In re Aaron M.

Filed 6/28/06 In re Aaron 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Referee. Affirmed.

Joel M. appeals a judgment declaring his minor son, Aaron M., a dependent of the juvenile court under Welfare and Institutions Code^[1] section 300, subdivision (b) and removing Aaron from his custody under section 361, subdivision (c)(1). Joel challenges the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2005, Escondido police officers responded to a call of domestic violence at a hotel known for criminal activity. One of the officers heard yelling coming from a room occupied by Joel, his wife Christina^[2] and 12-year-old Aaron. The officer also heard sounds consistent with punching or slapping. Inside the room, the officers saw Christina on the bathroom floor and Joel standing over her. The officers found methamphetamine in Joel's possession and two methamphetamine pipes. Joel admitted he purchased and used methamphetamine that day. He also admitted using as much as a half gram of methamphetamine six to eight times in a 24-hour period. He said he had been using methamphetamine on and off for 10 years. Joel was arrested for drug possession and the criminal court ordered him to enroll, within three days, in a drug diversion program.

Several weeks later, an Escondido police detective responded to a call from a hospital where Christina had been admitted following injuries and two detached retinas. The detective was certain Christina's injuries were the result of domestic violence. However, Christina, Joel and Aaron maintained she had accidentally fallen. Joel also claimed Christina's red marks and bruises were self-inflicted, explaining she was a "head banger." Christina said she hurt herself and "hit [herself] against the wall." The detective noted Aaron had poor hygiene both times he saw him.

Social worker Carol Keaton interviewed Aaron at school. Aaron, who was tearful and anxious during the interview, told Keaton everything was fine at home. Aaron insisted his father no longer used or possessed drugs. When asked what he would do if his father and stepmother began fighting again, Aaron said he "would just watch T.V." He said he would not call the police if someone were getting hurt because "[t]hat would be a betrayal and my family doesn't do betrayal." Aaron was extremely protective of Joel and frequently interjected statements about what a good father he had.

Joel was arrested for failing to enroll in the drug diversion program as ordered by the court. The same day, Aaron was taken into protective custody. On October 26, 2005, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court alleging Joel was unable to provide regular care for Aaron because he admittedly abused methamphetamine. The petition further alleged Joel was arrested while under the influence of methamphetamine in Aaron's presence and drug paraphernalia was accessible to Aaron in the motel room where they lived.

According to a report prepared for a jurisdiction and disposition hearing, Joel's criminal history included arrests for drug possession, criminal trespass and inflicting corporal injury on a spouse. Joel told the social worker the family could no longer afford to live in their home after he lost his business license. Although he intended to find a job, he needed to be with his wife. He performed odd jobs for cash and denied using drugs after his release from custody a month earlier. Agency recommended services for Joel, including participation in the Substance Abuse Recovery Management System (SARMS), random drug testing, a 12-step program, therapy, parenting classes and a psychological evaluation.

The court received a psychological evaluation of Andrea, who told the evaluator she was uncomfortable with Joel. She said Joel beat her "a lot for a lot of years . . . seemed like every day." When asked if Joel ever subjected her to domestic rape, Andrea said, "Probably, although I didn't report it."

At a contested jurisdiction and disposition hearing, the court sustained the allegations of the petition and declared Aaron a dependent. The court removed Aaron from Joel's custody and placed him with relatives.

DISCUSSION

I

Substantial Evidence Supports the Court's Jurisdictional Findings

Joel contends the evidence was insufficient to support the court's findings under section 300, subdivision (b). He asserts there was no evidence Aaron had already suffered, or was at risk of suffering, serious physical harm or illness as a result of Joel's methamphetamine use or the presence of drug paraphernalia in the home.

A

Standard of Review

In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether substantial evidence supports the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal. App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B

Aaron Required the Juvenile Court's Protection

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure or inability "to provide regular care for the child due to the parent's . . . substance abuse." In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) The Legislature has emphasized a child's well-being depends on "a home environment free from the negative effects of substance abuse." (Ibid.) In assuring a safe home environment, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)

Here, the evidence showed Joel had a 10-year history of drug abuse and admittedly used a large quantity of methamphetamine six to eight times a day. At the time of his arrest in Aaron's presence, Joel was under the influence of methamphetamine. Two pipes used to smoke methamphetamine were found in the bathroom. Aaron was at risk of harm from Joel's failure to provide "a home environment free from the negative effects of substance abuse." (§ 300.2.) This was not "occasional and casual neglect," or an "isolated lapse of parental judgment," but rather pervasively negligent and illegal conduct, through the habitual use of controlled substances, warranting the court's intervention. (See Jordy v. County of Humboldt (1992) 11 Cal.App.4th 735, 743-744 [juvenile court law does not extend to every lapse of parental judgment resulting in negligence].) Further, Joel failed to enroll in drug treatment as ordered by the court, resulting in his arrest and the need to have Aaron taken into protective custody.

Joel's claim he did not expose Aaron to a substantial risk of harm shows he has ignored the many serious dangers inherent in a home where substance abuse is ongoing and untreated.^[3] A parent's chronic use of drugs necessarily endangers a child's physical and emotional health and safety by creating an environment in which the parent's judgment is impaired and the ability to function as a parent is compromised. (See, e.g., Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 268-269 [in context of family law proceeding, Legislature sought to recognize substance abusing homes as threat to health, safety and welfare of children].) Similar to domestic violence, drug use in the presence of children constitutes neglect in that it is a failure to protect children from the substantial risk of exposure to illegal and dangerous substances. (See In re Heather A., supra, 52 Cal.App.4th at p. 194 [domestic violence in presence of children constitutes neglect, and such neglect causes the risk].) Neglect is also evident in an environment that condones and therefore promotes drug use. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 825.) By exposing Aaron to the illegal use of controlled substances, Joel was acting "in a fashion incompatible with parenthood." (See In re Carmaleta B. (1978) 21 Cal.3d 482, 489.) Substantial evidence supports the court's finding Aaron was at substantial risk of serious harm or illness by his exposure to drugs and drug paraphernalia.^[4]

II

Substantial Evidence Supports the Court's Dispositional Findings

Joel contends the evidence did not support the court's order removing Aaron from his custody. He asserts his only parental deficiency was methamphetamine use, which had not caused any legally recognizable harm to Aaron.

A

Standard of Review

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home, and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. ( c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings constitute prima facie evidence the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal. 4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings to determine whether there is substantial evidence to support them. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)

B

Aaron Remained at Risk in Joel's Care

The court's removal order was based on findings that Joel abused methamphetamine and had drug paraphernalia that was accessible to Aaron, placing Aaron at risk of suffering serious physical harm if he remained in Joel's care. In addition to being exposed to drugs and drug paraphernalia, Aaron was at risk in Joel's care because he was extremely protective of his father despite knowing about his drug abuse. Aaron was incapable of protecting himself as shown by his statement to the social worker that he would not report a domestic violence incident, even if someone were being injured, because he does not betray his family.

The court commended Joel for his recovery effort and recognized his motivation to address his long-standing methamphetamine use and regain custody of his son. Nevertheless, the court noted it would take "considerably more work" for Joel to overcome his substance abuse and thus, it was too soon to safely return Aaron to Joel's care. Substantial evidence supports the court's dispositional order removing Aaron from Joel's care.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Christina is Aaron's stepmother. Aaron's biological mother, Andrea R., had previously consented to Aaron living with his father. Andrea is not a party to this appeal.

^[3] Contrary to Joel's position, the duration of his drug addiction (10 years) does not support a finding Aaron was not at substantial risk of harm.

^[4] Although domestic violence was not alleged in the petition as a basis for juvenile court intervention, there was some evidence of domestic violence between Joel and Christina, a likely consequence of Joel's drug use, further placing Aaron at risk of harm.