Opinion
E071938
09-06-2019
In re J.B. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.B., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J277129-J277135) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, J.B. (Father), appeals from the judgment entered after the juvenile dependency court found jurisdiction over his and R.B.'s (Mother) seven children, and ordered them removed from Mother and Father's (Parents) care and placed with relatives. Father argues substantial evidence does not support the court taking jurisdiction over the children based on the finding Father has a substance abuse problem which impairs his ability to parent his children. Father contends that the record is devoid of any evidence that his use of marijuana places his children at risk of serious physical harm. Father further contends the juvenile court abused its discretion in requiring him to submit to drug testing and substance abuse treatment.
Mother is not a party to this appeal.
We conclude there was substantial evidence supporting the jurisdictional order and the juvenile court did not abuse its discretion in ordering Father to drug test and attend a substance abuse treatment program. We therefore affirm the judgment.
II.
FACTS AND PROCEDURAL BACKGROUND
On July 24, 2018, Parents' seven children, whose ages at that time ranged from two months to 11 years old, were detained following an immediate response referral alleging parent physical abuse. The day before, Parents took J-4 to the hospital about midnight for treatment of his fractured right tibia. Parents stated J-4's leg injury was caused by him jumping off a three to three and one-half foot high bed. The fracture was a spiral fracture, from a twist injury. J-4 also had multiple bruises on his left cheek, lower back, and right brachial, and bumps on his right cheek. Parents said J-4's bumps on his right cheek were from a previous injury. Because Parents' explanations for the injuries were not consistent with the type of injuries J-4 sustained, Parents were suspected of committing child abuse.
The children's ages when initially detained in 2018, were:
J-1 - 10 years;
J-2 - eight years;
J-3 - five years;
J-4 - almost four years;
J-5 - almost three years;
J-6 - one year; and
J-7 - two months
A social worker with the San Bernardino County Children and Family Services (CFS), plaintiff and respondent, interviewed Mother at the hospital. Mother reported that J-4 injured his leg when he and his sister, J-3, were jumping on J-4's bed. When they jumped off the bed, J-4 hurt his leg. While Mother was in the kitchen, she heard a scream and ran to the bedroom. J-4 was holding his knee and did not want to be touched. Because J-4 was in so much pain, Parents took him to the hospital. Mother said she did not know how J-4's marks on his left cheek were caused. Mother said the bruise on his right cheek were sustained when J-4 was with maternal grandmother (MGM) for three to four weeks. MGM told Mother J-4 hurt his right cheek when he ran away from the neighbors' dogs and fell on a metal piece on the stairs. Mother said she was unaware of J-4's brachial bruise and bruise on his lower back. When asked about disciplining the children, Mother said she sent them to their rooms. Father took things away from the children and spanked them. Mother denied Father was on drugs and said he only smoked cigarettes.
During the social worker's interview of Father, Father said he was not present when J-4 hurt his leg. When Father came home, J-4 was holding his leg. J-4 told Father he could not move his leg or walk. Father told Mother they needed to take J-4 to the hospital. Father told the social worker the mark on J-4's back was from J-6 (one year old) whacking J-4 on the back with a belt. Father said the incident happened earlier that day. Father said, "'It's so funny, because I told [J-4] to stop messing with [J-6].'" Father stated that he had been told the bump on J-4's cheek happened when J-4 was with MGM. Father added, "'I will fight anyone if they hurt my children.'" Father said he disciplined his children by talking to them about why their behavior was wrong, taking things and privileges away, and "'popping them on the ass.'"
When the social worker told Father that CFS needed to speak to his children and observe their home, Father became very upset and said no one would be permitted to do so. Father consented after the social worker explained that it was necessary to ensure the children's safety and well-being. A moment later, Father changed his mind and said, "'I need to be present when you speak to the younger children, because they have vivid imaginations . . . who knows what they would say.'" Because Father continued to change his mind about allowing the social worker to speak to the children, CFS obtained an interview warrant.
The social worker interviewed the children individually at maternal grandparents' (MGPs) home. MGPs stated that Father might be overly stressed because of his inability to find a job. MGPs further stated that Father was very "'verbal' and 'loud' to the children and [Mother]." The three oldest children and J-4 all reported that J-4 injured his leg while he and J-3 were jumping on the bed, and J-4 fell off the bed and twisted his leg.
J-3 reported that when J-4 screamed and cried after injuring his leg, J-2 entered the room to help. When Father came home, he asked what happened. J-3 said she felt safe at home with her parents, although sometimes she was afraid of Parents. J-3 stated that Father "'whoops'" her with a belt and it hurts. J-3 disclosed an incident in which Mother broke a glass, Father hit Mother in the face, and Mother "socked" Father.
J-2 told the social worker she was not present when J-4 injured his leg. J-2 ran to J-4 when she heard him scream. J-2 did not know where Father was. When asked about discipline, J-2 said there was none. J-2 said "'nothing'" happened when the children misbehaved. J-2 said she was not afraid of anything. When asked about J-4's cheek bruise, she said he got it when he was running from two Chihuahuas and fell while running up the stairs. When asked about the marks on the left side of J-4's face, J-2 said, "'He probably just fell.'"
J-1 reported that everything was "'good.'" He was only concerned about the doctors at the hospital being able to fix J-4's leg. J-1 was visiting MGPs when J-4 injured his leg. J-1 felt safe at home and said there was no discipline. He also denied Parents fought with each other. J-1 said the marks on the left side of J-4's face was from J-4 falling on the stairs while running away from two Chihuahuas.
The hospital charge nurse told the social worker that J-4's test results were normal, with the exception that J-4 fractured his tibia. The nurse reported that Father's behavior in the emergency room was up and down all day. Father told her that his children were soldiers and they could heal on their own, without medicine. When the nurse told Father that J-4's safety and well-being were the hospital's primary concern, Father began cursing and yelled at Mother. He tried to take the wires out of the medical equipment connected to J-4. Father was escorted out of the hospital.
Forensics doctors, Bailey and Young, reported that J-4's leg injury was a spiral fracture that could have been caused by a fall, depending on how J-4 fell. The doctors were concerned about the two linear injuries on J-4's left cheek, as well as other unexplained bruises. Dr. Young stated that the two linear cheek injuries appeared to be from a slap. J-4 told Dr. Young that he had been "whooped" by Parents and hit by J-6. J-4 indicated he did not want to live with Parents. He wanted to live with his grandparents. Dr. Young reported that Father had been very aggressive with everyone, including Mother. Mother and J-4 appeared afraid of Father whenever he entered the room.
Police detective D'Andrea spoke to Parents at the Loma Linda University Medical Center emergency room. Mother said Father punched out her car windows. Mother also admitted that she had made holes in the walls with the television. Mother also admitted that she and Father "smacked" the children. The last time was when they "smacked" J-4 a week ago. But Mother also stated J-4 returned home three days before, on July 20, 2018, after staying with MGPs. Mother said she and Father slapped the children and hit them with a belt. Mother explained that, because Father was very paranoid and violent, she left home every other week. Father admitted he slapped the children around to make them tough. Before Mother spoke to the detective, Father told Mother, "'you have five minutes before I pop off.'"
After Father left the hospital with J-5, Father became extremely upset because Mother was staying with J-4. The hospital security and staff became very concerned for J-5, as Father pulled her by the arm while yelling. Detective D'Andrea and the hospital staff expressed serious concerns for the children's safety and well-being when with Parents. The social worker reported concerns about Father's aggressive and erratic behavior, Parents' domestic violence, which they minimized, and Parents' apparent inability to keep the children safe. J-1, J-2, J-3, and J-7 were placed with a relative, and J-4 and J-5 were placed with another relative. J-6 was placed in a foster home.
Parents had child welfare histories, which included referrals in April 2015 and May 2018, for physical abuse and general neglect. The referrals were determined to be unfounded. Mother had no criminal history. Father had a criminal history, consisting of driving with a suspended license in 2015, failure to appear in 2016, and driving with a suspended license in 2018. He also had an active warrant, resulting in his arrest.
A. Juvenile Dependency Petition
In July 2018, CFS filed juvenile dependency petitions on behalf of Parents' seven children, alleging failure to protect, domestic violence, and abuse of a sibling. (Welf. & Inst. Code, § 300, subds. (b), (j).) At the detention hearing, the juvenile court ordered the children removed from Parents and detained out of Parents' home. The court also ordered supervised visitation for Parents a minimum of once a week for two hours.
Unless otherwise noted, all statutory references are to the Welfare & Institutions Code.
In August 2018, CFS completed a case plan for Parents, which included referrals for individual counseling, and courses in anger management, domestic violence, and parenting. CFS received an e-mail from Father stating he refused to participate in reunification services.
In August 2018, CFS filed amended juvenile dependency petitions, adding allegations that, while in the care and custody of Parents, J-4 fractured his right tibia, thus placing him and his siblings at risk of physical injury and neglect. (§ 300, subd. (j).) CFS also added allegations that Mother physically abused J-4 and he suffered severe physical abuse, consisting of a fractured tibia while in Parents' care and custody, placing him at risk of physical injury and neglect. (§ 300, subd. (e).)
B. Jurisdiction/Disposition Report and Hearing
CFS reported in its August 2018, jurisdiction/disposition hearing report that Father stated during an interview in August 2018, that J-4 was injured when Father was not home. Parents took J-4 to the Barstow Community Hospital, which transported J-4 to Loma Linda University Medical Center without Parents' consent and did not allow Parents to accompany J-4 during the transfer. The medical records, however, show that Mother signed a consent for J-4's transfer. Father told CFS that he felt his wishes were ignored at Loma Linda University Medical Center. Father complained that the security guard escorted him off the premises because he was too hostile and angry. CFS reported that he was escorted out because he started trying to disconnect wires from J-4's medical equipment and was yelling and cursing. CFS further reported that Parents were verbally abusive to each other, and Father provided only limited information regarding his marijuana use.
CFS also interviewed Mother in August 2018, during which she admitted she was unfaithful to Father, which caused marital problems. Mother acknowledged Parents were verbally abusive to each other. Mother laughed upon admitting she "'popped [Father] upside his head.'" Mother said the only discipline Parents used was slapping the children on the buttocks. Mother reported she had left home with the children a few times because Father was yelling and screaming. After Mother left her interview, Father asked to speak to the CFS supervisor. He demanded the children be returned and accused CFS of breaking the law.
At the jurisdiction/disposition hearing in August 2018, the court ordered the children to remain in relative placement. Over Father's objection, Father was ordered to drug and alcohol test the day of the hearing, with failure to do so deemed a positive test. The court stated during the hearing that "I will indicate it's based on my own personal observations in court and what I see as bizarre and concerning behavior. I will order the drug and alcohol test so we can rule that out as an issue." Father's attorney explained that Father's behavior was merely because he was emotional and believed he was being treated unfairly. Acknowledging that the proceedings were typically emotional, the court stated that, nevertheless, "in the span of a few minutes [F]ather exhibited anger, perhaps despair but also had jerking motions, angry motions toward the mother, and his behavior was all around concerning to the Court, and I would not want the children to be exposed to that."
The court ordered supervised visitation for Father to take place at the CFS office, with authorization to terminate visitation if Father was disruptive or behaved erratically in front of the children. Parents were ordered to visit separately. The court noted that Father left the courtroom in a very disruptive manner before the hearing concluded. The matter was continued for a contested jurisdiction/disposition hearing.
A few days after the hearing, a CFS social worker called Father and asked why he failed to test for drugs as ordered. Father said he did not do so because he did not want to, and because he already told CFS that he uses marijuana. Father was short tempered and hostile, interrupting the social worker several times and then hanging up on her.
In August 2018, a CFS social worker interviewed the three oldest children. The children reported various instances of Parents physically abusing them. The children also reported they witnessed Parents smoking marijuana. J-1 demonstrated how Mother prepared marijuana before it is smoked. He stated, "'[M]y mom gets the drug and crunches it, and licks it, and they start smoking weed. They do it every day.'" The children said they enjoyed living with their relatives. J-3 reported that, during a telephone call, Father said it was her fault that the children were removed from Parents' care. CFS placed a hold on Parents' telephone visits because of Father's inappropriate conversations with the children regarding the case.
In August 2018, a senior social service practitioner and forensic interviewer at the Children's Assessment Center interviewed several of the children. The children stated that Father smoked cigarettes and "'weed' and if he doesn't have it he gets 'super mad.'" The children described Mother "'rolling' the 'weed.'" One of the children stated that Father "is 'mad every single morning' if he doesn't have his cigarettes," and Parents smoked "'weed' and cigarettes 'almost every day' and when they do it in front of [the child] it gets in [the child's] eyes and nose and 'burns.'"
CFS reported that in August 2018, Father appeared at the CFS office extremely upset. Father said he was so upset about his children's removal from his care that Mother had to calm him down to stop him from committing suicide. Father later called the CFS office, yelling and threatening to commit suicide, calling the reporting social worker a "'bitch,'" and then hanging up. Father then reportedly went to the home of one of the children's caretakers and called her a "'bitch.'" Later that day, during visitation at the CFS office, Father argued with the children's caretaker, who was supervising the visit. When a CFS social worker entered the room, Father banged on the door of the room and stated he had to leave.
In September 2018, CFS provided Parents with an additional case plan, which included referrals for individual counseling, substance abuse treatment, and courses in anger management, domestic violence, and parenting.
In October 2018, CFS filed second amended petitions, adding under section 300, subdivision (b), that Parents had a problem with substance abuse which impaired their ability to parent and care for the children. In addition, Father suffered from an undiagnosed mental health disorder evidenced by his unstable mood and rapid escalation in aggression and violence, placing the children at risk of physical and emotional harm. CFS's second amended detention report stated that Father "continues to present unwarranted anger, hostility, impulsivity, recurrent aggressive outburst and blinding rage when he [is] upset. [Father] struggles in expressing his anger and frustration in a non-confrontational way."
C. Contested Jurisdiction/Disposition Hearing
At the jurisdiction/disposition hearing on the second amended petition, CFS agreed to dismiss allegations in the second amended petitions, alleging J-4's leg injury was child abuse and that such abuse placed J-4 and his siblings at risk of injury and neglect. (§ 300, subds. (e)(10), (11), (j).) The matter was continued for a contested jurisdiction/disposition hearing on the second amended petition.
In November 2018, CFS filed an interim report, which included a copy of the police report regarding the broken leg incident. The interim report noted that the police report stated J-4's broken leg might have been caused by accidental trauma, but the bruises to his cheek appeared to be nonaccidental. The children's caretakers reported Father inappropriately discussed the court proceedings with the children during a visit. Father became angry when the caretakers told him not to do so and left the visit early. He was then observed yelling and arguing with the security guards. Mother reportedly tested positive for marijuana in November 2018.
During the contested jurisdiction/disposition hearing on December 19, 2018, Father objected to the allegations regarding physical abuse, domestic violence, substance abuse, and his mental health issues. Father's attorney stated that Father indicated he smokes marijuana but that it is not a problem and is not, by any measure, substance abuse. Father's attorney said Father was willing to submit to random drug testing, but objected to a psychological evaluation as part of the disposition.
After hearing argument, the court dismissed allegations that J-4's leg fracture was the result of abuse by Parents, but sustained the other allegations as to physical abuse. The court also dismissed the allegation Father suffered from an undiagnosed mental health disorder. As to the substance abuse allegations, the court stated the children "had an inappropriate age awareness of marijuana, how it's used, how it's rolled, but [the court] also [has] concerns regarding the dynamics both in the household between the [P]arents and the children, and we will need to evaluate whether that marijuana used had an effect on the dynamics inside the home."
The court emphasized it was concerned about Parents' household dynamics and did not know how much the marijuana contributed to it. In response to the court asking Father if he understood, Father said, "I mean, if that's what you all want me to do, I guess so, but ain't no levels going to go down. There is no such thing as levels going down, not working with that one." Father's attorney objected to continued drug testing and any substance abuse treatment program requirement. Father's attorney argued that marijuana usage is legal in California and it did not create any issues in the home. In response, the court advised Father that marijuana usage is treated like alcohol. Although legal, Father needed to address its affects. Otherwise, it placed the children at risk. The court reiterated its concern as to the children's awareness of marijuana and Parents' marijuana use, as well as Father's interactions with Mother and others. The court stated it believed marijuana could be contributing to Parents' dynamics that led to the children's removal.
The court declared the children dependents of the court, ordered the children removed from their parents and placed in CFS's custody, ordered the children to remain in the care of relatives, and ordered reunification services for Parents. The court further ordered Father to undergo psychological evaluation, ordered Parents to submit to random and or same day testing for controlled substances, and ordered Parents to drug test that same day. The court ordered that if "levels" did not decrease by January 31, 2019, Parents would be required to complete an outpatient substance abuse treatment program. The court ordered supervised visitation for Parents for a minimum of once a week for three hours.
III.
SUBSTANTIAL EVIDENCE SUPPORTING
JURISDICTION FINDINGS
Father contends there was insufficient evidence to support the juvenile court's jurisdictional findings that Father suffered from substance abuse and it placed the children at risk of physical harm.
A. Standard of Review
"We review the juvenile court's jurisdictional findings and disposition orders for substantial evidence." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) "In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)
B. Law Applicable to Determining Risk of Harm Caused by Substance Abuse
Section 300.2 provides that the paramount purpose of dependency proceedings is the protection of the child. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214; see also In re Alexis E., supra, 171 Cal.App.4th at p. 452.) Section 300.2 further states that "[t]he 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." "Exercise of dependency court jurisdiction under section 300, subdivision (b), is proper when a child is 'of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] physical health and safety.'" (In re Christopher R., supra, 225 Cal.App.4th at p. 1216, quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
Section 300, subdivision (b)(1) provides, in relevant part, that "[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 . . . to adequately supervise or protect the child, or . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse."
A finding under section 300, subdivision (b) requires a showing the "negative effects" referenced in section 300.2 must be of the sort likely to result in serious physical or emotional harm. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1005.) Here, there must be substantial evidence of a risk of serious harm resulting from substance abuse. (Ibid.)
Under section 300, subdivision (b), a finding of substance abuse "must be based on evidence sufficient to (1) show that the parent . . . at issue had been diagnosed as having a current substance abuse problem by a medical professional or (2) establish that the parent . . . at issue has a current substance abuse problem as defined in [The Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR)]." (In re Drake M. (2012) 211 Cal.App.4th 754, 766.) The DSM-IV-TR defines substance abuse as "[a] maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period: [¶] (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)[;] [¶] (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)[;] [¶] (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)[;] and [¶] (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)." (DSM-IV-TR, supra, at p. 199; In re Drake M., supra, at p. 766.)
In In re Christopher R., the court recognized that this Drake M. formulation for defining substance abuse is "a generally useful and workable definition of substance abuse for purposes of section 300, subdivision (b). But it is not a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court, and we are unwilling to accept [the mother's] argument that only someone who has been diagnosed by a medical professional or who falls within one of the specific DSM-IV-TR categories can be found to be a current substance abuser. [Citations.]" (In re Christopher R., supra, 225 Cal.App.4th at p. 1218.) The Christopher R. court found that, even if the mother's conduct fell outside one of the DSM-IV-TR categories, the mother's use of cocaine while pregnant, combined with her admitted use of the drug in the past and her failure to consistently test or enroll in a drug abuse program, justified the juvenile court's exercise of dependency jurisdiction over her children. (In re Christopher R., supra, at pp. 1218-1219; In re Natalie A. (2015) 243 Cal.App.4th 178, 185.)
The Christopher R. court further concluded that, because the children were six years old or younger at the time of the jurisdiction hearing, and were thus children of "'tender years,'" the finding of substance abuse was prima facie evidence of the inability of the mother to provide regular care resulting in a substantial risk of harm. (In re Christopher R., supra, 225 Cal.App.4th at p. 1220, quoting Drake M., supra, 211 Cal.App.4th at p. 767; accord, In re Rocco M., supra, 1 Cal.App.4th at p. 824.) The court further held that the mother did not adequately rebut that evidence, and thus held that the decision to remove the children from her care and custody was supported by substantial evidence. (In re Christopher R., supra, at p. 1219.)
C. Analysis
Father contends the juvenile court erred in finding he has a problem with substance abuse, and that it impairs his ability to adequately and appropriately parent his children, placing the children at risk of abuse or neglect. Father asserts that the only evidence CFS introduced to prove that he had a substance abuse problem was the children's statements that they had seen Parents smoking "'weed'" and Mother "'crunches it,'" "'licks it,'" and then smokes it. However, there was additional substantial evidence of Father's substance abuse, and of it placing the children at risk of harm.
Father admitted that he uses marijuana but argues that doing so does not constitute substance abuse because he uses it legally. In Drake M., the court noted that, "Although a finding of substance abuse is necessary under . . . section 300, subdivision (b), it does not always follow that such a finding means that the parent . . . is unable to provide regular care resulting in a substantial risk of physical harm to the child. The trial court is in the best position to determine the degree to which a child is at risk based on an assessment of all the relevant factors in each case." (In re Drake M., supra, 211 Cal.App.4th at p. 766.)
The Drake M. court added that, "[t]hat being said, '[c]ases finding a substantial physical danger tend to fall into two factual patterns. One group involves an identified, specific hazard in the child's environment—typically an adult with a proven record of abusiveness. [Citations.] The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. [Citations.]' [Citation.] And we also hold that, in cases involving the second group, 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 physical harm." (In re Drake M., supra, 211 Cal.App.4th at pp. 766-767.) Here, both of these circumstances exist. There is evidence Parents physically abused the children and five of the seven children were of tender years at the time of detention in July 2018.
Furthermore, "[w]hile it is true that the mere use of marijuana by a parent will not support a finding of risk to minors" (In re Alexis E., supra, 171 Cal.App.4th at p. 452), there is evidence of additional circumstances supporting a finding that Father's use of marijuana created a risk to the children. There is substantial evidence Father was using marijuana daily, and his behavior, as observed by the court and reported by the children and other witnesses, was erratic, aggressive, and bizarre. Also, because several of the children were of tender years, the court's finding of substance abuse was prima facie evidence of Father's inability to provide appropriate care of the seven children, resulting in a substantial risk of harm. (In re Christopher R., supra, 225 Cal.App.4th at p. 1220, quoting Drake M., supra, 211 Cal.App.4th at p. 767; accord, In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Because Father refused to test for drugs and refused to go to counseling, the juvenile court reasonably found that Father failed to refute the presumption of the absence of adequate supervision and care, which posed an inherent risk to the children's physical health and safety. (In re Drake M., supra, at p. 767.)
During the CFS social worker's interviews, the children reported they witnessed Parents smoking marijuana every day, described how it was prepared for use, complained that the smoke burned their eyes, and indicated that Father's behavior may have been affected by using it. As noted by the court in Alexis E., "We cannot fathom that the Legislature intended that negative effects on children from marijuana smoke would be unacceptable if it were being smoked outside the medical marijuana law, but acceptable if the person smoking the substance in their home were doing it legally. Or perhaps stated another way, even legal use of marijuana can be abuse if it presents a risk of harm to minors. Thus, in In re Samkirtana S. (1990) 222 Cal.App.3d 1475, a mother's abuse of alcohol was considered cause for finding her children were at risk of harm even though use of alcohol is legal." (Alexis E., supra, 171 Cal.App.4th at p. 452.)
In response to Father's attorney arguing that marijuana usage is legal in California, the court explained to Father that marijuana usage is treated like alcohol. Although legal, Father needed to address its affects. Otherwise, it placed the children at risk. The court appropriately reiterated its concern regarding the children's awareness of marijuana and Parents' use in the children's presence.
Here, not only was there evidence that the children were being exposed to the harmful effects of marijuana smoke, there was also evidence that Father's daily use of marijuana might be contributing to his erratic, bizarre, and aggressive behavior, which posed a risk of harm to the children. Such a finding of this risk was not unreasonable because Father willfully impeded the court from investigating the cause of his erratic, bizarre behavior by refusing to drug test or participate in individual counseling.
Evidence that Father's use of marijuana adversely effected his behavior and interaction with the children, includes the children's statements that Father smoked marijuana every day and was always irritable, Father physically abused the children, and the children observed domestic violence between Parents. The record is replete with instances of Father's outbursts of excessive anger and aggression directed at his family, medical staff, CFS staff, and the court. During CFS interviews, one of the children said she was sometimes afraid of Parents. Another child said he did not want to live with Parents. Several children said Father "whoops" them with a belt or his hand, and other children said Parents did not discipline the children at all. One of the children reported observing Father hit Mother in the face, and Mother punch Father.
Mother told Detective D'Andrea that Father punched out her car windows and that she and Father "smacked," slapped, and hit the children with a belt. Mother explained that, because Father was very paranoid and violent, she left home every other week. The social worker reported concerns about Father's aggressive and erratic behavior, Parents' domestic violence, which they minimized, and parents' apparent inability to keep the children safe. During subsequent interviews, Mother reported she had left home with the children a few times because Father was yelling and screaming.
During a Children's Assessment Center interview, the children stated that Father smoked cigarettes and "'weed' and if he doesn't have it he gets 'super mad.'" The children described Mother "'rolling' the 'weed.'" One of the children stated that Father "is 'mad every single morning' if he doesn't have his cigarettes." And Parents smoked "'weed' and cigarettes 'almost every day' and when they do it in front of [the child] it gets in [the child's] eyes and nose and 'burns.'"
On one occasion, Father reportedly went into the CFS office and said he was so upset that his children were removed from his care that Mother had to calm him down to stop him from committing suicide. Later that day, Father called the CFS office, yelling and threatening to commit suicide, calling the social worker a "'bitch,'" and then hanging up on her. CFS reported that Father "continues to present unwarranted anger, hostility, impulsivity, recurrent aggressive outburst and blinding rage when he [is] upset. [Father] struggles in expressing his anger and frustration in a non-confrontational way." The police report stated that, although J-4's broken leg might have been caused by accidental trauma, the bruises to his cheek appeared to be nonaccidental.
During the August 2018, jurisdiction/disposition hearing, the court stated that it believed that Father's daily use of marijuana or some other controlled substance may have exacerbated Father's "bizarre and concerning behavior." The court further stated that, "in the span of a few minutes [F]ather exhibited anger, perhaps despair but also had jerking motions, angry motions toward the mother, and his behavior was all around concerning to the Court, and I would not want the children to be exposed to that."
At the December 2018, contested jurisdiction/disposition hearing, the court noted the children "had an inappropriate age awareness of marijuana, how it's used, how it's rolled, but [the court] also [has] concerns regarding the dynamics both in the household between the parents and the children, and we will need to evaluate whether that marijuana used had an effect on the dynamics inside the home." The court explained that, although marijuana was legal in California, Father needed to address its affects, because, otherwise, it placed the children at risk. The court reiterated its concern as to the children's awareness of marijuana and Parents' use, and that marijuana could be contributing to Parents' dynamics that led to the children's removal.
We conclude that, although Father's use of medical marijuana alone cannot support a jurisdiction finding, there is substantial evidence of additional circumstances, which supports the juvenile court's finding that Father has a substance abuse problem, which impairs his ability to properly parent his children, thereby placing the children at risk of harm.
IV.
DISPOSITIONAL ORDER
Father contends that during the dispositional phase of the hearing on December 19, 2018, the juvenile court erred in ordering him to submit to drug testing and attend a substance abuse treatment program. He argues there was no evidence he abused marijuana, that the children were at risk of harm as a result of his legal use of marijuana, or that his use of marijuana led to the children's removal. Father therefore concludes the juvenile court abused its discretion in ordering him to drug test and participate in substance abuse treatment. We disagree.
"The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) In applying the abuse of discretion standard of review, this court must determine "whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) "Of course, the juvenile court's discretion in fashioning reunification orders is not unfettered. Its orders must be 'reasonable' and 'designed to eliminate those conditions that led to the court's finding that the child is a person described by [s]ection 300.' (§ 362, subd. (c).)" (In re Nolan W., supra, at p. 1229 [order requiring submission to random drug and alcohol testing appropriate in the case of a father who had a history of excessive alcohol and drug use].)
Here, the juvenile court's orders that Father test for drugs and attend a substance abuse treatment program if he did not reduce his drug levels, were reasonable and designed to eliminate conditions that led to the children's removal from Parents. As discussed in the preceding section of this opinion, there was substantial evidence of Father's substance abuse and that it contributed to Father's bizarre, excessively aggressive, angry behavior, which led to Father physically abusing the children and domestic violence. The juvenile court reasonably concluded that requiring Father to drug test would provide Father with incentive to stop using marijuana every day, which would facilitate reunification with the children. Ordering Father, as well as Mother, to attend an outpatient substance abuse treatment program if "levels" did not decrease also provided incentive for Parents to stop using marijuana, which the court reasonably believed would improve Parents' family dynamics and reduce the risk of harm to the children.
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.