Filed 7/27/15 In re J.G. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re J.G. et al., Persons Coming Under the                          H041499
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. Nos. 114JD22654 &
                                                                     114JD22655)

SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

         Plaintiff and Respondent,

         v.

C.O.,

         Defendant and Appellant.



         Cindy O., the mother of J. and X., appeals from orders declaring them to be
dependents of the juvenile court pursuant to Welfare and Institutions Code section 300.1
The mother contends: (1) there was insufficient evidence to support the juvenile court’s
determination that her sons were described in section 300, subdivision (b); and (2) the
juvenile court erred by removing X. from her custody.2 We affirm.


1
      All further statutory references are to the Welfare and Institutions Code.
2
      J.G., Sr., (J.G.) is the presumed father of J. R.M. is the presumed father of X.
Neither father is a party to the present appeal.
                         I. Procedural and Factual Background
       On June 16, 2014, the Santa Clara County Department of Family and Children’s
Services (Department) filed petitions alleging that 12-year-old J. and three-year-old X.
came within the provisions of section 300, subdivisions (b) [failure to protect] and (g) [no
provision for support]. The petition alleged: on June 12, 2014, the police executed a
search warrant at the residence of the mother and R.M.; the police found
methamphetamine and drug paraphernalia in the mother’s room and methamphetamine,
cocaine, marijuana, scales, and guns in the garage where R.M. slept; the drugs and drug
paraphernalia in both locations were accessible to the children; the mother and R.M. were
arrested for possession of methamphetamine and child endangerment; J. and X. were
placed into protective custody.
       Three days before the petition was filed, the social worker met with the children.
J. stated that he lived with his mother, grandmother, uncle, and his brother’s father R.M.
According to J., R.M. is a “ ‘shady guy’ ” and when R.M. is around “he gets a bad feeling
in his stomach.” J. did not disclose violence in the home. He also stated that he did not
believe that his mother used drugs and he had not seen drugs in the home. J. had recently
begun visiting his father. He stated that he would be scared to live with his father, but
could not explain why.
       About a month later, the petitions as to both children were amended to include the
following allegations: there were scales and cocaine, which were accessible to the
children, in the mother’s room; the mother had an untreated substance abuse problem;
and the mother had pending criminal charges for child cruelty, possible injury to a child,
and possession of drug paraphernalia. The petition as to X. included additional
allegations: R.M. had an untreated substance abuse problem; R.M.’s criminal history
included weapon and drug offenses; and R.M. had pending criminal charges for child



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cruelty; possible/injury death; possession for sale of controlled substances; and carrying a
concealed dirk or dagger.
       The jurisdiction/disposition report was prepared on July 23, 2014. The social
worker recommended that the first amended petition be sustained as to both children,
family reunification services be ordered for the mother and R.M., the dependency be
dismissed for J., and J.G. be awarded custody of J.
       The social worker provided information from the police report. When they
executed the search warrant, the police found a digital scale, unused packaging material,
approximately 1.26 grams of cocaine, .90 grams of methamphetamine, and other drug
paraphernalia in the garage where R.M. slept. They found .30 grams of
methamphetamine in the nightstand drawer, unused packaging material, a digital scale, a
methamphetamine pipe, a pay/owe sheet, .14 grams of methamphetamine in a container
in the closet, a baggie with a suspected cutting agent, and a baggie containing .25 grams
of cocaine in the mother’s bedroom. According to the police, the drugs located in the
garage and the bedroom were accessible to the children. They also noted that the
children’s clothes were found in the same area in which the drugs were located.
       The social worker met with the mother, who had been released from jail. The
mother stated that the drugs in the room belonged to her and that she was not selling
drugs. She also stated that she began using methamphetamine about eight months ago,
she was hardly ever home, and she locked her room when she left. She and R.M. used to
share the room, but he moved into the garage after they separated. According to the
mother, she stopped using drugs when her sons were placed into foster care. The mother
was willing to participate in programs in order to reunite with them.
       The social worker had not yet received the drug assessment report on the mother.
The mother had been referred to the deferred entry of judgment program and ordered to



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complete 30 hours of community service. Her criminal charges remained pending until
she completed the program requirements.
       Both children were placed in a foster home, but they often spent the night at J.G.’s
home. The mother had supervised visitation two to three times a week for four hours.
The maternal uncle and the maternal grandmother supervised the visits.
       An addendum report was prepared on September 9, 2014. Though all visits
between the children and the mother were to be supervised, the mother had taken the
children to J.G.’s house without supervision. The mother spoke negatively about J.G. in
her children’s presence even after the social worker told her to stop. The social worker
also told the mother that she needed to maintain contact with her. However, when the
social worker subsequently called her and e-mailed her, she did not receive a response.
The mother had not communicated with the social worker since August 8, 2014.
       The social worker spoke with J., who stated that he wanted to live with his mother
and did not want to live with his father.
       The social worker met with R.M., who told her that he did not want X. returned to
the mother’s care. He explained that X.’s uncle took care of X. during the day and R.M.
took care of him during the evening. R.M. stated that both he and the mother used and
sold drugs. However, he “took the blame for the entire crime,” because he thought he
would go to prison and lose his parental rights. Since he had a chance to reunite with his
son, he wanted to be honest. According to R.M., the mother and her family knew he was
selling drugs, because there were several people coming in and out of the house. He also
gave the money from the drug sales to the mother or to the maternal grandmother. R.M.
also stated that the mother has been using methamphetamine for the past three or four
years and did not breastfeed X. because she was using methamphetamine. The mother’s
current boyfriend is “just like” R.M. and would try to take R.M.’s clientele when he was
selling drugs. R.M. told the social worker that the mother was “hardly ever home,” and

                                             4
sometimes would leave for three or four days at a time. According to R.M., both J. and
X. ate cereal for lunch and dinner. They also would be left alone in the living room while
the adults were in their own rooms. The maternal family would leave X. in a dirty diaper
for extended periods and wait for R.M. to return home so that he could change it. They
also made negative comments about J.G. in J.’s presence.
       The social worker had referred the mother to outpatient treatment at Pathway
South County and encouraged her to attend a 12-step program. The treatment status
report, dated September 4, 2014, indicated that the mother had been attending outpatient
treatment on a regular basis. The mother submitted to drug testing on four occasions.
One result was pending and three results were negative. However, the mother had missed
five drug tests.
       A second addendum report was prepared on September 23, 2014. J.G. had
provided the social worker with text messages that he had copied from J.’s cell phone.
J.G. was concerned with the mother’s use of profanity in communicating with J. In one
text exchange J. told his mother that she had been gone for five hours, and she responded:
“Dud I was fucken busy sol fucken chill dud. Dnt fckn tell rirro [his uncle] or mami [his
grandmother] I got home late.” In another text, she told J. that the “Cops” came to check
on [R.M.] and she wanted J. to text him to find out “wat d fuck is going on.” She also
told J. to tell people that she was not in the room, she was doing hours for welfare, and
not to say anything bad about her. On another occasion, J. texted his mother that he was
in trouble, because she kept texting him while he was in class. In response, the mother
continued to tell him about her relationship with her boyfriend and told him to put his
phone on silent.
       Though the social worker had left several messages with the maternal relatives for
the mother to call her, she had not heard from the mother since August 8, 2014. The
mother did not submit to drug testing between August 21 and September 22, 2014.

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       The social worker also provided information about J.’s glasses. In mid-June 2014,
the social worker had delegated the responsibility to find J.’s glasses to the mother. The
mother eventually ordered prescription glasses for J. However, the glasses that she
obtained were not the correct prescription. J.G. took J. to an optometrist and obtained
glasses for J.
       On September 12, 2014, the contested jurisdiction and disposition hearing began.
The jurisdiction/disposition report and the addendum report were admitted into evidence.
Melanie R., the mother’s 14-year-old stepcousin, testified that she lived with the mother
for less than a month before the police executed the search warrant. There was a lock on
the mother’s bedroom door and Melanie never saw X. or J. enter their mother’s room.
Melanie initially testified that X. and J. were able to go into the garage, but they did not
enter it. However, she later testified that J. once entered the garage to get paper towels
and X. once slept with R.M. in the garage. Melanie never noticed that the children were
in physical danger or hungry. She never saw strange people coming in and out of the
house and she never felt afraid in the house. She also never saw drugs and alcohol in the
house. According to Melanie, the mother frequently left the house during the night while
the children slept and returned early in the morning.
       Rosa R., Melanie’s mother, testified that she lived with the mother for about two
months. Rosa R. left the house for work at around 6:30 a.m. and would return between
3:30 p.m. and 5:00 p.m. Rosa R. also worked weekends. She never saw X. or J. enter
their mother’s room, because the door was locked. She also confirmed that the mother
went out at night, but she could not say how often. She saw the children in the garage
twice. Rosa R. never saw anything related to drugs in the house.
       Two weeks later, the continued hearing was held. The second addendum report
and documentation of the mother’s charges were admitted into evidence. The mother had
pleaded guilty to child cruelty, possible injury to a child, and possession of a controlled

                                              6
substance. After amending the dependency petitions to conform to the charges listed in
the deferred entry of judgment and striking the section 300, subdivision (g) allegations,
the juvenile court sustained the petitions under section 300, subdivision (b).
       The hearing continued on dispositional issues. J.G. authenticated some text
messages that the mother had sent to J. and the transcripts of these messages were
introduced into evidence.
       Anne Marie Cleveland, a social worker, testified as an expert in risk assessment
and the development of case plans for dependency court. Cleveland had reviewed the
text messages that the mother had sent to J. Cleveland expressed several concerns about
these texts: the mother was coaching J. to not say anything negative about her; she was
discussing her relationship with her boyfriend; she was texting him while he was in
school; she was using profanity; and she was coaching him to hide information from her
family. Cleveland also testified that the mother had not been in contact with the
Department between August 8 and September 25, 2014. Though Cleveland had tried to
reach the mother several times, the mother had never responded. The mother had not
been submitting to drug tests, and thus Cleveland did not know if she was clean and
sober. The social worker also did not know if the mother was participating in any
programs or classes.
       Cleveland was also concerned that the mother was interfering with the relationship
between J.G. and J. After the children were placed with J.G., the mother began making
accusations that J.G. was drinking and using drugs. The mother also referred to J.’s
stepmother as a “bitch.”
       Cleveland testified that J. did not want to live with J.G. and preferred to live with
his maternal grandmother. J. had an attachment to the mother and had said that he really
wished that he could go home, where his mother resided.



                                              7
       The juvenile court admitted into evidence a letter written by J. in which he
expressed his desire to live with his maternal grandmother while his mother recovered. J.
testified briefly and stated that “home” to him was his grandmother’s house.
       Following argument, the juvenile court ordered joint legal custody of J. to the
mother and J.G., physical custody to J.G., supervised visitation to the mother, and
dismissed the case. The juvenile court ordered the removal of X. from the custody of the
mother and R.M. and reunification services to both parents.


                                        II. Discussion
       The mother contends that the juvenile court erred in asserting jurisdiction over J.
and X. under section 300, subdivision (b), because there was insufficient evidence that
there was a substantial risk of serious harm to the children at the time of the jurisdiction
hearing.
       In order to exercise its jurisdiction over a child in a dependency case, the juvenile
court must find that the child is a person described by one or more of the section 300
subdivisions. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.) Section 300,
subdivision (b) provides in relevant part: “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 adequately supervise or protect the child . . . . The
child shall continue to be a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious physical harm or illness.” A
finding of substantial risk requires a showing that, at the time of the jurisdiction hearing,
the child is at risk of future harm. (In re Savannah M. (2005) 131 Cal.App.4th 1387,
1396.) However, “[t]he court may consider past events in deciding whether a child
presently needs the court’s protection. [Citation.] A parent’s ‘ “[p]ast conduct may be



                                                8
probative of current conditions” if there is reason to believe that the conduct will
continue.’ [Citation.]” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
       “Section 300 jurisdiction hearings require a preponderance of the evidence as the
standard of proof. (§ 355, subd. (a).) In reviewing the sufficiency of the evidence on
appeal, we look to the entire record for substantial evidence to support the findings of the
juvenile court. We do not pass on the credibility of witnesses, attempt to resolve
conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we
draw all reasonable inferences in support of the findings, view the record in the light most
favorable to the juvenile court’s order and affirm the order even if there is other evidence
supporting a contrary finding. [Citations.] The appellant has the burden of showing there
is no evidence of a sufficiently substantial nature to support the order. [Citations.]” (In
re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388.)
       The mother concedes that there was substantial evidence that she had substance
abuse issues, but she argues that there was insufficient evidence that these issues had any
impact on her ability to parent J. and X. or placed them at risk of harm. She relies on In
re David M. (2005) 134 Cal.App.4th 822 (David M.) and In re James R. (2009) 176
Cal.App.4th 129 (James R.) to support her position.
       David M., supra, 134 Cal.App.4th 822 held that the record did not support
jurisdictional findings under section 300, subdivision (b). (David M., at p. 825.) In that
case, two-year-old David and two-day-old A. were removed from their parents’ custody.
The mother had used marijuana on at least one occasion during her pregnancy with A.
and failed to obtain prenatal care early in this pregnancy, but A. tested negative for drugs
at birth. (Id. at p. 826.) The mother had been diagnosed as delusional three years prior to
the dependency proceeding due to her history of marijuana use. (Ibid.) The father had
been diagnosed with social and anxiety disorder and depression. (Id. at p. 827.)
David M. also noted that David was “healthy, well cared for, and loved, and that mother

                                              9
and father were raising him in a clean, tidy home” and that the mother tested negative for
drugs approximately 18 times between the detention hearing and the jurisdiction hearing.
(Id. at p. 830.) There was also no evidence that David was exposed to drugs or drug
paraphernalia. (Id. at p. 831.) David M. concluded: “The record on appeal lacks any
evidence of a specific, defined risk of harm to either David or A. resulting from mother’s
or father’s mental illness, or mother’s substance abuse. Certainly, it is possible to
identify many possible harms that could come to pass. But without more evidence than
was presented in this case, such harms are merely speculative. [Citation.]” (Id. at
p. 830.)
       In James R., supra, 176 Cal.App.4th 129, the mother had been hospitalized for
consuming alcohol and ibuprofen, had a history of suicide attempts, and had previously
been treated for depression but had not complied with health care providers. (Id. at
pp. 131-132.) When the jurisdiction hearing was held, the mother had been consistently
participating in therapy and substance abuse treatment for three months. (Id. at p. 133.)
The children were in school or daycare. (Ibid.) The social worker believed that the
father did not understand the mother’s mental health issues and he denied that she had a
substance abuse problem. (Id. at p. 134.) The social worker also believed the children
were safe in their father’s care, but was concerned that he might leave the children in the
mother’s care. (Ibid.) James R. concluded that since “[t]here was no evidence of a
specific, defined risk of harm to the minors resulting from [the mother’s] mental illness
or substance abuse, and no evidence [the father] did not or could not protect them,” there
was insufficient evidence to support the jurisdictional findings under section 300,
subdivision (b). (Id. at p. 137.)
       David M., supra, 134 Cal.App.4th 822 and James R., supra, 176 Cal.App.4th 129
are factually distinguishable from the present case. Here, the risk of serious physical
harm to J. and X. was not speculative. Methamphetamine, cocaine, and drug

                                             10
paraphernalia were found in the garage and in the mother’s bedroom, and the drugs and
drug paraphernalia were accessible to both children. Though the mother claimed that she
was not selling drugs, packaging material, a digital scale, and a pay/owe sheet were found
in her bedroom. The mother also minimized her drug use. Though claiming that she
been using methamphetamine for the previous eight months, there was also evidence that
she had been using the drug for the previous three years. She did not submit to drug
testing during the month prior to the jurisdiction hearing. Moreover, there was evidence
that the mother had neglected the children. She failed to obtain glasses with the correct
prescription for J., the children ate cereal for lunch and dinner, and X.’s diaper was not
changed unless R.M. was home. The mother also stated that she was hardly ever home.
The juvenile court could reasonably conclude that this neglect was a result of the
mother’s drug use. There was no evidence at the time of the jurisdiction hearing that the
mother was currently participating in treatment to address her substance abuse or that any
changes had been made in the home environment. Thus, there was substantial evidence
that the mother’s substance abuse constituted a substantial risk that both children would
suffer serious physical harm.
       The mother next contends that there was insufficient evidence to support the
dispositional order removing X. from her parental care.
       Section 361, subdivision (c) provides in relevant part: “A dependent child may
not be taken from the physical custody of his or her parents . . . 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 . . . physical custody.”

                                              11
       “ ‘ “ ‘The parent need not be dangerous and the minor need not have been actually
harmed before removal is appropriate. The focus of the statute is on averting harm to the
child.’ [Citation.] The court may consider a parent’s past conduct as well as present
circumstances.” ’ [Citation.]” (In re Lana S. (2012) 207 Cal.App.4th 94, 105.) We
review a dispositional order under the substantial evidence standard. (Ibid.)
       Here, the police had found drugs and drug paraphernalia that were accessible to
the children in the home. The mother’s current boyfriend was involved in selling drugs.
Despite evidence of the mother’s history of drug abuse and her own participation in
selling drugs, the mother failed to drug test or have any contact with the Department for a
month prior to the hearing. Thus, there was substantial evidence to support the juvenile
court’s finding that the mother’s home created a substantial danger to the health and
safety of three-year-old X. if he were returned to her care.


                                     III. Disposition
       The orders are affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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