Opinion
B299341
06-18-2020
In re R.F., et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D. P., et al., Defendants and Appellants.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant D.P. The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant T.T. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and William D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP03186) APPEALS from findings and orders of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Affirmed as modified with directions. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant D.P. The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant T.T. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and William D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
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In May 2019, five-year-old Rylee F. (born in July 2013) was injured in a drive-by shooting of which her father, D.P. (father) was believed to have been a target. Four-year-old Peyton P. (born in April 2015) was present at the shooting. The Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition alleging the two children were juvenile court dependents because father had placed the children in an endangering situation, and the children's mother, T.T. (mother), regularly used marijuana while caring for the children. The juvenile court sustained the petition and ordered the parents to engage in family maintenance and reunification services.
Mother has another child, J.T., with her current boyfriend. J.T. is not a subject of this proceeding.
Both parents have appealed from the jurisdiction and disposition findings and orders. Father contends there is no substantial evidence that he endangered the children by taking them to the location where Rylee was shot, and the juvenile court erred by failing to hold an evidentiary hearing to determine if he is the children's presumed father. Mother contends substantial evidence does not support the finding that her marijuana use placed the children at risk of harm, the juvenile court erred by failing to hold an evidentiary hearing on her request for new appointed counsel, and the court abused its discretion by ordering her to drug test, submit to a psychiatric evaluation, and participate in mental health counseling.
We conclude substantial evidence supported the jurisdiction findings against both parents. We further conclude that any error by the juvenile court in failing to hold a hearing on mother's request for new counsel was not prejudicial, and the court did not abuse its discretion by ordering mother to drug test and attend individual counseling. We find, however, that the juvenile court erred by failing to hold a hearing on father's request for presumed father status and by ordering mother to submit to a psychiatric assessment. We therefore direct the juvenile court on remand to hold an evidentiary hearing on father's parentage status, modify the disposition order to strike the requirement that mother submit to a psychiatric assessment, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we describe the evidence in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's orders, if possible. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
A. Background
On May 14, 2019, Rylee was shot during a drive-by shooting at Vermont Square Park in Los Angeles. Father, a documented member of the Rollin 40's gang, was a suspected target of the shooting. Rylee was taken to the hospital, where she was treated and kept for several days before being sent home.
Father has a lengthy criminal history, including convictions for robbery and firearm possession. Four months prior to the shooting, father had been released from prison after serving a 32- month sentence for possessing a firearm. It reportedly was a violation of father's parole to be in or around Vermont Square Park, which is a gathering place for Rollin 40's gang members and is used as a place for selling illicit drugs.
A police detective said father was considered a partial target of the May 14 shooting because he was at the park with other members of the Rollin 40's gang. The detective said gang shootings have a high probability of retaliation, especially when family members are caught in the cross-fire, and that being around father put the children at high risk of being a target of gang violence.
Mother reported that father had been released from prison in early 2019. Since father's release, mother had allowed the children to live with father and the maternal grandmother "so that the children could have a relationship with their father," who had been in prison for most of their lives. In the meantime, mother was "transitioning" to Las Vegas, where she reportedly was running an unspecified business. Mother did not approve of father's and maternal grandmother's childrearing techniques because the children "are allowed to do as they please." Mother said she and the maternal grandmother did not have a good relationship, and that father and the maternal grandmother opposed her regaining custody of her children. Mother admitted that father "may" be a member of the Rollin 40's gang.
Mother admitted that she used marijuana and had smoked earlier in the day of the interview, May 16, 2019, because she was "very stressed out." She claimed to be "allowed" to smoke because she had a medical marijuana card. Mother denied smoking marijuana while caring for the children, and she agreed to drug test.
On May 21, 2019, the court ordered the children detained from father and released to mother. Mother was ordered to submit to a random drug test.
B. Petition; Detention Hearing
DCFS filed a juvenile dependency petition on May 20, 2019. The petition alleged the children were within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b), as follows:
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
b-1: On May 14, 2019, father placed the children in a detrimental and endangering situation in which Rylee was shot while under father's care. Father is a documented gang member of the Rollin 40's and was a partial target of the shooting. The area where the shooting occurred is known to be a gathering place for the Rollin 40's. Such a detrimental situation endangered the children's safety and placed them at risk of serious physical harm.
b-2: Mother is a current abuser of marijuana, which renders her incapable of providing regular care of the children. On prior occasions, mother was under the influence of marijuana while supervising the children. Mother's substance abuse placed the children at risk of serious physical harm.
At the May 21, 2019 detention hearing, father's counsel told the court that father was no longer affiliated with a gang, and the shooting had nothing to do with him. Counsel said that since father's release from prison, he had been living with the maternal grandmother, was employed full time, and had been caring for the children. Father asked that the children be released to him or, alternatively, to the maternal grandmother. He did not believe the children could be safely released to mother.
Mother's counsel and DCFS opposed the request to release the children to father, noting that Rylee had suffered a gunshot wound because father had knowingly taken the children to a place of danger.
The court found father to be the alleged father of both children. It found a prima facie case for sustaining both counts of the petition, and it ordered the children detained from father and released to mother. Mother was ordered to submit to random drug testing, and father was granted monitored visits at a DCFS office.
We discuss this finding in greater detail infra.
C. Jurisdiction and Disposition Report
The day after the detention hearing, father left a telephone message for a children's social worker (CSW) stating that he had been caring for the children since his release from prison on January 15. Father said he had taken the children away from mother because mother's boyfriend had "put his hands on the children." The CSW attempted to return father's call, but father did not answer his phone or make further contact with DCFS.
Mother failed to drug test on June 5, and she tested positive for marijuana on June 7, 2019. Thereafter, she refused to participate in services or to allow the CSW to interview the children. Mother's boyfriend, who was also the father of her youngest child, had a lengthy criminal history, which included convictions for attempted murder and vehicle theft. Mother denied abusing marijuana, and she minimized Rylee's injury, saying Rylee had been "grazed," not "shot."
DCFS reported it had significant concerns about the children. It explained: "While contact has been made with the children and there have been no physical signs of abuse or neglect, the mother's uncooperative behavior, lack of confirmed and stable housing, father's action of taking the children in a heavily gang populated area, in which [Rylee] was grazed with a bullet, mother allowing the children Rylee and Peyton to be under the care of the father since being released from prison in January 2019 despite mother's knowledge of father being an active gang member, mother allowing the children to be under the care of the maternal grandmother despite mother reporting that she does not have a good relationship with [maternal grandmother], the limited and concerning information the Department has about mother's male companion and possible history of domestic violence, mother's unwillingness to allow the children, who were at the scene of a crime, to be assessed for mental health services, in addition to mother being a flight risk, all remain a concern and pose a risk to the safety and welfare of the children. . . . [¶] [Moreover, due] to mother's lack of cooperation as well as father's unavailability, the Department has been unable to provide the parents with any services or referrals."
D. Jurisdiction and Disposition Hearing
At the July 9 jurisdiction and disposition hearing, father's counsel asked the court to dismiss the b-1 allegation, urging there was no evidence father currently was a gang member. Counsel contended that the sole alleged basis for jurisdiction as to father was that he "[took] his child to a park in the neighborhood where he grew up[.] . . . [¶] [In] the neighborhood where father grew up—there are not many green spaces, parks where a child . . . can be . . . taken to provide some recreational opportunities, and basically the entire neighborhood in which father resides and grew up is gang territory to one gang or another. [¶] So the Department, in saying you cannot take your child to a park where you grew up because you may be a victim of a shooting, they are saying you need to take the child to a different park, in a different part of the neighborhood, which could be a different gang territory or to a . . . neighborhood that . . . would require father to travel a long distance away. [¶] Father was not at fault for the shooting. All the Department has shown is that [Rylee], along with four other adults[, was] injured by an unknown assailant, with an unknown intention, in a neighborhood that is gang territory, which is prone to crime[,] and the Department simply is trying to convict father for his past behavior, past conduct, and past gang affiliations. [¶] I do not believe that is jurisdictional."
Mother's counsel asked the court to dismiss the b-2 allegation, urging that the court should find mother nonoffending because there was an insufficient nexus between mother's past marijuana use and any harm to the children.
DCFS's counsel said the park unquestionably was not a safe place for the children, and avoiding the park was a condition of father's parole. Further, the family had failed to cooperate with DCFS since the onset of the case, and each parent had made disturbing allegations against the other. DCFS therefore asked that the petition be sustained as pled.
The court sustained the petition in full. It then ordered the children removed from father, finding that permitting the children to be in father's custody would be detrimental because father was on parole, was not engaging in services, and had not made himself available to DCFS. It granted father monitored visits with the children, and it ordered him to drug test, participate in individual counseling, and take a parenting class. The court granted mother physical custody of the children under DCFS supervision, and it ordered mother to drug test, submit to a psychological assessment and psychiatric evaluation, take a parenting class, and participate in individual counseling. The children were ordered not to have any contact with mother's boyfriend.
Mother and father timely appealed from the jurisdiction and disposition findings and orders.
On the court's own motion, the court takes judicial notice of the minute orders of the February 5, 2020 hearing.
In January 2020, while this appeal was pending, DCFS filed a section 387 petition alleging that the previous disposition had not been effective in protecting the children because mother had failed to drug test, to participate in individual counseling, and to submit to a psychiatric evaluation. Further, mother had allowed father and her boyfriend to have unsupervised contact with the children, and had traveled out of state with the children without informing DCFS.
On February 5, 2020, the court sustained the supplemental petition and ordered the children removed from mother. Further, after a hearing, the court denied mother's request for new appointed counsel.
On March 10, 2020, the court asked the parties to file supplemental letter briefs addressing what effect, if any, these subsequent events had on the issues raised in this appeal. DCFS and mother filed supplemental briefs on March 16 and April 2, 2020, respectively; counsel for father advised the court that father would not be submitting a supplemental brief because he agreed with DCFS that subsequent events were not relevant to father's appeal.
FATHER'S APPEAL
Father contends: (1) substantial evidence did not support the allegation against him; and (2) the juvenile court erred by refusing to hear evidence relevant to whether he is the children's presumed parent. Father also joins mother's contention that the allegation against her was not supported by substantial evidence.
I.
Substantial Evidence Supported the
Sustained Allegation Against Father
A. Legal Standards
Section 300, subdivision (b), provides that a child is within the jurisdiction of the juvenile court 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." DCFS has the burden of proving by a preponderance of the evidence that the children are dependents of the court under section 300. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.)
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' [Citation.]" (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)' " (In re I.J., supra, 56 Cal.4th at p. 773.)
B. Analysis
Father contends that substantial evidence did not support the juvenile court's findings as to him because, he suggests, a parent cannot breach a duty of care "by simply taking his children to a playground located within a public park." While it is certainly true that bringing one's children to a public park does not typically support the exercise of dependency jurisdiction, this is not a typical case. There was evidence here that father was a gang member, the park was a known gang hangout, and it was a condition of father's parole not to be in or near the park. Father violated this parole condition by being in the park with other gang members, as a consequence of which his daughter was injured in a gang shooting of which father was thought to have been a target. Under these unusual circumstances, we have no difficulty concluding that father's actions gave rise to dependency jurisdiction.
Father also contends there was no credible evidence that he was a gang member, that it was a violation of his parole to be at the park, or that he was a target of the shooting. The claims are without merit. DCFS's reports state that the case had been assigned to DCFS's Multi-Agency Response Team (MART), which "work[ed] in collaboration with various law enforcement agencies to service children identified in homes associated with high levels of illegal gang, narcotics, [and] weapons activity." After speaking with Los Angeles Police Department Detective Mendez, CSW Maria Pacheco reported that father is a documented member of the Rollin 40's gang and goes by the moniker "Clover Boy." She also reported that the park is a known gathering place for the Rollin 40's, and one of the reported conditions of father's parole was to avoid being in or around the park. Father was considered a partial target of the shooting because he was at the park with other documented members of the Rollin 40's.
Because it is not relevant to our analysis, we do not consider whether the Los Angeles Times article attached to the detention report (which reported the frequency of violent crimes in or near the park) constituted admissible evidence that supported the court's findings.
Father concedes that these statements appear in DCFS's reports, but he contends they are not sufficient to support the jurisdictional finding against him. He is incorrect. "A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." (§ 355, subd. (b), italics added.) Our Supreme Court has explained that a social study prepared by a petitioning agency (here, DCFS) "fits within the class of 'legally admissible' evidence on which a court can rely in a jurisdictional hearing, despite the fact that a social study is itself hearsay and may contain multiple levels of hearsay." (In re Cindy L. (1997) 17 Cal.4th 15, 21.) Only "[i]f a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study" may the specific hearsay evidence "be [in]sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based . . . ." (§ 355, subd. (c)(1); In re E.B. (2010) 184 Cal.App.4th 568, 577.)
Father concedes he did not object to the reports' admission, but he urges the reports are not sufficient to support the finding against him because there was no evidence that either the CSW or Detective Mendez had personal knowledge of his alleged gang affiliation, parole conditions, or connection to the shooting. The court considered a similar claim in People v. Hall (2019) 39 Cal.App.5th 831 (Hall), where the appellant sought to have his felony conviction dismissed or redesignated as an infraction pursuant to Proposition 64. The trial court determined the defendant was ineligible for the requested relief, relying in part on arrest and probation reports that stated that he had been transporting approximately one pound of marijuana when he was arrested. (Id. at p. 833.) On appeal, the defendant urged that the trial court erred in relying on these reports because they contained " 'unsworn hearsay.' " (Id. at p. 836.) The Court of Appeal disagreed, holding that a trial court could consider hearsay statements in determining whether a defendant was eligible for resentencing under Proposition 64 if there was a substantial basis for believing such statements were reliable. (Id. at p. 838.) The court further held that the trial court did not abuse its discretion in finding that the probation officer's statement that the defendant had been transporting approximately one pound of marijuana was reliable, even though the probation officer did not indicate the basis for his statement. (Id. at p. 839.) The court explained: "The probation officer did not pull the 'one pound' figure out of thin air. '[I]t must be presumed that the probation officer fully and fairly performed the duty imposed upon him by section 1203 of the Penal Code' . . . 'to investigate and report to the court . . . upon the circumstances surrounding the crime.' " (Ibid.) Thus, the trial court reasonably inferred that the probation officer had derived the weight of the marijuana from the report prepared by a criminalist at the sheriff's crime lab, who, in turn, had an official duty to accurately weigh and analyze the seized contraband. (Ibid.)
The present case is analogous. As in Hall, the CSW acted in her official capacity when she interviewed Detective Mendez and summarized his statements in the detention and jurisdiction/disposition reports. (See In re Ashley M. (2003) 114 Cal.App.4th 1, 7-8 ["At each stage of the dependency proceeding, the social services agency is statutorily mandated to prepare social study reports and make recommendations to assist the court. (§§ 280, 281, 319, subd. (b), 358, subd. (b), 358.1, 361.5, subd. (c), 364, 365, 366.21, subds. (c), (e), (f), 366.22, subd. (a), 366.26, subd. (b).)"].) In this capacity, the CSW acted "as an impartial arm of the court in assisting the court to carry out the Juvenile Court Law." (In re Ashley M., at p. 8.) The juvenile court thus could reasonably have inferred that the detective had personal knowledge of the Rollin 40's gang and father's parole conditions, and that the CSW reasonably relied on the information the detective provided. (See In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1572 [social study reports are competent to support a jurisdictional finding because they are prepared " 'by disinterested parties in the regular course of their professional duties' which 'lend them a degree of reliability and trustworthiness' "].)
Of course, if father believed any of the hearsay evidence contained in the jurisdiction report was unreliable, he could have objected to its admission or cross-examined the CSW. (§ 355, subds. (b)(2), (c)(1).) Alternatively, father had the right to subpoena Detective Mendez "or to introduce admissible evidence relevant to the weight of [Detective Mendez's] hearsay evidence or [Detective Mendez's] credibility." (§ 355, subd. (d).) Having failed to do so, father has forfeited his objection to the reliability of this evidence. (Evid. Code, § 353; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) We therefore conclude substantial evidence supported count b-1 of the petition.
II.
The Juvenile Court Erred by Failing to Conduct an
Evidentiary Hearing on Father's Request
to Be Declared a Presumed Father
A. Additional Relevant Facts
At the detention hearing, father submitted a "Statement Regarding Parentage" stating that he lived with the children between January and May 2019, participated in "all activities" with them, provided the children financial support, and told "all people" the children were his. Father therefore asked to be declared the children's presumed father.
At the detention hearing, mother disputed that father was the children's presumed father; she asserted that she and father had never been married, father's name was not on the children's birth certificates, and the children had never lived with father. Although father's counsel asked if the court would hear testimony from father on the issue, the court declined to hear any testimony and found father was an alleged father.
B. Analysis
Father contends the court erred by failing to conduct an evidentiary hearing, and that the case should be remanded with directions to the juvenile court to conduct a hearing. DCFS takes no position on the issue. We review the court's determination for an abuse of discretion. (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1116.)
We agree with father that the juvenile court erred in failing to conduct an evidentiary hearing on his request for presumed father status. A father's rights and the extent to which he may participate in dependency proceedings depend on his status as an "alleged" or "presumed" father. (In re H.R. (2016) 245 Cal.App.4th 1277, 1283.) An alleged father—a man "who may be the father of a child, but whose biological paternity has not been established" (In re Joseph G. (2000) 83 Cal.App.4th 712, 715)—is not entitled to appointed counsel or reunification services. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) In contrast, a presumed father—a man who "receives the child into [his] home and openly holds out the child as [his] natural child" (Fam. Code, § 7611, subd. (d))—is entitled to counsel and reunification services. (In re H.R., at p. 1283.)
The juvenile court shall make a finding as to "[w]hether any man qualifies as a presumed father" at the detention hearing "or as soon thereafter as practicable." (§ 316.2, subd. (a)(7).) Although in many cases a parentage determination does not require an evidentiary hearing (Cal. Rules of Court, rule 5.635(e)(3)), the juvenile court erred in failing to conduct one here. "The purpose of [an] evidentiary hearing is to make findings of fact and credibility determinations necessary to adjudicate" contested facts. (In re Cook (2019) 7 Cal.5th 439, 457.) Indeed, " '[o]ral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. [Citation.] A witness's demeanor is " 'part of the evidence' " and is "of considerable legal consequence." [Citation.]' " (In re M.M. (2015) 236 Cal.App.4th 955, 964.) Here, mother and father gave competing accounts of father's involvement in the children's lives, and thus an evidentiary hearing was necessary to allow the juvenile court to make findings of fact and credibility determinations relevant to a determination of father's parentage status. Accordingly, we will direct the court on remand to conduct an evidentiary hearing on father's request for presumed father status.
MOTHER'S APPEAL
Mother contends: (1) the trial court prejudicially erred by failing to conduct an evidentiary hearing on her oral request for new counsel; (2) substantial evidence did not support the petition as to mother; and (3) the juvenile court erred by ordering mother to participate in random drug testing, mental health counseling, and a psychiatric evaluation. Mother also joins father's contention that the allegation against him was not supported by substantial evidence.
I.
The Trial Court Did Not Prejudicially Err
by Failing to Hold a Marsden Hearing on July 9
A. Additional Relevant Facts
1. Mother's July 2019 Request For New Counsel
At the July 9, 2019 jurisdiction hearing, mother said she did not want her appointed counsel, Max Potter, to continue to represent her. Mother said she had hired private counsel, whom she had paid "a ton of money," who would appear at the next date. Mother then said she did not want to hire private counsel, but would prefer to represent herself. The court continued the hearing to July 15 to allow mother to "bring [in] counsel" if she was "not going to keep Mr. Potter."
Mother did not attend the July 15 hearing or send private counsel to represent her. Attorney Potter appeared on mother's behalf and represented her at the jurisdiction and disposition hearing.
People v. Marsden (1970) 2 Cal.3d 118.
On February 5, 2020, subsequent to the hearing at issue in this appeal, mother made another request for new counsel. The court held a hearing on mother's request, and then denied it.
B. Analysis
Mother contends the juvenile court prejudicially erred by failing to hold a Marsden hearing when she requested new counsel at the July 9, 2019 hearing. She urges the error was not cured by the subsequent Marsden hearing because the relief she seeks is not a further hearing on the Marsden issue, but rather reversal of the jurisdictional findings and orders. DCFS disagrees: It contends the juvenile court did not err by failing to hold a Marsden hearing and, in any event, the issue has been mooted by the February 5 hearing.
We agree with DCFS that the juvenile court did not err in failing to hold a Marsden hearing on July 9. " 'Juvenile courts, relying on the Marsden model, have permitted the parents, who have a statutory and a due process right to competent counsel, to air their complaints about appointed counsel and request new counsel be appointed. (§ 317.5; In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.)' (In re V.V. (2010) 188 Cal.App.4th 392, 398; see In re Z.N. (2009) 181 Cal.App.4th 282, 289 [Marsden principles apply by analogy to dependency proceedings].)" (In re M.P. (2013) 217 Cal.App.4th 441, 455.) In the present case, however, mother did not request that new counsel be appointed—instead, she asked first to be represented by private counsel, whom she said she had already hired, and then to represent herself. Nor did the juvenile court deny mother's request: To the contrary, the juvenile court granted mother's request to be represented by private counsel, and continued the hearing to allow mother's private attorney to appear. Only when neither mother nor her private attorney appeared at the continued hearing did the court permit attorney Potter to represent mother. On this record, therefore, a Marsden hearing was not required.
In any event, any error in failing to hold a hearing on mother's July 9 request for new counsel was harmless in light of the subsequent Marsden hearing. Even where a juvenile court has erred, we will reverse only if the error was prejudicial, i.e., " ' " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " ' " (In re Adam H. (2019) 43 Cal.App.5th 27, 32; In re Abram L. (2013) 219 Cal.App.4th 452, 463.) Here, the court manifestly would not have reached a different result had it held a hearing on July 9: When mother, who was still represented by Max Potter, made a request for new counsel on February 5, the court held a hearing on the issue and then denied the request. Accordingly, even if the court erred in refusing to hold a Marsden hearing on July 9, mother is not entitled to reversal of the jurisdictional findings and orders.
II.
Substantial Evidence Supported the
Sustained Allegation Against Mother
Mother contends substantial evidence does not support count b-2 of the petition, which alleged she is a current abuser of marijuana, rendering her incapable of providing regular care of the children. For the reasons that follow, we disagree.
"The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2.) Thus, section 300, subdivision (b) provides that a child is within the jurisdiction of the juvenile court 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 inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse." (§ 300, subd. (b)(1).)
Mother contends the only evidence to support count b-2 of the petition was her own statement that she smoked marijuana one time, on May 16, 2019. In fact, the evidence of mother's marijuana use was far more substantial. In addition to mother's admission of having smoked marijuana on May 16, mother missed a drug test on June 5 and subsequently tested positive for marijuana. Further, mother admitted having a marijuana card, from which the juvenile court could reasonably have inferred she regularly smoked marijuana; plainly, she would not have obtained a medical marijuana card in order to smoke marijuana on a single occasion. There was, therefore, substantial evidence from which the juvenile court reasonably could have inferred that mother used marijuana on a regular basis.
A parent's missed drug test may properly be considered the equivalent of a positive test result. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1303-1304; In re Christopher R., supra, 225 Cal.App.4th at p. 1217.)
Mother further contends there was no evidence she smoked marijuana around the children. Not so. Mother admitted smoking marijuana on May 16, the same day she said Rylee would be released from the hospital into her care. Thus, although she did not smoke around Rylee on that occasion, the juvenile court could reasonably have inferred that she was still under the influence when Rylee was discharged. Mother also tested positive for marijuana in July 2019, when she was the sole caretaker of the children. In the absence of other evidence, therefore, the juvenile court could reasonably have concluded that mother was under the influence of marijuana while the children were in her care.
Finally, mother contends there was no evidence the children were negatively impacted by her marijuana use. We note as an initial matter that both children were of "tender years," and thus the juvenile court's finding sustaining the allegation of the petition that mother abused marijuana was prima facie evidence of mother's inability to provide regular care. (In re Christopher R., supra, at p. 1219 [where children were six years old or younger, " 'the finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of harm' "]; In re Rocco M. (1991) 1 Cal.App.4th 814, 824, disapproved on other grounds in In re R.T. (2017) 3 Cal.5th 622, 629 [same].) Moreover, mother's admitted marijuana use must be viewed in the context of the poor judgment she showed prior to, and during, this dependency case. Before DCFS became involved with the family, mother left her two young children in the custody of father, whom mother knew was a gang member and had been in custody most of the children's lives. While in father's custody, five-year-old Rylee suffered a gunshot wound when father took the children to a known gang hangout in the presence of other gang members. Afterwards, mother refused to allow DCFS to assess her home, speak to the children, or provide Rylee with trauma counseling.
The present case thus is distinguishable from In re Rebecca C. (2014) 228 Cal.App.4th 720 (Rebecca C.), on which mother relies. In Rebecca C., the juvenile court sustained a finding that appellant R.C. had a history of substance abuse that rendered her incapable of providing regular care and supervision of her teenage daughter, Rebecca. (Id. at pp. 721-722.) The Court of Appeal reversed, concluding that although R.C. had a documented history of drug use, there was no substantial evidence that R.C.'s drug use caused a substantial risk of harm to her daughter. (Id. at p. 727.) The court explained: "[W]hen the family residence was inspected by the investigating social workers, it was clean, free of hazards, stocked with food, and clear of drugs and firearms. Rebecca denied any physical or emotional abuse, did not show any signs of physical abuse, and was not fearful of Mother. Rebecca was up to date on medical and dental checkups. Mother enrolled Rebecca in special education during the fourth grade; Mother regularly attended individual education plan meetings on behalf of Rebecca." (Ibid.) Thus, the court concluded, the evidence was not sufficient to support the finding that R.C.'s substance abuse "is causing, or there is a risk it will cause, physical harm to Rebecca." (Id. at p. 728.)
Here, unlike in Rebecca C., mother did not permit DCFS to enter her home or to speak to the children. DCFS therefore was unable to conclude, as it did in Rebecca C., that the home was safe and the children had not been physically or emotionally abused. Nor was DCFS able to confirm that the children were attending school or receiving medical care: Mother failed to provide DCFS with medical or dental exam information, and she provided no educational information other than the name of the school Rylee attended. Mother also refused to allow the children to be evaluated by a child psychologist to determine whether they were suffering ongoing trauma as a result of the shooting. And, unlike the minor in Rebecca C., who was a teenager and thus able to care for many of her own needs, Rylee and Peyton were only five and four years old, and thus were totally dependent on the care provided by mother.
The present case also is distinguishable from In re L.C. (2019) 38 Cal.App.5th 646. In that case, there was evidence that L.C.'s guardian, Pedro, was an occasional user of methamphetamine. However, there was no evidence that Pedro ever used methamphetamine while caring for L.C.; instead, on the nights Pedro used methamphetamine, he stayed at a hotel and made appropriate childcare arrangements. There also was evidence that Pedro ensured L.C. attended school and doctor's appointments, and that he read to L.C. and helped her with her homework. Further, Pedro began drug testing and enrolled in a drug awareness class even before DCFS required him to do so. (Id. at pp. 649-651.) On these facts, the court held there was no evidence Pedro's drug use caused him to ignore his parental responsibilities. (Id. at p. 653.)
In contrast to In re L.C., there was no evidence in the present case that mother made appropriate childcare arrangements when she used marijuana, ensured the children regularly attended school and doctor's appointments, or regularly drug tested. Indeed, as we have said, mother drug tested only once, refused to allow DCFS to observe the children in her home, and gave DCFS almost no information about the children's education or medical care. Accordingly, we cannot conclude, as the court did in In re L.C., that mother's marijuana use did not interfere with her ability to care for the children.
For all of these reasons, the juvenile court did not err by sustaining count b-2 of the petition.
III.
The Juvenile Court Properly Ordered Mother to
Drug Test and Participate in Individual Counseling,
but Abused its Discretion in Ordering Mother
to Submit to a Psychiatric Assessment
If a child is adjudged a dependent child under section 300, the juvenile court "may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child[.]" (§ 362, subd. (a).) " 'The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion. [Citations.] The court's determination in this regard will not be reversed absent a clear abuse of discretion.' " (In re Corrine W. (2009) 45 Cal.4th 522, 532.)
Mother contends the juvenile court abused its discretion by ordering her to participate in a variety of family maintenance services, including random drug testing, mental health counseling, and psychiatric and psychological evaluations, because these services "had nothing to do with the allegations or reasons this family was in dependency court." Mother urges: "Concerning [mother], the sole reason the juvenile court asserted jurisdiction was because of her alleged abuse of marijuana. Yet the juvenile court ordered [mother] to participate not only in random drug tests, but also in mental health counseling, a psychiatric evaluation or psychiatric assessment, and individual counseling. Only one of these has anything to do with alleged marijuana abuse; random drug testing."
DCFS contends mother's challenge to the disposition order is moot because the juvenile court entered a new disposition order after adjudicating a section 387 supplemental petition in February 2020. We do not agree. The section 387 petition alleged that the previous disposition had not been effective in protecting the children because mother failed to drug test, submit to a psychiatric assessment, or participate in individual counseling. Therefore, had mother not been ordered to engage in these services, there would have been no basis on which to sustain the section 387 petition.
We may easily dispose of mother's claim that the juvenile court abused its discretion by requiring her to drug test. We have already concluded that substantial evidence supported the juvenile court's finding that mother used marijuana, and that her marijuana use put the children at risk of harm. The juvenile court's order that mother drug test, thus, was reasonable and designed to eliminate conditions that led to the court's exercise of dependency jurisdiction.
We also conclude that the trial court did not abuse its discretion by ordering mother to engage in individual counseling to address case issues. The juvenile court has "wide latitude" in making orders for the well-being of the child and "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 Rodger H. (1991) 228 Cal.App.3d 1174, 1183; In re Christopher H. [(1996)] 50 Cal.App.4th [1001,] 1006-1008.)" (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) Instead, "the court may consider the evidence as a whole." (Ibid.) In the present case, the record demonstrates that mother exercised poor judgment in many of her parenting decisions, including leaving the children in father's custody, smoking marijuana when the children were in her care, and refusing to allow the children to receive trauma counseling following the incident in which Rylee was shot. Mother's insight into the effect of these choices on her children was limited: Mother minimized Rylee's injuries, insisting the child had been "grazed," not "shot," and suggested that DCFS's intervention was unnecessary. Given mother's lack of insight, the juvenile court acted reasonably in finding that mother's participation in individual therapy to address case issues was necessary to ensure the children's physical and emotional well-being.
We reach a different result, however, with regard to the juvenile court's order that mother submit to a psychological and psychiatric assessment. Mother does not have a history of mental illness, and DCFS did not recommend a psychological or psychiatric assessment. The court's order that mother submit to a psychological or psychiatric assessment appears to have been based entirely on mother's statement at the July 9 hearing that her children had been taught to be afraid of people who are "not our color." Mother's statements, while perhaps ill-advised, are not indicative of mental illness. We therefore strike the portion of the disposition order requiring mother to undergo a psychiatric and psychological assessment.
The court explained that it was ordering mental health assessment "based on [mother's] performance in court." When mother's counsel argued that "fear should not be characterized as . . . mental illness," the court responded, "It was not the fear, [it was] the fact she told her kids not to like white people, just generally. [¶] I couldn't believe it when she said it. She teaches her children not to like white people. When you see white people to be afraid. [¶] . . . [¶] . . . There was a whole discussion about it when we were in court. [¶] That, to me, is a sign that there might be an issue in addition to . . . her own admission [that she] smokes marijuana."
Of course, if on remand there is additional evidence to support such an order, the juvenile court has discretion to require an assessment at that time.
DISPOSITION
The jurisdictional findings are affirmed. The dispositional order is modified by striking the requirement that mother submit to a psychiatric and psychological assessment, and is otherwise affirmed. The juvenile court is directed on remand to conduct an evidentiary hearing concerning father's request for presumed father status.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.