Filed 3/19/14 In re N.C. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Juvenile Court Law. H039619 (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 Welfar e 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 eviden ce to support the findings.

1 All further unspecified statutory refere nces are to the Welfare and Institutions Code.2 S TATEMENT OF THE F ACTS AND C ASE The instant appeal arises out of a Nove mber 29, 2012 referral concerning general neglect and emotional abuse of N.C. to the Sa nta Clara County Department of Family and Children Services (Department). The family had a history of eight prior referrals to the Department between 2009 an d 2012 concerning mother’s me ntal health and father’s substance abuse. The family receiv ed informal services in 2012. In November 2012, mother lived in the matern al grandmother’s home, and father lived with his parents. N.C. spent time in bo th 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 threaten ed to kill the maternal grandmother. Mother grabbed N.C.’s arm during the argument, causing red marks. In investigating the allega tions of abuse and neglect, the Department talked to mother, father and N.C., as we ll as the maternal grandmother and paternal grandparents.
Mother said that father had a medical mar ijuana card, smoked marijuana and drank beer. The maternal grandmother said that mother ha d 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 grandfat her stated that moth er did not take her medication for Schizophrenia, and he believe d father smoked marijuana and drank beer daily. The paternal grandfather called the po lice 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 unde r the influence or without a3 car seat. Father denied there was ever any domestic violence with mother, denied that mother was aggressive and viol ent, and denied that he had any problem with marijuana or
alcohol. N.C. told the social worker that her pa rents argued often, and yelled at each other
and said bad words. N.C. was afraid of he r 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 placeme nt. 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, fath er 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 selfreported he began using marijuana at the age of 11 and alcohol at the age of 13 in his Department of Alcohol and Dr ugs (DADS) assessment conduct ed on December 17, 2012.
Father told his DADS assessor that he last used marijuan a on December 10, 2012, and
last used alcohol on Decembe r 9, 2012. The DADS assesso r 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 substan ce abuse if he did not engage in treatment and participate in the recovery commun ity. Following the assessment, father did begin pa rticipating in an outpatient program, but resisted making4 changes and continued to minimize how al cohol and marijuana affected him and his family.
Father testified at trial and descri bed his marijuana and alcohol use as experimentation or socializing. He stated th at he went to detox wh en 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. Ne ither 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 re unification for both father and mother. The court specifically stated that w ith regard to the allegations of father’s substance abuse, there was ample independent evidence beside s 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.
D ISCUSSION Father challenges the suffi ciency 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 prot ective 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 abus e 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 pa rent the child. [D.C.] smokes marijuana and drinks alcohol to the point of intoxication on a regular basi s and he has driven th e child while he is
under the influence. On 11/30/12 the father was under the influence of marijuana and5 drove with the child in the car without a car seat. The mother was also in the car and
failed to ensure the sa fety of the child.” The principles governing such a challenge are familiar. In the trial court, child welfare authorities have the duty to establis h 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] fi ndings unless, after reviewing the entire record and resolving a ll conflicts in favor of the respondent and drawing all reasonable inferences in support of the judg ment, we determine there is no substantial evidence to support the findi ngs. [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]ubstan tial evidence . . . is not sy nonymous with any evidence. [Citation.] ‘A decision supported by a mere scintilla of evidence need not be affirmed on appeal.’ [Citation.] Although substantial evidence may c onsist 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 wo uld make the challenged ruling considering the whole r ecord. [Citations.]” ( In re James R., Jr. (2009) 176 Cal.App.4th 129, 135.)
Father cites section 355 for the proposition that the hear say 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. Sect ion 355, subdivision (c)(1), provides that if a “party to the jurisdictional hearing rais es a timely objection to the admission of specific hearsay evidence cont ained in” the Department’s report, “the6 specific hearsay evidence shall not be sufficient by itsel f to support a jurisdictional finding or any ultimate fact upon which a juri sdictional finding is based unless the petitioner establishes one or more” of spec ified 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 de clarant 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, subdivisio n (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 he arsay objection at trial to the mother and grandparents’ hearsay statements that he drov e 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 a ssessor 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 ow n statements, as well as the opinion of the DADS assessor and social worker supported th e jurisdictional finding of substance abuse by father and were sufficient in themselves to support the fi nding 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.4t h 1264, 1280-1281.) Thus, none of the hearsay statements regardi ng father’s substance a buse 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 he r on November 20, 2013 without a car seat,7 there is no independent evid ence to corroborate the gr andparents’ and mother’s statements. While mother was pr esent at the trial, she chose not to testify, and as a result,
was unavailable for cross-examination. Howe ver, the grandparents were “available for cross-examination,” (§ 355 , subd. (c)(1)(D); Cal. Rules of C ourt, rule 5.684(c)). Father’s counsel had contact information for the grandpa rents and the right to subpoena them or
“to introduce admissible eviden ce relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant.” (§ 355, subd. (d).) In additi on, the grandparents were cooperative witnesses, a nd were available on telephone standby during the trial. Therefore, because the grandparents were ava ilable for cross-examination, their hearsay statements could provide subs tantial evidence to suppor t the findings in b-3.8 D ISPOSITION The order is affirmed.

__________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ ELIA, J.