In re M.M.

Filed 6/1/06 In re M.M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

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

I.

INTRODUCTION

Appellant Kim M. appeals from the jurisdictional and dispositional orders of the juvenile court pertaining to his children M., age five, and T., age 2. The court declared M. and T. dependents of the juvenile court and ordered them removed from their parents' custody after an incident in which deputies responded to a call reporting a disturbance at the family home in the early morning hours of September 10, 2005. Kim and his wife Joanna^[1] were arrested on drug charges at that time.

Kim appeals from the juvenile court's jurisdictional and dispositional orders, arguing that there was insufficient evidence to support the court's true findings on the Welfare and Institutions Code^[2] section 300, subdivision (b) petitions, and contending that there was not clear and convincing evidence to support removing the children from parental custody under section 361, subdivision (c)(1). Kim contends that there was no evidence of harm or a substantial risk of harm to his children, in part because he and his wife were careful to not use drugs in the presence of the children and to have a responsible adult caretaker available to watch the children when he and his wife used drugs. We conclude that the juvenile court's findings are supported by substantial evidence. We therefore affirm the court's orders declaring M. and T. dependents and removing them from the custody of their parents.

II.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 2:15 a.m. on September 10, 2005, a San Diego County Sheriff's deputy went to Kim's home after receiving a call of a disturbance at that address. When the deputy arrived, Kim met him outside of the home and said that he believed one of his neighbors had called the police. Kim appeared dirty and disheveled, and emitted an unusual odor. He also spoke rapidly, with a hurried and disoriented demeanor. Kim told the deputy that his two children, his wife Joanna, and four other adults were inside the home. Kim consented to a search of his person. The deputy found a small plastic bag containing more than six grams of methamphetamine powder and an unmarked medicine bottle with approximately 66 tablets of Valium in Kim's right front pocket.

Kim admitted that the Valium had not been prescribed to him. He denied having taken any Valium that day. Kim told the deputy that he began using methamphetamine at approximately 8:00 a.m. on September 9, and that he had used it again at 4:00 p.m.^[3] The deputy arrested Kim for possession of methamphetamine and possession of Valium without a prescription. More deputies arrived at the scene while the responding deputy was talking with Kim.

After placing Kim under arrest, the responding deputy went to the front door of the home and knocked several times. No one answered the door. The deputy could see inside the home. He noticed a man walk to the refrigerator. The deputy could also see a small child who was partially covered by a blanket, sleeping on the floor. The deputy asked Kim for permission to enter the home so he could check on the welfare of Kim's wife and children, and Kim consented. Three deputies then entered the home. The deputies found three children inside, including M. and T., who were sleeping in one of the bedrooms, and "seven to ten" people "hiding in various locations throughout the home."

Joanna told the deputies that she had been sleeping and did not know there were other people in the home. Joanna's pulse was higher than normal, her pupils were dilated, and she was sweating heavily. She admitted to having smoked three to four "hits" of methamphetamine prior to the deputies' arrival, and admitted that she smoked the drug about once a week. Joanna was arrested for being under the influence of a controlled substance.

Deputies found a loaded handgun on top of an open safe in Kim's bedroom. The gun was registered to Kim, who told deputies that "it was normal for the gun to be loaded." The deputies also found three glass smoking pipes in plain view, each of which contained burned white residue that appeared to be methamphetamine.

Kim told deputies that he and Joanna had left the children in the care of their roommate, Shelly W. The deputies allowed M. and T. to remain at the family residence with Shelly that night after they took Kim and Joanna into custody.

The sheriff's office referred the case to San Diego County Child Protective Services (CPS) because both parents had been arrested for substance abuse offenses, there was evidence of drug activity in the home, and because deputies found a loaded handgun within the children's reach inside the home.

On September 13, 2005, M. was tested to determine whether there were drugs in her system. The results provided on September 20 indicated a presumptive positive result for methamphetamine. The children were detained by CPS that day.^[4] Results of a confirmatory test were negative.

On September 21, 2005, Kim and Joanna admitted to a social worker that they had been using methamphetamine for four to five years. Kim said he used methamphetamine once or twice per week, and spent approximately $20 or $30 per week to obtain it. They sometimes invited friends to their home to use drugs. Kim said that he had a prescription for marijuana and that he occasionally used marijuana to treat back pain and a degenerative bone disease. Joanna denied that she used drugs in the presence of her children and said that she smoked methamphetamine only in the basement, which was accessible through a trap door in the kitchen.

On September 23, 2005, the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of M. and T. under section 300, subdivision (b). The petitions alleged that the children were at substantial risk of serious physical harm because their parents admitted to using methamphetamine, and that their use of methamphetamine had resulted in their arrests.

The court held a detention hearing on September 23. Both parents denied the allegations, requested that M. and T. be placed with their maternal grandmother, and agreed to an order requiring them to take part in the Substance Abuse Recovery Management System (SARMS). The court detained the children and placed them in a licensed foster home.

On October 18, 2005, the court held a jurisdictional hearing and set the matter for trial.

The court held the contested adjudication and disposition hearing on November 17, 2005. The Agency offered a detention hearing report dated September 23, 2005, and a jurisdiction and disposition report dated October 18, 2005, both of which were received in evidence. Social worker Lisa Lopez was available to testify, but she was not called as a witness.

Kim testified at the hearing. He admitted to occasional methamphetamine use. He preferred to sniff or eat the methamphetamine, while Joanna preferred to smoke it. According to Kim, he and Joanna would alternate their drug use so that one of them would be available to care for M. and T. On occasions on which they used methamphetamine at the same time, they would wait until the children had fallen asleep, or they would ask someone else to watch M. and T. On the morning Kim and Joanna were arrested, the children were being cared for by Shelly.

Kim admitted that he would occasionally have friends over to the house to use drugs. He said that his drug-using friends were allowed only in the basement and that he did not allow visitors to go upstairs where the children were located. Kim claimed he did not know specifically why there were other people in his home on the night he was arrested, but only that they had come to visit and/or play music.

Kim disputed that his loaded handgun was found on top of the safe. He claimed that it was in a secure location and not available to anyone else. Kim also said he was unaware that law enforcement officers had found three smoking pipes in the family residence and that he did not know where his wife generally stored smoking pipes. He testified that smoking pipes had "never been visible to myself or my children or anybody else on--where I live." Kim stated that he had never used drugs with his roommate, Shelly, and that he did not know whether or not she used drugs. He further testified that he had not used drugs since the children were removed from his custody on or about September 10, 2005, although he could not recall the date on which he last used drugs.

The court made a true finding on the petitions by clear and convincing evidence. The court removed the children from their parents' custody pursuant to section 361, subdivision (c)(1), finding that there was a substantial danger to the children's physical health, safety, protection, or well being if they were returned to the family home. The court placed the children with their maternal grandmother.

After the trial, the court ordered Joanna to return to the courtroom. The court verbally reprimanded Joanna for violating the terms of the SARMS program by testing positive for methamphetamine on October 27, 2005. Kim had also registered a positive test for methamphetamine on October 27. However, because the detectable amphetamine was below a certain level, no declaration of contempt was filed against him.

On December 20, 2005, Kim filed a timely notice of appeal.

III.

DISCUSSION

A. Substantial evidence supports jurisdiction

Kim contends that there was not substantial evidence to support the trial court's jurisdictional findings that M. and T. are dependent children under section 300, subdivision (b). Specifically, Kim asserts that there was no evidence the children suffered or were at substantial risk of suffering serious physical harm, and thus, that the trial court erred in assuming jurisdiction over them.

The standard of review applicable to Kim's claim is well established:

"When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)

Under section 300, subdivision (b), the juvenile court has jurisdiction over a child where there is substantial risk that the child will suffer serious physical harm or illness by the willful or negligent failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment.^[5] "The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Section 355 describes the process by which the juvenile court is to determine whether it has jurisdiction over a child:

"At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300."

Among the relevant factors a court may consider in determining whether a child is at substantial risk of serious physical harm are the child's age (Rocco, supra, 1 Cal.App.4th at p. 824) and the parent's prior conduct (In re Janet T. (2001) 93 Cal.App.4th 377, 388).

Here, there was substantial evidence to support the trial court's findings pertaining to jurisdiction. Kim suggests that the court relied on a presumption that "any drug use in a home is evidence the children in that home are unsafe." However, neither the court nor the Agency applied any such presumption. Rather, the evidence established that Kim and his wife had been abusing methamphetamine for a number of years, and that their ongoing drug abuse exposed M. and T. to a variety of risks. Kim and his wife invited adult friends into their home in the early hours of the morning to use methamphetamine. At the time Kim was arrested, deputies found "seven to ten" people hiding all over the house--adults who had been using drugs and who had access to all areas of the house while M. and T. slept. Drug paraphernalia, including three smoking pipes with drug residue inside them, had been left in plain view inside the home, and a loaded gun was left within reach of the adults who were using drugs, and the children. All of this evidence establishes that M. and T. were at risk of harm as a result of their parents' drug use and concomitant conduct.

Although the parents attempt to downplay their "recreational" drug use, it is clear that both parents have been using methamphetamine for many years. Of particular concern is the fact that both parents continue to deny the severity of their drug habits and the potential harm that may come to their children as a result of the parents' behavior, including allowing a number of other adult drug users to use drugs in the family residence late at night while the children are in the home, leaving drug paraphernalia and a loaded weapon within the children's sight and reach, and being under the influence of drugs themselves while all of this is occurring. Despite the fact that their drug habits have led to encounters with law enforcement, Kim and Joanna continue to minimize their drug problems. Both parents used methamphetamine after their September 10, 2005 arrest. In addition, Kim admitted to having used methamphetamine approximately five days before he met with the social worker on September 21, 2005.

Kim also admitted to prior use of Ecstasy,^[6] cocaine, methamphetamine, and marijuana. He acknowledged having been arrested in 1999 at an airport for attempting to smuggle Ecstasy pills into the United States. He was placed on three years' probation and eventually served six months in a federal prison for violating the terms of his probation. Joanna admitted that she began using illegal drugs at the age of 16, and that she was arrested in 2002 for driving under the influence of methamphetamine. Both Kim and Joanna had participated in drug rehabilitation programs in the past, yet they both continued to use drugs. Neither acknowledged the effects of their continuing drug use on their family. Instead, they blamed the Agency for "tearing up their family" and felt they had "'done no wrong.'"

Kim attempts to minimize the significance of his and Joanna's drug use and its effect on their children by asserting that he and Joanna never use drugs in front of their children, and that when they use drugs, they ensure that the children are being cared for by someone else. However, on the night Kim and Joanna were arrested, they had left their children under the care of their roommate, Shelly. Shelly had previously been the subject of a CPS referral for suspected drug use, although Kim said he was unaware of this fact. Additionally, although the children were ostensibly under Shelly's care on the night of the arrests, the girls were found sleeping alone in a bedroom, while a number of adults were hiding in other bedrooms, a loaded gun was within the reach of both the children, and drug paraphernalia had been left out in the open. Kim and Joanna's attempts to "protect" their children from their drug use by having Shelly available to care for the children while they used drugs clearly did not reduce the risk of harm to the children on this occasion.

B. Substantial evidence supports the trial court's order removing M. and T.

from their parents' custody

Kim contends that the juvenile court erred in removing M. and T. from his custody because there was insufficient evidence of risk of detriment, and because there were less drastic alternatives to removal that would have been appropriate. We disagree.

We review the juvenile court's dispositional findings to determine whether substantial evidence supports them, mindful that the "trial court's determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]" (In re Ricardo L., supra, 109 Cal.App.4th at p. 564.) The trial court removed M. and T. from parental custody pursuant to section 361, subdivision (c)^[7] after finding that there would be a substantial danger to the children's health if they were returned to their parents' home. Substantial evidence supports the juvenile court's determination that there is a substantial danger to M. and T.'s physical health and safety, and that there were no reasonable means to protect the children short of removing them from their parents' custody.

The evidence supports the juvenile court's conclusion that Kim and Joanna's continuing drug use will result in dangerous scenarios similar to the one law enforcement officers encountered at the family home on September 10, 2005. Kim and Joanna continued to use drugs even after suffering criminal consequences from their drug use. They also both used drugs just days after they were released from jail after their September 10, 2005, arrests on drug-related charges. The record establishes that Kim and Joanna failed to take advantage of programs and rehabilitation opportunities offered to them prior to the removal of their children, and that although they had both previously participated in drug rehabilitation programs, they nevertheless continued to use drugs.

Kim attempts to downplay both his and Joanna's drug use, and asserts that there is no evidence that M. or T. have actually suffered any injury in the past as a result of their parents' conduct. However, there is no requirement that a court wait until a child has been injured before it removes the child from a parent's home. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 ["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"], disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735.) Here, the juvenile court made findings by clear and convincing evidence that M. and T. faced a threat of actual harm if they were to remain in their parents' custody.

Kim further asserts that "[p]arental remorse and early enrollment in ameliorative services go a long way toward convincing the court there is minimal danger to the child," citing In re Jasmine G. (2000) 82 Cal.App.4th 282. However, Kim showed little, if any, remorse for the conduct that resulted in his arrest. He minimized his drug problem, disputed the deputies' version of how many people were in the family residence on the night of his arrest, and disputed that a loaded weapon was left out in the open that night. He insists that he has done nothing wrong, and blames the Agency for the situation he and Joanna are facing.

Kim apparently fails to recognize that he put his children at risk; he continues to claim that there was a responsible adult caretaker available to watch his children while he and Joanna indulged their drug habit, despite the fact that this caretaker herself has been investigated for drug use and that she failed to recognize the potential danger to the children from the situation on the night of Kim's arrest. Neither parent believed their drug use exposed their children to harm or increased the risk of harm to their children. All of this supports the inference that Kim and/or Joanna would continue to expose M. and T. to the risks associated with drug use in the home.

The juvenile court was clearly concerned about the seriousness of the parents' denial about the severity of their drug addiction when it ordered M. and T. removed:

"What the court is really concerned about here is in a sense there's a huge level of denial that there is a problem. Both the parents got themselves in trouble with drugs before in life. The father did time in federal custody because of drugs. And then to come--and then what happens is they're doing drugs in this room in the basement, and you know what? If nothing ever happened, they'd still be out there like all the soccer moms and all the other people who are doing drugs but not getting caught. [¶] . . . And it's pretty clear to me that they have a drug problem, because drugs have already interfered with their life. They have kids. And they've now made the choice, 'Well, we'll just continue to use. We'll get a babysitter when we're using.' And I think that's a substantial risk of danger to these children, because that's a gamble. . . . [¶] How can the court ignore this? This is not--I don't believe that anybody can become a functional drug addict or alcoholic and get away with it."

Kim also contends that the juvenile court failed to consider reasonable alternatives to removing the children from the home. He argues that the court made no specific findings regarding what reasonable services it considered before deciding to remove the children, and that the court could have ordered informal services and stringent supervision by social services, with a warning that further drug use would result in loss of custody. However, Kim and Joanna had had prior contact with the criminal justice system as a result of their drug use, and admitted to a lengthy history of consistent drug use. In spite of previously facing serious negative consequences as a result of their drug use, Kim and Joanna nevertheless continued to use drugs, showing themselves to be unable or unwilling to stop using drugs, even after they were provided with drug rehabilitation services. In addition, both parents resumed drug use only days after they were released from custody after the September 2005 incident. The court could reasonably conclude from these facts, and from Kim's repeated minimization of his drug use and its potential impact on his children, that strict orders against drug use in the home and/or close supervision by social services were not viable options for protecting the health and safety of these children.

Kim and Joanna clearly fail to recognize the serious nature of their drug use or its effect on their children. Both parents have dealt with the criminal justice system as a result of their drug use, yet they have returned to their habits. They have both undergone drug rehabilitation, but returned to using drugs. Not only have they continued to use drugs, but they placed their children at risk by inviting other adults into their home to participate, allowing drug paraphernalia and drug residue to remain out in the open where their young children might find it, and leaving a dangerous weapon out in the open and within the reach of their children. As long as Kim and Joanna continue to minimize their drug problem and fail to acknowledge the potential harm to their children from their drug use, they are likely to continue to engage in behavior that puts their children at risk. Under these circumstances, the juvenile court's determination that M. and T. should be removed from their parents' custody did not exceed the bounds of reason, and must be affirmed.

IV.

DISPOSITION

The juvenile court's jurisdictional and dispositional orders are affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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^[1] Joanna, M. and T.s' mother, is not a party to this appeal.

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

^[3] Kim later disputed this admission during his in-court testimony.

^[4] There is no mention in the record as to whether T. was tested for the presence of drugs in her system, and, if so, what the results of those tests were.

^[5] The pertinent language in section 300, subdivision (b) provides for jurisdiction where "[t]he 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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."

^[6] The common term for Methylenedioxymethamphetamine (MDMA).

^[7] Section 361, subdivision (c) provides in pertinent part: "A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians 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: [¶] (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 or guardian's physical custody. The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of injury. The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."