Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. JJ64722A, Charlotte A. Wittig, Commissioner.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DAWSON, J.
K.D. (appellant) challenges the juvenile court’s dispositional orders removing the minor N.D. from his care. We find no error and affirm.
FACTUAL AND PROCEDURAL HISTORY
When N.D. was born in April of 2010, she tested positive for amphetamines and a referral was made to Tulare County Child Welfare Services (Child Welfare). The following day, the child’s mother (mother) admitted to a social worker that she had tested positive for methamphetamine in January of that year while receiving prenatal care, and “last used about four days ago.” Mother had a history of drug abuse, and although she claimed to have stopped in January when she discovered she was pregnant, she used drugs three days before N.D. was born because she and appellant had had an argument. Mother named appellant as N.D.’s father. Mother had two older children who were voluntarily placed by mother with a relative in another state.
Appellant and N.D. had lived together for approximately 11 months in his mother’s home. According to appellant, mother referred herself to a prenatal substance abuse treatment program over a month before the baby was born but left after one day. Appellant claimed to be the father of N.D., stating mother had lived with him at the time of the baby’s conception and birth but, at the hospital, he was not allowed to sign the child’s birth certificate because mother was married to someone else.
Appellant denied a history of drug abuse, stating he had only experimented with marijuana prior to a stint in the military. Appellant admitted he was on probation for a vandalism charge and was receiving counseling services through the Veterans Administration. A check of appellant’s criminal record revealed, inter alia, two arrests for being under the influence of a controlled substance, one in October of 2008 and one in January of 2007, to which he pleaded no contest.
Both appellant’s and mother’s mothers were interviewed by the social worker and appellant’s mother offered to provide assistance, specifically transportation, to mother and appellant. Based on family support and appellant’s and mother’s willingness to participate in services, Child Welfare offered appellant and mother voluntary family services to address mother’s drug abuse and appellant’s inability to protect the child.
Mother, appellant, and their mothers signed a safety plan in which they agreed that appellant and mother would live with appellant’s mother until mother entered a substance abuse treatment program; mother and appellant would refrain from alcohol and drug use and would participate in random drug testing; and both would attend a drug exposed infant class, parenting class, and counseling services. Appellant would also continue counseling services with the Veterans Administration; and appellant’s mother would contact Child Welfare if she had concerns about N.D.’s safety.
On May 4, 2010, appellant and mother met with a Child Welfare social worker and registered nurse. Appellant stated he had been in the Army for four years, was seeing a psychologist, and had been diagnosed with ADHD and bipolar disorder. Appellant was not currently on medication because he was searching for one that would not make him feel as though he could not function. When appellant was arrested years earlier on the vandalism charge, he was ordered to take mental health medications and ordered to do a drug program. According to appellant, he could not stay at the drug recovery program because they did not allow him to take his mental health medications. The drug program requirement was subsequently dropped by the court in October of 2009.
Also on May 4, 2010, mother failed to show for a random drug test, though she and appellant did attend the drug exposed infant class. Two days later on May 6, 2010, mother also missed a drug and alcohol treatment assessment. That same day, Child Welfare received a second referral regarding N.D. Appellant had told someone that, the previous night, he had found N.D. left alone at home by mother. The one-week-old baby had vomit all over her face and a blanket covering her entire body. It was not known how long N.D. had been left alone. The person making the report expressed concern over appellant’s ability to care for N.D. because appellant had met mother while “partying.”
Two days after the referral, on Saturday, May 8, appellant phoned Child Welfare after hours and spoke with a social worker. He stated that mother had still not returned home, and he requested a paternity test. When the social worker explained that such a test could not be done on a weekend, appellant stated, “I’m expected to be a parent 24 hours a day, why can’t you help me?” He then said that mother had told him N.D. was not his child and he wanted to have the social worker come pick her up. But in the same conversation, he also threatened to file a lawsuit if the social worker did pick up the child. Appellant also stated that he was supposed to do a random drug test, but that he didn’t have transportation and the social worker assigned to his case didn’t answer the phone. After expressing more frustration with the social worker, he also said that he wasn’t even sure mother and N.D. had really tested positive for drugs because he had not seen the paperwork. Appellant accused Child Welfare of “just making money off this case.” A woman who identified herself as appellant’s aunt then took the phone and asked if Child Welfare was going to pick up the child, but appellant, in the background, insisted that he could care for her. Appellant then asked his aunt a number of questions, such as “[W]hat if I want to go out and take my baby?” When his aunt asked him where he would go, appellant said he had been invited to go fishing at the lake. The aunt told appellant he couldn’t take the baby fishing and said, “Maybe you aren’t able to take care of this child, you’re being irrational.”
On May 12, 2010, mother failed to show for a staffing at Child Welfare. Later that day, appellant called the social worker. Appellant sounded “panicked” and said he and mother and N.D. had been at a donut shop arguing over N.D. Appellant did not feel N.D. was safe with mother and wanted the social worker to come to the shop, but “don’t call the cops.” Mother could be heard in the background screaming that appellant had hit her. The social worker called the police department, and an officer responded to the scene. The officer found mother under the influence, her mannerisms were “very jerky, ” and she was unable to stand still.
The officer arrested appellant for an outstanding warrant and arrested mother for being under the influence of methamphetamine. The social worker was called to pick up N.D. The social worker spoke with mother who said she had left N.D. with appellant until she returned to him three days earlier. Mother was told to contact Child Welfare when she was released from jail.
Neither mother nor appellant would cooperate with Child Welfare in signing or accepting paperwork regarding removal of N.D. Appellant also told the social worker that he was not N.D.’s father.
The registered nurse who assessed N.D. found she was exhibiting signs of drug withdrawal: increased muscle tone in all extremities, including her back and neck, some back arching, tremors, and gaze aversion.
The following day, appellant telephoned Child Welfare and demanded N.D.’s belongings, including her car seat, stroller, diaper bag, clothing, blankets, and formula, because it was his property. Appellant stated that he did not know of mother’s whereabouts, although she had been released from custody.
Appellant attended a staffing at Child Welfare later that day. At that point, appellant stated he wanted paternity testing as five other men could be N.D.’s father. Appellant was reminded that he had previously been directed to contact a facility to pursue such testing. Appellant denied any drug use and was willing to submit to random drug testing. But when reminded that he had already agreed to voluntary services and had failed to comply, appellant stated that he was not able to participate in services because he was afraid N.D. would be removed from his care. He said he would attend the detention hearing if he was noticed.
Mother contacted Child Welfare the following day. She stated that she had gone to Sacramento to see some friends after she was released instead of contacting Child Welfare as advised. The social worker then informed her that it would proceed with formal court intervention.
That same day, a Welfare and Institutions Code section 300 petition was filed alleging mother and appellant were unable to care for N.D. due to mother’s drug use while pregnant and exposure of N.D. to controlled substances in utero, mother’s continued drug use, neglect of N.D., appellant’s inability to adequately protect N.D. from mother’s drug use, and mother and appellant’s failure or inability to protect N.D. from exposure to domestic violence.
All further statute references are to the Welfare and Institutions Code unless otherwise stated.
On May 17, 2010, prior to the detention hearing, the bailiff had to be called to subdue appellant in the courthouse lobby because he was loud and inappropriate towards the agency social worker. Thereafter, at the detention hearing, appellant entered a denial of the section 300 petition, he completed a Statement Regarding Parentage (JV-505 form) indicating that he did not know if he was N.D.’s father, and he requested paternity testing. The juvenile court reserved the issue of paternity, awaiting information from a paternity inquiry as to whether there was a paternity judgment. If no such paternity judgment existed, Child Welfare was to refer appellant for testing.
The juvenile court ordered N.D. detained from both appellant and mother. Appellant did not want to be referred for services until the paternity testing results were received. As a result, the court did not order visitation for appellant, stating appellant was not entitled to visits as an alleged father. A contested jurisdiction hearing was set for June 24, 2010.
A May 25, 2010, update on N.D. from her foster family stated that she continued to exhibit symptoms of drug withdrawal, consisting of bad tremors, high-pitched crying, stiffness, and shaking legs and hands. N.D. was also diagnosed with thrush and a yeast infection and had difficulty swallowing.
The report prepared in anticipation of the jurisdiction/disposition hearing stated that appellant had six prior convictions: being under the influence of a controlled substance, resisting arrest, vandalism, disobeying court orders, possession of a deadly weapon, and illegally entering a noncommercial dwelling. He was placed on three years’ formal probation for the vandalism charge in December of 2007, and a warrant for violation of probation was issued in March of 2010.
At the jurisdiction hearing on June 24, 2010, Child Welfare informed the court that paternity testing had been performed and results would be available in four to six weeks. Appellant’s counsel made an offer of proof that if called to testify, appellant would state that he never saw mother using drugs and did not recognize or believe that she was under the influence. He would also state that, on the day he was arrested, the police were called because he had an outstanding warrant. He denied being involved in a domestic violence incident.
Mother waived her rights and submitted on the petition and reports.
Child Welfare argued against appellant’s contention that he was unaware mother was using drugs. It first noted that appellant, who had a conviction and an arrest for being under the influence, was familiar with the effects of being under the influence and would have recognized those signs in mother. In addition, Child Welfare reminded the juvenile court that appellant reported to the social worker that mother had self-referred to a drug treatment center a month before delivery. Appellant had also agreed to the voluntary maintenance plan, which included mother’s need for drug treatment, and that he knew she was noncompliant. The juvenile court found the allegations of the petition true.
The juvenile court then addressed disposition. Mother had not visited N.D. and had not begun services. Appellant was still awaiting paternity testing results, but requested visitation. The court reminded appellant that he was still considered an “alleged” father because he had chosen to seek paternity testing rather than acknowledge paternity. The court stated that the matter would be calendared immediately upon receipt of the test results, but denied appellant an order of visitation in the interim. Mother was granted twice monthly visits, which would be increased to weekly when she submitted a clean drug test. N.D. was declared a dependent and removed from mother’s custody.
On July 1, 2010, the agency filed a motion regarding paternity, which included a report indicating that there was a 99.99 percent probability that appellant was N.D.’s biological father. Appellant was now no longer living with mother. The report recommended appellant receive weekly supervised visitation, be referred for a drug and alcohol assessment, be subject to random drug testing, and receive domestic violence/anger management counseling. At this point, N.D. was receiving methadone to treat her withdrawal symptoms.
At the subsequent hearing on July 6, 2010, the juvenile court found appellant to be the presumed father of N.D. Counsel for appellant noted that appellant was having difficulty with the domestic violence treatment requirement of the proposed case plan because he claimed to be the “victim” of the domestic violence and not the instigator. The court stated that an assessment evaluator would have all documents regarding the incidents and could make an appropriate referral, i.e., whether to require appellant to attend victim or perpetrator counseling.
The juvenile court then asked appellant if he had a different address for mother than his own address. Appellant stated that he knew mother “bounce[d] around Goshen, ” but that “[t]hey” asked that he not give out her address. Appellant complied after the court ordered him to do so.
The juvenile court indicated that it was going to adopt the findings and orders submitted by the social worker. Appellant interjected that he was “going to appeal this.” The court then adopted the proposed findings submitted by Child Welfare and ordered removal of N.D. from the custody of mother and appellant. Appellant’s counsel stated that appellant had some relatives who were interested in placement, including his mother. The court advised appellant to submit those names to Child Welfare for investigation. Appellant then asked if there was any way he could get custody of N.D. “right now.” The court replied “Not at this time.”
DISCUSSION
Appellant challenges the dispositional order removing N.D. from his care, claiming it lacked sufficient evidence. We disagree.
Generally speaking, the juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. Removal orders are overturned only where no substantial evidence exists to support them. (In re Steve W. (1990) 217 Cal.App.3d 10, 22-23.) Under this test, the reviewing court is not permitted to reweigh evidence and substitute its judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) Nevertheless, substantial evidence is not any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. (Ibid.; In re James R. (2009) 176 Cal.App.4th 129, 135.) Inferences that are the result of mere speculation or conjecture cannot support a finding. (In re Savannah M., supra, at pp. 1393-1394; In re James R., supra, at p. 135.) The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record. (Ibid.)
Under the pertinent portion of the statute, the juvenile court may order removal only if it finds both of the following two elements by clear and convincing evidence: (a) that there is substantial risk of harm to the child if returned home and (b) that there are no reasonable means for protecting the child’s physical welfare without removal. (§ 361, subd. (c); see, e.g., In re Isayah C. (2004) 118 Cal.App.4th 684, 695; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288; 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.) As its language suggests, “the bias of the controlling statute is on family preservation, not removal.” (In re Jasmine G., supra, at p. 290.) Removal “is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)
Section 361, subdivision (c), provides in pertinent part as follows: “A dependent child may not be taken from the physical custody of his or her parents … with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following …: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s … physical custody. …The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent … from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent … to retain physical custody as long as that parent … presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.”
The court must determine whether reasonable efforts were made to prevent or eliminate the need for the child’s removal. (§ 361, subd. (d).) If removal is necessary, the juvenile court must state the factual basis for the removal order. (Ibid.) “The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of [section 361, subdivision (c)(1)] is on averting harm to the child. [Citation.]” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)
Appellant argues that his case is similar to that in In re Jeannette S. (1979) 94 Cal.App.3d 52, in which we found that a removal order was error. In Jeannette S., the juvenile court removed the five-year-old minor from her mother’s care after the house was found to be filthy, with animal feces and a strong urine smell, and spoiled food on the stove. (Id. at p. 56.) The minor was frequently dirty when she went to school. (Ibid.) On appeal, we found that, although the living conditions created some danger to the child, there was no evidence presented that showed the minor could not be protected without being removed. (Id. at p. 60.) For example, the juvenile court could have avoided removal of the minor by ordering removal of the animals at the residence or providing mother with homemaker assistance. (Ibid.)
But here, unlike in In re Jeanette S., the record contains sufficient evidence to justify removal of N.D. under section 361, subdivision (c)(1) because there was substantial risk of harm to N.D. if she were returned home. N.D. tested positive for methamphetamine at birth, and mother admitted testing positive for drugs three months before N.D. was born. Appellant lived with mother during her entire pregnancy and knew that mother had unsuccessfully attended a substance abuse treatment program a month before N.D. was born. Appellant also signed a safety plan a day after N.D. was born in which he agreed that mother would enter a substance abuse program, would refrain from drug use, and both he and mother would attend a drug exposed infant class, which appellant did within a week of N.D.’s birth. The same week mother and appellant signed the safety plan, mother failed to show for a random drug test and her drug treatment assessment. The officer who responded to the donut shop where appellant and mother argued found mother “very jerky” and under the influence. At this point N.D. showed significant symptoms of drug withdrawal, consisting of bad tremors, high-pitched crying, stiffness, and shaking of her legs and hands.
Despite the overwhelming signs that mother abused drugs and N.D. suffered from this abuse, appellant failed to protect N.D. He left one-week-old N.D. with mother, only to subsequently find N.D. home alone, her face covered in vomit and a blanket over her entire body. Appellant failed to seek treatment for N.D. And at the disposition hearing, appellant still failed to understand the gravity of N.D.’s condition when he insisted that he never saw mother using drugs and did not recognize or believe that she was under the influence. By his own admission, appellant himself failed to drug test when he was called to do so as required by the safety plan. And, at the detention hearing, he declined any referral for services until his paternity was determined.
There was also evidence of appellant’s volatile behavior, which appellant failed to acknowledge. Appellant made an irate call to the social worker, complaining that mother had not returned home and that he wanted a paternity test. During this call he insisted that if he had to be a parent 24 hours a day, then the social worker should be available to assist him when he needed it. Later, when mother did return home, the two argued and mother accused appellant of hitting her. After N.D. was detained, appellant called Child Welfare and demanded N.D.’s belongings be returned to him. And prior to the detention hearing, a bailiff had to be called to subdue appellant in the courthouse lobby because he was loud and inappropriate toward the social worker. At the disposition hearing, appellant insisted that he was not involved in an incident of domestic violence at the donut shop, but that the officers had been called because appellant had an outstanding warrant. And at the hearing on the motion of paternity, appellant’s counsel stated appellant was having trouble with the domestic violence treatment requirement because he claimed he was the victim, not the instigator. Although there was no indication that appellant’s outbursts were aimed at N.D. or that she suffered physically from them, they are indicative of appellant’s impatience and inability to care for a very young, high-risk infant.
We find this evidence satisfies the initial statutory requirement of “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” in the event of a return home. (§ 361, subd. (c)(1).)
The second prong of the statute calls for consideration of alternatives. “Section 361 requires that there be ‘no reasonable means’ of preventing removal.” (In re Jasmine G., supra, 82 Cal.App.4th at p. 293.) As reflected in the case law, a range of less drastic alternatives may be available in a given case. One example is a return to parental custody “under stringent conditions of supervision by the welfare department.…” (In re Jeannette S., supra, 94 Cal.App.3d at p. 60.) In such cases, “unannounced visits and public health nursing services [are] potential methods of supervising an in-home placement.” (In re Henry V., supra, 119 Cal.App.4th at p. 529.)
In this case, the record provides evidentiary support to buttress the necessary statutory determination that “there are no reasonable means by which the minor’s physical health can be protected” short of removal. (§ 361, subd. (c).) Granted, appellant was now separated from mother. But because appellant failed to recognize the health concern to N.D. from mother’s drug use during pregnancy and after, or to even admit that he knew of mother’s drug use, unannounced visits from the welfare department would not have aided him in the ongoing “24-hour” care of a baby on methadone going through drug withdrawal. And while appellant lived with his mother who said she would help, she worked four days per week. Moreover, mother and appellant were living with appellant’s mother throughout the pregnancy and after N.D. was born, but appellant’s mother did not address any of the issues of drug use before N.D.’s birth. Nor did she do so after the birth, despite the fact that she had agreed to contact Child Welfare if she was concerned about the baby’s safety. Her presence did not protect the minor.
We find substantial evidence to support the removal order and reject appellant’s claim to the contrary.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., FRANSON, J.