In re A.C. CA5 ( 2020 )

Filed 12/29/20 In re A.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re A.C., a Person Coming Under the Juvenile
Court Law.
FRESNO COUNTY DEPARTMENT OF F081096
SOCIAL SERVICES,
(Fresno Super. Ct.
Plaintiff and Respondent, No. 17CEJ300239-2)
v.
OPINION
T.C.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. William
Terrence, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Peña, J. and DeSantos, J.
Appellant challenges the dependency court’s dispositional orders declining to
place A.C. in his care and requiring him to participate in services that include random
drug testing. We reject his claims and affirm.
FACTS
In 2017, mother, B.W. (hereafter “Mother”) had her newborn child, I.C., removed
from her care at birth due to exposure to methamphetamine. In the ensuing dependency
case, Mother was denied reunification services because she was resistant to drug
treatment. Her parental rights to I.C. were terminated.
On July 3, 2019, the New Mexico Children, Youth and Families Department
contacted the Fresno County Department of Social Services (the “Department”) to advise
that Mother had given birth to her fifth child, A.C., in a hospital in New Mexico1 on or
about June 18, 2019. During labor, Mother tested positive for methamphetamine.
Immediately after birth, A.C. tested also positive for methamphetamine. Mother denied
drug use, except for a “relaps[e]” on June 14, 2019. The Department sought and obtained
a protective custody warrant for A.C.
On July 3, 2019, the Department filed a dependency petition under Welfare and
Institutions Code section 3002 concerning A.C. The petition identified appellant T.C. as
an alleged father (hereafter “Father”).
The petition alleged that A.C. was Mother’s third child to have been exposed to
drugs in utero. It further alleged that Mother’s substance abuse problems hinder her
ability to care for A.C. and put A.C. at substantial risk of harm and/or neglect.
1Mother was in New Mexico when she went into labor; her “significa[nt] other,”
Terrance C., was a truck driver who had been making a delivery there at the time, before
planning to return to Fresno.
2All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
After the detention hearing on July 9, 2019, the court ordered A.C. detained and
set a combined jurisdiction/disposition hearing for September 3, 2019. The court
elevated Father to presumed father status.
Mother did not have stable housing as of July 30, 2019. Mother told social
workers she was “staying ‘here and there’ with different people.” Mother said she
received food stamps and Medi-Cal. Mother did not take a drug test as directed on July
30, 2019.
Results from a DNA test performed on August 15, 2019, showed that Father was
A.C.’s biological father. On September 12, 2019, Mother and Father signed a declaration
of paternity. (See § 316.2, subd. (a)(5).)
In a November 5, 2019 filing, the Department asked the court to continue the
hearing set for the same day so it could further evaluate Father for placement. The filing
set forth Father’s criminal history, which included convictions for second degree robbery
in 1993; parole violations in 1998, 1999, 2001, 2007, and 2008; felony possession or
purchase for sale of a narcotic/controlled substance (Health & Saf. Code, § 11351) in
2004; felony domestic violence in 2004; and misdemeanor driving under the influence of
alcohol in 2011. The Department indicated that Father might not be eligible for
placement or reunification services pursuant to section 361.5, subdivisions (b)(12) an
(b)(13). Those subdivisions pertain to parents who have been convicted of a violent
felony, and parents who have a certain history of extensive drug or alcohol abuse,
respectively. (See § 361.5, subd. (b)(12)-(13).) The Department also requested that
Father be ordered to enroll in random drug testing.
On November 5, 2019, the court ordered the Department to offer Father random
drug testing.
3.
In a report submitted February 28, 2020, the Department requested that Father be
denied placement, but granted reunification services.3 The report indicated the
Department “initiated a referral for random drug testing” for Father on December 30,
2019. However, as of March 2020, Father had not enrolled in random drug testing.
Father told social workers he does not need to drug test because he was “not a part of the
reason of removal” of A.C.
The report also indicated a social worker visited Father’s residence on December
26.4 The social worker indicated the home “met minimal standards.”
From November 2019 to February 2020, Father missed several of his scheduled
weekly visits with A.C.
A Department social worker and Father testified at a continued
jurisdiction/disposition hearing on March 3, 2020. The social worker testified that she
believed placing A.C. with Father would be detrimental because: Father refused to drug
test, had a significant substance abuse history, and inconsistently visited A.C. The social
worker also said she questioned Father’s relationship with Mother, given that he had been
“showing up to court with her.” The social worker said she did not have “affirmative
evidence” that Father was “currently abusing any controlled substances.”
Father testified that he has nine other children in addition to A.C. and never had
any prior “CPS case.” On cross-examination, Father stated that he did not have full
custody of eight of those children.
Father stated he participated in a program after his robbery conviction that
included anger management, parenting, drug usage, behavioral problems and coping
skills. Father was subsequently convicted for possessing controlled substances for sale.
3 The report recommended denying services to Mother.
4 The report gives the date of December 26, 2016. Contextually, it seems clear
this was a typographical error and that the date was more likely December 26, 2019.
4.
Father “did another program after that.” Father then had a DUI conviction in April 2011
and subsequently participated in a recovery program. Father did not have any substance-
related charges or convictions since 2011. Father also denied using controlled substances
since 2011.
When asked what his “current employment status” was, Father replied, “I am a
truck driver by trade.” Father then testified that his profession performs random drug
tests and that he has never given a “dirty test.” On cross-examination from minor’s
counsel, Father stated he had been on a four- or five-month leave of absence and
therefore had not drug tested recently.
Father said that, if A.C. were to be placed in his care, he would do local routes as a
truck driver, such as Fresno to Oakland.
At the conclusion of the hearing, the court found by clear and convincing evidence
that placing A.C. with Father “would be a detriment to the minor.” The court stated its
finding was based “on the totality of the circumstances.” The court observed that the
Department was concerned about Father’s substance abuse history and criminal
convictions. The court noted that those considerations led the Department to request
“random drug testing in the first place.” The court also stated it was “concerned with the
inconsistent visitation ….”
The court further found that Father had a “credibility issue” because he testified on
direct examination that he was “currently employed” and “as part of his employment he
is subject to random drug testing.” The court continued, “Only on cross-examination did
this Court learn that in fact father was on a four- to five-month leave of absence” from his
job.
The court also ordered Father to participate in various services, including random
drug testing.
5.
DISCUSSION
I. The Dependency Court did not Err in Declining to Place A.C. with Father
Father argues the court erred in failing to place A.C. with him.
A. Law
When a dependency court removes a child from a parent, it must place the child
with their noncustodial parent upon request, “unless it finds that placement with that
parent would be detrimental to the safety, protection, or physical or emotional well-being
of the child.” (§ 361.2, subd. (a).) This finding must be based upon “clear and
convincing evidence.” (In re John M. (2006) 141 Cal.App.4th 1564, 1569.)
1. Standard of Review
“ ‘We review the record in the light most favorable to the court’s order to
determine whether there is substantial evidence from which a reasonable trier of fact
could find clear and convincing evidence that the children would suffer such detriment.
[Citations.]’ ” (In re John M., supra, 141 Cal.App.4th at p. 1569.) On substantial
evidence review, “we do not consider whether there is evidence from which the
dependency court could have drawn a different conclusion but whether there is
substantial evidence to support the conclusion that the court did draw. [Citations.]” (In
re Noe F. (2013) 213 Cal.App.4th 358, 366.)
B. Analysis
Father has a significant criminal history. In 2004, defendant was convicted of
possessing or purchasing for sale of a controlled substance (See Health & Saf. Code,
§ 11351). In 2011, he was convicted of driving under the influence of alcohol. Mother
relapsed in summer 2019, at a time when she called Father her support system. It is
eminently reasonable that the Department wanted Father to submit to random drug
testing. Yet, he refused.
The court advised at the July 9, 2019, hearing, “the Department has requested and
this Court has offered that [Father] participate in random drug testing. This Court is
6.
concerned that father has elected not to participate in those services.” The court also
referenced the issue when ruling at the dispositional hearing. The court’s concerns in this
regard were quite reasonable. When a parent refuses a reasonable request for drug
testing, knowing such refusal jeopardizes their ability to obtain placement of their child,
one reasonable inference is that the parent fears or knows they would fail the test. Given
Father’s history of criminal substance abuse combined with his present refusal to submit
to random drug testing, the court had sufficient evidence upon which to base its finding
of detriment.
In addition, Father also missed/cancelled several visits with A.C. The court could
quite reasonably infer that a father who does not make visitation a priority is not prepared
to make the child a priority in his life. Such priorities would be detrimental to the child’s
well-being.5 Standing alone, missed visits might not establish detriment, but it is a
relevant factor considered in conjunction with those identified above.
Father points to other considerations that work in his favor, such as his lack of
criminal substance abuse convictions after 2011; his participation in various
programs/classes; and his lack of previous involvement with the child welfare system.
However, as explained above, other evidence supported the dependency court’s decision.
The fact that there may be some evidence or considerations supporting the opposite
conclusion does not warrant reversal on substantial evidence review. (See In re Noe F.,
supra, 213 Cal.App.4th at p. 366 [on substantial evidence review, appellate court only
concerned with whether sufficient evidence exists, regardless of whether it is
contradicted].)
5Father cancelled visits on December 4 and 9, 2019; and January 2, 23, and 30,
2020; and February 27, 2020. Father points to his testimony that he missed visits due to
work conflicts. However, the cited testimony does not establish that every planned
cancellation was due to work. In any event, it does not readily explain Father’s complete
“no show” for a visit scheduled December 11, 2019.
7.
Father takes issue with the trial court’s stated concern that, on direct examination,
he did not mention his leave of absence from work. Father also contends a finding of
detriment should not be based on his lack of relationship with A.C. or the possibility he
will need to be absent for work. However, as an appellate court, “we review the lower
court’s ruling, not its reasoning; we may affirm that ruling if it was correct on any
ground. [Citations.]” (In re Natasha A. (1996) 42 Cal.App.4th 28, 38.) As explained
earlier, the evidence of Father’s criminal/substance abuse history and failure to drug test
was sufficient to support the denial of placement. The fact that the trial court may have
relied on additional grounds to which Father takes issue is not dispositive on appeal.
II. The Dependency Court did not Abuse its Discretion in its Dispositional
Orders Concerning Substance Abuse Services
Father contends the court erred in requiring him to submit to random drug testing
and stop consuming marijuana. Father argues that since Mother’s substance abuse is
what lead to removal, the dispositional orders directed to Father were not “designed to
the correct the issues that brought [A.C.] under the jurisdiction of the juvenile court” and
therefore improper.
We reject Father’s claim. As explained below, we conclude that while a court
must order services designed to eliminate the conditions that led to jurisdiction (§ 362,
subd. (d)), it may also order services to eliminate barriers to reunification. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) Here, the court’s dispositional orders
were permissibly directed to eliminating barriers to Father’s reunification with A.C.
A. Standard of Review
“At the dispositional hearing, the juvenile court must order child welfare services
for the minor and the minor’s parents to facilitate reunification of the family. (§ 361.5,
subd. (a); [citation.]) The court has broad discretion to determine what would best serve
and protect the child’s interest and to fashion a dispositional order in accord with this
discretion. [Citations.] We cannot reverse the court’s determination in this regard absent
8.
a clear abuse of discretion. [Citation.]” (In re Christopher H. supra, 50 Cal.App.4th at
p. 1006.)
B. Analysis
The law requires that a parent’s case plan “shall be designed to eliminate those
conditions that led to the court’s finding that the child is a person described by Section
300.” (§ 362, subd. (d).) “Since the focus of reunification services is to remedy those
problems which led to the removal of the children, a reunification plan formulated to
correct certain parental deficiencies need not necessarily address other types of conduct,
equally deleterious to the well-being of a child ….” (In re Michael S. (1987) 188
Cal.App.3d 1448, 1464.) “However, when the court is aware of such other deficiencies
that impede the parent’s ability to reunify with his child, the court may address them in
the reunification plan.” (In re Christopher H., supra, 50 Cal.App.4th at p. 1008, italics
added.)
Any other conclusion would be logically inconsistent with the broader statutory
scheme. By definition, “nonoffending” parents are not the cause of the child’s initial
removal. If reunification services could only be directed to the specific circumstances
resulting in the child’s removal, then reunification services could seldom – if ever – be
offered to nonoffending parents. Yet, the statutory scheme clearly provides for services
to nonoffending parents. (See, e.g., § 361.2, subd. (b)(3).)
Thus, we conclude a court may order services to eliminate barriers to reunification,
even if those barriers were not the grounds for initial removal. (See In re Christopher H.,
supra, 50 Cal.App.4th at p. 1008.)6 Here, the court reasonably concluded that the risk
6 This case is different from In re Jasmin C. (2003) 106 Cal.App.4th 177, where
the appellate court held there was insufficient evidence to support requiring the
nonoffending parent in that case to attend parenting classes. In that case, there was no
evidence that inadequate parenting skills were a barrier to the nonoffending parent’s
reunification. (See id. at p. 181 [nonoffending parent did not engage in any
“inappropriate behavior”].) Here, however, the record does disclose barriers to
9.
demonstrated by Father’s criminal substance abuse history and present refusal to submit
to drug testing posed a barrier to him reunifying with A.C.7 Accordingly, it ordered
services be provided to Father, including substance abuse services. We see no abuse of
discretion.8
DISPOSITION
The dispositional orders are affirmed.
reunification: Father’s criminal substance abuse history and refusal to submit voluntarily
to drug testing.
7 Father insists that the social worker had no affirmative evidence he was currently
using drugs. However, social workers are not required to just “take parents word for it”
when it comes to substance abuse. The Department may reasonably conclude that its
obligation to ensure the safety of the child before placing him with a parent with criminal
substance abuse history warrants drug testing. And it may also reasonably conclude that
such a parent’s refusal to drug test is circumstantial evidence that they may currently be
using drugs and pose a risk of detriment to the child.
8 Father also contends that submitting to random drug testing causes him undue
burden because he is a truck driver and often works out of town. However, he presents
no evidence as to whether his situation could or could not be accommodated. We assume
Father is not the first person ordered to complete random drug testing services who
sometimes works out of town. In any event, the potential harm identified by Father
would only be realized if the court holds him at fault for not complying with drug testing
requirements that were geographically or financially impossible for him to satisfy.
10.