Filed 11/30/18 In re A.P. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

J.S. (Mother) challenges jurisdictional and dispositional orders in this juvenile dependency proceeding commenced under Welfare and Institutions Code section 300. She contends the court misunderstood the law and there is no substantial evidence to support its findings. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

A.P. (Minor) was born in 2012 to Mother and B.P. (Father), who have been in the process of divorcing.

A. Referral and Initial Detention

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In April 2017, the Humboldt County Department of Health and Human Services, Child Welfare Services Division (CWS), received a referral alleging Mother’s and Father’s neglect of the Minor, based on Mother’s consumption of alcohol, driving under the influence, and passing out and leaving the Minor unsupervised, as well as Father’s inability to protect the Minor from Mother.

In its investigation, CWS learned that Mother took the Minor to a party on March 18, 2017 and became intoxicated. Mother’s friends warned her not to drive. Mother nonetheless drove the Minor home, went out again, and was arrested around 11:35 p.m. for driving under the influence. In the early morning, the Minor walked to Father’s house and told him she was left alone.

Mother admitted to the social worker that she had two “DUI’s” in the past two years but denied that she had a problem with alcohol or that the Minor was in the car when she drove under the influence. Mother refused to discuss the details of her latest DUI. The police report indicated that Mother was identified as the driver, she emitted an extremely heavy odor of alcohol and slurred her speech, but she denied drinking. Officer Heyne observed several bottles of alcohol on the front passenger side of the car and a partially consumed bottle of alcohol on the floorboard. Mother was on summary probation at the time for a “wet reckless” (Veh. Code, § 23103.5), was uncooperative with the officer, and had a blood alcohol content of .33 percent.

Father told a social worker that Mother had physically attacked him several times, grabbed at the Minor when she was in his arms, and dropped the Minor at least six times when she was intoxicated.

The Minor told a social worker that Mother pushed her and Father, had once passed out and could not be woken up, “always” drank liquor before getting into the car, and stumbled and fell many times.

During a meeting with the social worker in July 2017, Mother appeared tired, her eyes were glossy, her hands were shaking, and she had difficulty maintaining a conversation. She claimed she last consumed alcohol in May 2017 and the Minor’s statements about her drinking were due to Father’s influence.

The court ordered the Minor placed in protective custody.

B. Dependency Petition

In August 2017, CWS filed a petition under subdivisions (a) and (b) of Welfare and Institutions Code section 300, alleging that the Minor was at substantial risk of suffering serious physical harm due to Mother’s drunk driving and alcohol abuse. As to subdivision (a), CWS alleged that the Minor was at substantial risk of serious physical harm inflicted nonaccidentally by Mother because Mother drank and drove with the Minor in the car and had two arrests for driving under the influence in two years. As to subdivision (b), CWS alleged that Mother was unable to provide regular care for the Minor due to substance abuse, in that Mother passed out in the home and the Minor had been unable to wake her, the Minor had seen Mother stumble many times, Mother pushed Father, and Mother had been arrested for driving under the influence.

C. Detention

At the contested detention hearing in August 2017, Mother did not dispute that her blood-alcohol content was measured at .33 percent, but she denied having an alcohol problem or needing treatment.

The court detained the Minor based on a prima-facie showing that she was described by section 300, noting the evidence that Mother “[had] a significant problem with alcohol abuse, and that abuse impair[ed] her ability to make prudent decisions necessary to protect [the Minor] from being at risk of substantial harm.”

D. Jurisdiction

1. Report

The jurisdictional report set forth the evidence leading up to the Minor being placed into protective custody. In 2008, Mother was arrested twice for disorderly conduct by being drunk in public (Pen. Code, § 647, subd. (f)) and resisting arrest (Pen. Code, § 148, subd. (a)); in June 2008, she pled guilty to resisting arrest and the disorderly conduct charge was dismissed. In November 2015, Mother was arrested for driving under the influence (Veh. Code, § 23152, subd. (a)); in July 2016, she pled no contest to violating Vehicle Code section 23103 and was sentenced under Vehicle Code section 23103.5 (wet reckless). In March 2017, she was arrested for a violation of Vehicle Code section 23152 with an allegation that she had a blood alcohol content of .33 percent.

The social worker opined that the Minor was harmed because she saw Mother passing out from consumption of alcohol and was unable to wake her. The Minor spoke about being in the car with Mother after she had been drinking. On one occasion, Mother pushed the Minor and Father while under the influence. The social worker concluded there was a danger that, if the Minor remained in Mother’s care, Mother would continue to drink and place the Minor at risk of serious physical harm or death.

Attachments to the jurisdictional report included the police report of Mother’s March 2017 drunk driving arrest, Father’s log of incidents involving Mother’s drinking, and Mother’s declaration that she was not an alcoholic and had 18 negative drug tests.

2. Hearing

At the jurisdictional hearing on September 6, 2017, the court received the jurisdictional report.

Tracy Rain testified that she was close friends with Mother and Father, saw Mother at least five times a week between Spring 2016 and mid-March 2017 because Mother worked in Rain’s office, observed Mother intoxicated once since July 2015, had not smelled alcohol on her breath after work hours since May 2017, and did not believe Mother had a drinking problem.

Mother testified that she had not consumed alcohol since May 22, 2017. She did not believe that the Minor made the statements attributed to her in the jurisdictional report, thought Father was trying to alienate her from the Minor, and denied pushing the Minor or Father.

At the continued hearing on September 7, 2017, Father introduced a video depicting his interaction with Mother on May 17, 2017, to establish that Mother pushed Father while he was holding the Minor. Father referenced four separate points where the video showed Mother hitting or pushing him.

3. Order

The court found that the Minor was described by subdivisions (a) and (b) of section 300 and sustained the petition. The court opined that Mother clearly had an alcohol problem and the video showed that Mother had “pushed [Father],” “ran into him,” or done “something,” even though Father displayed a calm demeanor. Although Mother may have stopped drinking, her claim that she was going to “AA” was suspect because she showed no familiarity with the program. The court noted that Rain, an attorney, was extremely careful in parsing her testimony to be supportive of Mother without lying to the court.

D. Disposition

1. Report

The disposition report recommended that the Minor be placed with Father and that Mother receive services to address alcohol abuse and anger management, so Mother could provide a nurturing, alcohol-free home.

Although Mother initially denied that she abused alcohol and blamed Father when confronted with the evidence, she recently appeared more open to intervention. Visits were going well. For Minor to be returned to Mother’s care, Mother would have to engage in counseling to address her anger and aggression towards Father, demonstrate an understanding that incidents of violence in front of the Minor could have lasting psychological effects, and show an ability to refrain from drinking alcohol while caring for her daughter, since her pattern of excessive drinking directly impacted her parenting.

An addendum report dated on November 8, 2017, informed the court that CWS had reduced Mother’s visitation with the Minor to the minimum because Mother interacted inappropriately with Father during transitions after visits.

2. Hearing

At the disposition hearing on November 14, 2017, the court advised that it received and considered the disposition report and addendum reports.

Mother testified that she had been sober since May 22, 2017 and recounted her participation in “AOD” classes. Her lawyer insisted that Mother posed “no conceivable risk” to the Minor.

The social worker testified that she had ongoing concerns about Mother’s sobriety. Service logs indicated that the visitation supervisor smelled alcohol on Mother on September 26, 2017. More recently, the supervisor smelled marijuana on Mother.

3. Order

The court adopted the findings and orders recommended by CWS, placed the Minor in Father’s home, and ordered reunification services for Mother. The court advised that its rulings were based on Mother’s alcohol abuse, driving under the influence with a wet reckless conviction and high blood alcohol count, and aggressive behavior toward Father.

This appeal followed.

II. DISCUSSION

A. Jurisdictional Findings

The juvenile court asserts dependency jurisdiction over a child “when one of the statutory prerequisites listed in section 300 has been demonstrated.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) When a dependency petition alleges multiple grounds for jurisdiction, a reviewing court may affirm the juvenile court’s jurisdictional finding if any one of the petition’s statutory bases for jurisdiction is supported by substantial evidence. (In re D.P. (2014) 225 Cal.App.4th 898, 902.)

As relevant here, subdivision (b) of section 300 allows the juvenile court to take jurisdiction when a child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the parent’s failure or inability to adequately supervise or protect the child, or by the parent’s inability to provide regular care for the child due to the parent’s substance abuse.

Although section 300 requires proof the child is at risk of harm at the time of the jurisdiction hearing, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383.) The court may consider past events when determining whether a child presently needs the juvenile court’s protection, because a parent’s past conduct is a good predictor of future behavior. (In re T.V. (2013) 217 Cal.App.4th 126, 133.) “ ‘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.’ ” (In re E.B. (2010) 184 Cal.App.4th 568, 575.) We review for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.)

Here, a reasonable inference from the evidence was that Mother struggled with a serious alcohol problem for years. She had an alcohol-related arrest in 2008 and was arrested in 2017 for driving under the influence of alcohol while still on probation for a “wet reckless” conviction imposed less than two years earlier, with a condition that she not drive with any alcohol in her system. Mother denied she had been drinking and driving, even though her car contained empty bottles of alcohol and another half-empty bottle, she smelled of alcohol and was slurring her speech, and her blood alcohol content was .33 percent. Mother’s friends warned her not to drink and drive, but she ignored their advice. When confronted with evidence of her alcoholism, Mother denied having a problem and blamed Father for the Minor’s statements.

Substantial evidence supported the conclusion that Mother’s consumption of alcohol led to a substantial risk of serious physical harm to the Minor. The Minor reported that Mother “always” drove after drinking, with the Minor in the car, and the bottles in Mother’s car tended to corroborate Mother’s drinking and driving. Driving under the influence is “extremely dangerous to human life.” (Veh. Code, § 23593.)

Furthermore, substantial evidence supported the conclusion that Mother pushed the Minor and physically assaulted Father with the Minor in Father’s arms (according to Father) or on his back (according to the Minor). Although Mother denied it, the video showed Mother had “pushed” Father, “ran into him,” or done “something” that led the court to its conclusion. The video also showed the Minor saying she wanted to be with Father, telling her Mother to leave, and stating she was “scared” when she was around Mother.

Finally, there was ample reason to conclude that Mother was not a credible witness, in light of her claim to police that she had not been drinking, her denial of a problem with alcohol, and the inconsistency between her testimony and the video. Credibility findings are for the juvenile court. (In re R.T., supra, 3 Cal.5th at p. 633.)

Mother points to her testimony that she did not consume alcohol after May 22, 2017 – an assertion Rains tended to corroborate – so by the time of the September 2017 jurisdictional hearing she had not been drinking for three months. She contends there was accordingly no evidence that she had a current inability to provide regular care due to alcohol abuse. We disagree. Although the evidence might be subject to differing inferences, it supported the inference drawn by the court: the relatively short period of Mother’s purported sobriety still left a present substantial risk of serious physical harm from an inability to provide regular care due to the lengthy and serious alcohol problems Mother had suffered.

Mother fails to establish that the court erred in sustaining the allegations under subdivision (b) and finding jurisdiction.[1]

B. Removal at Disposition

For a child to be removed from parental custody under section 361, subdivision (c)(1), CWS had “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” physical health. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) If these elements are satisfied, removal is appropriate even if the parent is not dangerous and the minor at issue has not yet been harmed. (In re Francisco D. (2014) 230 Cal.App.4th 73, 82–83.) Jurisdictional findings are prima facie evidence that the child cannot be returned safely to the home. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The court may consider the parent’s past conduct as well as present circumstances. (Ibid.)

Ample evidence supported the finding that the Minor faced a risk of substantial harm if returned to Mother and there were no reasonable means of protecting the Minor without removal. The evidence indicating such a risk at the time of the jurisdictional hearing was sufficient to indicate a risk at the disposition hearing just two months later. Although Mother had taken steps to initiate treatment, she claimed sobriety for only a few months compared to her years of alcohol abuse. She could not control her interactions with Father during supervised visitation, even though she knew that her behavior was distressing for the Minor. Despite her claim that she was not drinking, a visitation supervisor detected the odor of alcohol on her person in September 2017 and the odor of marijuana more recently. Furthermore, CWS’s disposition report set forth its efforts to avoid removal, the court found that reasonable efforts to avoid removal had been made, and Mother fails to show that this finding was not supported by substantial evidence. Under the circumstances, it was reasonable to conclude that removal was necessary to protect the Minor.

Mother contends she had been sober for six months at the time of the disposition hearing and tested 30 times with negative results. As mentioned, however, a reasonable inference is that a risk of substantial harm remained, given her long history of substance abuse, her relatively short period of sobriety, and the indication that she smelled of alcohol even though she denied drinking.

Mother also argues that the juvenile court misunderstood the law to require removal under the circumstances, and there was nothing counsel could do to dissuade the court from removing the Minor because the court believed “[a]lcoholism is not something that disappears in six months.” She contends the court failed to show an awareness that it could protect the Minor without removal by ordering family maintenance services and requiring Mother to abstain from alcohol entirely, subject herself to substance abuse testing, submit to random checkups by a nurse at her home, participate in more intensive substance abuse counseling, remain physically apart from Father, and refrain from driving with the Minor in a car.

Mother’s arguments are unpersuasive. First, the court is presumed to know and follow the law, and the record does not reflect any misunderstanding by the court. (See Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) Second, there was sufficient evidence that no alternative short of removal would suffice, in light of CWS’s prior efforts to avoid removal and Mother’s long-standing alcohol abuse and continuing to smell of alcohol. The juvenile court has broad discretion in making a dispositional order. (In re Cole C., supra, 174 Cal.App.4th at p. 918.)

III. DISPOSITION

The orders are affirmed.

NEEDHAM, J.

We concur.

SIMONS, ACTING P.J.

BRUINIERS, J.

(A153062)