In re O.P. CA2/3 ( 2021 )

Filed 8/18/21 In re O.P. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re O.P. et al., Persons Coming B309203
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. Nos.
DEPARTMENT OF CHILDREN 20CCJP01699A,
AND FAMILY SERVICES, 20CCJP01699B
Plaintiff and Respondent,
v.
B.P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed in part
and reversed in part.
Robert McLaughlin, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Christine S. Ton, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
B.P. (father) appeals the juvenile court’s dispositional
orders removing his two children from his custody, ordering
unmonitored weekday visitation, and requiring random drug
testing. We affirm in part and reverse in part.
BACKGROUND
The Los Angeles County Department of Children and
Family Services (DCFS) filed a petition on March 25, 2020,
alleging (under Welfare and Institutions Code section 300,
subdivisions (a) and (b)(1))1 that the physical health and safety of
four-year-old O.P. and three-year-old M.P. were at risk because of
their parents’ domestic violence. Father and Chantal H. (mother)
had a history of engaging in violent physical altercations in the
presence of the children. On February 10, 2020, father grabbed
mother by the back of her neck and pushed her to the ground,
resulting in a contusion to mother’s right eye and abrasions to
her knee and hand. Father threw an object that shattered the
window of mother’s car. Father and mother pushed each other,
and father stomped on mother. Father was arrested for intimate
partner violence with injury (Pen. Code, § 273.5).
Just before 3:00 a.m. on February 11, 2020, a caller told
DCFS mother and father lived on and off in a house in North
Hollywood and were going through a divorce. On February 10,
mother arrived to exchange the children, and father got upset
because she was supposed to exchange them a day earlier.
Father walked up to mother’s parked car and started throwing
things out of the car, and then broke the passenger window.
Mother stepped out of the car, and father grabbed her by the back
1 Unless otherwise noted, all the following statutory
references are to the Welfare and Institutions Code.
2
of the neck and threw her to the ground, causing visible injuries
to her face, knees, and hand. One child said she saw father
step on mother and kick her. Father had been arrested and was
in jail, while mother was staying in a hotel with the children.
When police arrived at the scene on February 10, they
found mother and father in the middle of the street with things
strewn around them. Mother told the officers the children had
been with father for three weeks in Maryland, where he lived
most of the time. He and the children had returned to California
the day before, but because she worked she could not pick up the
children until the next day. When she arrived and texted father
to walk the children to her car, he stormed outside and yelled
at her. Father shattered mother’s front passenger window with
an unknown object. Mother yelled at him to leave her alone,
and he grabbed her belongings from the car and threw them into
the street. The children were in the driveway.
Mother drove around the block and called the police.
When she returned, she put the children in the back seat. Father
continued to yell and throw her things out of her car. She drove
about 10 feet. When she tried to get her purse and belongings
from father’s hands, he grabbed the back of her neck and pushed
her to the ground. She sustained a contusion to her right eye
and abrasions on her right knee and right hand. Mother called
the police again as father continued to throw her things.
From the back seat of the car, four-year-old O.P. told
an officer her mom and dad pushed each other. She saw father
push mother and get onto her. Crying, she said “her dad stomped
on her mom and he wasn’t being nice.”
Father told the police he and mother had argued in the
past about divorcing. He had been waiting since the night before
3
for her to pick up the children. When she arrived, he saw his
property inside the car, so he grabbed his things and threw them
out of the car. Mother pushed him to get out of the way, because
she was angry he was throwing her things as well. Father hurt
his right middle finger when he reached into the car to grab
his property through a slightly-open window, which broke
by accident. He did not push mother or put his hands on her.
Mother told the officer that in the past father had
threatened to kill her with a firearm and a knife and had
tried to strangle or suffocate her. She had tried to separate,
but she did not fear for her safety.
A DCFS social worker went to the North Hollywood house
on February 12 and saw broken glass on the sidewalk. Mother
answered the door but did not let the social worker inside. The
social worker saw bruising on her right eye. Mother explained
that when she came to pick up the children, father walked out of
the house toward the car. He was angry and they started to yell
at each other. The children were walking outside. Father threw
things out of mother’s car and broke her passenger window.
Father also hit her. Mother pointed to her right eye and said,
“Yeah this is from him,” and added she had bruises and scratches
on her leg. Father had been arrested after she called the police.
Mother said she and father had a history of domestic
violence. Asked whether she feared father, she answered:
“ ‘Well yeah.’ ” She planned to get a place of her own, and would
consider filing for a temporary restraining order. She understood
DCFS would intervene if there was another violent incident.
The children appeared clean, unhurt, and well-groomed.
The social worker called father, who said he was “confused”
and wanted to know more about the allegations. Told it was
4
domestic violence, father said he would call his lawyer. He
said he was busy, asked the social worker to call him back,
and hung up.
Neither mother nor father scheduled an interview with
DCFS despite numerous attempts. Father later called the social
worker, denied ever hearing from DFCS, and claimed he did
not know what was going on and did not hit or assault mother.
On March 16, 2020, Mother returned the social worker’s
call. She and the children had moved into a new place, but she
would not give her new address for fear of father (although the
social worker told her the address would be confidential). Mother
believed father was in Maryland, and she and the children
had no contact with him. She was unable to get off the lease
for the North Hollywood home, and had no time to apply for a
restraining order because she worked as a registered nurse, and
during the COVID-19 pandemic, the hospital where she worked
did not allow time off. She would do her best to get to court.
On March 20, 2020, the court authorized removal of
the children from father, and on March 23, DCFS detained
the children from father and released them to mother.
The social worker called father to tell him the children were
temporarily removed from his care pending the May 26
detention hearing. Father expressed frustration, and said
he never assaulted mother and the children saw nothing. A
last-minute information reported mother said she worked from
7:00 a.m. to 7:30 p.m. Father expressed concern that mother
was working as an emergency room nurse during the pandemic.
At the March 30, 2020 detention hearing, father’s
appointed counsel appeared on his behalf; neither mother nor
the children appeared. The trial court found the Indian Child
5
Welfare Act did not apply. Father denied the petition. The court
found a prima facie case the children were persons described by
section 300, and at the request of DCFS, detained the children
from father, released them to mother, and awarded father
monitored visitation.
At the arraignment hearing on April 1, the court appointed
separate counsel for mother and the children, again made
findings removing the children from father, and released the
children to mother with monitored visitation for father. On the
same day, mother filed a request for a temporary restraining
order (TRO) against father, protecting her only. The court
granted the TRO, and after a hearing on June 24, 2020, signed
a one-year permanent restraining order protecting mother
until May 26, 2021 (over father’s objection).
1. Jurisdiction/disposition report (May 2020)
The May 11 jurisdiction/disposition report stated mother
grew up in Maryland and moved to California, where she worked
as a registered nurse. She had an older child, Jaylen, who
lived with his father in Maryland. Father was a self-employed
musician with a total of eight children.
Mother still had not provided her correct address to DCFS.
She told the social worker she and father had agreed to split the
cost of living, but for the last few months he had not paid. Father
had agreed to take the children to Maryland so she could work
and catch up on bills. He brought the children back a few weeks
later because he was frustrated, leading to the February 2020
domestic violence (which she described in detail).
Father had thrown her phone a couple of times when the
children were with the babysitter. Father had also punched her.
Mother had reported three or four of at least 10 incidents of
6
domestic violence in San Joaquin County. She still had a gash
on her face from when he pushed her. She never started a fight
and would hit him back in self-defense. The children were
present at three incidents. The Christmas before the February
2020 incident, father threw something at the stove and broke it.
He also broke her tree and her decorations, and damaged her
walls.
Father left her after she had a late-term miscarriage
in 2018 (at 20 weeks). Mother did not give him information
about the miscarriage because he never showed any interest
in accompanying her to medical appointments during any of
her pregnancies. They reconciled in 2019, and then he went
to Maryland and had a car accident. He had used marijuana
in the past.
Father told the investigator he married mother in
Maryland in 2015, and they split up in 2018. He was bicoastal.
The day she told him she was pregnant with M.P., he found out
she had a son, Jaylen, who lived with her parents in Maryland.
In 2018, when mother was eight months pregnant, father went
to a friend’s wedding in Saint Lucia. Mother called to tell him
the doctors were trying to save the baby, who had been born with
the cord wrapped around its neck. When father told her he was
coming home, she wouldn’t tell him the name of the doctor or the
hospital. When he returned to California four days later, mother
was back at work and not grieving. He called the police and
they said they couldn’t do anything. He could not live with
her anymore, not knowing what happened to his baby.
Father said mother was a pathological liar. She lied about
paying their health insurance after he had a bad car accident in
Maryland, and lied about where the children were. In January
7
2020, when he was still in physical therapy, she left the children
with him in Maryland, saying she had to work long hours to catch
up on the rent. When father brought them back to California
in February 2020 she had changed the locks on the house. A
locksmith let him in, and when she showed up the next day at
8:00 p.m., they started to argue. The car was full of his things,
and when he tried to pull his belongings out she “attacked” by
trying to drive off. The car window broke when he tried to pull
his hand back out. Mother went inside to get the kids and he
saw the trunk was also full of his things. When she came back
out she attacked him in front of the kids, pulling his hair
and hitting his face, head, and neck. When the police arrived,
the children were in the car and he and mother were fighting
behind the car.
Father claimed mother attacked him. He weighed 250
pounds and was on crutches, so there was no way he could stomp
on her. If he had hit her she would have had blood on her or
a busted lip. The police told him that under California law
they had to arrest someone. The blood on his hand was from
the broken window.
Mother had slapped, hit, and punched father, and once hit
him with an umbrella, scarring his forehead. She threw things at
him and jumped on him. This never happened in the children’s
presence. One Christmas he came home at night. The children
were not there. Mother refused to tell him where they were and
broke the stove with a heavy candle holder during an argument.
Father admitted he broke the tree and decorations, but he did not
call the police because he trusted the children were safe. There
was no restraining order against him in San Joaquin County,
and the police there never responded to the home for domestic
8
violence. (A search of the San Joaquin Police log showed at least
20 calls from the family home.)
A high school friend of father’s said he never had issues
with anger management or substance abuse. The children were
happy with him in Maryland. Father called the friend during the
February 2020 incident and told her mother was there “starting
stuff.” The friend heard arguing, but it wasn’t clear. Father
claimed mother gave him the gash on his head. He said mother
had been far along in a pregnancy, and when he returned from
out of town, she was no longer pregnant and he still did not know
what happened to the baby. The children were very happy with
father, who was definitely a fit parent.
The landlord reported that a neighbor who witnessed
the incident was surprised father was arrested, because it
was mother who threw items out of the car.
A woman who had been friends with both mother and
father for over eight years told DCFS she knew they had
relationship issues and disagreements, but was not aware of any
physical altercations. Mother used the children as collateral by
restricting father’s contact. She knew mother loved the children,
but they had more stability with father and always preferred
being with him.
Mother wanted the children to live with her, with
monitored visitation for father. Father wanted a divorce and
joint legal and physical custody.
DCFS, concerned about mother’s “semi-cooperative stance,”
recommended the court order mother to provide the children’s
current address, sustain the petition, declare the children
dependents, and provide mother with family maintenance.
The children should be removed from father, who should receive
9
monitored visitation. Father should be required to enroll in
individual counseling and a parenting program, and to engage
in therapy with the children if their therapist deemed it
appropriate. DCFS requested authority to release the children
to both parents.
A last-minute information attached police records from
San Joaquin County. In July 2017, mother called the police and
asked to meet at the local high school. She told the officer she
had a verbal argument with father, but refused to provide more
detail. Mother had no visible injuries and insisted the police
not speak to father. In May 2018 mother told the police father
punched her in the jaw twice during an argument over watching
the children. Mother said he had been out drinking and she
was very afraid of him, especially when he was drunk. She had
a small laceration and swelling on her upper lip, and received a
week-long emergency protective order. In October 2018 father
called the police to help him find mother, who had called to tell
him she miscarried. He was afraid she had done something
to the baby. Mother was at work and had communicated with
father by text. The officers advised father to call again if he
thought any suspicious activity had occurred, but he did not
request further assistance.
2. Subsequent proceedings
Father filed a walk-on request on August 21, 2020, because
mother had not provided regular visitation and took the children
to Maryland without notifying the court or DCFS. The court
ordered DCFS to prepare an update on father’s visitation,
and ordered mother to comply with the visitation order.
In last-minute informations dated September 11 and 23,
father stated he now had unmonitored overnight visits three
10
days a week, and would fly to California to spend the visits in his
newly-rented apartment. Father said mother was often late to
the drop-off point at the local police station, but mother denied
this. The children appeared comfortable in father’s presence,
the visits went very well, and they were sad to leave. They were
happy to see mother too. When mother asked O.P. if she had
a good time with father and she said no, mother then asked O.P.
if she told the social worker. Yet O.P. told the social worker she
had a great time with father.
Mother would not allow the social worker to visit the
children inside the home because of the pandemic; they would
talk to the social worker outside on the stairs. The children
said mother’s 10-year-old son Jaylen (who reportedly had
developmental delays) had recently moved in, and sometimes she
left the smaller children alone with him when she went to work.
M.P. had a cut on his leg and said Jaylen stabbed him with
a knife. Mother said Jaylen had stayed with them for a month
and had gone back to Maryland.
Mother reported father had cancelled or modified some
visits, and father said mother was 30 minutes to three hours
late to exchange the children. Mother reported father had used
marijuana in the past, usually outside. Although father had
denied any past or current use of marijuana, the social worker
smelled marijuana in father’s home. When questioned, father
said he had a medical marijuana recommendation (for pain
management after his car accident). He did not smoke when
the children were under his care or in their presence, kept the
marijuana out of their reach (the social worker verified this), and
had no drug-related arrests. He agreed to test the next day, and
DCFS recommended the court order father drug test and not care
11
for or drive the children when he was under the influence. The
social worker noted the children were comfortable with both
parents (when father and mother were not together). Father’s
visits had gone very well and DCFS had liberalized the visits
to unmonitored overnights. Although mother had initially said
she did not want DCFS to enter her home because of COVID-19
and clutter, she now stated she would allow DCFS entry. Father
complained mother cancelled some of his visits, but mother
explained she requested he quarantine for 14 days after he
attended a large gathering in New York.
Another last-minute information filed November 17
changed DCFS’s recommendation. The parents no longer lived
together and the children disclosed no abuse. Other contacts
expressed no concerns about their safety in father’s care. When
the visits were monitored, the social worker observed the children
were excited, happy, and showed no distress. Father had a
good support system in his parents and siblings in Maryland.
DCFS had liberalized father’s visits to unmonitored and then to
overnight, so that father now picked the children up at 3 p.m. on
Sundays and returned them to mother at 10 a.m. on Wednesdays.
For two months, the parents had cooperated and honored the
visitation schedule, and both allowed DCFS to visit inside their
homes with no issues. Jaylen was back in Maryland and mother
said she worked only when the children were staying with father.
Both were seeking programs to address the case-related issues
and had no intention to reconcile.
DCFS recommended the court release the children to both
parents in separate households, and offer family maintenance
services to both. Father should be ordered to enroll and
participate in individual counseling, parenting classes,
12
anger management and domestic violence classes. DCFS also
recommended father participate in random drug tests, show
decreasing levels of marijuana, and not use marijuana when
caring for the children. Mother should be ordered to participate
in individual counseling, parenting classes, anger management
and domestic violence classes, to enroll the children in age-
appropriate counseling and engage in therapy with the children
if their therapist deemed it appropriate, and not allow the
children to be alone with Jaylen.
3. Adjudication/disposition hearing
The juvenile court continued the hearing to November 19,
2020, to allow counsel to review body cam footage supplied by
the police and order transcription if necessary.
At the hearing, minors’ counsel requested the court sustain
the allegations. Mother and father told different versions of the
events in February outside the North Hollywood home, but O.P.
said father stomped on mother. Mother said she had reported
only three or four of over 10 incidents of father’s domestic
violence. Father said mother was the aggressor. The February
2020 domestic violence occurred while the parents were
separated, so the risk of domestic violence continued. Minors’
counsel did not ask that the children be detained from father.
But because father had accepted no responsibility and seemed
not to have insight into the risk of harm to the children,
minors’ counsel requested the petition be sustained with
visitation remaining as DCFS had liberalized it (unmonitored
and overnight).
Mother pleaded no contest to the petition.
Father’s counsel objected to sustaining the petition,
arguing there was insufficient evidence of current risk. The
13
parents lived separately and a restraining order was in place.
The statements of mother’s witnesses and the police report
lacked any credibility. Mother had been the instigator (getting
out of the car and pushing and hitting father), but the police
had left this out of the report and had treated father differently
simply because he was male (as had DCFS). Mother’s relatively
minor injuries were inconsistent with father’s size and strength.
The body cam footage contradicted the report and showed mother
was not a passive victim that day. And mother had prevented
DCFS and minors’ counsel from seeing the children, by lying
about her location. Father’s counsel objected to removal from
father and any orders that he participate in domestic violence
classes. Counsel also objected to individual counseling and
parenting classes (although father would comply if necessary for
release of the children to him), and objected insufficient evidence
supported drug testing or programs.
DCFS asked the court to sustain the petition and joined in
the argument of minors’ counsel. The police report incorporated
the neighbors’ statements and summarized the body cam
transcription, in which O.P. reported father stomped on mother.2
Breaking mother’s car window took a lot of force. This occurred
2 In the transcription, father denied hitting mother, but
the police said she had injuries consistent with her account that
he hit her. Father said he was injured too, but the police said his
injuries were to his finger, consistent with breaking her window,
and he was the dominant aggressor. O.P. told the officer she was
in the car crying and her parents were pushing and hitting each
other. Father pushed mother and she fell, and then he stomped
her. Mother told the police there had been three prior reported
incidents of domestic violence in San Joaquin County.
14
during an exchange of the children while the parents were
separated, when father was upset that mother was late to pick
up the children. There had been previous domestic violence,
and the children were present at the latest incident.
The court sustained the petition as amended to state in a-1
that only father had a history of engaging in violent physical
altercations with mother in the children’s presence, and
sustained b-1 as alleged. The court asked if father was enrolled
in any programs, and counsel answered he had enrolled in anger
management a month earlier. The court expressed surprise
father had delayed for so long after the petition was filed eight
months earlier. The court removed the children from father’s
custody and placed them in mother’s home, ruling mother
retained physical custody.
The juvenile court noted father had not accepted any
responsibility. “Even if mother is somewhat responsible, she
has resolved the case. She didn’t break a window. She didn’t
throw items out of the car. But [father] did. The children even
say Daddy was not nice to Mom . . . . Even if I just look at that,
I [have] a problem with this man having unmonitored visitation
because obviously he has an anger management issue he can’t
control. So his visits will remain unmonitored days. But he
no longer has overnights and weekends.” When counsel stated
father wanted to address the court, the court refused: “He is
the person who did not want to settle this case because he has
a criminal case. So if he starts talking, now, that can be used
against him in the criminal court.”
The court ordered enhancement services for father
(domestic violence and parenting classes, individual counseling,
and joint counseling with children when the children’s therapist
15
agreed). The court also ordered random drug testing every other
week (but no program), with father not to use marijuana when
the children were in his care, and required his tests to show
declining levels. Father had unmonitored day visitation but
no overnight and weekend visits. DCFS did not have discretion
to liberalize, “because I have no way to control whether you’re
going to make [father] engage in program or just let him have
unmonitored visitation without doing anything.” Father’s
counsel objected to the “deliberalization” of visitation to
unmonitored days only and to joint counseling because father’s
case plan was “very, very full at the moment.” The court
responded: “[I]t is a cycle. He does not want his daughter[ ]
to believe she can be kicked when she becomes a grown woman
and is with a man. So he might want to engage and talk about
how Daddy made a mistake.” Father “would have done better
had he gotten into programming in the seven months since this
case was filed.” Father’s counsel agreed father did not settle
because of the criminal matter, and the court repeated that
father could have admitted partial responsibility and participated
in programs. “I’m just hearing it was not him. He didn’t do
anything.”
Father filed this timely appeal.
DISCUSSION
1. Substantial evidence supported removal from father3
Under section 361, subdivision (c)(1), the juvenile court
may remove a child from a parent’s physical custody if the “court
3 Because DCFS did not recommend removal from father or
recommend a change to his overnight visits, DCFS does not take
a position on father’s appellate challenge to the removal and
visitation orders.
16
finds clear and convincing evidence [that] (1) There is or would be
a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which
the minor’s physical health can be protected without removing
the minor from the minor’s [parents]. . . .” Unless the child is
adjudicated a dependent because of severe abuse under section
300, subdivision (e) (which is not the case here), a jurisdictional
finding alone is not prima facie evidence the child cannot
remain in the parent’s physical custody. (In re E.E. (2020)
49 Cal.App.5th 195, 218.) In determining whether to remove
the child, the court may consider the parent’s past conduct and
current circumstances, as well as the parent’s response to the
conditions that caused the juvenile court to intervene. (In re
D.B. (2018) 26 Cal.App.5th 320, 332.) The parent need not
be dangerous, and the child need not have suffered actual
harm, before removal is appropriate. (Id. at p. 328.)
The standard is clear and convincing evidence, and the
juvenile court “ ‘is in the best position to determine the degree
to which a child is at risk based on an assessment of all the
relevant factors in each case.’ ” (In re E.E., supra, 49 Cal.App.5th
at p. 217.) The court must determine whether reasonable efforts
were made to prevent or eliminate the need for removal of the
child from the home. (§ 361, subd. (e).)
“When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. In conducting its review,
the court must view the record in the light most favorable to the
17
prevailing party below and give appropriate deference to how
the trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011-1012.)
Father left mother visibly injured after a physical
altercation observed by then-four-year-old O.P. and then-three-
year-old M.P. Although father and mother hit and pushed each
other, father broke mother’s car window and pushed her to the
ground, and as described by O.P., father “stomped” on mother.
Mother had reported domestic violence by father at least once
before, and stated there were other incidents she did not report.
A reasonable fact finder could have concluded it was highly
probable father repeatedly engaged in domestic violence against
mother, culminating with father’s arrest in February 2020 and
the issuance of a restraining order.
Father argues he and mother “broke the cycle of violence
and established their ability to successfully share custody of
[O.P. and M.P.].” But father did not show he addressed his anger
issues. Instead, he denied hitting mother, asserted she was the
aggressor, and waited to enroll in anger management classes
until just a month before the disposition hearing. He continued
to deny any responsibility for the domestic violence. (See In re
T.V. (2013) 217 Cal.App.4th 126, 136-137.) “The inference from
his denial is that he is less likely to change his behavior in the
future.” (In re V.L. (2020) 54 Cal.App.5th 147, 156.) The children
were exposed to domestic violence in February 2020 (and,
according to mother, during three previous incidents), and “the
last incident precipitated the current dependency case.” (Ibid.)
Further, at the time of the adjudication hearing, the one-year
18
restraining order protecting mother was still in place and
apparently exchange of the children had been taking place at the
local police station; under these circumstances, father can hardly
take credit for not being violent against mother. Viewing the
evidence in the light most favorable to the order, and deferring
to the trial court’s evaluation of the record before it and
its credibility determinations, we hold substantial evidence
supported the conclusion the children remained at risk
from domestic violence.
Finally, substantial evidence supports the conclusion
there were no reasonable means of protecting the children
without removing them from father. As outlined above, father
was initially evasive and uncooperative with DCFS, failed
to acknowledge any responsibility for the domestic violence,
and only belatedly participated in programs meant to address
the violence. Because (contrary to father’s assertion) substantial
evidence supports the conclusion the cycle of domestic violence
between father and mother was unresolved, no reasonable
means of protecting the children existed other than removal.
(In re Nathan E. (2021) 61 Cal.App.5th 114, 124.)
2. The visitation order was not an abuse of discretion
We review for abuse of discretion the court’s order setting
the terms of visitation, and “will not disturb the order unless
the trial court made an arbitrary, capricious, or patently absurd
determination.” (In re Brittany C. (2011) 191 Cal.App.4th 1343,
1356.)
Father argues the court abused its discretion when it
ordered unmonitored day visitation during the week, after DCFS
two months earlier had liberalized his visitation to unmonitored
19
overnight and weekend visitation (Sunday afternoon to
Wednesday morning). We see no abuse of discretion.
First, father argues the court’s order significantly reduced
his contact with the children. But the court’s order did not
reduce the frequency or amount of visitation. Under the order
allowing unmonitored weekday visitation, father could visit with
the children five days a week, which is more than the previous
schedule. He does not explain how it was an abuse of discretion
not to allow overnight visitation. Second, the ordered visitation
remained unmonitored, consistent with DCFS’s former
liberalization.
Father argues it was unlawful to delegate to him and to
mother the frequency and duration of his visitation. He did not
object to the order on that basis. Even if he did not forfeit this
objection on appeal, he has not shown the court acted improperly.
“[T]he juvenile court cannot delegate the decision whether
visitation will occur to any third party, including the child, the
social services agency, or the guardian.” (In re Korbin Z. (2016)
3 Cal.App.5th 511, 516.) “A visitation order may delegate to a
third party the responsibility for managing the details of visits,
including their time, place and manner,” but may not “delegate
discretion to determine whether visitation will occur, as opposed
to simply the management of the details.” (In re T.H. (2010)
190 Cal.App.4th 1119, 1123.) Here the court delegated to
the parents the discretion to determine during which weekdays
the visitation will occur. This is not an unlawful delegation
of whether visitation will occur at all.
3. The drug testing order was an abuse of discretion
Father argues the trial court abused its discretion when
it required him to submit to random drug testing. We agree.
20
“Section 362, subdivision (d) authorizes the juvenile court
to ‘direct any reasonable orders to the parents’ of a dependent
child as the court deems necessary and proper to ensure
appropriate care, supervision, custody, conduct, maintenance,
and support of the child (§ 362, subd. (d)), and the juvenile court
enjoys broad discretion in crafting a dispositional case plan to
this end.” (In re I.R. (2021) 61 Cal.App.5th 510, 522.) But the
juvenile court “cannot arbitrarily order services that are ‘not
reasonably designed’ to eliminate the behavior or circumstances
that led to the court taking jurisdiction of the child.” (In re M.R.
(2020) 48 Cal.App.5th 412, 424.)
Father’s use of medical marijuana is entirely unrelated
to the domestic violence described in the sustained allegations.
And the use of medical marijuana, without more, does not
support dependency jurisdiction. (In re Natalie A. (2015) 243
Cal.App.4th 178, 185; In re Drake M. (2012) 211 Cal.App.4th
754, 764.) The only other evidence of father’s use is mother’s
statement that father had smoked marijuana in the past, usually
outside the house. An order for drug testing is called for if
any rational trier of fact could conclude the order advanced
the children’s best interests. (Natalie A, at p. 187.) Here there
is no evidence that father abused marijuana or that his use posed
a substantial risk to the children.4 There was no evidence that
father used marijuana in front of the children, and DCFS verified
4 DCFS argues mother reported in 2018 that father hit her
after he had been drinking and that she was especially afraid
of him when he was drunk. But no evidence showed father was
abusing alcohol in 2020 or alcohol played a part in the domestic
violence giving rise to the petition, and the court did not mention
father’s use of alcohol.
21
that he stored his medical marijuana out of their reach. On this
record, the trial court could not reasonably conclude that drug
testing was necessary to eliminate the conditions that led to
the children’s dependency status. (Ibid.)
DISPOSITION
The disposition order of the juvenile court is reversed to
the extent it orders father to participate in random drug testing.
In all other respects, the disposition order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN. J.
22