

Natashas son, Justin, was born prematurely (at 29 weeks gestation), in June 2007. When he was discharged from the hospital several weeks later, he weighed only four pounds, eight ounces. The social worker at the medical center reported Natasha was extremely hyper, but she thought this hyperactivity was behavioral, rather than related to substance abuse. At Justins birth, both Natasha and the baby tested negative for drugs. Natasha told the social worker she did not receive any prenatal care due to lack of insurance.

Natasha was only able to visit her newborn baby twice while he was in the hospital because she also was suffering from significant medical problems. After signing herself out of the hospital against medical advice on June 11, 2007, Natasha developed a painful infection (methicillin resistant staph aureus (MRSA)), at her cesarean-section incision site, causing significant discomfort. Natasha sought treatment from three different hospitals, where she had obtained several different oral medications, hydrocortisone cream, and morphine.

While Justin was still in the hospital, Natasha watched six videos relating to the care of a premature infant. The day after Justin was released from the hospital, Natasha developed an allergic reaction to one of her medications. She went to hospital in an ambulance due to hives and cellulites in one of her legs. The leg was very swollen and she could barely walk. When the hospital staff attempted to insert an intravenous (IV) tube into her arm, they observed much scar tissue and noted Natasha was very hyperactive. The initial report stated she appeared to be under the influence. A substance abuse screen was performed, and Natasha tested positive for methamphetamine and opiates.

Unaware that Natasha was in the hospital, Social Worker Nigel Bourne and a Public Health Nurse, April Orozco, made an unannounced visit to Natashas motel address on June 28. They found a maternal aunt, S.W., taking care of the baby and J.L. S. told the social worker Natasha had been living in the motel for approximately eight months, but had only recently moved into the same room as S. to obtain S.s help in caring for Justin. S. told the nurse that she was comfortable caring for newborns. S. had participated in a CPR class and child development classes, and had taken care of her niece who was also a preemie. She told the nurse she loved the baby and would do anything to continue to care for the child if [Natasha] [was] unable to care for [him]. S. stated J.L. primarily lives with her father, but visited Natasha on a regular basis.

S. had sufficient formula and supplies for Justin. The room was clean, tidy, and set up for care of the baby. The nurse noted in her report the room contained many new baby supplies including a crib, car seat, bouncy chair, clothing, and diapers. However, Natasha had not left a note authorizing S. to obtain medical care of her children in the event of an emergency. S. admitted she had not heard from Natasha all day despite S.s many telephone calls to her. During the two and one-half hour investigation, both S. and Bourne telephoned Natasha several times, but failed to make contact. At 8:00 p.m., S. was under the impression Natasha was still in the hospital. Bourne discovered Natasha had been discharged at 3:00 p.m., but had not called to check on the baby or update S. on her own condition.

The social worker, Bourne, had concerns about S. as a caregiver given her own drug and criminal history. S. was currently on parole. She was incarcerated for trafficking and possessing of drugs, and then reincarcerated for eight months ending in December 2006 for violating parole. S. insisted she was progressing well and had not experienced any problems since January 2007.

In addition, there were several inconclusive prior child abuse reports concerning J.L. and S. In February 2002, J.L. had a rash and reportedly was touching herself. J.L. stated aunt Brina touched her, but she would not respond when asked if aunt S. touched her. The Los Angeles Social Services recommended to Natasha that she no longer reside with S. as soon as possible as more information was obtained during the investigation regarding the maternal aunt. The abuse allegations were deemed inconclusive.

The following month, a report was filed after Natasha moved back in with S. Natasha stated she did not believe S. had been inappropriate with J.L. S. denied harming J.L. The allegations of neglect by Natasha were deemed inconclusive. In July 2002, it was reported Natasha was doing drugs and drinking and had left J.L. with S., who had been suspected of molesting the child in the past. The aunt, S., is herself a molest victim.

In light of this history, Bourne interviewed eight-year-old J.L. alone. He reported the child was somewhat nervous, but denied any neglect, physical abuse, or sexual abuse. J.L. stated she felt safe with her aunt, her father, and her mother. J.L. clarified she visited her mother every other weekend during the school year, but during the summer was with her mother from Wednesday to Saturday every week. It was reported J.L. appeared to be comfortable in this location and clearly was comfortable playing with the children of her mothers neighbors.

After his investigation, Bourne decided to leave the children in Natashas and S.s care on the understanding that they, and other extended family members who might be able to assist, attend a Team Decision Meeting [TDM] at the Social Services office the following day at 1[:00] p.m. The nurse reported Justin was clean and appropriately dressed and swaddled. She reminded S. it was important for the child to be closely supervised, and that he must be kept in a clean, safe environment. S. reported Justin was sleeping and eating well, and she intended to fill his prescription for a multi-vitamin that day. S. appeared to be confident Natasha would cooperate with social services. Bourne asked S. to have Natasha call him as soon as possible.

The following day, Bourne learned more details about the past child abuse reports concerning J.L.. He stated the primary reason for the detention in 2003 was that the mother had left the child in the care of another aunt, without adequate provisions, without medical consent, and without notification of her whereabouts, and it appeared that [Natasha] might be repeating these behaviors . . . having failed to learn from past mistakes and interventions. In addition, Bourne became concerned upon learning Natasha had not complied with the drug-ordered treatment program in 2003 and it appeared she was unwilling to cooperate at this time. By 11:00 a.m., the social worker had not heard from Natasha. She was not answering her home telephone number.

Bourne attempted to locate Natasha, S., and the children at the motel, but discovered none of them were there. Neighbors said Natasha had returned home the previous evening and took the children away despite S.s pleas to stay and cooperate with social services. The neighbors reported S. had gone so far as to call the Buena Park Police to prevent Natasha from leaving. However, the police allowed Natasha to leave because they found there was no paperwork ordering her to stay.

While Bourne was at the motel, S. returned to her room and confirmed what the neighbors had reported. S. added she gave Natasha the message to call Bourne, but Natasha tossed Bournes business card away. Natasha told S. that she might attend the TDM the following day, but S. had not heard from her that morning.

Natasha finally called S. close to 1:00 p.m., and stated she was now temporarily living in Stanton. Natasha also spoke to Bourne. She indicated it was not her intent to run away, and she was willing to meet with him.

Bourne and a police officer met with Natasha at her new residence in Stanton. Natasha explained she had just awakened and this was the reason she had not called anyone sooner. Bourne observed there were no other adults in the house and he wondered who was watching over the baby all morning. Natasha stated she planned to go to the TDM, but she was still waiting for a ride from S. She recognized this plan meant she would probably be very late to the meeting or would miss it.

When asked why she had failed to call Bourne that day, Natasha stated she did not know she had to call Bourne. She denied S. asked her to stay the previous evening. Natasha stated she left S.s room because of a mildew problem there. She also claimed she tried to contact S. while she was in the hospital. Natasha denied using methamphetamine, and opined the positive drug test results may have been caused by some of the other prescribed medication she was taking. She explained she had filled prescriptions for nine different medications (Prochlorper (for nausea), Hydralazine (for high blood pressure), SMZ/TPMS (antibiotic), Doxycycl. Hyc (antibiotic), Mentronidazol (antibiotic), Hydroxyz HCL (for skin irritation), Diphenhydram Ibuofen (pain), and Hydroco/APAP (pain)).

Bourne advised Natasha he intended to take Justin into protective custody, citing to: (1) Natashas present drug use; (2) her decision to leave the baby with an inappropriate caregiver and without medical consent; (3) her failure to cooperate with SSAs investigation; (4) her lack of stability; and (5) Justins high risk and vulnerability as a premature infant. Bourne and Natasha agreed J.L. should immediately be returned to Cesar. Justin was taken to the Orangewood Childrens Home.

The TDM was rescheduled for July 2. Before the meeting, Bourne met with Cesar and his wife, Lori G. They both expressed concern for J.L. due to the recent reports of Natashas drug use, her unstable lifestyle, and housing situation. They claimed to be unaware of the fact J.L. was being left with S. or with motel neighbors. Cesar stated he was paying for J.L. to attend counseling, but the family was unsure if they could afford the attorney fees associated with seeking a modification of the custody/visitation order in family law court.

At the TDM, the following risks and safety concerns were identified. Natasha had experienced numerous medical problems since giving birth. She had a number of prescriptions (including pain medication), obtained from different hospitals. She tested positive for methamphetamine and opiate use within 24 hours of Justin being returned to her from the hospital. As a vulnerable premature infant, Justin required a responsible caretaker, close supervision, and a clean and safe environment. There were concerns Natashas decision to have S. care for her children, given that S. was on parole for trafficking and possessing drugs. Finally, Natasha had a history of substance abuse and had lost custody of J.L. in 2003, after allegations of neglect and caretaker absence were substantiated. The petition recited these concerns as allegations warranting jurisdiction under section 300, subdivision (b).

The detention hearing was held on July 5, 2007. The court found a prima facie case had been made for the childrens detention. It authorized funding for

twice-weekly drug testing and authorized monitored visitation. In addition, the court authorized funding for Natashas transportation.

The following month, in the report prepared for the jurisdiction/disposition hearing (filed August 2, 2007), the social worker recommended the court sustain the petition, declare dependency, and offer family reunification services to Natasha. In her interview with the social worker, Natasha denied the allegations in the petition. For example, she stated the emergency room personnel told her she tested positive for amphetamines, not methamphetamine. She was taking Benadryl, Sudafed, and other prescribed medicines for her hives, which could account for the positive test for amphetamine. She explained the prescribed Vicodin would account for the opiate positive test. She denied using any illegal substances before her hospitalization, or anytime over the past four years.

Natasha stated she completed a drug treatment program in 2004-2005, and she attended an outpatient program in Long Beach for three days a week for three months. She did not continue with the program after the dependency proceedings ended with J.L. She shared joint legal custody of J.L. with Cesar, but he was awarded primary physical custody. She had the right to alternate weekend visits and several weeks in the summer.

Natasha admitted she used methamphetamine between the ages of 19 and 33. She told the emergency room nurse about her past IV drug problem because she had scar tissue on her arms and wanted to show the nurse the best place to draw blood. As for her decision to leave the children with S., Natasha explained she left a note authorizing emergency medical care in Justins diaper bag. She stated the allegations regarding S. had been proven wrong. However, Natasha also indicated she had been suspicious of S., as S. had been abused by her father who was a pedophile and when J.L. was [three years old], [S.] had displayed some inappropriate behavior. Specifically, Natasha came home one night to find S. and J.L. asleep on the couch with a vibrator nearby.

Natasha offered the following excuse for not receiving prenatal care. She contemplated getting an abortion due to health reasons, but after three and one-half months of pregnancy, she decided to keep the baby. She received an ultrasound examination when the fetus was five and one-half months. She took prenatal vitamins, but failed to follow up with any prenatal care due to lack of transportation. Natasha stated Justin was prematurely born before she had the chance to receive prenatal care.

The social worker also interviewed Cesar. He stated Natasha had used speed for a long time in the past and he was suspicious that she was still using it. Cesar stated J.L. would return from visits with Natasha dirty and hungry. Sometimes J.L. would tell him about being left with strangers who lived in Natashas hotel.

Cesar stated he helped Natasha for the week after she gave birth to Justin because she had many medical problems. Cesar reported Natasha admitted to him that she had used speed with S. the night before he took her to the Women, Infants, and Children (WIC) site. Cesar heard Natasha tell a nurse and doctor at WIC she had used methamphetamine. He overheard Natasha ask the lady giving her a breast pump if her one-time drug usage would affect her breast milk.

Cesar also noted Natasha had a habit of sleeping a lot. Once when he went to pick up J.L. at 3:00 p.m., Natasha was still sleeping. Cesar also played an irate and verbally abusive telephone message Natasha had recently left him, which blamed him for SSAs recent investigation. Cesar stated he did not trust S. due to the past allegations of molestation. He recalled Natasha had said S. may have abused her too, but she really did not remember. He stated Natasha does massage work, but he believes she also prostitutes. Cesar said S. told him that Natasha sets up a curtain in the motel room so that she can do massage work while J.L. sleeps. Finally, with respect to the allegation Cesar failed to protect J.L., he stated he was damned if he does and damned if he doesnt[.] He explained he has been concerned about Natashas drug usage and neglect, but there was nothing he could do about it because it was always just a suspicion.

A few days later, the social worker spoke to Natasha again about the allegations in the petition. When asked again about the lack of prenatal care, Natasha stated she did not know she was pregnant for the first three months. She went to Planned Parenthood for an abortion, but she was referred to the emergency room due to the pain she was having in her stomach. After an ultrasound, near her sixth month of pregnancy, Natasha was given a referral to another doctor, but she did not get a chance to see him because Justin was born soon thereafter. Natasha claimed she did not have transportation to get to [the] doctors appointments while she was pregnant, and [she] could not walk to the bus stop due to [a painful hernia condition].

The social worker also asked Natasha if she had admitted to WIC personnel she had used methamphetamine. Natasha explained she asked how long methamphetamine could stay in her breast milk if she was around someone who was smoking methamphetamine. She stated S. smoked methamphetamine in the hotel room, but she left the room right away because she was concerned the smoke would affect her breast milk.

The social worker also interviewed J.L. She stated that when Natasha has clients in the room, J.L. goes to her friends or aunts house while Natasha is working. She admitted she sometimes sleeps at her aunts house, and her mothers clients will come and get her and move her back into Natashas room. J.L. stated she did not think her mother uses drugs, and she usually smoked outside the motel room. J.L. stated she wanted to see her mother every weekend, and she believed it was unfair Cesar and her stepmother saw her more often than Natasha. J.L. stated she has a good relationship with S., and S. buys her things.

The social worker reviewed the toxicology drug test results for Natasha from the hospital. The results indicate Natasha tested positive for amphetamine and opiates. The social worker then spoke to the emergency response director at the hospital regarding the toxicology screen for amphetamine. The director stated Natasha did test positive for methamphetamine, but it was converted in the body to amphetamine. She reported that a confirmatory toxicology screen was not done. Next, the social worker spoke to Bourne (the initial emergency response social worker) who stated the hospital twice told him the drug screen was positive for methamphetamine. He added the hospital staff did not do any confirmatory tests because Natasha left the hospital. Finally, the social worker spoke with the WIC manager who reported, She had been apprised by her nurses of a situation with a client who had used drugs before or during her pregnancy, but denied any current use. She indicated that they did not make any report as the client denied using drugs.

In an addendum report filed August 16, it was reported Natasha tested negative for drugs on July 13, 19, 23, 26, and 30. However, on August 13 she told the social worker she had stopped testing because she had moved to Long Beach and she was unable to participate in any Orange County services. The next day, the social worker requested Natashas referral be changed to a Long Beach location.

The hearing was continued to September 7. An addendum report filed that day stated Natashas drug testing was transferred to a site two miles from Natashas current residence in Long Beach. On August 28, the social worker left Natasha a voicemail message informing her of the change. However, the social worker had not received any test results. On September 6, the social worker left another message for Natasha. It was reported Natasha was visiting her children twice a week.

The hearing was continued to September 21. In the next addendum report, filed that same day, the social worker stated she had spoken on the telephone with Natasha on September 18. Natasha acknowledged receiving information about the new drug testing site, but claimed it was too far away. She requested a bus pass because she did not have any funds, and due to her health issues (high blood pressure and excess weight) she could not walk to the site. However, Natasha still managed to visit her children regularly.

The hearing was continued to October 1. The addendum report filed September 28 contained no new information about Natasha. The hearing was continued to October 18, and the next addendum report stated Natasha had not provided any updated information regarding her participation in services. On October 10, the social worker went to Natashas home to hand deliver a bus pass. The apartment was gated, and no one responded to the door bell or telephone calls. Natasha had not drug tested since July. It was reported Natasha continued to have regular and appropriate visits with both children. She visited Justin twice weekly for one hour each time. She visited J.L. for four hours once a week.

The hearing was continued several more times throughout October. On November 2, the court heard testimony from Natasha and then continued the hearing many times throughout the month of November. The court heard additional testimony from Natasha on November 20 and 21. Her counsel entered into evidence medical records, verifications of program attendance, photographs, visitation agreements, drug test results, and an ultrasound worksheet.

At the hearing, Natashas testimony reiterated many of the facts contained in the social workers reports discussed above. Below is a summary of the new facts and allegations. Natasha attempted to minimize or deny the allegations. For example, she adamantly denied taking any illicit drugs after Justins birth, and she denied having a drug problem. She gave more details about her medical problems following his birth, and the prescription medication she received. She asserted the dirty drug test at the hospital on June 28 was due to these prescribed medications.

Natasha stated she was willing to attend any court-ordered plan. Since the detention (five months ago), she drug tested eight times early on, and she participated in Narcotics Anonymous (NA) meetings (but she had no proof of attendance). She failed to drug test from August to November because she moved and did not have transportation to the test site located two miles from her home. Natasha stated she hoped her case would be transferred to Los Angeles County, where she thought she had a better chance of regaining custody of her children.

Natasha testified she received the Los Angeles bus pass on October 9, and then one week later moved back to Orange County. She acknowledged that while she lived in Long Beach, her husband, friends, and family transported her to hearings and visits with her children in Orange County. Natasha admitted she did not ask anyone to transport her to the drug testing site. She offered several different reasons: (1) I tested eight times out here . . . [and] I brought paperwork from the hospital proving theres no reason for me to be here. Its social services job to get me my bus pass, you know[]; (2) I didnt want to, to tell you the truth[]; and (3) My kids were more important than drug testing and [I didnt] like to impose on people, it was hard enough.

Natasha admitted she asked questions at the WIC about the length of time it took for speed to be processed out of her body. She stated she was concerned her breast milk was contaminated because she was in the same room as S.s methamphetamine smoke. Natasha denied telling personnel at the WIC about her sisters drug usage because S. was on parole. Natasha stated that when Cesar questioned her about it, she told him she used speed with S. to protect S. She said Cesar hated S. and she did not want to get S. in trouble with parole. Natasha went to the WIC a few days after giving birth to Justin (June 8 or 10) and she saw S. smoking before the WIC visit. She also testified she saw S. smoking speed before Justin was discharged from the hospital (June 22 and 25).

Natasha maintained she never intended to live with S. after Justins birth. It was her plan to live with her friend in Stanton. She asserted her friend had moved about half of her belongings to Stanton by June 24. She explained she had not moved the crib because her friend couldnt fit the crib, and I wasnt done building it yet.

Natasha stated that on June 28 she had to go to the emergency room, and contrary to her earlier statements to the social workers, Natasha testified she did not have time to fill out any medical authorizations to leave with S. Natasha stated that when she was discharged from the hospital, S. told her she did not have enough gas to pick her up. Instead, Natashas friend in Stanton picked her up around 3:00 p.m., and Natasha slept until it was dark. She called S., who purportedly told her You cant come and get your kids. Social Services [were] here. You gave a dirty test at the hospital. Nevertheless, Natasha decided to collect the children from S. that evening, but S. did not want to let the children go. Natasha said her friend called the police, who allowed Natasha to take her children. Natasha claimed she asked S. to pick her up in time for the TDM at 1:00 p.m., the next day. She denied trying to hide from the meeting.

On November 21, the court amended the petition, striking the allegations relating to Natashas opiate use, and about her decision to leave the children with S. Added to the petition was the allegation: [Natasha] had knowledge of S.s drug history and incarceration and previous allegations of misconduct, as well as [Natashas] allegations of S.s current drug use. [Natasha] further placed the children at risk by allowing S. to be the primary caretaker of the children, and directing S. to transport the children. The court found the allegations in the amended petition to be true by a preponderance of the evidence and declared the minors dependents of the court. It placed J.L. in Cesars sole physical custody with exit orders of monitored visitation for Natasha. It vested custody of Justin with SSA for suitable placement.

The court concluded Natasha had an ongoing history of drug use. Supporting evidence included the extensive scarring of her injection sites, the dirty test at the hospital, Natashas queries as to whether her breast milk would be contaminated with methamphetamine, and her statement to Cesar that she had used speed with S. The court found highly questionable Natashas explanation she lied to Cesar to protect S., and it disbelieved Natashas claim she no longer abused drugs. The court also expressed concern that Natasha did not discuss her history of substance abuse with the doctors prescribing Vicodin, and she failed to request alternative medications.

The court found the evidence was clear Natasha failed to obtain regular and consistent prenatal care, which placed her child at significant risk. Furthermore, the court did not believe Natashas testimony that her plans for taking care of Justin did not involve S. because their shared motel room was set up for infant care. Natasha left J.L. and Justin in S.s care for a lengthy period of time. The court determined Natashas choice of caregiver was problematic given S.s history of drug use and incarceration. Natasha testified she knew S. was smoking methamphetamine, yet asked her to drive the children to the hospital, and asked her to care for a fragile infant. The court concluded Justins physical problems at birth demanded he receive the highest degree of care and competency, which did not occur.

II

The juvenile court found that jurisdiction was appropriate under section 300, subdivisions (b) and (j). To support a finding of jurisdiction over a child under section 300, subdivision (b), the juvenile court must find the child fits within the following description: The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . . ( 300, subd. (b).) A petitions allegations under section 300, subdivision (b), must contain three elements: (1) neglectful conduct by the parent in one of the specified forms [i.e., the parents failure or inability to adequately supervise or protect the child]; (2) causation; and

(3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Thus, the petition must allege facts showing either actual serious harm or illness, or the substantial risk of future serious physical harm, from a parents failure to protect or supervise the child.

A reviewing court must uphold a juvenile courts finding if there is any substantial evidence to support the finding. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) In reviewing a finding for substantial evidence, [a]ll reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile courts order. [Citation.] (Ibid.) If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed [citation]. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)

There was substantial evidence from which the court could determine there was a substantial risk of serious harm to the minors. Natasha was unable to provide regular care for her children because the evidence indicated she had an unresolved substance abuse problem, which impaired her ability to protect and keep them safe.

Evidence of her drug usage included: (1) statements from the hospital staff who noted Natasha was extremely hyper, she had extensive scar tissue on her arm, and she tested positive for methamphetamine and opiates; (2) statements from Cesar who heard Natasha admit she used speed, and who overheard Natasha ask WIC personnel how long speed would stay in her body; (3) Natashas failure to provide a reasonable explanation for her failure to drug test from August to November 2007; and (4) her lengthy history of abusing drugs and drug-related crimes reflected a serious addiction and high potential for relapses. The only evidence to the contrary was Natashas testimony she was not using drugs and the dirty test at the hospital was caused by prescription drugs. The court did not find her testimony and self-serving statements to be credible. On appeal, we must defer to the lower court on issues of credibility concerning the evidence and witnesses.

The court also reasonably relied on evidence Natashas drug use put her children at substantial risk of serious physical harm. She left the children with an inappropriate caregiver. Natasha admitted she knew S. was on parole, and she had recently been incarcerated for drug-related crimes. She also acknowledged S. had relapsed, having witnessed S. smoke methamphetamine on at least two recent occasions. She remembered that in the prior dependency proceedings, SSA advised Natasha to not live with S. due to a suspicion she sexually abused J.L. And finally there is Natashas own testimony she believed S. was a liar.

Nevertheless, Natasha asked S. to drive and care for her children over extended periods of time. As noted by SSA, S. could have been driving under the influence of drugs placing the children in danger. Similarly, she could have been rearrested for violating her parole and would not have been able to care for the children. The court reasonably rejected Natashas claim she did not intend S. to be the childrens caregiver. Natashas assertion she did not live with or plan to rely on S. to help with the baby is highly questionable given the evidence S.s motel room was set up to care for the baby. It contained the babys crib, car seat, food, and other supplies. S. had prior experience caring for a premature infant and testified Natasha had moved in with her. Moreover, J.L. confirmed S. often looked after her when Natasha was away or working with massage clients.

It was troubling Natasha failed to keep in contact with S. either during or after her brief hospitalization for hives. She did not provide medical authorizations to be used in her absence. And after being discharged, she spent approximately five hours sleeping at a friends house. She did not check on the status of her children that day, or keep S. informed of her medical condition. When she became aware a social worker wanted to talk to her as soon as possible, she did not cooperate by calling, but rather collected her children from S. and moved to a different location.

Based on the above conduct, the court reasonably concluded Natasha was relapsing into her past pattern of neglect, which supported jurisdiction under section 300, subdivision (b). In 2003, dependency proceedings were initiated due to Natashas drug usage and pattern of abandoning J.L. with other caregivers without adequate means of support. As noted by the social worker, there was substantial evidence to indicate history was repeating itself. Natasha was relapsing into her longtime drug problem and forgetting the duties and responsibilities she owed to her young children. The juvenile court could reasonably reject Natashas more favorable explanation of events, and as noted above, this court cannot reweigh the evidence or credibility determinations.

In light of our conclusion substantial evidence supported the section 300, subdivision (b) allegation, we need not reach the question of whether the evidence supported the section 300, subdivision (j) allegations because we may affirm a jurisdiction ruling if the evidence supports any of the counts concerning the child. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-877.)

III

Natasha argues there was insufficient evidence to support the juvenile courts ruling the children could not be safely returned to her. We disagree.

Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. ( 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor 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. [Citations.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

On appeal, Natasha points to several favorable facts to support her claim the children could be safely returned to her. Specifically, she testified she has a large studio apartment, she is willing to drug test, and she has transportation to the drug testing site. Natasha argued she participated in services in the previous dependency proceedings, and there is no reason to believe that she will not participate in services here.

This argument ignores the large quantity of evidence indicating Natasha has relapsed into using drugs, and has a pattern of exercising poor judgment with respect to her childrens care and safety. In the first five months of these dependency proceedings, Natashas conduct has not been exemplary. At the very beginning, she failed to cooperate with SSA. She did not return social worker Bournes telephone calls, she threw away his business card, she moved the children to a different location, and she failed to appear at the scheduled TDM. A few weeks later, the children were removed from her custody, Natasha moved to Long Beach because she believed the court would give her more favorable treatment, and coincidently, the change of residence gave her new excuses not to drug test for five months. Natasha secured transportation to visit her children in Orange County, but not to the drug testing site less than two miles from her residence. She refused to participate in other services and was unable to provide any paperwork to support her claim of attending NA meetings. In the prior dependency proceedings, in 2003, J.L. was detained in part because Natasha was not participating in her court-ordered drug treatment program, and Natasha was having J.L. urinate into a cup for her to use for the drug tests.

In sum, Natasha has a history of being resistant to services and, therefore, it would not be reasonable to assume she would necessarily participate this time around. As expressed in the previous section of this opinion, the dangers posed by Natashas relapse with drugs, history of neglect, reliance on inappropriate caregivers, and prolonged absences justified the juvenile courts removal of the children. While we sympathize with Natashas medical difficulties following Justins birth, there are many other factors unrelated to her illness in this case to support a finding there was substantial risk of serious harm to the children if they remained in Natashas care.

IV

The order is affirmed

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

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^[1] Cesar and Justins father have not filed an appeal.

^[2] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.