Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK74222, Marilyn Mackel, Juvenile Court Referee. Affirmed.
Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
R.A. (father) appeals from the judgment of February 10, 2009, declaring his son, a dependent of the court under Welfare and Institutions Code section 300. Father contends substantial evidence does not support the jurisdictional findings under section 300, subdivision (b), relating to his marijuana use, the order removing son from his custody, or the dispositional orders restricting his marijuana use. We hold substantial evidence supports the jurisdictional findings and removal order. We further hold that father’s contention regarding the orders restricting his marijuana use was forfeited by his failure to object below and, in any event, such orders were not an abuse of discretion. Accordingly, we affirm the judgment.
The dependency court found father was son’s presumed father.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Son was born in 2005 to N.V. (mother) and father, who lived together. Father had a history of marijuana use and domestic violence, and he had drug-related criminal convictions. The parents were unemployed. They lived in a residence behind the paternal grandmother’s house. Son was often in the home of paternal grandmother but had free access to the parents’ residence, and his bed was in the parents’ bedroom. Paternal grandmother’s home had a history of domestic violence. Living in paternal grandmother’s home were a paternal aunt who had a marijuana-related conviction and paternal relatives who used drugs.
Mother and father were arrested in November 2007 and convicted of possession of marijuana and possession of marijuana/hashish for sale in June 2008. They were placed on probation for three years on condition they serve 180 days in jail, not use or possess any narcotics or associated paraphernalia except with a valid prescription, and participate in drug counseling and random testing. They were to serve their jail time through electronic monitoring. Under this program, they were under house arrest, wore G.P.S. monitors, and were not allowed to leave their home.
Father would hit mother in son’s presence, causing bruising, and son would wake up at night crying, “‘No, no, don’t hit my mom!’” Mother left father on numerous occasions due to domestic violence, but always returned. In July 2008, the police were called to the home when father became angry with mother.
Son was detained by the Department of Family and Children’s Services on September 1, 2008, when two paternal relatives were found breaking up and wrapping marijuana on the kitchen table. Son was by himself in the shower tub. Father and mother, who were still under house arrest, were present. Father was in the bedroom, where there was a strong odor of marijuana. The parents were arrested for marijuana cultivation and child endangerment. The police recovered a total of 499.6 grams of marijuana: 33.8 grams on the kitchen table; 231 grams on top of the television stand in the living room; 121.8 grams in 17 individual containers in a bag on top of the television stand; and 113 grams in various containers at several locations in the bedroom. The police also recovered 16 marijuana plants in the bedroom behind the bed, in the closet, and on the patio. Also recovered were two spiral notebooks in the television stand, an empty gun case on top of the television stand, two grinders containing marijuana residue in the bedroom, a “Los Angeles County” scale in the kitchen, clear plastic baggies in the bedroom, four bongs in the bedroom, four cell phones, and $140 in currency.
Father’s probation was revoked; he remained in jail for almost two months. On January 14, 2009, he was reinstated on probation until June 2011.
Father admitted he smoked marijuana. He stated he had a physician’s recommendation for medical marijuana issued for a one year period from May 2, 2008. He stated he had been prescribed medical marijuana for the last three or four years for panic attacks and pain in his bones. He claimed he had only four marijuana plants at home and was previously arrested for marijuana possession not possession for sale. He denied he ever engaged in violent altercations with mother. Mother admitted she smoked a pound or more of marijuana per month, smoking it two or three times per day.
On February 10, 2009, the dependency court sustained allegations under section 300, subdivision (b), that the child has suffered or there is a substantial risk he will suffer serious physical harm or illness due to the parents’ failure to adequately supervise or protect, and by the parents’ inability to provide regular care due to the parents’ substance abuse. The dependency court sustained factual allegations that father possessed marijuana and marijuana plants in the home within the child’s access, exposed the child to drug trafficking in the home, was arrested for possession of a controlled substance for sale and child endangerment, has a history of illegal drug use, and on numerous prior occasions, father engaged in violent altercations with mother which endangered the child and placed him at risk. The dependency court did not find credible the parents’ assertion they had a lawful right to possess marijuana. Even if the parents had a lawful right, the amount of marijuana in their possession was not within the legally permitted amount. The parents were convicted of possession of marijuana and possession of marijuana for sale after the date they allegedly obtained permission to use medical marijuana. Moreover, the parents were also found in violation of probation during the period they alleged they had a lawful right to use medical marijuana. The dependency court did not believe the documents the parents presented validly permitted them to use medical marijuana, but even if the documents were valid, “it would seem to this court that[,] having been represented by an attorney in the criminal court[,]... any... person who has a lawful right to possess marijuana would have presented that to the criminal court, presented [the documents.] If indeed it was consistent with the amount allowable.... [¶] It’s all very questionable.” “[H]ighly absurd” is the dependency court’s characterization of the parents’ factual assertions.
A person eligible to use medical marijuana may ask the court to confirm whether he or she is allowed to use medical marijuana while on probation. (Health & Saf. Code, § 11362.795, subd. (a).)
Son was declared a dependent of the court, custody was taken from the parents, and reunification services were ordered. Father was ordered to participate in drug rehabilitation with random testing, domestic violence, counseling, parenting, an anger management program, and conjoint counseling with mother when appropriate. Father was granted monitored visitation two to three times per week, two to three hours per visit, with the Department having discretion to liberalize. Father was ordered not to use marijuana unless he obtained an actual diagnosis of panic disorder from a board certified psychiatrist who discussed with father appropriate treatments other than marijuana, obtained a marijuana prescription from an appropriately licensed doctor, obtained a medical marijuana card from an appropriately licensed agency, and received the approval of the Department of Probation and the criminal court to consume marijuana.
DISCUSSION
Substantial Evidence Supports the Findings Under Section 300, Subdivision (b)
Father contends substantial evidence does not support the findings under section 300, subdivision (b), that his marijuana use exposed son to a substantial risk of suffering serious physical harm. We conclude substantial evidence supports the findings.
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Section 300, subdivision (b), describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of “the failure or inability of [the] parent or guardian to adequately supervise or protect the child,... or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s... substance abuse.” “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
The purpose of the juvenile court law is to provide “maximum safety and protection for children” being harmed or who are at risk of harm. (§ 300.2.) “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.” (Ibid.) Marijuana is a hallucinogenic substance. (Health & Saf. Code, § 11054, subd. (d)(13).) “There is a risk to... children of the negative effects of second hand marijuana smoke. [¶]... [U]se of marijuana near others can have a negative effect on them. [¶]... [L]egal use of marijuana can be abuse if it presents a risk of harm to minors.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 452.)
The Compassionate Use Act of 1996, which protects patients who use marijuana for medical purposes from criminal prosecution, provides in pertinent part: “Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others....” (Health & Saf. Code, § 11362.5, subd. (b)(2).)
Father was a frequent user of marijuana, a hallucinogenic substance. He was restricted to the house where he lived with son and kept his marijuana and bongs. There was a strong odor of marijuana in the bedroom when father was present in the bedroom and son was in the house. This evidence indicates father smoked marijuana in the home, cared for son while under the influence of marijuana, and exposed son to the negative effects of secondhand marijuana smoke. Smoking marijuana in a home where children live creates a risk of harm to the children. (See Health & Saf. Code, § 11054, subd. (d)(13); In re Alexis E., supra, 171 Cal.App.4th at p. 452.) Marijuana, marijuana plants, and paraphernalia containing marijuana residue were found in locations accessible to children, creating a risk son would ingest marijuana to his detriment. The quantity and packaging of marijuana, number of marijuana plants, baggies, number of cell phones, spiral notebooks, cash, empty gun case, parents’ recent conviction for drug sales, and fact that father’s relatives were observed packaging marijuana in the kitchen support the dependency court’s finding that the parents exposed son to the dangers of drug-trafficking in the home. Regarding the finding that father’s marijuana use was illegal, father suffered a conviction for marijuana possession and a revocation of probation for marijuana possession during the previous one-year period, when father purportedly had a medical marijuana recommendation for anxiety and pain. The doctor who allegedly signed the medical marijuana recommendation was a cancer specialist, not a psychiatrist. Moreover, father’s incarcerations during the recent one-year period for drug-related criminal activity caused him to be unable to provide care for son for substantial periods. Caretaker’s absence can create a risk of harm. All the foregoing is overwhelming evidence father’s drug use created a substantial risk of harm to son under section 300, subdivision (b).
In re David M. (2005) 134 Cal.App.4th 822, 829-832, which held that the mother’s single, positive test for marijuana at birth was insufficient to support a finding of substantial risk of harm to her newborn under section 300, subdivision (b), is distinguishable. In In re David M., the baby’s toxicology screen was negative, mother maintained a safe and appropriate home for an older sibling, the older sibling was not exposed to drugs, drug paraphernalia, or second-hand marijuana smoke, and the mother had no dirty drug tests during the months between the detention and jurisdictional hearings. (Id. at pp. 829-831.) In contrast, father cared for son while under the influence. Father’s drug use and drug-trafficking created an unsafe and inappropriate environment which exposed son to the risk of ingesting marijuana, harmful effects of secondhand marijuana smoke, and risk of caretaker neglect.
The Removal Order is Supported by Substantial Evidence
Father contends that, even if substantial evidence supports the jurisdictional findings, substantial evidence does not support the order removing son from his custody. The record shows the order is supported by substantial evidence.
Section 361, subdivision (c), provides in pertinent part: “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive...: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.”
The facts that father’s marijuana use and sales were ongoing while he had a caretaker role, his questionable authorization to use medical marijuana, his denial that his involvement with marijuana endangered son, and his failure to participate in probation-ordered drug rehabilitation are substantial evidence that son was at risk of harm. There were no reasonable means to protect son without removing him from father’s physical custody.
Moreover, father and mother engaged in domestic violence which placed son at risk of harm. Father does not challenge this sustained allegation. “Domestic violence against a spouse is detrimental to children.” (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940.) Domestic violence in the household creates a substantial risk the children will encounter the violence and suffer serious physical harm therefrom. (In re Heather A., supra, 52 Cal.App.4th at p. 194; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169.) The facts that father engaged in domestic violence, denied his role, and had not participated in a domestic violence program are substantial evidence supporting the removal order.
To the extent father argues that the paternal grandmother provided a safety net for the family, the dependency court could reasonably conclude from the evidence of domestic violence and drug use in paternal grandmother’s home that her presence nearby did not provide a sufficient safeguard. Moreover, there was evidence that placement with paternal grandmother was not legally authorized because an adult daughter living in the home had been convicted of a drug offense.
Substantial Evidence Supports the Orders Restricting Father’s Marijuana Use
Father contends that the dispositional order was not supported by substantial evidence to the extent that it conditioned his marijuana use on his obtaining a diagnosis from a psychiatrist who discussed with father appropriate treatments other than marijuana, a marijuana prescription from an appropriately licensed doctor, and a medical marijuana card from an appropriately licensed agency. The Department contends that father forfeited the contention by failing to object to the disposition order on this basis in the dependency court. We agree the contention was forfeited. (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule.”], fn. omitted; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Were we to address the contention, we would conclude the order was not an abuse of discretion.
“Pursuant to section 362, [subdivision (c),] the court may make ‘any and all reasonable orders to the parents or guardians’ to ameliorate the conditions that made the child subject to the court’s jurisdiction. [Citations.] This provision and others in the Welfare and Institutions Code ‘have been broadly interpreted to authorize a wide variety of remedial orders intended to protect the safety and well-being of dependent children....’ [Citation.]... ‘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 accordance with this discretion. [Citations.] The court’s determination in this regard will not be reversed absent a clear abuse of discretion. [Citation.]’ [Citation.] [¶] Here, the court’s order must be evaluated in light of the fact that Mother’s drug addiction is the primary threat to her children’s safety and quality of life. Our courts have recognized that severe measures are necessary to prevent drug usage from undermining the prospect of the successful reunification of families.” (In re Neil D. (2007) 155 Cal.App.4th 219, 224-225 [upholding an order requiring a mother to enroll in drug rehabilitation as an inpatient].)
“The juvenile court’s broad discretion to determine what best serves a child’s interests will not be reversed absent a clear abuse of discretion. [Citation.] As our Supreme Court has recently noted, the scope of that discretion is broad: ‘This determination was committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]... [W]e have recently warned: [“‘]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” [Citations.]’ (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)” (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227-1228; see also In re Corrine W. (2009) 45 Cal.4th 522, 532.) Where substantial evidence supports the order, there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
Substantial evidence supports the finding that the restrictions on father’s marijuana use were necessary to remedy conditions that led to the dependency and protect son’s welfare. The dependency court ordered similar restrictions on mother’s drug use. The parents’ drug use was a primary threat to son’s safety and wellbeing. The restrictions aimed to promote successful reunification by limiting the parents’ marijuana use to true medical necessity after all other treatment options were ruled out. We conclude the dependency court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.