In re E.R.

Filed 10/12/06 In re E.R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Madera County. Thomas L. Bender, Judge.

Michael J. Kluk, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Raymond R. (father) appeals from jurisdictional findings and the consequent dispositional order that removed his son, E., from his legal and physical custody. Father contends the juvenile court erred in finding jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) and (j),^[1] because there was no substantial evidence to support findings under these subdivisions. Father further contends the order temporarily removing physical custody of E. from him was not supported by evidence that removal was necessary to avoid a substantial danger to E.’s physical health or emotional well-being, and there were no reasonable means to protect E.’s physical health without removing him from his custody. (§ 361, subd. (c)(1).) We disagree and will affirm the dispositional order. FACTS

Shelly R. (mother) gave birth to E. in January 2006.^[2] Respondent Madera County Department of Public Welfare (Department) immediately placed E. in protective custody. The background of this placement is as follows: father and mother, who are legally married, are the parents of four other children. On October 1, 2004, both mother and their fourth child, K., tested positive for amphetamines. The next day, K. was taken into protective custody pursuant to section 300, subdivision (b). K. was adjudged a dependent child and on November 15, 2004, family reunification services were offered to both father and mother. On May 15, 2005, the court continued services for six more months.

After E.’s birth in January 2006, the Department received a referral alleging mother and E. both tested positive for amphetamines at his birth. A social worker interviewed mother, who told him she was “‘out partying’ for New Year’s Eve and she used ‘about $40.00 worth’ of methamphetamine.” Mother denied using methamphetamine at any other time during her pregnancy, although she admitted she had used it until she “‘found out’ she was pregnant[,]” and she began receiving prenatal care around her fourth month of pregnancy. Mother also said she had been using methamphetamine since she was 18 years old, which she smoked three to four times per week, and she supported her drug habit with money she received from friends and family. Mother said she and father separated in August 2005 because of her drug use, and their three older children were living with father, although he had not filed for legal custody of them. Father allowed her to visit the children at any time. When asked about the status of her family reunification services for K., mother said the social worker had recommended termination of services due to non-cooperation.

The social worker also interviewed father about his failure to comply with his court-ordered case plan for reunification with K. The social worker asked father why he failed to cooperate and attend Al-Anon. Father acknowledged he believed mother has a drug addiction. He admitted he had not yet filed for custody of the three older children, who were in his care. Father said he allowed mother to come over to his home to visit the children at any time, although he did not allow her to take the children anywhere without him being present.

On January 6, 2006, the Department filed a petition under section 300, subdivisions (b) and (j). The allegations under subdivision (b) read: “b-1 [Mother] abuses illegal substances, to wit, methamphetamine, which hinders her ability to make reasonable decisions and provide a safe environment for her child, E[]. On 01/04/2006, [mother] tested positive for amphetamines at the birth of her son, E[]. b-2 [Mother] placed infant, E[], at substantial risk of suffering serious physical harm or illness as a result of [mother’s] substance abuse. On 01/03/2006, [mother] admitted to Social Worker Kevel Johnson that she last used methamphetamine on 01/01/2006. b-3 On 01/04/2006, E[], the newborn infant of [mother], tested positive for amphetamines. b-4 [Father], presumed father to E[], knew or should reasonably have known that [mother] was abusing methamphetamine during her pregnancy and exposing E[], in utero to methamphetamine, thus placing E[] at substantial risk of suffering serious physical harm or illness. [Father] failed to protect E[] from said abuse.”

The allegations under subdivision (j) read: “j-1 E[] is the sibling to K[], who is a dependent of Madera County Juvenile Court. E[]’s sibling, K[], was removed due to neglect associated with the substance abuse of his mother, []. [Mother] is non-compliant with her Court ordered case plan and continues to abuse methamphetamine; E[] is at substantial risk of the same type of neglect previously suffered by his sibling if he is not removed from the custody of his mother, []. j-2 E[], is the sibling to K[], who is a dependent of Madera County Juvenile Court. E[]’s sibling, K[], was removed from his father, [] due to [father’s] failure to protect. [Father] is non-compliant with his Court ordered case plan. E[] is at substantial risk of the same type of neglect previously suffered by his sibling if he is not removed from the custody of his father, [].”

On January 25, 2006, mother called the social worker and asked for a referral to alcohol and drug counseling, which she said she would pick up that day. Mother, however, did not pick up the referral.

The Jurisdictional Hearing

The juvenile court ordered E. detained from both mother and father. At the contested jurisdictional hearing held on February 1 and 2, 2006 the Department submitted on the social study report and recommendations. The report included the substance of the interviews of the parents following E.’s birth. The social worker noted that since December 17, 2004, mother had been participating in family reunification services for K., who also tested positive for amphetamines at birth; mother had been non-compliant with respect to those services and continued to abuse methamphetamine; mother failed to drug test; and mother was not attending alcohol and drug counseling, or parenting classes. The social worker further noted that father also had been non-compliant with respect to the family reunification services he was receiving for K., as he was not attending parenting classes and had not started attending Al-Anon meetings.

Father called four witnesses. The first, Kavel Johnson, is the social worker who interviewed both mother and father following E.’s birth. Johnson testified mother told her the only time she partied with methamphetamine during her pregnancy was on New Year’s Eve. Johnson, however, was not able to determine whether that information was true. Mother, who was then about 26 years old, told Johnson she started using drugs when she was about 18. Mother said she had been abusing methamphetamine until she found out she was pregnant, which was during her fourth month of pregnancy. Johnson also spoke with the hospital’s social worker, who told her mother had tested positive and provided her with the positive drug test.

Father told Johnson that while initially he did not accept that mother was addicted to methamphetamine, he now understood she was and needed help. The social worker in K.’s case told Johnson father had not attended Al-Anon classes, as required by the case plan, and although he had attended three parenting classes, he had not completed them. Father said he didn’t attend Al-Anon meetings because he didn’t think he needed them. Father told Johnson he planned to reunite with mother once she got her addiction under control and to file for custody of the other three children. Father did not give Johnson any indication he was going to be splitting up with mother. Johnson was aware that family reunification services for K. had been terminated the previous day, but she did not know the extent of services being offered father.

The second witness, Brandy King, authored the detention hearing report and the petition. King testified she concluded father was fully aware of mother’s addiction based on the positive toxicology reports on both K. and E. King admitted, however, the positive reports did not mean father necessarily knew mother was using methamphetamine during her pregnancies. She also concluded father knew or should have known mother was abusing methamphetamine during her pregnancy with E. because he had been with mother for a long time and “you would think that he would recognize the signs of her use.” King admitted, however, she did not have any information that mother abused drugs in father’s presence.

King testified she based her conclusion in the j-2 allegation that E. was at substantial risk of the same type of neglect suffered by K. if he was not removed from father’s custody on the following facts: (1) father failed to comply with his court ordered case plan to reunify with K., which showed he hadn’t learned from K.’s detention; and (2) E. is a sibling of the child who was in placement for the same type of allegation and who had been removed from father, and E. also tested positive for methamphetamine at birth. When asked what case plan components father failed to comply with, King responded he was ordered to participate in Al-Anon and although he had many months to complete parenting classes, he had completed only 17 and a half hours of the parenting class. King was not familiar with the rest of father’s case plan, but did know he failed to reunify with K. due to his failure to comply. King explained that through Al-Anon, father would learn to recognize mother’s drug use and how not to enable that use. Although the parents told King they had separated and were living in separate residences, King believed they maintained a relationship and had not actually separated. She based this belief on the length of the couple’s relationship and that they continued to have a relationship with each other. King admitted, however, that she did not know if father had terminated his relationship with mother.

The third witness, Allison Cookson, prepared the jurisdictional report. She testified she did not have first-hand knowledge of the information contained in the report, which was taken from what others had told her, as well as the detention report and petition.

Father, who was the final witness, testified he and mother had been married 13 years. Father admitted being aware mother used methamphetamine by smoking it, but denied knowing when she started using it and how much or often she used it. Father found out mother was pregnant with E. when she told him a few weeks after she found out. They were living together at the time, but they separated in August “due to other terms.” Father denied knowing that she abused methamphetamine during her pregnancy or that she smoked it in front of him. After they separated, father said he only saw mother when she came to visit their other three children at his house, where they were living; she did not appear to be under the influence of methamphetamine during these visits. Since father did not have court-ordered custody of the children, and had custody of them only through an agreement with mother, there was nothing preventing mother from seeing the children.

On cross-examination, father acknowledged mother had used methamphetamine three or four times a week, but he said that was back with K. While mother was living with him at the time, father said he did not know what she did when he was at work or asleep. Father later explained he found out mother was using drugs three to four times a week when he read about it in a report prepared for K.’s case, and said he did not know how often she was using drugs before reading the report. When asked what he meant when he said they had separated “due to other terms,” father explained they separated because they were not getting along and the separation did not have anything to do with mother’s drug use. Father testified they separated two or three other times in the past, but had gotten back together to try to work things out for the children’s sake. Father also admitted allowing mother to come visit the children even though he knew she was not complying with her case plan with respect to K. When asked why he hadn’t gotten a custody order for the children, father said he was getting one now. Father testified mother had admitted to him she uses methamphetamine. Father denied giving mother money to buy drugs, but admitted giving her money for the kids and to pay bills, and he did not ask her for a receipt on what she spent. When asked what he had done to help mother get over her drug problem, father responded that before they separated they went to parenting and a few counseling meetings.

At the conclusion of the hearing, the court stated it had a credibility problem with father’s testimony regarding the reason for his separation from mother. The court found the allegations of the petition true, with the exception of the b-4 allegation that father knew of mother’s drug use during her pregnancy with E.

The Dispositional Hearing

A contested dispositional hearing was held on April 26, 2006. The Department submitted on the social worker’s report and recommendations. On February 28, the social worker interviewed mother. Mother told the social worker she married father in 1995, but they did not live together, as she was living with her mother and stepfather. Mother stated there were no problems in their marriage. Mother admitted she first began using methamphetamine when she was 18 years old to fit in with her friends, but she denied drinking alcohol or using other drugs. Mother said she tried to stop using methamphetamine through twice weekly counseling, and her therapist was finding a Narcotics Anonymous (NA) meeting for her to attend. She also was involved with the Healthy Beginnings Program at the Family Resource Center.

The social worker interviewed father on March 1. The social worker confirmed father and mother had five children -- 10-year-old C., 8-year-old M., 3-year-old R., one-year-old K. and two-month-old E. The three oldest were living with father, while the younger two were in placement. Father reported there were no major problems in his marriage, only mother’s history of substance abuse. Father stated he was unemployed after being laid off from his job two months earlier, and his only income was from unemployment. Father said he was searching for employment. The social worker reported that E. was doing well in foster care and appeared to be developmentally on target.

The social worker stated mother and father signed their court ordered case plans on January 19. The plan required mother to attend and participate in parenting classes, as well as two out-patient substance abuse counseling sessions per week, attend NA meetings twice a week, and submit to random drug testing. Mother registered for the parenting class on February 16. As of March 1, mother had attended three group counseling sessions and an individual counseling session. The therapist stated she was going to develop a treatment plan during an individual session on March 6. Although mother had asked questions about attending NA meetings at the last group session on February 27, mother had not asked the therapist directly about them and the therapist did not know if she had attended any NA meetings. Mother took one drug test on January 20, which was negative. Father’s plan required him to attend and participate in parenting classes and attend weekly Al-Anon meetings. Father registered for the parenting class on February 16, but he had not yet enrolled in Al-Anon meetings. Father called the social worker on March 1 and stated he lost the referral form for the Al-Anon meetings.

The social worker concluded it would be detrimental to return E. to the care of his parents, as neither parent had made significant progress in alleviating the reasons for E.’s detention. Both parents recently had failed family reunification for another child and neither had demonstrated much motivation to complete their current court ordered case plan for E. Mother had not attended any NA meetings, had attended only four substance counseling sessions since E. was detained, and did not begin parenting classes until the end of February. Father had not attended any Al-Anon meetings and did not enroll in parenting classes until the end of February. The social worker opined that due to their non-compliance, E.’s return could place him at risk of further abuse or neglect.

The Department recommended that neither parent receive reunification services and a permanency planning hearing be set. The Department asserted the parents fit under section 361.5, subdivision (a)(10), as family reunification had been terminated on February 1 for both parents with respect to K. due to the their non-compliance. In K.’s case, mother was ordered to participate in a parenting nurturing program and alcohol/drug counseling, and submit to random drug testing. Mother, however, failed to attend counseling and failed to submit regular drug tests. The social worker noted mother was given a hair follicle drug test on October 10, 2005, which tested positive for amphetamines at a level indicating she continued to use on a weekly basis. Father also was ordered to participate in a parenting nurturing program and Al-Anon meetings, but he failed to attend parenting classes or the meetings.

At the dispositional hearing, mother testified both K. and E. were removed from her home for testing positive for methamphetamine at birth. Mother claimed she no longer had a methamphetamine problem. Mother said she had taken the following steps to address the problem: (1) she completed a 100 hour parenting course; (2) she went to individual counseling session once a week and group sessions twice a week; (3) she had started attending twice weekly NA meetings in March, and had attended approximately 10 meetings; and (4) she started another parenting course on April 9.

Mother stated she had not taken drugs since January 1. Mother said she was not getting drug tested, although she submitted a hair follicle test about three weeks before the hearing at the Department’s direction.^[3] Mother admitted she had an ongoing, chronic, problem with methamphetamine from the age of 18 until the present and she was a heavy user, but she believed she was at a point where she would not go back to it. Mother considered herself a past methamphetamine addict and she believed she now had her addiction under control and no longer had the desire to use it. Mother believed counseling had given her the tools to prevent her from relapsing. Mother admitted the hair follicle test in October 2005 showed she had a fairly high level of drugs which indicated regular use, but claimed she only took methamphetamine for the first four months of her pregnancy. Mother testified she and father separated in August 2005 after father confronted her about her substance abuse, so that she could get her addiction under control. Mother moved back in with father, however, in the middle of March 2006.

Father testified he was given a case plan regarding K. in May 2005, but he didn’t complete the parenting class because he got a late start. He did complete a parenting class on April 20, 2006. Father claimed he was unable to fit the Al-Anon meetings into his work schedule from May until August 2005 because he was responsible for taking care of his children, and by the time he got the referral to go to Al-Anon in December 2005, the social worker told him attending meetings would not make a difference in K.’s case.

In August 2005, father suspected mother was still using methamphetamine and confronted her about it. As a result, the two separated. Soon after they separated, father learned mother was pregnant with E. Father testified he started attending Al-Anon meetings a week before the dispositional hearing and had completed the parenting class. On cross-examination, father testified that during the period they were separated, from August 2005 to March 2006, he only saw mother two or three times when he took the children over to see her. Father said he had been laid off from his job and was on disability because he was going to have surgery.

The court did not find mother’s testimony that she had overcome her drug problem credible. Nevertheless, the court declined to follow the Department’s recommendation that no family reunification services be provided to the parents and ordered services for both of them. The court found E. came within section 300, subdivisions (b) and (j), adjudged E. a dependent of the juvenile court, and ordered E. removed from father’s and mother’s physical custody. Father appeals.

DISCUSSION

Jurisdictional Findings

Father contends there was insufficient evidence to support the juvenile court’s jurisdictional order. “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. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citaiton.]” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) Because the juvenile court assumed dependency jurisdiction over E. under multiple subdivisions of section 300, if there is sufficient evidence to support a finding of jurisdiction under any of the bases for jurisdiction, the juvenile court’s ruling must be affirmed. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)

There is sufficient evidence in the record to support the juvenile court’s assertion of jurisdiction over E. under section 300, subdivision (b). Father contends the evidence was insufficient to support the court’s jurisdictional findings under this subdivision because there was no evidence E. was at risk of harm within the subdivision’s meaning. Although the record contains evidence mother used methamphetamine during the first trimester of her pregnancy, as well as a few days before E.’s birth, father argues there was no evidence that mother’s drug use or history posed a significant risk of harm to E. We disagree.

As relevant here, section 300 provides: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the inability of the parent to provide regular care for the child due to the parent’s substance abuse.”

“‘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.’ [Citation.] The third element ‘effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]’ [Citation.] Section 300, ‘subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” [Citation.]’ [Citation.]” (In re David M. (2005) 134 Cal.App.4th 822, 829.)

The record clearly shows mother had a history of substance abuse, based on her admissions that she began using methamphetamine when she was 18 years old, she smoked methamphetamine three to four times per week, and she used methamphetamine during both the first months of this pregnancy and just days before E.’s birth. This history alone, however, is not enough upon which to base jurisdiction. (See In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 [father’s alcoholism insufficient, standing alone, to support dependency jurisdiction].) There must be evidence of a current risk of harm due to mother’s substance abuse. “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. (1991) 1 Cal.App.4th 814, 824.) Indeed, “previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) 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 mother’s prior conduct. [Citation.] ‘[P]ast events can aid in a determination of present unfitness.’ [Citation.]” (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Father argues there is no evidence that mother’s drug use presented a risk of harm to E. Specifically, father contends the Department failed to show E. was at substantial risk of physical harm from mother’s inability to provide regular care for him due to her substance abuse because there is no evidence that: (1) E. was harmed by mother’s in utero drug use; (2) E.’s three older siblings were harmed by mother’s drug use; or (3) mother’s drug use hindered her ability to make reasonable decisions and provide a safe environment for E. We disagree. While father asserts there is no evidence that methamphetamine use ever impaired mother’s ability to make reasonable decisions or to safely parent her children, father ignores the fact that mother used methamphetamine when she knew she was pregnant. From this fact, the juvenile court was entitled to draw the obvious inference that methamphetamine use impaired her ability to make reasonable decisions that affected E. Although there was no testimony about the amount of methamphetamine mother used, the court certainly could infer she had a substance abuse problem based on her admissions of methamphetamine use since she was 18, she used three to four times per week, she supported her drug habit with money received from friends and family, and she and father separated because of her drug use, along with the fact that mother had used methamphetamine during her pregnancy with K. and father’s belief mother had a drug addiction.

It is well established that prenatal substance abuse resulting in a baby being born under the influence of such substances or suffering withdrawal symptoms is a sufficient basis for jurisdiction under section 300. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378-1379 [holding baby born with dangerous drugs in her body creates a legal presumption she is a person described within section 300, subdivision (b); jurisdiction properly taken where baby was suffering from drug-induced medical problems, mother had mental and emotional disabilities and was a drug abuser, she failed to obtain prenatal care and was unable to make definite living arrangements]; In re Stephen W. (1990) 221 Cal.App.3d 629, 639 [allegations that baby was born with opiates in his urine and displayed symptoms of drug withdrawal sufficient to support dependency proceeding]; In re Troy D., supra, 215 Cal.App.3d at p. 897 [holding allegation that baby was born under influence of a dangerous drug legally sufficient for the juvenile court to exercise jurisdiction].) Prenatal substance abuse by the mother has been viewed as a factor supporting dependency jurisdiction, even where the baby was not born with direct effects of the drug, because of the potential hazard to the developing fetus. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1037 [petition sustained on basis of mother’s prenatal substance abuse, mother having left the baby with her boyfriend while he was intoxicated, and boyfriend having burned the baby].) The court is not required to wait until a significant risk becomes a serious injury before assuming jurisdiction and acting to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.)

In the present case, although there was no evidence E. suffered harm from his mother’s ingestion of methamphetamine during her pregnancy, mother unquestionably subjected him to potential harm. (In re Amos L., supra, 124 Cal.App.3d at p. 1037.) That E. was not exhibiting ill effects from his in utero exposure to illegal drugs does not mean necessarily that he will not ever exhibit such effects. Father contends prenatal drug use alone cannot be sufficient to establish jurisdiction because it does not show that mother’s drug use will affect her ability to care for the child. Father argues In re Stephen W. and In re Troy D. are not controlling because they were decided under a prior statutory standard, which before 1989 permitted the court to exercise jurisdiction over a minor without a showing of “concrete harm or risk of physical harm to the child” (In re Rocco M., supra, 1 Cal.App.4th at p. 821), and In re Monique T. did not acknowledge this change in the law and is nevertheless distinguishable because there was evidence in that case of medical harm to the baby.

We need not decide whether under current law a positive toxicology screening alone is sufficient to support jurisdiction under section 300, subdivision (b), because other evidence exists in this case to support the juvenile court’s conclusion that mother’s substance abuse subjected E. to a current risk of harm and affected her ability to care for him. Mother had an eight-year history of methamphetamine abuse and admitted using methamphetamine three to four times per week. Although there was no evidence presented of the effects of mother’s drug use on the older children, there was evidence that mother used drugs during her pregnancy with K., and despite dependency jurisdiction being taken over K. and mother being provided reunification services, she did not participate in drug counseling and continued to abuse methamphetamine to the point where she continued to use it during the first four months of her pregnancy with E. and again just days before giving birth. Mother’s conduct in failing to address her substance abuse problem and continuing to use methamphetamine, at a minimum, demonstrated a degree of indifference to and a willingness to compromise E.’s best interests.

Despite father’s assertion to the contrary, there is also evidence mother’s drug use negatively impacted her ability to care for her other children. At the time of the jurisdictional hearing, mother and father had separated due to mother’s substance abuse, and the three older children were living with father. While mother was able to visit the children at any time, father did not allow mother to take the children anywhere without him being present. This evidence demonstrates mother’s inability to care for her older children due to persistent substance abuse.

“[T]he 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.) Our review of the evidence available to the juvenile court at the time of the jurisdictional hearing - that mother had an ongoing problem involving dangerous drugs, the problem was serious enough to cause her to expose two of her unborn children in utero, and despite dependency jurisdiction and reunification services being provided with respect to the first child born drug exposed she failed to participate in drug counseling and continued to use methamphetamine - sufficiently established that E. was at risk of serious physical harm due to mother’s drug use.

In light of our determination that substantial evidence supported the findings regarding the mother’s substance abuse, we need not determine whether there was sufficient evidence to support the other basis for the court’s jurisdiction, namely the findings under subdivision (j). The juvenile court may take jurisdiction if the conduct of either parent brings the child within the statutory definition of a dependent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)

Dispositional Order Father next contends the court abused its discretion in removing E. from parental custody because (1) there was insufficient evidence of a substantial danger to E.’s physical health, safety, or well-being if returned home; and (2) the evidence does not show that less drastic measures, such as drug testing of mother, would have been sufficient for E.’s protection. (§ 361, subd. (c)(1).) We find no ground for reversal.

When a parent challenges a dispositional finding, the question is whether substantial evidence supports the finding. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581 [although trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].) In resolving this question, we view the evidence in the light most favorable to the trial court’s determination, drawing all reasonable inferences in favor of the determination and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) 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.)

As relevant here, before the court may order a child physically removed from his or her parent, it must find by clear and convincing evidence that 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).) A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (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.) The parent’s level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision].) The parent need not be dangerous and the child need not actually have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.)

We conclude that application of the appropriate standard of review requires that we affirm the court’s dispositional order because it is supported by substantial evidence. By the time of the dispositional hearing, mother and father were again living together. Given this fact, the risk of harm to E. was serious considering mother’s history of drug use, her inability to care for her older children, and her continued use of methamphetamine during two of her pregnancies, which demonstrated an indifference to the needs and safety of her children. Father’s inability or unwillingness to accept the seriousness of mother’s substance abuse certainly exacerbated the risk. Although mother claimed she had conquered her methamphetamine problem, the court did not accept her testimony. The evidence shows both mother and father were in denial with respect to the extent of mother’s drug problem and its effect on the children. While they had ample opportunity to address the issues surrounding mother’s substance abuse during the reunification phase of K.’s case, they did not do so; instead, they waited until a second child, E., was born positive for drugs. By the time of the dispositional hearing in this case, mother and father only had begun to participate in services designed to address the problems that led to the removal of both children. From all of this evidence, the court reasonably concluded it would not be safe to return three-month-old E. to the custody of father and mother until they had benefited from intensive services to ensure mother remained drug free and father was able to protect E.

Father argues there was not substantial evidence E. would be at risk of harm if returned to his care because there was no evidence the other three children under his care were at risk of harm, as the Department chose to leave them in the home. No evidence was presented, however, about the status of the older children or the conditions in which they were living. Since no evidence was presented as to the older children’s care, we cannot draw the inference father wishes us to, namely that those children never suffered any harm because of mother’s drug use and were not subject to a risk of harm. Even if the home was safe for the older children, however, the court reasonably could conclude the home was not safe for E., who as an infant is too young to take care of himself. (See In re Rocco M., supra, 1 Cal.App.4th at p. 825 [mother’s lack or inadequacy of supervision indicated little physical danger to 11-year-old son who could take care of himself by placing himself in the care of other adults].)

Moreover, although both father and mother had begun participating in reunification services to address mother’s substance abuse problem, mother was in denial regarding the extent of her problem and father had just begun to realize the impact of mother’s substance abuse. As stated earlier, denial is a relevant factor to consider when determining risk to a child placed with the parent. (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1044.) The juvenile court was in the best position to weigh the significance of the parents’ denial regarding mother’s drug use in considering whether there was a substantial risk to E. if he were placed with them. Mother’s past and current use of a dangerous drug and her denial of it, as well as father’s minimization of the problem, provide sufficient evidence of a substantial danger to E. to warrant his removal from father’s and mother’s custody.

Father contends the court had other options short of removal, i.e. regular mandatory drug testing for mother and if mother tested positive, she could be removed from the home. While the evidence showed mother and father had been complying with the family reunification plan with respect to E., their prior history shows they both had failed to participate in reunification services despite jurisdiction having been taken over K. due to mother’s substance abuse. Based on this evidence, the court reasonably could have concluded supervised in-home placement would have been insufficient to protect E. and removal was necessary to provide time for mother to obtain treatment for substance abuse and father to obtain counseling to assist him in dealing with mother’s addiction. The court could have concluded merely drug testing mother would not have protected E. if he were returned to the home since father has not shown he is able to protect E. from mother’s substance abuse, as demonstrated by mother’s continued use of drugs while she was living with father during K.’s dependency case. While as father points out there was no evidence mother used drugs following E.’s birth, the court reasonably could conclude, as it did, that mother remained in danger of relapse, as she had a long history of methamphetamine use and had only begun to receive treatment to address that issue, and E.’s removal was necessary to protect him until both mother and father participated in services to enable them to better deal with mother’s substance abuse.

In sum, we find substantial evidence supports the juvenile court’s removal order. As a result, we uphold the order temporarily removing E. from father’s custody.

DISPOSITION

The juvenile court’s order is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Levy, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

^[2] Mother, who was a party to the proceedings below and granted reunification services, is not a party to this appeal.

^[3] The results of the hair follicle test were not presented at the hearing.