Filed 1/8/16 In re Mc. H. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                                        THREE


In re MC.H., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G052211
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP024979)
         v.
                                                                       OPINION
M.H.,

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Dennis J. Keough, Judge. Affirmed.
                   Michele Anne Cella, under appointment by the Court of Appeal, for
Defendant and Appellant.
              Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
              No appearance for Minor.
                                 *           *           *


                                      INTRODUCTION
              Mc.H., now 11 years old (the minor) was taken into protective custody
because his younger brother, J.H., had suffered physical harm and had been starved by
his mother, M.O. (mother). The juvenile court declared the minor, J.H, and two other
siblings to be dependents of the juvenile court, and determined that it was in the
children’s best interests to be placed in the care and custody of the Orange County Social
Services Agency (SSA). The minor’s father, M.H. (father), appeals from the order
removing the minor from father’s custody and care. We affirm.
              Substantial evidence supported the juvenile court’s disposition order as to
the minor. Father’s use of drugs during the time in which J.H. was harmed by mother,
and father’s continuing drug use throughout the dependency period, created a substantial
danger to the minor’s health, safety, protection, and physical or emotional well-being.


                   STATEMENT OF FACTS AND PROCEDURAL HISTORY
              The minor and his three younger siblings (R.H., J.H., and Mi.H.) were
taken into protective custody due to J.H.’s severe malnutrition and multiple injuries. The
facts leading to the detention of the minor and his siblings are detailed in an unpublished
opinion. (Ma.H. v. Superior Court (Aug. 27, 2015, G051997).)
              Following a joint jurisdiction and disposition hearing, the juvenile court
declared all four children to be dependents of the court, and denied mother and father
reunification services as to R.H., J.H., and Mi.H.; reunification services were provided to



                                             2
mother and father as to the minor only. Both mother and father filed petitions for a writ
of mandate; this court denied both petitions. (Ma.H. v. Superior Court, supra, G051997.)
              The juvenile court also found reasonable efforts had been made to prevent
removal from the home (Welf. & Inst. Code, § 361, subd. (d)), and found by clear and
convincing evidence that it would be detrimental for the children to remain in the custody
and control of mother and father (id., § 361, subd. (c)(1)). Father filed a notice of appeal
from the juvenile court’s disposition order only with respect to the minor.1


                                        DISCUSSION
              We review the juvenile court’s finding that the minor would suffer
detriment if he remained in father’s care for substantial evidence, bearing in mind the
heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
              “‘“Parenting is a fundamental right, and accordingly, is disturbed only in
extreme cases of persons acting in a fashion incompatible with parenthood.”’” (In re
Basilio T. (1992) 4 Cal.App.4th 155, 169.) “[A]t the beginning of the dependency
proceedings, our statutory scheme expresses a presumption in favor of keeping parents
and children together. The burden of proof is on the Department to show that an
out-of-home placement is necessary at the commencement of the proceedings
[citation] . . . .” (In re Jasmon O. (1994) 8 Cal.4th 398, 420.) “Before a dispositional
order which awards custody to a nonparent without the consent of the parents can be
rendered, there must be a clear and convincing showing an award to the parents would be
detrimental to the child and that an award of custody to a nonparent is essential to avert
harm to the child and required to serve the best interests of the child.” (In re Jamie M.
(1982) 134 Cal.App.3d 530, 535.)


              1
              The minor’s siblings are not involved in this appeal, and will be
mentioned only as is relevant to the issues raised by this appeal.

                                             3
               “A dependent child shall not be taken from the physical custody of his or
her parents or guardian or guardians with whom the child resides at the time the petition
was initiated, unless the juvenile court finds clear and convincing evidence of any of the
following circumstances . . . : [¶] (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 or
guardian’s physical custody. . . . The court shall consider, as a reasonable means to
protect the minor, each of the following: [¶] (A) The option of removing an offending
parent or guardian from the home. [¶] (B) Allowing a nonoffending parent or guardian to
retain physical custody as long as that parent or guardian presents a plan acceptable to the
court demonstrating that he or she will be able to protect the child from future harm.”
(Welf. & Inst. Code, § 361, subd. (c)(1).)
               Father contends there was not substantial evidence that the minor would
suffer detriment in father’s care because father had not committed any acts of abuse
against any of the children, the minor had not been the direct victim of any abuse, and
there was no causal connection between father’s drug use and the risk of harm to the
minor.
               In re Hailey T. (2012) 212 Cal.App.4th 139 is not on all fours with this
case, but it is instructive. The parents’ four-month-old son was diagnosed with a
subconjunctival hemorrhage to the right eye, which had been caused nonaccidentally.
(Id. at p. 142.) A child abuse specialist opined that the parents’ three-year-old daughter
could not have inflicted the injury on her younger brother, and that the parents had struck
or strangled their son. (Id. at pp. 142, 144.) The juvenile court declared both children to
be dependents of the court, and removed them from the parents’ custody and control.
(Id. at p. 145.)



                                             4
              The appellate court reversed the disposition order as to the three-year-old
daughter, concluding, “the record does not support findings that there was a substantial
danger to [the daughter] if she were returned home or that there were no less drastic
alternatives than removal for protecting her.” (In re Hailey T., supra, 212 Cal.App.4th at
p. 147.) The court noted that the daughter had not suffered any abuse, and had not
suffered any harm as a result of the abuse committed against her younger brother. (Ibid.)
The court also noted that the daughter was four years old, would be able to articulate
allegations of abuse against her, and attended school, meaning that she had regular
contact with mandated reporters of abuse. (Ibid.) On these points, the present case is
identical to In re Hailey T.
              The cases differ in terms of the parents’ personal situations. In In re
Hailey T., supra, 212 Cal.App.4th at page 147, the parents had a “healthy relationship”
that was free from domestic violence. Neither suffered from substance abuse or mental
health problems. (Ibid.) The parents began participating in reunification services early in
the dependency process, and had made progress. (Id. at pp. 147-148.) In the present
case, father had separated from mother shortly after the inception of the dependency
proceedings. He suffered from substance abuse (as described post), although he had no
diagnosed mental health issues. Father had made little progress in reunification services,
although the cause for that failure was the subject of dispute.
              SSA argues, in part, that the minor would suffer detriment if he remained in
father’s care because father had admittedly never had primary responsibility for raising
his children. Courts have previously held that “poverty alone, even abject poverty
resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction.”
(In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212; see In re P.C. (2008) 165 Cal.App.4th
98, 104.) Similarly, a parent’s attempt to keep his or her family out of poverty by
working multiple jobs, and therefore not being the primary caretaker of young children,
cannot justify the assertion of custody over those children.

                                              5
              The proof of drug use by a parent, without more, cannot justify removal at
disposition. (In re Drake M. (2012) 211 Cal.App.4th 754, 769; In re Rebecca C. (2014)
228 Cal.App.4th 720, 728.) In the present case, however, SSA established, by clear and
convincing evidence, that father’s drug use created a substantial risk of harm to the
minor. During the predependency period, when J.H. was losing a significant amount of
weight, father was arrested for possession of a methamphetamine pipe. When the
arresting officer requested father’s consent to search him, father told the officer that he
might have methamphetamine on him. When father was later interviewed by SSA
regarding the allegations in the juvenile dependency petition, he claimed the pipe
belonged to his friend. Father admitted he had smoked methamphetamine “on prior
occasions” and with his friend “a couple of times only when the friend asked him.”
Father admitted he had last smoked methamphetamine a “couple of days” before his
arrest. Father denied ever having used drugs around his children.
              Between the inception of the dependency proceedings and the court’s
disposition ruling, father’s drug testing record was abysmal. From July 2014 through
December 2014, father had no negative test results, two positive test results, and more
than 30 missed tests.2 In December 2014, father began testing using a drug patch. In
four tests, three were positive and one was negative.
              In sum, there was substantial evidence that father was using
methamphetamine during the period in which mother was causing physical harm to J.H.,
and that father continued to use methamphetamine between the time the children were
detained and the time the juvenile court issued its disposition order. That J.H. was
harmed by mother during a time when father was admittedly using methamphetamine

              2
                  After the first set of missed tests, father claimed that his testing group had
not been called; SSA noted that father’s testing group had been changed during that time
period. Even if the juvenile court were to overlook father’s eight missed tests during that
period because of the change in testing groups, the remainder of his missed tests occurred
after that time, and father provides no explanation for his further missed tests.

                                               6
was a sufficient causal connection between father’s continued drug use and the risk of
harm to the minor if he were returned to father’s care.


                                       DISPOSITION
              The order is affirmed.




                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                             7
