Opinion
F083060
03-15-2022
In re COLIN O., a Person Coming Under the Juvenile Court Law. v. C.O., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Teri Yin, under appointment by the Court of Appeal, for Defendant and Appellant. Margo Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County. No. JD141876-00 Marcos R. Camacho, Judge.
Teri Yin, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, ACTING P. J.
Appellant, C.O. (Father) is the father of the now one-year old child Colin O. (the child), who is the subject of a dependency case. Father challenges the juvenile court's orders issued at a combined jurisdiction and disposition hearing that resulted in the removal of the child from Father and the child's mother, G.W. (Mother). Father contends the juvenile court's jurisdictional findings, made as to him, are not supported by substantial evidence. Father also asserts that the juvenile court abused its discretion when it required him to participate in substance abuse counseling. We reject Father's contentions and affirm the judgment of the juvenile court.
FACTS
Initial Removal
On March 3, 2021, the Kern County Department of Human Services (Department) received a suspected child abuse report that the child was having seizures after testing positive for methamphetamine upon admission to a local hospital. The investigating social worker responded to the hospital and met with a senior deputy from the Kern County Sheriff's Department. The deputy informed the social worker that Mother had no explanation for the child's positive test for methamphetamine, and Mother attempted to leave the hospital when she was informed about the positive test. The deputy obtained a protective custody order, and he informed the social worker that the child would be placed into protective custody upon discharge.
The social worker then contacted Mother, who immediately burst into tears. Mother stated she and Father lived in a bedroom at the home of another family. Mother noticed the child was fussier and "had burps" when she was at the store earlier in the day. Mother called 911 when she saw the child's eyes crossing. At first, Mother stated she last used methamphetamine two days prior while the child was with an aunt. Mother denied using around the child and claimed Father did not know about her methamphetamine use. Mother stated Father did not use drugs and served five years in prison for drug sales.
Mother was unable to explain to the social worker how the child tested positive for methamphetamine, and she repeatedly expressed her willingness to enter a substance abuse program. Mother admitted that she would test positive for methamphetamine when asked to voluntarily drug test. Mother's last drug use was then claimed to have been a week prior, but she claimed no drug use for six months prior to that date. The first time Mother used methamphetamine was at 15 years of age.
The social worker observed the child to be fussy while connected to a machine for monitoring in the pediatric intensive care unit. The child was receiving Ativan, and he was about to begin another sedative called Precedex. Mother left the hospital to allow Father to visit the child.
Father informed the social worker that he "signed over rights today" for the child because he wanted to make sure his son was taken care of should anything happen to himself. Father stated he did not know how the baby tested positive for methamphetamine, and the only other person to care for the child in the last three days was an aunt. In a discussion about methamphetamine use with the social worker, Father indicated he was "clean" for 12 months and no longer on probation.
Father claimed he received a phone call from Mother while he was running errands and Mother was at the store with the child. Mother told Father that the child would not stop crying, so they decided that 911 should be called. Father agreed to drug test, and Mother refused because she acknowledged that she would return a positive result.
On March 4, 2021, another social worker was assigned to the referral for further investigation. The social worker made contact with a supervising nurse at the hospital who explained that the child was inconsolable and thrashing around at night. The supervising nurse provided the positive toxicology results and allowed the social worker to observe the child sleeping in his hospital room.
The social worker interviewed Mother when she arrived at the hospital for a visit with the child. Mother denied knowing how the child ingested amphetamines, and she reported last using methamphetamines the previous week at a friend's house. When Mother was asked why she used methamphetamine, she stated, "things are complicated with the father of the child," and she was stressed out. Mother claimed to not know when she used prior to the previous week, and she denied being a drug user. Mother confirmed she was no longer living with Father, and she was currently staying with her grandmother. Mother did not know where Father was, and she was about to enter a "Mommy and Me" program.
Mother indicated that she left the child with her aunt on Monday around 5:00 p.m. while Mother and Father went to dinner. After the parents picked the child up from her aunt's home on Monday around 7:00 p.m., Mother fed and changed the child before they all went to sleep. On Tuesday morning, Mother and the child went to a store, which is when the child became fussy. Mother returned home with the child to see Father, and they decided to call 911 when the child's eyes began to cross. Mother denied any knowledge of drug use by the aunt, and Mother did not breastfeed the child due to nightly marijuana use.
The social worker located a previous referral for general neglect at the time of the child's birth in November 2020. Mother had tested positive for THC and admitted to daily use in order to increase her appetite. Mother was not breastfeeding, and she was found to be appropriate with the child. The referral was evaluated out without indicating whether the child tested positive for drugs.
On March 5, 2021, the Department filed an original petition alleging the child was described by Welfare and Institutions Code section 300, subdivision (b)(1). The petition alleged that Father failed to adequately protect the child from Mother's ongoing substance abuse, and it also alleged that Mother's substance abuse placed the child at risk given the child's exposure to amphetamines. The Department also filed a detention report, which set forth the above events surrounding removal.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
At a detention hearing held March 9, 2021, the juvenile court ordered that the child be detained from Mother and Father's custody, supervised visitation occur twice per week for both parents, and a jurisdiction and disposition hearing be set for April 26, 2021.
Jurisdiction and Disposition
The Department prepared a jurisdiction report, disposition report, and two supplemental reports in advance of the combined jurisdiction and disposition hearing. The jurisdiction report detailed a conversation between Father and a Department social worker where he denied any failure to protect the child. Father had been in a relationship with Mother for three years, and he denied having knowledge of methamphetamine use by Mother during that time.
Father acknowledged an awareness of Mother's use of methamphetamine as a teenager and her nightly use of marijuana prior to the child's removal. Father admitted using marijuana a few weeks prior, but he denied nightly use of marijuana and any use of alcohol. Father used methamphetamine on and off from the age of 14 until the prior year when he was released from incarceration. Father credited his most recent incarceration as helping him stop abusing substances. Substance abuse counseling and random drug testing were both a part of a voluntary case plan to which Father agreed.
Mother's criminal history included three separate misdemeanor drug convictions from 2015 through 2017. Father was a registered narcotics offender since 2005, had a felony drug sales conviction from 2014, and had a jury trial scheduled for various felony charges related to a burglary.
Attached to the jurisdiction report was a police report prepared by a deputy from the Kern County Sheriff's Department. The deputy's report indicated that hospital staff could not explain how the child ingested methamphetamine because he was not yet crawling and could not have picked up the substance to consume it. Hospital staff explained that the child had either been laying on methamphetamine and absorbed it through skin contact or one of the parents had placed methamphetamine into his mouth. The deputy noted he was familiar with Mother as she was a known drug user, and she used methamphetamine on a regular basis during his last contact with her in November of 2020. Mother originally told the deputy that she had not used methamphetamine in "awhile", but she later told him that she used approximately one week prior at her friend's house.
The deputy eventually went to the address provided by Mother and Father, and he spoke with the individuals who owned the home where Mother and Father lived. One of the homeowners claimed Mother and the child had not been at the home for the last three days, and they stated that Mother went back and forth between their home and another. The homeowner believed Mother was currently using methamphetamine, and they indicated Father was a "heavy drug user."
A mediation was held on April 19, 2021, where Mother and Father indicated they would contest the allegations in the petition. In the Department's report on disposition, dated April 21, 2021, Mother and Father were described as married with one child. Mother and Father were participating in supervised visits with the child for two hours at a time, and they were affectionate and engaged appropriately with the child. Father was described as being minimally cooperative because he had not reported any participation in his case plan. The Department recommended Father participate in parenting/child neglect and substance abuse counseling and monthly random drug testing.
The initial hearing on jurisdiction and disposition was continued for further investigation by the Department, and both parents requested a contested hearing. The first supplemental report, dated May 20, 2021, detailed Mother and Father's claim that the child's positive amphetamine test was a result of medication administered by the hospital staff. Mother reported to the social worker that she came to this conclusion after searching the internet. A toxicologist informed the social worker that none of the medications administered to the child at the hospital would cause a positive amphetamine test. Medical records attached to the supplemental report noted the child's seizure activity as amphetamine induced, and the child's positive test result was consistent with the use of a drug containing amphetamine.
In the second supplemental report, dated May 24, 2021, the child's treating physician reported the child received no medication prior to having a sample taken for toxicology testing. The doctor also confirmed that the medication Mother and Father blamed for the positive methamphetamine test, Ativan, was a benzodiazepine as opposed to amphetamine. It was also noted that none of the medication administered to the child during his hospitalization would have resulted in a positive amphetamine test.
On May 24, 2021, the juvenile court conducted the jurisdictional portion of the hearing with Mother and Father both submitting the matter with signed waivers of rights. Father reviewed the waiver of rights form with his counsel, and the juvenile court found both parents made knowing, intelligent, and voluntary waivers of their rights as to jurisdiction. The juvenile court found the allegations of the original petition true and proceeded to the disposition portion of the hearing.
The juvenile court asked counsel for the parties how they would like to proceed as to disposition, and Father's counsel responded by only stating, "Submit." The juvenile court removed the child from Mother and Father's custody and ordered reunification services to be provided to both Mother and Father. Father was ordered to participate in counseling for parent-child neglect and substance abuse and random drug testing on a monthly basis. Father filed a timely notice of appeal on July 19, 2021.
DISCUSSION
I. Jurisdiction
Father contends one of the jurisdictional findings lacked substantial evidence because there was no evidence that he knew or should have known that Mother was using methamphetamine. In response, the Department argues Father forfeited his right to challenge the jurisdictional findings on appeal by failing to object below, and it further asserts that his jurisdictional challenge is not justiciable. We agree that Father's challenge to the jurisdictional findings is both forfeited and nonjusticiable, and it also fails on the merits notwithstanding those issues.
A. Forfeiture
"As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. [Citation.]" (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412; In re S.B. (2004) 32 Cal.4th 1287, 1293 ["[d]ependency matters are not exempt from this rule"].) "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.]" (In re S.B., at p. 1293.) Any other rule would" '" 'permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware ….'" '" (In re Riva M., at pp. 411-412.) Although the terms "forfeiture" and "waiver" are often used interchangeably, it is more accurate to use the term "forfeiture" when referring to" 'the loss of the right to raise an issue on appeal due to the failure to pursue it in the trial court.' [Citation.]" (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912.)
In dependency proceedings, a parent may elect to "submit the jurisdictional determination to the court based on the information provided to the court and waive further jurisdictional hearing." (Cal. Rules of Court, rule 5.682(e).) By submitting on a report, the parent agrees to the court's consideration of the report as the only evidence in the matter. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1238.) "In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. [Citation.]" (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) Therefore, where the parent submits the matter on the social worker's report, the parent preserves the right to challenge the evidence as insufficient to support a jurisdictional finding. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565-566.)
However, this court has held that a parent waives his or her right to challenge a juvenile court's order when the parent submits the matter on the social worker's recommendation without introducing any evidence or offering any argument. (In re Richard K., supra, 25 Cal.App.4th at p. 589.) Such conduct amounts to "acquiescence in or yielding to the social worker's recommended findings and orders, as distinguished from mere submission on the report itself. This is considerably more than permitting the court to decide an issue on a limited and uncontested record .… The [parent's] submittal on the recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders." (Id. at p. 589, fn. omitted.)
The record shows that, when the trial court asked all counsel how they would like to proceed, Father's counsel stated, "I'll be submitting, your Honor. I have submitted a waiver as well." Father's counsel did not limit his submission in any way. The original jurisdiction report, referenced at the hearing by county counsel, detailed the Department's recommendation that the allegations of the petition be found true. Father presented no evidence to rebut the allegations of the petition and offered no argument regarding jurisdictional issues.
Given these circumstances, Father's position as to jurisdiction could only be characterized as yielding to the Department's recommendation once the matter was submitted without argument, additional evidence, or any other objection. Therefore, Father's acquiescence to the Department's recommendation constitutes a waiver of his right to challenge the sufficiency of the evidence to support the jurisdictional findings.
B. Justiciability
"It is a fundamental principle of appellate practice that an appeal will not be entertained unless it presents a justiciable issue. [Citation.]" (In re I.A. (2011) 201 Cal.App.4th 1484, 1489.) Pursuant to this doctrine of justiciability,"' "[a] judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition.… [A]s a general rule it is not within the function of the court to act upon or decide a moot question or speculative, theoretical or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition.…"' [Citation.] An important requirement for justiciability is the availability of 'effective' relief - that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (Id. at p. 1490.)
" 'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.]" (In re I.J. (2013) 56 Cal.4th 766, 773, quoting In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
In this case, Father does not challenge the allegations concerning Mother, which alone justifies dependency jurisdiction over the child. Accordingly, we need not consider the sufficiency of the evidence to support the juvenile court's jurisdictional findings that are specifically adverse to Father. (In re I.A., supra, 201 Cal.App.4th at p. 1492 ["For jurisdictional purposes, it is irrelevant which parent created [the] circumstances" triggering jurisdiction].)
Father acknowledges the precedent leading to the conclusion that his claim is not justiciable but offers reasons why we should nevertheless exercise our discretion to review the jurisdictional findings. (See I.A., supra, 201 Cal.App.4th at p. 1493 [a reviewing court has the discretion to consider the adequacy of additional jurisdictional grounds if it so desires].) Neither Father nor the record suggest any "far-reaching implications" of the section 300, subdivision (b) allegations justifying our discretionary review of that issue. (In re Drake M. (2012) 211 Cal.App.4th 754, 763.) We decline to exercise our discretion to review the jurisdictional findings where Father has failed to establish actual or threatened prejudice from the jurisdictional finding.
C. Jurisdictional Findings as to Father
Notwithstanding the forfeiture and justiciability issues, were we to consider the merits of Father's jurisdictional challenge, we would hold that substantial evidence supported the juvenile court's jurisdictional findings as to Father.
Section 300, subdivision (b), creates juvenile court jurisdiction where it is shown that a "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent … to adequately supervise or protect the child, … or by the willful or negligent failure of the child's parent … to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, … or by the inability of the parent … to provide regular care for the child due to the parent's … substance abuse."
The Legislature has recognized that, in general, substance abuse has a negative effect on the home environment and the safety of children living in that environment. (§ 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."].) A parent's drug-centered lifestyle can be found, in and of itself, to expose a child to substantial risks - the risk that the child's physical and emotional well-being will be seriously compromised and the risk that the child will ingest drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814, 825-826.) Using drugs while responsible for a child's welfare and leaving drugs within a child's reach simply are not "parental acts." (In re Leticia S. (2001) 92 Cal.App.4th 378, 382.)
Jurisdiction on the ground that one parent willfully or negligently failed to protect the child from another parent requires a showing that the parent knew or had reason to know that the other person was engaging in injurious conduct. (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1255.) A court may appropriately consider the parent's past conduct as well as present circumstances. (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
A juvenile court's jurisdictional findings are reviewed using the substantial evidence standard of review, where we determine whether evidence of reasonable, credible and solid value supports the juvenile court's findings. We do not reweigh the evidence, nor do we consider matters of credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)" '[W]e must uphold the [trial] court's [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.]'" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
Father suggests there was insufficient evidence that he knew or reasonably should have known of Mother's recent methamphetamine use. He argues that his awareness of Mother's nightly marijuana use and history of methamphetamine use were not sufficient to inform him of a need to take steps to protect the child from any dangers related to methamphetamine use. Father cites to cases of In re Destiny S. (2012) 210 Cal.App.4th 999 and In re J.A. (2020) 47 Cal.App.5th 1036 for the proposition that marijuana use alone is insufficient to establish juvenile court jurisdiction.
The arguments put forth by Father fail to account for the actual allegations that Father failed to protect the child from serious physical harm that occurred as a result of Mother's problem of substance abuse. At the time of the jurisdictional hearing, Father was married to Mother, involved in a relationship with Mother for the past three years, and shared a room with Mother and the child until the child's removal. Although he denied any knowledge of methamphetamine use by Mother during their relationship, he was aware that she used methamphetamine as a teenager.
The juvenile court is not required to accept Father's assertion that he was unaware of possible methamphetamine use by Mother. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043 ["A trier of fact is free to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing so"].) Contrary to Father's assertions, when reviewing a record for substantial evidence, as we are required to do here, we do not reweigh evidence or substitute our judgment for that of the finder of fact. (In re Alexis E., supra, 171 Cal.App.4th at p. 450-451.)
The present record demonstrates that individuals having much less frequent interactions with Mother, as compared to Father, were reported as being aware of Mother's current methamphetamine use. A deputy stated that he was familiar with Mother as a known drug user and that she used methamphetamine on a regular basis just four months earlier. The owner of the home that Mother and Father claimed as their residence believed Mother was currently using methamphetamine, and she claimed Father was a "heavy drug user." Father lived with Mother, and as such, he was in a much better position to discern whether she was using drugs than the deputy and homeowner. We acknowledge that these third party statements do not provide overwhelming evidence that Father was aware of methamphetamine use by Mother, but the juvenile court could reasonably infer that he should have known of such use based on the record before it.
Because the child was only four months old at the time of the jurisdiction hearing, he was a child of" 'tender years'" and Mother's substance abuse constituted prima facie evidence of her inability to provide regular care of him, resulting in a substantial risk of harm. (Christopher R. (2014) 225 Cal.App.4th 1210, 1219.) Despite the risk Mother posed to the child, Father allowed her to live in the same room as the child and, it can be inferred, have unlimited access to him. This was substantial evidence from which the juvenile court could find that Father failed to protect the child.
II. DISPOSITION
Next, Father argues that the matter should be remanded for the juvenile court to consider the option of removing Mother from the home should we reverse the jurisdictional findings as to Father. Given our rejection of Father's arguments regarding jurisdiction, we find any remand for such consideration unnecessary. Father's final contention is that the juvenile court abused its discretion when it ordered Father to participate in substance abuse counseling. We conclude, however, that father forfeited his claim of error by failing to object to the orders for substance abuse counseling, and even if not forfeited, the claim fails on the merits.
A. Legal Principles
The "failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal. [Citations.]" (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) When fashioning a dispositional order, the juvenile court may make "all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) The court also may "direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section." (Id., subd. (d).) A juvenile court acts within its discretion when its orders are reasonably tailored to advance a child's best interests. (In re Natalie A. (2015) 243 Cal.App.4th 178, 187.)
"At disposition, the juvenile court is not limited to the content of the sustained petition when it considers what dispositional orders would be in the best interests of the children. [Citations.] Instead, the court may consider the evidence as a whole." (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) The juvenile court may "formulate disposition orders to address parental deficiencies when necessary to protect and promote the child's welfare, even when that parental conduct did not give rise to the dependency proceedings. [Citation.]" (In re K.T. (2020) 49 Cal.App.5th 20, 25.)
B. Standard of Review
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.]" (In re Corrine W. (2009) 45 Cal.4th 522, 532.) In reviewing an order for abuse of discretion, we" 'must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child. [Citation.]'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
C. Analysis
In this case, Father never objected to the portion of the disposition orders that required Father to comply with substance abuse counseling. In response to the Department's assertion that Father forfeited any complaint regarding substance abuse counseling, Father only states that the order was not supported by substantial evidence, and he has not forfeited the issue. Although we have discretion to excuse forfeiture, this discretion "should be exercised rarely and only in cases presenting an important legal issue. [Citations.]" (In re S.B., supra, 32 Cal.4th at p. 1293.) We find that Father forfeited any claims related to the substance abuse counseling ordered at disposition, and there is no showing that this claim involves an important legal issue or ineffective assistance by trial counsel.
In any event, even if Father had not forfeited the above-referenced claim on appeal, we find Father's claim lacks merit. The juvenile court ordered Father to participate in parenting and neglect counseling, substance abuse counseling, and random drug testing on a monthly basis. Although the juvenile court did not make any jurisdictional findings based on current drug use by Father, the court acted within the bounds of reason when it ordered Father to participate in substance abuse counseling.
Father admitted to on and off methamphetamine use beginning at the age of 14, and he was a registered narcotics offender since 2005 with a felony drug sales conviction. Father's relatively short-term sobriety for the last 12 months was only credited to his most recent incarceration as opposed to actual drug treatment. The child had already been subjected to serious physical harm as a result of exposure to drugs in his home environment at a very young age, and the juvenile court's obligation to protect the child from the negative effects of drug or alcohol use by a parent is reasonably related to the challenged orders.
There is no indication that Father recently completed any similar type of substance abuse counseling such that it would have been duplicative or unnecessary under the circumstances. On this record, the juvenile court reasonably concluded that substance abuse counseling was necessary to eliminate the conditions that led to the child's dependency status. (See § 362, subd. (d).) We find no abuse of discretion.
DISPOSITION
The juvenile court's orders are affirmed.
WE CONCUR: FRANSON, J. DE SANTOS, J.