Opinion
B164103.
7-30-2003
In re DANIEL H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DANNY H., Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, Kathleen Dougherty Felice, Senior Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Danny H., the presumed father of Daniel H., the child, appeals from jurisdiction and disposition orders entered in the juvenile court pursuant to Welfare and Institutions Code section 300. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
II. BACKGROUND
The child was born with drugs in his system. The mother was 18 years old. The father was 17 years old. The mother had tested positive for marijuana. She admitted she had used marijuana during her pregnancy. The parents entered into, but failed to comply with, a voluntary family maintenance agreement. Although the parents had attended parenting and drug counseling programs, they continued to test positive for drug use. The father had tested positive for marijuana use on September 12, 2002, October 10, 2002, October 16, 2002, November 4, 2002, and November 13, 2002. The child was detained on November 18, 2002, and placed in the home of his maternal grandparents.
The child was declared a dependent of the juvenile court on December 17, 2002. The sustained allegations with respect to the father were as follows: "The child . . . was born suffering from a detrimental condition. Such condition consists of drug withdrawal and had a positive toxicology screen for marijuana. Such condition would not exist except as the result of unreasonable acts by the childs mother, S[.]G[.] placing the child at risk of serious physical harm and emotional damage. Further the childs father . . . failed to take action to protect the child from the mothers drug use in that the childs father knew of the mothers drug abuse. Such conduct by the childs mother and the childs fathers failure to protect the child endangers the childs physical and emotional health and safety and places the child at risk of physical harm and damage" (paragraph B—1); "The . . . father . . . is a current user of marijuana, which renders [him] incapable of providing regular care and supervision for the child. Further[,] on 9-12-02, 10-10-02, 11-4-02 and 11-13-02, the childs father had positive toxicology screens for marijuana. Further[,] the childs fathers drug abuse, coupled with his immaturity, endangers the childs physical and emotional health and safety and places the child at risk of physical harm, damage, and abuse" (paragraph B-3); and, "On 6-3-02 and 5-30-02, the child[s] . . . mother . . . and [father] signed a Family Maintenance Contract in which the childs mother and the childs father agreed to complete a drug rehabilitation program, random drug testing and refrain from drug use. Further[,] the childs mother and the childs father failed to comply with this voluntary family maintenance contract in that [they] continue to use illicit drugs. Further the childs mother and the childs fathers failure to comply with the prior voluntary family maintenance contract endangers the childs physical and emotional health and safety and places the child at risk of physical and emotional harm, and damage" (paragraph B-4).
III. DISCUSSION
First, the father argues there was insufficient evidence to sustain the allegations in counts B-3 and B-4. (The father refers to count B-2, but apparently means paragraph B-3.) The father argues, "There was no evidence to show that he smoked marijuana on more than one, single occasion." The father does not contest the sufficiency of the evidence as to count B-1, that he failed to protect the child from the mothers drug abuse during the pregnancy. That count alone sufficed to support the jurisdictional order. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.) That the child was born with drugs in his system was legally sufficient for the juvenile court to exercise jurisdiction. ( §§ 300.2, 355.1, subd. (a); In re Monique T. (1992) 2 Cal.App.4th 1372, 1378; In re Stephen W. (1990) 221 Cal. App. 3d 629, 637-640, 271 Cal. Rptr. 319; In re Troy D. (1989) 215 Cal. App. 3d 889, 897, 263 Cal. Rptr. 869.)
Section 300.2 states in pertinent part, "The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child."
Section 355.1, subdivision (a) states: "Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, . . . that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300."
Moreover, the record does not support the fathers contention there was no evidence he smoked marijuana on more than one, single occasion. The father tested positive for marijuana use on September 12, 2002, October 10, 2002, October 16, 2002, November 4, 2002, and November 13, 2002. He failed to provide a specimen on September 3, 2002, and October 29, 2002. There is no evidence to support the contention that if the father used marijuana on September 12, 2002, he could have continued to test positive for drug use through November 13, 2002.
Second, the father asserts that the sustained allegation of immaturity was prejudicial to him in that the juvenile court ordered him to participate in individual counseling. As noted above, the juvenile court found in part, "The childs fathers drug abuse, coupled with his immaturity, endangers the childs physical and emotional health and safety and places the child at risk . . . ." The father argues, "This [individual counseling order] will require father to do a separate regimen of individual therapy with the attendant burden of paying for the cost of the therapy sessions, potentially missing time off from work, arranging for transportation, and subjecting himself to a therapist who will make recommendations to the court and who will be compelled to provide information to the court that would otherwise be privileged." In addition, the father contends there was insufficient evidence to support the dispositional orders under section 362, subdivision (c), because the programs he was ordered to participate in were not designed to eliminate the conditions that led to dependency jurisdiction. More specifically, the father asserts the individual and conjoint counseling requirement place an unnecessary burden on him, unsupported by any evidence in the record. The father concludes with the following analysis, "The burden of individual and conjoint counseling programs should not be taken lightly in view of the fact that the father is now burdened by multiple other programs (drug rehabilitation and random testing, parent education). If the jurisdictional findings of the court are upheld, fathers resources will be strained by making additional provisions for time off from work, transportation issues, scheduling visits with a child that he can no longer reside with, and the natural financial implications of complying with four separate, mandatory court ordered programs."
Actually, the juvenile court orally ordered the parents could reside with the child in the grandparents home. That order is not, however, reflected in the written Court Ordered Disposition Case Plan or the December 17, 2002, minute order.
The juvenile court has broad discretion to fashion dispositional orders designed to protect the child and to eliminate the conditions that led to the dependency jurisdiction. (In re N.M. (2003) 108 Cal.App.4th 845, 852; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) This court will not reverse the juvenile courts determination absent a clear abuse of discretion. (In re N.M., supra, 108 Cal.App.4th at p. 852; In re Baby Boy H., supra, 63 Cal.App.4th at p. 474; In re Christopher H., supra, 50 Cal.App.4th at p. 1006.) We find no clear abuse of discretion. The juvenile courts individual counseling requirement was supported not just by the fathers "immaturity," but by his continued drug use. Individual counseling is a common component of a reunification case plan where a parent is or has been abusing drugs. (See, e.g., In re James Q. (2000) 81 Cal.App.4th 255, 258-259; In re Michelle M. (1992) 4 Cal.App.4th 1024, 1032; In re Baby Boy M. (1990) 221 Cal. App. 3d 475, 479, 272 Cal. Rptr. 27; In re Jonathan R. (1989) 211 Cal. App. 3d 1214, 1217, 259 Cal. Rptr. 863.) The parenting and drug counseling programs the father had participated in pursuant to the voluntary family maintenance agreement had not resulted in a cessation of drug use. The juvenile court could reasonably conclude that individual counseling was necessary.
Third, the father asserts the individual and conjoint counseling orders are overly vague and therefore unenforceable. This objection was not raised in the juvenile court. As a result, it has been waived. (E.g., In re Troy Z. (1992) 3 Cal.4th 1170, 1181, 840 P.2d 266; In re B.G. (1974) 11 Cal.3d 679, 689; In re S.O. (2002) 103 Cal.App.4th 453, 459; In re L.Y.L. (2002) 101 Cal.App.4th 942, 956, fn. 8; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1038, fn. 8.) The father is free to seek clarification in the juvenile court.
IV. DISPOSITION
The juvenile courts jurisdiction and disposition orders are affirmed.
We concur: GRIGNON, J., MOSK, J.