Opinion
E073227
04-28-2020
In re N.P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J276989) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
J.S. (Father) is the father of eight-year-old N.P. Father appeals from the juvenile court's order requiring him to participate in an outpatient substance abuse program. Specifically, Father contends the juvenile court abused its discretion by ordering him to participate in an outpatient drug program because he was not a substance abuser and there was no evidence his marijuana use impacted his ability to properly and safely parent N.P. We find no abuse of discretion and affirm the order.
K.L. (Mother) is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
In July 2018, the family came to the attention of the San Bernardino County Children and Family Services (CFS) when an immediate response referral was received with allegations of severe neglect and caretaker absence/incapacity by Mother. Mother had 10 children between the ages of eight months and 17 years, including N.P. Law enforcement responded to the home to conduct a "'welfare check'" in response to a report that the children had been left alone for over six hours in a small home with no fan in hot temperatures. Mother admitted that she had left the children home while she frequented bars with friends three to four nights a week and stayed out until the bars closed. Mother was arrested and later released.
N.P.'s half siblings are not parties to this appeal.
It was also reported that Mother failed to attend to N.P.'s severe dental needs. A year previously, Mother was advised N.P. had rotten teeth and various infections in her gums and teeth. Mother was informed that N.P.'s dental infections were painful and needed to be taken care of immediately. However, it had been over a year and Mother still had not taken N.P. to a dentist to have her teeth treated. Mother acknowledged that she had not followed up with N.P.'s dental care. The children revealed that Mother slapped them in the face, called them names, and banged their heads against a wall. The children also stated that Mother had told them to say everything was going well in the home and that they were not left at home alone or physically abused.
On July 18, 2018, CFS filed a petition on behalf of N.P. pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect). The petition alleged that Mother had a substance abuse problem, Mother had inflicted non-accidental physical harm on N.P., and Mother had neglected N.P.'s teeth causing them to rot. The petition further alleged that Father should have known Mother had placed N.P. at risk and that Father had a history of engaging in domestic violence.
Separate petitions were filed on behalf of N.P.'s half siblings.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Father called the social worker and expressed his desire for N.P. to be placed in his custody. He noted that he had been in contact with CFS regarding a prior referral and that he had been attempting to obtain custody of N.P. from Mother. The social worker assessed Father's home and placed N.P. in Father's care.
Father is N.P.'s biological father, but he and Mother had never cohabitated and had never been married. Mother was married to another man at the time N.P. was born. Father was in a relationship with Mother before he was incarcerated. After his release, Father had maintained a relationship with N.P.
A subsequent paternity test revealed Father was N.P.'s biological father.
At the detention hearing on July 19, 2018, N.P. was removed from Mother's care and maintained in Father's custody.
On August 8, 2018, CFS filed a first amended section 300 petition on N.P.'s behalf removing the allegation that Father had engaged in domestic violence.
On September 4, 2018, Father was ordered to submit to a drug test, and the test was positive for marijuana.
On September 25, 2019, Father was present via video for a hearing when, after an off-the-record conversation, the juvenile court indicated there were some concerns about Father's positive drug test. N.P.'s counsel asked that Father continue to be drug tested and that counsel be notified if he continued to test positive or missed any drug tests, as N.P. was very young and should not be exposed to marijuana. Father was ordered to continue drug testing and the social worker was to monitor the results to assess whether Father should be referred to a substance abuse treatment program.
On October 19, 2018, CFS reported that N.P. was doing well in her father's care and recently had the needed dental surgery. CFS recommended that N.P. be maintained in Father's care on family maintenance services. Father reported that he had called the child abuse hotline several times to report his concerns about Mother's ongoing care of his daughter and her dental issues. CFS noted that since N.P. had been released to Father's care, he had taken care of her medical and dental needs and had enrolled her in school. CFS recommended that the last allegation against Father—that he had failed to protect N.P.—be dismissed. Father agreed to continue to work with CFS and participate in random drug testing and other services ordered by the juvenile court.
On October 26, 2018, at the jurisdictional/dispositional hearing, the juvenile court found true the allegations in the first amended petition against Mother as amended and dismissed the allegation against Father. The court also found Father to be N.P.'s presumed father and declared N.P. a dependent of the court. The court maintained N.P. in Father's custody under a family maintenance plan. Father submitted on CFS's recommendation that the court retain jurisdiction to supervise N.P.'s care, and the court ordered Father to participate in family maintenance services. Father and Mother were both ordered not to be under the influence of any controlled substances. Father was also ordered to undergo drug testing. CFS was given authority to dismiss N.P.'s case with an approval packet upon 30 days of clean testing and no missed tests.
Between December 20, 2018 and January 10, 2019, Father tested positive for marijuana twice and then stopped submitting to testing. Father had six "'No shows'" from January 30 through April 11, 2019. Father admitted to continued marijuana use to deal with pain from a shoulder injury. He claimed that "due to his spiritual beliefs, he does not use medication" and that is why he had obtained a medical marijuana card. He also stated that he went to a doctor and was prescribed medication and that "he may take that medication and stop using marijuana." Father advised the social worker that he would bring his medical marijuana card and his medical diagnosis of his shoulder injury to the CFS office. Father further asserted that he smoked marijuana outside and that he kept it locked up, out of N.P.'s reach. He believed that his marijuana use did not affect his functioning or ability to provide for N.P. The social worker advised Father that the goal was to dismiss N.P.'s case, but that he needed to test clean as part of his family maintenance services. Father stated he would stop using marijuana.
Father continued to maintain employment at a Wal-Mart warehouse, and N.P. had "expressed enjoying feeling happy and safe living with her daddy." N.P. was described as a "very happy child" who shared how "'daddy'" took good care of her, played video games with her, ate ice cream with her, and had fun with her. N.P. also stated that she liked seeing her paternal grandmother and cousins every day.
CFS reported that despite Father's continued marijuana use, Father had continued to provide a safe and stable home environment for N.P. and that N.P.'s medical, dental, and educational needs had been met. CFS noted that Father had utilized the support of his family, including the paternal grandmother and paternal aunts, who had been identified as his safety network. The paternal grandmother had "not voiced any concerns" about Father's continued marijuana use "as she [did] not believe it has interfered with his ability to parent [N.P.]." The paternal grandmother also stated that Father did not take prescription medication as "'[i]t's against his spiritual beliefs.'" The paternal grandmother acknowledged that she watched N.P. almost daily.
CFS was unable to request dismissal of the matter by approval packet due to Father's continued marijuana use. CFS recommended further family maintenance services for Father to allow him to continue to randomly test for a minimum of two months to ensure negative tests.
At the April 26, 2019 semi-annual review hearing, with Father present via video conference, the juvenile court admonished Father that his defiant and excessive use of marijuana jeopardized his continued custody of his daughter. The court explained: "the court did not authorize the use of marijuana in this case. The court's understanding at the last hearing was that father had agreed to cease using and agreed to submit to ongoing testing. In fact, he is still using marijuana and is not testing. [¶] Sir, that placed [N.P.]'s placement with you in jeopardy. And there could be a request to remove her from your care at a minimum. You've been ordered to test. Every missed test is considered a positive test. If you are using and you test, we'll get levels so we can at least—I'll give you a moment—so we can see they are within a therapeutic range. This court does not accept a medical marijuana card as prescription from a licensed doctor. And I will not accept a medical marijuana card for that purpose."
Father responded by reminding the juvenile court about his beliefs and asked whether he should get addicted to pain killers. The juvenile court replied: "I'm not indicating he should be taking opioids. I'm not a doctor. But I am indicating it will take a licensed physician with information regarding what the condition is and what the recommended therapy is for the court to authorize continual use of marijuana. I'm also indicating that at the last hearing it was not set as a contest on the issue of marijuana use. The indication in court was that [F]ather agreed to the case plan, and he is not—now has not fulfilled that case plan."
Thereafter, the court ordered Father to drug test that day, and directed the social worker to obtain the levels for any positive test and report on the parents' testing. Father was informed that failure to drug test as ordered would be considered a positive test. The court also noted "[i]f there is a positive test for marijuana, [the court will] order that we get levels so we can see that those are within a therapeutic range."
Father tested positive for marijuana on April 26, 2019, which was "confirmed at a quantitation level of 850 ng/ml." He also tested positive for marijuana on May 8, 2019 with a "confirmed quantitation level of 1689 ng/ml."
At the June 25, 2019 hearing, Father was present, and the court ordered him to participate in an outpatient substance abuse treatment program over his objection. The court explained: "I will note that this has been an ongoing issue now since the beginning of [the] case. The placement was originally based on an understanding that there would be a cease in usage of the marijuana. Then we had a series of missed tests to which the Court expressed its concerns very clearly about that at prior hearings and ongoing positive tests. [¶] I will note that the information in the report was that father was going to provide documentation regarding a medical condition. That documentation has never been forthcoming. There was an expectation that the levels would be reduced, and the information for today's date is that the levels actually increased. [¶] Obviously the Court recognizes the change in the law regarding marijuana, but the Court would have the same concerns if there was daily use of alcohol and a parent was unable to cease use of alcohol even for a day at a time regarding the care of young children."
All parties appeared to be in agreement with continued services. The juvenile court cautioned Father that although there was no motion to remove N.P. from his custody, the court "would be inclined to grant more custody to the mother if there is a continual use of marijuana or no decreasing in levels and any additional missed tests."
On July 11, 2019, Father filed a timely notice of appeal.
CFS's August 29, 2019 status review report indicates that Father continued to test positive for marijuana. He tested positive for marijuana on July 8 and July 18, 2019. The quantitation level for the July 8, 2019 test was "704 ng/ML," which was significantly lower than the last level confirmed in June 2019 of "over 1500." The quantitation level for the July 18, 2019 test was pending. Father also failed to provide documentation evidencing his medical diagnosis regarding the shoulder injury and need for marijuana. Father continued to be resistant to treatment, believing he had a First Amendment right to use marijuana because of his spiritual and cultural beliefs. Father was provided with a service referral to attend an outpatient drug program but was resistant to attend his appointments. The social worker recommended that services for Father continue so that he could overcome his resistance and meaningfully participate in the drug treatment program.
On November 15, 2019, CFS filed a request for judicial notice of the juvenile court's minute order and status review report dated August 29, 2019, Exhibit A, and the court's minute order and Father's updated case plan dated September 12, 2019, Exhibit B. We reserved ruling on CFS's request for judicial notice for consideration with this appeal. In his reply brief, Father argues this court should deny CFS's request for judicial notice of the post-judgment reports and documents. For the reasons explained, we hereby grant CFS's request for judicial notice.
In connection with the September 12, 2019 hearing, CFS reported that Father continued to test positive for marijuana and failed to attend his intake appointment for his drug program. CFS also noted that the quantitation level for the July 18, 2019 test was "49 ng/mL," and that Father had tested positive for marijuana on August 13, 2019 with a quantitation level of "456 ng/mL." CFS's updated case plan for Father indicates that "CFS, court and family member are concerned that if [Father] continues to use marijuana, it may negatively affect his ability to parent child [N.P.], placing her at risk of harm or danger."
III
DISCUSSION
A. CFS's Request for Judicial Notice
Father argues that the exhibits submitted by CFS are not proper postjudgment evidence for judicial notice. Alternatively, he claims if this court grants CFS's request, the judicial notice is limited to the existence of the documents and not the truth of any matters or facts therein. We reject these contentions.
As Father acknowledges, "[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court absent exceptional circumstances" and judicial notice may not be taken of "the truth of factual findings made in other court rulings." (In re K.M. (2015) 242 Cal.App.4th 450, 456; see In re Zeth S. (2003) 31 Cal.4th 396 (Zeth S.) Father relies on Zeth S. to argue CFS's request should be denied because "it constitutes a backhanded attempt to bolster the record and avoid a potential reversal." We find Zeth S. distinguishable.
In Zeth S., supra, 31 Cal.4th 396, our Supreme Court concluded that, in the absence of exceptional circumstances, a reviewing court may not "receive and consider postjudgment evidence that was never before the juvenile court, and rely on such evidence outside the record on appeal to reverse the judgment [in terminating parental rights]." (Id. at p. 400, italics added.) Exceptional circumstances have been found to exist where consideration of the new evidence: (1) sheds light on child-safety issues; (2) advances the best interests of the child; (3) promotes the appellate rule favoring finality of judgments; (4) reveals that an issue is moot; and/or (5) reveals a lack of prejudice to the appellant. (See id. at pp. 405-416; see also, e.g., In re Josiah Z. (2005) 36 Cal.4th 664, 675-677 [considering postjudgment evidence relating to minor's counsel's request to dismiss an appeal in the best interest of the minor]; Los Angeles County DCFS v. Superior Court (2007) 158 Cal.App.4th 1562, 1567-1570 [considering postjudgment evidence relating to safety concerns with the juvenile court order placing the child with a particular relative]; In re Marina S. (2005) 132 Cal.App.4th 158, 166 [considering postjudgment evidence that an adoptive home study had been approved refuting the appellant's challenge concerning adoptability of the child in an appeal following termination of parental rights]; In re A.B. (2008) 164 Cal.App.4th 832, 840-844 [considering postjudgment evidence that revealed a lack of prejudice to the Indian tribes due to inadequate noticing under the Indian Child Welfare Act].)
In this case, the postjudgment evidence was before the juvenile court. The postjudgment evidence merely shows Father's continual use of marijuana and his failure to provide evidence that his marijuana use was medically required. Further, we rely on such evidence to affirm the juvenile court's order requiring Father to participate in a drug treatment program, not to reverse it so as to comport with the rule favoring finality of judgments. Moreover, exceptional circumstances justify this court's consideration of the postjudgment evidence. In addition we may take judicial notice of the contents of the exhibits, which are self-authenticating and inherently reliable, under Evidence Code sections 452 and 459 and California Rules of Court, rule 8.252. (See Evid. Code, § 1530; People v. Skiles (2011) 51 Cal.4th 1178, 1184-1189 [properly certified copy of an official court record is a self-authenticated document that is presumptively reliable].)
B. Dispositional Order Requiring Father to Participate in Drug Program
Father contends the juvenile court abused its discretion by ordering him to participate in an outpatient substance abuse treatment program because he was not a substance abuser and there was no evidence his marijuana use impacted his ability to properly and safely parent N.P. We disagree.
"[W]henever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." (§ 361.5, subd. (a).) The juvenile court has broad discretion to fashion a dispositional order to best serve and protect a child's interest. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
Child welfare services are services provided on behalf of, inter alia, dependent children. (§ 16501, subd. (a).) The services provided on behalf of each child represent a "continuum of services, including emergency response services, family preservation services, family maintenance services, family reunification services, and permanent placement services." (§ 16501, subd. (a).)
The law does not confine the juvenile court's discretion to craft dispositional orders to only what is contained in the jurisdictional findings. Instead, it is well established the juvenile court has discretion to "direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section . . . ." (§ 362, subd. (d).) Therefore, "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 accord with this discretion. [Citations.]" (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 (Christopher H.).)
Generally, "a dispositional order may reach both parents, including a nonoffending parent." (In re D.M. (2015) 242 Cal.App.4th 634, 639; In re D.L. (2018) 22 Cal.App.5th 1142, 1148 (D.L.).) The parents are "required to participate in child welfare services or services provided by an appropriate agency designated by the court." (§ 362, subd. (c).) "'The program in which a parent or guardian is required to participate, [however, must] be designed to eliminate those conditions that led to the court's finding that the minor is a person described by Section 300.' [Citation.]" (Christopher H., supra, 50 Cal.App.4th at p. 1006.)
We do not reverse the juvenile court's dispositional orders absent a clear abuse of discretion. (Christopher H., supra, 50 Cal.App.4th at p. 1006.)
Christopher H., supra, 50 Cal.App.4th 1001, is instructive. There, the court affirmed a dispositional order requiring a father to submit to drug and alcohol testing despite the juvenile court's finding that the department failed to prove the father's alcohol-related problems affected his ability to care for his infant son. (Id. at pp. 1006-1007.) The court reasoned, "when the court is aware of other deficiencies that impede the parent's ability to reunify with his child, the court may address them in the reunification plan. In this case, given appellant's repeated driving under the influence convictions and positive blood test for methamphetamine, the court would have been remiss if it failed to address appellant's substance abuse even though that problem had not yet affected his ability to care for Christopher." (Id. at p. 1008.)
Similarly, in D.L., supra, 22 Cal.App.5th at page 1146, the court affirmed dispositional orders as to a mother it found to be nonoffending. There, the court reversed the jurisdictional findings as to the mother, finding insufficient evidence to support them. However, it rejected the mother's argument that a reversal of the jurisdictional findings as to her meant it also had to reverse the dispositional orders requiring her to participate in family maintenance services. The court held: "'The problem that the juvenile court seeks to address need not be described in the sustained section 300 petition. [Citation.] In fact, there need not be a jurisdictional finding as to the particular parent upon whom the court imposes a dispositional order.' (In re Briana V. (2015) 236 Cal.App.4th 297, 311; see In re I.A. (2011) 201 Cal.App.4th 1484, 1492 ['[a] jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established'].)" (D.L., at p. 1148.)
As in Christopher H. and D.L., we also conclude the juvenile court did not abuse its discretion when it ordered Father to submit to drug testing and attend treatment programs without making corresponding substance abuse findings. Father continued to test positive for marijuana and admitted to using marijuana. Although Father claimed to have a medical need to use marijuana, he failed to provide any documentation showing such use was necessary. The juvenile court here relied upon Father's repeated positive drug tests, resistance to testing, and failure to provide a medical necessity before ordering Father to participate in a drug treatment program. In addition, CFS was concerned that if Father continued to use marijuana, it may negatively affect his ability to parent N.P. Although the juvenile court was not required to address Father's substance abuse, it had discretion to do so under Christopher H. and D.L. Indeed, we are persuaded by Christopher H. that the juvenile court would have been remiss to fail to address the issue even though Father's marijuana use did not currently affect his ability to care for N.P.
Contrary to Father's position, In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.) does not convince us to reverse the dispositional order. Drake M. is unavailing because it pertains to a jurisdictional finding, not a dispositional order requiring a parent to participate in a substance abuse program under a family maintenance plan. In Drake M., the dependency court found jurisdiction over a child whose father smoked marijuana legally, pursuant to a prescription for medical purposes. (Id. at pp. 760-761.) The appellate court addressed the issue of whether habitually smoking legal marijuana constituted conduct that rendered a father incapable of providing regular care and supervision to a child. (Id. at pp. 757-758.) The court found that such conduct could fall within the purview of section 300, subdivision (b), if a child has suffered or was at substantial risk for suffering serious physical harm or illness as a result of: (1) a parent's inability to provide regular care due to substance abuse or (2) the parent's failure to adequately supervise or protect the child. (Drake M., at p. 763.) The court reversed the jurisdictional finding under section 300, subdivision (b), because the department had failed to prove the father, who had a legal, medical recommendation to use marijuana for recurring knee pain, was a substance abuser and could not adequately care for the child. (Drake M., at p. 767.) The court explained that "jurisdiction based on 'the inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse' must necessarily include a finding that the parent at issue is a substance abuser. (§ 300, subd. (b).)" (Id. at p. 764.) Substance abuse, it further held, must be based on evidence showing the parent was diagnosed with a substance abuse problem by a medical professional or evidence the parent satisfied the diagnostic criteria defined by the American Psychiatric Association. (Id. at p. 766.)
The Drake M. court specifically stated: "The full definition of 'substance abuse' found in the DSM-IV-TR describes the condition 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, p. 199.)" (Drake M., supra, 211 Cal.App.4th at p. 766.)
Here, unlike Drake M., Father is not challenging a jurisdictional order. In addition, the juvenile court's dispositional order was made after the court expressly identified Father's use of marijuana as a potential risk to N.P. Furthermore, Father's current reliance on marijuana is well documented, and Father had failed to provide medical documentation showing his use of marijuana was medically necessary.
Moreover, as pointed out by the court in In re Christopher R. (2014) 225 Cal.App.4th 1210, the Drake M. formulation to determine substance abuse "is not a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court." (Christopher R., at p. 1218.) We agree. Thus, like Christopher R., "we are unwilling to accept [the] 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.]" (Ibid.) In addition, DSM-IV-TR has been replaced by DSM-5. (Id. at p. 1218, fn. 6) For that additional reason, Drake M. is not a hard and fast rule.
We also find Father's reliance on In re L.C. (2019) 38 Cal.App.5th 646 unavailing. Unlike here, L.C. involved a challenge to the dependency court's jurisdictional findings. In that case, the appellate court held use of methamphetamine "'without more'" cannot support jurisdiction. (Id. at p. 654.) The evidence did not support a finding the legal guardian in L.C. abused methamphetamine. (Id. at pp. 652-653.) The legal guardian used the drug "at most seven times" and had three recent negative drug tests. (Id. at pp. 649, 652.) In this case, jurisdiction is not at issue. Moreover, the juvenile had discretion to require Father to participate in a drug treatment program based on Father's failure to provide medical documentation and resistance to test. In addition, as previously noted, the juvenile court would have been remiss to fail to address the issue even though Father's marijuana use did not currently affect his ability to care for N.P.
Based on the foregoing, we find the juvenile court did not abuse its discretion in ordering Father to participate in a drug treatment program.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.