In re N.C. CA6

Filed 3/19/14 In re N.C. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

In re N.C., a Person Coming Under the H039619
Juvenile Court Law. (Santa Clara County
Super. Ct. No. JD21592)

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

Plaintiff and Respondent,

v.

D.C.,

Defendant and Appellant.

D.C. is the father of four-year-old N.C., and appeals an order of the juvenile court
sustaining a petition pursuant to Welfare and Institutions Code section 300,
subdivision (b)1 adjudging N.C. a ward of the court and ordering reunification services.
Father asserts the court erred in sustaining two of the allegations in the petition, because
there is not substantial evidence to support the findings.

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All further unspecified statutory references are to the Welfare and Institutions
Code.
 STATEMENT OF THE FACTS AND CASE
The instant appeal arises out of a November 29, 2012 referral concerning general
neglect and emotional abuse of N.C. to the Santa Clara County Department of Family and
Children Services (Department). The family had a history of eight prior referrals to the
Department between 2009 and 2012 concerning mother’s mental health and father’s
substance abuse. The family received informal services in 2012.
In November 2012, mother lived in the maternal grandmother’s home, and father
lived with his parents. N.C. spent time in both places. The referral to the Department in
November 2012 arose from an incident during which mother had an argument with the
maternal grandmother in N.C.’s presence and threatened to kill the maternal
grandmother. Mother grabbed N.C.’s arm during the argument, causing red marks.
In investigating the allegations of abuse and neglect, the Department talked to
mother, father and N.C., as well as the maternal grandmother and paternal grandparents.
Mother said that father had a medical marijuana card, smoked marijuana and drank beer.
The maternal grandmother said that mother had untreated mental health issues, and father
drove N.C. while he was under the influence of marijuana. The maternal grandmother
also stated that she was concerned for N.C.’s safety and that mother and father would
physically fight with each other in front of N.C.
The paternal grandmother stated that mother was aggressive and that father
smoked marijuana and drank alcohol often. She stated that father would drive N.C.
without a car seat. The paternal grandfather stated that mother did not take her
medication for Schizophrenia, and he believed father smoked marijuana and drank beer
daily. The paternal grandfather called the police in November 2012 when he saw father
driving N.C. without a car seat.
Father told the social worker that the paternal grandparents were making
everything up. He denied ever driving with N.C. while under the influence or without a

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car seat. Father denied there was ever any domestic violence with mother, denied that
mother was aggressive and violent, and denied that he had any problem with marijuana or
alcohol.
N.C. told the social worker that her parents argued often, and yelled at each other
and said bad words. N.C. was afraid of her mother because her mother had grabbed her
and hurt her and left her home alone sometimes. She had never seen her father smoke
anything.
The Department filed a first amended petition under section 300, subdivision (b)
on December 12, 2012. N.C. was placed in protective custody and remained with her
paternal grandparents as a temporary placement. The court detained N.C., and ordered
supervised visitation for both parents.
On January 3, 2013, the Department filed a second amended petition under
section 300, subdivision (b). On January 7, 2013, the court held a joint jurisdiction and
disposition hearing. At the hearing, father disagreed with the recommendations and
requested a date for trial.
Trial on the matter started on March 21, 2013. At trial, the social worker assigned
to the case testified regarding her risk assessment, and father’s substance abuse that she
believed impacted his ability to care for N.C. properly. She stated that father self-
reported he began using marijuana at the age of 11 and alcohol at the age of 13 in his
Department of Alcohol and Drugs (DADS) assessment conducted on December 17, 2012.
Father told his DADS assessor that he last used marijuana on December 10, 2012, and
last used alcohol on December 9, 2012. The DADS assessor diagnosed father with an
Axis I Cannabis Dependence and referred him to an outpatient substance abuse program.
The assessor believed that father was at risk of continues substance abuse if he did not
engage in treatment and participate in the recovery community. Following the
assessment, father did begin participating in an outpatient program, but resisted making

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changes and continued to minimize how alcohol and marijuana affected him and his
family.
Father testified at trial and described his marijuana and alcohol use as
experimentation or socializing. He stated that he went to detox when he was 17 because
his father made him, telling him he had to go, or move out. Father also stated that he has
never been intoxicated in his life. Father said he did not believe he was an addict because
he did not use every day, and he could quit at any time. Neither mother, nor any of the
grandparents testified at trial.
At the conclusion of trial, the court sustained the second amended petition as
requested by the Department, declared N.C. a dependent of the court, removed her from
her parents’ care, and ordered a plan of reunification for both father and mother. The
court specifically stated that with regard to the allegations of father’s substance abuse,
there was ample independent evidence besides the grandparents’ statements, including
the DADS’s assessment and findings, as well as father’s own statements to the assessor.
Father filed a timely notice of appeal.
DISCUSSION
Father challenges the sufficiency of the evidence to support two of the
jurisdictional findings related to his substance abuse. Specifically, he asserts the findings
in b-1 and b-3 were not supported by substantial evidence. [B]-1 states as follows: “On
12/10/12, the child, [N.C.] . . . , age 4, was placed in protective custody pursuant to a
protective custody warrant issued on 12/10/12 due to the mother, [E.B.]’s severe mental
health problem and the father, [D.C.]’s substance abuse issues.” [B]-3 states as follows:
“Further, the child’s father, [D.C.], has a substance abuse problem which negatively
impacts his ability to safely parent the child. [D.C.] smokes marijuana and drinks alcohol
to the point of intoxication on a regular basis and he has driven the child while he is
under the influence. On 11/30/12 the father was under the influence of marijuana and

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drove with the child in the car without a car seat. The mother was also in the car and
failed to ensure the safety of the child.”
The principles governing such a challenge are familiar. In the trial court, child
welfare authorities have the duty to establish the jurisdictional facts by a preponderance
of the evidence. (In re D.C. (2011) 195 Cal.App.4th 1010, 1014.) On appeal, however,
“ ‘we must uphold the [trial] court’s [jurisdictional] findings unless, after reviewing the
entire record and resolving all conflicts in favor of the respondent and drawing all
reasonable inferences in support of the judgment, we determine there is no substantial
evidence to support the findings. [Citation.]’ ” (In re J.N. (2010) 181 Cal.App.4th 1010,
1022.)
“To be sufficient to sustain a juvenile dependency petition the evidence must be
‘ “reasonable, credible, and of solid value” ’ such that the court reasonably could find the
child to be a dependent of the court . . . . [Citation.]” (In re R.M. (2009) 175 Cal.App.4th
986, 988.) Moreover, “[s]ubstantial evidence . . . is not synonymous with any evidence.
[Citation.] ‘A decision supported by a mere scintilla of evidence need not be affirmed on
appeal.’ [Citation.] Although substantial evidence may consist of inferences, those
inferences must be products of logic and reason and must be based on the evidence.
Inferences that are the result of mere speculation or conjecture cannot support a finding.
The ultimate test is whether a reasonable trier of fact would make the challenged ruling
considering the whole record. [Citations.]” (In re James R., Jr. (2009) 176 Cal.App.4th
129, 135.)
Father cites section 355 for the proposition that the hearsay evidence that is the
foundation of the conclusions in b-1 and b-3 is not sufficient to support substantial
evidence because the hearsay is not corroborated. Section 355, subdivision (c)(1),
provides that if a “party to the jurisdictional hearing raises a timely objection to the
admission of specific hearsay evidence contained in” the Department’s report, “the

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specific hearsay evidence shall not be sufficient by itself to support a jurisdictional
finding or any ultimate fact upon which a jurisdictional finding is based unless the
petitioner establishes one or more” of specified exceptions. (Italics added.) The
exceptions are: if a hearsay exception applies (§ 355, subd. (c)(1)(A)); if the “hearsay
declarant is a minor under the age of 12 years who is the subject of the jurisdictional
hearing” (§ 355, subd. (c)(1)(B)); if the hearsay declarant is a peace officer, health
practitioner, social worker, or teacher (§ 355, subd. (c)(1)(C)); or if the “hearsay
declarant is available for cross-examination,” (§ 355, subd. (c)(1)(D)). (See Cal. Rules of
Court, rule 5.684.) Section 355, subdivision (d), confirms the right of any party to
subpoena a hearsay declarant as a witness or “to introduce admissible evidence relevant
to the weight of the hearsay evidence or the credibility of the hearsay declarant.”
Here, Father’s attorney made a specific hearsay objection at trial to the mother and
grandparents’ hearsay statements that he drove N.C. in a car while under the influence of
drugs or alcohol. The corroborating evidence of Father’s substance abuse is his own
admission to the Department and the DADS assessor that he uses marijuana and alcohol
and began doing so when he was 11 years old. Father also admitted to using marijuana in
the home while N.C. was asleep. Father’s own statements, as well as the opinion of the
DADS assessor and social worker supported the jurisdictional finding of substance abuse
by father and were sufficient in themselves to support the finding of substance abuse in
both b-1 and b-3. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) There is ample
corroborating evidence. (See In re R.R. (2010) 187 Cal.App.4th 1264, 1280-1281.)
Thus, none of the hearsay statements regarding father’s substance abuse to which Father
objected was the sole basis to support the substance abuse finding and the jurisdictional
finding based upon it. (§ 355, subd. (c).)
With regard to the finding in b-3 that father drove N.C. in the car while he was
under the influence, and specifically drove her on November 20, 2013 without a car seat,

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there is no independent evidence to corroborate the grandparents’ and mother’s
statements. While mother was present at the trial, she chose not to testify, and as a result,
was unavailable for cross-examination. However, the grandparents were “available for
cross-examination,” (§ 355, subd. (c)(1)(D); Cal. Rules of Court, rule 5.684(c)). Father’s
counsel had contact information for the grandparents and the right to subpoena them or
“to introduce admissible evidence relevant to the weight of the hearsay evidence or the
credibility of the hearsay declarant.” (§ 355, subd. (d).) In addition, the grandparents
were cooperative witnesses, and were available on telephone standby during the trial.
Therefore, because the grandparents were available for cross-examination, their hearsay
statements could provide substantial evidence to support the findings in b-3.

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 DISPOSITION
The order is affirmed.

______________________________________
RUSHING, P.J.

WE CONCUR:

____________________________________
PREMO, J.

____________________________________
ELIA, J.

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