In re Trevor T.

Filed 9/28/07 In re Trevor T. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Michelle T. appeals from the juvenile courts jurisdictional order declaring her children, now ages nine and ten, to be dependents under Welfare and Institutions Code section 300, subdivision (b).[1] She acknowledges that the record contains substantial evidence of a long history of drug use by her and the childrens father, but argues that there is no evidence that the parents drug use put the children in danger or created a risk that they would be placed in danger. We affirm.

Factual and Procedural Background

On January 3, 2007, the Alameda County Social Services Agency (the agency) filed a petition alleging that the children came within the meaning of section 300, subdivision (b), in that the children had suffered or there is a substantial risk that the children will suffer serious physical harm or illness by the inability of the parents to provide regular care for the children due to the parents substance abuse. The petition alleged further: That on or about December 29, 2006, a police search of the parents residence found 10 grams of methamphetamine and pipes within reach of the minors; [] That on or about December 29, 2006, the father was arrested for . . . being under the influence of methamphetamine, . . . possession of controlled substance and . . . child endangerment; [] That on or about December 5, 2003, the father was convicted of [disorderly conduct] with three years court probation; [] That on December 29, 2006, the mother was arrested for . . . child endangerment; [] That on or about December 18, 2006, the parents room was found to be dirty, cluttered with boxes, piles of clothing and one bed for parents and minors; [] That on or about December 29, 2006, the Pleasanton Police Department found the parents residence still to be in a filthy and unsanitary condition. The children were detained and a jurisdictional hearing was set for January 24, 2007.

On January 23, an amended petition was filed adding allegations that father admitted using methamphetamine on December 28, that Michelle was aware of his use and that on January 9, 2007, both parents tested positive for methamphetamine. On the same day, the agency filed its jurisdictional report. The report states that on December 11, 2006, the agency received a referral for the suspected neglect of the children. A child welfare worker conducted an unannounced visit to the familys home on December 18. The worker reported that the children were clean, appeared healthy and there was ample food in the home for the minors. However, the worker confronted the parents on concerns regarding the physical conditions of the room where the family resides as well as the home in general. This included the room being overly crowded and appearing to be a fire hazard. . . . [] The mother and father reported that they have rented this room for three years. The report also indicates that there was a prior referral to the agency in 1998 when Michelle tested positive for methamphetamine at the time of the girls birth.

With regard to the December 29 incident, the report includes the following statement by Sergeant Barry Mickleburgh of the Pleasanton Police Department: [O]n December 29, 2006, a search warrant was issued based on the sales of methamphetamine at . . . the residence of the parents and minors. Inside the bedroom shared by the parents and minors, officers found a baggie containing methamphetamine and a glass pipe. The controlled substance and glass pipe were accessible to the minors. [The father] showed signs of being under the influence of a controlled substance, he admitted to smoking meth on December 28, 2006. He further admitted that his wife, Michelle, was aware that he uses meth. He signed a written statement for police that he uses methamphetamine once a week. He further admitted that Childrens Protective Services had notified the parents to clean up the house, but they had not started yet. A blood sample was taken when father was charged . . . Toxicology screening test was positive for methamphetamine on that sample. [] Michelle was given the Romberg test as she displayed signs of being under the influence. The mother was booked on [child endangerment charges]. Sgt. Mickleburgh will state that the home is not safe for the children. The garage door will not shut due to all the items in the garage. Boxes and clutter take up most of the space in the home. In order to walk down the hallway, a person has to turn his body sideways to make it to another room. A freezer blocks the sliding glass door and is too large for a child to move in the event of a fire to escape, one smoke alarm was disabled. Most of the windows were blocked with furniture and debris. The report also includes a statement by the father that he stopped using controlled substances about three years ago and Michelles statement that she had not used controlled substances in about 10 years. The agency expressed concern that [a]t the writing of this report, the parents do not acknowledge the seriousness of their substance abuse problem. Finally, according to the report, the house in which the family had been living was condemned by the city. The report recommended dependency with out-of-home placement with the paternal grandmother.

The jurisdictional hearing was continued and prior to the hearing an addendum report was filed. The agency modified its recommendation to dependency with in-home placement with parents. The addendum explains, The parents are now participating in the Parent Project . . . . Their progress reports are attached and are very good in terms of counseling and drug testing. All the urine tests at Terra Firma were negative (01/09/2007 to 01/29/2007) with the one exception of the hair specimen test taken on 01/09/2007. [] The parents have been cooperative for the past two months and the undersigned strongly recommends that the minors be returned to the parents custody.

At the contested jurisdictional hearing on March 9, the agencys reports were admitted into evidence. Thereafter, the childrens father testified that he had a substance abuse problem prior to his arrest in December 2006, but that he no longer had such a problem. He acknowledged that prior to his arrest he used methamphetamine three times a week maybe and that he used methamphetamine with Michelle every so often. He also admitted that at the time of his arrest his home was in a cluttered and unsanitary condition. On cross-examination, the father testified that after he was arrested, he returned to that house for one night but the next day when [he and Michelle] returned after coming to court here, the place was condemned. At the time of the hearing, the family was living in a two-bedroom, two-bathroom apartment, which had been approved by the agency. Finally, father testified that he had attended 15 drug counseling sessions within a 45-session program.

Michelle testified that although she had previously used methamphetamine with the father, she had not done so since October or November. She testified that she was participating in a drug treatment program and was willing to continue with that program. When asked if she thought it would be a good idea for her and the father to continue in drug treatment, she responded, I could see some benefit, yes. She described her attitude toward the treatment program as excellent but also admitted missing three meetings because either she or the father was ill. She explained that she enjoyed attending the group meetings because there is [a] lot of input from other people [and] their situations are completely different than my own, but its still interesting because Im kind of a people person, so I find it interesting. Finally, Michelle stated that her children had never seen the parents methamphetamine and were not aware she used it.

After argument, the court found that there was a basis for exercising jurisdiction. The court commended the parents for their excellent results thus far, but explained, I do feel that it is important for the court to have jurisdiction in this case . . . . I say that for two reasons. One, I agree with the county and with minors counsel that there is basis on which to do so based on the petition and the very honest and forthright testimony that Ive heard this afternoon. [] Second, although it has been argued persuasively otherwise, Im concerned that if I dont take jurisdiction that the court may then not have the authority to continue its own supervision of the parents in connection with the drug court project. The children were committed to the custody of the agency for placement in the parents home. Michelle filed a timely notice of appeal.

Discussion

Michelle contends there is no substantial evidence to support the juvenile courts finding that the children had been harmed or were at a substantial risk of being harmed within the meaning of section 300, subdivision (b). Michelle does not challenge the truth of the allegations regarding her drug use and previous unsanitary living conditions. She argues, however, that the evidence established that she is no longer living in those conditions and that neither the petition nor the record contain evidence suggesting that the parents drug use put the minors in danger, or even that it created a risk they would be placed in danger in the future. To the contrary, the record demonstrates that despite the parents drug use, the minors were healthy and happy in their parents care.

Section 300, subdivision (b), authorizes the court to adjudge a minor to be a dependent of the court if, among other things, [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 . . . . To support a finding of jurisdiction under subdivision (b), the department has the burden of showing, by a preponderance of the evidence, that circumstances at the time of the jurisdictional hearing are such that the child is subjected to a specific, identifiable, and substantial risk of serious physical harm due to the parents inability to supervise, protect or provide care for the child. ( 355, subd. (a); In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)

Jurisdiction cannot be based on history alone. (See In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 [fathers alcoholism insufficient to support dependency jurisdiction].) While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) On the other hand, [w]hile jurisdiction must be asserted on the basis of conditions which exist at the time of the jurisdictional hearing, the court is not required to disregard the [parents] prior conduct. [Citation.] [P]ast events can aid in a determination of present unfitness.  (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Here, while the record reflects the parents recent progress, both parents have long histories of drug use, there is evidence they kept their drugs within reach of the children and were under the influence of drugs while in their childrens presence, and prior to its condemnation the family was living in an unsanitary house where the police believed drug sales were occurring. While the children may not yet have suffered any harm, they undoubtedly were at a substantial risk of serious harm living in an unsanitary home where drugs were accessible and illegal drug use and sales were occurring. (See, e.g., In re Rocco M., supra, 1 Cal.App.4th at p. 825 [substantial risk of serious harm where minor exposed to mothers drug use and drugs were accessible to minor].)

Contrary to Michelles argument, the fact that the family has moved to a new home, approved by the agency, and the parents thus far have been successful in treatment does not establish that there is no longer any risk to the children. The jurisdictional hearing was held slightly more than two months after the petition was filed. In light of the severity of the situation prior to the agencys intervention, two months of progress is not necessarily sufficient to eliminate the risk to the childrens welfare posed by the parents prior conduct.

In re David M. (2005) 134 Cal.App.4th 822, relied on by Michelle, is distinguishable. In that case the record did not support jurisdictional findings under section 300, subdivision (b) because there was no evidence that the parents drug abuse caused, or created a substantial risk of causing, serious harm to [the minor] and the record lack[ed] any evidence of a specific, defined risk of harm to the child. (134 Cal.App.4th at p. 830.) There, [t]he evidence was uncontradicted that [the child] was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home. (Ibid.) However, unlike in the present case, the social services agency had failed to conduct a current investigation, relying instead on information from dependency proceedings concerning another child occurring several years earlier. (Id. at p. 831.) Acknowledging that past abuse or neglect can certainly be an indicator of future risk of harm, the appellate court concluded that the record of past neglect in this case [a sibling had been declared a dependent several years earlier because the mother used marijuana during her pregnancy and was incarcerated when the child was born] is not enough to declare a child a dependent of the juvenile court without something more current. (Ibid.) In this case, while the children were reported to be happy and healthy, their prior home was undeniably dangerous and the conditions that placed the children at risk prevailed only a few months earlier. We believe this was sufficient to support the finding that the children remained at a substantial risk of injury at the time of the jurisdictional hearing.

Disposition

The jurisdictional order is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Horner, J.*

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

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.