Sacramento Cnty. Dep't of Child
v.
S.R. (In re S.R.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)Sep 12, 2018
C084942 (Cal. Ct. App. Sep. 12, 2018)

C084942

09-12-2018

In re S.R., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. S.R., Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD237317)

Appellant S.R., father of the minor, appeals from the juvenile court's order, entered at the six-month review hearing, requiring that he participate in dependency drug court. (Welf. & Inst. Code, §§ 366.21, 395.) We shall affirm this order. Father also contends there was insufficient evidence to support the finding of detriment to the minor should she be returned to father's physical custody. We conclude this contention is moot because the minor has since been returned.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 2016, a section 300 petition was filed on behalf of the minor based on father's physical abuse to the minor's half siblings and mother's failure to protect. With respect to drug use, the minor's half sibling reported that he saw both mother and father "smoke weed," which he smelled and saw all over the house. He can tell when his mother and father have done drugs because his mother goes to sleep and father " 'gets crazy.' "—saying, " 'You do not want to be around him when he does that!' " The child described a time when father was under the influence of drugs and ran four red lights on purpose while he was in the car. Father thought it was funny but the child was terrified.

The minor's other half sibling said there was marijuana " 'all over' " the house and father smoked marijuana " 'all the time, every day.' " He reported that when father smoked marijuana, he treated everything as a joke and when anyone acted contrary to his liking, father would become angry and start yelling.

Mother admitted to a history of marijuana use that began at age 13. After the minor's half siblings were born, she was smoking it several times daily and felt she had to have it. She claimed to have stopped using marijuana approximately two years prior to the petition being filed.

Father was introduced to marijuana at approximately age 17, which led to regular use. In 2015, he was issued a medicinal marijuana card for pain in his back and to assist with sleeping. Father indicated that he smokes approximately five grams of marijuana daily and stated he usually smokes in the garage of a neighbor who also has a medicinal marijuana card. He stated he keeps his marijuana in the back of a cabinet above the refrigerator.

By the time of the October 2016 combined jurisdiction/disposition hearing, neither mother nor father had completed any substance abuse testing, although the referrals had been made in June 2016. When asked at trial why he had not drug tested, father responded, "I just haven't done it, sir." At the conclusion of the contested hearing, the juvenile court sustained the petition, adjudged the minor a dependent child of the court and ordered her removed from parental custody.

Reunification services were ordered for both parents. Father's case plan included refraining from controlled substances unless lawfully prescribed, individual counseling, parenting education, an anger management program, and substance abuse testing as follows: "The parent shall participate in random substance abuse testing to rule out substance abuse, once per week for a period of 90 days, which is subject to increase should the parent test positive or have missed tests. Failure or refusal to submit to a random drug and alcohol test when requested will be indicative of current drug use and reported to the Court as non-compliance. Drug tests shall consistently be negative, and the parent shall remain drug and alcohol free, including abstaining from the use of alcohol, controlled substances, or any other intoxicants or paraphernalia associated with their use, not using, handling, or having in their possession alcohol, controlled substances, or dangerous drugs of any kind unless lawfully prescribed for them by a licensed physician or dentist; [¶] Should the parent fail to test or test positive for alcohol or any controlled substance, the parent shall be required to participate in an Alcohol and Other Drug (AOD) Assessment and treatment as recommended in the assessment, which may include inpatient treatment, outpatient treatment, ongoing random drug testing, participation in 12-step support groups, STARS and/or Dependency Drug Court."

The juvenile court's order specified: "Said child's parents, [K.T.] and [S.R.], abstain from the use of alcohol, controlled substances, or any other intoxicants or paraphernalia associated with their use. The parents, [K.T.] and [S.R.] are further ordered not to use, handle, or have in their possession alcohol, controlled substances, or dangerous drugs of any kind unless lawfully prescribed for the mother and the father, [K.T.] and [S.R.], by a licensed physician or dentist."

Father objected to the court's orders to abstain from the use of controlled substances at the hearing, arguing that this was not a substance abuse case. In response, the juvenile court stated: "Well, I thought about that, but there is information in the report that [father], upon consuming marijuana, his personality changes, and his personality changes in a manner that is threatening to the children. [¶] So I do think it's important—I don't know why he uses the medicinal marijuana, but I think it's important that he find another way to alleviate his pain and not use marijuana or use the medicinal marijuana that removes the THC element from it so that he can get the benefits of the pain management without the psychoanalytical—I think that's what it is—portion of the marijuana. [¶] But I just think because your personality changes, or that's the perspective of the children, sir, I think—I think you need to refrain from using it for a period of time and see if you can manage it some other way."

As of November 30, 2016, father had completed six to seven anger management sessions; he had not yet started group counseling classes, had not begun an authorized parenting education program, and had not yet done an intake to begin drug testing. Father continued to deny the allegations made against him and allegations as to substance abuse issues. The juvenile court removed the group counseling requirement and added the requirement that father complete a domestic violence program.

The social worker filed a report on March 14, 2017, reporting that mother had participated in her case plan services. Father had completed his parenting classes and anger management program. He was enrolled in a domestic violence program and attending individual counseling. He had nearly completed 90 days of random substance abuse testing (testing negative) and had been visiting the minor regularly.

In an addendum dated May 12, 2017, the social worker reported that father had tested positive for THC, without a prescription on file, on March 27, 2017. On March 24, 2017, a hotline call was received by a confidential reporter that father was smoking marijuana. Father was asked to drug test due to suspicion of use and tested positive for THC. Father reported to the social worker that he had taken THC capsules and stated that he has a medical marijuana recommendation card. Father indicated that he does not believe marijuana has affected his personality and he does not identify substance use as a contributing factor in the case. Father reported that he used THC primarily for anxiety. As a result of the positive test, the social worker completed a safety plan with the mother based upon father's personality change while on marijuana, including father being required to move out of the home. The social worker prepared an updated case plan for father which included a psychotropic medication evaluation, substance abuse testing, dependency drug court, and outpatient substance abuse treatment.

This was also reported orally to the juvenile court at the April 21, 2017 pretrial conference. In response, the juvenile court ordered father to continue substance abuse testing, as arranged by the Department. --------

At the June 9, 2017 contested hearing, mother testified that father had used marijuana every day at the outset of the case and that using marijuana changes his temperament, although not in a negative way. Father testified that before the case started he had been using marijuana for several years and had not had an issue with it. He began using marijuana and THC again in March 2017. He used THC capsules on a couple of occasions with some friends, who he had invited to come use some "good stuff." He was using the THC capsules recreationally—just having a "get-together" with friends.

Father also testified he uses marijuana for anxiety, but had not consulted a doctor about this problem since his release from incarceration in 2013. He resumed smoking marijuana before sleeping after the 90-day period following commencement of his drug testing. He stated he believed the court had only required he refrain from using substances for 90 days. Father drug tested on May 9, 2017, and May 16, 2017 (testing negative), but did not test on May 26, 2017, and May 30, 2017, because he was ill. He also tested negative for substances on June 5, 2017.

At the conclusion of the review hearing, the juvenile court continued the minor as a dependent and placed her with mother. The placement was on the condition father not reside in the family home and all contact between father and the minor be arranged by the Department. The juvenile court ordered individual counseling for father to address issues related to his anxiety and ordered father to undertake an alcohol and drug assessment. The juvenile court also ordered father to attend dependency drug court and ordered that both parents abstain from the use, possession or handling of controlled substances unless lawfully prescribed by a licensed physician or dentist, and specifically ordered the parents to abstain from all marijuana use.

DISCUSSION

I

Dependency Drug Court Requirement

Father contends the juvenile court erred in ordering dependency drug court as an element of his case plan because there was no substantial evidence that he was in need of such services. He does not challenge the substance use restrictions or substance abuse testing requirement in the initial case plan. Rather, he argues his ability to test clean for three months, coupled with his resumption of clean testing after being ordered to continue testing, establishes he does not have an issue with marijuana sufficient enough to warrant continued substance abuse services. We disagree.

The juvenile court has broad discretion in fashioning reunification plans. (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) "Section 362, subdivision (d), provides: 'The juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section, . . . [including] a direction to participate in a counseling or education program . . . .' (§ 362, subd. (d).) Under section 362, subdivision (d), ' "[t]he juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly." ' (In re A.E. (2008) 168 Cal.App.4th 1, 4.) On appeal, ' "this determination cannot be reversed absent a clear abuse of discretion." ' (Ibid.)" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1220-1221.)

A reunification plan " ' "must be appropriate for each family and be based on the unique facts relating to that family." ' " (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Here, the juvenile court gave substantial consideration to father's argument and circumstances. It concluded, however, that "to say that this case wasn't about or didn't come in as a marijuana abuse case is really misguided. It might not have been the allegations that were contained in the petition, but [father's] use of marijuana was completely enmeshed into the—his attitude and demeanor and the physical abuse that was going on in the home, and the Court expressed that back in October of last year when the Court adjudicated that petition."

The juvenile court went on to note that the father began using marijuana almost immediately after the 90 days of testing were up, admitted that the marijuana use had been recreational use, and had not sought out therapeutic advice as to how to manage his anxiety without marijuana use. As a consequence, the juvenile court found that father had not been completely honest with the court, his wife, or himself, and his behavior was consistent with that of an addict. The juvenile court concluded that father had a dependence on marijuana that was unhealthy for him and his family, father failed to appreciate how his use of marijuana impacts his relationship with his family, and until father addressed these circumstances, it could not comfortably place the minor in his care.

The juvenile court then expressly explained its reasons for selecting dependency drug court to address these concerns. The juvenile court explained: "I believe drug court is one of the best resources we can give parents who the Court finds are either suffering from addiction or at risk of addiction. [¶] . . . [¶] It doesn't just include testing, but it includes one-on-one with a recovery specialist. It includes having you attend a certain number of meetings per week, like Alcoholic[s] Anonymous or Narcotic[s] Anonymous meetings. It's trying to approach this with, kind of, the fall [sic] wraparound, rather than just saying 'don't use.' [¶] We want to give you the support you need to try to get you to be able to address your anxiety in other ways."

We find nothing unsupported or unreasonable in the juvenile court's reasoning or order. Father had been using marijuana for years, both medicinally and recreationally, prior to the filing of these proceedings, smoking five grams daily. The minor's half siblings disclosed that father smoked marijuana " 'all the time, every day,' " and when he does so he " 'gets crazy' " and " '[y]ou do not want to be around him when he does that!' " And while father may believe the only change in his temperament is that he thinks "things to be a little more funnier than normal" when he has smoked marijuana, one of the minor's half siblings stated that father thought everything was a joke but that he would become angry and start yelling when anyone acted contrary to his liking. Thus, as the juvenile court found, father's marijuana use impacts his parenting. It changes his personality in a manner that his children find threatening. The mere fact that father was able to test clean for a limited period does not eliminate the concern that father has a drug dependence that is unhealthy for his family. Indeed, father's continued denial that his marijuana use may affect his family, and his current lack of a satisfactory method of dealing with his anxiety, further justifies the juvenile court's order that he participate in dependency drug court. We find no error in the juvenile court's order.

II

Return of the Minor

Father contends the juvenile court erred when it found a substantial risk of detriment to the minor should she be returned to father's physical custody. Since the filing of this appeal, however, this issue has become moot.

On December 8, 2017, the juvenile court entered a new order, finding "[t]he return of the child to the father would not create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." We grant the Department's request to take judicial notice of this order. (Evid. Code, §§ 452, subd. (d), 459.)

As a general rule, appellate courts decide only actual controversies. Thus, "it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events." (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) When subsequent events render " 'it impossible for this court, if it should decide the case in favor of appellant, to grant . . . any effectual relief whatever, the court will not proceed to formal judgment but will dismiss the appeal.' " (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.)

Here, the minor's return renders the propriety of the contested order moot, because even if she should have been returned earlier, any error has now been remedied, preventing this court from providing any meaningful relief in this appeal. While the "court may exercise its inherent discretion to resolve an issue when there remain 'material questions for the court's determination' [citation], where a 'pending case poses an issue of broad public interest that is likely to recur' [citation], or where 'there is a likelihood of recurrence of the controversy between the same parties or others,' " this is not such a case. (See In re N.S. (2016) 245 Cal.App.4th 53, 58-59.) Accordingly, we decline to address and grant the Department's motion to dismiss this issue as moot.

DISPOSITION

The orders of the juvenile court are affirmed.

/s/_________


Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.