Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Fresno County. Jane A. Cardoza, Judge, Super. Ct. Nos. 08CEJ30016-1 & 08CEJ30016-2
Patrick M. Keene, under appointment by the Court of Appeal, for Defendant and Appellant.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
A.G. (father) appeals the juvenile court’s order requiring him to attend a parenting class, submit to random drug testing and complete a second substance abuse assessment as part of the reunification plan for his 13- and 11-year-old daughters (the girls). Father claims the juvenile court lacked discretion to order these services as a part of his reunification plan because there is no evidence of his inability to adequately protect, provide for, or parent the girls and the assessor who conducted a substance abuse assessment determined he did not need treatment. As we shall explain, we find the juvenile court did not abuse its discretion in ordering these services and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On January 15, 2008, the Fresno County Department of Children and Family Services (the Department) filed a dependency petition on behalf of the girls and their sibling, a baby boy (collectively the children), after the children’s mother, who had physical custody of them, tested positive for methamphetamine at the baby’s birth and drug paraphernalia was found in mother’s home. The petition alleged mother had placed the children at substantial risk of physical harm due to her ongoing abuse of methamphetamine and exposure of the children to domestic violence between her live-in boyfriend and herself. There were no allegations involving father. When the petition was filed, the girls were staying with their maternal grandparents, with whom they were ultimately placed along with the baby. The juvenile court subsequently found the petition’s allegations true after mother submitted on the report.
Eventually the live-in boyfriend was found to be the baby’s presumed father. Neither mother, the live-in boyfriend, nor the baby are subjects of this appeal.
Before the petition was filed, father told a social worker that he wanted the girls to remain with their maternal grandparents, he was renting a room from a friend and he did not have an address. Father also stated that he and mother had been married since 1994, but they had been separated for the past two years. Father claimed he had been providing for the girls. According to mother, father had been visiting the girls twice a week for twenty minutes.
At the dispositional hearing, the Department recommended the girls be adjudged dependents, and mother and father be ordered to participate in family reunification services. The Department recommended that father participate in the following services: a parenting class, a mental health assessment and any recommended treatment, a substance abuse evaluation and any recommended treatment, random drug testing and a domestic violence assessment and any recommended treatment.
The report prepared for the hearing detailed the family’s prior child welfare history. As pertinent here, in May 2000, the Department received a referral alleging emotional abuse of the girls by mother and father, as the parents had a ten-year history of domestic violence, father currently was incarcerated for physically abusing mother, and mother had been trying to have him released from jail. The social worker investigating the referral spoke with mother, who confirmed that father was incarcerated for physically abusing her and would be serving three years in prison because he had violated his parole. Mother, however, claimed father never hit the girls, who were always in their bedroom when she and father argued, and he took good care of the girls. The social worker determined the referral was unfounded.
In June 2006, the Department received a referral alleging mother’s general neglect of the girls. The reporting party claimed mother had been abusing drugs, keeping drug paraphernalia and drugs accessible to the girls, and neglecting them. During the investigation, mother denied using drugs herself, but claimed father used drugs and they had separated many times because of domestic violence and his substance abuse. Mother said father returned to prison after testing positive for drugs while on parole, but recently had been released from custody and wanted to reconcile with her. They had been separated for nine months. According to mother, father had been threatening her and she was afraid of him. The social worker spoke with the girls, who said that they had seen father using drugs in the past, but claimed mother did not use drugs anymore, and they had seen their parents engage in domestic violence. The girls felt better now that father was not living in the home. The social worker determined the referral was unfounded for emotional abuse, but advised mother to obtain a restraining order against father and file for custody of the girls.
In November 2007, the Department received a referral alleging emotional abuse of the girls by their mother as a result of a domestic violence incident between mother and her live-in boyfriend. During an interview with a social worker, the younger daughter said that her mother had behaved strangely after smoking drugs with father in the past.
The report listed father’s criminal history. His warrants, arrests, citations and charges included: (1) corporal injury to a spouse/cohabitant; (2) battery of a non-cohabitant; (3) committing a felony while out on bail; (4) possession of paraphernalia; (5) possession of a controlled substance; (6) transport/sale of a controlled substance; and (7) battery with serious bodily injury. Father’s convictions included: (1) July 2000 — felony infliction of corporal injury on a spouse or cohabitant, resulting in a three year prison term; (2) July 2002 — violation of parole, resulting in a return to prison to finish his term; (3) October 2003 — violation of parole, resulting in a return to prison to finish his term; (4) September 2007 — misdemeanor battery on a spouse or cohabitant, resulting in 36 months probation and 31 days in jail. At the last conviction, the court issued a restraining order preventing father from having any contact with mother until September 2009.
In considering placement of the girls with father as the non-custodial parent, the social worker noted that father has a long history of domestic violence with mother, a history of substance abuse, and a restraining order against him. The social worker also noted that father reportedly had remained involved in the girl’s lives despite being separated from mother, and claimed he was no longer using drugs. The social worker pointed out, however, that father acknowledged he currently is renting a room from a friend and wanted the girls to remain placed with their maternal grandparents at that time. Father stated he would like to reunify with the girls and was willing to participate in any recommended services. The social worker stated father had begun to do so, as he was visiting the girls, who appeared to have a bond with him, but he had not completed all of his services, as he had not enrolled in random drug testing and had not obtained stable housing. For these reasons, the Department did not recommend the girls be placed with father at that time.
On January 23, 2008, father participated in a Domestic Violence Inventory (DVI). During the DVI, he claimed he had never used physical violence unless someone used it on him first. He explained that during one fight with mother, he tried to walk away but after she grabbed his hair he “‘lost it’” and “‘smacked her on the side of her head.’” He claimed his second and third arrests for domestic violence were based on false allegations. Father said his father had physically abused him and had broken his wrist with a crow bar. Father claimed he would never hurt his children after growing up the way he did. The assessor asked father about his drug use and he admitted he used cocaine and marijuana in the past, but claimed he last used marijuana/cocaine two to three years ago. He further stated he rarely drank, but admitted he had consumed a beer three weeks ago. Father denied witnessing alcohol or drug use, or having alcohol or drug related arrests, but stated that one time someone in his car had paraphernalia. Father told the assessor his goal was to get his children back in his home. The assessor reported that father scored in the low-risk range for truthfulness and alcohol and drug use, the medium-risk range for control issues and the problem-risk range for domestic violence and stress coping abilities. Accordingly, the assessor recommended father participate in a 52-week batterer’s treatment program twice a week and complete a substance abuse evaluation.
On January 24, 2008, father participated in an Addiction Severity Index (ASI) at the Department. During the ASI, father, who was 47 years old, stated had had been consuming alcohol to the point of intoxication on a regular basis for 42 years, he drank alcohol to intoxication two of the last 30 days, and last drank beer with dinner a week ago. He claimed, however, that he was not a “big drinker,” and only drank a beer on occasion. Father stated he had smoked marijuana on a regular basis for 31 years, but he had not smoked it in seven years. He also reported experimenting with cocaine several times when he was 22 and using LSD once when he was 21. Father said he had never participated in substance abuse treatment and did not feel he needed it. Father admitted he previously was convicted of domestic violence charges, was currently on probation for domestic violence, and reported spending 36 months of his life in jail or prison. Father said his father had physically abused him when he was a child and claimed mother was physically abusive toward him during their relationship. Father told the assessor that when he attempted to defend himself against mother, the police arrested him. Father denied participating in treatment for psychological or emotional problems. Father indicated he had suffered from serious depression during his lifetime, but claimed he had not experienced psychological problems in the last 30 days and therefore did not need to participate in counseling. The assessor did not identify a current substance abuse problem and therefore did not recommend father participate in substance abuse treatment, although she noted that if new information was provided treatment must be upgraded to best fit father.
At the May 19, 2008, dispositional hearing, father contested the Department’s recommendation that he participate in parenting and random drug testing as part of his reunification plan. The social worker who prepared the report testified she recommended father participate in the parenting program. The social worker explained the Department offers a parenting program if a parent comes within the child welfare system with a history of substance abuse or domestic violence, or mental health issues. The social worker further explained the Department offered a parenting class to father because it believed he lacked the ability to protect and adequately parent his children. The social worker testified the Department recommended random drug testing because father has a substantial history of substance abuse, and although the substance abuse evaluation recommended no substance abuse treatment, father minimized his drug use history and gave conflicting reports of that history during his domestic violence assessment and ASI. The social worker confirmed the Department was asking for a second substance abuse evaluation due to the inconsistent information in the ASI and DVI.
Father testified that he did not agree with the recommendation that he complete a parenting program. When asked if he felt he had adequately provided for his children, father testified that he was out of work for awhile, but “I did my best I could for them.” When asked if he believed he had adequately protected his children, father testified “I believe I have more than enough. I’ve even gone to jail over it.” Father claimed when he and mother argued, she would involve the children and call them into the room. Father believed he had adequately parented his children because his daughters were well mannered “[a]nd to this day she can’t say bad word around me or anything like that. The only discipline those girls had in their life was me. Their mother just lets them do whatever they want. They are — whenever she has problems with them, she cannot understand why she can’t control those kids.” Father did not think he needed a parenting program because he has two grandchildren, has raised kids who “have turned out real well,” and he did not think the girls could turn out better if he had a parenting program. Father also objected to random drug testing because he wasn’t “involved in this.” Father did not want to have anything to do with mother, but he did want to have something to do with his children.
Following argument by the attorneys, the court stated it was “abundantly clear” that a second ASI was warranted based on father’s criminal conduct, his contact with law enforcement, statements by the girls, and the statements he made in the DVI. The court found the girls are persons described by Welfare and Institutions Code section 300, subdivision (b) and removed them from mother’s custody. With respect to father, the court ordered reasonable supervised visits with the girls and ordered him to complete reunification services including parenting classes, a domestic violence evaluation and recommended treatment, a substance abuse evaluation and recommended treatment, a mental health evaluation and any recommended treatment, and random drug testing.
Subsequent statutory references are to the Welfare and Institutions Code.
DISCUSSION
Father contends the juvenile court erred when it ordered him to participate in a parenting class, submit to random drug testing, and undergo a second substance abuse assessment. Specifically, father contends he should not have to take a parenting class because he did not seek immediate custody of the girls and there is no evidence that he was unable to protect the girls, provide adequately for them or adequately parent them. Father further contends (1) a second substance abuse evaluation is not warranted because there is no evidence he withheld from the assessor information concerning his drug history and (2) drug testing is not warranted because the assessor determined he did not need treatment and there is no evidence of current use of drugs. We are not persuaded.
When a child is made a dependent of the juvenile court, one of the primary goals of the juvenile court proceedings is family reunification. (§ 361.5, subd. (a); Cal. Rules of Court, rule 5.695(f)(1).) The reunification plan “‘must be appropriate for each family and be based on the unique facts relating to that family.’” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.) “‘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.)
While a juvenile court’s disposition order must be designed to eliminate the conditions that led to the finding of dependency, it need not be limited to those conditions. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 (Christopher H.).) “[W]hen 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.” (Ibid.) Thus, a juvenile court’s broad discretion to fashion a dispositional order includes the discretion to address any known deficiencies harmful to the well-being of the child, even when those deficiencies are not related to the reasons the child is before the court. (Ibid.) This court cannot reverse a juvenile court’s determination of an appropriate disposition absent a clear abuse of discretion. (In re Corey A. (1991) 227 Cal.App.3d 339, 346.) We must uphold the juvenile court’s finding unless it can be said that no rational fact finder could reach the same conclusion. (In re Athena P. (2002) 103 Cal.App.4th 617, 629.)
Here, although father was a non-offending parent and did not seek immediate custody of the girls, he did wish to reunify with them and told the social worker he was willing to participate in reunification services. The Department agreed to provide him with services, which the court ordered. The issue, then, is whether the services the court ordered were reasonable under the circumstances, i.e. do they address deficiencies that impede father’s ability to reunify with the girls.
Father has an extensive history of domestic violence. In June 2006, the girls reported they had seen their parents engage in domestic violence and their father use drugs. His older daughter stated that she had seen father beat, drag and choke mother in November 2005 and she called 911 on mother’s behalf. The DVI assessor specifically noted that father indicated a propensity for violence as a way to deal with conflict, and blames and justifies his behavior, and recommended he complete a 52-session batterer’s treatment program. Father also has a significant criminal history, reported spending 36 months of his life incarcerated, and was subject to a restraining order. When the petition was filed, father had been separated from mother for two years and had been visiting the girls only twice a week for twenty minutes.
The evidence tends to show that father has spent little time with the girls over the past few years, has engaged in violent behavior, and is in denial about his propensity for violence. From this, the juvenile court reasonably could conclude father had gross deficits in his parenting abilities that would impede his ability to reunify with the girls and that both he and the girls would benefit by him taking a parenting class. This case is readily distinguishable from the one father relies on, In re Jasmin C. (2003) 106 Cal.App.4th 177 (Jasmin C.). In that case, the appellate court concluded the juvenile court abused its discretion by ordering parenting classes for a non-offending, custodial mother who retained custody of her children after the father engaged in an isolated rampage, where there was no evidence of abuse, neglect or other inappropriate behavior by her. (Id. at pp. 181-182.) Unlike the situation in Jasmin C., father has engaged in inappropriate behavior, namely domestic violence and drug use in the girls’ presence. Given this behavior, as well as father’s propensity for violence and his unwillingness to take responsibility for his actions, the juvenile court was justifiably concerned that father’s behavior would interfere with his ability to provide a suitable home for the girls and a parenting class was necessary to address his behavior.
The juvenile court also did not abuse its discretion in ordering a second ASI or random drug testing. There certainly was evidence that father had a substance abuse problem: his arrest history included possession of paraphernalia and a controlled substance, and transporting or selling a controlled substance; the girls reported in July 2006 that they had seen father using drugs in the past and the younger girl stated in December 2007 that her mother had behaved strangely after smoking drugs with father; mother reported in July 2006 that father had been returned to prison after testing positive for drugs and he had a history of substance abuse; during his ASI, father admitted using alcohol to intoxication two of the last 30 days, and that he had smoked marijuana regularly for 31 years, but had not used in seven years; and during his DVI, father admitted using cocaine and marijuana in the past, but claimed he last used them two to three years before.
Moreover, there is evidence that father chronicles his drug use inconsistently. While father stated he had used alcohol to intoxication the past 42 years and had last used it to intoxication two of the 30 days before the ASI, he also claimed he wasn’t “much of a drinker.” He gave inconsistent statements about his alcohol and drug use in the ASI and DVI: (1) in his ASI, father reported last using alcohol a week before, while in his DVI he reported last using alcohol three weeks before; (2) in his ASI, father stated he last smoked marijuana seven years before and experimented with cocaine when he was 22, but in his DVI he said he last used “marijuana/coke” two to three years before; and (3) while father admitted LSD use when he was 21 in his ASI, he did not mention LSD or hallucinogen use during his DVI.
In addition, there are other inconsistencies between father’s ASI and DVI interviews, and other evidence in the record, including (1) statements in his ASI interview that he had not been charged with any crimes during his life (although he admitted being incarcerated for 36 months of his life and convicted of domestic violence) and had not been arrested on charges other than traffic violations, when he had a significant history of arrests, charges and convictions; (2) in his DVI interview, father denied witnessing alcohol and other drug use, but the girls stated they had seen their father using drugs in the past and the younger girl stated her mother behaved strangely after smoking drugs with father; and (3) in his DVI interview, father denied drug related arrests, but his criminal history showed arrests for possession of paraphernalia and a controlled substance, and transport/sale of a controlled substance.
Given father’s history of substance abuse and his inconsistent statements regarding his alcohol and drug use, the juvenile court reasonably could order both that father submit to random drug testing and complete a second ASI. It is apparent that father has had a substance abuse problem that could interfere with his ability to reunify with the girls. While father relies exclusively on the ASI assessor’s determination that he does not need substance abuse treatment as evidence that neither drug testing nor an additional assessment is required, he ignores the inconsistency in his reporting that casts the ASI assessor’s determination in doubt. As the assessor herself stated, her recommendation was subject to change if new information was provided. The juvenile court reasonably concluded that random drug testing and a second ASI were needed to determine whether father indeed had a substance abuse problem that required treatment. (Cf. Christopher H., supra, 50 Cal.App.4th at pp. 1006-1008 [court did not abuse its discretion in ordering random drug testing as part of the reunification plan because the record demonstrated father had a past substance abuse problem that could interfere with his ability to make a home for and care for his infant son].)
In sum, the juvenile court did not abuse its discretion in ordering father to complete a parenting class, submit to random drug testing, or complete a second substance abuse evaluation as part of the reunification plan.
DISPOSITION
The juvenile court’s order is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.