Filed 8/12/14 In re A.M. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re A.M., a Person Coming Under the                                B253191
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK63081)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

RICKIE M.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County. Julie Fox
Blackshaw, Judge. Affirmed.
         Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
                                             ___________________
       Rickie M. (Father) appeals from the juvenile court’s December 9, 2013
jurisdictional and dispositional orders adjudging two-month-old A.M. a dependent of the
court pursuant to Welfare and Institutions Code section 300, subdivision (b) (failure to
protect).1 For the first time, Father raises a facial challenge to the section 300 petition but
cannot prevail because attacks on the legal sufficiency of a petition cannot be made for
the first time on appeal. Father’s further contention that substantial evidence does not
support the court’s jurisdictional finding also fails because there is substantial evidence
that Father failed to protect and neglected A.M., causing a substantial risk of harm to her.
We also disagree with Father’s contention that there was no substantial evidence in
support of the court’s order removing A.M. from his custody. H.R. (Mother) is not a
party to the appeal. We affirm.
                                     BACKGROUND
A. The detention report
       In October 2013, the Department of Children and Family Services (DCFS)
reported the following in connection with a detention hearing before the juvenile court to
determine whether the minor should be removed immediately from the care of Mother
and Father.
       In October 2013, DCFS received a referral that Mother and Father had sought
medical attention for A.M., who was approximately a week old and had been born at
home. Father told medical personnel he had delivered A.M., removed the placenta, cut
the umbilical cord, and cleaned A.M. after she was born. Mother told medical personnel
that A.M. was her first baby, which was not true. Mother also stated she “only had one
prenatal appointment because she didn’t know she was pregnant” and did not go to the
hospital or call 911 when the baby was born because “it was the middle of the night and
the baby came really fast,” and because she “didn’t know what childbirth would feel
like.” Mother admitted to using cocaine daily, but stated that “when she found out she
was pregnant,” she used cocaine only weekly. She also stated she had last used drugs


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

                                              2
three to four months prior to delivering A.M., then “corrected” herself to state she had not
used drugs since she became pregnant. Mother and Father stated they could not seek
medical attention “sooner due to the rain.” But the last rainstorm had occurred before
A.M.’s birth. Father had an “odd affect” at the hospital, Mother and Father were
“socially isolated,” and neither Mother nor Father told their family about A.M.’s birth. A
hospital social worker believed Mother and Father were lying and they had delayed
seeking medical attention for A.M. “in order to allow for any drugs to leave their
systems.”
       Mother had a long history with DCFS. In 2006, when she was 17 and herself a
dependent of the juvenile court, she had a child named P.B. with Steven B. The juvenile
court terminated Mother’s and Steven’s parental rights after the court sustained
allegations that P.B. had suffered a severe skull fracture during a violent physical assault
of Mother by Steven, both Mother and Steven gave false information to medical
personnel regarding how P.B. sustained her injuries, and Mother and Steven failed to
reunify with P.B. Mother and Steven also had another child named M.B., born in 2008.
Mother abandoned M.B. while Mother prostituted herself. The court also terminated
Mother’s parental rights over N.B., born in 2012, whose father was Edward C. N.B. had
been born with a positive toxicology screen for cocaine and amphetamine. DCFS also
determined Mother had been arrested “and/or convict[ed] for disorderly
conduct/prostitution and child cruelty.”
       Father also had a history with DCFS. Lisa M., his child with Jessica F., had been
born in 2012 with a positive toxicology screen, and her dependency case was ongoing.
When Lisa’s caseworker was questioned by DCFS in October 2013, she stated that Lisa’s
mother reported she had seen needle marks on Father’s arm “a month ago.”
       During an interview with Father on October 21, 2013, DCFS observed “circular
marks on [F]ather’s right forearm above the inside of his elbow” that possibly were
needle marks. When DCFS noted that the address given by Father was a “possible drug
den,” Father stated “that’s why he only gets his mail there and doesn’t go around
anymore.”

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       Mother and Father submitted to an on-demand drug test on October 21, 2013, with
negative results. On October 23, 2013, the juvenile court ordered A.M. detained and
removed from the care of Mother and Father.
B. The amended section 300 petition
       On November 18, 2013, DCFS filed an amended section 300 petition pursuant to
subdivisions (a), (b), and (j), alleging A.M. came within the jurisdiction of the juvenile
court. As pertinent to this appeal and as sustained and amended, paragraph b-1 of the
petition alleged under section 300, subdivision (b) that Mother and Father failed to obtain
medical treatment for A.M. during the birth of A.M., and for seven days thereafter, and
lied to medical professionals about their family situation and the circumstances of A.M.’s
birth. Paragraph b-4 of the petition alleged under section 300, subdivision (b) that Father
had a history of substance abuse, was a current registered controlled substance offender,
had a criminal history of drug-related offenses, had an unresolved substance abuse
problem, which rendered him incapable of providing regular care and protection for
A.M., and had a history of illicit drug use that endangered A.M.’s physical and emotional
health and safety and created a detrimental home environment, placing her at risk of
physical and emotional harm and damage.
C. The jurisdictional and dispositional report
       On November 18, 2013, in connection with a jurisdictional and dispositional
hearing, DCFS reported the following.
       Father initially claimed to have “experimented with marijuana when he was in his
twenties,” but later stated he had been sober for the past six years.
       Father had a third daughter, Sasha, who had been born in 2008. Sasha’s mother
was a “heavy drug user,” who gave birth to Sasha while incarcerated and relapsed after
being released.
       Jessica, the mother of Father’s daughter Lisa, was a heroin addict who had used
heroin during her entire pregnancy and refused to seek prenatal care. Father told DCFS
he could not force Jessica to seek prenatal care and that if he had taken Lisa away from
Jessica, she would not have stopped using drugs. He claimed Jessica was sober now and

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both he and Jessica were in the process of reunifying with Lisa. Father stated he had
refused to submit to a drug test at the request of DCFS on August 26, 2013, “‘because I
had been testing clean’” and he did not want to shorten his visit with Lisa. Father had
also refused to roll up his sleeves to expose his arms during the visit with Lisa and
subsequently was ordered by the court to “cooperate with on demand toxicology
screenings.” He had been reported to have fallen asleep and dropped Lisa during a visit,
which was “consistent with current use of narcotics.”
       Father claimed Lisa’s maternal grandmother had fabricated allegations that he had
used drugs and supplied Jessica with drugs. Father also claimed Jessica fabricated
allegations about his drug use because he was “having a child with another woman.”
DCFS reported Jessica did not know Father was involved with another woman when
Jessica made her allegations about Father’s drug use.
       Father had an extensive criminal history from 1977 to 2011, including convictions
for petty theft, burglary, grand theft, tampering with a vehicle, domestic violence,
receiving stolen property, robbery, and providing false identification to a peace officer.
His drug-related convictions included a 1992 conviction for possession of a hypodermic
needle, a 1996 conviction for possession of a controlled substance for sale, a 2004
conviction for being under the influence of a controlled substance, and a 2011 conviction
for possession of a controlled substance. Father had been ordered to register as a
controlled substance offender twice in 2011.
       Father told DCFS he did not know Mother was pregnant until she came to his
apartment with A.M.’s head “‘sticking out between her . . . legs.’” Later, he
acknowledged he had known Mother was pregnant, stating he had been unable to protect
A.M. while Mother was pregnant because Mother refused to seek prenatal care and
Father “had no way of forcing her to seek prenatal care.” He stated he did not call 911
because Mother told him not to call because she had “lost other children to ‘the system.’”
Father also stated he did not call 911 because he believed the police would allow Mother
to leave with A.M. and then he would have no way of protecting A.M. because Mother
was good at “keeping herself from being found.” He suspected that, when Mother went

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missing in the past, she was using drugs. Father stated he did not know if Mother was
under the influence of drugs when she gave birth to A.M., but that it “could have been a
factor as to why [Mother] did not want to go to the hospital.” Father said it took “7 days”
to convince Mother to take A.M. to the hospital. Father showed DCFS the wood clamp
from his toolbox that he had used to cut the umbilical cord after he had disinfected the
clamp with alcohol.
D. The December 5, 2013 last minute information
       DCFS reported in a last minute information to the juvenile court that Father had
missed a random drug test on November 27, 2013, even though he had met with a DCFS
caseworker that day. Father called DCFS on December 2, 2013, to report that he had
missed the drug test because the laboratory was closed when he reached it after attending
a medical appointment. Father claimed to have a note from his doctor verifying that he
had medical appointments on November 27, 2013, and December 2, 2013.
E. The jurisdictional and dispositional hearing
       On December 5, 2013, at the jurisdictional hearing, Father testified he had not
seen Mother for a month and a half to two months, when she came to his apartment “in
the process of having the baby.” Father stated he knew she was pregnant but had
attempted unsuccessfully to persuade her to get prenatal care. He said Mother “comes in
and out” of his life for months at a time and he assumed Mother used drugs during her
pregnancy when she occasionally disappeared. Mother told Father not to call 911
because “the baby is coming now.” After he delivered the baby, Mother told him that if
he called 911, she would leave with A.M. It took him a few days to persuade Mother to
take A.M. to the doctor.
       Father testified he had last used drugs three years previously and he had completed
a three-year drug treatment program. He also stated he attended Narcotics Anonymous
programs, a program called “Project Fatherhood,” and counseling provided by the
Veterans Administration. He stated he had been required to and had drug tested twice for
Lisa’s case. Father testified he had attempted to drug test on November 27, 2013, by
leaving his medical appointment early, but the laboratory was closed by the time he

                                             6
reached it, because of “the holiday.” He identified a note from his doctor that showed he
had an appointment on November 27, 2013, which he returned to finish on December 2,
2013. Father also testified he had furnished his apartment with a crib and other baby
supplies.
       At the continued jurisdictional hearing on December 9, 2013, Mother testified she
told Father not to call 911 when A.M. was born or she would leave with A.M. Mother
did not want to go to the hospital, but eventually did so at Father’s request.
       After hearing argument, the juvenile court stated that, while it found many aspects
of Father’s testimony to be credible and commended him on his commitment to have
custody of A.M., the court found Father posed a risk to A.M. because of his delay in
seeking medical attention for A.M. in light of his knowledge of Mother’s drug use. The
court stated it distrusted Father’s testimony because of the misrepresentations he made at
the hospital and his refusal to drug test “in August.” The court sustained the allegations
of the petition as amended.
       The juvenile court then ordered that A.M. be removed from the custody of Mother
and Father and placed under the supervision of DCFS. The court declined to order family
reunification services for Mother, but allowed her to have monitored visits. The court
ordered family reunification services for Father and ordered him to participate in random
or on-demand weekly drug and alcohol testing, individual counseling, and monitored
visits three hours a week with DCFS’s discretion to liberalize visitation. Father appealed.
                                       DISCUSSION
A. Father’s attack on the legal sufficiency of a petition cannot be made for the first
time on appeal
       Father’s first argument is his “facial challenge” to paragraph b-1 of the petition,
which as amended and sustained under section 300, subdivision (b) alleged Father failed
to obtain medical treatment for A.M. during her birth and for seven days thereafter, and
lied to medical professionals about the family situation and the circumstances of her
birth. “It is well settled that attacks on the legal sufficiency of a petition cannot be made
for the first time on appeal.” (In re N.M. (2011) 197 Cal.App.4th 159, 166.) Father does

                                              7
not argue that he raised this facial challenge to the sufficiency of the petition below and
our review of the record indicates that he did not. Accordingly, Father cannot prevail
because attacks on the legal sufficiency of a petition cannot be made for the first time on
appeal.
B. Substantial evidence supported the juvenile court’s jurisdictional findings under
section 300, subdivision (b)
       Father contends the evidence was insufficient to support the juvenile court’s
jurisdictional findings against him in paragraph b-4, as amended and sustained under
section 300, subdivision (b). We disagree.
       Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if
“[t]he child has suffered, or there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of the failure or inability of his or her parent or
guardian to adequately supervise or protect the child.”
       “A jurisdictional finding under section 300, subdivision (b) requires:
‘“(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and
(3) ‘serious physical harm or illness’ to the child, or a ‘substantial risk’ of such harm or
illness.” [Citation.]’ [Citations.] The third element ‘effectively requires a showing that
at the time of the jurisdictional hearing the child is at substantial risk of serious physical
harm in the future (e.g., evidence showing a substantial risk that past physical harm will
reoccur).’ [Citation.]” (In re James R. (2009) 176 Cal.App.4th 129, 135.) “[T]he use of
the disjunctive ‘or’ demonstrates that a showing of prior abuse and harm is sufficient,
standing alone, to establish dependency jurisdiction.” (In re J.K. (2009) 174 Cal.App.4th
1426, 1435, fn. omitted.) Thus, jurisdiction may be exercised “either based on a prior
incident of harm or a current or future risk.” (Id. at p. 1435, fn. 5.)
       The juvenile court’s jurisdictional finding that the minor is a person described in
section 300 must be supported by a preponderance of the evidence. (§ 355; Cal. Rules of
Court, rule 5.684(f).) “‘“When the sufficiency of the evidence to support a finding or
order is challenged on appeal, the reviewing court must determine if there is any
substantial evidence, that is, evidence which is reasonable, credible, and of solid value to

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support the conclusion of the trier of fact. [Citation.] In making this determination, all
conflicts [in the evidence and in reasonable inferences from the evidence] are to be
resolved in favor of the prevailing party, and issues of fact and credibility are questions
for the trier of fact. [Citation.]”’ [Citation.] While substantial evidence may consist of
inferences, such inferences must rest on the evidence; inferences that are the result of
speculation or conjecture cannot support a finding. [Citation.]” (In re Precious D.
(2010) 189 Cal.App.4th 1251, 1258–1259.) “[W]e must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999)
70 Cal.App.4th 38, 53.)
       In sustaining amended paragraph b-4 of the petition under section 300,
subdivision (b), the juvenile court held the allegations were true that Father had a history
of substance abuse, was a current registered controlled substance offender, had a criminal
history of drug related offenses, had an unresolved substance abuse problem, which
rendered him incapable of providing regular care and protection for A.M., and had a
history of illicit drug use that endangered A.M.’s physical and emotional health and
safety and created a detrimental home environment, placing her at risk of physical and
emotional harm and damage. The court expressly stated it was finding true the petition’s
allegation of the current use of drugs. In addition, the court found Father had “failed to
seek medical care for the child for seven days and lied to medical professionals about
their family situation and the circumstances of the birth.”
       Thus, our inquiry is whether there was substantial evidence to support the court’s
determination. There is.
       The first requirement of section 300, subdivision (b), in pertinent part, is
neglectful conduct by the parent demonstrating an inability to adequately supervise or
protect the child. We agree with Father that drug use “‘without more,’ does not bring a
minor within the jurisdiction of the dependency court.” (In re Destiny S. (2012) 210
Cal.App.4th 999, 1003.) There also must be substantial evidence linking Father’s drug
use to his neglectful conduct. (In re David M. (2005) 134 Cal.App.4th 822, 830

                                              9
[evidence of risk of harm to minor resulting from mother’s substance abuse must be
shown to establish jurisdiction]; In re James R., supra, 176 Cal.App.4th at p. 137 [causal
link between alcohol abuse and risk of harm to minors required to assert jurisdiction].)
       Here, there is ample evidence both of drug use and actual neglect and failure to
protect. The juvenile court had substantial evidence on which to base its conclusion that
Father’s substance abuse was current, or “unresolved.” In August 2013, Father failed to
drug test or roll up his sleeves on request; Father was reported to have fallen asleep and
dropped another daughter during a visit, which was “consistent with current use of
narcotics”; in October 2013, DCFS noted circular marks on his arm that looked like
needle marks; in November 2013, Father missed a drug test; and Jessica reported she had
seen needle marks on Father’s arms within months of the jurisdictional hearing.
       Past harm or a risk of harm also is predictive of future harm or a risk of future
harm. (See In re J.K. (2009) 174 Cal.App.4th 1426, 1428–1429.) By a parity of
reasoning, the juvenile court could have considered Father’s long history of drug use in
reaching the conclusion that his drug abuse problem was unresolved. In particular,
Father had a substantial criminal history of drug-related offenses, including a 1992
conviction for possession of a hypodermic needle, a 1996 conviction for possession of a
controlled substance for sale, a 2004 conviction for being under the influence of a
controlled substance, and a 2011 conviction for possession of a controlled substance.
Father was a current registered controlled substance offender. This bolstered the juvenile
court’s conclusions that Father’s substance abuse remained unresolved and he was a
current user, whose drug abuse was linked to his neglect and failure to protect A.M.
       The evidence of this actual neglect and failure to protect also is substantial. Father
chose not to call 911 when he helped Mother deliver A.M. even though he suspected
Mother was using drugs and knew she had not sought prenatal care. Instead, Father
delivered A.M. with a wood clamp from his toolbox. Although he claimed to have
sterilized the wood clamp, that method of delivery on top of his knowledge of Mother’s
drug use and lack of prenatal care should have persuaded him to call 911 or to bring A.M.
to the hospital immediately, rather than waiting seven days.

                                             10
       The second requirement of section 300, subdivision (b), in pertinent part, is
causation of a substantial risk of physical harm to the minor. Father’s argument that
A.M. was not harmed by his conduct misses the point. The fact A.M. was healthy does
not mitigate Father’s choice to indulge Mother’s need as a drug user to avoid contact with
medical personnel at the potential expense of the child’s health. Father’s choice in doing
so could have been viewed by the juvenile court as predictive of his future choices,
placing A.M. at substantial risk of serious physical harm the next time Mother decided
not to take her to the doctor. (See In re J.K., supra, 174 Cal.App.4th at pp. 1428–1429.)
       The third requirement of section 300, subdivision (b), in pertinent part, is
substantial risk that the child will suffer serious physical harm. This third element is
addressed and satisfied by virtue of the same analysis conducted above.
       We conclude substantial evidence supported the juvenile court’s jurisdictional
findings in paragraph b-4 of the petition under section 300, subdivision (b).
C. Substantial evidence supported the removal of A.M. from Father’s custody
       Father contends the dispositional orders must be reversed because substantial
evidence does not support the removal of A.M. from Father’s custody. We disagree.
       Section 361, subdivision (c) provides in pertinent part that a dependent child may
not be taken from the custody of her parent unless the juvenile court finds by clear and
convincing evidence that “(1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of the minor if the minor
were returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parent’s . . .
physical custody.” Thus, the burden of proof in the dispositional phase is clear and
convincing evidence when the juvenile court awards custody to a nonparent. (In re
Henry V. (2004) 119 Cal.App.4th 522, 528–529.) On appeal, “‘“the substantial evidence
test applies to determine the existence of the clear and convincing standard of proof . . . .”
[Citations.]’” (Id. at p. 529.)
       For the same reasons articulated above, we conclude substantial evidence supports
the existence of clear and convincing evidence there would be a substantial danger to

                                             11
A.M.’s safety if she were returned to Father and there was no reasonable means to protect
her without removing her from Father. Namely, Father endangered A.M. by failing to
call 911 or take her for medical care until seven days after her birth even though the use
of the wood clamp during delivery raised the specter of infection, he knew Mother had
not received prenatal care, and he suspected Mother was on drugs when she was pregnant
and when she delivered A.M. Moreover, Father’s drug use was current and unresolved.
                                     DISPOSITION
       The December 9, 2013 jurisdictional and dispositional orders are affirmed.
       NOT TO BE PUBLISHED.


                                                 MILLER, J.*
We concur:


       CHANEY, Acting P. J.


       JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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