Filed 8/7/15 In re O.B. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re O.B. et al., Persons Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E062137

         Plaintiff and Respondent,                                       (Super.Ct.No. SWJ1400382)

v.                                                                       OPINION

E.B.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John M. Monterosso,

Judge. Affirmed.

         Christina Garbrielidis, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie

Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.




                                                             1
       Defendant and Appellant E.B. (mother) appeals from a judgment declaring her

three children dependents of the juvenile court under Welfare and Institutions Code

section 300, subdivision (b),1 and removing the children from her custody. Some of the

jurisdictional allegations the court sustained pertained solely to father and some pertained

solely to mother. The court provided reunification services to both parents. It ordered

mother to submit to hair follicle and random drug testing as well as a psychological

evaluation.

       On appeal, mother contends that there was insufficient evidence to support the

jurisdictional findings against her or the dispositional order removing the children from

her custody.2 We affirm the judgment.

                                                I

                    FACTUAL AND PROCEDURAL BACKGROUND

       Mother and father have three young children, O.B., six years old, A.B., three years

old, and B.B., two years old. Father has an extensive criminal record involving various

controlled substances and is addicted to heroin. Mother and father are separated; mother

filed for divorce in April 2013 because father was using drugs and “she felt she could not




       1   All further statutory references are to this code.

       2   Mother does not challenge the findings or orders against father.



                                                2
trust him around the children.” Prior to detention, the children had been living with

mother.

       Despite knowing about father’s drug abuse, mother allowed him to act as the

primary caretaker while she attended school to become a dental hygienist. The children

came to the attention of Plaintiff and Respondent Riverside County Department of Public

Social Services (DPSS or the Department) in April 2014, when the police found mother’s

two youngest children, A.B. and B.B., naked and unsupervised at father’s home while

father was unconscious from a heroin overdose.

       A. Father’s Arrest and the Initial Detention

       On April 9, 2014, father had a birthday party for O.B. at his house. Mother and

the children slept over at his house that evening. The next morning, mother left A.B and

B.B. in father’s care, so that she could take O.B. to school and attend her dental hygiene

classes.

       As soon as she drove off father’s street, the police stopped her. They were about

to execute a warrant to search father’s house for drugs and counterfeit currency, and they

asked mother questions about what was going on at the home when she left.

       When the police arrived at father’s house, A.B. and B.B. answered the door. Both

children were naked and father was on the couch, unconscious from a heroin overdose.

The police found a heroin pipe in his pocket, about a dozen hypodermic needles on the

floor within the children’s reach, and other narcotics paraphernalia. The home was filthy



                                             3
and appeared to be in the process of being remodeled. There were soiled diapers and

trash in the hallways. The children had access to the pool because the sliding door to the

backyard and the pool’s gated doorway were open. The police arrested father and two

other adult males who were also in the house and who had extensive criminal histories.

       Mother told the police that she was unaware of father’s drug use, criminal

activities, and the presence of other adults in his house. The police released the three

children to mother, and arrested father for child endangerment, being under the influence,

and counterfeiting.

       On April 22, 2014, a DPSS social worker interviewed mother and her children at

mother’s home. The home was clean and safe, and mother appeared “lucid, cooperative

and concerned.” Mother informed the social worker that she was a full-time student in a

dental hygiene program and that she had no history of alcohol or drug abuse.

       The social worker had searched the parents’ criminal and court history before the

interview and asked mother why she had sought a restraining order against father in June

2013. Mother responded that father had been aggressive toward someone she was dating.

She said that father had been verbally abusive towards her in the past and had been

physically abusive once, but that all of these incidents occurred before the children were

born. She denied any other domestic violence incidents.




                                             4
       She also denied knowing anything about father’s recent arrest and said she had no

idea he was using drugs the day she left A.B. and B.B. at his house. She said that his

home was disheveled because it was being remodeled and she denied that his home was

hazardous to children. She told the social worker she had no idea father’s roommates

were at the house that morning; however, the paternal grandfather later informed the

social worker that he had read the police report of father’s arrest and mother had told the

police that there was another adult male in the house when she left.

       Mother told the social worker that she had initiated divorce proceedings in April

2013 because father began using drugs and went to rehab for “prescription medications

and opiate abuse.” She filed for divorce when he went to rehab because “she felt like she

could not trust him around the children.” The family law court had issued an order

authorizing her to test father for drugs at her own discretion before allowing him to visit

with the children. She said that under the current court order, father was allowed to have

supervised visits with the children every other weekend at the paternal grandparents’

home. However, she admitted that on occasion she allowed father to care for the children

while she was at school. When the social worker interviewed father, he reported that he

watched the children five days a week, from 7:00 a.m. to 6:00 p.m., while mother was at

school.

       During her interview, six-year-old O.B. told the social worker that she saw a

“white and brown” pipe on father’s kitchen counter. To get more detail about the pipe,



                                             5
the social worker showed O.B. various photographs of pipes and O.B. selected a

methamphetamine pipe. O.B. also told the social worker that father “mak[es] money with

paint, in the kitchen” and tells her not to come into the kitchen because he does “not want

me to see this.” When they slept over at his house, sometimes her younger sister A.B.

snuck out of the house when father was asleep.

       O.B. described instances where father would come over to mother’s house and

break things. She recalled seeing an incident of physical domestic violence between her

parents and remembers being “scared because of [a] crash and something broke.”

       A.B. told the social worker that father had a “poking thing” and that he “did a

poking thing on his arm.”

       After the interviews, the social worker discussed the case with her supervisor. At

that point, based on the social worker’s interview with the mother and the home

assessment, they “felt the mother would keep the children safe.” The social worker gave

mother a safety plan, according to which, mother was not to allow father any contact with

the children. She told mother that she was concerned mother may not be able to

determine whether father was using drugs. Mother signed the safety plan, and agreed that

the children were to remain in her care.

       On April 29, 2014, the social worker told mother that father could not see the

children until he took a drug test. On May 1, she informed mother that father failed to

take a drug test and was therefore not allowed to see the children.



                                             6
       On May 5, the social worker interviewed O.B. at school. O.B. stated that father

had spent the night at mother’s house the night before. She said, “I slept with my

mommy on one side and my daddy on the other and I was in the middle of the bed.”

A.B. and B.B. had stayed with the paternal grandparents that night. O.B. said that father

was at the house when she left for school that morning. The social worker also spoke

with B.B. He told her that he had seen father at mother’s house since the last time he had

seen the social worker (i.e., since the day mother signed the safety plan). Both mother

and father denied that father had any contact with the children since his arrest.

       That same day, DPSS took the children into protective custody and placed them

with the paternal grandparents. On May 8, 2014, the trial court found that DPSS had

made a prima facie showing that the children came within section 300, subdivision (b).

DPSS detained the children, and they remained placed with the paternal grandparents.

       B. The Dependency Petition

       DPSS’s jurisdiction and disposition report indicated that father had an extensive

criminal history involving alcohol and controlled substances. It also contained

information from police reports indicating that mother had been present for one of

father’s drug-related arrests. Specifically, in November 2013, mother was at father’s

home when police found about 80 marijuana plants in his garage and “a brown tar-like

substance resembling heroin and a digital pocket scale” inside the house.




                                             7
        On May 13, 2014, the social worker attempted to interview mother, but mother

was angry and would not speak with her alone. Mother also refused to take a saliva drug

test.

        The social worker interviewed the paternal grandparents. They reported that

mother knew father was using drugs and engaging in criminal activity and nevertheless

allowed him to act as the children’s full-time caregiver while she was at school. The

paternal grandfather said that mother allowed father to spend the night in her home and

take O.B. to school. He also reported, and father later confirmed, that mother was

hospitalized in December 2013 for a heroin overdose. He told the social worker that he

believed mother also had issues with drug use. The paternal grandparents had stated in a

declaration filed in the marriage dissolution proceeding that they believed that in 2004

mother took methamphetamine and ecstasy and abused alcohol.

        On May 20, 2014, mother tested positive for amphetamines and

methamphetamines. On May 30, she tested negative. Thereafter, mother either refused

to take DPSS’s drug tests or failed to show up for scheduled tests. Citing her positive

drug test, her refusal to submit to additional drug tests, and her impaired judgment (as

demonstrated by her inability to recognize the risks of leaving the children in father’s

care), the Department expressed concern that mother was abusing drugs.




                                             8
       On September 9, 2014, DPSS filed the operative dependency petition, which

alleged that the children fell under section 300, subdivision (b), and were at risk of future

physical or emotional harm because: (1) father abused controlled substances (allegation

b-1); (2) father neglected the children by leaving them unsupervised in his home, which

contained various hazardous conditions, such as hypodermic needles within reach of the

children (allegation b-2); (3) mother left the children in father’s care when she knew or

reasonably should have known that he abused drugs and engaged in criminal activity

(allegation b-4); (4) mother allowed father to spend the night in the children’s home in

violation of the safety plan (allegation b-5); (5) mother had a history of abusing

controlled substances and was at risk of relapse because she continued to maintain a

relationship with father who actively abused drugs (allegation b-6); and (6) mother and

father continued to spend the night in one another’s homes when they had an extensive

history of domestic violence (allegation b-7).3

       C. The Jurisdiction and Disposition Hearing

       The court heard testimony from father, mother, and the social worker at the

contested jurisdiction and disposition hearing that took place on September 9, 10, and 11,

2014. Father testified that in the past year he babysat the children on a weekly basis



       3 At the jurisdiction and disposition hearing, father waived his right to trial and
submitted on the evidence. The court found true the allegations against him, and these
allegations are not at issue on appeal. DPSS struck allegation b-3 from the petition.



                                              9
while mother was at school. He denied having slept over at mother’s house on May 4,

2014, but he admitted that he spent the night with mother and the children at his parents’

house at some point during the last 30 days.

       Father also admitted that he had sought a restraining order against mother in 2013.

He had stated in his supporting declaration that mother was a prescription drug addict and

was under the influence of drugs and alcohol when she physically assaulted him on July

27, 2013. He claimed that the statements in his declaration were not true and that he had

only filed it because he was dating another woman at the time and did not want mother to

“ruin [his] new relationship.”

       When asked about mother’s hospitalization in December 2013, father denied that

the reason for the hospitalization was an opiate overdose. He testified that he had taken

mother to the hospital that day for a dizzy spell.

       Mother testified that the first time she became aware of father’s drug problem was

at the end of 2012. However, when presented with the request for a restraining order that

she had filed in June 2013, she admitted that she knew he suffered from drug abuse issues

since 1997. In her supporting declaration, mother had stated that father “has an extensive

drug and alcohol abuse history and has a domestic violence history.” She stated that from

1997 to 2006, he had been “in and out of drug rehab and jail . . . for drug/alcohol related

offenses.” Her declaration recounted several occasions in 2012 and 2013 when he had

overdosed on heroin and had to be hospitalized. She stated that “[i]n March 2013 he told



                                             10
me that he had been using meth and heroin since September 2012 and cannot stop.” She

also testified that she was aware he had been in several car accidents as a result of driving

under the influence.

       Mother testified that she had been authorized by the family law court to test father

for drugs. Initially, these tests were performed randomly at a specified testing site;

however, over time she agreed to test father on scheduled days using “home kits.” She

testified that she could tell when father was not sober and that she would never leave the

children in his care when he was under the influence. She admitted there was a period of

time when he would watch the kids “every day” while she was at school.

       She testified that she felt it was safe to leave the children with father on the

morning of his arrest (April 10, 2014) because he did not appear to be under the influence

at that time. She denied having seen any drugs or drug paraphernalia in his home that

morning. She did not believe O.B. had actually told the social worker that she had seen

drug paraphernalia in father’s home or that she had witnessed father yelling at mother and

breaking things in her house.

       When asked about the December 2013 hospitalization, she stated that father had

slipped her a pill that day. According to mother, father was at her house and she was

complaining about having a headache. He offered her a white, unmarked pill. She did

not know what it was but she took it because she thought it looked like it came from a

“pill bottle.” After a while, she began to feel dizzy and clammy. She remembered being



                                              11
at the hospital for a little bit and then waking up three days later in her home. She later

learned that she had been diagnosed with an opiate overdose, but she did not confront

father about the pill because she did not want to “escalate [the] situation.” She admitted

that she allowed father to babysit the children after this incident and that she never told

the social worker that she believed father had drugged her.

       Mother acknowledged receipt of the safety plan and testified that she knew the

consequences of violating it “would be huge.” Mother denied that father slept in her

home on May 4, 2014. She believed that O.B. had made the story up because she wanted

her parents to reunite.

       Mother testified that she had never taken illegal drugs. When asked about having

tested positive for methamphetamine, she opined that the result was probably caused by

the fact that she was taking Wellbutrin for depression and Propranolol for tremors. She

admitted that she had refused to tell the social worker about any other medication she was

taking aside from Adderall.

       Regarding domestic violence, mother attempted to downplay the incidents

between her and father. She testified that father had assaulted her on occasion, but before

the children were born. However, when again confronted with her June 2013 request for

a restraining order, she admitted that her declaration was truthful. In it, she stated that on

June 16, 2013, father had arrived late at her house for a visit with the children and

physically assaulted her. She alleged that father had pulled out a knife and threatened to



                                              12
stab her with it. He stabbed the wall and yelled that he was going to “fucking kill [her].”

He ran to the children and asked them if they wanted to leave with him. She alleged that

“[h]e did not ca[r]e that the children were horrified and scared out of their minds.”

Mother also admitted during her testimony that, in October 2012, father assaulted and

choked her while the children were present in the home.

       The social worker testified that mother had not been forthcoming about father’s

history of drug abuse and domestic violence, and that she had minimized the amount of

time she was allowing father to care for the children. The Department did not believe it

was safe to return the children to mother’s care at that time because it did not have

enough evidence of clean drug tests (due to mother’s refusal to participate in DPSS’s

tests) or participation in counseling and parenting classes.

       D. The Court’s Findings and Ruling

       At the close of evidence, the trial court found that “[mother’s] credibility is

nonexistent.” It stated, “I don’t think I’ve ever seen a situation unravel so poorly for a

parent when simple compliance could have easily addressed that issue and those

concerns.”

       The court found that mother allowed father to care for the children despite

knowing that he suffered from a serious drug addiction for which he was not even

attempting to seek help. It observed that “[a]ny reasonable person . . . would know that

one doesn’t quit a chronic heroin addiction overnight. It requires extensive treatment,



                                             13
which father never sought.” The court found it “beyond [its] comprehension” that mother

would allow father to spend any time with the children, let alone the significant amount

to which she had admitted.

       The court also found that the relationship between father and mother was “clearly

. . . highlighted by turmoil and domestic violence” and that nevertheless mother

continued to sleep in the same home as father. It believed O.B.’s version of the May 4,

2014, sleep-over incident and discredited mother’s and father’s denials. It also

disbelieved mother’s story about her opiate overdose hospitalization, finding that it defied

common sense that such a severe reaction could be caused by a single pill. In the

alternative, it found that if mother’s story were true, her decision to leave the children in

father’s care after that incident was even more inappropriate than it already was

considering his drug use and illegal activity.

       Based on its findings, the court sustained all of the allegations against mother. It

stated that even though the incidents discussed at the hearing had happened in the past, it

could “easily find by these circumstances that there is still a substantial risk to the

children” because mother had “failed to address any of [the] issues” that DPSS was

concerned about. It stated that it had “no confidence whatsoever that [mother] would

follow any reasonable directives to assure the safety of the children.”




                                              14
       The court removed the children from mother’s custody and ordered family

reunification services. It directed mother to submit to hair follicle testing, random drug

testing, and a psychological exam.

                                              II

                                         ANALYSIS

       A. Substantial Evidence Supports the Court’s Jurisdictional Findings Against

           Mother

       Mother argues that there is insufficient evidence to support dependency

jurisdiction over the children based on her conduct. She acknowledges that dependency

jurisdiction over the children is proper based on father’s conduct, but she asks that we

exercise our discretion to review the specific jurisdictional findings against her (i.e.,

allegations b-4 through b-7) because they could have practical and legal impacts on her

outside of the issue of dependency jurisdiction.

       Because the validity of the jurisdictional findings against mother “is the difference

between [her] being an ‘offending’ parent versus a ‘non-offending’ parent,” a distinction

that could affect her in future dependency or family law proceedings, we grant her

request for review. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) However,

based on our review, we conclude that substantial evidence supports each of the four

sustained allegations against her.




                                              15
       When reviewing a challenge to the sufficiency of the evidence supporting a

juvenile court’s jurisdictional findings, “we determine if substantial evidence,

contradicted or uncontradicted, supports them.” (In re I.J. (2013) 56 Cal.4th 766, 773.)

We consider the record as a whole, resolving all conflicts and drawing all reasonable

inferences in support of the jurisdictional findings. (In re Lana S. (2012) 207

Cal.App.4th 94, 103.) “ ‘We do not reweigh the evidence, evaluate the credibility of

witnesses or resolve evidentiary conflicts.’ ” (Ibid.) Thus, in order to succeed on appeal,

mother must demonstrate that there is no evidence of a sufficiently substantial nature to

support the juvenile court’s jurisdictional findings. (Ibid.)

       The purpose of section 300 is to provide maximum safety and protection for

children who are at risk of being physically or emotionally abused or neglected and “to

ensure [their] safety, protection, and physical and emotional well-being.” (§ 300.2; In re

Christopher R. (2014) 225 Cal.App.4th 1210, 1215.) In order to make a dependency

finding, the juvenile court must find by a preponderance of evidence that the following

three elements are met: “(1) neglectful conduct or substance abuse by a parent in one of

the specified forms, (2) causation, and (3) serious physical harm to the child, or a

substantial risk of such harm.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-725.)




                                             16
              1. Allegations b-4 and b-5: Allowing father, a known drug abuser, to care

                 for the children

Allegations b-4 and b-5 are related; they both allege that mother neglected the children’s

health, safety, and well-being by allowing father to care for and be around the

children despite knowing he posed a danger due to his drug addiction.4 There is

substantial evidence in the record to support these allegations. The record demonstrates

that mother was aware that father suffers from a serious drug addiction, that she was

incapable of appreciating the risks this addiction poses to the children, and that she was

unwilling to follow the procedures DPSS put in place to minimize those risks.

       On the day she left her two infant children in father’s care, he was found

unconscious, under the influence of heroin. The children were found unclothed and

unsupervised, with several hypodermic needles within their reach and open access to a

pool. Had the police not arrived when they did, there is no telling what sort of harm the

children could have suffered.

       Mother contends that there was no evidence that she knew or should have known

that father was under the influence of any drug when she left A.B. and B.B. in his care

       4  Specifically, allegation b-4 states: “The mother neglects the health, safety, and
well[-]being of the children in that she knew, or reasonably should have known that the
father abuses controlled substances and engages in criminal activity and the mother left
the children in the care of father.” Allegation b-5 states: “The mother neglects the health,
safety, and well[-]being of the children in that she failed to abide by the Safety Plan and
allowed the father to spend the night in the children’s home.”



                                             17
that day. We disagree. The evidence supports a finding that mother should have known

father was using heroin on the day of his arrest, or at the very least, was not to be trusted

to care for the children based on his extensive history of drug abuse.

       O.B., who left the house with mother on the morning of father’s arrest, told the

social worker that she had seen a methamphetamine pipe on his kitchen counter.

Additionally, the police found several hypodermic needles when they arrived at his home

minutes after mother had left with O.B. A reasonable trier of fact could infer from this

evidence that mother had seen at least some of this drug paraphernalia in father’s house.

       In any event, even if mother truly had no idea father was using heroin on that

particular day, she certainly knew that he was actively abusing drugs at that time.

Father’s drug abuse is the reason she filed for a divorce a year earlier and the reason the

family law court had authorized her to drug test him before his supervised visits with the

children.

       Moreover, she knew about specific incidents that demonstrated father was unfit to

watch the children alone. Her request for a restraining order from June 2013 alleges that

he had overdosed on heroin several times in 2012 and 2013, and that in 2013 he had

admitted to her that he was unable to stop using methamphetamine and heroin. She was

present in November 2013 when police found a large amount of marijuana plants in his

garage and a substance that appeared to be heroin in his house. She also admitted that

she knew father had been in car accidents as a result of driving under the influence. And,



                                              18
if her story about why she was hospitalized in December 2013 is to be believed, then she

left her two infants in the care of a man who drugged her against her consent.

       What is more, mother continued to allow father to be around her children after his

arrest and after signing the safety plan. O.B. told the social worker that father had spent

the night at mother’s house on May 4, 2014, and father testified that he had spent the

night with mother and the children at his parents’ house shortly before the jurisdiction

and disposition hearing. B.B. also told the social worker that he had seen father since his

arrest. He could have been referring to one of these two incidents, or a third incident.

       Based on this evidence, a reasonable trier of fact could find that mother reasonably

should have known that leaving her two infant children in father’s unsupervised care

would place them at a substantial risk of harm.

       Mother contends that the children were not at risk at the time of the jurisdictional

hearing because there was no indication that she would violate court orders and allow

father to contact the children going forward. Her actions in this case indicate otherwise.

The record here contains evidence that would allow a reasonable trier of fact to conclude

that she was uncooperative with DPSS and was incapable of appreciating the risk father

poses to the children. During her first interview, she failed to inform the social worker

about the extent of father’s drug addiction and she minimized the amount of time he

spent with the children. Specifically, she told the social worker that father’s issues with

drugs began in 2013 despite knowing that he had suffered with a serious drug addiction



                                             19
for nearly two decades. She also told the social worker that father occasionally watched

the children while she was at school, when both father and the paternal grandfather

reported that father was the children’s primary caretaker while mother was at school. A

reasonable trier of fact could view mother’s statements to the social worker as less than

forthcoming, at best; at worst, dishonest. Moreover, mother violated the safety plan at

least twice. Her actions in this case support a reasonable inference that court intervention

was needed to protect the children from father.

              2. Allegation b-6: Risk of relapse

       The trial court sustained the Department’s allegation that mother placed the

children at a substantial risk of harm because she risked her own relapse into substance

abuse by maintaining a relationship with a drug addict. Based on the evidence presented

during the hearing, a reasonable trier of fact could conclude that mother had been

hospitalized for a heroin overdose in December 2013 and had tested positive for

methamphetamine on May 20, 2014. Additionally, the grandparents believed mother had

used methamphetamine and ecstasy in the past and had struggled with alcohol abuse.

This evidence of a history of drug use, coupled with evidence that mother continued to

maintain a relationship with father and allow him to be around the children, even after

DPSS told her that in order to protect the children she must not allow contact, supports

the allegation. In other words, the trial court reasonably found that mother had used

drugs and was at risk of using, because she continued to spend time with a person who



                                            20
was actively abusing drugs and who, according to mother, had drugged her less than a

year earlier.

        Mother argues that the December 2013 hospitalization was not an incident of

substance abuse because father had drugged her without her knowledge. However, the

court was not required to believe her explanation for the opiate overdose. (In re

Christopher R., supra, 225 Cal.App.4th at p. 1217 [where the mother tested positive for

methamphetamine and admitted to using the drug in the past, trial court “reasonably

disbelieved [the mother’s] portrayal of limited, sporadic drug use”].) Under a substantial

evidence review, we look for evidence to reasonably support the court’s finding, we do

not reassess the weight of that evidence. (In re Lana S., supra, 207 Cal.App.4th at p.

103.)

        Mother’s explanations as to why she tested positive for methamphetamine in May

2014 are similarly unpersuasive in a substantial evidence review. At the hearing, she

claimed the positive test was a result of taking Wellbutrin and Propranolol. On appeal,

she contends (for the first time and citing evidence not before the trial court) that it was a

result of taking Adderall. Not only was the court authorized to disbelieve mother’s

explanations, but also the evidence before the court was that Adderall would not have

provided a positive result for methamphetamine. (See People v. Dowl (2013) 57 Cal.4th

1079, 1092 [a trier of fact is free to reject testimony as unbelievable].)




                                              21
       Mother contends that the “mere usage of drugs, even hard drugs” is not a basis for

dependency jurisdiction without a causal link to risk of harm. She is incorrect. When

children are very young, as the children in this case are, the use of illegal drugs “is prima

facie evidence of the inability of a parent or guardian to provide regular care resulting in

a substantial risk of physical harm.”5 (In re Christopher R., supra, 225 Cal.App.4th at p.

1219, citing In re Drake M., supra, 211 Cal.App.4th at p. 767.) In any event, there is

evidence to support a finding that mother’s use of drugs placed the children at risk of

harm. The Department stated in its reports and at the hearing that it was concerned that

her drug use was impairing her ability to perceive the risks that father posed to the

children. Her inability to perceive those risks is what prevented her from keeping the

children away from father.

       Lastly, we reject mother’s various arguments as to why the evidence failed to

establish that she engaged in drug abuse, as opposed to mere use. These arguments miss

the point of the Department’s allegation. The b-6 allegation did not allege that mother

was a drug abuser, it alleged that she had a history of drug use and was at risk of

relapsing due to the nature of her interaction with father. Thus, the Department was not

required to produce evidence of drug abuse on her part in order to support the allegation.

The record contains evidence that mother was using illegal drugs and was at risk of

       5 Children under six years old are considered very young for purposes of the harm
that drug abuse poses. (In re Christopher R., supra, 225 Cal.App.4th at p. 1219.)



                                             22
continuing to use them due to her relationship with father. This is substantial evidence to

support the court’s b-6 finding.

              3. Allegation b-7: Domestic violence

       Allegation b-7 states that the parents neglected the health, safety, and well-being

of the children by continuing to spend the night in the same home despite having “an

extensive history of exposing the children to acts of domestic violence . . . [and of filing]

restraining orders against each other.” A finding of domestic violence “in the same

household where children are living is neglect; it is a failure to protect [the children] from

the substantial risk of encountering the violence and suffering serious physical harm or

illness from it.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) A child “could

wander into the room where it was occurring and be accidentally [harmed].” (In re E.B.

(2010) 184 Cal.App.4th 568, 576.)

       Here, the record contains substantial evidence to support a finding that mother and

father engaged in domestic violence in the presence of the children. According to O.B.,

father sometimes came over to mother’s home and broke things when she was trying to

sleep. O.B. reported that she was afraid during one of these incidents because she heard a

“crash” and “something broke.” Additionally, the record contains evidence that the

children were “scared out of their minds” when father arrived at mother’s house in June

2013 and threatened to kill her with a knife. Mother also admitted that the children were




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present in October 2012 when father pushed her down the stairs and choked her to the

point where she almost lost consciousness.

       Mother argues that these incidents of domestic violence were “isolated and [in the]

past” and thus are insufficient to support the b-7 allegation. First, we disagree with her

characterization of the incidents as isolated. The record contains requests for restraining

orders filed by both parents wherein each parent alleges that the other routinely engages

in abusive behavior. These filings alone support the court’s finding that the relationship

between father and mother was “clearly . . . highlighted by turmoil and domestic

violence.” Second, the record also reflects that mother and father spent the night in the

same house at least three times since mother filed for divorce in April 2013. Two of

those incidents occurred after DPSS informed mother that it was imperative for the

children’s safety that father not be allowed any contact with them.

       Mother argues that the court’s finding was in error because she had taken remedial

measures to ensure that she would no longer be the victim of father’s abuse. She asserts

that she had participated in domestic violence classes and was in school to become a

dental hygienist. As important as such remedial measures may be, the crucial point here

is that mother continued to put herself and her children in father’s presence, despite

knowing his propensity to become violent towards her in front of the children.




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       B. Disposition

       Mother argues that there was insufficient evidence to support the court’s

dispositional order removing the children from her custody. She asserts that the children

would have remained safe in her care. Again, we disagree.

       “Before the court may order a child physically removed from his or her parent’s

custody, it must find, by clear and convincing evidence, the child would be at substantial

risk of harm if returned home and there are no reasonable means by which the child can

be protected without removal.” (In re T.V. (2013) 217 Cal.App.4th 126, 135, citing

§ 361, subd. (c)(1).) “The jurisdictional findings are prima facie evidence the minor

cannot safely remain in the home.” (In re T.V., supra, at p. 135.) The minor need not

have been actually harmed before removal is appropriate. (Id. at pp. 135-136.) “The

focus of the statute is on averting harm to the child.” (Id. at p. 136.) We review a court’s

dispositional order for substantial evidence. (Ibid.)

       The same evidence that supported jurisdiction also supported removing the

children from mother’s custody. The record demonstrates that mother allowed father to

care for the children even though she knew he had a severe drug addiction and a history

of domestic violence. Moreover, even after father used heroin in his two youngest

children’s presence and left drug paraphernalia in their reach, and even after DPPS

warned her of the risk that father posed through the creation of the safety plan, she still

allowed father to be around the children. Given mother’s unwillingness to keep the



                                             25
children from father and her refusal to cooperate with DPSS’s safety recommendations,

we conclude that there is substantial evidence to support a reasonable finding that

removing the children from her care was the only means of protecting them from the

serious risk of physical harm that father posed.

                                            III

                                      DISPOSITION

       The jurisdiction judgment and disposition order appealed from are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               CODRINGTON
                                                                                        J.

We concur:


RAMIREZ
                        P. J.


MILLER
                           J.




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