In re S.C. CA2/8 ( 2014 )

Filed 12/23/14 In re S.C. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re S.C., a Person Coming Under the B255612
Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK00319)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ERIC C.,
Defendant and Appellant.
Appeal from orders of the Superior Court of Los Angeles County, Annabelle G.
Cortez, Judge. Affirmed.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant
and Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
*******
Father Eric C. (father) appeals the juvenile court’s orders exercising jurisdiction
over his seven-year-old daughter S.C. pursuant to Welfare and Institutions Code section
3001 and removing S.C. from his custody pursuant to section 361, subdivision (c). We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves only father and S.C., although mother S.R. (mother) and
S.C.’s two half-sisters, 14-year-old M.M. and 10-year-old D.M., who have a different
father, were involved in the proceedings below. In an amended petition, the Los Angeles
County Department of Children and Family Services (DCFS) alleged mother
“inappropriately physically disciplined” D.M. by repeatedly striking her hands with
sandals, pushing her, pulling her hair, and throwing her to the floor. On other occasions,
she struck D.M.’s legs, arms, and hands with sandals. It was further alleged mother
possessed marijuana in M.M.’s presence, within access of the children. Based on those
facts, DCFS alleged all three children were at substantial risk of harm under section 300,
subdivisions (b) and (j) (abuse or neglect of a sibling).
As to father, DCFS alleged he “has a history of illicit drug use and is a current
abuser of amphetamine and methamphetamine, which renders the father incapable of
providing the children with regular care and supervision. On 8/1/13, the father ha[d] a
positive toxicology screen for amphetamine and methamphetamine. On 8/1/13 and on
prior occasions in 2013 and 2012, the father was under the influence of amphetamine and
methamphetamine while providing care and supervision of the child. The father’s
substance abuse endangers the child’s physical health and safety, placing the child at risk
of physical harm, damage and danger.”
DCFS’s initial investigation revealed support for the allegations against mother, as
well as other facts related to mother’s treatment of the children. D.M. reported
sometimes mother had no food in the house, men smoked cigarettes in the middle of the
1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
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night at mother’s apartment, mother called D.M. “retarded” and used profanity in
speaking to her, and mother did not provide her with clean clothes. M.M. reported being
hit by mother with objects in the past. Mother told her she was going to do “weed” in the
bathroom on several occasions, which M.M. understood was an illegal plant kept in a
bag. Mother and her friends also sold “weed” on prior occasions. When M.M. was six
years old, she saw mother using what she believed was an illegal drug and mother
threatened to hurt her if she told anyone. M.M. even showed the interviewing social
worker a video she claimed was taken by mother depicting a man snorting what appeared
to be an illegal drug in mother’s residence. M.M. also heard mother having sex with men
in the apartment.
S.C. denied being corporally punished or being afraid of mother.
When interviewed, mother admitted hitting D.M. with the sandal, but denied she
pushed her to the ground. She admitted a history of using drugs, but denied currently
using them. She also denied she had anything to do with the video.
The children’s maternal aunt claimed mother had used drugs for 10 years and her
drug of choice was methamphetamine. She described prior occasions when she had
discovered mother and a man using drugs at mother’s apartment. At one point, she took
D.M. to her house for three weeks and mother never called during that time to check on
her. On the day mother hit D.M. with a sandal, the maternal aunt took the children
because she thought mother was coming down from a “high.”
DCFS had previously received multiple referrals involving mother, only one of
which was substantiated involving mother’s use of methamphetamine. Mother also had a
misdemeanor conviction for domestic violence.
Father reported he and mother were never married and mother was S.C.’s primary
caregiver. He and mother agreed to allow S.C. to visit him and the paternal grandparents
on weekends, although he also made sporadic checks with mother about S.C.’s wellbeing.
He knew mother had a history of using illicit drugs, including methamphetamine, but he
did not believe she currently used them. He found out a few months earlier that S.C. was
having academic difficulties, which led to an arrangement to allow S.C. to live with her
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paternal grandmother, where her academic performance improved. Father admitted
having a criminal record for possession of illicit drugs and domestic battery, but he
claimed he was never incarcerated and denied having a history of drug use.
In a test taken the day after he was interviewed, he tested positive for
amphetamine and methamphetamine.
Following the filing of the section 300 petition, S.C. was removed from mother’s
and father’s custody, with DCFS noting father “allowed [S.C.] to remain under the care
of the mother even though he was aware that the mother was unable to meet the child’s
basic needs and care.” Father consented to the proposed plan of removal.
At the initial juvenile court hearing, the court ordered the children to be detained,
mother’s and father’s visits to be monitored, and mother and father to submit to weekly
drug tests.
In the combined jurisdiction and disposition report, DCFS reported father had a
1998 arrest for possession of a controlled substance for which he completed a court-
ordered drug program and a 2008 misdemeanor conviction for spousal battery for which
he served three days in jail and was placed on three years of probation.
In his interview, father reported he did not spank the children but allowed mother
to enforce discipline and he had seen mother use a sandal on D.M. previously. Because
he had been living at the paternal grandmother’s house in the few months prior to the
children’s detention, he was unaware of everything that went on in the house, although he
was upset when he heard mother was having other men inside her apartment and the
children had to see them coming and going. He believed mother had been using
methamphetamine at the time, and when she used, the children would often miss school
or mother would forget to pick them up after school.
Father admitted using marijuana before taking his current drug test and he claimed
he took a “clean out” in order to try to test clean. He denied using methamphetamine and
claimed the last time he had done so was three years ago. He admitted starting to use in
1998, although he claimed he was still able to function and hold down a job. He again
admitted his prior substance abuse convictions and he had attended drug diversion
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classes. He previously had a medical marijuana card, but he did not have a currently
valid license. He claimed he did not use drugs in front of the children. When asked
about his recent positive test for methamphetamine, he claimed mother had given him a
beer that “tasted funny,” and he believed mother purposely put methamphetamine in his
beer because the children were detained from her and she did not want father to get
custody. He admitted he drank beer occasionally after work but denied a drinking
problem.
M.M. reported she had known father all her life and treated him like a “dad,” even
though he and mother were “off and on.” She had always known he used “weed” and
had seen him smoking it in their apartment and on the balcony. She said he had a chair in
the corner he would sit in and smoke. D.M. had also told M.M. she had seen father
“smoking weed.” M.M. was not sure if he used any other types of drugs. M.M. also
reported “everyday the house smell like marijuana,” and she saw mother with marijuana.
D.M. reported father was like a “dad.” She said father “smokes cigarettes on the
balcony,” but she was not sure if he used any other kinds of drugs.
S.C. reported she had learned about drugs in school, but she did not know anyone
who used them or had ever seen what they look like. She said mother and father “smoke
cigarettes on the balcony” and sometimes “they drink beer but they don’t get crazy.”
Mother reported she did not know that father was currently using until she heard
the results of the drug test. She claimed he was not living with them before the children
were detained, but he would come by to watch the children if mother asked. She said he
had always been around and helped raise all of the children, even though she and father
would often break up and get back together.
Maternal grandmother had concerns about father because he had “a lifestyle
similar to [mother].” She said they were “like poison together,” thought they used drugs
together, and they constantly dated on and off. She said the children had previously told
her they knew father would “go in the bathroom and smoke weed.” She did not think
father was an abusive person, but he was also not responsible to take care of the children.
She said mostly the paternal grandmother cared for S.C. With regard to mother, maternal
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grandmother thought she started using drugs when D.M. was born, and while she got
clean, she recently relapsed before the children were detained. She said mother’s house
was very messy and the children would not be fed. She noticed mother’s personality had
changed and she did not work, instead staying home all the time. M.M. and D.M. told
maternal grandmother mother would have men over until 4:00 or 5:00 a.m., and they
thought they were using drugs.
Paternal grandmother was aware of father’s history with drugs and she did not
think it was good when he and mother resided together. She said father resided with her
for about three months prior to the children being detained, but had since gotten back
together with mother. She said father had told her he tested positive for
methamphetamine but claimed he had not used it and it had been slipped into his drink.
She also expressed concerns about the children being cared for in mother’s home because
S.C. was often late to school and mother did not pick her up after school. Paternal
grandmother would also try to bathe and feed S.C. because she was not always clean with
clean clothes.
Father was enrolled in weekly drug testing, but in the 12 weeks following his
positive drug test, he failed to test nine times. He also failed to enroll in any programs.
He claimed his failures were due to his work schedule and traveling out of town for work.
A multidisciplinary assessment team assessment noted S.C. had been subject to
multiple traumas during her lifetime, including prenatal exposure to drugs during the first
two months mother was pregnant with her and witnessing ongoing domestic violence
between her parents, during which father used “bad language.” She acknowledged her
home environment made her “feel scared” at times.
At the initial hearing setting the matter for adjudication, father waived the reading
of the petition and statement of rights. Before the adjudication hearing, DCFS submitted
last minute information informing the court father had provided no information regarding
the progress or enrollment in any programs and had missed three more drug tests.
Father did not appear at the adjudication hearing, but his counsel proceeded on his
behalf and argued insufficient evidence supported the allegation against him. Counsel
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noted the children did not see father smoke cigarettes on the balcony. Counsel also
argued father explained he failed to submit to the drug tests because he traveled for work
and he would not be using marijuana if he had to “driv[e] all over the state” for his job.
Father denied using drugs in front of the children and he explained his positive drug test
because he believed mother put something in his beer. While counsel acknowledged
father had a history of marijuana use, counsel argued there was no evidence of a “nexus”
between father’s drug use and risk to the children. The children’s counsel echoed
father’s counsel’s argument that there was no “nexus” between father’s drug use and risk
to the children.
County counsel argued there was a nexus because father tested positive for
methamphetamine, refused to submit to further tests, and had criminal convictions for
substance abuse. Counsel also noted maternal grandmother said father would go into the
bathroom and smoke “weed.”
Before ruling, the juvenile court asked, “Were the kids primarily with [mother]
versus [father]?” Mother’s counsel responded, “Part of the time. [Father] did reside with
the mother and the children.”
The juvenile court sustained the allegations against mother and father. With
regard to father, the court explained, “There is a long history of [father] using substance
abuse [sic]. And although he completed the program back in 2000, there’s information in
the report that [father] was smoking maybe in the presence of the kids as late as August.
[¶] There is a positive methamphetamine test and there has been no shows, consistent no
shows and thereby not demonstrating sobriety. [¶] With respect to the nexus, the court
notes that there is information about [father] smoking marijuana in front of the kids.” It
further noted there was evidence to suggest father knew mother was neglecting the
children but he depended on her to care for them.
Finding reasonable efforts were made to prevent removal, the court declared the
children dependents of the court and removed them from the parents’ custody. The court
ordered father to submit to drug and alcohol testing, to attend a full treatment program if
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he had any missed or dirty tests, and to attend individual counseling to address his
substance abuse. He was granted supervised visitation. Father timely appealed.
DISCUSSION
1. Father Forfeited His Challenge to the Sufficiency of the Petition
Father challenges the sufficiency of the allegations against him contained in the
petition. DCFS contends father forfeited this claim because he never raised this
challenge in the juvenile court, he waived reading of the petition, and he chose to litigate
the merits. Although one older case rejected forfeiture (see In re Alysha S. (1996) 51
Cal.App.4th 393, 397 (Alysha S.)), we agree with In re David H. (2008) 165 Cal.App.4th
1626 (David H.) and other cases finding the failure to challenge the sufficiency of the
petition in the juvenile court forfeits the challenge on appeal.
Without analysis, the court in Alysha S. cited Code of Civil Procedure section
430.80, which creates a rule in civil cases that “‘“[i]f the party against whom a complaint
or cross-complaint has been filed fails to object to the pleading, either by demurrer or
answer, that party is deemed to have waived the objection unless it is . . . an objection
that the pleading does not state facts sufficient to constitute a cause of action.”’”
(Alysha S., supra, 51 Cal.App.4th at p. 397.) The court in David H. gave two reasons for
refusing to extend that provision to dependency proceedings. “First, [Code of Civil
Procedure] section 430.80 appears in part 2 of the Code of Civil Procedure, which applies
to civil actions, not part 3, which applies to special proceedings. Thus, it does not even
apply to juvenile dependency proceedings by its own terms.” (David H., supra, 165
Cal.App.4th at p. 1640.) “Second, the statute is inconsistent with the purposes of juvenile
dependency law. Allowing parties to challenge the facial sufficiency of a petition for the
first time on appeal conflicts with the emphasis on expeditious processing of these cases
so that children can achieve permanence and stability without unnecessary delay if
reunification efforts fail. [Citation.] Enforcing the forfeiture rule requires parties to raise
such issues in the juvenile court where they can be promptly remedied without undue
prejudice to the interests of any of the parties involved.” (Ibid.; see also In re
Christopher C. (2010) 182 Cal.App.4th 73, 83 [following David H.’s reasoning]; cf. In re
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John M. (2012) 212 Cal.App.4th 1117, 1123 (John M.) [citing David H. and noting, “In
general, a parent may not challenge the sufficiency of allegations in a dependency
petition on appeal if he or she did not raise the issue in the dependency court.”].)
Father contends we should find an exception to forfeiture because his challenge to
the sufficiency of the petition presents a question of law, which we may address in our
discretion. (In re Abram L. (2013) 219 Cal.App.4th 452, 462.) But the cases cited above
make clear that the argument is forfeited under these circumstances, even if it is a
question of law. Moreover, accepting father’s argument would allow the exception to
swallow the rule. We decline to exercise our discretion to address his challenge.
2. Substantial Evidence Supported the Jurisdictional Order
Father contends there was no substantial evidence to support the assertion of
jurisdiction over S.C. We disagree. “‘“We review the juvenile court’s jurisdictional
findings for sufficiency of the evidence. [Citations.] We review the record to determine
whether there is any substantial evidence to support the juvenile court’s conclusions, and
we resolve all conflicts and make all reasonable inferences from the evidence to uphold
the court’s orders, if possible. [Citation.]” [Citation.] “‘“The ultimate test is whether it
is reasonable for a trier of fact to make the ruling in question in light of the whole
record.”’”’” (John M., supra, 212 Cal.App.4th at p. 1124.)
“Under section 300, subdivision (b), the juvenile court may assert jurisdiction over
a child when ‘[t]he child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure or inability of his or her
parent or guardian to adequately supervise or protect the child . . . or by the willful or
negligent failure of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s mental illness,
developmental disability, or substance abuse. . . . 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.’ Thus, ‘[t]he three elements
for jurisdiction under section 300, subdivision (b) are: “‘(1) neglectful conduct by the
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parent in one of the specified forms; (2) causation; and (3) “serious physical harm or
illness” to the [child], or a “substantial risk” of such harm or illness.’”’” (John M., supra,
212 Cal.App.4th at p. 1124.)
The evidence of father’s history of and current drug use, including his use around
the children, amply supported the juvenile court’s exercise of jurisdiction in this case.2
Father admitted he used methamphetamine starting in 1998 and he obviously continued
to do so given he tested positive for methamphetamine when the family came to the
attention of DCFS. The juvenile court was free to disbelieve his claims he had not used
methamphetamine in the prior three years and that mother had slipped methamphetamine
into his beer, causing the positive test, especially because he failed to enroll in any
programs and missed most of his drug tests, which the juvenile court could properly
consider the “equivalent of a positive test result.” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1217 (Christopher R.).) Father also had a 1998 arrest for possession
of a controlled substance, and, despite completing a court-ordered drug program, he
continued to use not only methamphetamine but also marijuana without a current license,
suggesting a history of substance abuse. (See Alexis E., supra, 171 Cal.App.4th at p. 451
[father’s use of marijuana before obtaining medical recommendation supported finding of
history of substance abuse].)
Further, M.M. reported she knew father used “weed” and had seen him smoking it
in their apartment and on the balcony. She was even able to identify the chair he used
when he smoked. M.M. said D.M. told her she had seen father “smoking weed.” M.M.
also said the house smelled like marijuana everyday. Maternal grandmother said the
children had previously told her they knew father would “go in the bathroom and smoke
weed.” Mother also openly had marijuana in the home, and maternal grandmother said
father had “a lifestyle similar to [mother]” and they used drugs together, suggesting drug
2 Because we find these grounds sufficient, we need not address father’s other
contention no substantial evidence supported that he knew or had reason to know mother
posed a risk to the children (which was not alleged in the petition as a ground for
jurisdiction in any event). (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).)
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use was prevalent in the children’s home. While S.C. did not know anyone who used
drugs and had not seen what they looked like, S.C. lived in the home, so the juvenile
court could have reasonably inferred S.C. was exposed to father’s marijuana use. Thus,
“[t]he trial court could reasonably find that Father’s use of marijuana constituted a risk of
harm to the minors because of Father’s failure to protect the minors from the marijuana
smoke. While it is true that the mere use of marijuana by a parent will not support a
finding of risk to minors [citations], the risk to the minors here is not speculative. There
is a risk to the children of the negative effects of secondhand marijuana smoke.”
(Alexis E., supra, 171 Cal.App.4th at p. 452; see § 300.2 [“The provision of a home
environment free from the negative effects of substance abuse is a necessary condition
for the safety, protection and physical and emotional well-being of the child.”].)
DCFS notes there is some tension in the case law over how to define “substance
abuse” in section 300, subdivision (b). But father does not contend he is not a substance
abuser; instead, he argues there was no causal link between his substance abuse and harm
to S.C.3 As explained above, there was substantial evidence the children were exposed to
his drug use, creating a substantial risk of serious physical harm supporting the exercise
of jurisdiction. Moreover, given father used marijuana in the children’s presence, this
case does not fall within the line of cases finding a parent’s drug use alone could not
support jurisdiction. (See Drake M., supra, 211 Cal.App.4th at pp. 768-769; In re
David M. (2005) 134 Cal.App.4th 822, 829-830; cf. Jennifer A. v. Superior Court (2004)
117 Cal.App.4th 1322, 1346 [for purposes of § 366.22, finding no evidence linked
mother’s marijuana and alcohol use to her parenting judgment or skills].)
3 As a result, we need not decide whether S.C.’s age of seven fell within the “tender
years” for which a “‘finding of substance abuse is prima facie evidence of the inability of
a parent or guardian to provide regular care resulting in a substantial risk of harm.’”
(Christopher R., supra, 225 Cal.App.4th at p. 1219 [finding children six years old and
younger were children of “‘tender years’” to which rule applied]; see In re Drake M.
(2012) 211 Cal.App.4th 754, 767 (Drake M.).)
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3. Section 361.2 Did Not Apply
Father contends that, after ordering S.C.’s removal under section 361, the juvenile
court erred in not applying section 361.2 to place S.C. with him because he was a
noncustodial parent. Section 361.2, subdivision (a) states, “When a court orders removal
of a child pursuant to Section 361, the court shall first determine whether there is a parent
of the child, with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent would be detrimental
to the safety, protection, or physical or emotional well-being of the child.” Thus, if the
noncustodial parent wants a dependent child placed with him or her, the court must do so
unless it finds clear and convincing evidence of detriment. (In re John M. (2013) 217
Cal.App.4th 410, 420.)
DCFS argues section 361.2 required father to be a “nonoffending” parent and he
was not because the juvenile court sustained allegations against him under section 300,
subdivision (b).4 There is a split of authority over whether a noncustodial parent must be
nonoffending for section 361.2 to apply. (Compare, e.g., In re John M., supra, 217
Cal.App.4th at p. 423 [requiring noncustodial parent be nonoffending] with In re
D’Anthony D. (2014) 230 Cal.App.4th 292, 300-301 [rejecting nonoffending
requirement].) We need not decide this question because father has not asked us to.
Instead, he argues his case is factually distinguishable from In re John M. and other cases
requiring a parent be nonoffending under section 361.2 because he was nonoffending,
that is, “he had no involvement in the events leading up to the dependency case” and “he
was named in the petition due to unrelated facts.” (See In re John M., supra, at p. 425
[suggesting nonoffending means “a parent who had no connection with the circumstances
4 DCFS does not argue father was not a noncustodial parent, despite mother’s
counsel statement to the juvenile court that father resided with mother and the children.
We will therefore assume father was a noncustodial parent.
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that brought the child within the jurisdiction of the court” [italics omitted].) This is
plainly incorrect. The juvenile court exercised jurisdiction because it found father’s drug
use created a substantial risk of harm to S.C., which was alleged as a ground for removal
under section 300, subdivision (b) and which was supported by substantial evidence, as
we have concluded.
4. Substantial Evidence Supported the Dispositional Order
“Under section 361, subdivision (c)(1), a dependent child may not be taken from
the physical custody of the parents with whom the child resides at the time the petition
was initiated unless the juvenile court finds by clear and convincing evidence ‘[t]here 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.’ (§ 361, subd.
(c)(1).) ‘The jurisdictional findings are prima facie evidence that the child cannot safely
remain in the home. (§ 361, subd. (c)(1).)’ [Citation.] ‘“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.]’
[Citation.] We review a dispositional order removing a child from parental custody for
substantial evidence.” (John M., supra, 212 Cal.App.4th at p. 1126.) Father emphasizes
the clear and convincing evidence standard, but “the substantial evidence test remains the
appropriate standard of review, ‘bearing in mind the heightened burden of proof.’” (In re
Hailey T. (2012) 212 Cal.App.4th 139, 146.)
The evidence of father’s drug use and his use of marijuana around the children
discussed above constituted substantial evidence supporting the juvenile court’s removal
of S.C. from father’s custody. Father cites In re Destiny S. (2012) 210 Cal.App.4th 999to argue the evidence was insufficient to support removal, but in that case the mother
tested clean for three months and there was no direct evidence showing the child was at
risk from smelling the mother’s marijuana smoke “‘not very much.’” (Id. at p. 1004.)
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Here, in contrast, there was direct evidence father regularly smoked marijuana in the
home around at least two of the children, creating an inference S.C. was also exposed to
it while living in the home, and he repeatedly missed his drug tests after testing positive
for methamphetamine. Although father argues his work schedule explained his missed
tests, the juvenile court was free to discredit that explanation in light of father’s drug
history, his positive methamphetamine test, and the children’s statements they were
exposed to marijuana smoke.
Father also suggests the juvenile court should have placed S.C. with him rather
than ordering her removed and he could have arranged for her care while he was away for
work, analogizing to a parent in prison who may arrange for care of a child in his or her
custody. But the issue was not his inability to care for S.C.; it was the substantial risk of
physical harm to S.C. from his substance use. Therefore, whether or not he could arrange
for care when he was away was not relevant to the juvenile court’s determination.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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