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In re Daniel T.

In re Daniel T.
02/09/14





In re Daniel T




 

In re Daniel T.

 

 

Filed 1/30/14  In re Daniel
T. CA2/1

 

 

 

 

>NOT TO BE PUBLISHED IN THE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 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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND APPELLATE DISTRICT

 

DIVISION ONE

 

 
>










In re DANIEL T.,
a Person Coming Under the Juvenile Court Law.


      B250094

      (Los
Angeles County


      Super. Ct. No. CK99155)

 


 

LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

 

            Plaintiff and Respondent,

 

            v.

 

ANGELICA C.,

 

            Defendant and Appellant.

 


 


 

APPEAL from orders of the href="http://www.mcmillanlaw.us/">Superior Court of Los Angeles County.  D. Zeke Zeidler, Judge.  Reversed.

            Linda Rehm,
under appointment by the Court of Appeal, for Defendant and Appellant.

            John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel,
for Plaintiff and Respondent.

______________________________________

Angelica C. (Mother) appeals from the juvenile
court’s May 29, 2013 jurisdictional and href="http://www.fearnotlaw.com/">dispositional orders, contending that
substantial evidence does not support the court’s order declaring minor Daniel
T. II a dependent of the court pursuant to paragraph b-3 of the petition
alleged under Welfare and
Institutions Code
section 300, subdivision (b) (failure to protect) based
on Mother’s alleged drug use.href="#_ftn1" name="_ftnref1" title="">>>[1]  She also contends that the court abused its
discretion in making a dispositional order requiring her to submit to random
drug testing.  Mother does not appeal
from the orders sustaining other allegations under section 300, subdivisions
(a) (serious physical harm) and (b).  Daniel T. (Father) is not a party to this appeal.

We conclude that because Mother’s href="http://www.sandiegohealthdirectory.com/">drug use was remote in time
and had no causal nexus to substantial risk of serious harm to the minor, the
jurisdictional order based on Mother’s alleged drug use is not supported by substantial
evidence.  We also conclude that the
court abused its discretion in requiring Mother to submit to random drug
testing.  We reverse only as to the
challenged jurisdictional and dispositional orders.

BACKGROUND

A.  The detention report and hearing

            The Department of Children and Family Services (DCFS)
reported the following in connection with a detention hearing before the
juvenile court to determine whether the minor should be removed immediately from
the care of Mother and Father.

The minor, who was born in 2008, came to the attention of DCFS
on January 4, 2013, when DCFS
received a referral from sheriff’s deputies that Mother, Father, and the minor
were living in squalid, unsanitary conditions. 
The deputies reported to DCFS that the living room was a “mess.”  A kitchen knife was on the kitchen counter
and moldy food was “left out.”  The
entire house stank of urine.  The family
slept in a converted garage, which had spider webs on the ceiling.  Mother told the deputies that Father had been
teaching the minor how to shoot a “BB gun” a few days earlier.  Mother said the “BB gun” belonged to a third
person, who owned the residence, and that “it was an accident the child got a
hold of the BB gun.”  The minor appeared
to be clean and was very articulate.

On January 4,
2013, DCFS interviewed the minor, who stated that Father hit
Mother “‘on back with a bed’”; “‘my mommy doesn’t drink or smoke; daddy smokes
cigarettes.’”

On January 4,
2013, DCFS interviewed Father, who stated the following.  Father denied any domestic violence.  He smoked cigarettes and marijuana, and drank
alcohol “occasionally around holidays.” 
He had been arrested for burglary in 2008 and was on probation.

On various dates from January 4 to January 31, 2013, DCFS interviewed Mother,
who stated the following.  She believed
the living conditions were inappropriate, but had nowhere else to go; she did
not “agree” with Father’s teaching the minor to shoot the “BB gun”; she did not
drink or use any drugs; before the minor was born, Father had “socked her in
her ribs and she ‘almost died;’” and Father had grabbed her a month earlier
when they were discussing finances.  Mother
was ambivalent regarding her relationship with Father because of their
continuous arguing in front of the minor. 
She had been bruised when Father grabbed her back a month earlier.  The minor had witnessed that event and
stated, “‘stop, leave my mommy alone.’”  Father had a drinking problem.  Mother had used methamphetamine six years
earlier and had last used marijuana in August 2012.  She denied current drug use.

In late January 2013 Mother moved into a shelter.  She told DCFS she had obtained a restraining
order against Father but had not served him because she did not know his
current whereabouts.  She also reported
the minor told her that Father had shown him how to “‘smoke weed.’”  She said Father had made threats to her over
the Internet; she was planning to find permanent housing; and she was afraid of
Father.

DCFS was unable to contact Father again until March 7, 2013.  Via telephone, Father stated he was not going
to cooperate with DCFS and defended his showing the minor how to shoot the “BB
gun,” shouting, “‘what’s wrong with showing my son how to be a man.’”

At the detention hearing held on April 24, 2013, the juvenile court
determined as to Father that substantial danger existed to the physical or
emotional health of the minor.  The court
ordered the minor removed from the care of Father and released to Mother’s
custody.

>B.  The section
300 petition

            On April 24, 2013, DCFS filed a section 300
petition pursuant to subdivisions (a) (serious physical harm) and (b) (failure
to protect), alleging that the minor came within the jurisdiction of the
juvenile court.

            As amended and sustained, paragraphs
a-1 and b-1 of the petition alleged under section 300, subdivisions (a) and (b)
that Father and Mother have a history of engaging in violent altercations in
the minor’s presence; that Father struck Mother in the minor’s presence in
2013; that Father struck Mother’s ribs on prior occasions; and that, within the
last month, Father grabbed Mother in the minor’s presence, inflicting bruising
to Mother’s back.  Mother was unable to
protect the minor and allowed Father to frequent the minor’s home and to have unlimited
access to the minor.  Father’s violent
conduct against Mother and Mother’s inability to protect the minor endangered
the minor’s physical health and safety and placed the minor at risk of physical
harm.

            As sustained, paragraph b-2 of the
petition alleged under section 300, subdivision (b) that Father has a history
of substance abuse and was a current abuser of marijuana and alcohol, which
rendered Father incapable of providing the minor with regular care and
supervision.  On prior occasions in 2013,
Father possessed, used, and was under the influence of illicit drugs while the minor
was in Father’s care and supervision.  Father’s substance abuse endangered the
minor’s physical health and safety and placed the minor at risk of physical
harm.

            Paragraph b-3 of the petition, which
is the subject of this appeal, alleged under section 300, subdivision (b) that Mother
has a history of substance abuse, including methamphetamine, and was a current abuser
of marijuana, which rendered Mother incapable of providing the minor with
regular care and supervision.  Mother’s abuse
of illicit drugs endangered the minor’s physical health and safety and placed
the minor at risk of physical harm.  This
portion of the petition was sustained as well.

C.  The jurisdictional and dispositional report

DCFS reported the following in connection with the
jurisdictional and dispositional hearing, at which the juvenile court
determines whether the minor shall be declared a dependent and issues orders
for the minor’s care.

            In addition to the
referral by sheriff’s deputies on January 4, 2013, DCFS received a referral
on January 14, 2013, alleging general neglect
of the minor by maternal aunt and sexual abuse by maternal aunt’s minor son
that purportedly occurred in September 2012. 
Sometime after DCFS received that referral, maternal aunt reported that
“Mother is a drug user and had unstable housing.”  Maternal great grandfather reported that he
had not seen Mother or the minor since December 2012 and stated, “Mother was
upset [maternal aunt] would not allow her to reside in [maternal aunt’s] home
due to Mother’s alleged drug use.”  The
referral was closed as inconclusive and unfounded.

            On January 14, 2013, a person mandated to report child
abuse told DCFS that Mother had been brought into the hospital for abdominal
pain and claimed that Father had choked her on January 4,
2012.  The minor initially told the
mandated reporter that Father had choked him but later denied that Father had
choked him and stated, “‘Daddy hit mommy.’” 
Because the family already had an open DCFS case, the referral was
closed.

            On May 15, 2013, the minor told DCFS that Father had
spanked him and hit him hard in the stomach, causing him to throw up.  He said Father had tried to spray something in
his eyes.  The minor stated that Father
had tried to hit Mother.  He said that Father
had pushed Mother and “‘[s]ometimes she tries to call the cops but she
doesn’t.’”

            On May 15, 2013, Mother told DCFS that Father became
physically and verbally abusive toward her after she got pregnant.  Father had been in and out of jail for four
years.  In May 2012, Father had a job and
appeared to be doing well.  In November
2012, Father grabbed Mother so hard that she sustained a bruise and a scar.  The minor “didn’t see it but he knew what
happened.”  Mother stated that Father
currently used marijuana and alcohol. 
She suspected that he was also using methamphetamine.  The minor told Mother that Father rolled
marijuana joints in front of him.  The
minor also told Mother that Father had watched pornography in his presence
while Mother was at school.  Mother, who
was then pregnant by Father, stated that Father had taken the minor to buy beer
during a prenatal appointment.

Mother stated that she had used
methamphetamine between the ages of 15 and 18. 
She said, “‘It was recreational and it was just one of those things
where I would be in the wrong place at the wrong time.  I stopped everything and I even stopped
smoking cigarettes when I was 20.  I
smoked marijuana but the last time was in August (2012).  My son was at my aunt’s house and I went to a
house party.  I haven’t smoked since.’”  Mother was born in 1986.

D.  The jurisdictional and dispositional hearing

            On May 29, 2013, Mother filed a waiver of rights
form, pleading no contest to the allegations in paragraphs a-1, b-1, and b-2 of
the petition alleged under section 300, subdivisions (a) and (b).  Mother submitted as to paragraph b-3 of the
petition at issue here on the basis of DCFS’s reports as to the drug use
allegations under section 300, subdivision (b).

            The juvenile court found
that Mother had freely and voluntarily waived her constitutional right to trial
as to the allegations to which she had pleaded no contest.  As to the contested allegations of paragraph b-3
concerning Mother’s drug use, Mother’s counsel argued that Mother’s past
methamphetamine use had been occasional and experimental.  She “stopped when she was 18.”  The court stated, “When you combine the meth
history with the subsequent marijuana use, with the unstable lifestyle, it
appears that there’s a direct correlation between the substance abuse and the
risk factors.  Even if I’m wrong about
that, for disposition there would still be sufficient grounds to at least have
the mother be drug testing and refraining from drug use.”  The court sustained the allegations as
amended and found the minor a person described by section 300, subdivisions (a)
and (b).

            The juvenile court declared the
minor a dependent of the court, removed him from the care of Father, and
ordered him placed in Mother’s care under the supervision of DCFS.  The court ordered family maintenance services
for Mother, including five random or on-demand drug tests and the condition
that if Mother missed any tests or tested positive for drugs, she would be
required to enroll in a drug treatment program. 
The court also ordered family reunification services for Father and
individual counseling for the minor. 
Mother appealed.

DISCUSSION

A.  Insufficient evidence supported the juvenile
court’s jurisdictional order as to the drug use allegation
in paragraph b-3 under section 300, subdivision (b)


>            Mother contends
that because there was no evidence that Mother was currently using any drugs,
DCFS failed to show how the minor was at risk of serious physical harm and
insufficient evidence supported the juvenile court’s jurisdictional order as to
the allegation in paragraph b-3 under section 300,
subdivision (b).  We agree.

Initially, we note
that Mother pleaded no contest to allegations under section 300, subdivisions
(a) and (b) in paragraphs a-1, b-1, and b-2. 
The juvenile court sustained the allegations of the petition as to both
Mother and Father.  Citing >In re Alysha S. (1996) 51 Cal.App.4th 393
for the proposition that a jurisdictional finding against one parent is good
against both, DCFS argues that we can affirm jurisdiction over the minor based
on the uncontested counts.  However, the
sustained finding in paragraph b-3 that Mother’s drug use caused or will cause
a substantial risk of serious harm to the minor impacts Mother because it
requires her to submit to random drug testing. 
This in turn may impact future placement and reunification orders.  (In re
John S.
(2001) 88 Cal.App.4th 1140, 1143 [court may address jurisdictional
challenge that might impact placement and reunification orders, even though
allegation sustained against one parent will support exercise of court’s
jurisdiction].)  Therefore, we shall
address the merits of Mother’s appeal.

            The juvenile
court’s jurisdictional finding that the minor is a person described in section
300 must be supported by a preponderance of the evidence.  (§ 355; Cal. Rules of Court, rule
5.684(f).)  â€œâ€˜â€œWhen the sufficiency of the evidence to
support a finding or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence which is
reasonable, credible, and of solid value to support the conclusion of the trier
of fact.  [Citation.]  In making this determination, all conflicts
[in the evidence and in reasonable inferences from the evidence] are to be
resolved in favor of the prevailing party, and issues ofname="SDU_533"> fact
and credibility are questions for the trier of fact.  [Citation.]”’  [Citation.]  While substantial evidence may consist of
inferences, such inferences must rest on the evidence; inferences that are the
result of speculation or conjecture cannot support a finding.  [Citation.]”  (In re
Precious D.
(2010) 189 Cal.App.4th 1251, 1258–1259.)

Section 300, subdivision (b) provides a basis for
juvenile court jurisdiction if “[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 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.”

“A jurisdictional finding
under section 300, subdivision (b) requires:  â€˜â€œ(1) neglectful conduct by the parent in
one of the specified forms; (2) causation; and (3) â€˜serious physical
harm or illness’ to the child, or a ‘substantial risk’ of such harm or illness.”
 [Citation.]’  [Citations.]  The third element ‘effectively requires a
showing that at the time of the jurisdictional hearing the child is at
substantial risk of serious physical harm in the future (e.g., evidence showing
a substantial risk that past physical harm will reoccur).’  [Citation.]” 
(In re James R. (2009) 176 Cal.App.4th
129, 135.)  DCFS has the burden of
showing specifically how the minor has been or will be harmed.  (Id.
at p. 136.)

As sustained, paragraph b-3
alleged under section 300, subdivision (b) that Mother
had a history of substance abuse, including methamphetamine, and was a current abuser
of marijuana, which rendered Mother incapable of providing the minor with
regular care and supervision.  It alleged
that Mother’s abuse of illicit drugs endangered the minor’s physical health and
safety, and placed the minor at risk of physical harm and damage.

We first note that Mother’s
use of drugs, especially methamphetamine, was remote in time.  Mother reported to DCFS that she had
experimented occasionally with methamphetamine between the age of 15 and 18.  At the relevant time, Mother was 27 years
old.  Therefore, the last time she had
used methamphetamine was almost 10 years earlier.  She also reported that she had last used
marijuana in August 2012, which was five months prior to the incident that
caused the minor to come to the attention of DCFS.  On that occasion, while the minor was being
cared for at her aunt’s house, Mother had smoked marijuana elsewhere at a
party.  Our review of the record shows
only one other report related to Mother’s drug use.  Maternal aunt reported to DCFS that Mother
was a drug user around September 2012. 
This was around the same time that the sheriff’s department received a
referral stating that maternal aunt was neglecting the minor and that maternal
aunt’s son was sexually abusing the minor.  At best, that evidence indicated maternal aunt
was aware Mother used unspecified drugs prior to October 2012.  This was consistent with Mother’s own
statement that she had last used marijuana in August 2012 at a party outside
the home and outside the presence of the minor.

Further, DCFS failed to show
a nexus between Mother’s drug use in August or September 2012 and earlier and
any substantial risk of serious harm to the minor.  (See In
re Alexis E
. (2009) 171 Cal.App.4th 438, 453 [use of marijuana, without
more, cannot support jurisdictional finding that such use brings minors within
jurisdiction of dependency court].) 
While the evidence supported the sustained allegations that Father had
used drugs in the presence of the minor and that Mother and Father had engaged
in domestic altercations in the presence of the minor, there is no evidence
that Mother’s past drug use caused or will cause the minor to suffer serious
physical harm.  The juvenile court cannot
rely on speculation to support a finding of jurisdiction.  (In re
David M
. (2005) 134 Cal.App.4th 822, 829–830 [mother’s past use of
marijuana and mental health issues did not create a substantial risk of serious
harm to minor].)  Thus, the court erred
in tying Mother’s “meth history with the subsequent marijuana use” to risk of
serious harm to the minor.

We conclude that insufficient evidence
supported the juvenile court’s jurisdictional order as to the drug use allegation under section 300, subdivision (b) in paragraph
b-3.

B.  The juvenile court abused its discretion in
making dispositional orders requiring Mother to submit to random drug testing


            Mother contends that the juvenile court erred in
making dispositional orders requiring her to submit to random drug
testing.  We agree.

            When a minor is adjudged a dependent child of the
court under section 300, section 362, subdivision (a) gives the juvenile court authority to “make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the child, including
medical treatment, subject to further order of the court.”  The court may make orders to the parents as
it “deems necessary and proper to
carry out this section,” including participating in a counseling or parent education
program.  “The
program in which a parent or guardian is required to participate shall be
designed to eliminate those conditions that led to the court’s finding that the
child is a person described by Section 300.”  (§ 362, subd. (d).)

“The
juvenile court has broad discretion to decide what means will best serve the
child’s interest and to fashion a dispositional order accordingly.  (In re Jose M. (1988) 206 Cal.App.3d
1098, 1103–1104.)  Its determination will
not be reversed absent a clear abuse of that discretion.  (In re Eric B. (1987) 189 Cal.App.3d
996, 1005.)”  (In re Corey A. (1991) 227 Cal.App.3d 339, 346.)

As
stated, there was no evidence that Mother had a current drug problem or that
her remote drug use had a nexus to the conditions resulting in the assertion of
dependency jurisdiction.  “A
reunification plan ‘“must be appropriate for each family and be based on the
unique facts relating to that family.”’” 
(In re Basilio T. (1992) 4
Cal.App.4th 155, 172–173 [inclusion of substance abuse component in absence of
evidence of substance abuse problem was error].)  Thus, the juvenile court’s comment that even
if substantial evidence did not support the jurisdictional findings, “there
would still be sufficient grounds to at least have the mother be drug testing
and refraining from drug use,” is unsupported by the evidence.  We conclude that the juvenile court erred in> making dispositional orders requiring
Mother to submit to random drug testing.

            Accordingly,
we reverse the dispositional order requiring Mother to submit to random drug
testing and including the condition that if Mother missed any of the tests or tested
positive for drugs, she would be required to enroll in a drug treatment
program.

>DISPOSITION

The juvenile court’s May 29, 2013 jurisdictional findings and
order are reversed only as to paragraph b-3 alleged under section 300,
subdivision (b) of the Welfare and Institutions Code.  The court’s May 29, 2013 dispositional
order requiring Mother to submit to random drug testing, including the
condition that if Mother missed any of the tests or tested positive for drugs, she
would be required to enroll in a drug treatment program, is reversed.

NOT TO BE PUBLISHED.

 

                                                                        MILLER,
J.href="#_ftn2" name="_ftnref2" title="">*

We concur:

 

ROTHSCHILD, Acting P. J.

 

CHANEY, J.





id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1]> Undesignated statutory references are to the Welfare
and Institutions Code.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">* Judge of the Los Angeles Superior Court
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.








Description Angelica C. (Mother) appeals from the juvenile court’s May 29, 2013 jurisdictional and dispositional orders, contending that substantial evidence does not support the court’s order declaring minor Daniel T. II a dependent of the court pursuant to paragraph b-3 of the petition alleged under Welfare and Institutions Code section 300, subdivision (b) (failure to protect) based on Mother’s alleged drug use.[1] She also contends that the court abused its discretion in making a dispositional order requiring her to submit to random drug testing. Mother does not appeal from the orders sustaining other allegations under section 300, subdivisions (a) (serious physical harm) and (b). Daniel T. (Father) is not a party to this appeal.
We conclude that because Mother’s drug use was remote in time and had no causal nexus to substantial risk of serious harm to the minor, the jurisdictional order based on Mother’s alleged drug use is not supported by substantial evidence. We also conclude that the court abused its discretion in requiring Mother to submit to random drug testing. We reverse only as to the challenged jurisdictional and dispositional orders.
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