Opinion
B326009
12-12-2023
In re AUTUMN S. et al., Persons Coming Under the Juvenile Court Law. v. ASHLEY A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from findings and order of the Superior Court of Los Angeles County No. 22CCJP03328A-D, Stephen Marpet, Juvenile Court Referee. Affirmed in part, remanded in part.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
Ashley A. (Mother) appeals the dispositional order as to her four minor children. Mother argues that the condition that she undergo drug testing and complete a 12-step alcohol program with a sponsor in order to reunify with her children is unsupported by the evidence.
We find Mother waived her objections to the drug testing requirement. However, both parties agree the written order requiring completion of a 12-step alcohol program with a sponsor conflicts the juvenile court's oral pronouncement of Mother's obligations under the dispositional order. We agree as well. Accordingly, we remand the order as to alcohol treatment to the juvenile court so that it can be amended to conform to the court's oral pronouncement at disposition.
FACTUAL AND PROCERAL BACKGROUND
Mother had four children ranging in age from 11 years old to two years old at the time of these proceedings. The three older children have the same father. The youngest child's father is K.L. who was in a six-year relationship with Mother.
On October 6, 2022, the Los Angeles Department of Children and Family Services (the Department) filed a first amended petition under Welfare &Institutions Code section 300. It alleged Mother physically abused the two older children; K.L. sexually abused the oldest child whom Mother failed to protect; and Mother and K.L. created a dangerous home environment by leaving drug paraphernalia within reach of the children, leaving the children unattended and unsupervised, and abusing marijuana, rendering them incapable of caring for the children. During the proceedings, the three older children were placed with their father. The youngest was placed with the maternal grandmother. Mother and K.L. were granted monitored visitation. At adjudication, the juvenile court struck the allegations that Mother and K.L. abused marijuana, left drug paraphernalia within reach of the children, and sexually abused and failed to protect the oldest child. The court sustained the balance of the allegations.
Undesignated statutory references are to the Welfare and Institutions Code.
At disposition Mother objected to the Department's recommendation that she participate in a 90-day substance abuse treatment program. The court noted it was not ordering an alcohol program for mother, but requiring her to participate in random weekly drug testing for 90 days. With that clarified, Mother then submitted on the drug testing condition. The juvenile court removed the three older children from mother's custody, terminated jurisdiction, and granted Mother and Father legal custody of the children, with Father having sole physical custody. The court ordered monitored visitation for Mother and ordered her to complete "drug and alcohol test for the next 90 days with no unexcused missed or dirty tests. The marijuana needs to go down and out. If it doesn't at the end of 90 days go down and out, she needs to enroll in a six month drug program with weekly random drug and alcohol testing, a 12 step program with a sponsor." The custody exit order for the three older children indicates "12 Step program and Sponsor. Random drug testing for 90 days to have the marijuana levels down."
Mother filed a timely notice of appeal.
DISCUSSION
A. Mother Forfeited Her Challenge to the Exit Order.
1. Standard of Review
The juvenile court has broad discretion when making custody and visitation exit orders and such orders will not be reversed on appeal absent an abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.)
A juvenile court may order counseling or other programs as part of an exit order. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 ["juvenile courts may require participation in counseling and other programs in an exit order"].) The exit order may be modified if the family court "finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child." (§ 302, subd. (d).)
In reviewing a challenge to the sufficiency of the evidence supporting dispositional orders, we "consider the entire record to determine whether substantial evidence supports the juvenile court's findings." (In re T.V. (2013) 217 Cal.App.4th 126, 133; accord, In re I.J. (2013) 56 Cal.4th 766, 773.) "Substantial evidence is evidence that is 'reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
In making our determination, 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 I.J., supra, 56 Cal.4th at p. 773; see In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) We uphold the juvenile court's findings unless they are"' "so lacking in evidentiary support as to render them unreasonable."' " (Jamieson v. City Council of the City of Carpinteria (2012) 204 Cal.App.4th 755, 763.) "The parent has the burden on appeal of showing there is insufficient evidence to support the juvenile court's order." (In re Isabella F. (2014) 226 Cal.App.4th 128, 138.)
2. Applicable Law
Section 300, subdivision (b) authorizes a juvenile court to exercise dependency jurisdiction over a child if the "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 the child's parent . . . to adequately supervise or protect the child" or the "willful or negligent failure" of the parent "to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left" or by the "willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment." (§ 300, subd. (b)(1).) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843; see In re T.V., supra, 217 Cal.App.4th at p. 133 ["[t]he focus of section 300 is on averting harm to the child"].)
3. Analysis
Relying on the recent legalization of marijuana use and the juvenile court's dismissal of the allegation that marijuana abuse placed her children at risk of harm, Mother argues that substantial evidence does not support the order that she "completely eliminate marijuana" from her system.
A challenge to the drug testing requirement on appeal requires an objection in the trial court. (In re T.G. (2015) 242 Cal.App.4th 976, 984.) We find Mother has forfeited this issue by failing to object to the drug testing condition at the dispositional hearing. When she initially objected to having to attend a drug treatment program, the juvenile court clarified that it was only ordering drug testing, not a program. At that point Mother's counsel stated, "Okay, your honor. I will submit on that." The court further explained that it was ordering drug testing only to show that the level of marijuana in her system was decreasing. Although Mother then raised an issue about the parenting program condition, she did not say anything further objecting to the drug testing requirement. She has forfeited her challenge to the issue.
In any event the evidence supported the drug testing requirement. The evidence before the juvenile court established that the three older children were aware of their Mother and K.L.'s admitted daily use of marijuana in the garage or outside. The drug was accessible to the children and the seven-year-old child nearly ate it on one occasion. Although the juvenile court struck the allegation of "substance abuse," it sustained the allegation that the children were left unsupervised and unattended. This occurred daily when Mother and K.L. were in the garage or outside smoking marijuana. Leaving pre-teens and a two-year-old child unattended, with the toddler supervised by siblings not much older than she, created a dangerous situation. The juvenile court's plan to drug test Mother in order to reduce the level of marijuana in her system was aimed at resolving the danger created by inadequate supervision, particularly of the two year old. The family court is free to modify this condition in the custody exit order if it finds a significant change of circumstances such that modification is in the children's best interest. (In re D.B. (2020) 48 Cal.App.5th 613, 627.)
B. The Written Order Compelling An Alcohol Program Must Be Conformed with the Court's Oral Pronouncement.
The written order requiring Mother to participate in a 12-step alcohol program with a sponsor, however, presents a problem. It is contrary to the juvenile court's oral pronouncement of the terms of the disposition, which specifically rejected an alcohol treatment program. The oral pronouncement controls. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1259-1260, fn. 9.) Because of the conflict, the written order requiring Mother to participate in an alcohol treatment program is remanded to the trial court to be conformed to the court's oral pronouncement.
DISPOSITION
The order for drug testing is affirmed. The order to participate in an alcohol treatment program is remanded to be conformed to the juvenile court's oral pronouncement of disposition.
We concur: GRIMES, J., VIRAMONTES, J.