Filed 10/10/13 In re A.S. CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re A. S. IV, a Person Coming Under the
Juvenile Court Law.


SAN FRANCISCO HUMAN SERVICES
AGENCY/FAMILY AND CHILDREN’S
SERVICE DIVISION,
                                                                     A137358
         Plaintiff and Respondent,
v.                                                                   (San Francisco County
                                                                     Super. Ct. No. JD12-3234)
A. S. III,
         Defendant and Appellant.



                                                INTRODUCTION
         A. S. III (Father) appeals from the order of the juvenile court adjudging his son,
then two years old, a dependent child as described in Welfare and Institutions Code
section 300, subdivision (b). and placing the child out of Father’s custody.1 Father
challenges the order on the grounds that (1) the child welfare worker representing the San
Francisco Human Services Agency (Agency) failed to obtain a warrant to remove the

         1
        All statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.

                                                             1
child from his custody; (2) the evidence was insufficient to support the court’s finding of
jurisdiction under section 300, subdivision (b); and (3) the evidence was insufficient to
support the detention order removing the child from Father’s custody. We shall affirm
the challenged orders.
                   FACTS AND PROCEDURAL BACKGROUND
Detention
       On August 22, 2012, Protective Services Worker Barbara Higgins went to the San
Francisco home where the child had reportedly been taken by Father. Higgins was
investigating a report she had received from the child’s paternal grandfather, who was
concerned about the child’s safety. Father and the child had been living for a year or
more in grandfather’s home in Roseville. According to the grandparents, around March
2012, they and Father’s sister noticed that Father began to exhibit behavior they
recognized from a time when he was using methamphetamines and abusing alcohol. He
slept in late and was often angry and impatient. When the child would wake up before
Father, Father would get angry and yell at the toddler, shouting, “shut the fuck up and go
back to sleep.” On August 8, grandfather had returned to the home to find Father
sleeping on the couch, while the toddler was left to roam the house unsupervised. Father
became very angry with grandfather in the presence of the child and began yelling at the
grandfather—nose to nose—shouting, “you don’t tell me how to raise my kid, just shut
the fuck up and stay out of my business.” The arguing continued and escalated to the
point of posturing of physical threats by Father toward the grandfather. The child was
present and frightened during the entire episode.
       Father, whom grandfather believed was actively using methamphetamine again,
then left grandfather’s home and took the child to reside in a home owned by a childhood
friend, a known drug dealer. Grandfather was concerned that a pit bull in that home had
previously attacked the owner and that the child was used to playing with the gentle pit
bull owned by grandfather—not the dangerous dog in the household where Father had
taken him to live. Grandfather also believed the owner was renting the home to drug
dealers and that the owner may have had guns in the home.


                                             2
       Further, it was reported that Father had lost his job, his unemployment benefits
had run out, and he had no money to provide for the child. (The child’s mother was
reportedly living on the streets in San Joaquin County and could not be contacted at that
time. She had lost two other children who were staying with their own fathers in that
county.)
       Higgins knew that the owner of the residence had 16 felonies for guns and drugs
and that drug activity may have been current. She also knew that Father had a previous
criminal history for driving under the influence and for sexual assaults within the last
10 years, and that he had a history dating back 15 years regarding methamphetamine use.
She had been given this information by the grandfather and had contacted juvenile
inspectors who substantiated Father’s criminal history. Higgins believed there were
exigent circumstances to enter the home based upon her concern that the child might be
in imminent danger due to being placed in a dangerous environment where there were
dangerous dogs and possibly guns and drugs.
       When the juvenile inspector and the sergeant whom Higgins asked to accompany
her to check on the child’s welfare learned the name of the owner of the property, they
determined it was important for them to bring along six police officers with rifles, given
the dangerous criminal history of the owner of the home. Higgins and the officers
walked up to the house, which had a 10-foot high fence surrounding it. Through spaces
in the fence, they saw a four- or five-year-old boy (not the child) and a man, who was
later determined to be Father, in the yard. One of the inspectors asked if Father was
home and Father said, “No, he’s not” and walked inside the home. The juvenile inspector
asked the little boy if he could let them in, and the boy opened the gate for them. When
they entered the house, they saw Father and the child, who was hovering near him. The
owner’s wife was present, as was the little boy’s mother, who was renting a room in the
house. The owner was not present.
       In a quick safety-sweep of the home, the officers found no drugs or guns—the
owner’s wife refused to open a safe in the basement. However, there were two dangerous
dogs on the premises: a pit bull owned by the tenant was found in a bedroom around the


                                             3
corner from where the child was and a Presa Canario was found in the backyard. Higgins
stated the dogs were not restrained sufficiently and the child had ready access to both
dogs. She knew that the Presa Canario breed had a reputation of being a very dangerous
dog and that the owner had a history of dog fighting in his back yard. The juvenile
inspector and the sergeant observed the owner of the pit bull to be “very high on
something.” The woman told Higgins that the dog had attacked the property owner when
he inappropriately approached the dog, so it was his fault “that her dog did what it did.”
The officers stated they were confident the owner of the pit bull had “drugs aboard” and
would not be able to protect anyone from her pit bull, should the dog feel provoked.
Higgins also saw dog feces (“5 or 6 dog poops”) on a “pet pad” on the floor, within
access of the child. Otherwise, the home was clean and well organized and the child was
not dirty or unkempt.
       Higgins believed the child was in immediate danger because the house was
inhabited by a person who had been convicted of numerous felonies for drugs and guns;
there were two potentially very dangerous dogs to which the two-year-old child had
ready access; there was a distinct possibility that Father was again using
methamphetamine; and dog feces accessible to the child presented a significant hygiene
issue. Higgins thought it possible that Father was under the influence of drugs at the time
“because his presentation accelerated quickly. He was oppositional and edgy in
presentation. There was a possibility that some of that could be attributable to
methamphetamine or uppers, which can present that way.” Higgins removed the child
and placed him with the child’s paternal grandparents. Higgins did not recall whether
Father asked if the child could be kept in his care at a different location. She did recall
Father asked “as his first suggestion” whether the child could be placed with the child’s
mother. Higgins told Father she questioned his judgment in this, given that the mother,
reportedly homeless and using drugs, had stated she wanted to be “buried alive with [her]
children.” Father acknowledged to Higgins that he knew of that statement by mother and
he ultimately agreed that if the child were removed, the paternal grandparents would be
the best choice to care for him.


                                              4
       The child was detained and placed with the paternal grandparents.
Jurisdiction and Disposition
       In addition to the foregoing, the report prepared for the jurisdiction and disposition
hearings held November 5, 2012, contained a copy of Father’s RAP sheet, indicating
previous felony convictions for possession of a controlled substance and receiving stolen
property, misdemeanor convictions for possession of a controlled substance and reckless
driving, assault with a deadly weapon (not a gun) plus numerous other arrests. These all
occurred between 2000 and 2006. Father had served time in prison and was not on parole
or probation at the time of the child’s removal.
       At the November 5, 2012 jurisdiction and disposition hearings, the grandfather
testified that he had contacted Child Protective Services on August 21, because of his
concern that Father had taken the child to a house where Father had grown up, where
there was a history of drugs, drug dealing, gun dealing, and dog fighting. The
grandfather knew the owner of the house had been “busted” and “put away for a while.”
He was concerned that the owner was renting rooms to people grandfather believed were
involved in drug activity. The grandfather’s main concern was that someone staying in
the house had a pit bull there who was a volatile, aggressive animal who had attacked the
owner. He was afraid that if the toddler, who was used to nuzzling the grandfather’s pit
bull, met with the unfamiliar pit bull, the dog might “take his face off.”
       Father testified that he was living in Sacramento, but could not be sure of the
address, having recently moved there. Father denied any problem with anger
management. However, the child’s mother, who had been located, described to the social
worker a history of abuse by Father. She reported to Higgins that, in 2010, she obtained a
restraining order against Father in San Joaquin County that she maintained was currently
in effect, protecting her, her other two children and their school against Father. She did
not supply a copy of the order to the social worker and the social worker did not obtain
one. Higgins testified that she thought the restraining order information was given to her
by the grandfather and she believed it was also confirmed by Father.



                                              5
       Social worker Eva Wexler testified that during the assessment period between
detention and the jurisdiction and disposition hearings, Father received supervised visits
with transportation of the child to and from Roseville provided by the grandparents.
Father had four visits, but missed eight of 12 visits, including the last three visits before
the jurisdiction and detention hearings. Wexler testified that at the visit scheduled on
October 23, the grandfather drove the child to San Francisco from Roseville. Father did
not show up and the child was “at the visit walking around from room to room looking
for his father, in every single room saying da-da, da-da in each room. [¶] There was a
knock at the door and [the child] thought it was his dad, and it was a maintenance worker.
And it was really traumatic and distressing for him.” The worker let Father know that if
he missed the next visit, the visits could be cancelled. Visits were subsequently cancelled
due to Father’s continued failure to attend them. The four visits Father did attend went
very well, with Father actively engaging the child, soothing the child when he became
distressed, and generally parenting the child well. Father stated that he was not visiting
because he did not like the visits supervised and he did not trust the Agency. Father
initially agreed to meet with the social worker, but failed to follow through, rescheduling
in-person meetings with the social worker and failing to show up or make contact with
her when he missed the third rescheduled meeting. He refused to participate in substance
abuse assessment or in anger management assessment. Nor did Father participate in six
of eight drug tests requested by the Agency. He tested negative on the first test and
positive for THC (an ingredient in marijuana) on the second. He refused to test
thereafter.
       Father maintained that he had done nothing wrong; that he was no longer on
parole or probation and had “earned” his freedom and “the right to say ‘no’.” He did not
believe he should have to comply with the Agency’s requests in order to have his son
returned. He also stated he could not enjoy his time with his son if visits were
supervised. When told that his son was very upset when he did not show up to a visit,
Father replied, “I don’t think anything could break me and my son’s bond. Not a visit.
Nothing.” Asked about the child’s disappointment, Father stated: “You know, I did


                                               6
think about that a couple times, but I feel it’s the same thing as if when they cancel on me
at the very last minute. [¶] Really, I felt like we didn’t need supervised visits, so I felt as
through they should have been working harder for getting away from that if I did not
need it.”
       At the end of the jurisdiction hearing the court found that taken as a whole, and
after weighing the credibility of the witnesses, there was “more than sufficient evidence
to sustain the allegations set forth as a failure to protect under [s]ection 300 (b).”2 At
disposition, the court placed the child with his paternal grandparents, with whom the


       2
           In declaring the child as a dependent child under section 300, subdivision (b),
the court found the following true as to Father:
        “The 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 . . . to supervise or protect the child adequately[,] by the willful or negligent failure
of the parent . . . to provide the child with shelter[.]”
        “B-1 The alleged father’s behavior has become indicative of resumed substance
abuse. On or about 08/17/2012 the alleged father engaged in an angry and threatening
verbal altercation with the [grandfather], which took place in front of the child.
        “B-2 The alleged father has an untreated substance abuse problem which impacts
his ability to safely parent the child.
        “B-3 The alleged father has a substance abuse history which includes
methamphetamine and alcohol.
        “B-4 The alleged father has an untreated anger management problem which is
impacting his ability to safely parent the child.
        “B-5 The alleged father took the child on or about 08/17/2012, leaving the home
of relatives and moved into the home of a known felon and drug dealer.
        “B-6 On 08/22/2012 at the [specified] address, the alleged father and the child
were present, as well as two large dogs, a pit bull and a Canario Presario [sic] which the
child has ready access to.
        “B-7 On 08/22/2012 piles of dog feces were observed on the floor of the
residence where the alleged father and the child were residing.
        “B-8 The alleged father has a criminal history dating back to 1999 which includes
DV, sexual battery w/oral copulation w/force, forging checks, using a stun gun,
possession of a controlled substance, burglary tools, obstructing a police officer,
receiving stolen property and reckless driving.
        “B-9 The alleged father is the subject of a current restraining order.”
        Findings sustained as to the mother are omitted here.


                                               7
child had been residing since his initial removal. Reunification services were granted to
the parents and the matter was set for a six-month review.3
                                      DISCUSSION
                                 I. Warrantless Detention
       Father first argues that his constitutional rights were violated and the removal was
improper because the social worker failed to obtain a warrant to remove the child. He
argues that because the investigation did not show the child was in immediate danger—
no drugs or guns were found in the quick survey done by the officers—the social worker
was obligated to obtain a warrant before removing him from Father’s custody. Father
also contends the worker gave him no opportunity to remove the child to a safer location,
as Father requested. We disagree.
       Under the Fourth and Fourteenth Amendments, government officials are
prohibited from removing children from their parents’ custody without a warrant or other
judicial preauthorization unless the official has “ ‘reasonable cause to believe that the
child is likely to experience serious bodily harm in the time that would be required to
obtain a warrant.’ ” (Arce v. Children’s Hospital of Los Angeles (2012) 211 Cal.App.4th
1455, 1473-1474 (Arce), quoting Rogers v. County of San Joaquin (9th Cir. 2007)
487 F.3d 1288, 1294 (Rogers); see also Mabe v. San Bernardino County, Dept. of Public
Social Services (9th Cir. 2001) 237 F.3d 1101, 1106 (Mabe).)
       First, we observe that the cases relied upon by Father, Arce, Rogers and Mabe, all
involve civil actions for damages under 42 U.S.C. section 1983, brought by parents
against authorities after juvenile dependency proceedings had concluded. (Arce, supra,
211 Cal.App.4th at p. 1460; Rogers, supra, 487 F.3d at p. 1290; Mabe, supra, 237 F.3d at
p. 1104.) No case cited by Father or found by us overturns a court’s taking of jurisdiction
in dependency proceedings for the failure of the Agency to obtain a warrant, where the
taking of jurisdiction was otherwise appropriate and supported by substantial evidence.

       3
        The Agency advises that the matter was transferred to Sacramento County on
December 18, 2012, that Father continues to receive reunification services, and that the
matter is currently scheduled for a 12-month review on November 5, 2013.

                                              8
       Here, assuming Father were successful in showing that the social worker had no
reasonable basis for removing the child without obtaining a warrant, such finding might
give rise to a civil action by Father against authorities. However such finding would not
imply the invalidity of the underlying dependency court jurisdiction and disposition
orders that look to the future. “The previous findings and orders made at the detention
hearing . . . are generally made moot by the jurisdiction and disposition determinations
and thus cannot be considered on appeal. [Citation.]” (Seiser & Kumli, On California
Juvenile Courts Practice and Procedure (LexisNexis 2013 ed.) § 2.190[1], p. 2-584, citing
In re Raymond G. (1991) 230 Cal.App.3d 964, 967.) The standards for removal of a
child by a police officer without a warrant and without judicial authorization are different
from the standards governing the court’s determination at the detention hearing or any
other later dependency proceeding. “If a minor has been taken into custody under this
article and not released to a parent or guardian, the juvenile court shall hold a [detention]
hearing . . . to determine whether the minor shall be further detained.” (§ 315; see also
§ 319, subd. (b).)4
       In any event, in this case, exigent circumstances supported the worker’s removal
of the child without a warrant. “Social workers constitutionally may remove a child from
the custody of a parent without prior judicial authorization if the information they possess
at the time of seizure provides reasonable cause to believe that the child is in imminent
danger. [Citations.] Section 306, subdivision (a)(2) empowers a social worker to take a
child into temporary custody under certain circumstances, without a warrant, if the child


       4
         Because the issue at a detention hearing concerns the risk to the child in the
future, the issue whether the police officers had the right to remove the child from
parental custody without a warrant and without prior judicial authorization is not
necessarily litigated. (See Mabe, supra, 237 F.3d at p. 1110 [“[t]he [later] juvenile
court’s findings are not relevant to whether a sufficient exigency existed at the time of the
removal to justify the warrantless action because such an inquiry is to be based on the
information that [the officer] had at the time”]; Anderson–Francois v. County of Sonoma
(N.D.Cal.2009) 2009 WL 1458240, p. *6 [rejecting argument that a claim challenging the
initial warrantless removal of a child was barred by findings during later juvenile
dependency proceedings], aff’d (9th Cir.2011) 415 Fed.Appx. 6.)

                                              9
is in immediate danger. (Ibid.) [‘Any social worker in a county welfare
department . . . may . . . (2) Take into and maintain temporary custody of, without a
warrant, a minor . . . .who the social worker has reasonable cause to believe is a person
described in subdivision (b) or (g) of Section 300, and the social worker has reasonable
cause to believe that the minor has an immediate need for medical care or is in immediate
danger of physical or sexual abuse or the physical environment poses an immediate
threat to the child’s health or safety’].) (M.L. v. Superior Court (2009) 172 Cal.App.4th
520, 527, italics added; see Arce, supra, 211 Cal.App.4th at p. 1474.)
       The circumstances described by the social worker in this case demonstrate that at
the time she removed the child from Father’s custody, Higgins had ample reason to
believe that the toddler was in immediate danger of serious physical injury, as the
physical environment posed an immediate threat to his health and safety. Higgins knew
that Father and the child were residing in the home of a known drug dealer in a house
where dangerous dogs were kept; two dangerous dogs were present at the home and the
child had access to them; Higgins found a pit bull that had bitten the homeowner in a
room around the corner from the toddler; the owner of the dog appeared to be under the
influence of drugs at the time and seemed unable to control the dog, faulting the owner
for “inappropriately approaching” the dog. Father, who was suspected of using
methamphetamines again, appeared “oppositional and edgy” and his behavior and
presentation led Higgins to suspect he was under the influence of methamphetamine or
uppers. Dog feces in the home was accessible to the child and in Higgins’s opinion
presented a significant hygiene issue. Finally, Father’s suggestion that the child be given
to the mother—whom both Higgins and Father knew to be a completely inadequate
caregiver and who had stated her desire to be buried alive with her children, further
supported Higgins’s assessment that exigent circumstances warranted the immediate
removal of the child. That the quick sweep of the home by the police did not turn up
drugs or guns, did not eviscerate the exigent circumstances upon which the warrantless
removal was based.



                                            10
                                        II. Jurisdiction
       Father contends there was insufficient evidence to support the jurisdictional
findings made by the court. Specifically, Father contends there was no verifiable
evidence that he was using drugs; the reported criminal history was untrue; no drugs or
guns were found in the home; and the dogs were secured away from the child who
appeared to be appropriately supervised. We disagree.
       “At the jurisdictional hearing, the dependency court’s finding that a child is a
person described in section 300 must be supported by a preponderance of the evidence.
(§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review
the dependency court's jurisdictional findings for substantial evidence, and review the
evidence in the light most favorable to the dependency court’s findings and draw all
reasonable inferences in support of those findings. [Citation.]” (In re John M. (2013)
217 Cal.App.4th 410, 418.)
       Section 300, subdivision (b) provides a basis for jurisdiction where “[t]he child
has suffered, or there is a substantial risk the child will suffer, serious physical harm or
illness as a result of the failure or inability of his or her parent . . . to adequately supervise
or protect the child . . . .” (Ibid.) As we said in In re Rocco M. (1991) 1 Cal.App.4th
814: 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 minor, or a ‘substantial risk’ of such harm or illness.” (Id.
at p. 820.) “Subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical harm or illness.” (Id. at p. 823.)
       Nevertheless, “[t]he court need not wait until a child is seriously abused or injured
to assume jurisdiction and take the steps necessary to protect the child.” (In re R.V.
(2012) 208 Cal.App.4th 837, 843; accord, In re T.V. (2013) 217 Cal.App.4th 126, 133.)
In determining whether circumstances at the time of the hearing subject the child to the
defined risk of harm, the court may consider past events in determining whether the child
needs the court’s protection. (In re T.V., at p. 133.) “A parent’s past conduct is a good


                                               11
predictor of future behavior. [Citation.] ‘Facts supporting allegations that a child is one
described by section 300 are cumulative.’ [Citation.] Thus, the court ‘must consider all
the circumstances affecting the child, wherever they occur.’ [Citation.]” (Ibid.)
       In evaluating risk based to the child, a juvenile court should consider the nature of
the conduct involved and all surrounding circumstances. “ ‘It should also consider the
present circumstances, which might include, among other things, evidence of the parent’s
current understanding of and attitude toward the past conduct that endangered a child, or
participation in educational programs, or other steps taken, by the parent to address the
problematic conduct in the interim, and probationary support and supervision already
being provided through the criminal courts that would help a parent avoid a recurrence of
such an incident. The nature and circumstances of a single incident of harmful or
potentially harmful conduct may be sufficient, in a particular case, to establish current
risk depending upon present circumstances.’ (In re J.N. (2010) 181 Cal.App.4th 1010,
1025-1026.) We must have a basis to conclude there is a substantial risk the parent’s
endangering behavior will recur.” (Id. at p. 1026.)” (In re John M., supra,
217 Cal.App.4th at pp. 418-419.)
       Here, substantial evidence supporting the court’s jurisdictional finding was
provided by evidence that Father, who had a criminal history involving drug abuse and
violence, among other things, was again using methamphetamine; that he had engaged in
an angry and threatening verbal altercation with the grandfather in the presence of the
child, who was very frightened; and that he had taken the child to live in a home of a
known drug dealer, in which two very dangerous dogs were present and accessible to the
child. At the time of the jurisdiction hearing, Father evidenced no understanding of the
risk to which he had exposed his son and maintained he had done nothing wrong and
should not have to address any of the issues of concern to the Agency, including anger
management, possible substance abuse, or parenting inadequacies. He showed no
understanding of the depth of his son’s disappointment when Father simply failed to
show up at a visit.



                                             12
       Father maintains that there was inadequate evidence of his resumed substance
abuse. He argues that an “empirical or verifiable diagnosis” is required, relying on cases
such as In re Destiny S. (2002) 210 Cal.App.4th 999 and Jennifer A. v. Superior Court
(2004) 117 Cal.App.4th 1322 (Jennifer A.). These cases are clearly distinguishable.
       In re Destiny S, supra, 210 Cal.App.4th 999, involved the taking of jurisdiction of
an 11-year-old child under section 300, subdivision (b), based on the mother’s drug use.
Mother admitted a history of methamphetamine and marijuana use and told the social
worker she smoked marijuana on a weekly basis, but not around the child. She tested
positive for marijuana and methamphetamine on October 11, at which time the
department took Destiny from mother and placed her with her maternal grandmother.
The mother was ordered to submit to weekly drug tests. Uncontradicted evidence at the
jurisdiction hearing showed Destiny was a healthy, happy preteen, who wanted to return
to her mother. All five of the drug tests to which the mother submitted between
November 11 and January 12 were negative. The Court of Appeal reversed the
jurisdictional order on the grounds that “a parent’s use of marijuana ‘without more,’ does
not bring a minor within the jurisdiction of the dependency court. [Citation.] The same is
true with respect to the use of hard drugs. [Citations.] Instead, the [department] had to
present evidence of a specific, non-speculative and substantial risk to Destiny of serious
physical harm. [Citation.]” (Id. at p. 1003.) The appellate court concluded that there was
no evidence in the record that mother’s drug use caused her to neglect the child, who
appeared to be thriving. Finally, the mother had tested clean for marijuana and
methamphetamine for three months. (Id. at p. 1004.)
       Here, of course, the court did not take jurisdiction over the child because of
Father’s use of medical marijuana or his suspected return to methamphetamine use,
“without more.” The “more” was evidence of Father’s behavior, including his behavior
toward this young child—screaming at the two year old to “shut the fuck up” in the
mornings, shouting and behaving aggressively toward the grandfather in the child’s
presence and to the child’s distress, and most seriously, his taking the child to the home
of a suspected drug dealer, where dangerous dogs were present, insufficiently controlled,


                                             13
and accessible to the toddler. This evidence of risk of harm was nonspeculative and
substantial.
       Jennifer A., supra, 117 Cal.App.4th 1322, 1326, was a case in which mother
petitioned for writ of mandate, seeking relief from a juvenile court’s order that terminated
reunification services, not an order taking jurisdiction. In Jennifer A., the mother had
complied with her case plan, had completed parenting classes and counseling. She had
missed no counseling sessions. She was permitted daily, unmonitored visits and her
therapist confirmed that she was far removed from leaving the children unattended—the
behavior that had triggered jurisdiction. Over all, the mother was in general compliance,
had kept appointments, responded to comments from the social worker and informed him
of pertinent changes. There was no evidence that mother was using drugs at the time she
cared for the children or that she was not an adequate caretaker. (Id. at p. 1342.) The
only real issue was that of 95 twice-weekly testing obligations, mother tested positive for
marijuana once, was unable to void once, had missed nine drug tests, and gave diluted
specimens five times. The missed tests were considered to be positive tests, but the
appellate court held that her completion of about 84 drug-free tests was sufficient to
avoid termination of her parental rights. (Id. at p. 1343.) She was not required to
demonstrate perfect compliance. (Ibid.) The children were removed because she had left
them alone to go to work. Although there was some concern that she might have an
unresolved substance abuse problem that affected her parenting, the court observed that
was not the reason the children were detained and that the juvenile court’s finding that
return of the children would create a substantial risk of detriment to their safety,
protection or physical or emotional well-being was not supported by substantial evidence.
(Id. at pp. 1345-1346.) The court also observed that there was no evidence presented to
establish that the mother had “displayed clinical substance abuse, that is, ‘[a] maladaptive
pattern of substance use leading to clinically significant impairment or distress . . .
occurring within a 12-month period.’ [Citation.] No medical professional diagnosed
Mother as having a substance abuse problem, no medical professional testified at the 18-
month review hearing, and there was no testimony of a clinical evaluation. ‘We have no


                                              14
clinical evaluation, no testing to indicate [substance abuse], just the opinion of the
mother’s social worker and a therapist.’ (Blanca P. v. Superior Court [(1996)] 45
Cal.App.4th [1738,] 1751.)” (Jennifer A., at p. 1346.) The court also emphasized that
there was no testimony linking the mother’s marijuana and alcohol use to her parenting
judgment or skills. In the social worker’s many contacts with the mother, “she never
seemed to be under the influence of alcohol or drugs. Most critically, the social worker
testified Mother did not have a drug problem that affected her parenting skills. Th[is]
evidence was insufficient to support a finding Mother could not provide a home ‘free
from the negative effects of substance abuse.’ (§ 300.2)” (Jennifer A., at p. 1346.)
       To extract from this case the proposition that a court must have an “empirical or
verifiable diagnosis” of the parent’s substance abuse before taking jurisdiction over the
child in the circumstances here stretches Jennifer A., supra, 117 Cal.App.4th 1322, far
beyond its facts. Here, unlike Jennifer A., family members, including the grandfather and
Father’s sister, noticed that Father had begun to exhibit behaviors and patterns he had
previously exhibited when he abused methamphetamines and alcohol. He slept at
inappropriate times, left his toddler to roam the house without supervision while he slept,
his pupils were dilated, he was often angry and impatient and would tell his son and
parents to “fuck off” and leave him alone. When his parents confronted him regarding
his possible resumption of methamphetamine use, they were met with anger, threats and
hostility by Father The grandfather’s testimony concerning Father’s behavior, including
his recent volatility, which in grandfather’s experience indicated Father’s return to
methamphetamine, and the social worker’s observations of Father’s behavior during her
interaction with him were sufficient to raise a concern about Father’s return to substance
abuse at this point, particularly in light of Father’s history of drug abuse. Father’s
persistent failure to cooperate with the Agency on assessments for substance abuse or
anger management, drug testing, visitation, appointments with social services or other
suggestions that would enable the court to have confidence that the child could be safely
returned to his custody provides further evidence that the child was at substantial risk.
The main risk to the child was Father’s having placed the him in an environment that was


                                             15
clearly dangerous to the two-year-old’s physical safety and well being. This behavior,
coupled with Father’s adamant refusal to recognize that his behavior had placed the child
at risk and his refusal to cooperate with the Agency in nearly every respect, warranted the
court’s findings and its declaring the child a dependent child under section 300,
subdivision (b).
                                      III. Disposition
       Father contends the court erred in removing the child from his custody. He
contends “there was insufficient evidence that met the clear and convincing standard of
proof necessary to have [the child] removed.”
       Initially, we point out once again that although the standard in the trial court was
“clear and convincing” evidence, our appellate standard of review is “substantial
evidence,” not clear and convincing evidence. (In re Henry V. (2004) 119 Cal.App.4th
522, 529.) As described above, the record contains substantial evidence warranting the
court’s removal of the child and its refusal to place the child with Father at the time of the
jurisdiction and detention proceedings.
       As part of his argument regarding disposition, Father also contends services were
available to prevent removal of the child from his custody and that Father’s offer to
immediately vacate the dangerous home and stay with the child’s godmother across the
street should have been explored. This argument founders at the outset, as the social
worker did not recall Father making such a request, but rather recalled that Father asked
to have the child placed first with the child’s mother, despite Father’s knowing that she
was not fit to care for the child. The credibility of Father and the social worker were
determinations for the trial court to make. The court need not have believed that Father
made such an offer. Furthermore, the question is not whether the social worker should
have allowed Father to take the child to the godmother’s home upon initial removal.
Rather it is whether substantial evidence supported the removal of the child from Father’s
custody at disposition. We conclude that it did.
       Although he contends services were available to prevent removal of the child, at
the point of the disposition hearing, Father had rejected participating in or receiving any


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services, including assessments for substance abuse and anger management, and had even
gone so far as to stop visiting with his son because he didn’t feel their visitation should be
supervised. To argue on appeal that services were “available” to avoid removal of the
child ignores the demonstrated fact of his refusal to participate in such services up to that
point.
         Substantial evidence on this record supports the court’s continued removal of the
child and refusal to place him with Father at disposition.
         The jurisdiction and disposition orders are affirmed.




                                                   _________________________
                                                   Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Richman, J.




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