Opinion
B325180
10-17-2023
In re TREVOR Z., a Person Coming Under the Juvenile Court Law. v. SAMANTHA Z., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Akila A. Shenoy, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22CCJP02998A, Jean M. Nelson, Judge. Affirmed.
Akila A. Shenoy, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
The juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 300 on behalf of Trevor Z. (Trevor) (born July 2022) and took jurisdiction over the child.Samantha Z. (mother) appeals from the juvenile court's subsequent dispositional order requiring her to participate in five random or on-demand drug tests. We find the juvenile court did not abuse its broad discretion in ordering the drug tests, and affirm the order.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND The family
The family consists of mother, Trevor N. (father), and Trevor. Mother and father had not been in a committed relationship and lived separately. When the proceedings commenced, Trevor resided primarily with mother.
The family had no prior child welfare history, however mother was a prior dependent of the juvenile court as a minor. Mother had one previous arrest for vandalism with no conviction. Father had multiple arrests for driving under the influence of drugs or alcohol and multiple instances of possession of controlled substances.
Referral and initial investigation
On July 27, 2022, the Los Angeles Department of Children and Family Services (DCFS) received an immediate response referral that father assaulted mother by kicking her in the ribs and punching her on the head while she was holding baby Trevor. Mother had a visible bump or contusion on her head, but refused medical attention. Father reported that mother grabbed his private parts and that was why he punched her. Father was holding Trevor and mother was trying to get Trevor back. Father was arrested for being in violation of an active no-contact restraining order protecting mother from him. Mother and father had a prior incident of domestic violence two years earlier.
Thereafter, a social worker met with mother and Trevor who resided at the Union Rescue Mission. Mother explained she had known father since 2018 and he was not physically violent towards her until 2020. They then got into an argument about father being unfaithful to her, and father attempted to break her arm. The police were called by a witness. Mother continued her relationship with father after the incident, and claimed to be unaware of the active restraining order.
In 2022, a couple of weeks after Trevor was born, mother allowed father to take the baby for a day. Father kept Trevor for a week. Father did not answer any of mother's phone calls, and said he was not going to return the child. Mother called the police, who did a welfare check at father's home. Father then agreed to return the child to mother.
On July 25, 2022, Trevor was constipated, and mother called father to take them to the hospital. Afterwards, mother decided to stay with father in his van. They began to argue, and father told mother to get out of the van so he could drive off with Trevor. Mother refused, and they argued in the parking lot. While holding Trevor, father punched mother on the head and kicked her in the stomach near her lower ribs. Police were called and father was arrested. Mother did not want to press charges. She denied grabbing father's testicles during the argument.
A police officer told mother that father admitted to smoking methamphetamine two days before the altercation. Mother was aware that father was a methamphetamine user, but wanted father to be involved in Trevor's life. Still she intended to seek full custody and was not sure if she would continue communication with father.
Mother agreed to a temporary safety plan requiring her to continue to reside at the Union Rescue Mission, respect the active restraining order, and communicate any updates to DCFS. The senior shelter program administrator, Nancy C., agreed to support the safety plan.
Nancy C. confirmed that mother and Trevor were part of the shelter family program. Mother was aware of the shelter rules. On July 25, 2022, mother informed shelter staff that father would be taking her and Trevor to the emergency room. Shelter staff were concerned because of father's history of domestic violence against mother, and offered that a staff member could support mother. Mother declined the offer and left with father. Shelter staff had not heard from mother for 12 hours when they were notified by police that mother was assaulted and mother and the baby were being brought back to the shelter. Mother declined to discuss the incident with shelter staff. Nancy C. was concerned about mother's history of altercations with father, but had no other concerns regarding mother.
Father initially refused to speak to DCFS. However, on July 31, 2022, he agreed to an interview. He had known mother for four years but due to ongoing disputes and altercations they were not in a committed relationship. Father believed the relationship was volatile.
On July 25, 2022, mother contacted father to take her and the baby to the emergency room. Father picked them up at the shelter at midnight. The following day, mother and father began to argue over custody of Trevor. Mother grabbed a container of acid-based wheel cleaner and poured it on the back seat and floorboard of father's van. She also poured it on father's right arm and backside where it dripped down his right buttocks. Father had scratches and several scabs on his right bicep that he attributed to mother scratching him. He showed the social worker a picture of his right buttocks covered in a scab, and said it showed where the acid-based wheel cleaner had burned his skin and caused a reaction.
Father explained he and mother continued to argue, so he pulled over in a parking lot and took Trevor out of the vehicle. He refused to return the child to mother due to her behavior. Mother grabbed father's testicles and penis and pulled them with force. Father instinctively punched her on the side of the head and kicked her because she was not letting go and he was in pain. A bystander called the police, who arrived shortly and arrested father for violating the restraining order.
Father admitted to using methamphetamine two days prior to the arrest but said he had not used since that date and did not believe he had a substance use disorder. He believed he would test positive for methamphetamine and wanted to wait a few days before drug testing. Father reported that mother did not use drugs or alcohol but had a history of aggressive, unpredictable, and violent behavior.
Detention and section 300 petition
On August 1, 2022, DCFS obtained a removal order for Trevor, detained the child from mother and father, and placed him in protective custody.
On August 3, 2022, DCFS filed a petition on behalf of Trevor pursuant to section 300. The petition alleged Trevor was at risk of harm due to the parents' history of engaging in violent altercations. In addition, the petition alleged father had a history of substance abuse and mother failed to protect the child from father's substance abuse and allowed father to have unlimited access to the child.
On August 4, 2022, the juvenile court held the initial detention hearing. Mother and father were present and were appointed counsel. The court detained Trevor from both parents and limited their visits to monitored. DCFS requested drug testing referrals for both mother and father. Mother's counsel objected, arguing the detention report did not contain any information about mother having drug issues and that mother resided in a shelter that had rules about drug usage. The court ordered DCFS to provide mother with a referral for drug testing but noted mother's participation was voluntary.
Reports
DCFS filed a jurisdiction/disposition report on August 23, 2022. On August 12, 2022, a DCFS social worker arrived at Union Rescue Mission for a scheduled visit with mother, who was not on the premises and did not respond to the social worker's text messages or phone calls. Mother later informed the social worker she had forgotten the appointment and her phone was off. Another visit was scheduled for August 15, 2022. The social worker also asked mother to send a photograph so identification could be provided to mother for drug testing.
On August 15, 2022, the social worker left mother a message reminding her of the appointment and to send a photograph, to which mother did not respond. The social worker was informed by staff at Union Rescue Mission that mother had not resided there for three days and was no longer considered a resident. The social worker left text and voice messages for mother and followed up three days later, but mother's voice mailbox was full.
The social worker also made attempts to interview father on August 15, 16, and 18, 2022, but father did not respond to the messages. The paternal grandparents confirmed that father's phone number was correct and encouraged father to talk with the social worker.
The paternal grandparents, who resided in Las Vegas, said they were not yet in contact with Trevor but were interested in being considered for placement. They had seen father the previous week and were trying to convince him to live with them so he could "get on his feet." Mother had previously lived with the paternal grandparents, and they described her as immature, disrespectful, and having no ambition. They reported mother attacked father often and father defended himself. Mother was aware of the restraining order but would still contact father. Mother would use the police as a threat against father. Paternal grandmother confirmed that mother had poured a chemical on father, and provided pictures of father's chemical burn.
Paternal grandfather said father had a problem with methamphetamine in the past, but after spending nine months in jail on a drug charge, has been sober. Paternal grandfather had no knowledge of substance abuse on the part of mother. Instead, paternal grandfather believed mother's problems were related to" 'immaturity and a bad upbringing.'" The paternal grandparents had no knowledge of mental health issues for either parent.
The police report for the July 26, 2022 incident indicated mother informed police that she and father were fighting over child custody. Father said mother was unfit and began throwing her belongings out of the vehicle. Mother said she was upset and poured alcohol onto the back seat of father's van and his belongings. Father was holding three week-old Trevor. Mother tried to take Trevor back but father punched her with a closed fist on the left side of her head and kicked her in the stomach. Mother did not want father arrested.
Father said mother was trying to grab Trevor and when father did not hand him over, mother grabbed father's private parts. Father reacted by pushing and punching mother in response. Mother threw things out of the van and poured an alcoholic beverage on father's back and belongings. Mother initially denied grabbing father's private parts but later stated she could have done so when she was reaching for Trevor, but she was not sure.
A witness saw mother and father arguing, pushing one another, and items being thrown from the van. Father entered the van, turned around and punched mother twice in the stomach. The witness did not recall seeing a baby. Due to conflicting stories, law enforcement was unable to determine the dominant aggressor. Father was arrested for violating the restraining order.
After Trevor was detained, mother had two visits and called twice to check on him. The caregiver reported mother was caring and appropriate during visits, but had not heard from mother in two weeks and no visits were scheduled. The caregiver had not heard from father.
DCFS obtained a police report for an April 27, 2021 incident of domestic violence between mother and father. Mother and father both sustained visible injuries, and mother reported three prior unreported incidents. No alcohol or drug use was noted and father was arrested.
On August 30, 2022, mother contacted DCFS and reported she had voluntarily checked into a hospital for her mental health and had been there for two weeks. Mother said she was drug tested upon admission but was not hospitalized due to drug use. Mother scheduled an in-person interview with the DCFS social worker for September 2, 2022.
On September 2, 2022, mother texted the social worker and requested the interview be over the phone because the new shelter where mother was staying had a thirty-day period during which mother was not permitted to make phone calls or have visitors. The social worker agreed, and called mother five times throughout the day. Mother did not answer.
On September 7, 2022, mother contacted DCFS and relayed that she had been placed on a psychiatric hospital hold on September 5, 2022. Mother provided the information regarding the shelter where she would be staying upon discharge.
On September 14, 2022, the social worker spoke to a staff member at the shelter mother had identified. Mother had arrived at the live-in program and was informed of the rule requiring her to turn in all identification cards to be locked up with other personal items. Mother refused to turn in her Electronic Benefit Transfer (EBT) card and left the shelter. The staff member indicated the shelter was not specifically for substance abuse but a wide range of issues.
The social worker tried calling mother on September 14 and 15, 2022, but was not able to reach her.
When the social worker spoke with mother on September 20, 2022, mother reported no history of alcohol or drug abuse and said she drinks once every two months or so. Mother was at a hospital, diagnosed with bipolar disorder, ADHD, depression, and anxiety, and was prescribed Latuda, Effexor, and Doxepin.
Mother discussed the July 2022 domestic violence incident. She admitted to pouring a substance that she identified as a liquid to clean car wheels which she had gotten from father's car. Mother stated she poured the liquid on the seat and in father's duffel bag. Mother said father then sat in the seat where she had poured the liquid. Mother admitted to scratching father's arm when reaching for Trevor, but denied grabbing father's testicles.
Mother also denied sustaining injuries in violent disputes with father, and claimed she previously reported injuries out of anger and a desire to hurt father. Mother recently checked herself into a hospital because she was not" 'in a good head space.'" She remained at the hospital for about a month. She was discharged but re-admitted herself because she wanted to harm herself and did not want to live. She was released two days later, feeling ok and taking her medication.
Mother confirmed an incident of domestic violence in 2021 but denied an incident in 2020 and that father tried to break her arm. Mother admitted she had made this up because she was angry and wanted to get father in trouble. Mother denied seeing father since the July 25, 2022 incident.
Mother wanted to get Trevor back but if she could not reunite with him, she wanted him placed with paternal grandparents. She described her relationship with paternal grandparents as follows:" '[a]t first it was okay, until we got into a verbal altercation. I had got drunk. It was way before I was pregnant.'" Mother argued with father and since then, the paternal grandparents did not like her.
Mother was aware father used methamphetamine but said he was" 'still functioning and gets stuff done.'" Mother did not know how often father used methamphetamine. She had not seen him under the influence, and said he was not under the influence on July 25, 2022. Mother denied doing drugs with father or ever doing drugs at all. Mother did not know of father using alcohol or marijuana. Mother allowed father custody of Trevor for a week while she was staying at Union Rescue Mission.
According to mother's hospital paperwork, upon admission on August 16, 2022, a urine screen showed mother to be negative for all substances. Mother was prescribed medication for mood disorder, anxiety, and insomnia.
Mother provided a certificate of completion for a four-hour parenting class through angermasters.com dated August 5, 2022. Mother participated in monitored visits with Trevor that were reported to go very well. Mother was enrolled in drug and alcohol testing and was listed as a no-show on September 6, 2022.
Jurisdiction/disposition hearing
The combined jurisdiction and disposition hearing was held on October 5, 2022. Mother was present. The petition was sustained, and the juvenile court found that continued detention of Trevor from mother and father was necessary. The court ordered reunification services for both mother and father. Mother was ordered to participate in drug counseling, individual counseling, a 12-week domestic violence counseling program, a parenting program, and random drug testing.
Mother sought a home-of-parent order and informed the court she had obtained housing. The court inquired about mother's missed drug tests. Mother's counsel responded there was no drug count as to mother, that she had missed one test because she was hospitalized, and she tested negative at the hospital.
DCFS pointed out that mother minimized father's drug use, repeatedly violated protective orders, and that her self-reported lack of drug use was not credible given mother's admitted past lies to law enforcement. DCFS also noted that mother had mental health issues and exhibited angry outbursts, which put Trevor at risk of harm.
Counsel for mother responded that mother had shown herself to be drug-free by testing at the hospital, and there had never been any reason to believe mother used drugs. Mother's counsel further argued that protective measures could be put in place to allow Trevor to be returned to mother's care including continued drug testing.
The juvenile court found that returning Trevor to either parent would be detrimental based on the sustained jurisdictional findings and the parents' failure to complete services, giving a detailed explanation of its reasoning, and indicating it "put aside" its previous comment "about mother's testing." The court found both parents were minimizing the violence in their relationship, and that it is "quite a violent relationship." The court was concerned mother would not be forthcoming "because she admitted to not telling the truth as to some domestic violence incidents." Further, the parents had shown they were not able to abide by a restraining order or safety plan.
In response to the juvenile court's inquiry regarding why ongoing drug testing, as opposed to a certain specified number of drug tests, was needed, DCFS said "[w]hether it was mental health or substance abuse," mother's behavior was concerning, and DCFS wanted to ensure mother was sober.
Mother's counsel objected to any drug testing because mother had provided sufficient evidence that she did not have a drug problem, and this was "just another opportunity for her to not be able to complete her case plan."
The court ordered mother to submit to five random or on-demand drug tests rather than ongoing testing.
On October 24, 2022, mother filed a notice of appeal from the declaration of dependency pursuant to section 360 with review of the section 300 jurisdictional findings.
Although mother did not appeal from the dispositional order requiring her to drug test, we liberally construe the notice of appeal to include an appeal from the disposition order for drug testing. (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017 [liberal construction of a notice of appeal is "particularly appropriate . . . [where] the jurisdictional finding and dispositional order were rendered simultaneously" on the same date].)
DISCUSSION
I. Applicable law and standard of review
Upon establishing jurisdiction," '[t]he juvenile court has broad discretion to determine what would best serve and protect the child's best interests and to fashion a dispositional order accordingly.'" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) This discretion includes the authority to make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) The court may "direct any . . . parents or guardians of the child who is the subject of [the] proceedings . . . to participate in a counseling or education program...." (§ 362, subd. (d).) The program in which the 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).)
"At disposition, the juvenile court is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interests of the children." (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) "In fact, there need not be a jurisdictional finding as to the particular parent upon whom the court imposes a dispositional order." (Ibid.)
The juvenile court's dispositional order cannot be reversed absent a clear abuse of discretion. (In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.) Where a trial court has discretionary power to decide an issue,"' "a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (In re Arthur C. (1985) 176 Cal.App.3d 442, 446.) Findings of fact on which dispositional orders are based are reviewed for substantial evidence. (In re K.T. (2020) 49 Cal.App.5th 20, 25.)
II. The juvenile court did not abuse its discretion in ordering mother to undergo five drug tests
Mother raises a single issue on appeal: whether the juvenile court abused its discretion when it required mother to participate in drug testing. Mother argues that substantial evidence did not support the juvenile court's implied finding that mother's participation in five random and on-demand drug and alcohol tests were reasonably necessary to protect the child against mother and father's domestic violence and father's substance abuse.
The evidence fully supported an implied conclusion that five drug tests were a reasonable step in protecting Trevor's best interests. While mother denied drug use, father was a known drug user. Father admitted to using methamphetamine two days before the violent incident on July 25, 2022. He declined to drug test on July 31, 2022, because he believed he would test positive for methamphetamine and wanted to wait a few days. Father was a no-show at his scheduled drug tests prior to the jurisdictional hearing.
Mother was aware that father used methamphetamine. Nevertheless, she allowed father access to Trevor for significant periods of time, including allowing father to have custody of Trevor for a week. In addition, mother minimized the seriousness of father's use of methamphetamine, claiming father was" 'still functioning and gets stuff done.'" Mother had frequent contact with father, including her request that father take her and Trevor to the emergency room in his van, and then deciding to stay the night in his van afterwards. Given mother's frequent and close contact with a known drug user, it was reasonable for the juvenile court to require mother to submit to drug testing.
Mother argues that father kept Trevor against her will. However, the juvenile court was not required to believe mother's testimony that father kept Trevor against her will. Mother waited a week before contacting police to have Trevor removed from father's care.
Further, the juvenile court was not required to believe mother's testimony that she did not use drugs. The court found mother was generally not credible. Mother admitted she had lied to authorities in the past because she was angry at father and wanted to get him in trouble. In addition, mother changed her stories regarding the July 25, 2022 incident several times. She initially denied grabbing father's genitals, but then stated she might have done so while reaching for Trevor. She initially stated she poured an alcoholic beverage on father's van and then admitted the substance was a wheel-cleaning agent. Thus, mother's assurances she did not use drugs were not necessarily credible.
In addition to her lack of credibility, mother exhibited concerning behavior. Mother had a pattern of scheduling interviews with the social worker and then being unreachable at the scheduled time. She would also disappear from her shelter programs and become unreachable for periods of time. She would not answer phone calls or text messages. Mother's visits with Trevor were inconsistent. She was hospitalized multiple times for mental health issues, and exhibited violent and aggressive behavior. Father described his relationship with mother as volatile, and the paternal grandparents confirmed that mother would attack father in their home. Mother noted the paternal grandparents did not like her because she engaged in a verbal altercation with them while she was drunk. These concerning behaviors could have been attributed to a mental health issue but could also have resulted from drug use.
Mother admitted to drinking alcohol every couple of months and on at least one occasion, getting drunk. In the absence of drug tests, DCFS and the court had no way to verify mother's and father's statements that mother was not abusing drugs or alcohol. The scheduled drug tests provided mother an opportunity to show her sobriety, and she chose not to participate. Mother failed to provide the social worker with her photograph so the social worker could create identification for mother to use when drug testing. Mother's missed drug tests may properly be considered positive tests. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.)
The cases cited by mother are distinguishable. In In re Basilio T. (1992) 4 Cal.App.4th 155 [superseded by statute as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1242], the Court of Appeal overturned a juvenile court's inclusion of a substance abuse program in its dispositional order where there was no evidence that either parent had a substance abuse problem and nothing in the record indicated that a substance abuse problem led to the conditions that caused the dependency. (Id. at pp. 172-173.) Here, in contrast, father is an admitted user of methamphetamine, and mother was aware of father's drug use. Mother is named in the petition for failing to protect Trevor from father's drug use. She exhibited a number of concerning behaviors which could have been attributed to drug use. Thus, Basilio T. does not persuade us that the order for drug tests was inappropriate in this case.
In re Jasmin C. (2003) 106 Cal.App.4th 177 is similarly distinguishable. In Jasmin C., the Court of Appeal overturned a juvenile court order that a non-offending mother participate in a parenting education class. (Id. at p. 182.) The mother in Jasmin C. "did not abuse her children, fail to protect them, or engage in any other inappropriate behavior." (Id. at p. 181.) The father had gone on a violent rampage against two of his daughters, and the mother "immediately interceded, physically restrained and calmed him, and directed another to call the police." (Ibid.) The social worker "recommended custody with mother, and at no time were the children removed from her home." (Ibid.) Here, in contrast, mother failed to protect Trevor from father's methamphetamine use. She allowed father extensive access to the child. Further, mother engaged in violent and concerning behavior. The juvenile court had reason to be concerned that despite her assurances, mother may be engaging in drug use.
The juvenile court's dispositional order was "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).) Those conditions included father's admitted drug use, mother's failure to protect Trevor from father's drug use, and the violent and aggressive behavior that both parents exhibited. The juvenile court did not order a full drug program for mother, but ordered five random tests that would allow the court to be assured of mother's sobriety. Thus, we find that the dispositional order was properly tailored to the evidence before the court. The juvenile court did not abuse its discretion in ordering the drug tests for mother.
DISPOSITION
The order is affirmed.
We concur: LUI, P. J., ASHMANN-GERST, J.