In re K.F.

Filed 8/18/09 In re K.F. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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D.F. (appellant), the father of K.F. and A.F. (minors), appeals from the juvenile courts orders adjudging the minors dependent children of the court and removing the minors from parental custody. (Welf. & Inst. Code,  360, subd. (d), 395.)[1] Appellant challenges the sufficiency of the evidence to support the juvenile courts jurisdictional findings and dispositional order of removal. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 14, 2007, the Sacramento County Department of Health and Humans Services (DHHS) filed original juvenile dependency petitions on behalf of then days-old K.F. and almost-two-year-old A.F. Those petitions alleged in part that the mother of the minors had a substance abuse problem, dating back to at least October 2006, and that she tested positive for cocaine when K.F. was born.[2] The petitions also alleged appellant failed to protect the minors, as he knew or should have known the minors mother was using illegal drugs, but he permitted the mother to be the primary caretaker of the minors. According to the petitions, appellants failure to protect and the mothers substance abuse places the [minors] at substantial risk of physical harm, abuse, or neglect.

The minors mother, who was 33 years old at the time the petitions were filed, reported a substance abuse history beginning with marijuana when she was 17. She also used heroin and cocaine. The mother admitted testing positive for cocaine during both pregnancies. However, the mother explained that on the night before she gave birth she had smoked a cigarette, later confirmed to be laced with cocaine. According to appellant, the mother got a contact high from smoke in the air on that occasion, resulting in a positive test at the birth of K.F. The mother claimed appellant was unaware of her drug relapse, which had occurred in 2006, before she knew she was pregnant with K.F.

Appellant has a substance abuse history consisting of marijuana and methamphetamine use. He denied any recent use.[3] Appellant denied having any reason to know the mother had used illegal drugs again. He admitted knowing of the mothers drug history, but insisted she would not use illegal drugs knowingly, especially when she was pregnant with K.F. Appellant also explained he was gone from his home with the mother for long periods of time, attending a trade school.

At the conclusion of the jurisdictional hearing, the juvenile court sustained the allegations in the petitions pertaining to the mothers substance abuse and appellants failure to protect the minors. Thereafter, at the dispositional hearing, the minors mother testified she used cocaine last in January 2007. According to the mother, recently she had been drug testing three times per week, without testing positive for illegal drugs. The mother also testified she did not know why she tested positive for cocaine use when K.F. was born.

At the conclusion of the dispositional hearing, the juvenile court adjudged the minors dependent children and ordered custody of the minors removed from appellant and the mother of the minors. The court found DHHS made reasonable efforts to prevent or eliminate the need for removal of the minors from parental custody. The court also ordered DHHS to provide appellant with reunification services.

DISCUSSION

I

Appellant contends the evidence is insufficient to support the jurisdictional findings by the juvenile court that he knew or should have known the minors mother was abusing illegal drugs, and that he failed to protect the minors. According to appellant, there was no showing of any harm caused to the minors by any drug abuse by the mother. Arguing there was no reason for him to believe the mother was using drugs, appellant asserts the courts findings were based on speculation.

Our review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)

The purpose of section 300 is to protect children from conduct or omissions by parents that place the children at a substantial risk of suffering serious physical harm or illness. ( 300, subd. (b), 300.2.) In this case, the petitions alleged generally the minors had suffered or were at a substantial risk of suffering serious physical harm as a result of their mothers substance abuse and appellants failure to protect them.

In evaluating the evidence, emphasis must be on circumstances existing at the time of the jurisdictional hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) But evidence of past problems may be relevant to current circumstances and thus may be considered. (Cf. In re Michael S. (1981) 127 Cal.App.3d 348, 358.)

The evidence before the juvenile court at the jurisdictional hearing was in the form of social workers reports. The juvenile court indicated it had considered those reports. The court also referred to various other documents and arguments submitted in connection with the proceedings.

Subdivision (b) of section 300 provides for jurisdiction where there is a substantial risk the minor will suffer serious physical harm or illness as a result of various types of conduct or acts of omission on the part of the parents of the minor.

Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record supports the juvenile courts jurisdictional findings under subdivision (b). Appellant and the minors mother had lived together for some time, as appellant was the father of the older minor. Appellant was aware of the mothers drug abuse history, and knew or should have known that she was using cocaine during her first pregnancy. Despite that fact, admitted by the mother, appellant continued to insist that the mother would not use drugs while pregnant. On this record, it was reasonable for the court to infer, as it did, that appellant knew or should have known of mothers recent drug abuse, and it was up to the court to resolve any credibility issue against appellant. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

Relying in part on cases such as In re David M. (2005) 134 Cal.App.4th 822 (David M.), appellant suggests that, as the record contains no evidence the minors had been harmed, any conclusion the minors were at a substantial risk of harm was speculative. We disagree with that assertion.

As we have suggested, although it is not overwhelming, the record contains sufficient evidence that appellants actions exposed very young minors to a continued risk of suffering physical injury. Unlike David M., which involved a diagnosis of mental illness four years before proceedings began, and drug use three years previously (David M., supra, 134 Cal.App.4th at pp. 825, 831-832), here the juvenile court had before it evidence of recent drug abuse by the minors mother and a pattern of conduct by appellant. That pattern consisted largely of denial and an implausible explanation of smoke in the air to account for the mothers use of cocaine the night before she gave birth to K.F. Such an explanation was not proffered by the mother, who gave other, varying reasons for the positive test. It is true, as appellant asserts, that the record did not reflect any recent illegal drug use by him. However, by continuing to support the mother in her denials, appellant was failing to protect the minors.

On this record, although the evidence of a substantial risk to the minors due to appellants failure to protect them is not overwhelming, the juvenile court reasonably could conclude, as it did, that appellant knew or should have known that the minors mother had used illegal drugs again; therefore, appellant failed to protect the minors from a substantial risk of harm. Substantial evidence, rather than speculation, supports the courts jurisdictional findings. (Cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 169.)

II

Appellant claims the evidence is insufficient to support the juvenile courts dispositional order removing the minors from parental custody. According to appellant, the record is bereft of evidence of harm or a substantial danger to the minors if they were not removed, and there is a lack of evidence that no reasonable means existed other than removal to protect the minors. Appellant also avers the courts removal order was based on speculation.

To support an order removing a child from parental custody, the juvenile court must find clear and convincing evidence that [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. ( 361, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor and state the facts on which the decision to remove the minor is based. ( 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test set forth above (In re Heather A., supra, 52 Cal.App.4th at p. 193), and evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

Appellant argues the juvenile court failed to consider lessdrastic measures than removal. But the record reflects, and the court found, DHHS had made reasonable efforts to eliminate the need for removal of the minors from parental custody. Unfortunately, those efforts had not succeeded. Until appellant establishes he can benefit from the provision of additional services, there is ample evidence the minors safety and well-being in appellants home would be in serious jeopardy if the minors were returned to appellants custody.

On the record presented to the juvenile court, it is difficult to discern how supervision by DHHS or any other alternative to removal would have been successful in assisting appellant to maintain a home safe for the minors. Appellant denied problems existed, despite evidence of substance abuse by the minors mother. He continued to live with the mother. Moreover, he expressed conflicting views on his willingness to participate in services.

In sum, no reasonable means short of removal of the minors would be adequate to protect the minors well-being. As the juvenile court suggested, the purpose of the services offered to appellant and the mother was to aid in possibly reunifying with the minors. Unfortunately for appellant, as the court also observed, so far appellant has done little to avail himself of services.

Appellants reliance on In re Steve W. (1990) 217 Cal.App.3d 10, 22 is misplaced. Unlike there, where the parent ended an abusive relationship, here appellant was continuing to rely on the mother for the minors care, and he continued to deny any problems existed. Therefore, removal of the minors was based on facts contained in the record, rather than speculation about a potential risk of harm to them.

Appellant also relies in part on In re James T. (1987) 190 Cal.App.3d 58 and In re Jeannette S. (1979) 94 Cal.App.3d 52. Those cases also are distinguishable. Although the mother in James T. was faced with economic instability, there were no dangerous circumstances present and the 16-year-old minor faced circumstances that were far from urgent. (In re James T., supra,at p. 65.) In Jeannette S.,the minor was in good health and in no immediate danger from conditions in the home. (In re Jeannette S., supra,at pp. 56-58.) Here, on the other hand, two young minors lived in a dangerous environment, and appellant denied any problems existed.

On this record, as we have seen, no alternative other than removal of the minors from parental custody would have protected the minors.

Substantial evidence supports the dispositional order of removal, which the record reflects was supported by factual findings made by the juvenile court.

Disposition

The orders of the juvenile court are affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

HULL, J.

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[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] The mother of the minors is not a party to this appeal.

[3] The record reflects both appellant and the minors mother have 2002 substance abuse convictions.