MEMORANDUM OPINION
MICHAEL MASSENGALE, Justice.
Appellant Robert Leon Stewart pleaded guilty, without an agreed recommendation, to aggravated assault, and the trial court entered affirmative findings that Stewart used a deadly weapon and committed an act of family violence. See TEX. PENAL CODE ANN. § 22.02 (Vernon Supp. 2009) (defining aggravated assault and establishing that offense is first-degree felony if deadly weapon used against person with whom defendant has "dating relationship"); TEX. FAM. CODE ANN. § 71.0021(b) (Vernon 2008) (defining "dating relationship"); TEX. CODE CRIM. PROC. ANN. art. 42.013 (Vernon 2006) (requiring affirmative finding of family violence in certain cases). Stewart brings two issues on appeal. In his first issue, Stewart argues that his conviction should be declared void because the statute under which he was convicted is unconstitutionally vague on its face. Because he did not raise this issue in the trial court, Stewart has waived it. In his second issue, Stewart argues that the judgment of conviction should be reformed to reflect a conviction for "aggravated assault" instead of "Agg. Assault — Family Member SBI." Because this clerical error is not substantial enough to warrant reformation, we affirm the judgment of the trial court. I. Background Stewart was dating Autumn Norman. While riding in Stewart's car, they had an argument. Stewart stopped at a gas station, and their argument escalated. Stewart pushed Norman out of the front passenger seat, but Norman's arm became entangled in the seatbelt. Stewart drove about half a mile at approximately 30 miles per hour, dragging Norman alongside the car. Other drivers honked and notified the police. Stewart pulled onto a side street and stopped the car. A police officer arrived and arrested Stewart. Norman suffered extensive injuries. Stewart pleaded guilty to "Aggravated Assault — Family Member" without an agreed recommendation. The trial court made affirmative findings that Stewart used a deadly weapon and committed an act of family violence, and it sentenced him to 40 years' confinement in prison. II. Whether "Dating Relationship" is Unconstitutionally Vague is Not Preserved for Appellate Review In his first issue, Stewart argues that section 22.02(b)(1) of the Texas Penal Code is unconstitutional on its face because it incorporates the definition of "dating relationship" from Texas Family Code section 71.0021(b), which Stewart contends is unconstitutionally vague. See TEX. PENAL CODE ANN. § 22.02(b)(1); TEX. FAM. CODE ANN. § 71.0021. As Stewart does not rely on any evidence but merely on the statute and the charging instrument, his constitutional challenge is a facial challenge. See Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J., concurring). Stewart relies on Long v. State, 931 S.W.2d 285, 287 n. 3 (Tex. Crim. App. 1996), and Woodson v. State, 191 S.W.3d 280, 282 (Tex. App.-Waco 2006, pet. ref'd), for the proposition that he may raise this constitutional challenge for the first time on appeal because it is a facial challenge. These cases preceded Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009), in which the Court of Criminal Appeals held that "a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute." Karenev, 281 S.W.3d at 434. Stewart did not challenge the constitutionality of this statute in the trial court, and thus he may not do so now. See id.; see also Obryant v. State, No. 01-08-00740-CR, 2009 WL 4724667, at *5 (Tex. App.-Houston [1st Dist.] Dec. 10, 2009, pet. ref'd) (mem. op., not designated for publication). We overrule Stewart's first issue. III. The Trial Court's Judgment Need Not Be Reformed In his second issue, Stewart argues that the trial court's judgment should be reformed to show a conviction for aggravated assault not "Agg. Assault — Family Member SBI" because the Penal Code does not include an offense of aggravated assault on a family member. The trial court's judgment includes affirmative findings that Stewart used a deadly weapon and committed an act of family violence. An appellate court has the power to correct and reform a trial court's judgment to make the record speak the truth when it has the necessary data and information to do so. French v. State, 830 S.W.2d 607, 709 (Tex. Crim. App. 1992); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.). Stewart pleaded guilty to an indictment that alleged that he "unlawfully, intentionally and knowingly cause[d] serious bodily injury to AUTUMN NORMAN, a person with whom [Stewart] had a dating relationship. . . ." Before the trial court pronounced Stewart's sentence, the court stated that it had "previously accepted [his] plea of guilty to aggravated assault with a deadly weapon." The judgment adequately states the crime for which Stewart was convicted — aggravated assault — and we do not find this difference substantial enough to warrant reformation. We overrule Stewart's second issue. CONCLUSION We affirm the judgment of the trial court.
"[D]ating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
TEX. FAM. CODE ANN. § 71.0021(b) (Vernon 2008). "A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a `dating relationship'. . . ." Id. § 71.0021(c)
s were admissible for the following reasons: (1) Code of Civil Procedure section 1985.3 is inapplicable to the "informal discovery" process in dependency proceedings; (2) Welfare and Institutions Code section 341 does not expressly make Code of Civil Procedure section 1985.3 (consumer notice) applicable to dependency proceedings; (3) the timeframe for notice to the consumer and right to object in section 1985.3 is inconsistent with the requirement that dependency cases be adjudicated within 60 days; (4) section 1985.3 does not apply to DCFS; and (5) father waived the doctor-patient privilege by not objecting until after the documents were disclosed.
The juvenile court concluded: "I think that the failure of the father to object timely to this subpoena duces tecum for — [DCFS] indicated in October they intended to do this. It was then included in a report, so there was two separate dates at which the father could have objected and we could have had a proper hearing as to whether or not the department violated the procedural requirement of [Code of Civil Procedure] section 1985.3. [¶] But, given that the Legislature has prescribed that the dependency cases do have a strict time schedule, the court will find that the father's motion and his objections are not timely in this case." Although it overruled father's evidentiary and section 1985.3 objections, the juvenile court allowed father to argue whether the information was relevant to establish a risk to the child. It concluded that the challenged reports were relevant to assessing R.R.'s safety.
The juvenile court sustained paragraph b-8 of the petition, the sole count relating to father. It found, by a preponderance of the evidence, that father's "history and fairly recent drug use present a risk to the child because he is indicating now he would like to have a relationship with the child."
Father filed a timely notice of appeal.
DISCUSSION
A. The Juvenile Court Did Not Err in Denying the Motion to Quash
Father contends the juvenile court erred in denying his motion to quash. His opening brief lists seven different grounds for quashing the subpoena. For ease of organization, we discuss his procedural arguments separately from his substantive arguments. Ultimately, we find no error in the trial court's admission of evidence of father's hospitalization.
1. Timeliness
Father contends the motion to quash was timely under the Superior Court of Los Angeles County Local Rules. We disagree.
The requirements of the Code of Civil Procedure do not generally apply to juvenile dependency proceedings, which are special proceedings governed by their own rules and statutes ( In re Josiah Z. (2005) 36 Cal.4th 664, 679 [ 31 Cal.Rptr.3d 472, 115 P3d 1133]). Nevertheless, in the absence of a dispositive provision in the Welfare and Institutions Code and the Juvenile Rules (Cal. Rules of Court, rule 5.500 et seq.), we look to the Code of Civil Procedure for guidance. ( Josiah Z., supra, at p. 679.)
The general rule is that all moving papers in civil actions must be served and filed 16 court days before the hearing, plus an additional five calendar days for service by mail (Code Civ. Proc., § 1005, subds. (a)(13), (b), (c); Cal. Rules of Court, rule 3.1300(a).) But no appellate court has applied the 16-day rule universally to dependency proceedings, presumably because rigid application would in many cases be at odds with the dependency statutory scheme which is "geared toward expediency, largely to serve the dependent child's best interests." ( In re Claudia E. (2008) 163 Cal.App.4th 627, 635 [ 77 Cal.Rptr.3d 722].)
In the absence of legislative directive to the contrary, courts may adopt local rules with the force of law, including reasonable rules on the time to file pleadings. ( Mann v. Cracchiolo (1985) 38 Cal.3d 18, 29 [ 210 Cal.Rptr. 762, 694 P.2d 1134].) In Los Angeles County, dependency proceedings are governed by chapter 17 of the local rules of the superior court. Rule 17.15(b) of the Superior Court of Los Angeles County Local Rules provides: "Moving party shall serve the notice of motion, a copy of the motion and all supporting documents upon all other counsel in the case at least 5 calendar days but not less than 3 court days before the date of the hearing if personally served or served by facsimile, or 7 days before the hearing if served by mail." We understand the reference to "7 days" to mean seven calendar days. ( Iverson v. Superior Court (1985) 167 Cal.App.3d 544, 548 [ 213 Cal.Rptr. 399] [in the absence of language specifying "court days," a reference to days means "calendar days"].) Thus, in dependency proceedings, motions must be personally served at least three court days and five calendar days before the hearing, or served by mail at least seven calendar days before the hearing. Because there is no contrary statute, rule or local rule, the general rule that a motion is "deemed to have been made . . . upon the due service and filing of the notice of motion" (Code Civ. Proc., § 1005.5) applies equally in dependency proceedings.
Here, father's motion to quash was filed Wednesday, November 25, 2009, the day before Thanksgiving. The parties augmented the record with a settled statement establishing that father caused the motion to be personally served on all counsel on the following Monday, November 30, 2009. Although this was more than three court days, it was not "at least five calendar days" before the December 4, 2009 hearing, as required by the Superior Court of Los Angeles County, Local Rules, rule 17.15(b). Accordingly, the trial court correctly found that the motion was untimely.
We are not persuaded by father's argument that the juvenile court abused its discretion by refusing to continue the hearing so that the motion would have been timely. At the hearing, father made no showing as to why the motion could not have been served either by mail on the day it was filed, November 25, which would have made it timely under the Superior Court of Los Angeles County, Local Rules, rule 17.15(b), or personally five days before the hearing. Considering that father's counsel had received the underlying documents a month earlier, and the general subject matter of the motion appears to have been well known for two months, the trial court was well within its discretion in deciding that further delays were not justified and not in the child's best interests. ( In re Julian R. (2009) 47 Cal.4th 487, 498-499 [ 97 Cal.Rptr.3d 790, 213 P.3d 125] [juvenile court order presumed correct; appellant has burden to demonstrate error].)
2. Code of Civil Procedure Section 1985.3
Father contends the motion to quash should have been granted because DCFS failed to comply with the notice requirements set forth in Code of Civil Procedure section 1985.3. Even assuming a timely motion, we would not reverse the order of the juvenile court on that ground, as any error in not granting the motion to quash under section 1985.3 was undoubtedly harmless. If the juvenile court had granted the motion to quash for noncompliance with section 1985.3, the ruling only would have prompted DCFS to serve a new subpoena duces tecum on the hospital with proper section 1985.3 notice; if father then filed a new motion to quash the second subpoena, for the reasons explained in parts B.1. and B.2., post, the trial court would have been obliged to deny the motion to quash and to order the documents produced. Hence, any error in not quashing the subpoena under section 1985.3 would have been harmless.
We expressly do not decide the question of whether Code of Civil Procedure section 1985.3 applies in juvenile dependency proceedings. The parties have devoted significant time and effort to advancing their respective arguments as to why section 1985.3 does or does not apply in this setting. It may be that, considering the conflicting policy considerations including the need to handle dependency matters with "expediency" ( In re Claudia E., supra, 163 Cal.App.4th at p. 635), those efforts should be directed to the Legislature or the Judicial Council's rule making authority (Cal. Const., art. VI, § 6, subd. (d)). (See generally Cal. Rules of Court, rule 5.546 [informal discovery rules in dependency proceedings].) The need for guidance in this area is demonstrated by the fact that father's presumptively privileged medical records were turned over to county counsel unilaterally by the clerk of the court and opened by county counsel sometime around October 19, 2009, without giving father advance notice. Although ultimately concluding any error was harmless, we are nevertheless troubled by the procedure employed in this case.
B. Any Error in Not Hearing the Motion to Quash Was Harmless Because as a Matter of Substantive Law the Motion Would Have Been Denied; Father's Hospital Records Were Admissible
A motion to quash provides the trial court with the opportunity to determine whether documents should be produced pursuant to the underlying subpoena. If the motion to quash is granted, then the documents remain in the custody of the person subpoenaed and are not used in the litigation. The process is particularly important when dealing with presumptively privileged documents — such as the hospital records here. (See Evid. Code, § 994 [physician-patient privilege].) Often the subpoena recipient does not have sufficient self-interest to object to production so the motion to quash allows a party to bring the privilege or other evidentiary objection to the attention of the court. ( M. B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1392 [ 127 Cal.Rptr.2d 454].) A motion to quash is typically filed before the time for production (see, e.g., Code Civ. Proc., § 1985.3, subd. (g)), but the court has authority to consider the motion even if brought after the date for production. ( Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312-1313 [ 260 Cal.Rptr. 122].)
In the present case, if the juvenile court had heard the motion to quash, it would have been called upon to make the same rulings on the substantive evidentiary objections that father ultimately made at the December 4 adjudication hearing: the medical records were protected by the physician-patient privilege and they were hearsay. At the hearing, the juvenile court overruled those objections and admitted the medical records. Because we conclude those rulings were correct, it stands to reason the juvenile court would have made the same rulings in the context of a fully adjudicated motion to quash. Any failure to hear the motion to quash was, thus, harmless and does not justify reversal of the juvenile court's orders. (Code Civ. Proc., § 475.)
1. Physician-patient Privilege
Evidence Code section 994 makes privileged a confidential communication between a doctor and a patient. DCFS does not contest that the hospital records are presumptively privileged. It asserts for various reasons that father has forfeited and waived his right to object to the introduction of the medical records. We conclude that because father tendered his medical condition as it related to the use of controlled substances, the hospital records are not privileged.
Section 996 of the Evidence Code provides there is no privilege "as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by. [¶] . . . The patient. . . ." The patient-litigant exception, as the statute is known, is justified for two different reasons. First, since the patient has put into issue the medical condition, he "may no longer justifiably seek protection from the humiliation of its exposure." ( Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1148-1149 [ 99 Cal.Rptr.3d 736].) Second, in all fairness, a patient ought not to be allowed to establish a condition without a full inquiry into the circumstances. ( Ibid.)
Father's first appearance in this case was on August 18, 2009. At the time, the only allegation against father, whose whereabouts had been previously unknown, was that he had failed to provide the necessities of life. Three weeks later, on September 10, 2009, he appeared in court with counsel and asked DCFS to provide a report on negative drug tests. Counsel asked the court to expedite the process because if the tests were favorable, it would assist in father's preparation for trial. Father also argued that the absence of positive tests supported an immediate resolution of his request for visitation. On September 16, 2009, father told the social worker that mother had introduced him to methamphetamines years ago but he had been clean for six years. He offered to submit to drug tests "everyday to prove I have not been using drugs." Mother told the social worker that father had used drugs as recently as July 2009.
The foregoing shows that, nearly from his first appearance, father was intent on showing the social worker and the juvenile court that he was not using drugs and that his drug-free life warranted unmonitored visitation and ultimately custody of R.R. In the words of Evidence Code section 996, father tendered his drug use, or more aptly his drug-free life, in the juvenile proceedings and therefore was not entitled to assert that recent medical records showing substance abuse were privileged.
Father contends he did not tender his drug use as an issue in the case. Without expressly stating, he asks us to infer that it was DCFS who tendered the issue. As such, he argues that his case is similar to Koshman v. Superior Court (1980) 111 Cal.App.3d 294, 296 [ 168 Cal.Rptr. 558]. There, a divorced father in a dissolution proceeding claimed his former spouse had been hospitalized for a drug overdose and was not fit to retain custody of the couple's children. The court held that under the circumstances, it was the father not the mother who put the mother's health in issue and the privilege was not lost. (See also Manela v. Superior Court, supra, 177 Cal.App.4th at p. 1149.) Leaving aside whether the family law cases have application in juvenile court proceedings, in the present case it was father who put his lack of recent drug use before the court, and he has no privilege to keep hospital records on the subject from being considered by the juvenile court.
We do not hold that father waived the privilege under Evidence Code section 912 based on a failure to object timely to the subpoena or production of the medical records, only that he may not claim the privilege because he had tendered the issue of drug use.
2. Hearsay
Father also contends the trial court erred in not sustaining his hearsay objection to the hospital records. Hospital records and other similar documents are presumptively hearsay because they are out-of-court statements offered to prove the truth of a fact, here father's recent drug use. Hospital records are often admissible under the business records exception to the hearsay rule, assuming a custodian of records or other duly qualified witness satisfies the requirement of the exception. (Evid. Code, § 1271.) Compliance with a subpoena duces tecum often dispenses with the need for a live witness to establish the business records exception. (Evid. Code, § 1560 et seq.)
Father argues DCFS did not establish that the hospital records fell within the business records exception to the hearsay rule because there was no showing of compliance with Evidence Code sections 1271, 1560, 1561 and 1562. DCFS counters with the general statement about hospital records often qualifying as business records, but does not cite to any part of the record that would establish that the hospital complied with statutory requirements in this case.
We need not determine whether the hospital records qualified as a business record because even if they were hearsay, they are admissible in the jurisdictional hearing under section 355.
In relevant part, section 355, subdivision (b) provides: "A social study prepared by the petitioning agency [DCFS], and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." Subdivision (c)(1) of section 355 provides, in part: "If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the 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 the following exceptions: [¶] (A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay." (Italics added.)
Section 355 thus does not bar hearsay evidence at a jurisdictional hearing but if a timely objection is made and no hearsay exception applies, the evidence must be corroborated. ( In re B.D. (2007) 156 Cal.App.4th 975, 983-984 [ 67 Cal.Rptr.3d 810] ( B.D.).) It was here.
Corroborating evidence is evidence which supports a logical and reasonable inference that the act described in the hearsay statement occurred. ( B.D., supra, 156 Cal.App.4th at p. 984.) The quantum of corroboration necessary to support a jurisdictional finding is "somewhat analogous to the rule in criminal law requiring independent corroborative proof of accomplice testimony," that is, direct or circumstantial evidence, even if slight, is sufficient if it tends to connect the accused with the act. ( Ibid.)
In B.D., the mother objected on hearsay grounds to the statements of various witnesses included in the detention and jurisdictional reports, each of whom said they saw the mother hit the child. The juvenile court sustained the objection and dismissed the petition, finding no independent evidence upon which it could rely to support the petition. The appellate court reversed, finding the mother's statements regarding the incident, including several inconsistent statements, as well as the child's changed attitude toward the mother after the incident, provided sufficient evidence from which it could reasonably be inferred that the act of which the mother was accused occurred. ( B.D., supra, 156 Cal.App.4th at pp. 985-986.)
Here, mother's statement to the social worker that father had used methamphetamine with mother shortly before she entered a drug program, and that he had become ill and had been taken to the hospital, was sufficient corroboration. Father does not argue the corroboration was insufficient as a matter of law, only that mother was not credible. That, of course, was for the juvenile court to decide.
C. Father's Right to Privacy
Father contends his right to privacy was violated by dissemination of his medical records. As we understand his arguments, they are: (1) disclosure of, his medical records was not necessary to achieve a compelling interest; and (2) the records "were obtained in an insidious illegal manner" because DCFS was alerted to the records by a relative of father's who worked at the hospital.
We dispense with the first argument in short moment: DCFS and the juvenile court had a compelling interest in determining whether, father was unable to care for R.R. as a result of his substance abuse. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [ 19 Cal.Rptr.2d 544, 851 P.2d 826] ["Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect."].)
As to the second argument, other than father's counsel's assertion at the hearing (and DCFS's denial) that DCFS learned of the hospital records from a hospital employee who was a family member, father has cited no evidence that this was the source of DCFS's information. And, even if the unnamed family member was the source of the information, father has cited no authority for the proposition that otherwise relevant and nonprivileged records become inadmissible because of vague claims of invasion of privacy. ( Moulton Niguel Water Dist. v. Colombo, supra, 111 Cal.App.4th at p. 1215.)
Father's reliance on Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195 [ 31 Cal.Rptr.2d 506] ( Laurie S.) and In re Daniel C. H. (1990) 220 Cal.App.3d 814 [ 269 Cal.Rptr. 624] ( Daniel C. H.) is misplaced. In Laurie S., a section 300 petition alleged that the mother could not care for her four-month-old infant due to mental illness; she had been heard yelling obscenities at the child and observed failing to bond with her. The issue on a petition for a writ of mandate was whether the juvenile court could order the mother to submit to a psychological evaluation for discovery purposes, before the child was adjudged a dependent child. The mother argued that in proceedings involving a child not yet declared to be a dependent the department had to prove the petition based on her conduct, not her mental state and the order violated her privacy rights. ( Laurie S., supra, at p. 200.) The court concluded that the fact of mental illness does not alone justify a psychological examination; denying the allegation does not tender the issue of the parent's mental state; only after a finding that the child is at risk (which the court noted could be assessed from the mother's conduct without expert opinion), and assumption of jurisdiction, do the parents' privacy interests yield to the need to protect the child. ( Id. at p. 202.) The court in Laurie S. expressly declined to rule on whether the juvenile court erred in allowing the department to introduce the mother's previous psychological evaluations into the dependency proceedings. ( Id. at p. 203.) This case is distinguishable from Laurie S. because the issue here is the admissibility of medical records tending to prove father's past conduct (using methamphetamines, cocaine, marijuana and alcohol), the very issue upon which the court in Laurie S. declined to rule. By way of contrast with the psychological testing presented in Laurie S., we observe that father did not contest the court's ruling on drug testing; on the contrary, he asked the court to expedite the processing of drug testing.
In Daniel C. H., the parents were involved in a bitter divorce. A section 300 petition alleging the father sexually abused his son was sustained. After an unmonitored visit with the father, the child told the child evaluator the father had molested him again. The department filed a section 387 supplemental petition based on the allegation. Afterwards, the child began seeing a new treating therapist. The new therapist wrote to the juvenile court stating that he did not wish to report directly to the court about the child because it would jeopardize his therapeutic relationship with the child. ( Daniel C. H., supra, 220 Cal.App.3d at p. 823.) At the trial on the supplemental petition, the father's theory was that no molestation occurred, but that the mother coached the child into making the accusation. The father hoped the child's treating therapist would support this theory, but the child's attorney objected to the therapist testifying on the grounds of psychotherapist-patient privilege. The father countered that the child had tendered his mental condition as an issue. The court concluded that a parent has no fundamental right to demand disclosure of confidential communications made by a minor child to that child's therapist where the therapist has stated that disclosure will harm the professional relationship with the child. ( Id. at p. 827; see also Health Saf. Code, former § 1795.14, subd. (a)(2).) No such issue is present here. R.R.'s or the other children's medical records are not implicated by the juvenile court's ruling.
D. Substantial Evidence Supported the Finding That R.R. Was a Person Described by Section 300
Father contends the order sustaining paragraph b-8 of the petition is not supported by substantial evidence. He argues that evidence of his history of methamphetamine use as well as current use of alcohol, marijuana, cocaine and methamphetamine does not support the finding that he is incapable of providing regular care and supervision of R.R., or that his drug use endangers R.R.'s physical and emotional well being. We disagree.
Section 300, subdivision (b) provides that a child is subject to juvenile court jurisdiction if 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 inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse." The initial determination in a child dependency proceeding that a parent is unfit is made by a preponderance of the evidence. (§ 355, subd. (a) ["Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by section 300."]; In re A.S. (2009) 180 Cal.App.4th 351, 361 [ 102 Cal.Rptr.3d 642].) On appeal, "we review the record as a whole in the light most favorable to the court's order and we indulge every inference in favor of the court's decision so long as those inferences are ` "a product of logic and reason" and" . . . rest on the evidence" [citation]' not on `mere speculation or conjecture.' [Citation.]" ( In re R.M. (2009) 175 Cal.App.4th 986, 988-989 [ 96 Cal.Rptr.3d 655].)
In addressing father's point, we consider two cases in contrast. In In re W. O. (1979) 88 Cal.App.3d 906 [ 152 Cal.Rptr. 130] ( W. O.), two infants were removed from their parent's home because cocaine and marijuana were discovered at the residence, in places not readily accessible by the children. Other than the drugs, the children were receiving excellent care in the home, the home was well kept and adequately furnished; both parents were deeply concerned for their children and there was a warm and affectionate family relationship; witnesses testified that the parents did not appear to be under the influence. The appellate court concluded that this evidence did not support a finding that parental custody would harm the children. ( Id. at pp. 908-909.) A remote possibility that the children might be endangered by the home environment was not sufficient to remove them from parental custody. ( Id. at p. 911.) In In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, footnote 2 [ 156 Cal.Rptr. 262], the court observed that a father's alcoholism and reliance on welfare would not, by themselves, warrant a finding of dependency.
But in In re Rocco M. (1991) 1 Cal.App.4th 814, 825 [ 2 Cal.Rptr.2d 429], the court held that evidence that a mother exposed her 11-year-old son to the mother's own drug use, "thus impliedly approving such conduct and even encouraging him to believe that it is an appropriate or necessary means of coping with life's difficulties," was sufficient to support a finding that the child was a person described by section 300, subdivision (b).
Here, the evidence falls somewhere in between: Father had a long history of methamphetamine use; he was currently using methamphetamines; and his methamphetamine use led to his hospitalization. These facts distinguish this case from W. O. The juvenile court here could reasonably find that a parent — especially one who had had little contact with the minor — who uses methamphetamine, whose use of that drug had recently led to his hospitalization, and who lied to the social worker about his drug use has a compromised ability to care for his child, thus justifying the assumption of jurisdiction and the decision not to give immediate custody to father.
E. Monitored Visits
Father contends the juvenile court abused its discretion by ordering monitored visits. We disagree.
One of the dependency court's responsibilities is to define the rights of the parties to visitation: balancing the rights of the parent with the best interests of the child. ( In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [ 270 Cal.Rptr. 326].) We review an order setting visitation for abuse of discretion. ( In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 [ 24 Cal.Rptr.2d 654].) Given father's recent drug use and his efforts to keep that information from DCFS and the court, we cannot say the juvenile court abused its discretion in requiring monitored visits.
DISPOSITION
The order is affirmed.
Bigelow, P. J., and Grimes, J., concurred.