Opinion
B307853
07-12-2021
In re M.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MATTHEW M., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. 19CCJP06591A, 19CCJP06591B, Lisa A. Brackelmanns, Judge Pro Tempore. Reversed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
THOMAS, J.[*]
Matthew M. (father) appeals from the portion of the juvenile court's disposition order requiring him to undergo drug treatment and testing. We agree with father that the order was an abuse of the court's discretion because drug use by father was not among the conditions that led to the dependency. Accordingly, we reverse the order.
BACKGROUND
Law enforcement executed a search warrant in the fall of 2019 at the family home where father, mother, their two children, and paternal grandparents lived, and recovered methamphetamines and fentanyl, bottles of Narcan, a scale, $30,000 in cash, 16 firearms, and hundreds of rounds of ammunition. Father fled, but mother and the children M.M. (age 5) and Matthew M., Jr., (age 3), and the paternal grandparents remained. Law enforcement arrested father for possession of a controlled substance while armed, and notified the Department of Children and Family Services (the Department).
The Department filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) alleging that the parents created a detrimental and endangering environment for the children because the parents possessed illicit drugs in, and sold them out of, the family home.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother denied father used drugs and said she had never seen him use drugs or smoke. Father admitted he smoked marijuana in high school, but denied using other drugs at that time and declared he did not currently use drugs. Neither the maternal grandparents, nor a friend of mother interviewed by the Department, saw any indication that father used drugs. The paternal family members confirmed that father did not use drugs. Paternal aunt explained that father's brother died from a drug overdose and that father “does not use drugs because of this” traumatic event.
In his only interview with the Department, father either did not respond to questions, responded inappropriately, or made jokes. Otherwise, father communicated by text and did not answer the social worker's numerous calls or multiple letters to arrange visits with his children, to provide him with referrals for services, or to obtain proof of his participation in services. Father's lack of communication made it difficult for the Department to assess his progress in addressing the causes of the dependency.
After sustaining the petition in March 2020, the juvenile court admonished father to talk to his attorney about the importance of cooperating with the Department and being responsive to their calls. Later the court ordered father to provide documentation of his enrollment in programs.
Finally, in July 2020, father texted the social worker information about his participation in parenting and drug and alcohol awareness programs, documents that he had been sending to his attorney rather than directly to the Department. The Department verified father's completion of parenting classes. The drug awareness program facilitator confirmed that father completed that program and had been a “ ‘really good student.' ”
Throughout the fall and winter of 2019 and 2020, father drug tested regularly and produced negative results each time. He missed three tests in the spring of 2020 because the pandemic closed the sites and because of a computer glitch. Although he missed a drug test in July 2020, he subsequently recorded a negative test result.
At the disposition hearing, father took “the fifth” when asked whether he accepted responsibility for the drugs found in the family home, but he went on to describe what he had learned in his parenting and drug and alcohol awareness program and reiterated that he did not have a drug problem. In particular, father stated that he had learned, among other things, to “be a better parent, ” how substance abuse “tears apart your family, how it tears apart your kids, ” and that it was “bad” to have drugs in the house when children are there. He further stated that he would never allow drugs to be in his house when the children were home, and that he would “do everything I can to make sure there's nothing coming into my home that is going to hurt my children so I don't get them taken away again.” He reiterated that he does “not have a drug problem. That's what they are trying to accuse me of.”
The juvenile court declared the children dependents, removed them from father's custody, and placed them with mother. The court stated father was defensive and lacked insight into the dependency's causes. Noting father's objection, the court ordered father to undergo, among other reunification services, a full drug and alcohol treatment program with aftercare, weekly random or on-demand testing, and a 12-step program with a sponsor. The court also ordered father to communicate with the Department. Father appealed.
We grant the Department's motion for judicial notice of the juvenile court's order terminating its jurisdiction, filed on May 24, 2021, while this appeal was pending. In that order, the juvenile court granted mother sole legal and physical custody of the children, and ordered father to have monitored visitation.
See Evidence Code section 452, subdivision (d)(1), In re B.P. (2020) 49 Cal.App.5th 886, 889, footnote 2 (considering postappeal evidence when deciding whether to dismiss a parent's appeal), and In re Karen G. (2004) 121 Cal.App.4th 1384, 1390 (“It is not uncommon for an appellate court to take judicial notice of subsequent proceedings in the juvenile court [to determine whether] the appeal has been rendered moot”).
DISCUSSION
I. We deny the motion to dismiss the appeal as moot.
Preliminarily, we address the Department's motion to dismiss this appeal on the ground that the termination of juvenile court jurisdiction rendered the appeal moot. Father filed an opposition. We deny the motion to dismiss. An order terminating juvenile court jurisdiction generally renders an appeal from an earlier order moot. (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) However, the dismissal of a dependency appeal for mootness after the termination of jurisdiction “is not automatic, but ‘must be decided on a case-by-case basis.' ” (Ibid.) “ ‘An issue is not moot if the purported error infects the outcome of subsequent proceedings.' ” (Ibid.) The “critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error.” (In re N.S. (2016) 245 Cal.App.4th 53, 60.)
Father's appeal is not moot. The dispositional order, “if erroneous, could have severe and unfair consequences to [f]ather in future family law or dependency proceedings” (In re Daisy H. (2011) 192 Cal.App.4th 713, 716), and we can provide him effective relief. The juvenile court's exit orders, which are based on the disposition orders, require father as a condition of visitation with the children to undergo a complete drug treatment program and aftercare, a 12-step program, and drug testing. The exit orders will be the subject of family law proceedings and enforced there. Father may obtain modification of those orders in the family court only by showing a “significant change of circumstances since the juvenile court issued the order.” (§§ 302, subd. (d) & 362.4.) Thus, the requirement that father participate in drug treatment services will remain a condition of his visitation and be considered by the family court if father seeks modification of the exit order. We can, therefore, give father effective relief from the disposition order giving rise to the exit order in his challenge to that order's correctness in this appeal. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548 [parent may not challenge correctness of order in family court].) Dismissal, by contrast, would operate as an affirmance of the underlying judgment or order. (In re C.C., supra, 172 Cal.App.4th at p. 1489.)
The Department cites In re Michelle M. (1992) 8 Cal.App.4th 326 in support of its argument that this matter is moot. There, the father did not appeal the termination of jurisdiction and so that order became final. Instead, the father appealed the jurisdiction and disposition order. (Id. at p. 327.) The Michelle M. court dismissed the appeal on the ground that as the result of the juvenile court's final order terminating jurisdiction, the appellate court lacked “jurisdiction to act upon any order” because there was “no ongoing dependency proceeding.” (Id. at p. 329.) Here, however, father timely appealed the juvenile court's disposition order (see § 395) and the time for appeal from the May 24, 2021 order terminating jurisdiction has not lapsed (Cal. Rules of Court, rule 8.406). While the better practice would be for father to appeal from the termination order and accompanying custody order (cf. Michelle M., at p. 330), because the order terminating jurisdiction is not yet final, the juvenile court continues to have jurisdiction to modify its disposition order. (See In re Joshua C., supra, 24 Cal.App.4th at p. 1548 [termination of juvenile court jurisdiction does not preclude appellate court from reviewing jurisdictional findings that resulted in restrictions on appellant's custody and visitation].)
II. The disposition order is an abuse of discretion to the extent that it requires father to undergo a full drug treatment program.
It is axiomatic that when a child is adjudged a dependent of the court, under section 300, the juvenile court may “direct any reasonable orders to the parents” of a dependent child as the court deems necessary and proper to ensure appropriate care, supervision, custody, conduct, maintenance, and support of the child. (§ 362, subd. (d).) “ ‘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; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071.)
Father contends that the juvenile court abused its discretion by ordering him to engage in substance abuse treatment and drug testing, in the absence of any evidence that he abused controlled substances. We agree.
Although the juvenile court's authority is broad, its “discretion in fashioning reunification orders is not unfettered.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) The court's orders “ ‘ “must be appropriate for each family and be based on the unique facts relating to that family.”' ” (In re Basilio T. (1992) 4 Cal.App.4th 155, 172.) More important, any “ ‘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.' ” (Ibid.;see§ 362, subd. (d).)
The relevant facts of this case are undisputed. The Department received a referral from law enforcement after large quantities of drugs, firearms, ammunition, paraphernalia, cash, surveillance monitors, and Narcan were found in father's home. Father denied having a drug problem or using drugs; mother and family members confirmed that father used neither drugs nor alcohol. Although father was less than cooperative with the Department, he completed a drug awareness program and participated in drug testing, with consistently negative results.
Beyond father's own statement that he smoked marijuana in high school, there was no evidence before the juvenile court that father had ever used narcotics. While the evidence demonstrated that drugs had been within reach of the children in father's home, drug use by father was not among the conditions that led to the dependency finding.
In In re Basilio T., supra, 4 Cal.App.4th at page 173, the appellate court found that the juvenile court had abused its discretion when it ordered drug testing and substance abuse therapy in the absence of any evidence in the record “to indicate that a substance abuse problem led to the conditions that caused the dependency.” Instead, substance abuse treatment had been ordered because the social worker found that the parent “behaved somewhat out of the usual.” (Id. at p. 172.) Similarly, in In re Sergio C. (1999) 70 Cal.App.4th 957, 960, the appellate court held that where “the only evidence” of the father's drug use was the mother's “unsworn and unconfirmed allegation, which was flatly denied by” the father, “there must be some investigation by [the Department] to warrant the kind of invasive order” for drug testing that the court required father to complete. (Italics added.)
The Department suggests that these cases are inapposite for two reasons: because (1) unlike the father in In re Sergio C., supra, 70 Cal.App.4th at page 960, who was described as having “cooperated fully with all of the court's orders, ” father here was uncooperative in many respects; and (2) unlike In re Basilio T., supra, 4 Cal.App.4th at page 160, which involved domestic violence, this case involved allegations regarding drugs. We do not agree that this case is meaningfully different from those in which courts have reversed drug testing and treatment orders. Father may have been uncooperative in providing updates or facilitating visitation with the children, and nonresponsive to face-to-face meeting requests, but the Department does not suggest, and there is no evidence in the record, that this lack of cooperation was driven in any way by substance abuse. Nor does the Department argue that father's lack of acceptance of responsibility for the drugs found in the family home, or cavalier attitude toward the related charges he faced, suggest actual drug use. And, indeed, the Department acknowledges that father participated in both a drug awareness program and regular drug testing, and produced uniformly negative results. The juvenile court's concern, as the Department acknowledges, was not drug abuse, but “lack of insight.”
Lack of insight into the dangers of drugs might be a basis for a great many orders, but substance abuse treatment and drug testing, on this record, are not among them. Our Supreme Court has made clear that the “juvenile court has authority to require a parent to submit to substance abuse treatment as part of a reunification plan as long as the treatment is designed to address a problem that prevents the child's safe return to parental custody.” (In re Nolan W., supra, 45 Cal.4th at p. 1229.) Furthermore, “when a parent accepts services, and when substance abuse treatment is reasonably related to the minor's welfare, the juvenile court has authority to order the parent to participate.” (Ibid.; see In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1008 [upholding random drug and alcohol testing where father had history of drug and alcohol use]; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 [mother with history of substance abuse required to be free of drugs and alcohol before she visited her children].) But where, as here, parental substance abuse is not evident in the record, and thus is not a “problem that prevents the child's safe return” to his or her parent, the juvenile court exceeds its considerable discretion in making substance abuse treatment or testing part of a dispositional plan. (In re Nolan, at p. 1229.)
DISPOSITION
The order appealed from is reversed.
We concur: LAVIN, Acting P. J., EGERTON, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.