Opinion
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County, No. NJ13969B, Michael Imhoff, Commissioner.
HUFFMAN, Acting P. J.
Shawn B., the presumed father of 12-month-old Dallas B., appeals from two juvenile court orders. In case No. D058002, he challenges the July 6, 2010, order following the contested jurisdictional and dispositional hearing that required Shawn to participate in a substance abuse program and submit to on-demand drug testing. In case No. D058313, Shawn appeals from the order following the contested special hearing held September 28, 2010, which directed Shawn to participate in outpatient substance abuse treatment and submit to random drug testing. We granted Shawn's motion to consolidate the two appeals.
Shawn argues there is insufficient evidence to support the drug component in his case plan "due to his lack of history of drug use." We reject this argument and affirm the juvenile court orders.
FACTS
On April 13, 2010, the San Diego County Health and Human Services Agency (the Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (b), alleging the failure of Shawn and Dallas's mother, Melissa H., to protect the child. (Undesignated statutory references are to the Welfare and Institutions Code.) In count 1, the petition alleged that Melissa and Shawn exposed Dallas to "violent confrontations between the parents involving the use of physical force and/or weapons" on or about April 2, 2010. Count 2 alleged the parents were unable to provide regular care, supervision and protection to Dallas due to Melissa's alcohol abuse, drug use and failure to take prescribed medication for her mental health condition. It also cited Shawn's use of marijuana.
The accompanying detention report described Melissa's history of mental illness and contacts with the Agency dating back to 2006. Also included were summaries of interviews with Melissa, Shawn, the paternal grandparents and various police officers involved in the case.
Melissa recounted the April 2, 2010 incident, described her medications for depression and seizures and acknowledged her relationship with Shawn involved domestic violence.
Shawn told the social worker that he sells art work out of his car. He stated that he and Melissa had been in a relationship for a year and a half, and blamed the couple's problems on Melissa's medical condition and use of alcohol. Shawn acknowledged he smoked marijuana "sometimes, " meaning once a month. He reported that he last used marijuana on April 2, 2010, the day of the incident that resulted in filing of the petition. However, Shawn denied using any other type of illegal drug, and denied participating in any type of substance abuse treatment program in the past. He stated he would submit to drug testing.
Dallas's paternal grandmother described Shawn as irresponsible, noting that he refused to seek employment, was not allowed to stay at her home and had lived in his car for the last 25 years. The paternal grandmother also reported that Shawn had a history of marijuana use and believed he was still using. She stated that Melissa was bipolar and thought Melissa's current manic episode was caused by her not taking prescribed medication and using drugs and alcohol instead.
Also included in the detention report was a November 21, 2009, arrest report in which Melissa reported nine incidents of physical abuse by Shawn over a period of four months. Melissa returned to Shawn because she was pregnant with Dallas. She also admitted being an alcoholic. A subsequent police report dated November 29, 2009, indicated that Melissa had attempted suicide by drinking bleach, 64 ounces of beer and seven Tylenol PM tablets.
At the initial detention hearing held April 13, 2010, the court ruled that the Agency had made a prima facie showing that Dallas was a person described in section 300, subdivision (b), found that Shawn was the presumed father, removed Dallas from the custody of his parents, placed him in foster care and granted the Agency discretion to detain Dallas with an approved relative based on subsequent evaluations. Among other things, the court ordered both parents to report to the Substance Abuse Recovery Management System (SARMS) for substance abuse treatment and case management.
The jurisdictional hearing was initially scheduled for May 4, 2010. However, at Shawn's request, the court set the matter for a contested jurisdictional and dispositional hearing on July 6, 2010. Agency social worker Angela Duffy continued her contacts with Melissa and Shawn which she summarized in jurisdiction and disposition reports dated May 4, 2010, May 18, 2010, and June 30, 2010. Duffy stated in her May 4, 2010, report that Shawn declined to comment on the situation. In Duffy's May 18, 2010 addendum report, Melissa claimed Shawn took her May welfare money and spent it on cocaine. Melissa told Duffy that Shawn sold his art at the beginning of the week, but used money received from wealthy clients to binge on cocaine and alcohol on weekends. Duffy also spoke with Dennis D., who corroborated Melissa's account of Shawn's weekend drug binges and regular physical abuse of Melissa.
The June 30, 2010, addendum report noted that Melissa had been living with Shawn in his truck since mid-May. Melissa told social worker Margaret Spence that she was again the victim of domestic violence on Memorial Day. Melissa reported that she had been clean from alcohol and drugs, but Shawn had been only "a little bit sober." She said she needed services for homelessness not substance abuse. Spence also spoke with Shawn, who said he was currently living out of his artist's loft. Shawn explained he was unable to participate in parenting and counseling classes due to his work schedule and lack of means to pay. When told the Agency would pay for therapy, Shawn said his attorney told him that he would be admitting guilt by attending the classes.
The Agency also submitted a case plan which recommended, among other things, that Shawn participate in a weekly domestic violence program and that he address the substance abuse issues by attending a 12-Step program, participating in on-demand drug testing and undergoing a SARMS assessment for issues related to drug addiction.
At the July 6, 2010, contested adjudication and disposition hearing the court made a true finding as to each count of the petition, found that Dallas was a person described in section 300, subdivision (b), declared him a dependent child pursuant to section 360, subdivision (d), and placed him in the home of relatives. It denied Shawn's request to amend the petition to reflect mutual combat in count 1, and his request to amend the case plan to provide for drug testing and referrals to treatment "if, in fact, he's not remained clean and sober as he has indicated that he is." The court incorporated the Agency's recommendations by reference, and expressly ordered Shawn to meet with the court's substance abuse specialist. Shawn appealed the July 6, 2010 orders. The court modified the case plan on August 12, 2010, deleting original items 1 through 3 and substituting "substance abuse treatment and random drug testing."
Substance Abuse Specialist Virginia Gonsalves interviewed Shawn on August 2, 2010. Based on Shawn's history and living situation, she concluded he would benefit from residential rehabilitation services. Gonsalves gave Shawn sign-in sheets on which to document his attendance at the 12-Step program ordered by the court. Ten days later, Shawn told Gonsalves that he was too busy to attend the 12-Step meetings and intended to appeal "doing any other programs."
Gonsalves testified by telephone at the September 28, 2010, special contested hearing on the question whether the court should require Shawn to participate in residential drug treatment. The "big red flag" for her was that Shawn stated he did not have a drug of choice but had attended 12-Step meetings voluntarily in the past. Gonsalves observed: "[T]hat kind of conflicted with him stating that he didn't have a problem." She learned shortly after the assessment interview that Shawn did not have a permanent residence, although in the interview she was led to believe that he did. Gonsalves opined that a residential program of three to six months would make it easier for Shawn to address all his issues "without the outside stressors of being on the streets and subjected to the things that can happen...." She noted the fact that Shawn claimed he was "too busy" to attend the 12-Step meetings, and stated: "I felt like he is basically doing what he wants to do...."
At the close of testimony, the Agency conceded that there was insufficient evidence to support residential drug treatment, but argued the court should order outpatient treatment. Shawn's counsel responded that the record failed to show recent use justifying substance abuse treatment of any kind. The court rejected that argument and ordered the Agency to provide Shawn with outpatient drug treatment and drug testing. Shawn appealed.
DISCUSSION
Shawn relies on Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, to support his argument that the orders challenged here are subject to the substantial evidence standard of review. The Agency contends Amanda H. is inapposite because it involved the question whether a local agency proved by clear and convincing evidence that the parent received reasonable family unification services. The Agency maintains the abuse of discretion standard applies to the orders now before us.
Although there may be little practical difference between the two standards (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and we would affirm under either standard, we agree with the Agency that the abuse of discretion standard applies to the drug treatment and testing orders challenged here. As this court explained in In re Jose M. (1988) 206 Cal.App.3d 1098, "[t]he 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. [Citation.]" (Id. at pp. 1103-1104.) Other courts have applied the abuse of discretion standard in challenges to orders providing for substance abuse components in reunification plans. (See, e.g., In re Neil D. (2007) 155 Cal.App.4th 219, 226; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
"[A]n abuse of discretion is never presumed but the complaining party must affirmatively establish it. [Citations.]" (Silver v. Shemanski (1949) 89 Cal.App.2d 520, 529.) An appellate court finds abuse of discretion only where the trial court exceeds the bounds of reason by making an arbitrary, capricious, or patently absurd ruling. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) We conclude Shawn fails to establish abuse of discretion.
"A reunification plan " ' "must be appropriate for each family and be based on the unique facts relating to that family." ' " [Citation.] Section 362, subdivision (c), states in pertinent part: 'The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the minor is a person described by Section 300.' " (In re Basilio T. (1992) 4 Cal.App.4th 155, 172 (Basilio T.).) Here, the court found true both counts of the petition. Count 2 alleged that Shawn used marijuana and "has failed and been unable to protect and supervise" Dallas. One objective of the case plan proposed by the Agency and adopted by the court was to enable Shawn to "[s]tay free from illegal drugs and show [his] ability to live free from drug dependency." We assume the specific drug-related components of the plan were designed to eliminate Shawn's drug use as a factor contributing to Dallas's designation as a dependent child under section 300, subdivision (b).
Although Shawn denies that he has a substance abuse problem requiring treatment, statements by Melissa, her friend Dennis and the paternal grandmother cite his on-going marijuana use. Shawn admitted he smoked marijuana on April 2, 2010, when his violent argument with Melissa resulted in the Agency filing the petition. Left unanswered is why Shawn voluntarily participated in a 12-Step program in the past if he had no problem with substance abuse. The record also shows that Shawn failed to comply with less demanding requirements, repeatedly claiming he was too busy with work to attend parenting classes or 12-Step meetings. On this record, we conclude the court did not abuse its discretion by ordering Shawn to attend outpatient substance abuse treatment and submit to random drug testing.
Shawn relies on Basilio T., supra, 4 Cal.App.4th 155, to support his argument there is insufficient evidence to support a substance abuse component in his reunification plan. Basilio T. is readily distinguishable from the case before us. The court in Basilio T. reversed a juvenile court order that included a substance abuse component in the reunification plan, finding no evidence the parents had a substance abuse problem. The court elaborated: "Other than the social worker's observation that [mother] behaved somewhat out of the usual and was obsessed with discussing a fortune-making invention, there was nothing in the record to indicate either [parent] had a substance abuse problem. Given the offer of proof by [mother]'s counsel that there was indeed an invention that had a potential money-making aspect, the only remaining factor supporting the substance abuse component was [mother]'s behavior. On this record, [mother]'s behavior, by itself, cannot support a conclusion she had a substance abuse problem. Similarly, there is nothing in this record to indicate that a substance abuse problem led to the conditions that caused the dependency." (Basilio T., supra, at pp. 172-173.) Here, by contrast, the record demonstrates Shawn has used marijuana regularly over a long period of time and suggests drug use was a factor in his failure and/or inability to protect and supervise Dallas.
DISPOSITION
The orders are affirmed.
WE CONCUR: HALLER, J., AARON, J.