In re Julius D.
Filed 8/21/12 In re Julius D. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
In re JULIUS D., et al.,
Persons Coming Under the Juvenile Court Law.
B238287
(Los Angeles
County
Super. Ct.
No. CK87410)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
EDUARDO D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
County. Marguerite D. Downing, Judge. Reversed.
Kate M. Chandler, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel and Emery El Habiby, Deputy
County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
* * * * * *
Father
Eduardo D. appeals the juvenile court order that he enroll in a drug treatment
program. He contends the order violates
a negotiated settlement of this case and that there was
court’s order. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The
children involved in this dependency case
are Julius D., born April 2008, and Hazel D., born April 2010. They had been living with their mother in the
home of their maternal Grandmother when they came to the attention of the Los
Angeles County Department of Children and
Family Services (DCFS). Mother had
significant mental problems, as well as drug issues, and was hospitalized in
the psychiatric unit at Harbor UCLA Medical Center on January 18, 2011 when
DCFS became involved. Mother had
amphetamines in her system and required substance abuse treatment. She was released from the psychiatric unit on
January 21, 2011.
At the time of the hospitalization,
Grandmother reported to DCFS that Mother’s problems had begun after Julius’s
birth, and that she was also depressed after Hazel’s birth. Though Grandmother had sought psychiatric treatment
for Mother in the past, Mother never managed to follow through, and was
aggressive and confused when not taking her medication. There was no dispute that Mother was not able
to take care of the children at that time.
According to Grandmother, Father visited the children on the weekends,
but was irresponsible and “does not help mother at all.â€
The
children next came to the department’s attention a few months later in the
middle of April, when Grandmother called the police due to Mother’s refusal to
take her medication and aggressive behavior.
The children were taken into protective custody on April 11 and taken to
a hospital emergency room because both had infections. Antibiotic treatment was necessary. Father was interviewed by the social worker
on the following day. He said that
Mother was mentally ill and needed help, and expressed interest in caring for
his children. He indicated he had been
employed since 2010 as a cable installer.
He indicated that he was willing to get a restraining order to keep
Mother away from the children, if necessary.
Grandmother and Mother’s boyfriend had accused Father of giving Mother
drugs, but Father denied having given her any drugs.
Father
stated he had a prescription for medical marijuana, and provided a copy of his
medical marijuana card to the social worker.
He admitted having been arrested for possession and sales of narcotics
and having been sentenced to jail for one year.
He stated that he had completed probation, gotten a job and turned his
life around. He claimed to have “stopped
taking meth over a year ago.†He told
the social worker that he loved his children and was willing to work with
DCFS. He had beds and clothing for the
children and someone to help him take care of them. He agreed to undergo Live Scan
Section 300 Petition
On April
14, 2011, DCFS filed a petition pursuant to section 300, subdivisions (a) and
(b)
history of violent altercations in the children’s presence in which she struck
Grandmother and threw things at her, and kicked and struck Father causing his
nose to bleed (§ 300, subd. (b)(1)).
The petition also alleged that Mother and Father had a history of
substance abuse; Mother had positive toxicology for methamphetamines and
marijuana and was a current user (§ 300, subd. (b)(3)); and Father had a
history of illicit drug use and was a current abuser of ecstasy and marijuana
(§ 300, subd. (b)(5)). Furthermore, the
petition alleged that Mother had a history of mental and emotional problems,
including a diagnosis of a psychotic disorder not otherwise specified. (§ 300,
subd. (b)(4)).
Father
continued to deny drug use other than medicinal marijuana and stated “I am not
an abuser of that stuff. Those
allegations of me using ecstasy are not true.â€
In a last
minute information for the court, filed April 14, 2011, DCFS reported that
Mother and Grandmother appeared at the DCFS offices at 2:09 p.m. on the day of
the detention hearing. Grandmother produced
a photograph of Julius in a stroller with an open beer can in his hands and
claimed that Father gave her grandson beer.
Mother claimed to have spent the previous night with Father. DCFS was concerned that the children would be
at risk with Father if he continued to allow Mother to visit.
At the
detention hearing on April 14, 2011, Father asked the court to release the
children to his care because the allegation regarding his drug use was not
true. He had positive employment
reviews, was able to provide for his children and had made daycare
arrangements. He was willing to continue
random drug testing. He stated that he
would obtain a restraining order against Mother if the court imposed that
condition. The court ordered the
children detained with monitored visitation for the parents. The court set a pretrial investigation
hearing and gave DCFS discretion to release the children to Father on the
condition that Mother did not reside in the home with them.
An interim
review report dated April 21, 2011 assessed Father’s suitability as caretaker
of the children. It reported that
Father’s home was safe, he had arranged for childcare while he was working, and
he was willing to adhere to the DCFS case plan and obtain a restraining order
against Mother to protect the children.
The report reminded the court that Father had a prescription for medical
marijuana. Father stated that he was
born with scoliosis and he suffered a recent
from a roof. He did not provide any
medical documentation to DCFS to corroborate the injuries. DCFS recommended that Julius and Hazel be
released to Father on the condition that he randomly drug test because of their
concerns regarding his history of using drugs.
At the
hearing on April 21, 2011, the court released the children to Father under
certain conditions. Father was required
to randomly drug test. He was not to
monitor Mother’s visits with the children.
He was also ordered not to allow Mother to reside with him and the
children.
Report
In a report
filed May 6, 2011, DCFS reported that the children remained in Father’s
care. Father was interviewed regarding
the allegations in the petition which pertained to him. He denied having a substance abuse
problem. He stated that he became
extremely anxious and depressed when his children were taken into protective
custody. His friends tried to help by
giving him a muscle relaxer which he assumed was an ecstasy pill. He stated that he had not used
methamphetamines in over one and a half years.
He admitted having done “stupid things†in the past, but did not want to
talk about them.
DCFS noted
its concerns about Father’s use of medicinal marijuana. After Father fell from the roof he did not
obtain X-rays or seek alternative medical treatment for pain but instead saw it
as an opportunity to use marijuana. DCFS
was concerned that his alcohol use combined with marijuana would impair his
ability to take care of his children.
DCFS recommended that Father explore alternative pain relievers,
participate in parenting classes, attend AA meetings, and continue with random
drug testing.
At a May 6,
2011 hearing, the parties agreed to submit the matter to mediation.
In a last minute
information for the court, filed June 13, 2011, DCFS reported that the children
continued to live with Father. The
children were doing well and there were no safety concerns. Father had submitted to an “Upfront
Assessment†and continued to test positive for cannabinoids.
Agreement
The parties
participated in a successful mediation before mediator Jackie Fox, and the
mediation agreement was signed by all parties and filed with the court on June
13, 2011.
Father’s
case plan provided: “Father is to do
random drug testing as well as on demand drug testing. If he tests positive for any illicit drug
other than marijuana, then he must do a DCFS approved substance abuse program
with random testing.â€
Hearing
At the June
13, 2011 adjudication hearing, the juvenile court noted that there had been a
successful mediation and Father was stricken from the petition which had been
amended. The court sustained amended
allegations of the petition as to Mother (§ 300, subds. (b)(1), (b)(3) and
(b)(4)) based on the reports and mediation agreement submitted. Father was found to be a nonoffending parent.
Julius and
Hazel were declared dependents of the court.
The court found “no risk of detriment to the children being placed with
the father†and issued a home-of-parent-father order. The court stated: “The father is to be provided with family
maintenance services, including random and on-demand drug testing. If there are any missed or positive tests or
any drug other than marijuana, he must complete a substance abuse
program.†The matter was continued to
December 12, 2011, for a review hearing.
364 Status Review Hearing
The DCFS
report prepared for the December 12, 2011 hearing stated that the children were
in Father’s care, and appeared to be physically, developmentally and
emotionally healthy. They had adjusted
well in their Father’s home and Father was observed to be very caring and
nurturing with the children. He
continued to be employed and had a strong support system of neighbors that
helped with day care and transportation for the children.
The report
noted that Father had missed a random drug test on June 1, 2011.
case on July 6, 2011, informed Father that he was under a court order to enroll
in a substance abuse program if he missed a test. Santos appeared not to be aware of the fact
that the court order could only impose prospective conditions. Santos provided Father with referrals to
substance abuse programs on a monthly basis but he refused to enroll. Father stated that if he enrolled in a drug
program he would be in the presence of drug addicts and influenced to use drugs
again. He stated he would only enroll in
a program if directed to do so by the court.
The report
again reminded the court that Father had a prescription for medical marijuana,
and that he had not provided DCFS with any medical documentation regarding his
scoliosis or the injuries he sustained falling from a roof.
DCFS
recommended that the children remain with Father; that he continue to receive
three more months of family services; and that he complete a substance abuse
program.
At the
hearing, the court stated that it had read and considered the social worker’s
report and ordered Father to complete a substance abuse program.
Father’s
counsel argued that DCFS had verified Father’s prescription many times and that
the only drug test he had missed was on June 1, 2011, prior to disposition and
the case plan entered into on June 13, 2011.
The court rejected these arguments and stated that Father’s testing
levels had not decreased which indicated to the court that he was using
marijuana on a regular basis.
Furthermore, the court stated that Father failed to provide DCFS with
confirmation of the medical condition that required him to use medicinal
marijuana.
Father’s
counsel renewed his objection and stated that there had never been a discussion
regarding a decrease in Father’s testing levels. In ordering the substance abuse program the
court stated it was “based on the fact that he continues to test positive. The department’s report indicates that he has
not provided any medical documentation for his scoliosis, the injury he
sustained. The department is concerned
about his current drug use and supposedly he has a prescription. He has a long history of using drugs. His children are very young, and so in light
of that, the court is inclined to order the program.†Father timely appealed.
Father contends that the court
erred in ordering him to complete a substance abuse program because (1) the
order violated the terms of the negotiated settlement which was approved by the
court and formed the basis for appellant’s case plan; and (2) substantial
evidence did not support the juvenile court’s modification of the case
plan. We agree.
Standard
of Review
A juvenile court has broad discretion to
fashion dispositional orders based on “‘what would best serve and protect the
child’s interest.’†(
219, 225.) The department argues that
the order challenged here is subject to the abuse of discretion standard of
review and some courts have applied that standard in challenges to orders
providing for substance abuse components in reunification plans. (See, e.g., In re Neil D., supra, at p. 226; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
But other courts
applied the substantial evidence standard of review as in In re Sergio C. (1999) 70 Cal.App.4th 957, 960. In that case, although only the mother had
abused drugs, a testing order was imposed on the father. The Court of Appeal reversed, holding the
mother’s unsworn statement to the social worker did not constitute sufficient
evidence that the father had a drug problem.
Likewise, in In re Basilio T.
(1992) 4 Cal.App.4th 155, 172, the appellate court reversed a drug condition as
to both parents that was based on only vague assertions that the mother
“behaved somewhat out of the usual and was obsessed with discussing a
fortune-making invention . . . .â€
We adopt the
substantial evidence test to review the court’s findings. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.) “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.
[Citations.] Evidence sufficient
to support the court’s finding must be reasonable in nature, credible, and of
solid value; it must actually be substantial proof of the essentials that the
law requires in a particular case.
[Citation.]†(
172.)
B. The Court’s Order Was Contrary to the
Agreement Between the Parties
On June 13,
2011 the parties agreed to mediation and negotiated a settlement that was
“intended to be a complete agreement by all parties and counsel.†Under the terms of the settlement, DCFS
obtained jurisdiction over the minors based on sustained allegations over
Mother but Father was found to be nonoffending.
DCFS was to provide services to Father and the minors. Father was subject to random drug testing
with the further condition that if he tested positive for any illicit drug
other than marijuana, he would enter a DCFS approved substance abuse
program. Both the Court and Father
accepted the settlement agreement and its terms and adopted the case plan which
included Father’s obligation to submit to random drug testing. The court added an additional requirement
that Father would have to enter a substance abuse program if there were any
missed tests.
Between the
dates of disposition on June 13, 2011 and the review hearing on December 12,
2011, Father fully complied with the case plan.
He submitted to 11 random drug tests and did not test positive for
any drug other than marijuana. He did
not miss any test dates during that period.
Negotiated
agreements between the parties prior to adjudication have been recognized by
the court. In In re N.M. (2011) 197 Cal.App.4th 159, after the Father and the
department agreed to a mediated settlement of the case the Father sought to
appeal the jurisdictional findings. The
appellate court rejected father’s argument noting that there was “no reason to
allow an individual to negotiate a settlement and then challenge the
agreed-upon language for the first time on appeal.†(Id. at
p. 166.) The court stated that the
negotiated settlement was essentially a contract and the parties were entitled
to enforcement of the terms of their agreement.
(Id. at p. 167.)
Here, the
case worker relied on a drug test Father missed before the negotiated settlement. The report she wrote was based on the
mistaken belief that Father had violated his case plan. The recommendation to the court that Father
complete a drug abuse program was based on that mistake. Father abided by the terms of the agreement
and was in complete compliance with his case plan. The court order effectively revisited and
changed the agreement to Father’s detriment.
The court
also based its order on the fact that Father had continued to test positive at
the same levels for marijuana. But there
was no outstanding order or requirement that those levels be reduced.
Although
the social worker expressed concern that Father had never provided
documentation of his scoliosis, there is no record that Father was ever
required to provide such information as part of the case plan.
Substantial
Evidence Does Not Support the Court’s Order
Substantial
evidence did not support the court’s order that Father should enter a substance
abuse treatment program. Father
continued to be gainfully employed in a responsible position. He had the same employer since September 20,
2010, before the proceedings began, and received numerous workplace
commendations which the court commented on favorably. No concern was expressed about father’s
ability to provide for his children.
There was no evidence that he physically or emotionally abused the
children. To the contrary, the reports
indicated that the children were healthy, had adjusted well, and Father was
described as a caring and nurturing parent.
There was no evidence that Father acted inappropriately with the
children and Father was cooperative with the social workers and complied with
the case plan.
Father’s use of
medicinal marijuana was not the reason the children came to the attention of
the juvenile court and there was no evidence that it caused Father any mental
or physical impairment affecting his parenting skills. There was no evidence that Father used any
drugs other than medicinal marijuana, or that he ever smoked marijuana around
the children. There was no medical
testimony that the amount of Father’s use was an abusive use of medicinal
marijuana given his health conditions.
(See People v. Wright (2006)
40 Cal.4th 81, 97 [statutory limits on the amount of marijuana that can be
possessed were intended to be threshold and not ceiling; amount permissible is
governed by medical evidence].)
The reasons cited
by the court were not sufficient to support the order. Father’s inability to provide medical
documentation of his claimed injury and scoliosis was known prior to the
disposition, but there was no reference to it in the negotiated agreement. No documentation was required under the terms
of the case plan approved by the court.
Nor was Father ordered by the court to produce any documentation prior
to December 12, 2011. Similarly, the
requirement that Father’s testing levels should have decreased over time does
not appear in the record. Father’s
counsel denied that the issue was previously discussed and the negotiated
settlement only discussed the consequences of Father testing positive for
illicit drugs other than marijuana.
In arguing
that substantial evidence supports the court’s ruling, the department submits a
list of Father’s bad acts including his criminal record, past methamphetamine
use and current alleged alcohol abuse.
But all of these facts were known to the department at the time they
reported to the court that Father did not pose a risk to the children. The facts were also before the juvenile court
when it considered the department’s recommendation, placed the children with
Father and ordered implementation of the mediated case plan. Future harm cannot be established by
speculation without evidence of a specific defined risk of harm. (See generally In
re David M. (2005) 134 Cal.App.4th 822, 830.)
DISPOSITION
The
order of the juvenile court that Father enroll in a drug treatment program is
reversed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________,
Acting P. J.
DOI TODD
We concur:
_______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
fingerprinting system that provides a vehicle for quickly checking an
individual’s criminal background. (See
Health & Saf. Code, § 1522.04; Los Angeles
County Dept. of Children & Family Services v. Superior Court (
149, fn. 2.)
further statutory references shall be to the Welfare and Institutions Code
unless otherwise noted.
