Opinion
E083695
10-16-2024
In re L.R. et al., Persons Coming Under the Juvenile Court Law. v. B.V., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel and David Guardado, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. J299977-82 J299984-87, Steven A. Mapes, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel and David Guardado, Deputy County Counsel for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
Father appeals a juvenile court order requiring him to submit to drug and alcohol treatment and testing, even though it dismissed allegations that the children came under Welfare and Institutions Code section 300, subdivision (b) (unlabeled statutory citations refer to this code) because of his abuse of alcohol. We conclude the juvenile court did not abuse its discretion by determining such services would assist in reunification.
I
FACTS
The children involved in this dependency came to the attention of San Bernardino County Children and Family Services (the department) on February 1, 2024, by way of a referral alleging general neglect and emotional abuse.
The report said mother and father lived in trailers behind another family's house with 11 children, Dulce (age 16), Natalie (age 15), Maria (age 14), Luis (age 13), Alma (age 11), Amanda (age 10), Azul (age 8), Brayan (age 7), Isis (age 6), Hailey (age 5), and Luna (age 2). According to the referral, the children were not attending school, did not have adequate food, and did not bathe adequately because they had no hot water in their home. Mother was not employed, had lost her food stamp aid, and regularly asked for financial assistance from others.
We use the children's ages at the time of the report. All 11 children have had birthdays since then.
The department met with the person who made the referral. The anonymous reporting party said the family had lived for a year in trailers behind another family's house. They said the children were not attending school. Mother and the children had asked for food and sometimes cars would drive into the neighborhood to drop off food. They did not know of any domestic violence or if the parents abused drugs or alcohol but said mother would yell and curse at the children.
The department visited the local elementary school and high school and learned only 10-year-old Amanda had, until recently, been enrolled. There was no record of Amanda's attendance since 2022, and there were no records at all for the other elementary-school-age children. The four older children had not attended school since 2022. Eleven-year-old Alma was enrolled at an elementary school in Hesperia and her guardian was listed as her paternal grandmother. Mother enrolled the other children after learning of the referral.
Department social workers met with 13-year-old Luis at his high school. Luis said his parents punished him by sending him to his room but denied his parents called him names or made degrading comments toward him. He said the family had food at home and they got help from their parent's friends. He said he had not attended school in a while because "we had to move a lot, I don't know why." He said they had been living at their current home for a few months.
When social workers visited the trailers, they learned six of the children slept in one trailer, which had blankets but no beds. The toilet was dirty with urine and feces, and mother reported the family could flush the toilet but could not say how often the tank was emptied. Luis, Isis, Brayan, Hailey, Luna, mother, and father slept in the second trailer. The kitchen sink was full of dirty dishes, and mother said she does not wash dishes in the trailer because the water goes to the tub. The tub was dirty, and mother said the family showers in the other trailer. Several black trash bags were scattered around. Outside they found a refrigerator containing some food.
Mother and father denied any physical abuse. Mother said she disciplined the children by taking away television privileges. Father said he sometimes spanked them. Mother also denied concerns of domestic violence or substance abuse. The children reported the parents sometimes yelled, cursed, pushed, and spanked them.
As for arguments between the parents, father said he and mother talked their problems out, and mother said they tried to "keep their arguments away from the children." Eight-year-old Azul said her parents would argue but never engaged in physical violence. Fifteen-year-old Natalie said any arguments the parents had were kept separate from the rest of the family. However, Hailey said her parents fight and she could recall multiple times when mother and father were pushing and screaming at each other. When that happened, the children would hide until father left the property. Amanda said "sometimes they yell at each other outside a few times and sometimes they will push each other." She said the children would go to their trailer when fights happen and stay there until "they make up."
The children had poor hygiene. Several had lice and poor dental hygiene. Most of the children said they did not shower frequently because they had to use cold water, though Dulce denied taking cold showers because the family has propane to heat the water. The other children reported they had no hot water and for that reason showered once a week or less frequently. Most of the children reported being cold at night.
The children reported different things about father's use of alcohol. Brayan said his father smokes marijuana and drinks beer, though he said he does not act differently when he smokes or drinks. Hailey said "my daddy and mommy drink beer." She said her mother would drink two beers and her father would drink three, though she could not say how frequently. Maria said her father drinks alcohol, but she does not know how much or how often. Amanda said father drinks three beers every day. Azul claimed father "stopped drinking two weeks ago." The older children, Natalie and Dulce, denied alcohol or drug abuse. Father said he occasionally drank alcohol but denied excessive alcohol consumption or any drug use.
The department workers noticed five-year-old Hailey had a scar on her forehead and asked how it happened. Hailey said, "We got in a car crash and my dad was driving and he was drunk and I got hurt." Hailey's brother, seven-year-old Brayan, said she was injured when "dad was driving, he was drinking, got in a car accident and my sister flew off."
On February 12, social workers interviewed father's mother. She reported the 11-year-old child, Alma, "lived with her, [except] the time the mother had an open case in 2013 out of LA County," when the child was placed in foster care. The grandmother and her husband are not biologically related to Alma and are not her legal guardians. However, they had developed a strong connection with the child. Grandmother said she was unaware of how the parents disciplined the other children and did not know of any drug or alcohol abuse or domestic violence in their household. Asked about the car accident, grandmother first responded "what accident?" and when pressed said she was told the accident occurred because the car's tire popped.
The social workers also interviewed Alma. She said she refers to the grandparents as mother and father and calls her mother by her name. She expressed concern and sadness that her siblings didn't have a place to live, didn't shower as often as they should, and had lice. She said mother and father did not abuse the children physically, but did abuse them verbally. She reported that mother and father would get into "somewhat aggressive fights."
Alma said father does consume alcohol and becomes aggressive when he drinks. She recalled a time when mother told grandmother that father threw a rock at her inside the trailer. She also recalled an incident mother reported from September 2023 when father was drunk and hit her. Asked about the car accident, Alma said mother called grandmother the night of the crash, which was in 2021, and reported father had been drinking and driving. Mother said the accident injured Hailey because she was thrown from the vehicle.
The department obtained a detention warrant and took the children into protective custody. On February 14, 2024, the department filed petitions alleging under section 300 subdivision (b) that the mother engaged in domestic violence in the presence of the children (b-1), failed to protect the children from father's drunk driving which resulted in a car accident (b-2), failed to provide a safe and appropriate living environment (b-3), and failed to provide adequate food, shelter, clothing, and education (b-4), all placing the children at risk of abuse and neglect.
The department detained the child Alma from the grandmother's home because there were no custody orders in place to ensure the mother would not attempt to take her back into her own care. However, the record does not contain a petition related to Alma, so the juvenile court's orders only relate to the 10 other children.
The petitions for the youngest six children alleged father engaged in domestic violence in the presence of the children (b-5), has an unresolved substance abuse problem which interferes with his ability to provide adequate care of the children (b-6), failed to provide a safe and appropriate living environment (b-7), and failed to provide adequate food, shelter, clothing, and education (b-8). The juvenile court ordered the children detained, ordered the parents to submit to drug and alcohol testing, and set the matter for a combined jurisdictional and dispositional hearing.
Father is not the biological father of the four older children (Natalie, Dulce, Maria, and Luis). The original petitions for those children did not contain allegations about father, but instead contain an allegation that the whereabouts of their biological fathers are unknown, leaving them with no provisions for support.
The department interviewed mother, who reported father used to drink alcohol but was no longer doing so. She said father sometimes smoked marijuana outside the home. She denied concerns of domestic violence. She said that father was not drunk at the time of the car accident and claimed it happened when a "tire popped."
The department also interviewed father. He denied any domestic violence. He said he was no longer drinking as much as he had previously, but would have a "couple of drink[s]" occasionally. He said he would smoke marijuana outside the home occasionally. He denied having driven the children while intoxicated. He said he had received a charge for driving under the influence, but he was by himself and that was not the time he had an accident with children in the car.
The children were interviewed about father's alcohol use. Dulce said father had stopped drinking recently. She said she was in the car when the accident occurred, and denied knowing father was drinking. Natalie said her parents drink "once in a while," but said she never felt afraid when they were drinking, except one time two years earlier when father "got drunk and broke a window." She said she was in the car when the car accident occurred and denied her father was drinking. Maria said she was in the car for the accident and said her father may have had "one beer" at a Halloween party beforehand but denied he was drunk when the accident occurred. Amanda said she had seen her father have a beer earlier in the day, but said the accident occurred when "the tire popped and there was an animal in the way." Luis said he did not know what alcohol is and said the accident occurred because of a "popped tire." Azul denied seeing her father drinking at the time of the accident. Brayan denied knowing what alcohol is and said he did not know why the accident happened. "[W]e were just driving and it happened." Hailey said her father drank alcohol sometimes but said she was not afraid of him and "he would just get happy." She said "dad was drinking beer" when the accident occurred. Most of the children said no one had told them what to say at the interview, but five-year-old Hailey responded by getting quiet, changing her posture, and saying "Luis," her older brother.
Mother tested negative for all substances. Father reported being unable to test at multiple testing sites because there were no male observers at the site. Father was asked by the social worker to test on February 29, but he said the site would not test him.
The department had received a referral about the car accident, which occurred on October 31, 2021. The referral alleged the children were not in child restraints, which caused Hailey to be thrown from the vehicle. The referral's allegations of physical abuse were determined to be unfounded, but the allegation of general neglect was substantiated. An accident report blamed the accident on a tire blowout and father operating the vehicle in an unsafe manner in response, which resulted in the vehicle crashing into a concrete barrier. The report noted law enforcement could not determine whether the driver was impaired. Father had left the scene by helicopter to accompany Hailey, who needed medical attention. The department confirmed father had been arrested for driving under the influence on a different occasion in April 2020.
The department recommended the juvenile court find the allegations about father's alcohol or substance abuse and allegations about the parents' domestic violence not true. They concluded "[t]here is not sufficient evidence to find [the] allegations true as it relates to the car accident, [father] having a substance abuse problem and [mother] failing to protect the children." The department recommended finding the remaining allegations true, removing the children from parental custody, and offering reunification services. The recommended reunification plan for father included general counseling, parenting education, and family therapy, but it did not include a substance abuse or treatment element.
At the continued jurisdictional/dispositional hearing, minor's counsel requested father's case plan include components of outpatient substance abuse treatment and random testing to ensure there were no issues related to alcohol abuse. Father's counsel and mother's counsel objected to the request. They argued the children's recent statements about father's conduct together with the police report from the accident establish there is no nexus between any alleged substance abuse problems and the problems that gave rise to the dependency-that there has "been no indication by Minors' attorney that any sort of substance use by the father has caused the conditions in the home."
Minor's counsel responded, "I'll just specifically point out the areas of why I made such a request. [¶] . . . there was one incident where . . . the father, got drunk and broke a window. That's in quotations. Plus, Father's previous mention of a DUI is also included in his criminal history .... I believe that combined with the small indications from the minors that there is marijuana also being used, and alcohol seems to be, at least, one factor to be weeded out in terms of safety."
The juvenile court followed the department's recommendation to dismiss the allegations that substance abuse and domestic violence were grounds for removal and found true amended allegations regarding the parents' failure to provide adequately for the children. However, the court agreed with minor's counsel and included a requirement of 10 random tests and outpatient services in father's case plan due to concerns that alcohol and marijuana use raised safety concerns for the children. The court noted a party need not be drunk to be liable or even criminally responsible for mistakes that occur when acting under the influence of alcohol or drugs and concluded that "leads me to believe there's a nexus between substance abuse and why we're here today." The court said if all 10 tests were completed without issue, the tests would change to being on-demand. The court ordered the children removed and ordered reunification services for the parents.
II
ANALYSIS
Father appeals the order requiring drug tests and outpatient services. He argues the court's decision to impose testing as part of his case plan was an abuse of discretion because the department and the court had concluded the allegations that father's substance abuse endangered the children were unsupported by the evidence.
"With some limited exceptions not relevant here, section 361.5 requires the juvenile court to order child welfare services for both parent and child when a minor is removed from parental custody. Unless an exception applies, 'whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians.' [Citations.] 'This requirement implements the law's strong preference for maintaining the family relationship if at all possible.'" (In re Nolan W. (2009) 45 Cal.4th 1217, 1228 (Nolan).)
The juvenile court has broad discretion in deciding what reunification services are appropriate to achieve the end of family reunification. "The juvenile court 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.... That order may include a direction to participate in a counseling or education program, including, but not limited to, a parent education and parenting program operated by a community college, school district, or other appropriate agency designated by the court." (§ 362, subd. (d), italics added.) Such services may include substance abuse treatment and drug testing. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 (Christopher H.).)
"Of course, the juvenile court's discretion in fashioning reunification orders 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.'" (Nolan W., supra, 45 Cal.4th at p. 1229, quoting § 362, subd. (c).) The court-ordered reunification plan "must be appropriate for each family and be based on the unique facts relating to that family." (Christopher H., supra, 50 Cal.App.4th at p. 1006.)
In Christopher H. a father had been arrested for driving under the influence two months before the premature birth of his child. Social services alleged father posed a risk to the infant based on his failure to visit the child and cooperate with hospital staff. They also alleged father "had alcohol-related problems that negatively affected his ability to care for, supervise and protect" the child based on his prior arrest for driving under the influence. (Christopher H., supra, 50 Cal.App.4th at p. 1005.) The juvenile court, at father's urging, found the allegation related to his alcohol use to be not proven but found the other allegations true and removed the child from his custody. Nevertheless, the court ordered father "to undergo a substance abuse evaluation, to participate in any recommended treatment, and to submit to random drug or alcohol testing." (Ibid.) The Court of Appeal affirmed because the record was sufficient to show father had substance abuse problems which "pose a potential risk of interfering with his ability to make a home for and care for" his child. (Id. at p. 1007.)
Father's argues Christopher H. is distinguishable because the father's substance abuse problems there were more substantial than his own. In Christopher H., the father had been arrested for driving under the influence just two months before the birth of his child, had tested positive for methamphetamine, and had two prior arrests for driving under the influence. (Christopher H., supra, 50 Cal.App.4th at p. 1007.) However, father here understates the evidence of his own problems with alcohol. Three of his children said he had been drinking the night he had an accident that seriously injured his daughter Hailey. And while law enforcement did not conclude father's drinking was a cause of the accident, it noted there was no way to tell because father had left the scene to accompany his daughter on a helicopter to receive medical treatment. It's also true that two of the children changed their story about father's use of alcohol that night, but the third child did not, and she also admitted that her older brother had talked to her about what to say at the later interview. Moreover, one of the children changed his story by denying he knew what alcohol is, a claim that lacks facial credibility in view of his earlier statements. Before the final interview, several children told the department that their father regularly drank and some said he became aggressive when he did. Father also admitted to suffering a past DUI arrest. It is also relevant that father failed to test on multiple past occasions. Given this evidence and the extremely poor conditions under which the children were living, we cannot find the trial court abused its discretion by concluding substance abuse treatment and testing would help with reunification and the safety of the children if they succeed in reunifying.
Father relies on In re Basilio T. (1992) 4 Cal.App.4th 155, 172-173 and In re Sergio C. (1999) 70 Cal.App.4th 957, but those cases are distinguishable. In Basilio T. there was no evidence at all that mother had a substance abuse problem. The court explained, "Other than the social worker's observation that [mother] behaved somewhat out of the usual and was obsessed with discussing a fortune-making invention, there was nothing in the record to indicate either [parent] had a substance abuse problem. Given the offer of proof by [mother]'s counsel that there was indeed an invention that had a potential money-making aspect, the only remaining factor supporting the substance abuse component was [mother]'s behavior. On this record, [mother]'s behavior, by itself, cannot support a conclusion she had a substance abuse problem." (In re Basilio T., supra, at p. 173.)
In re Sergio C. similarly lacked evidence of drug use by father. The court emphasized that even child protective services conceded "the only evidence of [father's] alleged drug use is [mother's] unsworn and unconfirmed allegation, which was flatly denied by [father]." (In re Sergio C., supra, 70 Cal.App.4th at p. 960.) The court noted mother's statement lacked credibility for several reasons. First, it was recorded in a report filed by social services that itself had markers of unreliability, for example, by providing information about the father's half brother instead of father. (Id. at p. 960, fn. 4.) The court concluded "we do not think drug testing ought to be imposed based solely on the unsworn and uncorroborated allegation of an admitted drug addict who has abandoned her children." (Id. at p. 960.)
Here, the children and the parents all spoke about father's use of alcohol and some of those statements suggested father became aggressive while using alcohol and had driven while under the influence. We conclude, under these circumstances, the trial court did not abuse its discretion by ordering treatment and testing.
III
DISPOSITION
We affirm the order requiring father to participate in alcohol and drug treatment and testing.
We concur: CODRINGTON, Acting P. J., FIELDS, J.