Opinion
D071260
03-30-2017
In re WILLIAM M. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANNETTE C., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J516601B-D) APPEAL from an order of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Annette C. (Mother) appeals the juvenile court's order, made at a disposition hearing, requiring her to participate in random drug testing as part of her reunification plan. Mother argues the juvenile court abused its discretion by ordering drug testing because there was no evidence that she had used drugs in nine years prior to the petition in this case. We conclude the juvenile court did not abuse its discretion in ordering drug testing and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four minor children, Esteban D., William M., Joseph M. and Alyssa D. In 2007, William and Joseph were removed from Mother's care due to her methamphetamine use and mental health problems. Mother received family reunification services, including substance abuse treatment, and underwent three months of random drug testing. Mother successfully reunified with her children in October 2008. Thereafter, the family had two voluntary cases based on domestic violence between Mother and her boyfriend, Alfonso D., and Alfonso's physical abuse of Esteban. Alfonso is Alyssa's father. William and Joseph's father is deceased.
Esteban is not the subject of this appeal. At the time the Agency filed the petition at issue in this case, Esteban was living with a family friend. Mother also has an adult daughter.
In April and May 2016, the San Diego County Health and Human Services Agency (Agency) received referrals regarding domestic violence between Mother and Alfonso. During the Agency's investigation, William, Joseph and Alyssa reported hearing Mother and Alfonso fight on a night in May 2016. William reported that he and his siblings were in a bedroom when they heard a loud crash. William grabbed a baseball bat to protect Mother when he heard Alfonso yell, "fucking shut up or you'll see what happens to you." William believed that Alfonso had slammed Mother's head against a mirror because he saw strands of her hair attached to the broken mirror the next day. Joseph and Alyssa provided similar information about the incident.
Mother claimed Alfonso was verbally abusive, but she denied any physical abuse. She stated that she had harmed herself by banging her head into the mirror. Mother also reported that she had been cutting herself on her arms in an effort to deal with her stresses. When asked if she was afraid of Alfonso, Mother shook her head in the affirmative and began to cry.
In May 2016, Mother agreed to a safety plan. As part of the plan, Mother agreed to obtain a temporary restraining order against Alfonso, not allow him in the home, and not to have any contact with him. In June 2016, the Agency learned that Mother had violated the safety plan by having contact with Alfonso and allowing him into the home. Mother initially denied that Alfonso had been in her home, but later admitted to violating the safety plan. Mother signed another safety plan. Shortly thereafter, Alfonso was arrested on outstanding warrants in two drug cases.
The Agency filed petitions under Welfare and Institutions Code section 300, subdivision (b), on behalf of William, Joseph, and Alyssa. The petitions alleged the children were at substantial risk of serious physical harm or illness based on their exposure to domestic violence between Mother and Alfonso. At the detention hearing, the court found the Agency had made a prima facie showing that the children were persons described by section 300, subdivision (b), and out-of-home detention was necessary. The court ordered liberal, supervised visitation for Mother and granted her voluntary services. William and Joseph were detained with a nonrelated extended family member, and Alyssa was placed in a licensed foster home.
All further statutory references are to the Welfare and Institutions Code.
In July 2016, a social worker interviewed Mother. Mother continued to deny that she and Alfonso had engaged in physical domestic disputes. Mother reported that she has a history of self-harming behavior and suffers from anxiety and depression. Mother acknowledged that she had a history of substance abuse. She reported that she used drugs with William and Joseph's father until he committed suicide in 2005. Mother had been in a relationship with William and Joseph's father for 10 years. After the suicide, Mother increased her use of methamphetamine as a way of coping with her grief. Mother reported that she had stopped using drugs for a period of time when she was pregnant with Joseph, but resumed shortly after his birth. Mother stated she last used drugs on March 24, 2007, when her children were removed from her care during the prior dependency case.
The social worker discussed services with Mother. Mother reported that she was enrolled in a domestic violence services and was on a waiting list for therapy. Mother agreed to stay on her prescribed medication and to continue to follow up with her doctor. In the jurisdiction and disposition report, the Agency stated "[M]other will comply with on demand drug testing and if she tests positive she will be referred to the substance abuse specialist." Mother also agreed to attend codependency meetings. The Agency recommended that Mother's case plan include domestic violence services, individual therapy, random drug testing, and supervised visits with her children.
In July 2016, at the jurisdiction and disposition hearing, Mother set the matter for trial. Mother's counsel informed the court that Mother was opposed to drug testing in her case plan. Counsel explained that Mother worked in a department store and her hours varied, making random drug testing difficult. Mother wanted to prove to the court that she can safely care for her children, but she did not want to jeopardize her employment. Counsel informed the court that Mother was willing to drug test during the voluntary services period, prior to the trial date. Counsel hoped that if mother tested negative for drugs, the court would consider removing further testing from her case plan.
At a settlement conference in early August 2016, Mother's counsel again raised the issue of random drug testing. Counsel reiterated Mother's employment concerns and that Mother was willing to drug test before trial so that the Agency would be satisfied that she does not have a substance abuse problem. Counsel informed the court that although he had requested drug testing at the prior hearing, the Agency had not tested Mother. Thus, counsel repeated his request for the Agency to drug test Mother before the trial date. The court directed the Agency to attempt to drug test Mother before the next hearing date.
On August 16, 2016, a social worker directed Mother to drug test, but Mother did not respond and failed to appear for drug testing. At a hearing in September 2016, Mother's counsel explained that the Agency had attempted to drug test Mother once, but Mother had changed her number and was not able to attend the testing. Counsel again informed the court that drug testing Mother would clarify issues for trial. The Agency informed the court that it would continue to attempt to drug test Mother.
In October 2016, a social worker texted Mother to confirm her home address. When Mother replied, the social worker directed her to drug test and provided her the address for the drug testing site. Mother did not respond to the text communication and did not appear for drug testing. Three days later, Mother responded, stating that she had to work until 6:00 p.m. and was on "thin ice" at work as a result of having missed work for court appearances. The social worker recommended that Mother consult with her attorney because Mother had made the request for drug testing. On the morning of October 21, 2016, the social worker learned that Mother was not scheduled to work until 12:30 p.m. that day. Accordingly, the social worker texted Mother and directed her to drug test. The social worker informed Mother that Mother had ample time to drug test that day because she was not scheduled to work in the morning. Mother did not respond and did not appear for drug testing.
At the trial in late October 2016, the Agency continued to recommend that the children remain in out-of-home care and that Mother receive reunification services. After considering the Agency's reports, case plan, stipulated testimony, and a letter from paternal cousins, the court found the allegations of the petition true by clear and convincing evidence. The court declared William, Joseph and Alyssa dependents of the juvenile court.
The court rejected Mother's request to remove drug testing from her case plan. The court stated, "No, I'm going to leave that in place. But I would encourage the social worker, you know, upon an initial negative test to maybe two negative tests to reconsider that requirement because it has been some time since we have hard evidence of that, because I'm concerned about the lack of cooperation from [Mother], and please make every effort to not have it interfere with her work."
DISCUSSION
Mother argues the juvenile court erred in requiring her to submit to drug testing as part of her case plan. We reject this argument.
"At the dispositional hearing, the juvenile court must order child welfare services for the minor and the minor's parents to facilitate reunification of the family." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 (Christopher H.).) The reunification plan must be tailored to the unique facts relating to the particular family. (Ibid.) "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).) However, "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.)
The juvenile court may make all reasonable orders it deems necessary and proper. (§ 362, subd. (d).) "The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court's determination in this regard absent a clear abuse of discretion. [Citation.]." (Christopher H., supra, 50 Cal.App.4th at p. 1006; In re Neil D. (2007) 155 Cal.App.4th 219, 226 [applying abuse of discretion standard to mother's argument that the juvenile court erred in requiring her to participate in an inpatient drug program].) "[A]n abuse of discretion is never presumed but the complaining party must affirmatively establish it. [Citations.]" (Silver v. Shemanski (1949) 89 Cal.App.2d 520, 529.) An appellate court finds abuse of discretion only where the trial court exceeds the bounds of reason by making an arbitrary, capricious, or patently absurd ruling. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
Mother argues the juvenile court abused its discretion by subjecting her to random drug testing. Mother acknowledges that she had a substance abuse problem in the past. However, she contends she should not have been ordered to drug test because the last time she used drugs was in March 2007, and there was no evidence that she had used drugs thereafter.
We conclude the juvenile court's order requiring Mother to undergo random drug testing as part of her reunification plan was appropriate to address the unique facts of this particular family and, therefore, was not an abuse of discretion. Mother had used methamphetamine with her ex-boyfriend, William and Joseph's father, and increased her use in 2005 after her ex-boyfriend committed suicide. According to Mother, she stopped using methamphetamine in 2007 when her children were removed from her care in a prior dependency proceeding.
In connection with this case, Mother repeatedly requested that the Agency drug test her prior to the contested jurisdiction and disposition hearing. Mother opposed inclusion of drug testing as part of her case plan and argued that if she could show clean test results prior to trial, the results would assist the court in its decision as to whether to remove drug testing from her plan. Thus, the trial court directed the Agency to drug test Mother before the trial date. In accordance with Mother's requests and the court's direction, the Agency made multiple efforts to drug test Mother, but Mother did not appear for testing.
Mother contends her employment interfered with her ability to drug test, and there is no evidence that she received the social worker's messages instructing her to appear for testing. However, the Agency attempted to accommodate Mother's work schedule by, at least on one occasion, directing her to test during a time when she was not scheduled to work until later in the day. Mother did not respond to the social worker's message directing Mother to drug test and did not appear for testing. On another occasion, Mother was exchanging text messages with the social worker to confirm Mother's home address, but Mother failed to respond when the social worker told her to drug test. Mother responded three days later, stating she was on "thin ice" at work. Contrary to Mother's arguments, the evidence suggests she was evading drug testing.
The juvenile court noted that there was no "hard evidence" that Mother had used drugs in many years, but included drug testing as part of her reunification plan because Mother had failed to cooperate with the Agency's attempts to drug test her up until the time of trial. Like the juvenile court, we recognize that there is no evidence of substance abuse since 2007. However, based on Mother's past substance abuse history and failure to appear for drug testing despite her repeated demands for that testing, we find no abuse of discretion in the trial court's order, especially where, as here, the trial court instructed the Agency to accommodate Mother's employment schedule and to reconsider the drug testing requirement after one or two negative test results.
DISPOSITION
The order is affirmed.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.