In re Patricia R. CA4/1

• Court: California Court of Appeal
• Decided: May 25, 2016
• Docket: D069679
• Status: Unpublished

Opinion

Filed 5/25/16 In re Patricia R. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re PATRICIA R. et al., Persons Coming Under the Juvenile Court Law. D069679 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ13187ABC) Plaintiff and Respondent,

v.

PATRICIA O.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kenneth J.

Medel, Judge. Affirmed.

Suzanne F. Evans, under appointment by the Court of Appeal, for Defendant and

Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Patrice Plattner-Grainer, Deputy County Counsel, for Plaintiff and

Respondent.

Patricia O. appeals the juvenile court's order made at a disposition hearing

requiring her to participate in random drug testing as part of her reunification plan,

arguing that there was insufficient evidence indicating that substance abuse contributed to

creating the dependency. We conclude that the court did not err in ordering this

condition and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Patricia is the mother of three children, ages 14, eight and two. Patricia

has been in a relationship with Daniel R., Sr., the presumed father of the two younger

children, for the past 11 years.

In the fall of 2013, the San Diego County Health and Human Services Agency (the

Agency) received a referral alleging that Patricia was using methamphetamine and

leaving the children unsupervised at night. During an investigation by the Agency,

Patricia failed to submit to two random drug tests. The Agency ultimately deemed the

referral inconclusive for general neglect and unfounded for emotional abuse.

Approximately eight months later, the Agency received another referral alleging that

Patricia and Daniel, Sr., were selling methamphetamine out of their home and that they

were possibly using it themselves. Patricia again refused to make herself available for

drug testing and the Agency ultimately deemed the referral inconclusive. About a year

later, the Agency received another referral alleging that Patricia had left the children

2 home alone for long periods of time, that Patricia was verbally abusive toward the oldest

child, and that Patricia and Daniel, Sr., engaged in physical altercations in the presence of

at least the oldest child. Patricia was again asked to drug test but failed to do so. The

Agency deemed the referral unfounded for general neglect and inconclusive for

emotional abuse.

In the summer of 2015, Patricia and Daniel, Sr., got into an argument in front of

the home. All three children were present and able to hear the argument. At some point,

Patricia ran inside the house and locked the door. Daniel, Sr., crawled into the house

through a window and Patricia ran into her oldest child's room and locked that door.

Daniel, Sr., kicked in the door to the bedroom and proceeded to hit Patricia, who was

hiding behind her oldest child. Police arrived on the scene, arrested Daniel, Sr., and

made a referral to Child Protective Services (CPS) due to the children being present

during the altercation.

Patricia initially refused to let the social worker into her home. While the social

worker was waiting for Patricia outside the home, a neighbor approached and told the

social worker that she thought Patricia was using "speed" because Patricia had offered it

to her in the past, and Patricia had told her that Patricia's sister had been arrested for

transporting drugs and that Patricia had also transported drugs. Patricia eventually agreed

to an interview and signed a safety plan that required her to have no contact with Daniel,

Sr., for 30 days. However, she refused to drug test. The social worker set up drug testing

for Patricia a couple of weeks later, but Patricia failed to show up, later explaining that

3 she did not have an identification card. The social worker provided Patricia with a

discount form to obtain an identification card.

In September 2015, the Agency filed petitions on behalf of all three children

alleging that the children had suffered, or that there was a substantial risk the children

would suffer, serious harm as a result of the violent confrontations between Patricia and

Daniel, Sr., and the failure or inability of Patricia to protect them. The court found that

the Agency had made a prima facie showing under Welfare and Institutions Code section

300, subdivision (b)(1)1 and detained all three children.

In November, the social worker reported that Patricia had been proactive in

following through with the recommended services, with the exception of drug testing. At

the contested jurisdiction hearing that same month, the court made true findings on the

petition.

In January 2016, the social worker received information indicating that Patricia

and Daniel, Sr., were living together at Patricia's house, and that they were partying and

using illegal drugs. Patricia remained guarded about drug testing.

At the disposition hearing, Patricia submitted on the issue of relative placement for

the children but continued to contest the Agency's recommendation that she be required

to undergo drug testing. After hearing argument from the parties, the court ordered drug

testing as part of Patricia's case plan, explaining that the court believed there was a direct

1 Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. 4 connection between drug use and behavior that leads to domestic violence, and that drug

testing was part of the overall plan to try to help Patricia and the children reunify.

DISCUSSION

When the court removes a child from parental care, it is typically required to order

the Agency to create a reunification plan and provide reunification services to the parent

or parents. (§ 361.5, subd. (a).) The reunification plan must be appropriate to address the

unique facts of the individual family and the services offered must be designed to

eliminate the conditions that led to the court sustaining a petition and detaining the child

in the first instance. (§ 361.5, subd. (a); In re Christopher H. (1996) 50 Cal.App.4th

1001, 1006 (Christopher H.).) When the court is aware of deficiencies that impede a

parent's ability to reunify with the child, even if they have not yet affected the parent's

ability to care for the child, the court may address those deficiencies in the reunification

plan. (Christopher H., at p. 1008.) At the disposition hearing, the court has broad

discretion to determine what would best serve and protect the child's interests and to

fashion a dispositional order in accordance with this discretion. (Id. at p. 1006.) The

court's determination will not be reversed absent a clear abuse of that discretion. (Ibid.;

In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104 [applying abuse of discretion

standard to order requiring formal supervision of visitation].)

To the extent that Patricia challenges the sufficiency of the evidence supporting

the order that she undergo drug testing, we uphold the juvenile court's findings and orders

if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d

1031, 1036-1037.) Pursuant to that standard, we consider the evidence in the light most

5 favorable to the prevailing party and do not reweigh the evidence, evaluate the credibility

of witnesses, or resolve evidentiary conflicts. (In re Autumn H. (1994) 27 Cal.App.4th

567, 576.) Both the abuse of discretion and the substantial evidence standards of review

presume deference to the trial court. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.)

Patricia argues that the juvenile court abused its discretion in ordering random

drug testing as part of her reunification plan because there was no substantial evidence

that she was using drugs or abusing alcohol. We conclude that the order requiring

Patricia to undergo drug testing as part of her case plan was appropriate to address the

unique facts of the individual family and to protect the children and, therefore, was not an

abuse of discretion. Further, we conclude there is substantial evidence to support the

court's implicit finding that Patricia may have an ongoing problem with drugs, and that

drug testing was therefore warranted.

The court recognized that the children were detained as a result of domestic

violence, and not drug abuse, but explained that there is frequently a direct relationship

between drug use—methamphetamine in particular—and the behavior that leads to

domestic violence. Patricia admitted having used methamphetamine, as well as

marijuana, in the past. In addition, the Agency had received numerous reports over the

past three years indicating that Patricia was using methamphetamine, selling

methamphetamine out of the family home, had offered methamphetamine to a neighbor,

and had been involved in transporting drugs across the border. One of the children

indicated that Patricia had been going out "partying" at night with her aunts for the past

three years and, at times, did not return home until the following day. Patricia admitted

6 that she sometimes did not return home after going out in the evenings. Finally, two

separate reports indicated that Patricia had been using drugs and having late night rowdy

parties at the family home after the children were removed. Because Patricia's

involvement with drugs posed a risk of interfering with her ability to reunite with and

care for her children, the court did not abuse its discretion in ordering Patricia to undergo

drug testing as part of her reunification plan. (See In re Christopher H., supra,

50 Cal.App.4th at p. 1007.)

Patricia makes several arguments regarding the lack of evidence of drug use.

First, Patricia argues that her admitted drug use was in the past. However, past conduct

may be probative of current conditions. (See In re S.O. (2002) 103 Cal.App.4th 453,

461). Further, as discussed, there were numerous reports of her involvement in drug

related activity within the past three years. Patricia also argues that the prior allegations

were ultimately deemed inconclusive, but that does not preclude the court from

considering the prior allegations, as part of the totality of evidence, at the disposition

hearing. Next, Patricia argues that the allegations were made by anonymous and

unidentified sources. This is not accurate—one was made by a neighbor who spoke

directly with the social worker and another was made by one of Patricia's children.

Finally, Patricia argues that her refusal to submit to voluntary drug testing is not evidence

of the need for mandatory testing, but there is no indication that the court ordered testing

based on Patricia's refusal to undergo voluntary testing. Regardless, her consistent

refusal to undergo voluntary testing was additional circumstantial evidence indicating

possible continued drug use and we are not aware of any authority indicating that the

7 court could not consider this as a factor in ordering drug testing. We conclude that there

was substantial evidence before the court indicating that ongoing drug use was a potential

barrier to reunification.

Patricia also argues that the drug testing requirement in the reunification plan was

not properly tailored to her specific circumstances, relying on Patricia W. v. Superior

Court (2016) 244 Cal.App.4th 397. Patricia's reliance on Patricia W. is misplaced. The

court there was not concerned with whether the juvenile court had proper justification for

the services it had imposed, but rather, whether adequate services were provided to

address all issues and support reunification prior to the termination of parental rights.

(Id. at p. 419.) Here, the court acted appropriately to ensure that the reunification plan

addressed all issues that could prevent reunification, including drug abuse, thereby

seeking to avoid the problem addressed in Patricia W.

Finally, Patricia argues that there was no evidence that drug or alcohol abuse had

contributed to the domestic violence, or the resulting dependencies. Patricia relies on

In re Sergio C. (1999) 70 Cal.App.4th 957, in which the court noted that the trial court

has "broad discretion to make virtually any order deemed necessary for the well-being of

the child" but nevertheless reversed an order requiring the child's father to submit to

random drug testing. In that case, the only evidence of drug abuse was a single, unsworn

statement of the child's mother, a known drug abuser herself, to the social worker, which

the father flatly denied. (Id. at p. 960.) In addition, the Agency conceded that the

petition should not have been sustained as against the child's father in the first instance.

(Ibid.) Here, in contrast, the court sustained the petition as against Patricia and there are

8 numerous reports over a period of several years from various individuals, as well as

Patricia's own admission, indicating Patricia's involvement, in one way or another, with

drugs.

DISPOSITION

The order is affirmed.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

MCDONALD, J.