IN RE: NATALIA K. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Father, Ronnie K., appeals from the dispositional order declaring his daughter Natalia K. a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b),¹ due to her parents' drug use and domestic violence.   Father challenges the sufficiency of the evidence supporting the court's jurisdictional finding.²  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Yvonne K. (Mother) ³ were married in 1978 and have been married for more than 30 years.   Together they have two adult children and Natalia, who is the subject of this appeal.   Both parents have a history of drug use and domestic violence.

Voluntary Services

The family came to the attention of the Department of Children and Family Services (DCFS) in April 2008 when Natalia was 12 years old.   DCFS received two referrals.   The first alleged general neglect and emotional abuse of Natalia by Mother.   It was further alleged that drugs were being used in the home and that Mother could be heard yelling at customers in front of Natalia.   The second referral alleged emotional abuse of Natalia by Mother and Father.   Parents, it was alleged, were yelling at each other in front of Natalia.   In addition, Father claimed that Mother smoked marijuana.   DCFS substantiated the allegation of emotional abuse by both parents, as well as the allegation of general neglect by Mother.

At the request of DCFS, Mother and Father submitted to drug tests.   On April 19, 2008, Mother tested positive for methamphetamines, cannabinoids, and amphetamines.   On April 18, Father tested positive for marijuana and cocaine.

In June 2008, Father and Mother agreed to participate in voluntary family reunification services while Natalia lived with her adult brother.   Father and Mother agreed to complete a drug rehabilitation program and to participate in random drug testing, marriage counseling and parenting classes.

In October 2008, a team decision meeting was held to review the family's progress.   In light of the parents' progress and willingness to cooperate with DCFS, Natalia was returned to her parents, at which point DCFS provided the family with voluntary family maintenance services.

Father completed a parenting class and drug treatment but missed numerous drug tests.   On November 26, 2008, one week prior to completing his drug program, Father tested positive for methamphetamine.   Upon completion of the drug program, Father decided not to continue participating in services.   He had lost his job, and he and Mother had separated.⁴  He chose to focus his energy on finding employment and a place to live.   DCFS was unable to locate Father until June 2009.   At that time, Father was living in Long Beach and had secured full time employment.   Father stated that he last used marijuana in December 2008.   DCFS scheduled five drug tests for Father, who failed to show up for testing.

Mother also entered a drug treatment program but had difficulty maintaining her sobriety and entered a more intense program in October 2008.   The following month, Mother was discharged from the program, in that she failed to comply with the program's sobriety policy and she tested positive for drugs.

In January 2009, Mother enrolled in another drug program.   She had poor attendance, missed numerous drug tests and continued to abuse drugs.   In the spring of 2009, Mother tested positive for methamphetamine, amphetamine and marijuana three times.   Although Mother admitted to using marijuana, she denied using methamphetamine, claiming the marijuana may have been laced with methamphetamine.

In July 2009, Mother's drug counselor recommended that Mother enter a 10-day drug detoxification program but she refused to do so.   Mother blamed Father for her use of drugs, accusing him of sabotaging her efforts to get clean.   Mother claimed that Father gave her marijuana so they could smoke it together.

Also in July 2009, Father was laid off from his job.   Inasmuch as he was separated from Mother and unemployed, Father decided he would move to Tennessee.   He intended to live with his sisters and attempt to stabilize his life.   Father informed DCFS that he would not be able to participate in any services and that it was his desire that Natalia be placed with her adult sister if Natalia were detained.   Father moved to Tennessee in August 2009.

Natalia's adult siblings stated that Mother's and Father's drug and marital problems had been ongoing since they were young children.   Mother and Father argued a lot, spoke badly of each other, and attempted to draw the children into their arguments by asking them to take sides.   Natalia was tired of her parents' arguments and did not want to choose sides.   She wished they could put aside their differences around her and her siblings.   In December 2008, an incident of domestic violence transpired between Mother and Father, during which Father received scratches on his face.

On August 17, 2009, another team decision meeting was held.   Mother was argumentative during the meeting and blamed Father (who was not present) for her problems with drugs and for DCFS intervention.   Natalia asked Mother to stop arguing and to listen.   Natalia began crying and told Mother she was tired of her parents creating problems for the family and placing the blame on others.   DCFS emphasized that Mother needed to enter an inpatient/residential drug treatment program.   Inasmuch as her addiction had been ongoing for 30 years, she needed the most intensive program available to her.   Mother had refused to enter such a program, however, stating that she wanted to wait for a drug detoxification bed to become available.   Drug detoxification was offered to Mother only because she refused to participate in more intensive programs.   At the conclusion of the meeting, the team determined that both parents had been given sufficient time to resolve their problems with drugs and domestic violence.   Because they failed to resolve these problems, it was necessary to detain Natalia and to promote the case to juvenile court.

During a prior home visit, Natalia told the CSW that it would not be fair for her to be separated from Grandmother when her parents were the ones acting irresponsibly and making problems for the family.   This was made known at the team decision meeting, at which Grandmother said she was willing to ask Mother to move out and to monitor Mother's visits with Natalia.   Mother moved out of the home and DCFS placed Natalia with Grandmother.

Juvenile Court Proceedings

On August 20, 2009, DCFS filed a petition on behalf of Natalia, alleging that she came within the jurisdiction of the juvenile court under subdivisions (a) and (b) of section 300.   The juvenile court ordered Natalia detained with her Grandmother.

On November 24, 2009, the court held an adjudication hearing.   The court dismissed the allegation pursuant to subdivision (a), but sustained three counts alleged pursuant to subdivision (b).

Counts b-1 and b-2, alleging substance abuse by both parents, were amended and sustained as follows:

Count b-1:  “The child Natalia K[.]'s mother, Yvonne K[.], has a[n] unresolved history of poly substance abuse which renders the mother incapable of providing the child with regular care and supervision.   On 03/24/09, 04/17/09 and 06/23/09, the mother had positive toxicology screens for amphetamine, methamphetamine and marijuana.   On 06/15/09, the mother had a positive toxicology screen for marijuana.   Remedial services have failed to resolve the family problems in that the mother failed to regularly participate in a substance abuse rehabilitation program and random drug testing.   The mother's abuse of illicit drugs 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.”

Count b-2:  “The child Natalia K[.]'s father, Ronnie K[.], has a history of poly substance abuse, which renders the father incapable of providing the child with regular care and supervision.   The father's past abuse of illicit drugs 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.”

Count b-3, alleging domestic violence, was sustained as originally pleaded:  “The child Natalia K[.] was exposed to violent physical altercations between the child's mother, Yvonne K[.] and the child's father, Ronnie K[.], in which the mother struck the father's face resulting in scratches to the father's face.   The father struck the mother, pushed the mother and pulled the mother's hair.   The mother has a criminal history of a conviction of inflicting corporal injury to a spouse/cohabitant.   The father has a criminal history of a conviction of inflicting corporal injury to a spouse/cohabitant.   Such domestic violence on the part of the parents in the child's presence endangers the child's physical and emotional health and safety, creates an unsafe home environment and places the child at risk of physical harm, damage, danger and physical abuse.”

The juvenile court thereafter proceeded to disposition.   It declared Natalia a dependent of the juvenile court under section 300, subdivision (b), removed her from the care and custody of Mother with whom she resided when the section 300 petition was filed and ordered family reunification services for both parents.   This appeal by Father followed.⁵

DISCUSSION

A. Standard of Review

As observed in In re David M. (2005) 134 Cal.App.4th 822 at page 828, “[w]e review the juvenile court's jurisdictional findings for sufficiency of the evidence.  [Citations.]  We review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible.  [Citation.]  ‘However, substantial evidence is not synonymous with any evidence.  [Citations.]  A decision supported by a mere scintilla of evidence need not be affirmed on appeal.   [Citation.]  Furthermore, “[w]hile substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation];  inferences that are the result of mere speculation or conjecture cannot support a finding [citations].”  [Citations.]  “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.”   [Citation.]'  [Citation.]”

B. Requirements for a Section 300, Subdivision (b), Finding

A child comes within the jurisdiction of the juvenile court and may be adjudged a dependent of the court under subdivision (b) of section 300 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 ․ or by the inability of the parent or guardian to provide regular care for the child due to the parent's ․ mental illness, developmental disability or substance abuse․  The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”

There are three elements required for a section 300, subdivision (b), finding.   They are “(1) neglectful conduct by the parent in one of the specified forms;  (2) causation;  and (3) ‘serious physical harm or illness' to the [child], or a ‘substantial risk’ of such harm or illness.”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)  “The third element, however, effectively requires a showing that at the time of the jurisdictional 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).”  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.)   Stated otherwise, “the purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing.”  (Id. at p. 1397.)

“Although evidence of past conduct may be probative of current conditions, the court must determine ‘whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’  [Citations.]  Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300.   There must be some reason beyond mere speculation to believe the alleged conduct will recur.  [Citation.]”  (In re James R. (2009) 176 Cal.App.4th 129, 135-136.)

With these principles in mind, we proceed to determine if substantial evidence supports the three counts sustained by the juvenile court.

C. Parents' Substance Abuse-Counts b-1 and b-2

Father contends that there was no evidence Natalia was at substantial risk of serious physical harm at the time of the jurisdictional hearing as a result of Mother's and his drug use.   In support of this contention, Father relies on In re David M., supra, 134 Cal.App.4th 822, In re James R., supra, 176 Cal.App.4th 129 and In re J.N. (2010) 181 Cal.App.4th 1010.   His reliance on these cases is misplaced, in that they are factually distinguishable.

In In re David M., supra, 134 Cal.App.4th 822, the child's parents had mental health issues and his mother had a substance abuse problem.  (Id. at p. 830.)   In concluding that these facts were insufficient to warrant a finding of dependency, the juvenile court noted that there was no showing that these factors “caused, or created a substantial risk of causing, serious harm to [the child]” and the record “lack[ed] any evidence of a specific, defined risk of harm ․ resulting from mother's or father's mental illness, or mother's substance abuse.”  (Ibid.) Rather, the uncontradicted evidence disclosed that the child “was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home.   Whatever mother's and father's mental problems might be, there was no evidence those problems impacted their ability to provide a decent home․”  (Ibid.)

In In re James R, supra, 176 Cal.App.4th 129, the mother had a negative reaction to taking prescription ibuprofen and drinking beer.  (Id. at p. 136.)   Mother had a history of mental instability, but there was no evidence she abused illegal drugs or was regularly intoxicated and unable to care for her children.  (Id. at pp. 136-137.)   The children were healthy, well cared for, and never unsupervised.  (Id. at p. 137.)   Because the harm or future harm to the children was speculative, the court reversed the jurisdictional findings.  (Id. at pp. 136-137.)

In In re J. N., supra, 181 Cal.App.4th 1010, the children were declared dependents of the juvenile court after the father drove into a light pole.   The children were in the vehicle, and both parents were drunk.   Two of the children were injured in the crash.  (Id. at pp. 1014-1016.)   The reviewing court reversed the jurisdictional finding, in that there was nothing in the record that showed there was a current risk of harm to the children.  (Id. at pp. 1023-1027.)   There was no evidence that either parent had a substance abuse problem.  (Id. at p. 1022.)   Although the seriousness of the parents' endangering conduct could not be understated, “there was no evidence from which to infer there is a substantial risk such behavior will recur.”  (Id. at p. 1026.)

In this case, the parents' extensive history of substance abuse is well documented.   Mother, who is now 52, started using marijuana when she was 17 years old.   In April 2008, after coming to the attention of DCFS, Mother tested positive for methamphetamine, cannabinoids and amphetamines.   She agreed to accept services, and on June 16, 2008, mother enrolled in a drug treatment program at Compton Special Services.

In early October 2008, Mother discontinued her treatment.   She was having difficulty with sobriety and tested positive for methamphetamines.   Mother enrolled in a more intensive outpatient treatment at the Veteran's Administration, which determined that Mother was not in need of mental health services.

Toward the end of October 2008, Mother entered a Veteran's Administration inpatient drug treatment program.   One or two weeks later, Mother was dismissed from the program because she failed to comply with the program's sobriety policy and tested positive for drugs.

In January 21, 2009, Mother re-enrolled in the Compton Special Services' drug treatment program.   Her attendance was inconsistent and her participation was poor.   On February 25, 2009, Mother's drug counselor reported to DCFS that “[w]hen [Mother] is present her group participation is outstanding & open, however client does not attend on a regular basis.   Without consistent attendance, and program compliance, no progress can be made in treatment.   Client needs to cooperate with program's drug testing.”

On July 14, 2009, Mother, her drug counselor and the social worker met “to set Mother up on the ‘unsatisfactory participation provisional status contract’.   The team discussed concerns regarding Mother's inconsistent participation in her drug treatment and the consequences to her if she continued to fail to comply with their program.”   Mother admitted using marijuana but denied using methamphetamines.   The drug counselor noted that marijuana is sometimes laced with methamphetamine but Mother should not be using drugs at all.

It was decided that Mother was to work with her drug counselor to enter a 10-day drug detoxification program, after which she was to return to her drug treatment program at Compton Special Services.   Mother was placed on a waitlist for the detoxification program.   Mother understood that she could not miss any more classes without an acceptable excuse.   An unexcused absence would result in immediate discharge from the program, and Mother would have to start drug treatment all over again.

On July 18, 2009, the social worker advised Mother's drug counselor that Mother was noncompliant with drug testing and inquired whether Mother should be in an in-patient/residential drug treatment program.   The counselor believed that such a program was best for Mother and noted that there was an opening at the Salvation Army in Santa Monica.   The detoxification program Mother was waiting for was “unpredictable.”   Mother might “have to wait a long time and if she is not responsible about calling everyday, she may miss her opportunity to participate in drug detoxification.”   Mother did not enroll in the inpatient/residential drug treatment program.

Although Mother also agreed to participate in random drug testing as part of her voluntary services, her participation was less than satisfactory.   She tested negative on July 8 and 28, 2008, but tested positive for methamphetamines on August 12, 2008, for methamphetamines and marijuana on September 18, 2008, for marijuana on November 13, 2008, for methamphetamines, amphetamines and marijuana on March 24, 1009 and June 23, 2009, for methamphetamines and marijuana on April 17, 2009, and for marijuana on June 15, 2009.   Mother was a no-show for drug testing on October 8 and 22, 2008, November 4 and 25, 2008, December 12 and 16, 2008, June 26, 2009, July 21 and 28, 2009 and August 11, 2009 despite having been advised that a no-show would be equated with a dirty test.

Father also is 52.   He first used marijuana when he was 19 and continued to use it regularly for about two years.   In 2005, when he was 46, Father began using crack cocaine to relieve the depression he felt after the death of his brother.   He abused this substance for six years.   Although he could not state when he last used cocaine, he said his usual pattern of abuse was $100 to $300 work of crack cocaine once every other month.

Although Father completed a drug treatment program while receiving voluntary family maintenance services, he tested positive for methamphetamine one week before completing the program.   Father also failed to comply with DCFS's drug testing requirements.   According to Mother, Father used drugs during the entire voluntary family maintenance period and was not trying to change.   Mother claimed Father was the one who supplied her with marijuana and methamphetamine.

In September 2009, Father underwent a drug assessment.   Father's addiction counselor thereafter informed the juvenile court that Father had been accepted into an outpatient substance abuse treatment program in which he was going to participate in individual and group counseling and attend 12-step meetings.   After four or five classes, Father stopped attending the program, however.   He claimed he was told the program was not for him because he was sober.   The social worker was unable to verify this information.

There is no question that substantial evidence supports the juvenile court's determination that Natalia, despite her resiliency,⁶ was at substantial risk of serious physical harm as a result of her parents' use of marijuana.   Natalia knew that her parents used marijuana but was unaware of their use of other substances.   Her adult siblings had talked to her about their parents drug use, and Natalia witnessed her parents smoking marijuana once.   With regard to Mother, Natalia stated, “I saw her one time smoking it.   I knew because it smelled horrible.”   Mother, who used marijuana for her “nerves,” told the social worker that she would not need it any longer because Father, who was the source of her stress, was gone from her life.   Mother later applied for and obtained a medical marijuana card, however.

“While it is true that the mere use of marijuana by a parent will not support a finding of risk to minors” (In re Alexis E. (2009) 171 Cal.App.4th 438, 452), “the negative effects of second hand marijuana smoke” unquestionably poses a risk to children (ibid.).   Section 300.2 makes it clear that “[t]he 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.”   We therefore conclude that substantial evidence supports the juvenile court's jurisdictional finding that Natalia came within the provisions of section 300, subdivision (b), as a result of her parents' substance abuse.  (In re David M., supra, 134 Cal.App.4th at p. 828.)

D. Domestic Violence-Count b-3

There is no question that Father and Mother's marriage was fraught with conflict and domestic violence.   According to their 29-year-old son and 23-year-old daughter, Father and Mother's marital problems have been ongoing since they were young.   Natalia stated the domestic violence had been occurring since she was four or five years old.   Both parents had convictions for domestic violence.   Father was convicted in 1993, and Mother was convicted in 1993 and 2001.

Although Mother and Father claimed not to have had any physical altercations since Mother was pregnant with Natalia, that obviously was not true, in that, on January 5, 2009, Mother obtained a temporary restraining order against Father based on an incident of domestic violence that occurred in December 2008.   In her supporting declaration, Mother stated that on December 14, 2008, Father physically abused her.   After she had asked Father for some money for Natalia, Father grabbed her by the hair, pushed her and said “go away.”   Father again grabbed Mother, who then pushed him away.   Father called the police and then left.   When the police arrived, Father was across the street.   The police asked Father to leave the residence.

Although Natalia stated she was not physically present inside the house when this altercation transpired, she did hear her parents arguing from outside the home.   She later entered the house to see scratches on Father's face.⁷  When Mother started to speak ill of Natalia's paternal grandmother, Natalia yelled at Mother to stop and think about how she would feel if someone said mean things about Grandmother.

According to Father, he refused to give Mother the money she asked for.   Mother then started arguing with him and struck him in the face.   After interviewing Natalia and her parents about the incident, a social worker determined that Mother assaulted Father and was trying to use DCFS and the courts against Father.

Natalia also described another incident of domestic violence during which she saw Mother and Father pushing and shoving each other and the police were summoned.   Father had an “opened lip” and bruises on his arm.

Verbal altercations are common between Father and Mother.   They both attempted to draw their children into the fray by asking them to pick sides.   Each parent spoke ill of the other parent to their children.   The parents' “ongoing dysfunctional marital relationship and constant arguments have caused Natalia to mature a lot faster than girls her age.   She has to be more mature than her parents and set boundaries for them and ask them not to involve her in their marital disputes because she does not want to hear about it nor does she want to be asked to pick sides.   Natalia is very tired of her parents picking on each other.   Natalia wishes for parents to be peaceful and be able to put their differences aside when they are around their children.”   Parents have allowed their marital problems to interfere with Natalia's normal development.

Although domestic violence unquestionably was a part of Father and Mother's marriage, by the time of the dispositional hearing, they had been separated for almost one year, and Father lived out of state in Tennessee.   Although Father told a social worker that he was not leaving Mother or Natalia by moving but rather was giving him and Mother “a break,” Mother stated she had no intention of resuming a romantic relationship with Father.   Under these circumstances, we conclude that at the time of the jurisdictional hearing, Natalie was not at substantial risk of future serious physical harm as a result of domestic violence.   There thus was insufficient evidence to support the jurisdictional finding that Natalia came within the provisions of section 300, subdivision (b), as a result of her parents' domestic violence.  (In re David M., supra, 134 Cal.App.4th at p. 828.)   The court's jurisdictional finding under section 300, subdivision (b), nevertheless will be upheld on the basis of the parents' substance abuse.

DISPOSITION

The order is affirmed.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

FN2. Father's notice of appeal also references the order removing Natalia from the custody of Mother.   Inasmuch as his opening brief is silent as to this order, he has abandoned any challenge to the removal order.  (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.).  FN2. Father's notice of appeal also references the order removing Natalia from the custody of Mother.   Inasmuch as his opening brief is silent as to this order, he has abandoned any challenge to the removal order.  (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

FN3. Mother is not a party to this appeal..  FN3. Mother is not a party to this appeal.

FN4. At the time, Father, Mother and Natalia were living with Natalia's maternal grandmother (Grandmother).   After Father left, Mother and Natalia continued to reside with Grandmother..  FN4. At the time, Father, Mother and Natalia were living with Natalia's maternal grandmother (Grandmother).   After Father left, Mother and Natalia continued to reside with Grandmother.

FN5. Additional facts will be incorporated into the legal discussion where relevant..  FN5. Additional facts will be incorporated into the legal discussion where relevant.

FN6. Natalia is a remarkable and resilient teenager.   She has learned not to allow her parents' dysfunctional conduct to interfere with her own mental well-being or her daily functioning.   Her adult siblings and Grandmother are always there to provide her with emotional support and love.   Natalia has been able to separate herself from her parents' problems and denies needing therapy.   When she is upset, “she does not repress her feelings or hold any unresolved feelings.”   She will write down her feelings and then tear up the paper.   Natalia's adult siblings have spent a lot of time talking to Natalia about their parents' problems and how not to be like them.Natalia is “a very happy child.”   She enjoys reading and is actively involved in school activities.   Her academic performance is excellent except for math and science.   Her teachers report that Natalia is a pleasure to have in class and is a positive role model for other students.Despite the parents' substance abuse and marital dysfunction, Father and Mother provide for Natalia's basic needs and provide some enrichment activities as well.   Both parents are often loving and nurturing.   They make sure that Natalia attends school regularly, and Father makes sure that Natalia has access to a computer so that she can do her homework.   Both parents provide Natalia with books and gifts for her birthday and holidays, and they ensure that she spends quality time with her adult siblings and her niece.   Natalia has plenty of food to eat, clothes and school supplies.Natalia has no medical problems and her dental exams are up to date.   Her parents provided Natalia with braces to straighten out her teeth, with parents alternating the responsibility for monthly payments.   When Father was laid off from work in July 2009, he was unable to make the required payment, as a result of which Natalia was unable to get treatment for her braces which needed to be repaired..  FN6. Natalia is a remarkable and resilient teenager.   She has learned not to allow her parents' dysfunctional conduct to interfere with her own mental well-being or her daily functioning.   Her adult siblings and Grandmother are always there to provide her with emotional support and love.   Natalia has been able to separate herself from her parents' problems and denies needing therapy.   When she is upset, “she does not repress her feelings or hold any unresolved feelings.”   She will write down her feelings and then tear up the paper.   Natalia's adult siblings have spent a lot of time talking to Natalia about their parents' problems and how not to be like them.Natalia is “a very happy child.”   She enjoys reading and is actively involved in school activities.   Her academic performance is excellent except for math and science.   Her teachers report that Natalia is a pleasure to have in class and is a positive role model for other students.Despite the parents' substance abuse and marital dysfunction, Father and Mother provide for Natalia's basic needs and provide some enrichment activities as well.   Both parents are often loving and nurturing.   They make sure that Natalia attends school regularly, and Father makes sure that Natalia has access to a computer so that she can do her homework.   Both parents provide Natalia with books and gifts for her birthday and holidays, and they ensure that she spends quality time with her adult siblings and her niece.   Natalia has plenty of food to eat, clothes and school supplies.Natalia has no medical problems and her dental exams are up to date.   Her parents provided Natalia with braces to straighten out her teeth, with parents alternating the responsibility for monthly payments.   When Father was laid off from work in July 2009, he was unable to make the required payment, as a result of which Natalia was unable to get treatment for her braces which needed to be repaired.

FN7. Father told the social worker that Natalia saw Mother attack him.   He observed:  “I think emotionally my wife hurts Natalia because she is the aggressor and Natalia sees what goes on.   My wife talks crap when Natalia is there.”.  FN7. Father told the social worker that Natalia saw Mother attack him.   He observed:  “I think emotionally my wife hurts Natalia because she is the aggressor and Natalia sees what goes on.   My wife talks crap when Natalia is there.”

WOODS, Acting P. J. ZELON, J.