IN RE: ANTHONY H. et al.

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Court of Appeal, Second District, California.

IN RE: ANTHONY H. et al., Persons Coming Under the Juvenile Court Law.

B226218

Decided: February 24, 2011

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant Keith H. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant Nadine C. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Melinda S. White-Svec, Deputy County Counsel for Plaintiff and Respondent.

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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In this dependency proceeding, the sole issue on appeal is the sufficiency of the evidence to support the juvenile court's jurisdictional order.   Both Nadine C. (mother) and Keith H. (father) appeal, characterizing this case as one involving only their “short[-term] use of marijuana.”   Their characterization, however, ignores the evidence in the record that supports the juvenile court's finding of jurisdiction.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants mother (age 31) and father (age 33) cohabitate with their child, Sean H. (age 1) and mother's child Angel C. (age 5).   Mother had custody of her third child Anthony H. (age 9), but he lived with his father beginning in April 2010.1  In 2009, mother and father had received services from the Los Angeles County Department of Children and Family Services (DCFS) under a voluntary family maintenance agreement, and their case had terminated when they were found in compliance with the case plan.   At that time, mother and father had agreed to participate in substance abuse counseling and random drug testing.   Mother also had agreed to take prescribed medication to treat her bipolar disorder.

1. Petition

As subsequently sustained, the Welfare and Institutions Code section 300 petition, filed on May 26, 2010, alleged the following three counts under section 300, subdivision (b).2  First, “[t]he children Anthony ․, Angel ․ and Sean['s] ․ mother ․ has an unresolved history of substance abuse including marijuana, which renders the mother incapable of providing the children with regular and adequate care and supervision.   On [4/20/2010 and] 05/06/2010, the mother had positive toxicology screens for marijuana.   The mother's unresolved history of substance abuse endangers the children's physical and emotional health and safety, creates a detrimental home environment, and places the children at risk of physical harm, damage, danger and failure to protect.”

Second, “[t]he child Sean['s] ․ father ․ has an unresolved history of substance abuse, including marijuana, which renders the father incapable of providing the child with regular and adequate care and supervision.   On 04/20/2010, the father had a positive toxicology screen for marijuana.   The father has a criminal history of convictions of Possession of Controlled Substance for Sale, Possession of Marijuana for Sale, Possession of Controlled Substance and Driving While Under the Influence of Alcohol.   The father's unresolved history of substance abuse endangers the child's physical [ ]and emotional health and safety, creates a detrimental home environment and places the child at risk of physical harm, damage and danger.”

Third, “[t]he children Anthony ․, Angel ․ and Sean['s] ․ mother ․ has unresolved mental and emotional problems, including a diagnoses of bipolar disorder, which renders the mother incapable, at times, of providing the children with regular and adequate care and supervision.   Additionally, in the recent past, the mother has failed to regularly and consistently take her prescribed medication for this disorder.   The mother's unresolved mental and emotional condition in addition to her inconsistency in taking her prescribed medication endangers the children's physical and emotional health and safety and places the children at risk of physical harm, damage and danger.”

2. Reports

DCFS reported that mother admitted she began using drugs at age 13.   At that time, she was hospitalized after taking lysergic acid diethylamide (LSD).  At age 14, she began using marijuana.   Mother started using methamphetamines at age 15, and although she stopped, she restarted at age 20.   Mother acknowledged that she had been arrested twice for driving under the influence and that she had been diagnosed with bipolar disorder.   Anthony's father and Angel's father confirmed that mother had a past history of drug use.   More recently, mother used marijuana in 2009, when she was pregnant with Sean, and Sean tested positive for marijuana when he was born.   Mother tested positive for marijuana on April 20, 2010.   Mother stated that she and father would “take turns” smoking marijuana in the parking lot of their apartment.   Mother stated that her recent use of marijuana was to self-treat pain from a twisted muscle and symptoms of her bipolar disorder.   Although mother denied regularly smoking marijuana, father stated that mother smoked “a couple of times a day” on several days in April 2010.   Mother was convicted in 1999 and 2004 for driving under the influence and in 2007 for driving without a license.

Father tested positive for marijuana on April 20, 2010, and on May 28, 2010.   Father admitted that he began using drugs at the age of 14, and, when he was 16, he and mother used methamphetamines together.   Father used marijuana because he had difficulty sleeping.   Father acknowledged that he had encouraged mother to use marijuana while she was pregnant because she was in pain from a twisted muscle.   Father suffered two convictions for possession of a controlled substance (1999 and 2006);  one conviction for driving under the influence (1996);  and one conviction for possession of marijuana for sale (1999).   Father denied using drugs in the presence of the children.

DCFS reported that the family home was tidy and contained ample food.   The children had received the required immunizations.   Angel denied knowing anything about drugs and was not afraid of mother or father.   Anthony denied seeing anyone using drugs.   Sean appeared comfortable with mother and father.   By June 2010, Anthony expressed a desire to live with mother, and in July, the court ordered mother to have primary custody of him.

3. Court Findings

In June 2010, the court sustained the petition, finding that Anthony, Angel and Sean were persons described by section 300, subdivision (b).  It found that there were factors in addition to mother's and father's use of marijuana.   Specifically, there was a long-term history of drug use.   Additionally, although mother and father had recently completed a voluntary maintenance agreement, they continued to use controlled substances.   The court stated, “it seems like every time the [DCFS] wants to get involved, the parents clean up their act.   And then when the [DCFS] doesn't get involved, they go back to their old ways.”   The children remained in mother and father's care.

The court ordered mother and father to submit to random drug testing and individual counseling.   The court ordered the completion of a substance abuse program only if mother's or father's drug tests showed a positive toxicology for a controlled substance.   Both mother and father appeal from the jurisdictional order.

DISCUSSION

Mother and father argue that the record lacks sufficient evidence to support jurisdiction.   They argue there was no evidence that their marijuana use harmed the children.   They also argue that their prior drug abuse was insufficient to show the children were at a current risk of physical harm.   We conclude that substantial evidence supported the juvenile court's findings.

Section 300, subdivision (b) provides in pertinent part:  “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 failure or inability of his or her parent or guardian to adequately supervise or protect the child ․ by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.”   Jurisdictional hearings require a preponderance of the evidence as the standard of proof.  (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388.)   On appeal, mother and father have the burden to show an absence of substantial evidence to support the order.  (Ibid.)

1. Use of Marijuana

Mother and father argue that their use of marijuana is insufficient to support jurisdiction.   As we explain, their premise is incorrect.   The juvenile court did not rely only on mother's and father's marijuana use.   When all evidence is considered, the court's order is amply supported.

“The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.) Drug and alcohol use may impair a parent's ability to parent.  (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.)   But the use of marijuana alone is insufficient to support jurisdiction.  (In re Alexis E. (2009) 171 Cal.App.4th 438, 453;  see also Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346.)

Here, the juvenile court did not rely solely on mother's and father's marijuana use to support jurisdiction.   It expressly stated that jurisdiction is not proper “just because [a parent] test[s] positive for marijuana․”  Mother used marijuana when pregnant with Sean, causing Sean to be born with a positive toxicology.   Father stated that, at times, mother would use marijuana “a couple of times a day.”   In addition to mother's and father's recent positive tests for marijuana, the court properly relied on mother's and father's unresolved history of drug abuse.   It was undisputed that both started using drugs as teenagers, and father had several drug-related convictions.   Mother's and father's continued use of marijuana demonstrated, as the court found, that their history of drug use remained unresolved.   The court also properly relied on mother's and father's failure to adhere to the requirements of the voluntary maintenance agreement after DCFS stopped monitoring them.   The court stated:  “The parties were just on a voluntary maintenance contract, and they successfully completed it and then went back to smoking marijuana again on a daily basis.”   Thus, contrary to mother's and father's argument, the juvenile court did not rely solely on their positive toxicology for marijuana.

There was also evidence mother's and father's unresolved drug use created a substantial risk the children would suffer harm.   Their home was not free of the negative effects of substance abuse.   Although the children stated they did not see mother or father use marijuana, that does not negate the risk to the children as mother and father were under the influence of marijuana when they supervised the children even if they alternated smoking it in the parking lot.   The court was not required to ignore the warnings of mother's and father's marijuana use, especially when lesser efforts in the form of a voluntary maintenance agreement failed to resolve mother's and father's long-term substance abuse.

2. Current Risk

The parties dispute whether DCFS was required to show a current risk of harm or whether evidence of prior acts is sufficient to support jurisdiction.3  We need not resolve this issue because sufficient evidence of current risk supported the juvenile court's order.   Specifically, both mother and father had used marijuana shortly before the jurisdictional hearing.   There was reason to believe mother's and father's use of controlled substances would recur because they continued using marijuana after the voluntary agreement had been terminated.   The juvenile court properly focused on mother's and father's lack of rehabilitation following their voluntary maintenance agreement.

Although mother and father minimize their histories of using controlled substances, the chronic and long-term nature spanning decades was relevant.   It shows that their current use was not an isolated, anomalous incident.   Evidence of the longstanding pattern of use of controlled substances was undisputed.   Mother admitted to using a variety of controlled substances since she was 13, and father used controlled substances since he was 14.   Substantial evidence supported the finding that mother's and father's longstanding, unresolved drug use created a substantial risk the children would suffer physical harm as a result of the failure of mother and father to adequately supervise or protect the children.4

DISPOSITION

The juvenile court's order is affirmed.

We concur:

FOOTNOTES

FN1. Neither Angel's father nor Anthony's father is a party to this proceeding.   Mother and father are not married.   All identified ages were at the time the Welfare and Institutions Code section 300 petition was filed..  FN1. Neither Angel's father nor Anthony's father is a party to this proceeding.   Mother and father are not married.   All identified ages were at the time the Welfare and Institutions Code section 300 petition was filed.

FN2. Undesignated statutory citations are to the Welfare and Institutions Code..  FN2. Undesignated statutory citations are to the Welfare and Institutions Code.

FN3. There is a split of authority regarding whether a past incident resulting in physical harm is sufficient to support jurisdiction.  (In re J.N. (2010) 181 Cal.App.4th 1010, 1023;  In re J.K. (2009) 174 Cal.App.4th 1426, 1435.).  FN3. There is a split of authority regarding whether a past incident resulting in physical harm is sufficient to support jurisdiction.  (In re J.N. (2010) 181 Cal.App.4th 1010, 1023;  In re J.K. (2009) 174 Cal.App.4th 1426, 1435.)

FN4. Because we find sufficient evidence to support jurisdiction, we need not consider whether mother's bipolar disorder provided an additional basis for jurisdiction.   Finally, we need not consider mother's argument that her appeal is not rendered moot if father's conduct warranted jurisdiction.   As we explained, both parents' conduct warranted jurisdiction..  FN4. Because we find sufficient evidence to support jurisdiction, we need not consider whether mother's bipolar disorder provided an additional basis for jurisdiction.   Finally, we need not consider mother's argument that her appeal is not rendered moot if father's conduct warranted jurisdiction.   As we explained, both parents' conduct warranted jurisdiction.