In re L.B.
Filed 1/27/14 In
re L.B. CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re L.B. et al., Persons Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent,
v.
D.F. et al.,
Defendants and
Appellants.
B249849
(
Super. Ct. No. CK98334)
APPEAL from a judgment and orders of
the Superior Court of Los Angeles County,
Stephen Marpet, Judge and Marguerite D. Downing, Judge. Affirmed.
Megan Turkat Schirn, under
appointment by the Court of Appeal,
for Defendant and Appellant D.F.
Jesse McGowan, under appointment by
the Court of Appeal, for Defendant and Appellant D.B.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel,
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
D. F. (mother) and D. B. (father) appeal
from the dependency court’s order of May 21, 2013, placing parents and L.
B. (“L.â€), D. B. (“D.â€), and D. B. (“D. B.â€) (hereinafter, the children) under
the supervision of the social
worker pursuant to Welfare and Institutions Code
section 360, subdivision (b),
support the sustained allegations that their drug use creates a risk of harm to
the children. We affirm.
L., born in 2005, D., born in 2008,
and D. B., born in 2012, are the children of mother and father,
nine years. The parents abused
cocaine. Father belonged to a
criminal street gang. He had a history of
convictions for possession of marijuana for sale (
dangerous weapons (former Pen. Code, § 12020, subd. (a)(1)), attempted murder
(Pen. Code, §§ 664, 187, subd. (a)), accessory (Pen. Code, § 32), and
carrying a loaded firearm (former Pen.
Code, § 12031, subd. (a)(1)). Father’s most recent
conviction was in 2005. Mother had a history of
convictions for loitering (Pen. Code, § 653.22, subd. (a)), grand theft
property (Pen. Code, § 487, subd. (a)), marijuana while driving (Veh. Code, § 23222,
subd. (b)), unlicensed driver (Veh. Code, § 12500, subd. (a)), and
(b)).
On March 13, 2013, the Los Angeles
Sheriff’s Department conducted a search of the family residence as part of an
investigation to locate firearms used in recent crimes. Father was the target of the search warrant. In the parents’ bedroom were found an empty .40 caliber semi-automatic
gun magazine and five .45-caliber bullets.
Several baggies containing what appeared to be narcotics residue and a
small scale were found in the kitchen. The entire family was at home except L., who lived with her cousin during
the school week to attend school and returned home on weekends. L. regularly missed school. Four friends of father were
found in the residence. Mother did not know who they
were. The residence belonged to
father’s cousin, and the family had been living there since October 2012. Mother admitted she used cocaine at a club two days earlier,
children. She stated she did not use
cocaine often. Father admitted the empty
magazine belonged to him and that he took a “Molly,†which is a derivative of
Ecstasy, two days earlier at a party. Methamphetamine is the prime ingredient of Ecstasy. Father was arrested for being an ex-felon in possession of live
ammunition.
Parents tested positive on March 14,
2012, for cocaine metabolite. Father did not test positive
for methamphetamine.
The children were detained by the Department of Children and Family
Services (Department) following the execution of the search warrant, and a
section 300 petition was filed. At the detention hearing on
March 18, 2013, the children were released to parents.
During an interview for the jurisdiction hearing report, mother denied a
history of using drugs and stated she used cocaine on that single occasion only.
She denied knowledge father
had a criminal history or used drugs. Father denied knowledge mother used drugs. Parents denied knowledge of the baggies with drug residue or the bullets.
Father stated he did not
know what was in the “Molly†when he took it. He denied a drug abuse history or that he experimented with drugs in the
past.
The
family moved to another apartment in April 2013. The parents’ drug tests in late March and April were negative. The parents enrolled in rehabilitation programs.
On May 21, 2013, the court sustained
an amended petition, finding the children were persons described under section
300, subdivision (b), in that: mother
and father were current users of cocaine which renders them unable to provide regular
care and supervision, and, on March 11, 2013, parents were under the influence
of drugs while the children were in their care, which endangered the children;
and father has a criminal history of conviction of possession of marijuana for
sale, and his illegal drug use endangers the children. The court stated: “the parents
appear . . . [to have] minimized their [drug] use. Each of them indicate[s] that it was a one
time use. I note that [father] has a
conviction for possession of sale of marijuana.
I also note that the court’s concerns is that the parents’ use of
narcotics make[s] them susceptible to facts that drugs are not that bad for
you, hanging out with the people who use drugs are not that bad, based upon
their living environment. [The facts
that ammunition was found in the home accessible to the children and father has
convictions for weapons offenses are] factors in looking at the totality of
this. I also note that there has been
some missing of school. I note that the
parents have gotten into programming, but the court has a concern that the
parents are minimizing their drug use and there are bigger problems going on
and that court supervision is warranted.â€
The court did not declare the children dependents of the court. The court ordered the children to remain released to parents. Pursuant to section 360, subdivision (b), parents and children were
placed under the supervision of the Department for six months. Parents were ordered to participate in a drug program with random
testing, parenting, and individual counseling.
DISCUSSION
Substantial evidence supports the jurisdictional findings.
Parents
contend substantial evidence does not support the finding their drug use placed
the children at risk of harm, under section 300, subdivision (b). We disagree with the contention.
“ ‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we determine if
substantial evidence, contradicted or uncontradicted, supports them. “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.†(
183, 193.) “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. [Citations.]
‘ “[T]he [appellate] court must review the whole record in the light
most favorable to the judgment below to determine whether it discloses
substantial evidence .
. . such that a reasonable trier of fact could find
[that the order is appropriate].†’
[Citation.]†(
315, 321.)’ (See In re Angelia P. (1981)
28 Cal.3d 908, 924.)†(
substantial evidence supports the finding, not whether a contrary finding might have been
made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Section 300, subdivision (b), in pertinent part, describes a child
who “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 . . . to provide regular care for the
child due to the parent’s . . . substance abuse.†“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. (1991) 1 Cal.App.4th 814, 824.)
The purpose of the juvenile court law is to provide “maximum safety and
protection for children†being harmed or who are at risk of harm. (§ 300.2.)
“The provision of a home environment free from the negative effects of
substance abuse is a necessary condition for the safety, protection and
physical and emotional well-being of the child.
Successful participation in a treatment program for substance abuse may
be considered in evaluating the home environment.†(Ibid.)
Mother admitted to using cocaine on March 11 and tested positive
for cocaine on March 14. Father admitted
to ingesting a derivative of Ecstasy, whose main ingredient is methamphetamine,
on March 11. His positive test for cocaine
on March 14 indicates he ingested cocaine as well. Mother admitted she used cocaine on prior
occasions. Subsequently, parents denied
prior drug use. However, each parent had
a conviction for a drug-related offense, and several
baggies containing what appeared to be narcotics residue, along with a small
scale, were found in the kitchen of the family’s home. As the family had been living in the
residence for six months, it is reasonable to infer those items belonged to
them. The court did not believe parents’
denials of prior drug use and found parents were minimizing their drug
use. This is substantial evidence the
parents currently abused and had a history of abusing drugs. D. and D. B. lived at home with parents and
L. was at home on weekends. March 11 was
a weekend day. Thus, the children were
in the care of parents on March 11 when parents used cocaine and Ecstasy. This is substantial evidence parents were
under the influence when the children were in their care. The risk to children being
cared for by a parent under the influence of drugs is not speculative. (See § 300.2; compare In re Drake M. (2012) 211 Cal.App.4th 754, 768-769 [no evidence
parents’ medical use of marijuana under a valid recommendation from a physician
created a risk of harm].) Parents were
not rehabilitated: they were enrolled in
a drug rehabilitation program but had not completed it, and they were in denial
of their drug use. It is reasonable to
conclude that parents’ illegal drug use currently placed the children at risk.
The
foregoing is ample substantial evidence supporting the court’s findings parents
abused drugs and their drug use placed the children at substantial risk of
harm.
DISPOSITION
The
judgment and orders are affirmed.
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH,
J.
statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.
provides: “If the court finds that the
child is a person described by Section 300, it may, without adjudicating the
child a dependent child of the court, order that services be provided to keep
the family together and place the child and the child’s parent or guardian
under the supervision of the social worker for a time period consistent with
Section 301.†A disposition order made
under section 360, subdivision (b) is an appealable order. (In re
Adam D. (2010) 183 Cal.App.4th 1250, 1259-1261.)
