Filed 7/27/15 In re J.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.G. et al., Persons Coming Under the 

Juvenile Court Law.

 H041499

 (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.
2

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 
3

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 
4

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 
5

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. 
6

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 
7

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. 
8

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 
9

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 
10

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 
11

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.”
12

“ ‘“ ‘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.
13

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P. J. 

______________________________

Grover, J.