In re Isabel A.

Filed 3/23/07 In re Isabel A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.

Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. Da Vanzo, Deputy County Counsel, for Plaintiff and Respondent.

Appellant Erica J. (mother) appeals from the juvenile courts jurisdictional and dispositional orders establishing dependency jurisdiction over her daughters, Isabel A. (born in Mar. 2004) and Kayleen A. (born in Dec. 2005), and removing them from her custody. Mother contends the evidence was insufficient to support the juvenile courts jurisdictional findings that illicit drugs, live ammunition, and firecrackers found in the parents home endangered the children, created a detrimental home environment, and placed the children at risk of harm.

Substantial evidence supports the juvenile courts jurisdictional findings, as well as the courts order removing the children from mothers custody and requiring mother to undergo drug testing and participate in individual counseling and a parenting program. We therefore affirm the orders.

BACKGROUND

On May 3, 2006, deputies from the Los Angeles County Sheriffs Department executed a search warrant for narcotics in the parents home. Mother, the children, and the childrens father, Jose A. (father) were in the home at the time. The officers found a bottle of Vicodin on top of a television in the living room, shotgun ammunition rounds scattered throughout the kitchen and living room floor, and a large quantity of firecrackers. Concealed within a hole in the floor covered by a piece of tile were several plastic baggies subsequently found to contain methamphetamine residue. Methamphetamine residue was also found in the family car. Neither parent had a prescription for the Vicodin, and both denied ownership of the medication. The deputies also found in the home a pair of scales, of the sort typically used by drug dealers to weigh narcotics; a book that contained the names of various individuals; and $1,245 in cash. The deputies formed the opinion that the parents possessed the Vicodin for sale and arrested them for that offense. Law enforcement contacted the Department of Children and Family Services (the Department), and a social worker responded to the scene. The social worker questioned mother, who appeared to be sober. Mother denied using or selling drugs. She also denied any knowledge of the Vicodin. The social worker walked through the home and observed shotgun shells scattered on the floor and a large supply of firecrackers in a closet. Mother said that the shotgun shells and firecrackers were found outside the home by the children and were brought in by them. The children, who were too young to be interviewed, appeared to be clean, well cared for, and healthy. The children were detained and placed with their paternal great-grandmother.

On May 8, 2006, the Department filed a petition pursuant to Welfare and Institutions Code section 300[1] alleging, under section 300, subdivision (b), that the parents possessed illicit drugs, live ammunition, and a large quantity of firecracker explosives in the home within access of the children, endangering the children and placing them at risk of physical and emotional harm.

In an addendum report dated May 8, 2006, the Departments social worker reported that both parents had been released from custody. Mother stated that charges against her and father had been dropped. Mother further stated that the Vicodin pills found in the home were her mothers. Her mother had a prescription for the medication, had been visiting recently, and had left the pills in the home.

At a hearing on May 8, 2006, the juvenile court found father to be the presumed father. The juvenile court ordered the children detained with the paternal great-grandmother, and twice weekly monitored visitation for the parents.

In a jurisdiction/disposition report dated May 31, 2006, the Departments social worker reported on a May 12, 2006 interview with mother and father and a separate interview with Detective Steven Long, who conducted the search of the parents home. Mother stated that she did not believe her home was unsafe for the children. She said that the firecrackers found in the home were in a closet and were knocked down by the officers. The shotgun shells were under the cushions of the living room couch. Mother said she had found the shotgun shells in the back of the home where there was a lot of trash and that the ammunition had been brought into the house because they belonged to her father-in-law. The Vicodin found in her home was in a safety bottle sitting atop a 65-inch television that was out of reach from her children. She believed the Vicodin belonged to her mother.

Father said the Vicodin found in the home belonged to mothers mother and was in a safety bottle on top of a television. He said that the shotgun shells belonged to his father, who lived in Mexico. According to father, the shotgun shells were found under the couch cushions. The firecrackers found in the home belonged to a friend of fathers and were stored on top of a shelf in a closet that locked. Detective Long stated that the parents are involved in the sale of methamphetamines and that several buys have been made in front of their home.

On May 31, 2006, the juvenile court continued the matter for a contested disposition hearing to be held on June 29, 2006 and ordered both parents to appear at that hearing. The juvenile court further ordered that the parents be accorded a minimum of three monitored visits per week, and gave the Department discretion to liberalize visitation.

Neither parent appeared at the June 29, 2006 disposition hearing. The juvenile court checked its inmate locater and verified that the parents were not in custody at the time. Counsel for mother and father could not account for their clients absence and requested a continuance, which the juvenile court denied. Counsel for each of mother and father allowed the Departments reports to be placed into evidence without objection, and neither counsel presented any new or additional evidence. Although a Sheriffs deputy was present at the hearing, neither counsel asked to cross-examine the deputy, and neither asked to cross-examine the social worker who had prepared the Departments reports. The juvenile court declared the children to be dependents of the court and ordered them placed with the paternal great-grandmother. The court ordered family reunification services for the parents and monitored visitation at least three times per week. The juvenile court further ordered weekly random drug testing for mother and father and required drug rehabilitation in the event of a missed or positive drug test.

At a hearing held on December 21, 2006, the juvenile court terminated its previous order placing the children with the paternal great-grandmother and ordered the children placed in their parents home, under Department supervision.[2] Mother filed this appeal.

DISCUSSION

A. Standard of Review

We review the juveniles courts jurisdictional findings under the substantial evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829; In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record to determine whether there is any reasonable, credible, and solid evidence to support the juvenile courts conclusions, and we resolve all conflicts in the evidence and make all reasonable inferences from the evidence in support of the courts orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We review the juvenile courts selection of a dispositional order for a minor for abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)

B. Jurisdictional Findings

Section 300, subdivision (b) accords the juvenile court jurisdiction over a child if [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . 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.] (In re David M., supra, 134 Cal.App.4th at p. 829.)

Mother contends there was insufficient evidence to support the juvenile courts findings that illicit drugs, live ammunition, and firecrackers found in the home were within access of the children and endangered them and placed them at risk of harm. Substantial evidence supports the juvenile courts findings.

Both Detective Long and the Departments social worker observed live shotgun ammunition scattered on the floor of parents home on May 3, 2006, as well as a large quantity of firecrackers stored inside the home. Mother told the Departments social worker that the children had found the ammunition and firecrackers outside the home and had brought them inside. Father told Detective Long that the children played with the ammunition. Sheriffs deputies also found evidence of illicit drug dealing, including a container of prescription medication for which neither parent had a prescription, plastic baggies containing methamphetamine residue, scales typically used to weigh narcotics, and a large quantity of cash. Although mother later claimed the prescription medication belonged to her mother, and was in a safety bottle kept out of the childrens reach, she initially denied having any knowledge of its presence in the home. Mother did not appear at the jurisdictional hearing and did not exercise her right to present any evidence to support her claims.

Mothers argument that the ammunition and firecrackers alone, without a weapon or source of ignition, presented no risk of harm to the children, is unpersuasive. The children, ages two and four months, respectively, were allowed to play with the shotgun rounds and firecrackers and were at risk of harm from ingesting these items. In re W.O. (1979) 88 Cal.App.3d 906, on which mother relies, is inapposite. In that case, the appellate court reversed the juvenile courts order removing children from the parents custody because there was insufficient evidence to support the courts finding that the children were in danger of ingesting cocaine found in a metal strongbox on a closet shelf in the home and marijuana found in a box in a kitchen drawer out of the childrens reach. (Id. at p. 910.) Here, the children had access to live ammunition and explosive firecrackers, were allowed to play with these items, and were at risk of harm from ingesting them. Substantial evidence supports the juvenile courts findings that the presence of illicit drugs, ammunition, and firecrackers endangered the children and presented a substantial risk of harm.

C. Disposition Order

Mother challenges the juvenile courts dispositional orders removing the children from her custody and requiring her to submit to weekly drug testing and to complete a parenting program and participate in individual counseling.[3] The record discloses no abuse of discretion by the juvenile court.

At a dispositional hearing, the juvenile courts findings must be made on clear and convincing evidence. The court must find that the welfare of the child requires that she be removed from parental custody because of a substantial danger, or risk of danger, to her physical health if she is returned home and that there are no reasonable means to protect her without removing her. [Citations.] (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We review the juvenile courts findings using the substantial evidence test, bearing in mind the heightened burden of proof. [Citations.] (Ibid.)

Substantial evidence supports the juvenile courts decision that removing the children from mothers custody was necessary to protect them from a continuing risk of harm. There was evidence of illicit drug trafficking in the home the children shared with mother and father. Sheriffs deputies found prescription medication for which neither parent had a prescription, plastic baggies containing methamphetamine residue, scales typically used by dealers to weigh illicit drugs such as methamphetamine, a large quantity of cash, and live shotgun ammunition. Detective Long told the Department social worker that he had purchased methamphetamine from father during a previous undercover operation. Both parents told the Sheriffs deputies that the children had been playing with shotgun ammunition and mother said the children had brought the firecrackers into the home. Given these circumstances, the disposition order removing the children from mothers custody and requiring mother to participate in drug testing, individual counseling, and parenting classes was not an abuse of discretion.

DISPOSITION

The orders establishing juvenile court jurisdiction over Isabel and Kayleen, removing them from mothers custody, and requiring mother to participate in drug testing, parenting classes, and individual counseling, are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, P. J.

BOREN

_______________________, J.

ASHMANN-GERST

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

[2] We granted mothers request that we take judicial notice of the juvenile courts minute order dated December 21, 2006.

[3] Mother contends the juvenile courts minute order dated December 21, 2006, terminating the previous placement order and ordering the children placed in their parents home does not moot her appeal of the previous placement order removing the children from her custody.