In re E.J. CA3 ( 2024 )

Filed 10/16/24 In re E.J. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re E.J., a Person Coming Under the Juvenile Court C100760
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No.
AGENCY, STKJDDP20230000435)
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
Appellant S.M., biological father of minor E.J., appeals from the juvenile court’s
judgment at disposition adjudging the minor a dependent and removing him from parental
custody. (Welf. & Inst. Code,1 §§ 361, 395.) He contends the requirement that he
participate in substance abuse services and testing as part of his reunification case plan was
an abuse of discretion. We affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In November 2023, the San Joaquin County Human Services Agency (Agency) filed
a petition on behalf of newborn minor E.J. pursuant to section 300, subdivisions (b)(1) and
(g).2 The petition alleged the minor was at risk due to mother having tested positive for
amphetamines at the time of the minor’s birth, mother’s ongoing abuse of methamphetamine
and marijuana, father’s history of substance abuse from which he had failed or refused to
rehabilitate, father’s failure to protect the minor from mother’s known substance abuse, and
father being homeless and living at his jobsite.
Mother reported being a daily user of methamphetamine and admitted having used
both methamphetamine and marijuana shortly before the minor’s birth. Mother reported a
history of domestic violence with father in which she has hit him. She also reported that
father smoked crack cocaine only on the weekends because he worked during the week.
She had been living with father when she became pregnant, but father had to move out in
August, and she did not currently live with him. She did occasionally stay at a motel with
him. Mother did not receive prenatal care. Mother admitted she knew the negative effects
drug exposure during pregnancy could have on infants in utero but that it was harder than
she expected to stop using.
Father was present at the hospital after the minor’s birth. The social worker asked if
he was aware that mother was using drugs. Father confirmed that he knew but stated he
could not control her actions and did not agree with her drug use. He denied using drugs
himself. When informed there had been a report that he smokes crack cocaine on the
weekends, father said that was not true, and that he had completed drug treatment in 2019
with the Salvation Army. Father stated he was unsure why someone would say he used
crack cocaine on weekends. Mother was present but remained quiet and did not respond.
2 The petition was also filed on behalf of the minor’s older half sibling who is not a
subject of this appeal.
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When mother was informed that she would need to attend a substance abuse
treatment program and it would likely be an inpatient program, mother became emotional.
Father attempted to calm mother, advising her that she needed to make an effort to contact
the treatment centers and show the effort.
The minor was ordered detained, and mother was ordered to drug court. Mother later
entered a residential treatment program. In January 2024, father’s paternity was confirmed
and he was declared the minor’s biological father. Father requested visitation, including
joint visits with mother at the substance abuse treatment facility.
Mother submitted on jurisdiction and disposition and the matter was continued. At
the February 2024 continued jurisdictional/dispositional hearing, father’s counsel informed
the court that father was willing to take a drug test that day and was willing to wear a drug
patch for testing purposes. Father had already completed a drug program and did not want
to have to participate in a year of drug court. The court explained that if father was clean
and the drug court determined that all he needed to do was wear a patch or random test for a
year, then that is what the juvenile court would order. Father’s counsel argued that it would
be redundant for father to go through the drug court process again, which was the reason
father was willing to wear a patch to demonstrate to the court that he did not have a
substance abuse problem. The court explained that wearing a patch was monitored by drug
court. The court set a contested hearing at father’s request and indicated that father could
test that day if he wanted to do so and instructed that a call be made to drug court to arrange
for father to test. There is no evidence in the record that father tested that day.
At the March 2024 contested hearing, the court was informed that father and the
Agency had reached a resolution on jurisdiction whereby the Agency agreed to delete the
allegation that father had failed and/or refused to rehabilitate from his substance abuse
problem and replace it with “he has a history of substance abuse, which was including crack
cocaine” and added that, “while at the hospital, [father] indicated that he could not control
the mother, but reported that he encouraged her to enter a treatment program.” With that
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modification, father submitted on jurisdiction and the court found that a factual basis existed
and that the allegations of the petition were true.
As to disposition, father again argued against the inclusion of drug court in his case
plan. Father argued his drug history was remote, that he had successfully finished a
treatment program in 2019, and there was no evidence of a current substance abuse problem.
The Agency and minor’s counsel continued to request father be ordered to drug court.
Although the Agency had agreed to modify the jurisdictional allegation, the supplemental
disposition report indicated the Agency was concerned that father has a history of substance
abuse from which he has failed or refused to rehabilitate, that he is currently abusing crack
cocaine, and that his substance abuse impairs his ability to care for the minor. The Agency’s
report again noted that mother had reported that father smoked crack cocaine on the
weekends. The Agency recommended father be provided with reunification services to
include participation in substance abuse treatment services, parenting education, and
counseling. The proposed reunification case plan also included compliance with court
orders, compliance with drug court and random testing, and maintaining stable housing.
Father, who is in his 50’s, stated that he began using drugs socially at a young age,
but it eventually became a habit. He reported participating in various treatment programs
including “Delancey Street in 1999 and the Salvation Army in 2018.” He reported his
longest period of sobriety was five years and denied any current drug use. He also reported
that his previous drug use hindered his involvement in the lives of his three older children.
Father stated that church and recovery programs aided him in achieving sobriety. He
reported being employed and that he had recently obtained an apartment and would be
moving in soon. He also stated he would allow mother to reside with him after she
completed residential treatment.
The Salvation Army treatment program reported that father had entered their program
on July 29, 2019, and completed phase one on January 29, 2020. He attended classes and
completed all the required courses in phase one. Father then did phase two of the program
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in Lodi from January 29, 2020, to July 8, 2020, and then moved into the transitional
apartments until November 4, 2020. The intake coordinator believed father to be a
productive member of society.
The juvenile court found there to be a nexus between the conditions leading to the
dependency and/or the current risk of harm to the minor and the inclusion of drug court in
father’s case plan. It noted that clean and sober people do not usually hang around chronic
drug users but that it would give father the benefit of the doubt by ordering him to go across
the street and test “right now.” If father tested negative, it would consider not ordering drug
court. But if father refused to test, it would consider it a presumptive positive test and order
drug court, if it decided to order reunification services. Father objected to having to test
because he had proof he “completed the program in 2019.” The court responded that proof
of a program does not mean he is not using now. The court took a recess for father to test.
When the hearing resumed, all the parties were present except father. The drug court
representatives reported that father had walked out, saying he was not going to test. The
juvenile court adjudged the minor a dependent child of the court and ordered reunification
services for both parents including drug court for father.
Father appeals. This matter was fully briefed in this court on July 30, 2024.
DISCUSSION
Father contends the juvenile court abused its discretion in requiring him to participate
in substance abuse services and testing, specifically drug court, as part of his case plan
because there was no evidence that substance abuse continued to be a problem for him. We
find no abuse of discretion.
The overarching goal of dependency proceedings is to safeguard the welfare of
California’s children; family preservation is the first priority once proceedings have
commenced. (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) At the dispositional hearing,
the juvenile court must order services for minors and their parents to facilitate reunification
of the family, unless it makes a finding such services need not be provided. (§ 361.5, subd.
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(a); Cal. Rules of Court, rule 5.695(g).) Reunification services are typically understood as a
benefit provided to parents, because such services enable them to demonstrate parental
fitness so as to regain custody of their dependent children. (Nolan W., at p. 1228.)
Under section 362, subdivision (d): “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 . . . .” The
juvenile court has broad discretion to determine what would best serve and protect the
child’s interest and to fashion dispositional orders in accord with this discretion. (In re Jose
M. (1988) 206 Cal.App.3d 1098, 1103-1104; In re Eric B. (1987) 189 Cal.App.3d 996,
1005.) We will not reverse the juvenile court’s determination in this regard absent a clear
abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
This is a case where both parents have a history of substance abuse and in which the
minor came to the attention of the Agency because of that substance abuse. Father, who
started using in his youth and is now in his 50’s, has a long history of substance abuse. The
longest father even claimed to have been sober was five years, and it is not apparent from
his history when that five-year period occurred. The court did not believe that father, who
has a very long and “serious drug problem,” remained sober while living with someone who
was using daily. And while father argues there was no evidence that he was using drugs,
there was. Mother, who lived with father until a few months before the minor’s birth and
who continued to spend nights with him at a motel, reported father smoked crack cocaine on
the weekends when he was not working. While father disputes mother’s statements, issues
of fact and credibility are the province of the juvenile court. (In re I.J. (2013) 56 Cal.4th
766, 773.)
Indeed, because father refused to drug test, the only evidence supporting father’s
claim that he was no longer using drugs was his completion of his latest substance abuse
program. As the juvenile court noted, however, participation, or even completion, of a
substance abuse program does not establish current sobriety. Indeed, father had been in
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various substance abuse programs over the years, including Delancey Street in 1999, and
had not maintained sobriety thereafter. He reported he completed the Salvation Army
program (for what appears to be at least a second time he participated in the program) in
2019. But his report conflicts with the report of the intake coordinator, who reported father
did not enter the program until the end of July 2019, did not complete phase one until the
end of January 2020, did not complete phase two until July 2020, and lived in the
transitional apartments until November 2020. And the intake coordinator did not make
representations about father’s sobriety nor provide information about clean tests. The
program confirmed only that father had “completed all the required courses” and “is a
productive member of society.”
The foregoing facts form a factual basis for the drug court order, even though the
Agency had agreed to remove the jurisdictional allegations in the section 300 petition based
on father’s history of substance abuse from which he had failed or refused to rehabilitate.
(See In re Christopher H., supra, 50 Cal.App.4th at pp. 1007-1008.) “The problem the
court is addressing need not be described in the petition. [Citation.] There need only be a
nexus between the services ordered and the conditions that gave rise to the finding that the
[minor] come[s] within section 300.” (In re A.F. (2024) 102 Cal.App.5th 778, 782.) Due to
father’s long history of substance abuse, repeated but failed efforts at sobriety, relative short
period of claimed sobriety, inaccurate report of his most recent “successful” completion of a
treatment program, continued cohabitation with a daily drug user after completion of that
program, and mother’s report that father continued to use drugs on weekends when not
working, we find no abuse of discretion in the court’s inclusion of drug court in father’s case
plan.
Father relies on In re S.F. (2023) 91 Cal.App.5th 696 to support his contention that
the inclusion of drug court in his reunification plan was an abuse of discretion. In In re S.F,
the minor was detained after the mother was released from a psychiatric hold and violated a
safety plan made to protect the 11-month-old minor. (Id. at p. 703.) The mother was also
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abusing controlled substances. (Ibid.) At the time of the detention, the father resided in
New York with his sister. The father admitted to previous drug use but had participated in
drug treatment and reported without contradiction that he had been sober for two years. (Id.
at pp. 703, 717-718.) He had moved back to New York to remove himself from the drug
environment in the San Francisco Bay Area. (Id. at p. 704.) There was no evidence that he
had facilitated the mother’s drug use while she was caring for their child. They had been in
a relationship during her pregnancy, and she had been clean for nine months. (Ibid.) The
mother confirmed she had not used drugs with father since “ ‘way before’ ” she became
pregnant. (Id. at p. 707.) A substance abuse assessment confirmed that the father did not
need treatment, and a drug test was negative. (Id. at p. 706.) Nonetheless, the juvenile court
sustained a jurisdictional allegation based on the father’s previous substance abuse and
imposed several reunification requirements, including that the father submit to random drug
testing and undergo a substance abuse assessment and follow its recommended treatment.
(Id. at p. 711.) The appellate court held that the evidence did not support a jurisdictional
allegation based on the father’s substance abuse. (Id. at pp. 717-718, 724-726.) There had
been no evidence that the father had lied about his sobriety or that he had a current
substance abuse problem that created a risk to the minor. (Id. at pp. 717-718, 726.) Having
reversed the jurisdictional findings and orders for lack of evidence to support jurisdiction
based on father’s alleged substance abuse, the appellate court reversed the dispositional
orders requiring drug testing and substance abuse treatment as having no nexus to
conditions that led to the court’s jurisdiction. (Id. at pp. 724-726.)
The holding in In re S.F. does not, however, prohibit the juvenile court here from
including drug court in father’s case plan. Father’s history of substance abuse is a sustained
jurisdictional allegation. Unlike In re S.F., there was evidence father continued to use drugs
and there was evidence he was present and aware of mother’s substance abuse during her
pregnancy. Unlike In re S.F., father did not participate in a substance abuse assessment or
provide a clean drug test.
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“ ‘[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,
but which had not arisen at the time the original plan was formulated.’ [Citation.] However,
when the court is aware of other deficiencies that impede the parent’s ability to reunify with
[her] child, the court may address them in the reunification plan.” (In re Christopher H.,
supra, 50 Cal.App.4th at p. 1008.) “The juvenile court has authority to require a parent to
submit to substance abuse treatment as part of a reunification plan as long as the treatment is
designed to address a problem that prevents the child’s safe return to parental custody.” (In
re Nolan W., supra, 45 Cal.4th at p. 1229.)
DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
KRAUSE, J.
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