Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Nos. JD-112371 and JD-115525, Robert J. Anspach, Judge.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
H.C. (father) appeals from the denial of his motion for modification in a dependency case involving his daughter H.D. (daughter) and infant son H.C. IV (son). Father argued that, having completed all of the courses he was required to complete, he should no longer be subject to random drug testing. The trial court disagreed and denied father’s motion to modify his family maintenance plan. Father appeals, claiming the trial court abused its discretion when it refused his request to remove drug testing from his court-ordered plan. We affirm.
FACTS AND PROCEEDINGS
K.C. (mother) and father lived together when daughter was born. Mother tested positive for methamphetamine at the time of daughter’s birth, and a dependency petition was filed to remove daughter from the custody of mother and father.
Mother is not a party to this appeal. We only discuss facts, proceedings, or rulings pertaining to mother where necessary to father’s arguments.
At the combined dispositional/jurisdictional hearing on January 17, 2007, the court found as to father that daughter has suffered, or there was a substantial risk she will suffer, serious physical harm or illness based on father’s failure or inability to supervise or protect her from domestic violence in the home and found daughter has suffered, or there is a substantial risk she will suffer, serious physical harm or illness as a result of the inability of father to provide regular care for her due to father’s use and/or involvement with alcohol. Although the petition alleged that daughter was at risk due to father’s involvement with illegal controlled substances, the court found this portion of the allegation to not be true.
Father has requested that we take judicial notice of the reporter’s transcript from this hearing. Because this transcript contains part of the procedural background necessary to an understanding of the arguments in this case, the request for judicial notice is hereby granted. This transcript is contained within a prior related appeal in this case in No. F052436.
As part of the reunification plan for father, he was ordered to attend counseling for alcohol abuse, anger management, and parenting. He was ordered to submit to random urine drug tests and alcohol tests on at least a monthly basis. If a drug test was positive, then he was required to enroll in substance abuse counseling.
Father appealed from this order in case No. F052436. In that appeal he did not challenge the orders for drug testing. His appeal was based on his assertion the evidence was insufficient to support the court order removing daughter from his custody. We rejected his argument and affirmed the judgment arising from the January 17, 2007 hearing. (In re H.D. (Sept. 21, 2007, F052436).)
Father completed a parenting effectiveness program, an anger management program, and alcohol abuse counseling. He had several negative drug and alcohol tests, a suspicious test because of a low creatinine concentration, and failed to test on several occasions. Father had been informed that failed tests would be considered to be positive tests. Father resisted testing, claiming there was no proof he had a drug or drinking problem.
A review hearing was held on June 5, 2007, resulting in the continuation of father’s reunification services and daughter’s out-of-home placement. Father filed a notice of appeal from that hearing (F053260).
As the case progressed, daughter had health problems. Father sought daughter’s return to him, claiming the caregiver was not properly caring for daughter. Father later dropped this claim after it appeared daughter would be returned to him. During this same general period of time, mother gave birth to son in August of 2007. A dependency petition was filed for son, and son was detained. The petition alleged that father failed to protect son due to father’s alcohol and drug abuse.
On September 17, 2007, daughter was returned to father under a plan of family maintenance. This plan included random drug testing and provided that if there is a positive test father must enroll in substance abuse counseling. Father was also required to submit to random alcohol testing. Son was placed with father on an extended visit pending the outcome of the jurisdiction hearing.
A contested jurisdiction hearing concerning son was held on September 27, 2007. At the hearing, the social worker testified that father had not demonstrated sobriety because he missed and refused tests, but on the dates she had seen him there was no reason to believe he was under the influence. Mother testified on father’s behalf that when she previously made statements about father’s alcohol abuse she was under the influence and delirious. She testified that father drank, but he was not an alcoholic.
At the close of this hearing, the court found the allegations against mother to be true, but found that the allegations against father were not substantiated by the evidence. The court ordered services for mother and placed son with father, noting that father was continuing in family maintenance as to daughter.
In November of 2007, father’s appeal in this court in case No. F053260 was dismissed as moot. In doing so, we took judicial notice of the minute order from September 17, 2007, placing daughter with father subject to family maintenance services. We assume that our case number F053260 was an appeal from the six-month review hearing of June 5, 2007, since there was a notice of appeal filed by father after that hearing, yet there is no decision from this court in the record other than the dismissal.
On March 4, 2008, father filed, in propria persona, a motion for modification, claiming the court erred in ordering him to submit to unannounced tests for drugs and alcohol when the evidence was not sufficient to support this condition in his family maintenance plan.
A social study report filed March 10, 2008 was prepared for a review hearing for mother and father. A portion of the report was dedicated to father’s drug and alcohol testing and/or failure to test. Between September 28, 2007 and February 14, 2008 father had five negative tests and on seven occasions he failed to test. Father was contacted at his home on February 20, 2008 by the social worker. He was informed that he had missed numerous drug tests. He explained that he had transportation and child care problems and could not test. He was told that normally after two missed drug tests or two confirmed positive tests the case is reviewed for removal of the children. However, he was told that because the agency did not keep better track of his missed tests, the tests he submitted had been negative, and the department of human services “was aware of his transportation and child care problems and did not remove him from the drug hotline system,” his children would not be removed from him.
Father was told that as of “today” (Feb. 20, 2008) he would need to cooperate in drug testing. He was informed that an aide would come to his home to test him at 1 p.m. that day. He said he had things to do. He was asked to call the social worker if he was not going to be available at 1 p.m. and was told that if he could not be home at 1 p.m., he needed to come into the office by 5 p.m. that day to test. He was told once again that missed tests are considered positive tests. He agreed to test by 5 p.m. that day.
The aide showed up at father’s residence to test him at the appointed time. No one answered the door. The social worker attempted to contact father on his cellular telephone to verify that he would be home for the drug test and messages were left with father informing him he needed to test by 5 p.m. that day. Contact was made with father’s mother, but she had not heard from father. The social worker left her name and telephone number with father’s mother.
The next day, February 21, 2008, father called and began yelling at the social worker, saying he was not able to come to the office the previous day at the last minute. He was reminded that a worker came to his home at an appointed time so there would not be a transportation problem. To this father replied the he was not “gonna sit around to wait for you guys.” He was reminded that his missed test the day before would be considered a presumptive positive and another missed test could result in the removal of his children. Father told the social worker he would be in the office in 30 minutes to test. Father came to the office and tested. The test was negative.
The motion for modification was heard on March 10, 2008. Father stated he wanted the court to know that he “didn’t do no drugs. I don’t do drugs. I don’t smoke cigarettes.” The court replied that father needed to demonstrate that by testing. Father questioned whose fault it was that he did not test. The court stated it was not going to argue with father, but he needed to demonstrate that he is alcohol and drug free and willing to test. Father recapped information available from early on in the entire proceedings and complained that there was not any proof that he “used” and he should not be on testing. The court replied that it had made an order that father test and the time to disagree with that order had long passed. The court stated that father now says he wants the order changed, but in order for the court to change the order father needs to demonstrate that he is telling the truth by testing, but that has not happened. The court denied father’s motion for modification.
Defendant filed a notice of appeal from the March 10, 2008 order.
DISCUSSION
It is well settled that Welfare and Institutions Code section 388 motions for modification are matters calling for the juvenile court’s exercise of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We will not disturb that ruling on appeal in the absence of a clear abuse of discretion. (In re Hector A. (2005) 125 Cal.App.4th 783, 798.)
Father claims the court abused its discretion when it failed to remove the drug testing requirements. At first glance father’s argument appears to be well taken, submits respondent, but on closer examination the drug test requirement is well supported by the evidence. Father replies: there was insufficient evidence that he is a registered narcotics offender (a fact contained in the initial report for detention); any statements by mother cannot be sufficient evidence in light of her admission in court that her word cannot be trusted; all of father’s drug tests were negative and a missed or suspicious test is not a positive test, particularly when a negative test is done soon afterward; the fact that he lived with a drug addict (mother) is not evidence that he has a drug problem; and volatile behavior is not evidence that a parent is a substance abuser.
We need not examine all of the above factual disputes because we find the reasons relied on by the court were correct. The court found that father had not previously challenged the drug testing requirement and at the time of the hearing the requirement was in place, yet father had a positive drug test at the time of the motion to modify based on his failure to test.
During the time following the prior review hearing and prior to the motion to modify, the drug testing requirement was in place. Although father repeatedly verbalized his disagreement with the testing requirement and might have been able to successfully remove the requirement had he challenged it earlier on, he never properly challenged the order until he made his motion to modify that is the subject of this appeal. We are not allowed to go back to previous hearings where the requirement may or may not have been properly challenged to determine if it was error to impose it at a previous time. “[A]n appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151.)
In In re Sergio C. (1999) 70 Cal.App.4th 957, a father challenged the sustaining of a dependency petition against him and the order requiring him to drug test. The appellate court found merit to his claims and reversed both. The only evidence of the father’s drug use was the unsworn and unconfirmed allegation of the mother, an admitted drug addict who abandoned her children. The father flatly denied all involvement with drugs. The appellate court found that where “the custodial parent has flatly denied all involvement with drugs and has otherwise cooperated fully with all of the court’s orders, there must be some investigation by [the department] to warrant the kind of invasive order that was made here.” (Id. at p. 960.)
The procedural background of Sergio C. demonstrates that case’s difference from the present case. The father in Sergio C. properly challenged the drug testing requirement after it was initially imposed. Here father did not properly challenge the drug testing requirement until the motion to modify. He has forfeited those earlier opportunities to challenge the testing requirement. At the time of the motion to modify, the requirement was in place and father had a positive test.
Father argues that a missed test (on Feb. 20, 2008) cannot be considered positive when he tested the very next day and submitted a negative test. Father contends, “[g]iven the length of time drugs stay in a drug-users[’] system, if [father] tested negative on Monday, it is simply not credible to assert that he must have been using drugs on Sunday.”
Father’s argument fails. There is absolutely no evidence in the record from which we can determine how long any drug stays in a drug user’s system. Also, the following example demonstrates the fallacy of father’s argument: if a certain drug is known to stay in one’s system for five days and on day five the individual is asked to drug test, by delaying the test to day six the individual would be able to avoid a positive drug test. The reason for imposing the rule that a missed test is presumed to be a positive test is precisely for this reason. Random drug testing is ordered so persons cannot schedule their drug use in a manner that avoids detection. Persons subject to random drug testing cannot manipulate the testing by avoiding a random test on one day and testing the next because such manipulation may very well allow the drug user to clear his or her system of drugs by the next day. A test on the next day is no longer a random test.
Father was repeatedly told that a missed test would be considered a positive test and was again reminded of this on February 20, 2008, when he deliberately missed the testing arranged for him later that day. This resulted in a positive test.
Our disposition does not preclude father from raising in the future the viability of continued drug testing, and the trial court is not precluded from revisiting the issue; but at the time of the motion, the testing requirement was in place and had not been successfully challenged. The positive test was sufficient for the court to find that the testing requirement should not be removed. Under these circumstances the trial court did not abuse its discretion when it ordered continued random drug testing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, J., KANE, J.