Opinion
G062757
11-29-2023
In re R.C., a Person Coming Under the Juvenile Court Law. v. J.C., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 22DP1392 Vibhav Mittal, Judge. Affirmed.
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
DELANEY, J.
J.C. (Father) appeals from the juvenile court's dispositional order (Welf. &Inst. Code, § 300 et seq.) requiring him to submit to alcohol and drug testing and complete a 12-step program as part of a family maintenance case plan. He contends the court abused its discretion in ordering these substance abuse services because there was no evidence of current substance abuse by Father. We affirm. Because Father failed to object to the case plan below, he has forfeited this claim on appeal. Even if the issue had not been forfeited, the juvenile court did not abuse its discretion.
All statutory citations are to the Welfare and Institutions Code.
FACTS
We limit our summary of the facts to provide context relevant to the sole disputed issue on appeal: the case plan's substance abuse services imposed on Father.
An.B. (Mother) and Father are married with one child, three-year-old R.C. (Minor). Mother has another child from a prior relationship, six-year-old A.B., who lives with them half-time.
The family came to the attention of the Orange County Social Services Agency (the Agency) following an argument and physical altercation between Mother and Father in September 2022. The children were home, and A.B. witnessed the incident. Mother, while under the influence of alcohol, physically attacked Father in the family home. Father described Mother as "fall over drunk." Mother chased Father, punched him multiple times, and grabbed his shirt. Father suffered a bloody nose and scratches on his neck. According to Mother, she accidentally scratched Father's neck when she was trying to grab his shirt. Mother lacerated her heel when she kicked in and broke a glass pane in a door. Father pushed Mother.
On October 14, 2022, the Agency applied for a protective custody warrant, alleging the parents have an unresolved issue of mutual domestic violence and have had a historical issue with alcohol abuse. That same day, the juvenile court granted the application, and the children were removed from Mother's custody but were allowed to remain in the care of their respective fathers. As to Father, the juvenile court ordered he not consume drugs or alcohol, protect Minor from abuse and neglect, and call 911 if Mother were to come to the home.
Days later, the Agency filed a section 300 petition on behalf of both children, alleging a failure to protect them (§ 300, subd. (b)(1)), and a detention report. The petition alleged Mother and Father have an unresolved issue of mutual ongoing domestic violence. Father was arrested in 2020 and 2021 for inflicting corporal injury on Mother. In 2021, Father was convicted of spousal battery for the 2020 incident. A stillactive three-year peaceful contact criminal protective order was issued protecting Mother against Father.
The petition recounted Mother's substance abuse problem with alcohol, her history of temporary sobriety and relapses, and her 2018 arrest and conviction for driving under the influence of alcohol. The petition also alleged Father has a history of substance abuse. In 2006, Father was involved in a hit-and-run causing property damage and pleaded guilty to driving under the influence of alcohol. In 2009, Father pleaded guilty to public intoxication. In 2011, Father pleaded guilty to the unauthorized possession of a hypodermic needle or syringe. In 2012, Father pleaded guilty to driving under the influence of morphine. Father reported being sober since June 2022 and stated he has been attending Alcoholics Anonymous services.
According to a 2023 e-mail from Father's sponsor, Father contacted the sponsor on June 10, 2022, "in an effort to get sober from alcohol and repair the strain his alcoholism caused his family."
According to the detention report, on October 13, Father reported to a social worker that "during the last incident of domestic violence, he 'never got sober' during that time but didn't think as seriously about that incident, as he does now." The report stated that given the parents' history of domestic violence and substance abuse, the Agency was worried about neglect and physical or emotional harm to the children "due to the pattern of domestic violence and the role alcohol or substances may play in exacerbating the issue of conflict in the home." It recommended the children continue to be detained from Mother and they remain in the care of their respective fathers under certain protective orders. The Agency recommended several protective orders, including that Father not use drugs or alcohol while caring for his child, that he participate in random drug testing, and that the parents submit to random urine testing with observed specimen collection, drug patch testing, or SCRAM testing, among other things.
"SCRAM" refers to a "system which monitors alcohol consumption transdermally and immediately sends a report to the court should defendant consume any alcohol." (People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456, 459.)
At the detention hearing on October 19, the juvenile court found prima facie evidence Minor was described by section 300 and ordered Minor to remain in Father's care conditioned upon him following the Agency's recommended protective orders. Father did not object to the protective orders.
From the detention hearing to the disposition hearing on May 8, 2023, the Agency submitted a jurisdiction/disposition report and six addendum reports.
According to Father, he had a "couple years" in which he struggled with morphine and prescription medication substance use, but he has been sober from morphine for about 10 years and sober from alcohol since June 2022. Father "explained he recognized he has the 'propensity' for alcohol and substance struggles as well as observing the 'turmoil' alcohol use brings to many lives." He expressed willingness to drug test and reported he has a sponsor and is maintaining his sobriety.
On November 21, Father participated in developing his case plan. The case plan provided for the following substance abuse services for Father: a participation in a 12-step program, submission to drug testing via Patch, and alcohol testing via the SCRAM device. By that time, Father had drug tested six times, with five tests having negative results and the sixth test, as of November 21, still in progress.
Father was scheduled to test seven more times in December 2022 and January 2023: December 21 (returning a negative result), December 27 (no show, which Father reported), January 3 (negative result), January 7 (no show), January 10 (negative result), January 12 (negative result), and January 13 (no show, which Father reported).
On January 19, 2023, the social worker inquired about the missed January 7 test. Father explained he had a busy schedule, forgot to call, and did not mean to miss the test. He offered to test, and did test, that same day. Given his busy schedule and at the suggestion of the social worker, Father agreed to apply a drug patch.
On March 24, the drug patch facility notified the Agency that when Father reported for patch replacement, Father had no patch on his skin. Father denied scratching off or removing the patch himself. He stated he was trying on shirts earlier that day and the patch may have stayed stuck on one of them.
At the jurisdiction hearing on April 4, the juvenile court ordered the petition amended by interlineation, as reflected in the attachment to proposed orders and findings. As to the substance abuse allegations against Father, the petition struck out the language that the abuse "may be an unresolved problem" and that he reported that "during the last incident of domestic violence, he 'never got sober' during that time but didn't think as seriously about that incident, as he does now." Father and Mother pleaded no contest to the amended petition, and the court sustained the amended petition, bringing the children within the provisions of section 300, subdivision (b)(1) (failure to protect).
According to the sixth addendum report, prepared for the May 8 hearing, Father drug tested four times from April 1 to May 8 (all negative results), "no showed" twice, and complied with on demand tests the following business days (also negative). As of the date of the report, Father's drug patch results had not been received.
Although the addendum report for the May 8, 2023, hearing is numbered as the fifth report, it is in fact the sixth addendum report. There were two addendum reports identified as number 3.
In assessing the relationship between Mother and Father, the Agency noted in the sixth report that the couple "have continued to struggle with healthy communication and escalating negative behavior" and "continue to demonstrate elements of domestic violence and struggles to communicate in a healthy manner." The Agency believed it was in the children's best interests to remain dependents of the court while in their parents' care, but that Mother and Father should continue to reside separately due to their "lack of insight related to their domestic violence relationship, escalating verbal arguments, and unhealthy communication which are the same patterns of behavior which led to the domestic violence incident that led to the children's detention." The Agency's recommendation included the same case plan, which included the same substance abuse services for Father.
At the disposition hearing on May 8, the court received into evidence all of the Agency's reports and addendum reports, ordered the children dependents of the court with custody to remain with the parents, and adopted the Agency's recommendations and approved the case plan with one change: The Agency is to submit an ex parte in 60 days with a status of Mother's and Father's substance testing, and the Agency is to make a recommendation whether continued testing is recommended.
When the court asked if counsel wanted to put anything on the record, Father's counsel stated that Father objected to the order he not have contact with Mother in Minor's presence except for certain events. Counsel stated Father would like to spend time together with both of them. The court declined to change the orders, finding them to be necessary and appropriate, but advised the parents that they could come back to court to request a modification upon a showing of changed circumstances.
DISCUSSION
Father argues the juvenile court abused its discretion in ordering him to participate in substance abuse services because the court failed to thoroughly read the proposed case plan and there was no evidence of current substance abuse. The Agency contends Father forfeited this challenge by failing to object to the order in the juvenile court. We agree with the Agency that the claim has been forfeited.
The "failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345; In re S.B. (2004) 32 Cal.4th 1287, 1293 &fn. 2.) "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." (In re S.B., at p. 1293.) Although a reviewing court has the discretion to excuse such forfeiture, it should exercise the discretion "rarely and only in cases presenting an important legal issue." (Ibid.)
Here, Father never objected to the portion of the disposition order requiring him to participate in substance abuse services. Father acknowledges no objection was made. Accordingly, Father forfeited his challenge to that order on appeal. We decline to exercise our discretion to excuse the forfeiture because there is no showing this claim involves an important legal issue. (In re S.B., supra, 32 Cal.4th at p. 1293.) The claim instead presents an issue of the juvenile court's discretionary exercise of its established statutory authority under section 362.
In any event, assuming the issue had not been forfeited, we could not conclude on this record that the juvenile court abused its discretion in ordering substance abuse services for Father. When "a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) In fashioning the dispositional order, the juvenile court "has broad discretion to determine what would best serve and protect the child's interest." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) "[T]he 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; see § 362, subd. (d).) "The case plan ordered by the court should be appropriate for each individual family based on facts relevant to that family." (In re Daniel B. (2014) 231 Cal.App.4th 663, 673.) The juvenile court's discretion, however, "is not unfettered. Its orders must be 'reasonable' and 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.'" (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) A reviewing court may not reverse the juvenile court's determination "'absent a clear abuse of discretion.'" (In re Corrine W. (2009) 45 Cal.4th 522, 532.)
First, we reject Father's contention that the court abused its discretion because it failed to state on the record that it had read and considered the Agency's reports, as required by California Rules of Court, rule 5.690. That rule provides that "[i]n the order of disposition, the court must state that the social study . . ., if any, have been read and considered by the court." (Cal. Rules of Court, rule 5.690(b).) The minute order on the disposition hearing states the court "read, considered, and accepted into evidence" all of the Agency's reports. Father cites no authority that the trial court must state these words orally on the record, as opposed to in the order itself.
Second, there was evidence to support the order that Father participate in substance abuse services. Father has an admitted "'propensity' for alcohol and substance struggles." Although Father reported being sober for almost a year (June 2022 to May 8, 2023 hearing), he missed one test on January 7, and on March 24 he lost his drug patch, which was worn for seven days, and thus could not be tested for that week. "[A] missed drug test, without adequate justification, is 'properly considered the equivalent of a positive test result.'" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.) Under these circumstances, we cannot say that the order of substance abuse services was an abuse of discretion.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: O'LEARY, P. J., BEDSWORTH, J.