Opinion
B330633
05-03-2024
In re MICHAEL S., et al., Persons Coming Under the Juvenile Court Law. v. AZUCENA S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 23CCJP01063 Nancy A. Ramirez, Judge. Affirmed in part and reversed in part with directions.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
SEGAL, Acting P. J.
INTRODUCTION
Azucena S. appeals from the juvenile court's jurisdiction findings under Welfare and Institutions Code section 300, subdivision (b), and disposition orders declaring her children, 11-year-old Michael S., 10-year-old Joseph S., eight-year-old Aaron G., and one-year-old Zeak S., dependent children of the court and removing them from her physical custody. Azucena argues that substantial evidence did not support the court's jurisdiction findings based on her substance abuse and that substantial evidence did not support the court's order removing the children. We conclude that substantial evidence supported the court's jurisdiction findings for Zeak and the order removing him, but that substantial evidence did not support the court's jurisdiction findings based on Azucena's substance abuse or the removal orders for Michael, Joseph, or Aaron.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Zeak Tests Positive for Methamphetamine at Birth, and the Juvenile Court Removes All Four Children from Azucena
When Azucena gave birth to Zeak in March 2023, they both tested positive for methamphetamine. A social worker from the Los Angeles County Department of Children and Family Services interviewed Azucena, who denied using drugs. A nurse stated that Azucena had attended prenatal appointments at the hospital starting when she was four months pregnant and that she had tested negative for drugs in the past. Francisco S., Zeak's father, told the social worker neither he nor Azucena used drugs.
Azucena said that, the day before she gave birth, she went to a baby shower where she drank lemonade that tasted "funny." Thirty minutes later, she felt sick and started bleeding. She called Francisco, who took her to the hospital, where she gave birth. Azucena said she was willing to drug test to prove she did not use drugs.
Francisco tested positive for methamphetamine on March 17, 2023, and Azucena tested positive for methamphetamine on March 18, 2023. When the social worker asked them whether they had taken any substances, Azucena said she had taken medication for pain, and Francisco said he had taken medication for diabetes and blood pressure. Azucena also said a doctor told her that, if there were drugs in the lemonade she drank, the drugs could stay in her system for four to five days. The Department detained the children from Azucena and Francisco.
Azucena's friend, Yesenia C., called the social worker and said that she put methamphetamine in her cup at the baby shower and that Azucena must have drunk from Yesenia's cup. Yesenia said that Azucena did not use drugs and that Azucena did not know Yesenia used methamphetamine. Later Azucena told the Department investigator she tested positive because her friend put diet pills in the lemonade Azucena accidentally drank.
The Department filed a petition alleging two counts under section 300, subdivision (b), based on Azucena's substance abuse. In the first count the Department alleged that Zeak tested positive for amphetamine when he was born, which was an injury or detrimental condition caused by Azucena's unreasonable or neglectful acts, and that Azucena's substance abuse endangered Zeak's physical health and safety and placed him at risk of serious physical harm. In the second count the Department alleged that Azucena was a current abuser of amphetamine and methamphetamine, which rendered her unable to provide regular care for the children, and that Francisco failed to protect the children from Azucena's substance abuse. The Department also asserted counts under section 300, subdivision (b), based on Francisco's substance abuse and the criminal history of Jorge O. (Michael and Joseph's father), and under section 300, subdivision (j), based on prior dependency jurisdiction over Zeak's half-siblings caused by Francisco's substance abuse.
Azucena does not challenge the juvenile court's finding she failed to protect the children from Francisco's substance abuse. Francisco and Jorge did not appeal from the findings against them.
At the detention hearing the juvenile court found the Department had made a prima facie showing the children were persons described by section 300 and ordered their continued detention. The court ordered monitored visitation and weekly drug testing for Azucena.
C. The Juvenile Court Sustains the Petition and Removes the Children
At a combined jurisdiction and disposition hearing in June 2023 the juvenile court sustained the allegations in the petition and found the children were persons described by section 300, subdivisions (b) and (j). The court found not credible Azucena's account she accidentally ingested methamphetamine when she drank someone else's lemonade. The court declared the children dependent children of the juvenile court and removed them from Azucena and their fathers. The court ordered weekly drug testing, parenting classes, individual counseling, and unmonitored visitation for Azucena. Azucena timely appealed from the court's jurisdiction findings and disposition orders.
DISCUSSION
A. Azucena's Appeal from the Jurisdiction Findings Is Justiciable
The Department argues we should dismiss as non-justiciable Azucena's challenge to the jurisdiction findings based on her substance abuse. The Department asserts the juvenile court would have jurisdiction over the children regardless of the outcome of Azucena's appeal because Francisco and Jorge did not challenge the court's jurisdiction findings against them and Azucena did not challenge the findings against her based on her failure to protect the children from Francisco's substance abuse.
The "principle that '[d]ependency jurisdiction attaches to a child, not to his or her parent' [citation], means that '"[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate"' [citation]. Thus, where jurisdictional findings have been made as to both parents but only one parent brings a challenge, the appeal may be rendered moot. [Citation.] The same is true where there are multiple findings against one parent; the validity of one finding may render moot the parent's attempt to challenge the others." (In re D.P. (2023) 14 Cal.5th 266, 283-284; see In re D.M. (2015) 242 Cal.App.4th 634, 638-639.) However, "'where a jurisdictional finding "serves as the basis for dispositional orders that are also challenged on appeal" [citation], the appeal is not moot.'" (D.P., at p. 283; accord, In re S.F. (2023) 91 Cal.App.5th 696, 712; see In re A.R. (2009) 170 Cal.App.4th 733, 740 ["'An issue is not moot if the purported error infects the outcome of subsequent proceedings.'"].)
Azucena argues her challenge to the jurisdiction findings based on her substance abuse is justiciable because those findings served as the basis for the court's order removing the children from her. The Department argues the court's disposition orders "may well have remained the same" even if the court had not sustained the substance abuse allegations against Azucena because the court also found Azucena failed to protect the children from Francisco's substance abuse (a finding Azucena does not challenge). "May well have" is not enough. It is not clear the court would have removed the children from Azucena based solely on her failure to protect them from Francisco's substance abuse; the court's focus at disposition was as much on Azucena's drug use as it was on the fathers' conduct. Because the court's finding Azucena was a substance abuser served, at least in part, as the basis for the disposition order removing the children from Azucena, her challenge to the findings is justiciable.
B. Substantial Evidence Supported the Juvenile Court's Jurisdiction Findings Regarding Zeak, But Not Those Regarding Michael, Joseph, or Aaron
1. Applicable Law and Standard of Review
Section 300, subdivision (b)(1), "provides that a juvenile may be adjudged a dependent of the court when '[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 . . . [t]he 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.'" (In re N.R. (2023) 15 Cal.5th 520, 537-538 (N.R.); see In re R.T. (2017) 3 Cal.5th 622, 626-627; In re S.F., supra, 91 Cal.App.5th at p. 712; In re L.W. (2019) 32 Cal.App.5th 840, 848.)
Under section 300, subdivision (b)(1)(D), the Department "must establish, as separate elements, that (1) substance abuse (2) makes a parent or guardian unable to provide regular care for a child and (3) this inability has caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness." (N.R., supra, 15 Cal.5th at p. 558.) "A court 'need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.' [Citation.] And a parent's '"'[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue."' [Citation.] However, '"[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.''"'" (In re S.F., supra, 91 Cal.App.5th at pp. 712-713; see In re J.A. (2020) 47 Cal.App.5th 1036, 1048.)
"'We review the jurisdictional findings for substantial evidence. [Citation.] We consider the entire record, drawing all reasonable inferences in support of the juvenile court's findings and affirming the order even if other evidence supports a different finding. [Citation.] We do not consider the credibility of witnesses or reweigh the evidence."' (In re L.B. (2023) 88 Cal.App.5th 402, 411-412; see In re S.F., supra, 91 Cal.App.5th at p. 713.)
2. Substantial Evidence Supported the Juvenile Court's Finding Azucena's Substance Abuse Placed Zeak at Substantial Risk of Serious Physical Harm
Azucena argues substantial evidence did not support the court's findings based on her substance abuse. She contends the evidence did not establish that she abused substances, that Zeak suffered serious physical harm, or that her substance abuse created a substantial risk Zeak would suffer serious physical harm. Substantial evidence, however, supported the juvenile court's jurisdiction findings regarding Zeak.
Azucena and Zeak tested positive for methamphetamine when Azucena gave birth. Although Azucena denied using methamphetamine and claimed she accidentally ingested the drug by drinking someone else's lemonade at a party, we defer to the juvenile court's finding Azucena's explanation was not credible. (See In re L.B., supra, 88 Cal.App.5th at p. 412.) When "a child is 'diagnosed as being born under the influence of a dangerous drug,' such as morphine and methamphetamine," section 355.1, subdivision (a), creates a presumption the child is subject to the jurisdiction of the juvenile court. (In re J.A., supra, 47 Cal.App.5th at p. 1049.) "Being born 'under the influence of a dangerous drug' is obviously a 'detrimental condition' within the meaning of the statutory presumption." (J.A., at p. 1049; see In re Monique T. (1992) 2 Cal.App.4th 1372, 1378 ["The child was born with dangerous drugs in her body, which creates a legal presumption that she is a person described by Welfare and Institutions Code section 300, subdivision (b)."]; In re Troy D. (1989) 215 Cal.App.3d 889, 897 [that a baby "was diagnosed as being born under the influence of a dangerous drug is legally sufficient for the juvenile court to exercise jurisdiction"].) Azucena did not present sufficient evidence to rebut the presumption under section 355.1 that Zeak was a person described by section 300.
Section 355.1, subdivision (a), provides: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, . . . that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300."
Azucena argues that, even if she intentionally ingested methamphetamine one time, there was no evidence that she abused methamphetamine or that her drug use prevented her from caring for Zeak. But Azucena tested positive for methamphetamine again three days after she gave birth, and Francisco tested positive two days after Azucena gave birth. The court reasonably inferred from that evidence Azucena and Francisco "were likely using together." Azucena asserts she tested positive the second time because the methamphetamine she initially ingested had not yet cleared her system. But even if that was true, the court could reasonably infer that Azucena was under the influence of methamphetamine for the first four days of Zeak's life and that she was therefore unable to provide the extremely high level of attention and care a newborn baby requires. (See N.R., supra, 15 Cal.5th at p. 559.)
Azucena also argues there was no evidence Zeak suffered serious physical harm because he "suffered no withdrawal symptoms, did not require NICU care, and was discharged with [Azucena] shortly after his birth." But exposing a baby to methamphetamine in utero creates a substantial risk of serious physical harm, even if the child appears otherwise healthy at birth. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 825 ["a child's ingestion of illegal drugs constitutes 'serious physical harm' for purposes of section 300"], disapproved on another ground in In re R.T., supra, 3 Cal.5th at p. 629; In re Alexzander C. (2017) 18 Cal.App.5th 438, 442 ["'[m]ethamphetamine is an inherently dangerous drug known to cause visual and auditory hallucinations'"], disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 and N.R., supra, 15 Cal.5th at p. 650, fn. 18.)
Finally, Azucena argues there was no evidence Zeak was at risk of harm at the time of the jurisdiction hearing in June 2023 because Azucena had tested negative for drugs for seven weeks, had voluntarily begun a drug treatment program, and was having unsupervised visits with her children. While Azucena's progress was encouraging, it had been only three months since she tested positive. The court could reasonably infer a three-month-old infant was at a substantial risk of serious physical harm in the care of a mother who had abused methamphetamine only three months earlier. (See In re L.W., supra, 32 Cal.App.5th at p. 849 [the "juvenile court 'need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child'"]; In re Troy D., supra, 215 Cal.App.3d at p. 899 ["prenatal use of dangerous drugs by a mother is probative of future child neglect"].)
3. But Substantial Evidence Did Not Support the Juvenile Court's Finding Azucena's Substance Abuse Placed Michael, Joseph, or Aaron at Substantial Risk of Serious Physical Harm
We agree with Azucena substantial evidence did not support either substance abuse jurisdiction finding against her regarding Michael, Joseph, or Aaron, who were seven, nine, and 10 years old at the time of the jurisdiction hearing. Even if the Department proved Azucena abused methamphetamine, "dependency jurisdiction under section 300(b)(1)(D) requires more than just the identification of substance abuse by a parent or guardian. A court must also find that the parent or guardian is unable to provide regular care for a child and that as a result, the child has suffered serious physical harm or illness or is at significant risk of suffering serious physical harm or illness." (N.R., supra, 15 Cal.5th at p. 556; see In re E.E. (2020) 49 Cal.App.5th 195, 213 ["'drug use or substance abuse, without more, is an insufficient ground to assert jurisdiction in dependency proceedings under section 300'"]; In re L.W., supra, 32 Cal.App.5th at p. 849 [same]; In re L.C. (2019) 38 Cal.App.5th 646, 654 ["'use of methamphetamine, without more, cannot' support jurisdiction"], disapproved on another ground in N.R., at p. 650, fn. 18.)
There was no evidence Azucena's substance abuse prevented her from caring for Michael, Joseph, or Aaron or exposed them to a substantial risk of harm. To the contrary, the evidence showed the children were well cared for. The Department inspected Azucena's home the day after she gave birth (while she was still in the hospital) and described the home as clean and well-stocked with appropriate food. The Department did not report any signs of drugs or drug paraphernalia, and the three older children said they had never seen drugs in their home. (Cf. In re Lana S. (2012) 207 Cal.App.4th 94, 104 [substantial evidence supported jurisdiction where police found drug paraphernalia in mother's home within reach of children]; In re Rocco M., supra, 1 Cal.App.4th at pp. 825-826 [mother placed her 11-year-old child at a substantial risk of serious physical harm by leaving him alone for prolonged periods with drugs "lying around the house"].)
The evidence also showed Azucena paid attention to the children's educational needs. In November 2022 she moved Aaron and Joseph to a charter school. The school reported that Azucena dropped off and picked up the children every day and that she was always available when Aaron was "having a bad day." Azucena told the Department that Michael went to a different school than his siblings to get more help with his schoolwork and because she was concerned he "was following bad kids." Azucena also told the Department that Aaron was going to be assessed for an individualized education plan. In April 2023 the children told the Department they felt safe in Azucena's home, they missed her, and they loved her. In June 2023 the social worker stated Azucena was visiting the children consistently three days a week, attending school events, "advocating for [the children's] needs and is very involved." (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 727 [mother's methamphetamine abuse did not create a substantial risk of harm for a 13-year-old child where the home was clean, stocked with food, and free of drugs; the mother regularly attended the child's individual education plan meetings; and the mother enrolled in a drug treatment plan].)
The Department argues Azucena's positive drug tests, combined with evidence of Azucena's prior child welfare history and her partners' drug use, created a substantial risk of harm. The Department relies on two prior referrals: (1) when Michael was an infant, a caller reported that Azucena associated with gang members and that her clothing smelled of marijuana; and (2) when two-year-old Michael fractured his femur, the hospital staff did not believe Azucena and Jorge's explanation for the injury. Neither of these incidents, which occurred eight to 10 years before the Department filed the petition in this case, showed Azucena's drug abuse put the children at a substantial risk of harm. (See In re Destiny S. (2012) 210 Cal.App.4th 999, 1004 ["Evidence of such conduct that may have occurred nine years before the petition under review was filed cannot support jurisdiction under section 300, subdivision (b), which requires proof of a current risk to the child."].)
The Department also asserts Azucena's partners abused drugs. The Department contends Azucena left the children home alone with Francisco, who admitted using methamphetamine daily from 2010 to 2018 and who had a domestic violence history with a previous partner in 2013. The Department also states Jorge had a drug-related criminal history. Francisco's and Jorge's drug use and criminal history were the basis for the other two counts under section 300, subdivision (b), which the juvenile court sustained, but they were not probative of whether Azucena's substance abuse put the children at a substantial risk of harm.
The Department points to a statement by the maternal great aunt, Norma, that Azucena was a drug addict. Norma, however, had not had contact with Azucena for three years. The Department also cites Norma's statements that the children told her Azucena "had not cleaned or cooked for them" and that "the children had difficulty eating nutritious foods." Even if true, these statements did not show Azucena's drug abuse created a substantial risk of harm, especially in light of the social worker's observation Azucena's kitchen was "clean and well stocked with appropriate perishable and non-perishable foods and cleaning supplies in a safe place."
Finally, the Department cites a letter from Azucena's substance abuse treatment program stating Azucena admitted she had made "bad choices in her life." The letter, however, did not explain what those choices were. Because the Department did not "present evidence of a specific, nonspeculative and substantial risk to [the children] of serious physical harm" (In re Destiny S., supra, 210 Cal.App.4th at p. 1004), the court erred in sustaining both substance abuse counts against Azucena under section 300, subdivision (b), regarding Michael, Joseph, and Aaron. (See In re David M. (2005) 134 Cal.App.4th 822, 830 [reversing jurisdiction findings where "the record on appeal lacks any evidence of a specific, defined risk of harm" to the children resulting from the mother's substance abuse], disapproved on another ground in In re R.T., supra, 3 Cal.5th at pp. 628-629.)
C. The Juvenile Court Did Not Err in Removing Zeak from Azucena, but the Court Erred in Removing the Three Older Children
Azucena argues substantial evidence did not support the court's order removing the children from her because, by the disposition hearing, she was participating in a parenting course, a drug treatment program, and individual counseling; testing negative for drugs; and having unmonitored visits with the children. Azucena also contends her use of methamphetamine was a one-time event that was not likely to recur. We conclude substantial evidence supported the order removing Zeak, but not the order removing Michael, Joseph, or Aaron.
1. Applicable Law and Standard of Review
Section 361, subdivision (c)(1), provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence" 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." (See In re M.D. (2023) 93 Cal.App.5th 836, 856; In re I.R. (2021) 61 Cal.App.5th 510, 520.) "'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' [Citation.] The court may consider a parent's past conduct as well as present circumstances." (In re N.M. (2011) 197 Cal.App.4th 159, 169170.)
"We review a dispositional order removing a child from a parent for substantial evidence, 'keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence.' [Citation.] '[A]ppellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands.' [Citation.] In applying this standard of review, 'the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.' [Citation.] We view the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (In re M.V. (2022) 78 Cal.App.5th 944, 960; see Conservatorship of O.B., supra, 9 Cal.5th at p. 995.) The appellant has the burden to show "'"there is no evidence of a sufficiently substantial nature"' to support the dispositional removal order." (In re L.O. (2021) 67 Cal.App.5th 227, 245; see In re E.E., supra, 49 Cal.App.5th at p. 206.)
2. Substantial Evidence Supported the Juvenile Court's Order Removing Zeak, but Not the Order Removing Michael, Joseph, or Aaron
At the disposition hearing, the court acknowledged Azucena was testing negative for drugs, but stated Azucena had "only recently enrolled in an outpatient program." The court removed the children from Azucena and set a future hearing "to determine whether the children can be returned to her care at that time."
Substantial evidence supported the juvenile court's finding by clear and convincing evidence that returning Zeak to Azucena would create a substantial danger to his physical health, safety, protection, or physical or emotional well-being. The same evidence that supported the court's jurisdiction findings regarding Zeak supported the order removing him. As discussed, the juvenile court found Azucena used methamphetamine in the last days of her pregnancy (and possibly a second time immediately after Zeak was born). The court could reasonably conclude Azucena's decision to use methamphetamine, combined with her failure to admit she had used drugs, indicated Zeak would be at risk of harm if returned to Azucena. (See In re K.B. (2021) 59 Cal.App.5th 593, 601 [juvenile court could reasonably infer from the mother's "dissembling about . . . drug use" she was "trying to hide [an] ongoing drug addiction"]; In re A.F. (2016) 3 Cal.App.5th 283, 293 ["In light of [the] mother's failure to recognize the risks to which she was exposing the minor, there was no reason to believe the conditions would not persist should the minor remain in her home."]; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) The court could also reasonably conclude not enough time had elapsed since Azucena used methamphetamine to entrust her with the care of a young infant. And because Zeak still "require[d] a substantial degree of close supervision (N.R., supra, 15 Cal.5th at p. 558; see id. at p. 559 ["a child's youth and maturity level can bear upon the care that the child may require and whether a parent's . . . substance abuse places the child at substantial risk of serious physical harm"]), substantial evidence supported the court's finding there were no reasonable means to protect Zeak without removing him from Azucena.
We agree with Azucena, however, substantial evidence did not support the court's order removing Michael, Joseph, or Aaron. As discussed, substantial evidence did not support the court's jurisdiction findings for Michael, Joseph, or Aaron on either count under section 300, subdivision (b), based on Azucena's substance abuse. Therefore, those findings cannot serve as the basis for removing Michael, Joseph, or Aaron from Azucena. And although the court had jurisdiction over the three older children under the two other counts under section 300, subdivision (b), and the count under section 300, subdivision (j), the court erred in removing them from Azucena because substantial evidence did not support the court's finding by clear and convincing evidence that returning the three older children to Azucena would create a substantial danger to their physical health, safety, protection, or physical or emotional well-being.
In re Hailey T. (2012) 212 Cal.App.4th 139 is instructive. In that case a four-month-old infant suffered an unexplained injury to his eye, and the juvenile court removed the infant and his three-year-old sister. (Id. at pp. 142-143, 145.) The court in Hailey T. reversed the order removing the older sibling, concluding there was no evidence she would be in danger if returned to the parents. (Id. at p. 145.) The court stated that, although there was evidence the infant was abused in the parents' home, there was no evidence the older sibling suffered any harm. (Id. at p. 147.) Finding "ample grounds to differentiate between" the two children, the court concluded "the risk to [the older child] of future abuse was strikingly less than the risk facing" the infant. (Ibid.) While the infant was "unable to articulate any abuse" and "completely isolated from the observations of mandated reporters of abuse," the older sibling was four years old at the time of the disposition hearing, had "good language skills," and "attended school where she had regular contact with teachers." (Ibid.)
The situation here is similar. There was no evidence Azucena's methamphetamine abuse prevented her from caring for Michael, Joseph, or Aaron or posed a substantial risk of harm to them. And any risk of harm to the three older children was significantly less than the risk to Zeak, who was entirely dependent on his caregiver to meet his needs and who had no language skills. The three older children, in contrast, could report any problems at home to various adults, including teachers, social workers, and relatives. (See In re Rocco M., supra, 1 Cal.App.4th at p. 825 [11-year-old child was "old enough to avoid the kinds of physical dangers which make infancy an inherently hazardous period of life"].)
The Department argues substantial evidence supported the order removing all four children because, although Azucena enrolled in a drug treatment program one month before the jurisdiction and disposition hearing, until that time Azucena denied she used methamphetamine. The Department is correct Azucena initially refused to take responsibility for using methamphetamine while pregnant, but she did enroll in a treatment program before the jurisdiction and disposition hearing, she consistently tested negative after the two positive tests, and as discussed, there was no evidence Azucena's substance abuse harmed the three older children.
The Department also contends Azucena's "questionable conduct as a whole" supported the removal order. The Department asserts Norma reported that Azucena left one visit early because one of the children was having a tantrum, that Azucena gave one of the children a cell phone "to spy on" Norma, and that Azucena "got mad at [Norma] for reporting the phone issue and stated that [she] should have kept [her] mouth shut." In addition, the Department asserts the paternal grandmother "reported that she wants nothing to do with" Azucena (but did not give a reason). This evidence did not satisfy the clear-and-convincing standard for removal. (See In re A.R. (2015) 235 Cal.App.4th 1102, 1115 ["'Removal "is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent."'"].)
DISPOSITION
The juvenile court's jurisdiction findings under section 300, subdivision (b), regarding Azucena and Zeak and the disposition order removing Zeak from Azucena are affirmed. The court's jurisdiction findings under section 300, subdivision (b), regarding Michael, Joseph, and Aaron based on Azucena's substance abuse, and the disposition orders removing Michael, Joseph, and Aaron from Azucena, are reversed. The juvenile court is directed to set aside its jurisdiction findings regarding Michael, Joseph, and Aaron based on Azucena's substance abuse, vacate its orders removing Michael, Joseph, and Aaron from Azucena, and enter new disposition orders based on current circumstances.
We concur: MARTINEZ, J. RAPHAEL, J.[*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.