IN RE: ADRIAN N. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Javier N. (Father) appeals from the September 14, 2010 jurisdiction and disposition orders of the juvenile court adjudging minor Adrian N. a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to protect) and Adrian's half-brother Johnny R. a dependent of the juvenile court pursuant to section 300, subdivisions (b) and (g) (failure to provide).¹  Father challenges the sufficiency of the evidence to support the juvenile court's jurisdictional findings as to Adrian only.   He also argues that the evidence did not support a finding that placement of Adrian with Father would be detrimental to Adrian.²

We conclude the evidence is sufficient to support the juvenile court's jurisdiction and disposition orders and affirm the orders of the juvenile court.

BACKGROUND

On April 11, 2010, the Department of Children and Family Services (DCFS) received a referral that Mother, who was homeless, was addicted to crystal methamphetamine.   On April 26, 2010, Mother admitted to DCFS that she was addicted to methamphetamine and stated she was willing to enter an inpatient drug treatment program.   Mother subsequently failed to attend a meeting scheduled with DCFS on May 8, 2010, to sign a voluntary family reunification case plan and her whereabouts became unknown.   On May 17, 2010, Mother entered a residential inpatient drug program and met with DCFS to sign the voluntary family reunification case plan.   The next day, Mother left the program and disappeared.   Johnny, born in January 2006, was detained at the home of maternal uncle Frank S. Adrian, born in August 2008, was detained at the home of maternal cousin Yolanda M.

On May 26, 2010, DCFS filed a petition pursuant to section 300, subdivisions (b) and (g) on behalf of Adrian and Johnny.   As to the section 300, subdivision (b) allegation, the petition alleged in count 1 that Mother's current and “ten year history of illicit drug use ․ renders [her] incapable of providing the [minors] with regular care and supervision”;  in count 2 that Michael failed to provide Johnny with the necessities of life;  and in count 3 that Father failed to provide Adrian with the necessities of life.   As to the section 300, subdivision (g) allegation, the petition alleged in count 1 that Michael failed to provide for Johnny;  and in count 2 that Father failed to provide for Adrian.   The whereabouts of Father and Michael were alleged to be unknown.

On June 13, 2010, Father sent a letter to DCFS that stated that he had lived with Adrian from the day he was born until Father's incarceration on January 14, 2010.   Father stated that he had been present at Adrian's birth, that he had signed Adrian's birth certificate, that Adrian calls him “Dad,” and that Father holds himself out as Adrian's father.   He wrote that he had worked two jobs to support Mother and Adrian and had shared an apartment with them.   He stated that he wanted Adrian to stay with maternal cousin Nikita S. until his release from prison on November 10, 2010.

DCFS reported that Father was incarcerated for second degree felony burglary.   On June 28, 2010, the juvenile court found Father to be Adrian's presumed father.   Father told DCFS that while he was on probation for the burglary, he was arrested in January 2010 for robbery.   He stated that although the robbery charges were dropped, he violated probation “due to police involvement and thus he was sentenced to 10 months in prison.”   Father denied that he or Mother used drugs prior to his arrest.   Father agreed to allow Adrian to be placed with maternal cousin Yolanda, who lived with her sister Nikita.   Father stated that his mother, who lived in Duarte, had access to Father's money while he was incarcerated.   He stated that he wanted custody of Adrian on his release.   Father told DCFS that after his release, he would need a month or two to get a job and his own place in order to take care of Adrian.   Maternal uncle Frank told DCFS that “ ‘[Father] was working and [Mother] was going to school.   Then they both got caught up with drugs.’ ”   Maternal aunt Marina F. stated that “ ‘[Father] is the only father who's been there the whole time’ ” and that “[F]ather was working and doing drugs as well.”

On August 9, 2010, DCFS filed a first amended petition adding count 4 under section 300, subdivision (b) that “[Father] has a history of drug use and possession of controlled substance and controlled substance paraphernalia.   Further, on 12/05/2006, the father was convicted for felony charges of burglary, second degree, and was sentenced to three (3) years probation and 360 days of jail term.   Further, the father was arrested on 1/14/2010 for violation of parole, robbery and conspiracy to commit crime and is currently incarcerated in state prison.   The father's past history of drug use and current incarceration for serious crimes endangers the child's physical and emotional health and safety, placing the child at risk of physical and emotional harm, damage and danger.”

At the jurisdiction/disposition hearing on September 14, 2010, Mother entered a plea of no contest to the petition.   Mother then testified that Adrian lived with Father from birth until Father was arrested.   She testified that by working two jobs Father supported Adrian as well as her three other children.   Whenever Mother needed money for Adrian, she contacted Father's mother, who had Father's ATM card and access to his bank account.   Father testified that he violated his probation for the residential burglary by being arrested for robbery and failing to report a “ticket” he had received in December 2009 for being under the influence of a controlled substance and possession of drug paraphernalia.   In response to the question, “Who was caring for your child when you got the ticket?”   Father stated, “I was still—” He denied any knowledge of Mother's drug use and that he used drugs with her.

The juvenile court sustained the allegations of section 300, subdivision (b) with respect to count 1, Mother's substance abuse;  count 2, Michael's failure to provide;  count 4, Father's drug and criminal history and current incarceration;  and section 300, subdivision (g), count 2, Michael's failure to provide.   The juvenile court struck that portion of the section 300, subdivision (b) count 4 allegation that Father's probation violation was for “robbery and conspiracy to commit a crime.”   The juvenile court dismissed the allegations regarding Father's failure to provide alleged in section 300, subdivision (b), count 3, and subdivision (g), count 2. In response to Father's request to dismiss the remaining portion of section 300, subdivision (b), count 4, the juvenile court stated:  “He was arrested in December for being under the influence of a controlled substance, having paraphernalia while he says the child was in his care.”

The juvenile court declared Adrian a dependent child of the court under section 300, subdivision (b) and Johnny a dependent child of the court under section 300, subdivisions (b) and (g).

At disposition, minors' counsel requested the minors be suitably placed and family reunification services be given to Mother and Father.   Father's counsel requested that the juvenile court release Adrian to Father “on condition the child stays with the two cousins.”   Counsel requested that if the court decided to suitably place Adrian, the court grant visitation to Father at least two times a week with discretion to liberalize and order a progress report in three months to determine if Adrian could be released to Father based on his drug test results and attendance at drug programs.   DCFS recommended suitable placement for Adrian, arguing that Father had “an unresolved issue involving drugs.”   The court concluded that clear and convincing evidence existed of danger to the minors' physical or mental health and that DCFS had provided reasonable services to prevent removal.   The court ordered Johnny placed with the maternal uncle and Adrian placed with the maternal cousins.   It denied reunification services for Michael and granted reunification services for Mother and Father.   The court ordered Father to attend and complete drug rehabilitation programs with weekly random testing and individual counseling to address issues including Father's “criminal history in incarceration and its [e]ffect on [Adrian.]”   The court set the six-month review hearing for March 10, 2011.

Father filed a notice of appeal on October 5, 2010.

DISCUSSION

A. Sufficient evidence supported the juvenile court's finding of jurisdiction under section 300, subdivision (b)

Father challenges the sufficiency of the evidence as to the juvenile court's finding of jurisdiction under section 300, subdivision (b).  We conclude that sufficient evidence supports the court's finding of jurisdiction.

The juvenile court's jurisdictional finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355;  Cal. Rules of Court, rule 5.684(f).)  “ ‘ “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.  [Citation.]  In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact.  [Citation.]” ’  [Citation.]   While substantial evidence may consist of inferences, such inferences must rest on the evidence;  inferences that are the result of speculation or conjecture cannot support a finding.  [Citation.]”  (In re Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction 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 the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left․”

“A jurisdictional finding under section 300, subdivision (b) requires:  ‘ “(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.”  [Citation.]'  [Citations.]   The third element ‘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).’  [Citation.]”  (In re James R. (2009) 176 Cal.App.4th 129, 135.)

“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.) An unresolved drug or alcohol abuse problem may impair a person's ability to parent and thus afford a basis for the assertion of the dependency jurisdiction.  (See Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.)

Here, the juvenile court found true the allegation that “[Father] has a history of drug use and possession of controlled substance and controlled substance paraphernalia,” that he was convicted of second degree felony burglary, and that he violated probation and is currently incarcerated in state prison.   The court found true that Father's past history of drug use and current incarceration for serious crimes endangers the child's physical and emotional health and safety, placing Adrian at risk of physical and emotional harm, damage and danger.

Father contends that there was insufficient evidence of serious harm or substantial risk of serious harm to support jurisdiction under section 300, subdivision (b) because his incarceration was not a source of actual or potential harm to Adrian.   He separately contends that drug use “without more does not support a finding of jurisdiction pursuant to section 300, subdivision (b).”  We cannot view Father's incarceration and drug use in isolation because Father's incarceration was inextricably tied to his drug use.   For instance, Father attempts to minimize the seriousness of his incarceration by claiming he “was not incarcerated for a serious crime” but for a probation violation for failure to report a misdemeanor “ticket” involving drugs.   But we do not regard Father's probation violation so casually.   Father violated probation for failing to report that he received a misdemeanor “ticket” for drug use and possession of drug paraphernalia and for “police involvement.”   And he violated probation for residential burglary, which is a common crime committed by drug users to finance their habit.

Father cites In re Alexis E. (2009) 171 Cal.App.4th 438, In re Rocco M. (1991) 1 Cal.App.4th 814, and Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.) for the proposition that drug use, without more, does not support a finding of jurisdiction pursuant to section 300, subdivision (b).  Those cases, in fact, support the exercise of the juvenile court's jurisdiction over Adrian.   In In re Alexis E. the appellate court found that sufficient evidence supported section 300, subdivision (b) jurisdiction over three minors, ranging in age from nine to 11, based on the father's use of medical marijuana.  (In re Alexis E., supra, at p. 453.)   In affirming the juvenile court's assertion of dependency jurisdiction, the court noted the evidence showed the father used marijuana when the minors, who could smell the smoke emanating from his bedroom, were home;  the father's marijuana use negatively affected his demeanor toward the minors;  and DCFS reported that the father sounded hysterical, yelled and used profanity during a phone call—significant in light of the fact that one of the effects of marijuana use is intense anxiety or panic attacks.  (Id. at pp.   451–453.)

Here, as in In re Alexis E. and In re Rocco M., there was more than just evidence of Father's drug use.   There was evidence that Father used drugs while caring for Adrian, who, at the age of two years nine months at the time the petition was filed, needed constant care and supervision.   Frank and Marina testified to Father's prior and current drug use.   Father was caring for Adrian when he received the “ticket” for being under the influence of drugs and in possession of drug paraphernalia.   In light of Father's failure to be forthright with authorities and his denial of his and Mother's drug use, the juvenile court could reasonably conclude that Father was not a credible witness and was still struggling with drug issues.   Thus, the evidence supports the inference that Adrian was exposed to Father's drug use and drug paraphernalia, placing him at risk of serious physical harm and illness.   And Father was incarcerated for violating probation for failing to report a “ticket” for being under the influence of a controlled substance, possession of drug paraphernalia, and “police involvement.”   Father's incarceration cannot but negatively impact Adrian, who, at two years nine months old, was unable to articulate problems with Father's drug use as could the minors in In re Alexis E. Father urges there were no negative consequences from his incarceration because the “ ‘failure to provide’ ” counts were dismissed because DCFS adopted Father's proposed plan for Adrian's care while Father was incarcerated.   But we note that the record shows that Adrian was detained with Yolanda on May 21, 2010, prior to Father's June 13, 2010 letter suggesting Adrian be placed with Nikita.   Thus, we conclude there is sufficient evidence that Father's drug use and continued criminal activity combined with his incarceration put Adrian at risk of serious physical harm or illness under section 300, subdivision (b).

In Jennifer A., the appellate court concluded the evidence was insufficient to support the finding that returning the minors to the mother's custody would create a substantial risk of detriment pursuant to section 366.22.³  (Jennifer A., supra, 117 Cal.App.4th at p. 1346.)   In that case, the minors had not been removed from the mother's custody in the first place due to the mother's drug use, but because she had left them alone on one occasion to go to work, believing that the father (whose car had broken down, unbeknownst to her) would arrive shortly to care for them.  (Id. at pp.   1343–1344.)   At the section 366.22 hearing, the evidence showed that the mother had complied with the reunification plan, had been fully employed for two years and recently received a promotion, was cooperative with DCFS, had always acted appropriately and had displayed appropriate parenting skills.   There was no evidence of a history of mental illness, incarceration, or a substance abuse problem affecting her parenting skills.   The court found that the mother's one positive drug test and several missed or diluted tests between the 12–month review report/hearing and the 18–month review report/hearing did not mean that “the children's return to [her] would create a substantial risk of detriment to the physical or emotional well-being of the children in light of the factors in this case militating in favor of their return.  (Id. at p. 1346.)

Father is not like the mother in Jennifer A., who had a long history of compliance with reunification services.   Her children were removed not due to her drug use, but because she had left them alone to go to work.   Here, on the other hand, the allegations against Father are based on his past history of drug use and current incarceration for a serious crime.   Unlike the mother in Jennifer A., Father does not yet have a history of compliance with reunification services, including completion of parenting, drug testing, and drug programs.

We conclude that the evidence of Father's past and current drug use and continued criminal activity was sufficient to support the juvenile court's finding that Adrian was a child described under section 300, subdivision (b).

B. Substantial evidence supports the juvenile court's finding that placement of Adrian with Father would be detrimental to him under section 361.2, subdivision (a)

Father contends that there was not clear and convincing evidence that Adrian must be removed from Father's custody pursuant to section 361, subdivision (c).  Alternatively, he argues that there was no evidence that placement of Adrian with Father would be detrimental to Adrian under the provisions of section 361.2, subdivision (a).   We conclude that Father is not governed by section 361, subdivision (c)(1), which pertains to custodial parents.   Rather, as a noncustodial parent, Father is governed by the provisions of section 361.2, subdivision (a), and we conclude that substantial evidence supports the juvenile court's finding that placement of Adrian with Father would be detrimental to him under section 361.2, subdivision (a).

“The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent).  (In re V.F. (2007) 157 Cal.App.4th 962, 969, superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 5758.)   Section 361, subdivision (c), defines custodial parents as “parents ․ with whom the child resides at the time the petition was initiated․”  Section 361.2, subdivision (a), on the other hand, defines noncustodial parents as “a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.”   Father, who was incarcerated at the time the petition was filed, was therefore a noncustodial parent governed by the provisions of section 361.2, subdivision (a).

Section 361.2, subdivision (a) provides that:  “If that [noncustodial] parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”   In making a finding of detriment, the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent.   In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, subd. (a).)”  (In re V.F., supra, 157 Cal.App.4th at p. 970.)  “ ‘We review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer such detriment.  [Citations.]  Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.  [Citation.]’ ”  (In re John M. (2006) 141 Cal.App.4th 1564, 1569–1570.)

Here, the juvenile court considered the evidence and the testimony in concluding that there was clear and convincing evidence that substantial danger existed to Adrians physical or mental health, such that placement with Father would be detrimental to his safety, protection, or physical or emotional well-being.   We conclude that substantial evidence supports the courts determination.   Fathers denial that he and Mother used drugs is evidence that he still struggles with drug issues.   He was caring for Adrian when he received the ticket for being under the influence and possession of drug paraphernalia.   And he was incarcerated for violating probation for a residential burglary, a serious crime.   Thus, the evidence supported the finding that placement of Adrian with Father would be detrimental to Adrian.

DISPOSITION

The juvenile court's jurisdiction and disposition orders are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Undesignated statutory references are to the Welfare and Institutions Code..  FN1. Undesignated statutory references are to the Welfare and Institutions Code.

FN2. Adriana F. (Mother), Johnny, and Johnny's father Michael R. are not parties to this appeal..  FN2. Adriana F. (Mother), Johnny, and Johnny's father Michael R. are not parties to this appeal.

FN3. Section 366.22, subdivision (a) provides that after the child has been removed from the custody of his parent the permanency review hearing shall occur.   It further states that:  “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.22, subd. (a).).  FN3. Section 366.22, subdivision (a) provides that after the child has been removed from the custody of his parent the permanency review hearing shall occur.   It further states that:  “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.22, subd. (a).)

ROTHSCHILD, J. JOHNSON, J.