Filed 3/30/22 In re A.W. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendants and Appellants.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.

Fifteen-year-old A.W., 12-year-old S.W., and seven-year-old E.W. (collectively, Minors)[1] appeal from the juvenile court’s disposition order removing Minors from Heather W.’s (Mother) custody. Minors argue the evidence does not support the juvenile court’s finding that removal of Minors from Mother’s custody was the only way to protect them. We conclude substantial evidence supports the juvenile court’s finding that removal was necessary and that there was no other reasonable means to protect Minors. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Minors lived with Mother and Father, although Father was often away from the home due to his work as a commercial fisherman. On July 4, 2021, Mother was transported to the hospital after A.W. called 911. A.W. told police that Mother slipped and hit her head on July 1, 2021. Mother “seemed okay” after she fell, but A.W. called 911 “just in case” because her younger siblings S.W. and E.W. were worried. E.W. reported that Mother was essentially asleep for the next two days, and when she did wake up, she was “half-asleep” and difficult to understand. A.W. had been taking care of her siblings ever since Mother’s fall because Father was away on a commercial fishing trip. A.W. also reported that she often takes care of her siblings when Mother runs errands.

The responding police observed the house to be cluttered with trash and clothes, and there was little food. The hallway cupboard doors were broken off the hinges, a window was opened, the bathroom smelled of cat urine, and two toilets had not been flushed in a while and were filled with feces. Paramedics found Mother inside her bedroom, laying on the floor against the wall, with multiple alcoholic beverages strewn about. She was lethargic, dazed, and confused. A neighbor helped the police contact Father, who gave two neighbors permission to watch Minors until he returned that night.

At the hospital, physicians determined Mother was experiencing toxic encephalopathy, opiate overdose, and benzodiazepine overdose.[2] There was no sign of acute intracranial abnormality and physicians suspected Mother’s altered mental state was likely a result of her drug overdose.

The following day, Mother was arrested for domestic violence after an argument with Father. Mother had checked herself out of the hospital unbeknownst to Father. Two neighbors saw Mother drive into her driveway “very erratically and fast.” A man pulled up behind Mother’s vehicle and asserted that Mother almost hit his vehicle. The man informed Father that Mother was driving erratically on her way home. Mother and Father began arguing because Mother wanted to drive C.W. somewhere and Father would not give Mother the car key. Mother kneed Father in his genitals and hit his face. Several neighbors reported that Mother and Father played “tug o’ war” with C.W., as Mother tried to pull C.W. out of Father’s hands, which both Mother and Father denied. Several neighbors also reported that Mother’s speech was slurred during this incident.

The Agency received referrals about the July 4, 2021 and July 5, 2021 incidents on July 6, 2021 and July 7, 2021, respectively.

A female neighbor informed the Agency that this was not the first time she observed Mother to be under the influence of some sort of substance because in the past, Mother has been incoherent during conversations. Several neighbors and a family friend also confirmed the concerning condition of the family home, including descriptions of there being dirt, baby urine on the floor, dishes stacked up high, trash everywhere, and that the little food that was in the kitchen was rotten.

The family also has a prior child welfare history. In 2018, C.W. was born with breathing issues and with Oxycodone in his system. Mother did not receive any prenatal care during her pregnancy and her preliminary drug result was positive for Oxycodone. When questioned by the registered psychotherapist, Mother denied any substance abuse, but admitted to taking unprescribed Oxycodone three to four days prior to C.W.’s birth because she had a headache. The investigation was closed as inconclusive.

Two years later, in June 2020, after their landlord reported that the condition of the home was not fit for the family of six, a social worker observed trash, feces, mold, piles of clothes, clutter, debris, bugs, insects, and cobwebs throughout the home. While the home did appear to be messy, disheveled, cluttered, and presented a strong odor, the social worker did not observe health or safety hazards. The social worker concluded that there was insufficient evidence to indicate that Minors had endured neglect, and closed the referral as inconclusive.

About a year later, in March 2021, C.W. fell out of a second story window of the home, and was taken to Rady Children’s Hospital. C.W. had a contusion on the front left side of his forehead but did not have any open wounds or blood on his body. According to the police report, Mother heard C.W. crying outside shortly after sending C.W. upstairs with his sister. Mother went outside and noticed C.W. face down on the ground, on top of a window screen. Mother stated it was an accident and that she called 911 immediately. Mother and Father did not engage with the Agency during this referral.

During the course of the current investigation, Father stated that Mother contacted him after she fell, but he did not believe Mother was under the influence of any opiate or opioids. Father did not know if Mother uses any substances and denied having ever seen her use any drugs, smoke marijuana, or even drink. He was not concerned about Mother being under the influence of any substances, and believed that Mother’s altered state was due to hitting her head when she fell. He also attributed the condition of the home to Mother having a concussion and being unable to clean. Father indicated that Mother is the primary caretaker of Minors because he is gone for days, weeks, or months at a time for his commercial fishing job. He confirmed that A.W. helps Mother watch the other siblings “every once in a while.”

When asked about her hospitalization, Mother denied being under the influences of opioids or opiates. She declined to do a drug test and asserted that she was already tested at the hospital and the jail, but refused to sign an authorization form for the Agency to obtain those results.

On August 5, 2021, the Agency filed petitions[3] for Minors under Welfare and Institutions Code section 300, subdivision (b),[4] alleging Minors suffered or were at substantial risk of suffering serious physical harm or illness as a result of the failure or inability of Minors’ parent to supervise or protect Minors adequately. The petitions alleged inability of the parent to provide regular care for Minors due to the parent’s mental illness, developmental disability or substance abuse. Specifically, the Agency alleged Mother used opiates and benzodiazepines in excess and was transported to the hospital on July 4, 2021, after the oldest minor, A.W. found Mother unresponsive on the bathroom floor. The house was in disarray and was cluttered with debris, clothing, and trash on the floor, and there was little food. The following day, Mother was arrested for domestic violence after an incident between Mother and Father during which the youngest minor, C.W. was present. The petition further alleged that Father was away from the home for significant periods of time due to his employment and has failed or been unable to protect and supervise Minors. Further, Mother and Father have been unwilling to engage with the Agency to attempt planning for Minors’ safety.

Concurrently with the petitions, the Agency filed applications for protective custody warrants for Minors under section 340, subdivision (a), because Minors’ circumstances or home environment endangered the health, person, or welfare of Minors. The court granted the protective custody warrants.

At the detention hearing on Friday, August 6, 2021, the Agency informed the court that it was unable to execute the protective custody warrants and Minors remained in Mother’s care. Mother’s counsel requested a one-day continuance and a hold on any bench warrant for Mother until Monday. There was no appearance on behalf of Father because the potential appointed counsel was not able to contact Father, Mother represented that Father was on a boat in Mexico waters, and the Agency was not able to reach Father that morning. The court granted the continuance, but temporarily found that detention of Minors was necessary and ordered that Minors be produced to the Agency.

At the continued detention hearing the following Monday, the Agency informed the court that Minors had been brought into protective custody and were all detained at Polinsky Children’s Center (Polinsky). Minors’ counsel and guardian ad litem[5] informed the court that Minors wanted to be returned to the care of their parents and did not understand why they had been removed. Nonetheless, as guardian ad litem, she agreed with the Agency’s recommendation for removal. Father informed the court that while he had been away due to his employment as a captain of a commercial fishing boat, he took a leave of absence and was now home full-time indefinitely until the case was resolved. He indicated the issues regarding the cleanliness of the home had been resolved, he can be protective of Minors, and he will obey all court orders. The Agency expressed concern that throughout the Agency’s investigation, Father stated he did not think there were any concerns in the home, with the condition of the home, or with Mother. Further, both Mother and Father continued to minimize the seriousness of incidents that led to the Agency’s involvement.

The court found that removal was necessary and that continued care in the home would be contrary to Minors’ welfare. The court noted that Father was aware of the chaotic and unsafe environment that Minors were in for several years, and had failed to protect. The court granted Mother and Father liberal supervised visits and granted the Agency discretion to expand visits to unsupervised and overnights, as well as begin a 60-day trial visit with Mother and Father. The court set a jurisdiction and disposition hearing for August 30, 2021.

Two days later, the Agency asked Mother to drug test the following day, August 12, 2021. Mother claimed she went to the testing facility but was turned away and told to return the next day. The Agency instructed Mother not to return the next day because the test would no longer be considered random. Mother nonetheless returned to the testing center on August 13, 2021. Her result from that day is documented as “refusal,” noting Mother produced two insufficient samples before she chose to leave. Mother claims she attempted to complete the drug test but the tester discarded her urine and asked for another sample. Mother tried again but still did not provide enough of a sample. Mother explained she did not want to drink too much water because she was concerned her sample would be diluted. On August 19, 2021, the Agency again asked Mother to complete a random drug test, which came back as positive for Noroxycodone, Oxycodone, and Oxymorphone.

In its August 30, 2021 jurisdictional and dispositional report, the Agency indicated Mother still denied having any issues and complained that the Agency’s involvement is ridiculous. When asked why she believed Minors were brought into protective custody, Mother addressed the allegations regarding the condition of the house, asserting the house was in disarray because she suffered a “delayed concussion” after her fall. Mother also addressed the incident when C.W. fell out of the window, claiming C.W. was not unsupervised at the time, and asserting that there has been only one incident out of the 15 years that she has been raising children.

When asked about the incident that resulted in her recent hospitalization, Mother acknowledged she should have gone to the hospital after she fell. She denied the allegation that there was alcohol scattered around her room and stated she does not drink alcohol. She admitted she took her old Oxycodone prescription, which she received after her cesarean section with E.W. in 2013, but believed the benzodiazepine result was a false positive. She claimed she does not typically use the Oxycodone but may for something like severe cramps. Mother denied having any addiction to drugs or prescription medications, and asserted that if she did, she would not still have Oxycodone that was prescribed to her eight years ago. Mother stated she was not sure if the pills were in its original bottle, despite the social worker explaining that if she had the original bottle with the date of the prescription and the number of pills prescribed, it may rule out concerns that she bought it off the street.

Mother did not believe she would benefit from any services but acquiesced when the Agency recommended that Mother call the substance abuse specialist to be assessed for treatment. Mother stated she would be willing to do anything the Agency recommends, including a parenting class and domestic violence groups.

Father understood that Minors were brought into protective custody because Mother tested positive for opiates and was “out of it” for days prior to being taken to the hospital. Father asserted those days were out of character for Mother, and he had never seen the house in such disarray. He believed Mother’s behavior was due to her head injury from falling rather than a drug overdose. Mother did not tell him that she tested positive for opiates and benzodiazepines at the hospital, and Father instead learned this from child protective services. Still, he denied any concern for Mother abusing any substances.

Father admitted he was concerned in the past when Mother and C.W. tested positive for Oxycodone when C.W. was born. He did not notice Mother using any substances at the time, but stated he spoke with Mother and dealt with child protective services after the fact. Father did not currently think Mother had a problem with prescription pills, and he has never had any concerns regarding Mother or her ability to supervise Minors or adequately meet their needs. However, in order to “ease the question” of Mother’s drug abuse, Father believed it would be beneficial for Mother to participate in a rehabilitation program. He expressed a willingness to do anything the Agency needs in order for Minors to be returned home, including Father staying home from work and Mother remaining out of the house while going to rehabilitation.

In its conversations with Minors at Polinsky, the eldest, A.W. was particularly protective of Mother. According to A.W., Mother was “acting fine” before her fall on July 1, 2021, and she “seemed okay” after the fall. A.W. called 911 “just in case” but did not think it was a “big deal” and thought that the paramedics made it look more serious. According to A.W., Mother has always been “anti-drug” and “if” Mother was “on something,” it did not affect her or her siblings in any way. The second eldest, S.W. similarly denied knowing if Mother takes any medication. According to A.W and S.W., things were not going well at Polinsky and they wanted to return home. E.W. stated things were going well at Polinsky but she did not want to live there.

At the August 30, 2021 hearing, the Agency requested a two-week extension to allow time to conduct a child and family team (CFT) meeting to further assess the family and make the most appropriate recommendations. The Agency hoped to be able to recommend a maintenance plan for Minors to be placed with Father while Mother resides outside of the home and receives services to address concerns regarding her substance abuse. The court granted the continuance and scheduled the pretrial status conference for September 13, 2021.

After the hearing, the Agency granted Father unsupervised visits and completed a walkthrough of the home to verify the concerning conditions of the home were resolved. The Agency then began exploring with Mother and Father a family maintenance plan that would require Mother to leave the home, with her return being dependent on negative drug tests, her engagement in services, and her insight into the protective issues. Mother and Father both expressed that they did not want to jeopardize Minors’ return to Father. After verifying that Mother moved out of the house, the Agency authorized Father to take Minors home on a pass from Polinsky on September 3, 2021, pending the CFT meeting and the pretrial status conference, in hopes of recommending placement with Father.

At the CFT meeting on September 8, 2021, Minors’ counsel acknowledged that Minors were doing well at home with Father. Father understood that the Agency has to take measures to ensure Minors’ safety, but reiterated his belief that the incident leading to the Agency’s involvement, including Mother’s behavior and positive drug test, was out of the ordinary and was not an ongoing issue. Mother did not have any explanation for why she tested positive for Oxycodone most recently on August 19, 2021. She agreed to call the substance abuse specialist to complete an assessment for drug treatment.

In its September 13, 2021 addendum report, the Agency recommended that Minors be placed with Father under the condition that Mother reside outside of the home. The Agency also sought discretion to lift Mother’s supervised visits once she demonstrated progress in her services. While Father had not fully accepted the Agency’s concerns, the Agency was confident that Father could still be protective of Minors while Mother remained out of the home. The Agency developed a case plan that required Mother to be assessed for a domestic violence program, participate in a parenting education program, and be assessed for substance abuse treatments. The plan required Father to be assessed for a domestic violence program, and participate in a parenting education program.

After a conference in chambers, the September 13, 2021 pretrial status conference was continued to October 1, 2021, at Mother’s request. Minors’ counsel informed the court that although her position was still aligned with the Agency, the Minors wanted Mother back in the home. The court ordered the Agency to assist Mother in getting in touch with referrals so that Mother could complete any necessary assessments outlined in the case plan prior to the disposition hearing.

In its October 1, 2021 addendum report, the Agency provided updates on Mother’s and Father’s services. Mother and Father had not yet started their parenting education services, although a program manager was in the process of scheduling an intake assignment for the Incredible Families program.

The assessment for domestic violence services takes about four to five sessions before the CSF family support clinician (CSF clinician) can make a recommendation. Father had completed the initial intake and was in the process of scheduling a second session. As of September 24, 2021, the CSF clinician was still in the process of scheduling the initial intake appointment for Mother. The CSF clinician reported that although she had been calling Mother since August 20, 2021, Mother did not return her call until September 14, 2021.

Mother completed the substance abuse assessment, where she disclosed the abuse of Oxycodone. After the assessment, the specialist referred Mother to McAlister East County Regional Recovery Center (McAlister) for treatment. Mother, however, was a “no-show and no call” to her intake appointment on September 22, 2021. Mother informed the Agency that she had an intake appointment scheduled for September 30, 2021, however, McAlister confirmed that Mother was not on the schedule. Mother did complete a drug test on September 27, 2021, and results were still pending.

Father did not know whether Mother attended her intake at McAlister and expressed frustration that the Agency was not being proactive in working with Mother to help her return home. Father reiterated that he has never seen Mother “out of it” like the weekend that she was taken to the hospital and urged the Agency to drug test Mother every day and “[m]ake her get into a program.” The Agency explained that Mother had all the referrals and contact information she needed, and it was now her responsibility to make the necessary progress in her services.

The Agency also reported witness accounts of Mother violating the conditional in-home placement with Father, by returning to the house on occasion and having unsupervised visits with the two older Minors. Since Minors returned home, a male neighbor and his wife reported seeing Mother drop off A.W. and S.W. on several occasions and stated it occurs “pretty much weekly.” Most of the time, Father’s truck is in the driveway and appears to be home. On several occasions, Mother dropped A.W. off down the street from the house. A female neighbor also reported seeing Mother drop off A.W. on one occasion, but did not think Father or the other Minors were home at the time. Mother denied ever dropping any of the Minors off at the home. She admitted she went to the house once to do laundry but stated that she ensured none of the Minors were home. A.W. refused to speak with the Agency, and S.W. and E.W. both denied seeing Mother other than during supervised visits. Father stated that A.W. occasionally walks home from school but denied any knowledge of Mother having unsupervised visits with Minors. Father indicated he would speak with Mother and Minors about this concern, and will encourage Mother to make progress with her services.

In its report, the Agency reiterated its concern regarding Mother’s substance use and Father’s denial of the protective issues. It would be premature to allow Mother back into the home when Mother had not made any progress. The Agency maintained its recommendation that Minors be placed with Father, with Mother out of the home until she makes substantial progress in her services and her sobriety, and until Father can gain more insight into the protective issues.

At the jurisdiction and disposition hearing on October 12, 2021, Father and Mother both waived their right to trial and submitted on the petitions as amended.[6] Minors expressed their desire to have Mother back in the home. The court made true findings on the petitions by clear and convincing evidence. As to disposition, the court likewise found by clear and convincing evidence that Minors should be removed from Mother’s custody under section 361, subdivision (c), because there was or would be a substantial danger to their physical health, safety, protection, or physical or emotional well-being if they were returned to Mother’s custody, and there were no reasonable means by which Minors’ physical health could be protected without removal from Mother’s custody. The court ordered placement with Father and granted the Agency discretion to allow Mother to have unsupervised visits, as well as discretion to allow Mother to return home.

discussion

Minors do not challenge the court’s jurisdiction finding, but contend the court’s disposition order should be reversed because removing Minors from Mother’s custody was not the only way to protect Minors. We disagree.

1. Applicable Law

After a juvenile court exercises jurisdiction over a child pursuant to section 300, it must determine the appropriate disposition for that child. (§§ 360, subd. (d), 361, 362; In re N.M. (2011) 197 Cal.App.4th 159, 169 (In re N.M.).) The court has broad discretion in choosing an appropriate disposition that serves the child’s best interest. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)

Section 361, subdivision (c), provides in pertinent part: “A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . : [¶] (1) There 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 minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c).)

“A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of potential detriment to the child if he or she remains with the parent.” (In re N.M., supra, 197 Cal.App.4th at p. 169.) A “ ‘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.’ [Citation.] The court may consider a parent’s past conduct as well as present circumstances.” (Id. at pp. 169-170.)

We review a removal order for substantial evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154 (In re V.L.) Because section 361, subdivision (c) requires proof by clear and convincing evidence, we determine “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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1012; see also In re V.L., at pp. 154-155 [standard of review described in Conservatorship of O.B. applies to removal findings under § 361, subd. (c)].) We must affirm an order that is supported by substantial evidence even if other evidence, or other inferences from the evidence, would have supported a contrary finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re V.L., at p. 154.) On appeal, the party challenging the juvenile court’s order has the burden to show there is insufficient evidence to support the court’s decision. (In re Lana S. (2012) 207 Cal.App.4th 94, 103; In re N.M., supra, 197 Cal.App.4th at p. 168.)

2. The Court’s Disposition Order Is Supported by Substantial Evidence

Minors argue that as an alternative to removal from Mother’s custody, the court could have allowed Mother to return home with a stipulation that Father be the person responsible for Minors’ care and supervision. According to Minors, the circumstances at the time of trial were substantially changed from the time the Agency initially intervened. Minors emphasize the improved condition of the house itself. Additionally, Father made progress on his portion of services and took good care of Minors since their return home. Minors acknowledge Mother had not yet enrolled in substance abuse treatment services. However, Minors urge the Agency could have easily monitored Mother’s compliance with her case plan. Minors argue Mother’s participation in services would be easier if she were allowed to live at home rather than sleeping in the family minivan, on the family fishing boat, or in an occasional hotel room. Minors also contend that if Mother were allowed to return home, she would be able to help Father care for Minors, both physically and emotionally. Contrary to Minors’ assertions, we conclude substantial evidence supports the juvenile court’s finding that removal from Mother’s custody was necessary and that there was no other reasonable means to protect Minors.

The record shows that Minors became dependents of the court because Mother failed to or was unable to care for Minors adequately due to being under the influence of opiates and benzodiazepines. By the time the court made its disposition order, Mother had made very little progress in addressing her substance abuse issues. She tested positive for Noroxycodone, Oxycodone, and Oxymorphone on August 19, 2021—over a month after Mother tested positive in the hospital, which initially brought this family to the Agency’s attention. While Mother completed a substance abuse assessment, she stopped there. She not only failed to begin treatment, but she “no-showed” to her first intake appointment, did not have any appointment for intake in the future, and misrepresented to the Agency that she did in fact have an appointment scheduled. Further, Mother had not tested negative since the Agency’s involvement.

The case that Minors rely on is distinguishable. In In re Jasmine G., (2000) 82 Cal.App.4th 282, the parents had no drug dependencies and had both forsworn corporal punishment, which was the main concern. (Id. at pp. 285, 288.) Additionally, both parents had attended parenting classes and undergone therapy to improve their parenting skills. (Id. at pp. 288-289.) In contrast here, both Mother and Father consistently denied any concern that Mother has a substance abuse problem, or any concern about Mother’s ability to care for Minors. Further, the only step Mother took to address her substance abuse was completing an assessment. Mother had not even begun treatment because she did not show up for her first appointment, and did not have an appointment scheduled in the future.

It is true that the concerning conditions of the home had resolved and Minors were doing well under Father’s care with Mother outside the home. Those improvements are commendable. However, they do not provide reason for allowing Mother back into the home prematurely where Mother herself had not made any significant progress. Additionally, Father being home and being designated as Minors’ caregiver would not have been a reasonable means of protecting Minors without removing them from Mother’s custody because Father did not fully understand the protective issues.

Throughout the Agency’s investigation, Father was steadfast that Mother’s behavior the weekend she was taken to the hospital was out of character, he was not concerned about Mother being under the influence of any substances, and he has never been concerned about Mother’s ability to supervise Minors or adequately meet their needs. Father’s statements one week before trial showed that he was still in denial regarding Mother’s substance abuse and was blaming the Agency for Mother’s lack of progress with her services. Further, the record shows that Father was not even aware of Mother’s drug use, which casts doubt on Father’s ability to perceive issues as they arise. Father was in contact with Mother in the days prior to her hospitalization, but had no knowledge that Mother was under the influence of any substances. Mother also did not tell him after the fact and Father only found out from child protective services. Even after learning that Mother tested positive for opiates and benzodiazepines, Father still believed that Mother’s altered state was due to her hitting her head when she fell. Father also had no idea that Mother was using substances when she and C.W. tested positive at C.W.’s birth.

Minors’ claim that the Agency could monitor Mother’s compliance with the case plan does not address the purpose of removal, which is to protect the child before the child actually suffers any harm. (In re N.M., supra, 197 Cal.App.4th at pp. 169-170; In re Cole C. (2009) 174 Cal.App.4th 900, 917.) Likewise, even if the Agency could rely on neighbors or other support network references to report any issues, that would not prevent the issues from occurring or serve the purpose of protecting Minors. Minors also provide no reasoning or authority for the proposition that A.W.’s and S.W.’s ability to advocate for themselves have any bearing on whether there would be a substantial danger to Minors’ well-being if Mother were to return home. Minors may desire for Mother to return home, but their ability to advocate for themselves is not a reasonable means of protecting them. To the contrary, A.W. and S.W. are so protective of Mother that they waited three days before calling 911, while they ran out of food and the house became disheveled.

Minors’ other reasons for allowing Mother to return home also shift focus from the question of whether there would be a substantial danger to Minors and whether Minors can be protected without removing them from Mother’s custody. Minors’ claim that Mother would be available to help Father care for Minors were she allowed to return home is not only unsubstantiated but contradicted by the fact that Minors were doing well with Mother remaining out of the house.

There is also no evidence that Mother would better comply with services if she were allowed to return home, especially where Mother had already violated the court’s order that she only have monitored visits. (See In re John M. (2012) 212 Cal.App.4th 1117, 1127 [a juvenile court could reasonably determine based on prior violations of court orders that a child could not be safely placed in a parent’s custody in the hope the parent would comply with court orders or Agency supervision].) Mother’s lack of progress in the three months since the Agency’s involvement was more likely due to Mother’s failure to acknowledge that she had a substance abuse problem, as she denied throughout the Agency’s investigation. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot correct a problem one fails to acknowledge”]; In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [“denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision”].) Moreover, Minors offer no authority to support the proposition that Mother’s convenience is a factor to consider when determining whether removal is necessary. To the contrary, the focus is on averting harm to the child. (In re N.M., supra, 197 Cal.App.4th at pp. 169-170.)

In summary, there was substantial evidence to support the juvenile court’s findings, under a clear and convincing standard, that there would be substantial danger to Minors’ physical health, safety, protection, or physical or emotional well-being if they were not removed from Mother’s custody and that there was no other reasonable means to protect Minors.

disposition

The order is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

AARON, J.

DO, J.

[1] The youngest sibling, two-year-old C.W., is not a party to this appeal.

[2] Mother tested positive for opiates and benzodiazepines.

[3] Pursuant to settlement negotiations prior to trial on the jurisdictional and dispositional issues, the Agency agreed to amend the language in the petition regarding the factual bases for the petition. The following summary reflects the petition as amended.

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

[5] C.W. was represented by counsel and guardian ad litem separate from the three older children.

[6] See footnote 2, supra.