In re Bran. S. CA2/1

Filed 12/21/22 In re Bran. S. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re BRAN. S. et al., B313381
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20CCJP03746)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRANDON S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Debra R. Archuleta, Judge. Affirmed in part, reversed in
part.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
Nonoffending father Brandon S. (Father) appeals from the
juvenile court’s May 11, 2021 dispositional orders requiring
Father to participate in 10 random drug tests and that Father’s
visits with his children, Bran. S. and B.S., be monitored.1 Mother
O.B. (Mother) is not a party to this appeal.
1 In Father’s opening brief, he also argued that the juvenile
court erred in finding the Indian Child Welfare Act of 1978
(ICWA; 25 U.S.C. § 1901 et seq.) did not apply without sufficient
initial and further inquiry. Thereafter, on August 22, 2022, the
juvenile court issued two minute orders returning Bran. and B.S.
to the home of Mother. The Los Angeles County Department of
Children and Family Services (DCFS) requests that we take
judicial notice of these minute orders pursuant to, inter alia,
Evidence Code section 452. Father does not oppose the request
for judicial notice, and we grant it. The parties agree, and we
concur, that because Bran. and B.S. have been returned to
Mother, whether DCFS and the juvenile court fulfilled their
duties under ICWA is moot. (See In re A.T. (2021) 63
Cal.App.5th 267, 274 [ICWA does not apply where child is placed
with a parent]; In re Austin J. (2020) 47 Cal.App.5th 870, 881, fn.
5 [when court terminates foster care placement and returns child
to parent’s custody, the “question whether to reverse the prior
order based on noncompliance with ICWA is . . . moot”]; In re
Dani R. (2001) 89 Cal.App.4th 402, 404 [“ ‘action that originally
2
DCFS does not take a position as to the juvenile court’s
order requiring random drug tests, noting it recommended
testing only upon suspicion. DCFS argues that as to the juvenile
court’s order requiring monitored visitation, the juvenile court
did not err.
The juvenile court has broad discretion to determine what
would best serve and protect a child’s best interest and to fashion
a dispositional order in accordance with this discretion. We will
not reverse such a determination absent a clear abuse of
discretion. This deferential standard of review is dispositive as to
the juvenile court’s order requiring monitored visitation. At the
inception of this matter, Father’s children were four and two
years old. Among other issues, Father had not seen them for over
two years and was a stranger to them. Accordingly, we affirm
the juvenile court’s visitation orders.
However, there was no evidence Father abused marijuana,
or would use marijuana while his children were in his care,
justifying the requirement that Father participate in random
drug testing. We therefore reverse the juvenile court’s order
requiring 10 random drug tests.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
On June 26, 2020, Mother was arrested following a
domestic violence incident with her male companion, Jason H. At
the time, Mother lived with Jason and her five children: 12-year-
old son Eddie C., eight-year-old son J.W., four-year-old daughter
was based on a justiciable controversy cannot be maintained on
appeal if all the questions have become moot by subsequent acts
or events’ ”].)
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Bran. S.; two-year-old son B.S., and eight-month-old son O.B.
Father did not live with the family, and only his children, Bran.
and B.S., are subjects of this appeal. We focus our factual
summary to the challenges Father raises on appeal.
DCFS detained the children and placed them with
maternal aunt, D.M.
B. Pre-petition Interviews with Father
During interviews with a DCFS social worker, Father
indicated he had had no involvement or contact with his children
for over two years. He explained that Mother refused to allow
him access to the children, and he eventually lost contact with
them. He attempted to track Mother by “filing child support on
himself,” but thereafter made no other efforts to find his children.
Father stated that he and Mother engaged in domestic
violence approximately three years ago, when they were in a
relationship. He claimed that Mother drank excessively and
became aggressive, that Mother used pepper spray on him, that
she tried to hit him with her car, and that once, approximately
three years ago, she left the children unattended on his doorstep.
Despite this concerning behavior, Father took no steps such as
contacting Mother’s relatives, DCFS, or law enforcement to locate
or otherwise protect the children after Mother and Father
separated.
A DCFS social worker observed that Father lived in a
studio apartment, which was “fairly clean.” The social worker
“did not observe any drug paraphernalia.” Father said he
smoked marijuana a few times a week and agreed to submit to an
on-demand drug test. According to the social worker, a collateral
contact (unidentified in DCFS’s reports) indicated Father used
illegal drugs. Other than this single, uncorroborated notation,
4
the record does not disclose evidence that Father used illegal
substances. Father denied any illegal drug use, and DCFS’s
investigation indicated Father did not have any criminal history.
Father acknowledged he had been diagnosed with depression a
few years ago and was not receiving any services or taking the
medication that had been prescribed to him. Father also said
that he was “more than willing” to be assessed for placement.
DCFS concluded placement of Bran. and B.S. with Father
would be detrimental to the children as Father “has not
demonstrated appropriate parental protectiveness nor judgment
in taking meaningful consistent action to locate his two very
young children, when Father was on notice that Mother engaged
in excessive alcohol drinking[ and] demonstrated violent
behaviors.” DCFS recommended monitored visitation and that
Father “submit to random [drug] tests . . . as marijuana use by a
single parent of children of tender years, without a support
system, is not inherently safe.”
On July 16, 2020, Father tested positive for marijuana
metabolites at 202 ng/ml.
C. The Petition and the Detention Hearing
On July 14, 2020, DCFS filed a petition pursuant to
Welfare and Institutions Code2 section 300, subdivisions (a) and
(b)(1), alleging Mother’s five children were at substantial risk of
harm due to Mother’s domestic violence with Jason. That same
day, Mother pled nolo contendere to a single count of
misdemeanor willful infliction of injury on a spouse, cohabitant,
or person with whom the perpetrator had a relationship under
2Further unspecified statutory references are to the
Welfare and Institutions Code unless otherwise designated.
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Penal Code section 273.5. The criminal court sentenced Mother
to probation for a period of three years, with 38 days in Los
Angeles County Jail, and ordered her to complete a 52-week
domestic violence program.
At the July 17, 2020 detention hearing, minors’ counsel
joined DCFS’s written recommendation that Father’s visitation
with Bran. and B.S. be monitored, arguing “[F]ather was aware
of Mother’s drunken behavior . . . and didn’t really make a
concerted effort to rescue his children until now.” DCFS also
requested “random testing” of Father. Father argued that the
children be released to him or that he be granted unmonitored
visitation with the children.
The juvenile court found Father to be Bran. and B.S.’s
presumed Father, detained the children from Mother and Father,
and granted temporary custody to DCFS. It also granted
monitored visitation to Mother and Father, with discretion for
DCFS to liberalize the visits. Following a request from counsel
for the father of one of Mother’s other children, the juvenile court
also ordered DCFS to create a written visitation schedule. As to
drug testing, the juvenile court observed, “There are concerns, I
suppose, regarding marijuana with [Father]. So I will order that
[DCFS] contact the parents. Predispo weekly testing, I won’t
order it outright, even given what the pled allegations are.
However, I think it would be to the parents’ benefits if they are
seeking release.” The record does not reflect that DCFS pursued
further drug tests from Father.
D. Jurisdiction and Disposition
On August 28, 2020, DCFS filed a jurisdiction and
disposition report. It disclosed that on August 25, 2020, a DCFS
social worker interviewed Father telephonically. DCFS reported,
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“Father sounded to be coherent and he denied being under the
influence of any illegal substances. Father would not deviate
from topics during the conversation. Father was able to
effectively communicate and answer questions accordingly.
Father was oriented to time, person, place, and situation. Father
also did not sound to be hallucinating or delusional. Father
stated he had just woken up. [¶] It should be noted that [Father]
stated he felt competent and confident in discussing the petition
and was observed to have clear, logical and coherent speech.”
Father advised DCFS that he wanted his children with him
and would enroll in and complete all court-ordered programs. He
also stated that Mother has a pattern of falsely accusing the
fathers of her children of drug abuse. DCFS recommended
Father participate in parenting classes, that he “submit to on-
demand testing upon suspicion,” and that his visits with the
children be monitored by a DCFS approved monitor in a DCFS
approved setting. DCFS also reported Bran. and B.S. did not
appear to have any developmental or intellectual disabilities.
DCFS arranged for Father to have monitored visitation
with Bran. and B.S. on September 9, 2020. A DCFS social
worker arrived at maternal aunt’s door to pick up the children for
the visit. One of Mother’s other children answered the door and
the social worker asked that maternal aunt and Bran. and B.S.
come to the door. No one returned, and the social worker
attempted for an hour to reach Mother or maternal aunt by
telephone or to have someone answer the door. DCFS
recommended the juvenile court admonish Mother and maternal
aunt.
Between September 10, 2020 and May 11, 2021, the
juvenile court continued the combined jurisdiction and
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dispositional hearing six times. At the originally scheduled
hearing on September 10, 2020, Father’s counsel argued Father
had not been permitted to see his children. The juvenile court
admonished Mother and ordered DCFS to prepare a written
visitation schedule for Father and to facilitate visits between
Father and the children.
On October 8, 2020, DCFS attempted to contact Father by
telephone, but the phone number was not in service. DCFS also
mailed a letter to Father. On October 27, 2020, DCFS spoke with
Father by telephone. Father observed he had not had any visits
with the children.
At a scheduled hearing on November 5, 2020, Father’s
counsel again reported that Father had not been able to visit with
his children and requested DCFS provide a visitation schedule
for Father and assess Father’s home for placement.
In a December 17, 2020 last minute information (LMI),
DCFS noted, without describing the impetus for the change or
whether more children were affected, that B.S. resided with a
new caregiver. DCFS had not yet finalized identifying a monitor
for Father’s visits.
At a scheduled hearing on January 6, 2021, Father’s
counsel again requested a written visitation schedule, arguing
that although there had been a change in the caregiver, Father
still had not been able to visit with his children. Father’s counsel
also requested an assessment of Father’s home for release of the
children to him. DCFS responded that it had difficulty in
reaching Father, but that a visit had been scheduled for the
upcoming weekend. Father’s counsel responded that she was not
aware that any visit had been scheduled. The juvenile court
observed it had made prior orders for visitation and assessment
8
and ordered DCFS to file an LMI concerning its progress in
addressing these orders.
On January 11 and 13, 2021, DCFS attempted to schedule
an assessment of Father’s home. However, in part due to Father
not returning telephone calls for several days, which he stated
was a result of his work schedule, DCFS did not schedule or
conduct the assessment.
On February 4, 2021, a DCFS social worker conducted an
assessment of Father’s home. The social worker noted the smell
of marijuana was present, and “Father reported that he smoke
[sic] marijuana.” The social worker also observed a bottle of
liquor on top of the refrigerator, and Father stated that he drank
occasionally. On February 18, 2021, Father reported he was out
of state and that he wanted his visits with the children to begin
in March. DCFS recommended monitored visitation for Father
and that he submit to on-demand drug tests upon suspicion.
On April 6, 2021, a social worker telephoned Father, but he
did not answer. On April 23, 2021, DCFS reported that “Father
has not made himself available and has not provided proof of
enrollment in any services.” The visitation schedule for Father
was not finalized.
On May 11, 2021, the juvenile court held the combined
jurisdiction and dispositional hearing. It sustained the section
300 petition. Father’s counsel informed the juvenile court that
she never received a written visitation schedule and that Father
had called DCFS, but “the phones were off.” Counsel argued
Father should receive unmonitored overnights with the children
but acknowledged “he’s not asking for a home-of-parent today
because he does not want to put these kids in a position where
they’re being returned to a stranger.” Father advised the
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juvenile court that he left for Ohio on Valentine’s Day and “got
back around March. And I texted the social worker as soon as I
got back that I was back. And I called and it went to voicemail. I
tried to call the supervisor and left messages. No one has called
me back or anything.”
The juvenile court ordered monitored visitation and
scheduled a progress hearing relating to the issue the following
month. The court also stated that because of the age of Father’s
children, it wanted Father to agree to random marijuana tests
with decreasing levels to ensure his use was not at such a level
that it would cause him to be impaired in caring for his young
children. Father’s counsel argued there was no evidence that he
ever smoked marijuana around the children. Thus, Father’s
counsel argued, the juvenile court should order random tests
upon suspicion. Counsel also argued in favor of unmonitored
visitation, noting that identifying a monitor would be another
barrier to visitation. The court responded, “[t]hese children don’t
know their father. That would be basically having children with,
unfortunately, a stranger. I have to take some interim baby
steps. Additionally, I don’t know if he smokes pot around the
kids or not.” The court removed the children from Father and
Mother, and ordered Father to participate in 10 random or on-
demand consecutive drug tests and parenting classes. The
juvenile court explained to Father, “you can smoke pot, or you
can be a dad. But it’s really hard to do both.” Further, the court
wanted the drug tests to show Father’s use was “decreasing to
almost non-existent.” The juvenile court also ordered that Father
have three hours of monitored visitation with the children three
times a week (with DCFS having discretion to liberalize), that
DCFS provide a written visitation schedule, and that neither
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parent could visit the children under the influence of alcohol or
drugs, including marijuana.
The appellate record includes, and Father refers to, a post-
dispositional LMI dated June 9, 2021. DCFS reported that on
May 14, 2021, a DCFS social worker ensured Father had the
correct phone number to reach her. On May 21, 2021, DCFS
confirmed with Father that Saturday visits worked for him and
scheduled a visit for Father and his children for May 29, 2021,
from 11:00 a.m. to 1:00 p.m. On May 28, 2021, a social worker
telephoned Father at two different telephone numbers. Father
did not answer. Father was scheduled to take a drug test that
day, but did not appear for the drug test. On June 4, 2021,
Father informed the social worker that he had a lot going on in
his life and failed to check for the scheduled drug testing and
forgot about the visit with his children.
Father timely filed a notice of appeal.
DISCUSSION
A. Legal Principles and Standard of Review
“The juvenile court has ‘wide latitude’ in formulating
reasonable disposition orders for the care, custody, support, and
well-being of juvenile dependents. [Citations.] Section 362,
subdivision (d) provides: ‘The juvenile court may direct any
reasonable orders to the parents or guardians of the child who is
the subject of any proceedings . . . as the court deems necessary
and proper to carry out this section . . . .’ [Citation.]” (In re K.T.
(2020) 49 Cal.App.5th 20, 24.)
“Section 362 also authorizes the juvenile court to require a
nonoffending parent to comply with orders pertaining to a child
once the court has accepted jurisdiction. [Citation.] The court’s
broad discretion to determine what would best serve and protect
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the child’s interest and to fashion a dispositional order in accord
with this discretion, permits the court to formulate disposition
orders to address parental deficiencies when necessary to protect
and promote the child’s welfare, even when that parental conduct
did not give rise to the dependency proceedings. [Citation.]” (In
re K.T., supra, 49 Cal.App.5th at p. 25.)
We review disposition orders, including orders requiring
drug testing and setting visitation terms, for an abuse of
discretion. We will not disturb such orders unless the juvenile
court made an arbitrary, capricious, or patently absurd
determination. (In Brittany C. (2011) 191 Cal.App.4th 1343,
1356 [review of juvenile court’s visitation order]; In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006 [review of
juvenile court’s drug testing order].) We review the factual
findings upon which dispositional orders are based for
substantial evidence. (In re K.T., supra, 49 Cal.App.5th at p. 25.)
B. The Random Drug Testing Order
Father first argues the juvenile court erred in requiring
him to participate in 10 random drug tests. We agree.
“There must be an evidentiary basis for a court to order
particular services as the juvenile court’s discretion in fashioning
reunification orders is not unfettered.” (Seiser & Kumli, 1 Cal.
Juvenile Courts Practice & Procedure (2022) § 2.129.) Thus, a
reunification or service plan cannot require a parent to
participate in services if there is no evidence that it is necessary
to protect the child. (See In re K.T., supra, 49 Cal.App.5th at
p. 25 [juvenile court order requiring the father to participate in a
parenting course was an abuse of discretion because substantial
evidence did not support a finding that it was needed to protect
his daughter]; In re Jasmin C. (2003) 106 Cal.App.4th 177, 180
12
[reversing order requiring nonoffending mother to attend a
parenting class where there was no evidence offered to show that
the class would have eliminated the conditions that gave rise to
the dependency case]; In re Sergio C. (1999) 70 Cal.App.4th 957,
960 [reversing juvenile court’s “invasive order” that the father
submit to random drug tests where only evidence of drug use was
“the unsworn and uncorroborated allegation of an admitted drug
addict].)
The evidence in the record does not demonstrate Father
abused marijuana, or that he had used it or would use it in the
future while around his children. On July 10, 2020, Father was
forthcoming that he smoked marijuana “a few times during the
week,” and on July 16, 2020, he tested positive for marijuana. A
DCFS social worker also reported that seven months later, on
February 4, 2021, she noticed the scent of marijuana in Father’s
home, although the record is unclear whether he smoked before
her visit. DCFS never reported that it suspected Father of being
under the influence when it spoke to him on any occasion.
Rather, DCFS reported Father sounded coherent, “was able to
effectively communicate and answer questions,” and had “clear,
logical and coherent speech.” Further, there is no evidence that
the level of marijuana metabolites present in Father’s drug test
indicated daily or excessive use.
Thus, evidence establishes only that Father occasionally
used marijuana, a legal substance, and nothing more. It also
bears mentioning that the evidence in the record of Father’s
marijuana use occurred during a period when he did not have
contact with his children. Father does not object to the court’s
order that he cannot visit the children under the influence of
alcohol or drugs, including marijuana; he also agreed with a
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request from DCFS to submit to on-demand drug testing upon
suspicion. Because there is no evidence that the juvenile court’s
order requiring Father to take 10 drug tests was necessary to
protect his children or related to the conditions that gave rise to
the dependency matter, we conclude this order was an abuse of
discretion.
C. The Order Requiring Monitored Visitation
Father next argues that the juvenile court erred in denying
his request for unmonitored visitation because there was no
evidence that such visitation would threaten the children’s
physical safety or emotional well-being. As Father acknowledges,
however, the standard requiring a showing of a threat to a child’s
safety or emotional well-being applies when the juvenile court
denies parental visitation entirely. (See In re Matthew C. (2017)
9 Cal.App.5th 1090, 1102 [“a juvenile court may suspend or deny
visitation pursuant to [§] 362.1, [subd.] (a), if such visitation
would be inconsistent with the physical or emotional well-being
of the child”].) Father has not demonstrated that requiring his
visits be monitored poses such an obstacle to visitation that he is
unable to see his children. Accordingly, the juvenile court did not
need to first find the children’s safety or emotional well-being
were at risk before ordering monitored visitation. Rather, the
juvenile court had the discretion to craft visitation orders that
balanced Father’s interests in visitation with the best interests of
his children. (See In re Jennifer G. (1990) 221 Cal.App.3d 752,
757.)
Here, the juvenile court’s orders requiring monitored
visitation with Bran. and B.S. have a rational basis. As Father
acknowledges, he is a stranger to his young children. He has
been absent for nearly the entirety of B.S.’s life and for over half
14
of then-four-year-old Bran.’s life. Father argues children in
dependency matters are placed frequently with people they do
not know, such as foster parents, when they are taken into
temporary custody. Therefore, “it should[ not] matter that the
children did[ not] know their father.” However, children are
placed with foster parents out of necessity,3 and it is reasonable
that the juvenile court limit instances in which it places
dependent children alone with persons they do not know.
Father next argues Mother, maternal aunt, and DCFS bear
responsibility for his children not knowing him. Father’s
argument has some merit. But Father also bears responsibility:
he made minimal efforts to be part of his children’s lives for at
least two years prior to the dependency proceedings, did not
promptly respond to communications from DCFS, and, as he
acknowledges, “didn’t attend every visit which was scheduled.”
Irrespective of who was to blame, it was not an abuse of
discretion to order visitation initially be monitored to help
reassure the children when spending time with a parent who is a
stranger to them. In addition to the presence of a monitor
reassuring the children, there was also evidence that a monitor
was appropriate given Father’s actions prior to visitation
including failing to take steps in the past to protect the children
before the dependency matter began. Accordingly, and keeping
in mind our deferential standard of review, we conclude the
juvenile court’s orders requiring monitored visitation were not an
abuse of discretion.
3Dependency statutes favor placement with relatives or
nonextended family members, who are less likely to be
completely unknown to the children. (See §§ 309, 361.2.)
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DISPOSITION
The juvenile court’s order requiring Father to participate in
10 random or on-demand drug tests is reversed. The juvenile
court’s dispositional orders relating to Bran. and B.S. are
affirmed in all other respects.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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