Opinion
D076666
03-11-2020
In re A.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. B.C. et al., Defendants and Appellants.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant B.C. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant D.F. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4033) APPEAL from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant B.C. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant D.F. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
B.C. (Mother) and D.F. (Father) appeal from jurisdiction and disposition orders of the juvenile court declaring their minor child, Alexander C. (Alex), a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), and removing the child from Mother's and Father's care. They contend that the evidence was not sufficient to support the juvenile court's findings regarding jurisdiction or removal. In addition, Mother contends that the juvenile court improperly relied on hearsay statements contained in the reports submitted by the San Diego County Health and Human Services Agency (the Agency) to support its jurisdictional findings. We disagree and affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother's and Father's History of Drug Abuse
Both Mother and Father have an extensive history of substance abuse. Mother began using drugs, including methamphetamine and heroin, approximately 16 years ago, when she was 17 years old. She has participated in several treatment programs over the years. Father began using drugs primarily marijuana and methamphetamine, approximately 35 years ago, at around the age of 16, and has an extensive criminal record as a result of his substance abuse. He used controlled substances almost daily from the age of 33 to age 45. He has also participated in a number of treatment programs over the years.
Mother's first child was removed from her care as an infant in 2016. Mother tested positive for drug use three times during her pregnancy and the child tested positive for methamphetamine and marijuana at birth. Mother was offered reunification services, but her participation was inconsistent. In April 2017, the Agency asked the juvenile court to limit Mother to supervised visitation, noting that Mother's drug tests were diluted and that she was not attending her drug treatment program or therapy. The juvenile court ultimately issued exit orders awarding the child's father, T.D., full physical custody, and granting Mother short, unsupervised visits.
Agency Referrals and Investigation Following Alex's Birth
Alex, Mother's second child, was born in September 2017. The Agency received a referral indicating that Mother was using methamphetamine and heroin during her pregnancy. Mother and Alex both tested negative for drugs at birth and the referral was closed as unfounded.
In July 2018, the Agency received another referral indicating that Mother was using methamphetamine, that Father was aware of Mother's drug use, and that Father was also using drugs. The Agency attempted to locate the family several times but was unable to do so, and the case was closed as inconclusive.
In April 2019, when Alex was approximately one and one-half years old, T.D. reported to the Agency that he had seen Father smoking methamphetamine in the home while Alex was present. T.D. also reported seeing a marijuana pipe on the table, accessible to Alex. He expressed concerns that Mother was aware of Father's drug use but still allowed Father to watch Alex alone, and that Mother had relapsed, as well. He said that he believed that Mother was still breastfeeding, and that Alex had therefore been exposed to methamphetamine, marijuana, and alcohol. During a follow-up interview with an Agency social worker on May 21, T.D. said that Mother had admitted to him that she had relapsed and that he had seen methamphetamine in her purse as recently as May 13, 2019.
The Agency contacted Father at the family home on May 21, 2019. Father admitted using "crystal and pot" after Alex was born but said that he had been clean for five months. He said that he stopped using drugs because he could not afford them and because they were "bad." Father confirmed that Mother was still breastfeeding Alex and that she was not in treatment, but stated that he had no concerns about Mother. The social worker noted a strong odor of marijuana in the home, but Father denied having any knowledge regarding the source of the odor. The Agency contacted Mother via text message the same day. Mother responded that she was clean, Alex was fine, and she had nothing further to say to the Agency. Both Mother and Father agreed to drug test on May 21, 2019, but neither appeared at the testing facility on that date.
On May 25, 2019, the sheriff conducted a welfare check and arrested Father on an outstanding warrant related to a possession charge that Father had incurred the previous December. Father was subsequently released from custody. The Agency requested another welfare check on June 10, 2019. The responding officer indicated that there was no sign of drug use as to either parent and no drug paraphernalia present.
On June 13, 2019, the Agency served Mother and Father with a warrant to search the home and to take Alex to the Chadwick Center at Rady Children's Hospital for a neglect exam. Mother denied using any drugs and said that she had stopped breastfeeding Alex approximately six months earlier. She admitted having used methamphetamine and heroin in the past but stated that she had completed the McAlister program in September 2017 and had been clean since Alex was born. She said that she had broken up with Father because he started using methamphetamine and marijuana again. Mother stated that Father had never used drugs around Alex but that he had come home high.
Mother arrived about 30 to 45 minutes late to the Chadwick Center and displayed erratic behavior during the appointment. She was pacing, sweating, had pressured speech, stated "I'm tripping" at one point, moved up and down in her chair in a hyperkinetic fashion, and answered the physician's questions in a sing-song voice. Both the physician and the nurse believed that Mother was under the influence and strongly recommended that she not be permitted to take Alex home with her.
When the nurse began to prepare Alex for a urine collection, Mother stated, "I left my keys in the ignition," and asked to take Alex with her to the car. The nurse said that Alex would have to remain in the exam room. Mother ran out of the room and returned shortly thereafter. Around the same time, the Agency social worker stepped out of the room to consult with a supervisor. The social worker then called the San Diego Police Department and requested that they conduct a sobriety test on Mother. The responding officers determined that Mother was not under the influence. Despite that determination, the physician concluded, "Mom's behavior during the appointment today is very concerning for current substance abuse, such as methamphetamine. . . . Returning this child to an unchanged environment puts him at risk for injury, including death."
The next day, T.D. told the Agency social worker that Mother had used a bottle of urine to fill the test sample for Alex during the neglect exam. He said that Mother had told him that she had purchased clean urine and that she was worried about the temperature of the urine and about getting more for her own test. The social worker spoke to the nurse who was present at the appointment. The nurse confirmed that she had turned her back and said, "[t]he mother had just come back from going out to the car and she was messing with his diaper and then she said 'oh he did it,' when he peed." A drug screen on the urine came back negative.
The Agency also asked Mother to drug test on June 14, the same day as the neglect exam. Mother resisted and, when pressed, indicated that she "took a hit of marijuana a few weeks ago." She eventually agreed to test but, on June 16, before the results came back, Mother contacted the social worker and said that she was revoking her authorization for all previous drug tests and would not test again without a warrant. The Agency received the results of Mother's test a few days later. The results were positive for methamphetamine and marijuana.
The Agency also spoke with Father on June 14. He said he was not in San Diego and had not been able to get ahold of Mother, but that she had told him not to drug test. He admitted to having used methamphetamine the week of May 21, when the Agency social worker had first come to speak with him, but added that he did not agree with being on drugs around children and indicated that he wanted to go to a drug treatment program. He told the Agency that he believed that Mother was still breastfeeding Alex and said, "I think [she] is clean but I don't know now."
On June 21, the social worker called Mother and told her that her latest test had come back positive for methamphetamine and marijuana. Mother said that she had used methamphetamine a couple of times to stay awake for night shifts at work, but that she had not used around Alex. Mother denied tampering with the urine for Alex's recent test.
On June 28, the Agency social worker received a call from a confidential source. The caller told the social worker that they lived on the same property as Mother, that Mother's house was a "drug house" and that "homeless Riverbed people . . . are always coming and going there and doing drugs there."
Juvenile Dependency Petition and Associated Proceedings
On July 5, 2019, the Agency filed a juvenile dependency petition on behalf of Alex. The Agency alleged that Alex was at risk of suffering serious physical harm or illness as a result of the parents' inability to care for him due to their continued substance abuse. The juvenile court issued a protective custody warrant for Alex and, on July 9, the court found that the Agency had made a prima facie showing on the petition and ordered that Alex be detained outside of the home. The court granted Father presumed father status and scheduled a jurisdiction and disposition hearing for July 30.
The Agency social worker spoke with Mother and Father on July 17 and 18. Both parents denied that Father was using drugs and said that Father had been smoking a hookah device when T.D. saw him in April. Father admitted to having used drugs when Alex was younger, but said that he had been sober since December 2018. Mother said that T.D. had made the report to the Agency to gain control over Alex and her other child so that he could gain control over her. She denied being under the influence at the pediatrician's office and said that she was upset because the social worker had taken Alex and that she did not know where they were going. However, she subsequently admitted to having used methamphetamine in June, and stated she may have used the night before the appointment. She maintained that she was not around Alex when she used methamphetamine and that she regretted using. She requested a transdermal monitoring patch so that the Agency could test her for the use of controlled substances more frequently.
The Agency requested that both parents drug test on July 23, 2019. Father said that he had been sick and was unable to drug test. The record suggests that Mother did not respond and also did not test.
Both parents contested jurisdiction and placement at the hearing on July 30, and the court set a contested jurisdiction and disposition hearing for September 25, 2019.
Mother enrolled in a treatment program and participated regularly. She continued to test positive for marijuana through July and August, but the levels decreased over time. Mother also tested positive for alcohol on August 20, 2019. She told the Agency that she drank beer that was labeled nonalcoholic at a wedding, and that her treatment counselor told her that nonalcoholic beer had a very low amount of alcohol that showed up on the test. However, the treatment counselor told the Agency that she had asked Mother about the positive test for alcohol and Mother had responded that she was not sure why it was positive.
On August 1, 2019, Father told the Agency that he was also enrolled in a treatment program and provided copies of negative drug tests results from July 10 and July 17. The Agency had trouble contacting Father in September and Mother expressed concern that Father was "possibly" using drugs again. Around the same time, the Agency reported that it was "unclear" whether Father was participating in services. Father attended a settlement conference on September 9, 2019. He told the Agency social worker that his phone was not working and that he had not received the Agency's messages. Father indicated that he was in treatment and his treatment counselor confirmed that he was. The Agency asked Father to submit to a hair follicle test, but Father declined.
The Agency social worker sent Mother and Father individual text messages on September 17 asking each of them to drug test. Father said that he would but then left the social worker two messages stating that he did not have his identification and that he could not test. Mother responded on September 19 and stated that her phone had been stolen, but indicated that she would test that day. Mother did test on September 19 and the results were negative.
On September 23, Father's treatment counselor reported that Father had been testing approximately once per week and was testing positive for alcohol but no other substances. Father admitted to drinking alcohol and the treatment counselor told him that he would have to abstain from alcohol as well as drugs during treatment. The treatment counselor told the social worker that Father had reported his sober date as December 2018 for methamphetamine and February 2019 for marijuana.
Contested Jurisdiction and Disposition Hearing
The juvenile court held a combined jurisdiction and disposition hearing on September 25, 2019. The Agency entered its reports in evidence, and Mother and Father each entered reports regarding their treatment. None of the parties presented any witnesses and neither Mother nor Father asked to cross-examine the Agency social worker. The Agency asserted that Alex remained at risk of harm if he were to be returned to either parent, given his young age, both parents' histories with substance abuse, Mother's admitted use of methamphetamine, and Father's evasiveness with respect to drug testing. Minor's counsel joined in the Agency's arguments and recommendations.
The juvenile court acknowledged that both Mother and Father were working hard in treatment. However, based on the totality of the evidence, including the parents' lengthy histories of addiction, recent admissions of relapse, and missed drug tests, the court found that the parents were not secure in their sobriety and that it was not safe for Alex to be returned to their care. The court therefore found jurisdiction pursuant to section 300, subdivision (b), declared Alex a dependent of the court, and found by clear and convincing evidence that removal was necessary.
Mother and Father appeal.
ANALYSIS
Mother and Father challenge the sufficiency of the evidence supporting the juvenile court's jurisdictional findings as well as the juvenile court's finding that it was necessary to remove Alex from their care. Mother also asserts that the juvenile court improperly relied on the hearsay statements of T.D. and other witnesses contained in the Agency's reports to support its jurisdictional findings.
I. Standard of Review
We review questions regarding the sufficiency of the evidence supporting the juvenile court's findings for substantial evidence. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We draw all reasonable inferences in support of the court's findings and affirm the court's orders as long as there is substantial evidence in the record, viewed as a whole, from which a reasonable trier of fact could make the findings in question. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re J.N. (2010) 181 Cal.App.4th 1010, 1022; In re Drake M. (2012) 211 Cal.App.4th 754, 763 (Drake M.).) We do not reweigh the evidence or consider whether the court could have drawn a different conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).) Mother and Father, as the appellants, bear the burden of demonstrating a lack of substantial evidence. (Ibid.; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).)
II. Substantial Evidence Supports the Juvenile Court's Findings
A. The Juvenile Court's Jurisdictional Findings
The juvenile court may assert jurisdiction over a child pursuant to section 300, subdivision (b) if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the inability of the parent to provide regular care for the child due to the parent's substance abuse. The juvenile court must find that a child is at risk of harm at the time of the jurisdiction hearing, but "the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216 (Christopher R.).) Past conduct is often a good predictor of future conduct, and the court may consider past events when determining whether a child is presently at risk of suffering serious physical harm or illness. (Ibid.; In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170; In re J.O. (2009) 178 Cal.App.4th 139, 154.)
There is substantial evidence to support the juvenile court's finding that Alex was presently at risk of suffering serious harm as a result of Mother's and Father's substance abuse. Mother and Father each admitted having a lengthy history of substance abuse, beginning in their teenage years. Both had participated in multiple treatment programs in the past, both had relapsed, and both admitted having used drugs, including methamphetamine, at least once during the pendency of this case. In addition, a physician noted that Mother's behavior was consistent with methamphetamine use, and both parents suggested that the other might have been using controlled substances in the months leading up to the jurisdiction and disposition hearing. Finally, both parents were at times evasive and failed to submit to drug testing as requested by the Agency.
Mother and Father assert that there was no direct evidence of neglect and insufficient evidence that their substance abuse put Alex at a substantial risk for harm. We disagree. As an initial matter, there was at least some evidence indicating that Alex had already suffered harm. Specifically, there was evidence that Mother was breastfeeding Alex and, thus, directly exposing Alex to methamphetamine. In addition, T.D. reported seeing Father use methamphetamine in Alex's presence, and the social worker noted a strong odor of marijuana in the family home, both of which support an inference that Alex was directly exposed to drugs in the home.
Mother argues that Alex tested negative for drug exposure and that he was on track developmentally. However, there was evidence that Mother tampered with the urine collection at Alex's neglect exam and, while it is encouraging that Alex was on track developmentally, that does not negate the evidence suggesting other concerns.
Moreover, even if Alex had not been harmed already, there was substantial evidence that he was at significant risk of future harm. As Mother concedes, the juvenile court may take jurisdiction over a child based solely on a finding that the child is at substantial risk of harm at the time of the jurisdictional hearing. (See In re J.M. (2019) 40 Cal.App.5th 913, 921; In re Yolanda L. (2017) 7 Cal.App.5th 987, 993; In re J.K. (2009) 174 Cal.App.4th 1426, 1435.) As discussed, Mother's and Father's ongoing substance abuse placed Alex, a child of tender years, at significant risk of future harm. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824-825 (Rocco M.) [discussing cases involving inherent risk to children ages three and younger]; Drake M., supra, 211 Cal.App.4th at p. 767 [parental substance abuse is evidence of inability to provide adequate care where child at issue is a child of tender years].)
Mother and Father assert that their substance abuse was not sufficient to support jurisdiction, but the cases that they rely on do not support their position. As an initial matter, many of the cases that Mother and Father discuss deal with occasional marijuana use. (See, e.g., Drake M., supra, 211 Cal.App.4th at p. 769 [a parent's use of marijuana, without more, was not sufficient to support jurisdiction]; In re Alexis E. (2009) 171 Cal.App.4th 438 [same]; In re David M. (2005) 134 Cal.App.4th 822, 830 [Mother's use of marijuana and mental health conditions not sufficient to support jurisdiction]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346 [positive test for marijuana and subsequent missed tests not sufficient, without more, to support jurisdiction].) By contrast, Mother and Father had been abusing controlled substances, including methamphetamine and heroin, since they were teenagers, Mother had already lost custody of another child due to her substance abuse, and both parents admitted to having used methamphetamine during the pendency of this case.
We acknowledge that some cases have concluded that methamphetamine use, alone, also is not sufficient to support jurisdiction, but those cases typically involve older children and limited or single instance relapses. (See, e.g., In re Rebecca C. (2014) 228 Cal.App.4th 720, 727-728 [mother's past substance abuse and recent one-time "relapse" was not sufficient to support jurisdiction over teenage daughter]; cf. In re L.W. (2019) 32 Cal.App.5th 840 [discussing Rebecca C. but concluding there was substantial evidence of a substantial risk of future harm where the mother was arrested twice for driving under the influence].) Where a child is of tender years, as Alex is here, a presumption arises that substance abuse renders a parent unable to provide adequate care, resulting in a substantial risk of harm to the child. (See Rocco M., supra, 1 Cal.App.4th at pp. 824-825; Drake M., supra, 211 Cal.App.4th at p. 767.) In addition, although they were both in treatment by the time of the jurisdiction and disposition hearing, both Mother and Father initially evaded testing, raising an inference that their methamphetamine use during the pendency of this case was not limited to a single incident. (See Christopher R., supra, 225 Cal.App.4th at pp. 1216-1219 [Mother's false denial of drug use and missed drug tests demonstrated poor judgment and willingness to endanger and was sufficient to support jurisdiction over seven-, six-, and three-year old children].)
In his reply brief, Father asserts that this case is similar to In re L.C. (2019) 38 Cal.App.5th 646. We disagree. In that case, the court found that the father's use of methamphetamine approximately six times in a period of one year was not sufficient to support jurisdiction over a six-year-old child, in part because the evidence was not sufficient to establish that the father abused methamphetamine; he had no prior history of drug use and had never purchased or craved the drug. (Id. at 653.) Here, in contrast, Father concedes that he has a lengthy history of substance abuse and that he is a substance abuser.
Mother asserts that the child of tender years presumption is overcome in this case because Alex was well taken care of and on track developmentally but, as discussed, there was also evidence indicating that Alex had already been exposed to drugs in the home, including through Mother's breastmilk. (See Christopher R., supra, 225 Cal.App.4th at p. 1220 [presumption not overcome where parent has demonstrated a willingness to endanger the child].) We do not reweigh the evidence on appeal, and instead consider only whether there is substantial evidence to support the juvenile court's findings. (In re I.J. (2013) 56 Cal.4th 766, 773; In re R.V. (2012) 208 Cal.App.4th 837, 843.) Mother and Father also assert that any risk to Alex was minimized because both were in treatment, but each had been in treatment for only a few short months and both were initially less than forthcoming about their recent drug use. (See Christopher R., at pp. 1216-1219.)
Accordingly, we conclude that there was sufficient evidence to support the juvenile court's findings that neither parent was secure in their sobriety and that their substance abuse placed Alex at a significant risk of harm.
B. The Juvenile Court's Consideration of Hearsay Statements in the Agency's Reports
In a related argument, Mother asserts that the juvenile court improperly relied on hearsay statements contained in the Agency's reports to support its jurisdictional findings. She contends that the court was precluded from basing its findings on those statements, alone, pursuant to section 355, subdivision (c)(1), and that the remaining evidence was not sufficient to corroborate the hearsay or to independently support the findings.
Section 355, subdivision (c)(1) states: "If a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the [enumerated] exceptions." Section 355, subdivision (c)(1)(D) indicates one such exception, where "[t]he hearsay declarant is available for cross-examination," and further provides, "[f]or purposes of this section, the court may deem a witness available for cross-examination if it determines that the witness is on telephone standby and can be present in court within a reasonable time of a request to examine the witness."
Mother and Father each filed written objections to the statements made by T.D. that appeared in the Agency's reports. Mother also objected to statements made by a paternal cousin and two references to a statement made by a confidential neighbor that were included in the Agency's reports. The parents alleged that these statements were hearsay and could not be used to support a jurisdictional finding unless the Agency made the declarants available for cross-examination.
At the jurisdiction and disposition hearing on September 25, the juvenile court found that T.D. and the paternal cousin had been made available for cross-examination because the Agency had provided contact information for them and the parents could have subpoenaed them. The court acknowledged that it could not rely solely on the statements of the confidential neighbor—who was not made available for cross-examination—and further stated that it would consider arguments regarding the appropriate weight of the contested hearsay statements. The court addressed the issue again at the conclusion of the hearing, stating, "I do want to make sure the record is clear that the court's findings are not based on any one hearsay statement or on the strength of the hearsay statements combined alone. While the court has taken into account what's contained in those statements, the decision today is based on the totality of evidence."
We note the juvenile court's ruling for context but, given the court's later statements indicating that it was not relying solely on the hearsay statements, and Mother's limited contentions on appeal, we need not and expressly do not offer any opinion regarding whether the witnesses were in fact "available for cross-examination" within the context of section 355, subdivision (c)(1)(D).
Mother now asserts that the juvenile court necessarily relied solely on the hearsay statements, despite the court's express statement to the contrary. We disagree. The juvenile court set forth its reasoning in detail and specifically referred to evidence unrelated to the hearsay statements that Mother and Father had objected to, including, but not limited to, admissions of long-term drug use and recent relapses by both parents, missed drug tests, and recent test results indicating drug use by Mother and alcohol use by both parents.
Mother points out that the juvenile court referred to evidence of recent drug use in the home and asserts that there was no such evidence other than T.D.'s hearsay statements. To the contrary, the social worker noted a strong odor of marijuana inside the house on her first visit to the family home.
Mother asserts that the juvenile court struck the allegations that she was under the influence at Alex's neglect exam, based on the sobriety test conducted by the police, but then stated that there was evidence of "concerning bizarre behavior by mom which is best explained by methamphetamine use." Mother argues that these statements are inconsistent. However, Mother fails to acknowledge that she, herself, told the social worker that she "might" have used methamphetamine the night before the appointment and that the bizzarre behavior could have been associated with that use, or from her "coming down" from the use, even if she was no longer directly under the influence of the drug. Thus, even if Mother was not directly under the influence at the appointment, the physician's opinion that she was using methamphetamine and that such use put Alex at risk constitutes substantial evidence supporting jurisdiction that the court was entitled to consider.
We therefore conclude that the record establishes that the juvenile court did not rely solely on any of the hearsay statements contained in the Agency's reports but rather, considered them as part of the totality of the evidence, as is permitted by Section 355, subdivision (c)(1).
C. The Juvenile Court's Findings Regarding Removal
Before removing a child from his or her home, the juvenile court must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home, and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Henry V. (2004) 119 Cal.App.4th 522, 528-529 (Henry V.).) Where there is a nonoffending parent, the juvenile court must consider the option of removing the offending parent from the home and allowing the nonoffending parent to retain physical custody. (§ 361, subd. (c)(1)(A)-(B).) As with jurisdiction, it is appropriate for the juvenile court to consider a parent's past conduct as well as present circumstances in making decisions regarding removal. (In re John M. (2012) 212 Cal.App.4th 1117, 1126; In re S.O. (2002) 103 Cal.App.4th 453, 461; In re Troy D. (1989) 215 Cal.App.3d 889, 900.) On appeal, we determine whether substantial evidence supports the findings of the juvenile court, made by the clear and convincing evidence standard of proof. (Henry V., at p. 529.)
As discussed ante in section II, Mother and Father both have a significant history of substance abuse and both admitted to using methamphetamine during the pendency of the case. Importantly in the context of removal, both had avoided drug testing and were less than straightforward with the Agency and their treatment counselors regarding their recent use of methamphetamine. Mother initially denied having used methamphetamine and admitted that she had relapsed only after receiving test results that confirmed the use. In addition, she avoided speaking with the Agency social worker altogether at the outset of the case, which precluded the Agency from creating a safety plan or giving Mother referrals for treatment. Father also avoided testing and told his treatment counselor that he had a sobriety date of December 2018, but had previously admitted having used methamphetamine as recently as May 2019. Finally, both parents had recently used alcohol, which the juvenile court found concerning given the fact that both were in treatment and were therefore aware that they were subject to increased monitoring.
Mother and Father raise many of the same arguments as they did in the context of the juvenile court's jurisdictional findings. We find their arguments unpersuasive for many of the same reasons. The parents assert that there was insufficient evidence of neglect or of a current risk of harm but they bear the burden of demonstrating a lack of substantial evidence and have failed to meet that burden here. (See Dakota H., supra, 132 Cal.App.4th at p. 228; L.Y.L., supra, 101 Cal.App.4th at p. 947.) As discussed ante in section II.A., there was sufficient evidence to support the juvenile court's conclusion that neither parent was secure in their sobriety and that it was not safe for Alex to be returned to their care.
Father suggests that the juvenile court could have placed Alex in his care and both parents suggest that Alex could have remained in their care with additional supervision by the Agency. (See, e.g., Henry V., supra, 119 Cal.App.4th at p. 529 [removal not necessary where social worker acknowledged that there were potential methods for in-home supervision]; In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) However, as discussed, both parents were evasive at the outset of the case and each had been in treatment for only a relatively short period of time. The evidence thus supports the juvenile court's finding that both parents were still at significant risk for relapse, as well as an inference that in-home supervision would not be sufficient to protect Alex.
In addition, with respect to Father's request that the juvenile court place Alex with him, there was evidence that Father did not have a stable home. Father had been working out of town, was no longer living with Mother, and had not disclosed to the Agency where he was living. Father suggested that he would live with a paternal aunt if the court were to place Alex with him, but the Agency had not approved that home and both parents had previously expressed concerns about Alex living there.
In sum, although we are hopeful that Mother and Father will remain committed to their sobriety, we conclude that there was substantial evidence to support the juvenile court's findings, as of September 25, 2019, that Alex would be at substantial risk of harm if returned home, and that there were no reasonable means short of removal to protect him.
DISPOSITION
The orders are affirmed.
AARON, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.