Filed on 9/6/17 In re K.R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed.

Marsha F. Levine and Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant M.B.

Shobita Misra and Daniel Rooney, under appointment by the Court of Appeal, for Defendant and Appellant J.R.

Leon J. Page, County Counsel, Karen L. Christensen, Joyce Riley, and Robert N. Ervais, Deputy County Counsel, for Plaintiff and Respondent.

No appearance on behalf of the Minor.

* * *

M.B. (Mother) and J.R. (Father) appeal from the juvenile court’s jurisdictional and dispositional findings regarding their now seven-year-old daughter K.R. In her appeal, Mother contends that after she was arrested in California, K.R. should have been immediately sent to her paternal grandparents’ home in Arizona, where the child had resided since her birth. (Paternal grandparents do not have legal custody of K.R. and are not parties in this appeal.) In addition, Mother challenges the court’s denial of her motion to dismiss, disputing the court’s decision to exercise emergency jurisdiction to consider the dependency petition pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Father’s appeal attacks the court’s jurisdictional finding as to him on the grounds of insufficiency of the evidence. Specifically, he maintains there was no evidence his use of drugs and addiction caused K.R. to be at substantial risk of serious physical harm or illness. Alternatively, Father maintains there was insufficient evidence to support the court’s decision to remove K.R. from his custody. Mother joins in Father’s appellate arguments. Finding all the contentions lack merit, we affirm the orders.

FACTS

Mother and Father are unmarried. K.R. has lived with her paternal grandparents in Arizona since her birth. Paternal grandparents do not have legal custody. Mother and Father also resided for some period of time with paternal grandparents.

On May 30, 2016, paternal grandmother drove K.R. and two friends to Nevada and left them in Mother’s care. The plan was for Mother to take the girls to California for a Disneyland visit and return with them to Nevada. Paternal grandmother would then pick up the girls and return to Arizona. This plan was disrupted on June 3, 2016, when Mother was arrested for burglary, identity theft, and possession of illegal narcotics. Mother was staying with the children in a Garden Grove hotel when she was arrested. The police took the three children to Orangewood Children and Family Center (Orangewood). Orange County Social Services Agency (SSA) contacted the family of K.R.’s two friends who were sisters, and they were returned to their parents’ custody in Arizona.

A social worker interviewed K.R. after she was taken into protective custody. K.R. said she lived with her paternal grandparents in Arizona. She reported Father currently lived with Mother and Mother’s boyfriend in Nevada. She had witnessed domestic violence between Mother and her boyfriend, but not between Mother and Father. K.R. said Mother and Father “do drugs together in the garage” with the door locked and she was not allowed to enter.

On June 3, 2016, the same day K.R. was taken to Orangewood, SSA interviewed paternal grandfather on the telephone. Paternal grandfather stated K.R. had lived with him and his wife since she was born and he wanted K.R. released to his care “as she had always resided in his home.” Paternal grandfather stated he had only one arrest about 30 years ago for possession of a controlled substance. He added paternal grandmother had the “‘cleanest record of anyone in town’” with one arrest 10 years ago for possessing drug paraphernalia. When asked by the social worker if he and paternal grandmother were still using drugs, paternal grandfather did not respond.

Paternal grandfather was vague about whether he knew of Father’s drug addiction and he was uncertain about when Father lived in their home with K.R. He initially recalled Father left the house six months ago and was living in Las Vegas trying to find a job. Later, paternal grandfather indicated Father had moved out a little more than a month ago. Then, paternal grandfather said Father moved to Las Vegas to enter a drug rehabilitation center. When asked about the inconsistencies, paternal grandfather explained “he did not know too much about [F]ather’s activities.”

In the interview, paternal grandfather also discussed Mother. He said she moved out three years ago when Mother and Father broke up. He claimed to be unaware of Mother’s drug history and maintained if he had known he would not have dropped off K.R. with Mother.

The social worker reported paternal grandparents were trying to help by locating Father. She contacted Arizona’s child protective services (CPS) and learned there was one unsubstantiated child abuse report, dated May 17, 2013, alleging general neglect of K.R. by Father and paternal grandparents. The reporting party believed Father and paternal grandparents were selling drugs from the family home. The social worker also obtained the family’s criminal records from the Mohave County Sheriff’s Office. She learned paternal grandfather was arrested in October 2001 for failing to carry identification and register as a sex offender. April 19, 2011, an arrest warrant was issued for paternal grandfather.

On June 3, 2016, the social worker also interviewed Mother, who clarified she understood K.R. was not just spending the summer with her, but was coming to live with her permanently. Mother explained Father, paternal grandmother, and maternal grandmother were supposed to go to Disneyland with her and the girls but they “‘bailed’” on her at the last minute. Mother did not think she could handle the three girls by herself and the thought of being alone with them caused her to feel stressed. Her solution was to obtain methamphetamine before leaving Nevada so she could use it on the drive to California if she needed it. Mother claimed she did not use methamphetamine on the journey, and she insisted she had been clean for three years.

In addition, Mother indicated Father had a serious drug problem. She was unaware that paternal grandfather was a registered sex offender, but she knew he had just completed five years of probation for an unknown reason. As far as her arrest, Mother explained she believed she had permission from the owner to use the credit card.

Prior to the detention hearing on June 7, 2016, Father confirmed he was living with Mother in Nevada. He admitted he had a drug problem and his drug of choice was heroin. He was arrested in February 2016 on drug-related charges. He claimed he had not used heroin for six months, but approximately two months ago, he relapsed and began using methamphetamine. After his arrest, Father completed two weeks of a six-month drug rehabilitation program before dropping out. Father stated Mother was also addicted to drugs. He did not believe K.R. was in any danger while in Mother’s care. Father requested K.R. be released to paternal grandparents even though they did not have legal custody of her.

On June 6, 2016, SSA filed a juvenile dependency petition alleging there was a failure to protect under Welfare and Institutions Code section 300, subdivision (b).[1] The petition recounted the details of Mother’s arrest on June 3, 2016. In addition, the petition stated Mother and Father had unresolved substance abuse problems and Mother had exposed K.R. to domestic violence. Finally, the petition alleged Father left K.R. in the care of the paternal grandparents, both of whom had criminal histories involving controlled substances and paternal grandfather was convicted of having sex with a minor.

In her detention report dated June 7, 2016, the social worker recommended the court detain K.R. at Orangewood and authorize SSA to release K.R. to “a parent, relative[,] or suitable adult pending [the j]urisdictional and [d]ispositional hearing.” She also recommended drug testing for both parents.

At the detention hearing, Mother and Father denied the allegations in the petition. Mother requested K.R. be placed with paternal grandparents. Pending this placement, Mother asked that K.R. be released to maternal grandmother, who was present in court and residing with relatives in Orange County. Father joined in Mother’s placement requests. The parents requested liberal visitation with K.R.

Minor’s counsel requested detention and noted that because both parents currently had significant drug problems their visitation should be monitored and start at six hours per week. On the issue of placement with maternal grandmother, minor’s counsel indicated maternal grandmother would need to move to California and let SSA assess her for placement, otherwise there needed to be an Interstate Compact on the Placement of Children (ICPC) started in Nevada.

The court asserted temporary emergency jurisdiction under the UCCJEA and Family Code section 3424, subdivision (a). It stated, “The child is present in California. The child has basically been abandoned or it is necessary to protect the child due to neglect or abuse. There are no other custody orders from any other states.” The court determined K.R. needed to be detained for her protection. It authorized six hours of monitored visitation per week for Mother and Father and indicated the time could increase if they had four successive negative drug tests. The court limited travel to within California and indicated paternal grandmother and maternal grandmother could also visit K.R.

In addition, the court ordered SSA to evaluate relatives for possible future placement and to immediately assess maternal grandmother. It authorized SSA to place K.R. with an appropriate caregiver. Minor’s counsel objected to placement with paternal grandparents stating she believed they were well aware of the parents’ drug problems and failed to protect the child.

The court noted its orders would remain in effect until it received an order from another state having jurisdiction. It set a jurisdictional hearing for June 28, 2016.

In her next report, the social worker stated paternal grandmother claimed to have filed a petition for guardianship on June 10, 2016, in Mohave County Superior Court. The social worker noted paternal grandmother did not notify the Arizona court that K.R. was the subject of dependency proceedings in California. The social worker recommended the court sustain the petition, declare dependency, and order family reunification services. She noted K.R. had been living in a foster home since June 3, 2016.

The June 28 jurisdictional hearing was continued to July 6 and then to July 21. During this period, K.R. was moved to a different foster home. The court ordered ICPC notice to Arizona regarding possible placement with maternal grandmother and paternal grandparents. It also continued the hearing to August 30, 2016.

In a report dated August 30, 2016, the social worker stated she received a telephone call regarding the Arizona ICPC. She learned the report was close to completion, but the ICPC would be denied because paternal grandfather was a registered sex offender. The social worker added she was pursuing possible placement with maternal grandfather in Nevada, however, he was having difficulty completing the process. The hearing was continued to September 28, and then to October 20, 2016.

Before the next hearing, the social worker learned the ICPC assessments for the paternal grandparents and the maternal grandfather were completed and both placements were denied. She notified the court that Father had been incarcerated in Nevada and he would remain in custody until January 28, 2017.

On October 20, 2016, Mother filed a motion to dismiss the case, asserting the court lacked jurisdiction. She argued it was undisputed Mother, Father, and K.R. were all Nevada residents and no party resided in California. SSA opposed the motion, arguing K.R. was at risk due to her parents’ drug addictions and Mother’s history of domestic violence. SSA argued the court had emergency temporary jurisdiction under UCCJEA unless the minor’s home state assumed jurisdiction over the matter. (Citing Fam. Code, § 3421.) The court continued the jurisdictional hearing to be heard the same day as the motion to dismiss (October 28, 2016).

At the hearing, the court and counsel discussed how best to proceed. They agreed to first hold a hearing to decide the limited issue of whether the court had emergency jurisdiction, and then have a jurisdictional hearing if necessary. All parties stipulated the evidence from the first hearing could be used in the jurisdictional hearing.

The court took evidence on multiple dates beginning on November 29, 2016, and concluding January 3, 2017. The court received and considered the social worker’s jurisdictional and dispositional reports and many addendums. In these reports, the social worker discussed Mother’s arrest, her substance abuse, and domestic violence history. She reported Mother lost custody of two other children in Nevada and paternal great grandmother was now their guardian. Mother had not contacted these children for two years.

The social worker also discovered that in addition to Mother and Father, maternal grandmother had a history of methamphetamine use. The social worker met with maternal grandmother in late June 2016. She opined maternal grandmother “appeared to possibly be under the influence of stimulants based on her rapid speech and behavior.” During the social worker’s conversation with maternal grandmother, she asserted a Nevada court had given her guardianship of K.R. She also complained about errors in the reports and was highly critical of the dependency proceedings. The social worker noted she invited maternal grandmother to visit K.R., but she decided not to see her granddaughter that day.

The social worker’s reports updated the court on K.R.’s status and all the reports indicated K.R. was doing well overall in her foster placement. She also discussed a few problems. At the end of July 2016, K.R.’s foster parent indicated K.R. was having bathroom hygiene issues, she was bedwetting, and she was urinating in her clothes during the day. The social worker opined K.R. had not learned how to properly clean and wipe herself and the foster parent was teaching K.R. how to address these problems. The social worker also discussed K.R.’s obesity. After her detention, K.R. was 51.7 inches tall and weighed 137 pounds. The foster parent was providing K.R. a healthy diet and limiting the amount of sweets. The following month the social worker reported K.R. had lost some weight (she now weighed 132.9 pounds).

K.R. told the social worker she was “‘doing good.’” In August 2016, K.R. told the social worker she was angry with Mother because she failed to show up for a visit. The social worker’s reports frequently noted Mother was often unable to keep scheduled visitation appointments. K.R. asked the social worker if she could go home to her grandmother. K.R. also acknowledged she felt safe in her foster home. The social worker reported K.R. appeared slimmer (now weighing 127.1 pounds). The foster parents said K.R. was walking places with the family and spending time at the community pool.

On November 28, 2016, SSA filed a first amended petition, which alleged Mother was involved in a domestic violence incident in 2007 with her then-boyfriend. On the same day, the social worker reported Father had called and indicated he would be released early from custody (December 19, 2016). Father claimed he found a job, he planned to attend parenting classes, and he desired to reunite with his daughter.

At the hearing, the court also considered testimony from the social worker, Victoria Scheele. She expressed concern about placing K.R. with Mother due to her history of drug abuse, her failure to participate in drug testing and services, her domestic violence history, and her poor judgment in committing a crime in the presence of her daughter. She objected to K.R. being released to paternal grandparents due to the risk of imminent physical harm based on paternal grandfather’s prior sex abuse conviction. Scheele stated she did not verify the conviction, but she took paternal grandfather’s word for it. She recalled that in his interview, paternal grandfather stated he served six months because of the conviction.

Scheele testified paternal grandparents’ ICPC was denied for the following reasons: (1) paternal grandfather’s conviction for sex abuse; (2) the fact Father was living in and out of the home; and (3) prior drug issues concerning paternal grandparents. She testified paternal grandparents did not want to complete fingerprinting until their records were sealed, and for this reason, they did not complete their background check. She noted they also failed to turn in any paperwork regarding income, which was a requirement for ICPC placement. Scheele opined it would be unwise to place K.R. with a relative out of state without services or an ICPC approval.

When questioned more about the nature of Mother’s arrest, Scheele acknowledged the methamphetamine pipe was in a locked safe along with the methamphetamine, and K.R. never saw these items. Scheele admitted there was no evidence Mother physically abused K.R. or that K.R. was afraid of Mother.

The court also considered K.R.’s testimony. K.R. stated she did not want to stay with Mother because “there’s a lot of fighting there.” She described the fighting as “hitting, yelling.” K.R. indicated living with paternal grandmother in Arizona was “good.” K.R. said she currently did not like sharing a room with her foster sister and she liked having her own room when she was living with paternal grandparents or maternal grandmother. K.R. said if she could live anywhere that she would want to live with her paternal grandparents and Father. She liked where she was now living, but she liked Arizona better.

Maternal grandmother had moved back to Nevada after the court refused to place K.R. with her. Mother made an offer of proof, and all parties stipulated, maternal grandmother would testify to the following facts: (1) she was ready, willing, and able to care for K.R. and move back to California; (2) she had no drug arrests or convictions for the past 20 years; (3) the social worker’s allegation maternal grandmother was under the influence was false; and (4) her visits with K.R. had gone extremely well.

Mother made a further offer of proof, and all parties stipulated, paternal grandmother would testify to the following facts: (1) she was ready, willing, and able to care for K.R. (and if necessary exclude paternal grandfather from the home); (2) she was willing to have Father move out of her house; (3) she had been K.R.’s primary caregiver; (4) she did not have full knowledge of Mother’s drug use or domestic violence history; (5) she was told Mother had broken up with her boyfriend; (6) K.R. had done very well emotionally, academically, and socially in her care; (7) K.R. earned “As” in school; (8) the social worker never contacted her prior to K.R.’s foster placement; (9) she had believed paternal grandfather did not have to register as a sex offender because his conviction took place before the law changed and required sex offenders to register; (10) in June 2016 she filed a petition for guardianship for K.R. in Arizona; (11) Mother and Father had previously given paternal grandmother their consent that she act as K.R.’s guardian; (12) she regularly visited with K.R. and their visits were good; and (13) she was willing to cooperate with all court orders.

The court first heard argument on the emergency jurisdiction issue. Mother questioned, “s there an emergency that still exists as of today that gives this court emergency jurisdiction?” She noted the emergency bringing K.R. to SSA’s attention was Mother’s arrest, and this was no longer a problem because Mother was out of custody and she had made placement arrangements. Under these circumstances, there was no risk of physical harm to K.R. under section 300, subdivision (b). Mother acknowledged the domestic violence issue could be a basis for dependency, but because Mother was no longer with her boyfriend, the problem had been solved. With respect to concerns about paternal grandfather acting as a caregiver, Mother suggested he could move out of the home, eliminating any risk of harm to K.R. Mother analogized K.R.’s circumstances to those in [i]In re S.D. (2002) 99 Cal.App.4th 1068 (S.D.), and asserted, “n California there is no go-to-jail-and-lose-your-kid.” Mother minimized her conduct, arguing there was no evidence she was under the influence when she was arrested or that K.R. ever saw the drugs. Mother added that even if she had a substance abuse problem, she never “beat the child or put [her] at physical risk or harm.”

“The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.)” ([i]In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The focus of the system is on the child, not the parents. “[T]he purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.)

The UCCJEA is the exclusive method in California for determining subject matter jurisdiction in child custody proceedings involving other jurisdictions. (Fam. Code, § 3421, subd. (b); In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 490.) “A dependency action is a ‘“[c]hild custody proceeding”’ subject to the UCCJEA. [Citations.]” (In re A.M. (2014) 224 Cal.App.4th 593, 597.) “A California court may exercise ‘temporary emergency jurisdiction’ when a ‘child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to, or threatened with, mistreatment or abuse.’ (§ 3424, subd. (a).) An ‘emergency’ exists when there is an immediate risk of danger to the child if he or she is returned to a parent. [Citations.]” (In re Cristian I. (2014) 224 Cal.App.4th 1088, 1097.)

Our standard of review is well settled. “‘[T]he “substantial evidence” test is the appropriate standard of review for both the jurisdictional and dispositional findings. [Citations.]’ [Citation.]” (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) “‘Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]’ [Citation.]” (In re Christopher C. (2010) 182 Cal.App.4th 73, 84.)

I. Emergency Jurisdiction

According to Mother, there was no basis for emergency jurisdiction and K.R. should have been immediately “returned to the custody and care of her paternal grandparents . . . without the need for filing a juvenile dependency petition” given the grandparents’ willingness to continue what Mother describes as their “de facto” guardianship. Alternatively, Mother asserts that even if SSA’s initial actions were proper, the juvenile court lacked jurisdiction to proceed with the case. Both contentions lack merit.

Mother relies on section 306, subdivision (b)(3), to support her argument SSA failed to take the appropriate steps before filing the dependency petition. That section provides that “[b]efore taking a minor into custody, a social worker shall consider whether the child can remain safely in his or her residence.” (Ibid.) In making this determination the social worker must investigate “[w]hether a nonoffending caretaker can provide for and protect the child from abuse and neglect and whether the alleged perpetrator voluntarily agrees to withdraw from the residence, withdraws from the residence, and is likely to remain withdrawn from the residence.” (Ibid.) Mother argues that before a decision was made to file a dependency petition, it was incumbent upon SSA to take steps to return K.R. to Arizona with her paternal grandparents with whom she had resided since birth. She asserts paternal grandparents are “for all practical purposes, her de facto guardians.” In essence, Mother is claiming paternal grandparents should be treated like the nonoffending caretakers described in section 306, subdivision (b)(3).

SSA contends this argument fails because there was evidence paternal grandparents would not qualify as “nonoffending.” As described earlier, paternal grandfather spoke to the social worker the day Mother was arrested and disclosed the couple’s drug-related criminal history. They also negligently permitted K.R.’s drug addicted mother to take her on the trip that prompted these dependency proceedings. SSA argues another reason why Mother’s argument lacks merit is because the grandparents had no legal rights with respect to K.R. SSA aptly cites to legal authority holding relatives, caregivers, stepparents, and de facto parents do not have the same custodial rights and responsibilities as parents and legal guardians. On one hand, this means they lack reunification rights, but on the other hand, it means they have no legal obligation to support the minor. And the court would be powerless to order them to participate in services. Mother offers no legal authority suggesting a relative lacking legal custody would be entitled to presumptive custody under section 306, subdivision (b)(3).

Instead of addressing the above issues, Mother discusses at length several cases regarding incarcerated parents who were able to avoid dependency proceedings by arranging for their children’s care at the time of the jurisdictional hearing. (Maggie S. v. Superior Court (2013) 130 Cal.App.4th 662, 664 (Maggie S.); S.D., supra,

99 Cal.App.4th at p. 1071.) She suggests these cases support the conclusion K.R.’s grandparent’s criminal history was an improper factor to consider under section 306, subdivision (b)(3). She misconstrues the applicable law.

In S.D., supra, parents left their two-year-old in a hotel room they rented with a stolen credit card, in the care of a relative who was the subject of an outstanding warrant. (S.D., supra, 99 Cal.App.4th at pp. 1070-1071.) The child was detained, and mother was incarcerated for credit card fraud. The child’s father’s whereabouts were unknown. (Id. at p. 1072.) SSA filed a dependency petition based on section 300, subdivision (b) (failure to protect) and section 300, subdivision (g) (no provision for support) because mother was incarcerated. (Ibid.) Mother’s counsel conceded the minor was a person described by section 300, subdivision (g), and the court dismissed the other allegation. (Id. at p. 1074.) After parental rights were terminated, mother appealed and maintained counsel acted ineffectively by conceding section 300, subdivision (g), applied in light of mother’s ability to arrange for the child’s care. (Id. at p. 1077.) The appellate court determined counsel’s error required reversal of the judgment terminating parental rights. (Id. at pp. 1077-1078.) It described the parents as simply “small-time crooks” and there was nothing to suggest they were bad parents. (Id. at p. 1070.) The court reasoned that under section 300, subdivision (g), a minor comes within the jurisdiction of the juvenile court when the child’s parent has been incarcerated and cannot arrange for the child’s care. In the case before it, the parents were unable to care for the minor, but there was ample evidence demonstrating mother could have arranged for her child’s care with either one of her sisters. (Id. at pp. 1077-1079.)

Mother acknowledges the S.D. case is distinguishable because in Mother’s case the petition did not allege a count under subdivision (g). However, she argues the analysis should apply because the petition alleged K.R. was “taken into custody by law enforcement as the mother could not arrange for [her] care following her arrest.” She is mistaken for several reasons. First, there is no provision in section 300, subdivision (b), that allows a parent to arrange for the child’s care to avoid the court intervention. Second, the situations are not analogous. An incarcerated parent has time following his or her arrest to consider and contemplate arrangements for their children during the period of their confinement. In the context of taking a child into emergency protective custody, parents cannot be permitted to make hasty, unsuitable, or dangerous arrangement for their child to simply avoid a dependency petition. It would be contrary to the intent of the Legislature to allow parents to avoid SSA intervention by making an arrangement that disregarded the child’s safety. As noted earlier, the purpose of dependency law is to ensure the safety and well-being of children. (§ 300.2.) Although dependency proceedings must safeguard parents’ rights to raise the children, that right is protected only when doing so does not prejudice the children’s welfare. (In re Aaron S. (1991) 228 Cal.App.3d 202, 211.)

Third, the cases are factually distinguishable. In the S.D. case, there was nothing to suggest the parents would endanger their child and the proposed caretakers had no drug problems or other issues that would make them unsuitable caretakers. In contrast, here the social worker’s investigation uncovered paternal grandparents were not likely a suitable or appropriate placement due to their criminal histories, their questionable living arrangements with K.R.’s drug addicted father, and their poor decision to allow K.R. to travel alone with her drug addicted Mother out of state. Mother complains the social worker should have spoken with maternal grandmother after Mother’s arrest, but she does not explain how this additional conversation would have made a difference. The record shows that with the benefit of more time there was very little favorable and much more damaging information uncovered (the sexual abuse conviction). SSA had no obligation in these emergency circumstances to release K.R. to the custody of unsuitable caretakers.

On a final note, SSA correctly points out an important issue that distinguishes this case from the S.D. case is that Mother and Father were free from custody by the time of the jurisdictional hearing. Consequently, they had the legal authority to take K.R. anytime from paternal grandparents, who had no custodial rights and would be unable to protect her from Mother or Father. We agree this distinction is important and highlights why it was important for the court to remove K.R. from the parent’s legal custody and place her with suitable caregivers, who must follow the court’s orders regarding reunification efforts and monitored visitation.

Mother also cites Maggie S., supra, 220 Cal.App.4th 662, to support her position. In that case, mother was incarcerated when she gave birth to the minor. (Id. at p. 665.) At the hospital, mother designated two relatives who later declined to care for the minor and her godmother who was willing to take the child. (Id. at p. 672.) Due to a mistake about the designation, the juvenile court took jurisdiction over the minor. (Ibid.) In reversing the order, the appellate court explained section 300 subdivision (g), provides for jurisdiction only when an incarcerated parent cannot arrange care for the child. In response to SSA’s argument on appeal about the proposed guardian, the court noted the parent was not required to prove the suitability of the placement. (Ibid.)

Mother recognizes the case concerns review of a jurisdictional finding, but maintains the part of the analysis about not requiring evidence of a suitable placement should apply in her case. We disagree. The holding in Maggie S. is limited to an analysis of the jurisdictional requirements of section 300, subdivision (g). The court’s statement about suitability must be read in that context. It reasoned that if the parent arranged for an unsuitable placement, SSA could challenge such a placement under a different clause of the statute. Maggie S., supra, 220 Cal.App.4th at p. 673.) “‘If [DCFS] wishes to challenge the suitability of those arrangements, it must proceed under a different clause of subdivision (g), providing that jurisdiction is also appropriate where “a relative or other adult custodian . . . with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.” Of course, the fact that this provision requires not only proof of an unsuitable placement, but also that the parent cannot be located, suggests that even if the initial arrangements do not work out, an incarcerated parent (who certainly could be located) would have the opportunity then to make other arrangements.’ [Citation.]” (Ibid.) And finally, the court reversed the jurisdictional finding in Maggie S. because SSA had not provided the court with accurate and timely information regarding mother’s ability to make suitable arrangements for her infant child. (Ibid.) Here, the court was not relying on misinformation when it considered and rejected the unsuitable “arrangements” offered by K.R.’s parents. To the contrary, there was ample evidence to support the court’s ruling.

II. Jurisdictional Findings

In contesting the jurisdictional finding against him, Father asserts substantial evidence does not support the juvenile court’s determination that, at the time of the hearing, Father’s acts or omissions created any substantial risk of serious harm to K.R. Specifically, Father claims there is no causal nexus between his drug abuse and any current risk to K.R. Father does not dispute he has a drug problem and argues in the context of dependency jurisdiction under section 300, subdivision (b), his drug use is relevant only to the extent it negatively effects K.R.’s future care.

Father cites numerous cases for the proposition the risk must be specific, non-speculative, and substantial. For example, he cites In re Destiny S. (2012) 210 Cal.App.4th 999, where the basis for jurisdiction was the court’s conclusion mother’s drug use could have been the cause of her daughter’s tardiness to school. The appellate court reversed the order based on its determination there was no evidence to support a finding that mother’s drug use caused her to neglect her child. (Id. at p. 1003.)

Similarly, in In re David M. (2005) 134 Cal.App.4th 822, 829,[2] the appellate court concluded the jurisdictional finding was not supported by substantial evidence and reversed. Despite evidence of mother’s mental and substance abuse problems and father’s mental problems, the court determined these issues were never tied to any actual harm to the minor. (Ibid.) There was uncontradicted evidence the minor was healthy, well cared for, and loved while living in a clean, tidy home. (Id. at p. 830.) Father cites several other cases with similar holdings, but we need not address each one individually. We agree evidence of substance abuse does alone not create the substantial risk of harm contemplated by section 300, subdivision (b).

Father fails to recognize the evidence in this case showed there were negative consequences associated with his drug abuse. It was undisputed Father left K.R. in the care of his parents for long periods without giving them the benefit of any legal authority. He also neglected to leave adequate information about how to reach him, as evidenced by paternal grandparent’s inability to immediately locate Father after Mother’s arrest. This arrangement in and of itself created risk to K.R. because the grandparents did not have the rights of a legal guardian to provide appropriate care for K.R. or a way to contact Father in case of an emergency. And in Father’s absence, likely due to his drug abuse, they turned K.R. over to her Mother for a potentially dangerous road trip to California. Father’s drug usage is connected to his ongoing reliance on unsuitable caretakers for K.R., creating a substantial risk of harm to her.

III. Custody

Father argues there was no clear and convincing evidence of a danger to K.R. necessitating her removal from his custody and he maintains there were other means available to protect her. He asserts the only demonstrated risk to K.R. was from Mother’s infrequent visits, and he points out Mother does not reside in the same home. Father believes he was adequately protecting K.R. and could continue to protect K.R. within the meaning of section 300, subdivision (b), because he “had a long-standing arrangement with his parents, who provided excellent care, supervision, and protection.” Father claims it was undisputed K.R. thrived in every respect under the care of the paternal grandparents. He points out there was no showing of past or current abuse or neglect when K.R. lived with paternal grandparents. He describes K.R. as “happy, healthy, developmentally on track, free from signs of abuse or neglect, and very strongly bonded with [him] and her paternal grandparents.” We cannot entirely agree with Father’s assessment.

True, K.R. was happy, doing well in school, and bonded with her paternal grandparents. Father overlooks the evidence showing foster parents and the social worker observed several health-related problems after K.R. was detained. The social worker reasonably concluded K.R. had not been taught the basic skills of proper body hygiene, good nutrition, or healthy eating by paternal grandparents. K.R. was obese and suffering from poor hygiene. Moreover, Father apparently attaches no significance to the reasons why paternal grandparents were not approved for ICPC placement. He sees no importance in the fact they did not seek guardianship until after dependency proceedings in California had begun. Father suggests paternal grandfathers’ vague responses about his own drug usage, Father’s addiction, and Father’s whereabouts was completely acceptable. We disagree. There was substantial evidence paternal grandparents were not raising seven-year-old K.R. in a drug free and safe environment. The record suggests they utterly failed to recognize the need to protect K.R. from her drug-addicted Father or Mother.

Lastly, in support of his argument the court needed to place K.R. with him or paternal grandparents, Father states that once dependency jurisdiction was established the court’s supervision was guaranteed. He asserts, based on this guaranteed supervision, no reason existed to remove K.R. from paternal grandparents’ home with Father. He forgets this arrangement would not be possible because paternal grandparents were not approved as a placement through ICPC. As stated above, there was also ample evidence such a placement created a risk of harm to K.R.

We next address Father’s claim that when the court removed K.R. from Father’s custody, it was a de facto removal from her permanent home with the paternal grandparents. He argues removal was improper because paternal grandparents’ home is not where the abuse occurred. He contends the court’s authority to remove a child under section 361, subdivision (c)(1), applies only when the child is living with the parent at the time the petition is filed. It was undisputed Father was not living with K.R. in June 2016.

Father likens his situation to that of the mother in In re Dakota J. (2015) 242 Cal.App.4th 619 (Dakota J.). In that case, the court considered whether the juvenile court, which found evidence supported removal of youngest child from mother’s physical custody, could also order removal of older children who were not living with her. It reversed the dispositional order after concluding the older children had lived with their father’s stepfather and saw mother for only a few hours each week. (Id. at p. 623.)

We agree with SSA the Dakota J. case is distinguishable because here there was evidence Father was living with paternal grandparents and intended to return to their home. Consequently, K.R. was intermittently in Father’s physical custody unlike the situation in the Dakota J. case. “f parents shared physical custody of a child who lived part of the year with one of them and part of the year with the other, the juvenile court could find the child resided with both parents . . . [,] and remove him or her from the physical custody of both if the conditions for removal under section 361, subdivision (c), were otherwise satisfied as to each parent. [Citation.]” ([i]In re Anthony Q. (2016) 5 Cal.App.5th 336, 352.)

IV. No Error

Although Mother and Father fashion their arguments in different ways, each is essentially arguing the same thing with respect to jurisdiction. Both parents contend there was no substantial risk of harm to K.R. when she was living in her paternal grandparent’s home, and therefore, the court’s emergency jurisdictional finding was erroneous. The parents overlook the extensive efforts SSA made to investigate placement with paternal grandparents and in the alternative to locate an appropriate relative or suitable adult to whom K.R. could be released prior to the institution of dependency proceedings. Under the circumstances, it was not error for the court to find it had emergency jurisdiction.

As to further jurisdictional and dispositional findings, both parents appear to view Mother’s arrest as being an isolated incident. The parents overlook the obvious. It is undisputed Mother and Father left their daughter with relatives while they pursued activities other than parenting. Neither parent was a regular part of K.R.’s life. The sporadic contact the parents had with K.R. is fundamentally inconsistent with the role of a parent. Contrary to Father’s belief, leaving his daughter in the care of others is not evidence he was adequately supervising or protecting her. We find substantial evidence supports the court finding there was a failure to protect K.R. and she has suffered, or there is a substantial risk she will suffer, serious physical harm or illness.

In terms of the dispositional order, they contend the court erred in removing K.R. from the custody of her parents. The paternal grandparents were an appropriate placement and there were other alternatives if the court found paternal grandparents’ home unsuitable. However, the record demonstrates neither parent established they had reasonable means to protect K.R. if she were to remain in their custody. Removal of K.R. from her parents’ custody was necessary because placement with either parent was not possible. Father suggests placement with him in the paternal grandparents’ home was a reasonable means to protect K.R. without removing her from the parents’ custody. But that arrangement prior to Mother’s trip to California proved to be problematic. The trip was sanctioned by Father and facilitated by paternal grandmother. Mother showed extremely poor judgment in driving to California from Nevada with K.R. while possessing methamphetamine “just in case she needed it.” And Father’s judgment was poor to think K.R. was not in danger when she was in the care of Mother, needing drugs to simply cope with driving three children a long distance.

Both parents fail to recognize the myriad problems their substance abuse created for K.R. When considering the evidence in its entirety, we find no error in the court’s dispositional order removing K.R. from the custody of both of her parents and denying placement with paternal grandparents.

DISPOSITION

The judgment and orders of the juvenile court are affirmed.

O’LEARY, P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.