Filed 2/27/13 In re A.C. CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

In re A.C., A Person Coming Under the                                B242615
Juvenile Court Law.
LOS ANGELES COUNTY                                                   (Los Angeles County
DEPARTMENT OF CHILDREN                                               Super. Ct. No. CK92049)
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

A.D.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County.
Steven Klaif, Juvenile Court Referee. . Affirmed

         Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.


         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.


                                       __________________________
       Mother A.D. appeals from the juvenile court orders taking jurisdiction of her son,
A.C., and removing the child from her custody. She contends there was insufficient
evidence to support those orders, and that the juvenile court erred by admitting certain
hearsay evidence. We disagree with her contentions and affirm those orders.

                          FACTS AND PROCEDURAL HISTORY1

A.     The February 24, 2012 Marina Del Rey Incident

       S.C. (father) and A.D. (mother) are the parents of A.C., and in February 2012 all
three lived together on father’s boat in Marina Del Rey. On February 24, 2012, father
brought the 10-month-old boy to a Sherman Oaks hospital because the child’s hands had
been severely scalded the day before. When a doctor recommended transferring the child
to a burn center, the father said he would take the child there himself. The hospital called
the police, who stopped the father soon after. The police saw that A.C.’s hands were red,
blistered, and very swollen, and the child was taken to the West Hills Burn Center.
       Father blamed the incident on a babysitter who he claimed was bathing A.C. and
failed to notice that the child was turning on the hot water. The police contacted the
woman father identified as the babysitter. Although she knew father, she had never met
the child and denied any involvement in the incident. Mother later contacted the police
and admitted that the burns happened while she was bathing A.C. According to mother,
A.C. turned on the hot water, which then splashed on his hands. Mother said she applied
burn ointment and bandaged the child’s hands, and did not believe the injuries called for
immediate medical attention. However, medical records and photographs showed
multiple second degree burns and a line around the child’s wrist (a burn sleeve) that both
a physician and a police officer investigating the case believed suggested the burns were
caused by immersing A.C.’s hands in hot water, something that would not occur unless
someone held his hands under water. Father then confessed that he had lied because child

1       As is the usual case with such appeals, the record is quite lengthy. We have
distilled the facts in order to fit the issues on appeal.

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protective services in Tulare County had already become involved with the family arising
from a recent incident that took place when they were living in Porterville.

B.     The January 14, 2012 Porterville Incident

       On January 14, 2012, Porterville police officers went to mother’s home in
response to a welfare check request by mother’s mother (maternal grandmother). The
maternal grandmother reported that mother had been mixing alcohol and prescription
pills. Officers who went to the house reported smelling a strong odor of natural gas. An
officer noticed that a knob for one of the cook top burners was on, but no flame was
present.
       The officer reported that he asked mother if the cook top burner was on. In
response, she walked toward the stove, turned the knob, and walked back toward him.
Instead of turning the knob off, however, mother turned it up higher. When the officer
brought that to mother’s attention, she returned to the stove and turned the burner knob to
the off position. Mother was stumbling, dragging her feet, and appeared otherwise
unsteady. When asked why the burner had been turned on, mother said she had been
using the stove to heat the house because the “air conditioner” had been broken for
several months.
       The officer saw broken glass on the living room floor. Mother said she dropped
the glass while taking it down from a rack. The officer saw red fluid on the glass shards
and asked mother if she had been drinking from the glass. Mother then changed her story
and said the glass fell and broke as she poured wine into it. However, the officer did not
see any wine spilled on the counter or the carpet.
       According to the officer’s report, mother kept walking back and forth through the
broken glass, even after he asked her to stop doing so, as if she had not heard what he had
said. Mother’s speech was slurred, her eyes were red and watery, and her breath smelled
like alcohol. When asked whether she had taken any prescription medications, mother
said she had taken her prescribed amount of Xanax earlier that afternoon. When asked if
she had been drinking, mother said she had some wine after taking her Xanax.

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        Another officer found A.C. in his bedroom. Mother and A.C. were led out of the
house and the front door was left open to allow the gas fumes to vent. The fire
department was called, but due to a communications error did not arrive for 30 minutes.
By the time they arrived, the firefighters could still smell the gas odor, but could not
detect any with their sensor gear. The police reported that mother continued to speak
with a heavy slur and to stumble about during this period. She was taken into custody
and a blood alcohol level test taken two hours after the police arrived showed a level of
0.08. The reporting officer believed that mother’s intoxication led her to turn the burner
on without making sure that a flame had ignited, placing herself and A.C. at risk of
serious harm.
        Mother was arrested for child endangerment, but was never charged in connection
with this incident and was released from jail after five days. She then met with Tulare
County child protective services authorities, and admitted she should not have taken a
Xanax that day. The Tulare County child protection officials said they would retain
custody of A.C. unless mother agreed to a safety plan that gave father sole custody of the
child and required that father not leave the child alone with her. Mother signed the plan,
but said she did so under duress.

C.      Petition and Hearing in Juvenile Court

        The Los Angeles County Department of Children and Family Services (DCFS)
filed a petition with the juvenile court asking that it assume jurisdiction of A.C. due to
father’s and mother’s conduct. (Welf. & Inst. Code, § 300, subd. (b).)2 Father eventually
did not contest the allegations and jurisdiction was assumed based on father’s conduct.
The allegations against mother were based on the January 2012 natural gas incident, the
February 2012 scalding incident, and mother’s alleged history of drug and alcohol abuse.
        Evidence admitted at the jurisdictional hearing included statements in DCFS
reports made by maternal grandmother and her husband that mother was a longtime

2       All further undesignated section references are to the Welfare and Institutions
Code.
                                              4
abuser of drugs and alcohol and had several automobile accidents while inebriated,
including one when A.C. was in the car. They said father used methamphetamine, had
stolen from them, and was sometimes violent and threatening. Father’s ex-wife was
interviewed and told DCFS that father had a problem with alcohol and drugs and that
mother was an alcoholic.
        Mother claimed she and maternal grandmother had a poor relationship, that
maternal grandmother had sued her, and that maternal grandmother made repeated false
reports that mother and father were endangering A.C. A social worker reported mother’s
statement that she had taken one Xanax and consumed a half glass of wine on the day of
the January 2012 natural gas incident. Mother contended that she had been cooking
chicken and that the oven, not the cook top, had been turned on. Mother said that she and
father moved from Porterville to Los Angeles because they were the victims of a witch
hunt.
        As for the February 2012 incident where A.C.’s hands were scalded by hot water,
mother said she was bathing the child in the kitchen sink of father’s boat. As A.C. sat in
the sink, she held him in place with one hand and used the other to reach for and turn off
the water pump. In that instant, A.C. turned on the hot water faucet and put his hand
under the ensuing spray of hot water. A foster family agency case worker named Cates
reported a conversation with mother where mother said the scalding incident occurred
because she forgot to turn off the water heater. A.C. turned the faucet on and submerged
his right hand, causing the sleeve burn on his wrist, and also had hot water splash on his
left hand. She did not take A.C. to the doctor because his hands were merely a little red.
Following medical advice she read on-line, mother applied burn ointment and bandaged
A.C.’s hands. When they appeared worse the next day, father took the child to the
hospital.
        Los Angeles police detective Luke said the scalded areas contained “sleeve
burns,” a visible line at the end of the burn area that indicated submersion. If the child
had accidentally submerged his hand in hot water, he would have quickly pulled it out,
the detective said. Photographs taken of A.C.’s arms and hands right after the incident

                                              5
confirm the presence of these sleeve burns, and also show that major portions of the
child’s hands and lower wrists were covered with red and blistered areas. A Los Angeles
sheriff’s detective who investigated the scalding incident said mother willingly took and
passed a polygraph exam. An emergency room doctor who saw A.C. said only
40 percent of the hand had been burned, perhaps indicating partial instead of total
immersion of the hand.3 The detective closed the case because there was insufficient
evidence of a crime, but she thought mother was “really ‘woo-hoo’ out there” and was
addicted to her medication. A doctor at the Grossman Burn Center who reviewed the
photographs and A.C.’s medical records opined that the asymmetrical burn patterns were
consistent with splash burns, not immersion burns.
       Mother testified at the jurisdictional hearing and denied the statements and
conduct attributed to her by various police officers and social workers. According to
mother, when the police arrived at her Porterville home on January 14, 2012, she refused
to let them in without a warrant. At that point, the officers laughed, said they smelled
gas, and pushed their way into the house. According to mother, her range had an electric
oven with a gas cook top. She was cooking a chicken in the electric oven at the time, and
the gas cook top was not on. She denied ever telling the police that she had turned on the
gas burners in order to heat the home. She never smelled natural gas in the home that
night. She admitted to having two glasses of wine that afternoon, but denied having
taken any Xanax or having told the officers that she had. Instead, she told them that she
had filled her Xanax prescription that day but did not take any. The firefighters who
arrived later were angry with the police for calling them out there for no reason, she
claimed.
       When the police took A.C. away that night, she said they were violating her rights.
In response, they handcuffed her and took her to a hospital for blood tests. Those tests
showed a blood alcohol level of 0.08, but did not show the presence of any drugs. When

3      The report states that 4 percent of A.C.’s hands had been burned, but we view that
as a typographical error based on the photos, which depict burns and blisters covering a
significant portion of the child’s hands and wrists.
                                             6
she was released from jail five days later, she signed the safety plan presented by Tulare
County child protective services under duress. She understood that the agreement
required her to take part in parenting classes and drug and alcohol rehabilitation
counseling. She did not do so because she and father moved with A.C. to father’s boat in
Marina Del Rey. They did so in part because they had been robbed, and in part because
the police were coming to their house daily. Those police visits were instigated by
maternal grandmother.
         Mother admitted to a conviction for drunken driving in 2000, which required her
to attend meetings of Alcoholics Anonymous (AA). Even though the police report from
that incident stated that mother had driven off the road and crashed into a tree, she denied
that account of what happened. Instead, rain caused her car to hydroplane, sending it into
a median where it became stuck in the mud. Mother could not recall much about her AA
meetings other than watching movies about car accidents and doing group therapy. She
denied that she was ever told by AA that she should never again drink alcohol.
         Mother repeated her claim that A.C. scalded his hands in the bathtub by turning on
the hot water faucet himself. She was not drinking alcohol or taking Xanax at the time.
She had been taking drug and alcohol tests for DCFS and always tested negative.
         The juvenile court found that mother was “not very credible,” especially given her
several versions of the various events that conflicted not just with the accounts of police
officers and social workers, but with themselves. Although the burns that A.C. received
were suspicious, the juvenile court could not say the evidence was strong enough to
warrant a finding that they had been intentional. The court also found that mother had an
ongoing substance abuse problem. Accordingly, after amending the allegations of the
DCFS petition, the court assumed jurisdiction of A.C. under subdivision (b) of section
300 on three grounds: (1) the January 2012 incident where mother’s drug and alcohol
intoxication caused her to flood the house with natural gas; (2) the February 2012 burns
to A.C.’s hands, which the court found had been caused by mother’s “unreasonable and
neglectful acts”; and (3) mother’s recent history of abusing both alcohol and prescription
drugs.

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       The court then ordered A.C. removed from the custody of parents and placed in
foster care, with mother and father ordered to receive reunification services.
       On appeal, mother contends that there was insufficient evidence that she posed an
ongoing risk of harm to A.C. pursuant to any of the three sustained allegations. She also
contends that the juvenile court violated her due process rights by admitting in evidence
the statements of the maternal grandmother and her husband because those witnesses did
not testify at the jurisdictional hearing.4

                                              DISCUSSION

1.     Applicable Law and Standard of Review

       The juvenile court assumed jurisdiction of A.C. after sustaining three allegations
under section 300, subdivision (b), which applies 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 the failure or inability of his or her parent or guardian to adequately supervise or
protect the child, . . . or by the willful or negligent failure of the parent or guardian to
provide the child with adequate food, clothing, shelter, or medical treatment, or by the
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.” This requires
proof under the preponderance of the evidence standard. (§ 355, subd. (a).) Jurisdiction
may not be assumed based on a single incident. Instead, it must be shown that at the time
of the jurisdictional hearing there is sufficient evidence of a substantial risk that the harm
will reoccur. (In re J.N. (2010) 181 Cal.App.4th 1010, 1023.) However, evidence of past



4      DCFS contends that because jurisdiction of A.C. was also assumed due to father’s
conduct that we should affirm as to mother on the ground that jurisdictional findings as to
one parent is good against the other. (In re P.A. (2007) 155 Cal.App.4th 1197, 1212.) As
mother points out, however, an outright reversal as to her would allow her to obtain
custody of A.C. as a nonoffending parent. (§ 361.2, subds. (a), (b).) Due to this potential
adverse consequence, we therefore exercise our discretion to reach the merits of mother’s
appeal. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
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conduct may be probative of current conditions. (In re James R. (2009) 176 Cal.App.4th
129, 135-136.)
       Once jurisdiction exists, the juvenile court may not take physical custody of the
child away from the parent unless it finds by clear and convincing evidence that “[t]here
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 parents’ custody. (§ 361, subd. (c)(1).)
       The standard of appellate review from both the jurisdictional and dispositional
orders is substantial evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 574-575, 578.)

2.     There Was Substantial Evidence to Support Both Orders

       Mother is correct that a single instance of harm, standing alone, is not enough to
warrant assuming dependency jurisdiction over a child. Instead, there must be some
reason beyond mere speculation to warrant a finding that a substantial risk of harm exists
at the time of the jurisdictional hearing. (In re J.N., supra, 181 Cal.App.4th at p. 1023.)
Mother contends there is insufficient evidence that she has a substance abuse problem,
and that there is no evidence of a risk that she will repeat either the January natural gas
incident or the February scalding incident. We disagree.
       We begin with the substance abuse allegation. Mother was convicted of drunken
driving in 2000. She denied the statements in the police report that she crashed into a
tree, contending instead that rainwater caused her car to skid off the road and become
stuck in the mud. She recalled little if anything from the AA program she attended
following that conviction. Maternal grandmother reported that mother had a years-long
drug and alcohol abuse problem. When the police showed up at mother’s Porterville
house to check on her welfare in January 2012, they found her highly intoxicated,
slurring her speech and stumbling about. She told the police that she had been drinking a
small amount of wine and had taken a Xanax. Her blood alcohol level two hours later
was .08. She also told DCFS that she had taken a Xanax that day. Later on, however,

                                              9
she denied taking Xanax or telling the police that she had done so, denied ever turning
the gas cook top on, and essentially accused the police of fabricating the natural gas
incident in order to gain entry to her home. She also claimed to have consumed just
two glasses of wine, but her blood alcohol level of 0.08 two hours after the police arrived
led a DCFS social worker to conclude that mother had consumed a bottle of wine. A
police detective who interviewed mother after the February scalding incident thought
mother was “out there” and appeared to be abusing her prescription medication. At a
minimum, this evidence permits the inference that mother had a long-term, ongoing
substance abuse problem which, instead of admitting and addressing, she continued to
deny, minimize, and blame on others.
       As for the natural gas and scalding incidents, mother does not deny that they
occurred or that they led to actual serious harm or posed a risk of such harm. We do not
see the issue as whether there is evidence that those precise incidents will reoccur.
Instead, the question is whether mother is so careless and inattentive, whether due to her
substance abuse problem or not, that she cannot perform everyday tasks of childcare
without putting A.C. at risk of serious harm.
       In January 2012, after ingesting both Xanax and what appears to have been a
substantial amount of wine, mother turned on a gas burner to heat the house and did not
notice that the flame failed to ignite. As a result, A.C. was put at grave risk. Although
mother signed a safety plan with Tulare County child protective services that called for
her to undergo counseling and not be alone with the child, her response was to move out
of the area with father and A.C. Although mother contended she did so at least in part in
response to a witch hunt, the juvenile court could infer that she did so to avoid
confronting the realities of her situation and the risk she posed to the child.
       Little more than a month later, the child’s hands were severely scalded while
mother bathed him. Although she denied taking drugs or alcohol at that time, the
juvenile court was free to disbelieve her testimony, especially given her history of
substance abuse and the circumstances surrounding the January natural gas incident.
Given mother’s continued denial of her substance abuse problems, and her penchant for

                                              10
either denying any wrongdoing or blaming others, we believe the juvenile court could
infer that mother continued to pose a risk of inflicting substantial harm upon A.C. at the
time of the jurisdictional hearing.
       The same evidence supports the juvenile court’s dispositional order because the
evidence shows that there was a substantial danger to A.C.’s health and safety that could
not be prevented without removing him from the home, especially in light of mother’s
decision to move away rather than comply with the Tulare County safety plan.

3.     Admission of Maternal Grandparents’ Hearsay Statements

       Mother raised a hearsay objection to admitting the statement of maternal
grandmother and her husband that were contained in DCFS reports.5 Those witnesses
had been subpoenaed by DCFS and, with the consent of the parties, were allowed to
testify by phone. However, the two witnesses did not answer their phone when the court
tried to call them. As a result, the court said it would allow the statements in evidence,
would not base any findings solely on those statements, and would instead give them the
weight they were due.
       Mother contends the juvenile court violated her constitutional rights to confront
and cross-examine those witnesses. She acknowledges that under section 355, the
hearsay evidence was admissible so long as it was not the sole evidentiary basis for a
jurisdictional finding or any ultimate fact upon which such a finding was based. (§ 355,
subd. (c)(1).) However, she contends that the juvenile court violated subdivision (d) of
that section, which granted her the unlimited right to subpoena witnesses whose
statements were contained in DCFS reports.6



5     Mother also made hearsay objections to other witness statements contained in
DCFS reports, but on appeal challenges only those of maternal grandmother and her
husband.
6
       Frankly, it is hard to discern the precise nature of mother’s complaint from her
appellate brief. The contention that we summarize in the text is the closest we could
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       To the extent we comprehend this argument, it is not only unsupported by record
citations, it is contradicted by the record itself. DCFS subpoenaed the witnesses, and
mother does not contend that there was some defect in those subpoenas or that DCFS or
the juvenile court somehow interfered with her ability to serve duplicative subpoenas of
her own. When the witnesses failed to appear telephonically pursuant to the parties’
earlier agreement, the juvenile court complied with section 355 by ruling their statements
were admissible, but by determining that those statements would be given only the
weight they were due and would not serve as the sole basis for any findings. Nothing in
the record shows that the court relied solely on those statements to make any of its
findings. We find no error.

                                     DISPOSITION

       The juvenile court’s jurisdictional and dispositional orders are affirmed as to
mother.




                                                 RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              GRIMES, J.




come to a direct assertion by her. Any other issues she may contend were raised are
therefore deemed waived. (Luckett v. Kaylee (2007) 147 Cal.App.4th 919, 927, fn. 11.)
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