In re Elina S. CA2/3 ( 2021 )

Filed 3/18/21 In re Elina S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ELINA S., a Person Coming B302800
Under the Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. 19CCJP05641A)
Plaintiff and Respondent,
v.
PETROS K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Commissioner. Affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Petros K. (father) appeals from a December 4, 2019
dispositional order of the juvenile court, urging that the juvenile
court abused its discretion by ordering him to drug test “upon
reasonable suspicion of use.” We conclude that father has
forfeited the contention by failing to raise it in the trial court and,
in any event, the contention lacks merit. We thus will affirm the
dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
Elina S., born in October 2016, is the child of father and
Mina G. (mother). On August 30, 2019, the Los Angeles County
Department of Children and Family Services (DCFS) filed a
juvenile dependency petition alleging that Elina was a dependent
child pursuant to Welfare and Institutions Code1 section 300,
subdivisions (a) and (b), because (1) father and mother had a
history of domestic violence, which placed Elina at risk of harm
(counts a-1, b-1); (2) in 2019, father physically abused Elina by
smothering her with a pillow (counts a-2, b-2); and (3) father had
a history of substance abuse and was a current user of
marijuana, which rendered him incapable of providing regular
care of Elina (count b-3).
On December 4, 2019, the juvenile court sustained the
domestic violence and child abuse counts of the petition (counts a-
1, a-2, b-1, and b-2), but dismissed the substance abuse count
(count b-3), finding that DCFS had not met its burden as to that
count. The court then declared Elina a juvenile court dependent
and ordered her removed from father and placed with mother
under DCFS supervision.
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
Before entering a case plan, the court asked whether any
party wished to be heard. Father’s counsel asked that the court
consider a 26-week, rather than a 52-week, domestic violence
program, but he did not ask the court to strike the drug-testing
component of the proposed case plan. The court rejected
counsel’s request and ordered father to engage in a variety of
services, including “on reasonable suspicion of use[,] on demand
consecutive drug tests; if any test is missed or dirty, then full
drug rehab program w/ random testing.”
Father timely appealed from the December 4, 2019
dispositional order.
DISCUSSION
Father’s sole contention on appeal is that the trial court
abused its discretion by ordering him to drug test because it
dismissed the allegation of the petition alleging marijuana use.
For the reasons that follow, father’s contention lacks merit.
As a general rule, a party forfeits his or her right to
challenge a ruling on appeal by failing to raise the issue in the
trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
“ ‘[A] reviewing court ordinarily will not consider a challenge to a
ruling if an objection could have been but was not made in the
trial court. [Citation.] The purpose of this rule is to encourage
parties to bring errors to the attention of the trial court, so that
they may be corrected. [Citation.]’ [Citation.]” (In re Daniel B.
(2014) 231 Cal.App.4th 663, 672; see also In re A.C. (2017)
13 Cal.App.5th 661, 671 [“ ‘ “An appellate court will ordinarily
not consider procedural defects . . . where an objection could have
been but was not presented to the lower court by some
appropriate method” ’ ”]; In re Marriage of Hinman (1997)
55 Cal.App.4th 988, 1002 [same].)
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In the present case, although father was given the
opportunity to challenge the proposed case plan, he did not
challenge the order to drug test. Accordingly, he failed to
preserve this issue for appeal.
In any event, even were we to reach the issue on the
merits, we would find no abuse of discretion. (See In re K.T.
(2020) 49 Cal.App.5th 20, 25 [disposition case plan reviewed for
abuse of discretion]; In re Gabriel L. (2009) 172 Cal.App.4th 644,
652 [same].) The juvenile court has “wide latitude” in making
orders for the well-being of the child and “is not limited to the
content of the sustained petition when it considers what
dispositional orders would be in the best interests of the children.
(In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183; In re
Christopher H. [(1996)] 50 Cal.App.4th [1001,] 1006–1008.)”
(In re Briana V. (2015) 236 Cal.App.4th 297, 311.) Instead, “the
court may consider the evidence as a whole.” (Ibid.)
Thus, in In re Briana V., supra, 236 Cal.App.4th 297, the
Court of Appeal held that the juvenile court had not abused its
discretion by ordering the father to complete sexual abuse
counseling, even though physical abuse, not sexual abuse,
precipitated DCFS’s involvement with the family. The court
noted that although there was no evidence that the father had
sexually abused his daughters, he had a prior conviction for rape
and was a registered sex offender. (Id. at pp. 300–301, 307.)
Under those circumstances, the Court of Appeal said, “we cannot
say that the juvenile court’s order requiring father to attend
sexual abuse counseling was beyond the bounds of reason.”
(Id. at p. 312.)
The court similarly concluded in In re Christopher H.,
supra, 50 Cal.App.4th 1001. There, the juvenile court dismissed
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an allegation that the father’s alcohol abuse had placed his child
at risk of harm, but it nonetheless ordered the father to submit to
drug and alcohol testing as a condition of reunification. The
father challenged the order, urging that the drug or alcohol
testing condition imposed was beyond the court’s jurisdiction
because the court found unproven the allegation that the father’s
alcohol-related problems negatively affected his ability to care for
the child. (Id. at p. 1006.) The Court of Appeal disagreed and
affirmed. It explained: “ ‘ “[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
his child, the court may address them in the reunification plan.”
(Id. at p. 1008, some italics added.)
In the present case, there was some evidence that father
used marijuana: In August 2019, mother told a children’s social
worker that father used marijuana, which she believed was
causing him to behave aggressively; and in October 2019, mother
said she suspected father might be using drugs because he
exhibited “random mood swings.” Although the trial court
concluded mother’s statements were too equivocal to support a
jurisdictional finding, the juvenile court did not abuse its
discretion by ordering father to drug test if (and only if) DCFS
had reason to suspect he was under the influence of drugs.
The present case is unlike In re Jasmin C. (2003)
106 Cal.App.4th 177, on which father relies. There, the juvenile
court asserted jurisdiction over a child based on a violent
rampage by her father, which led to his arrest. On appeal, the
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child’s mother did not challenge either the assumption of
jurisdiction or many elements of the case plan, but she urged she
should not be required to attend parenting classes because there
was no evidence her parenting was deficient. The Court of
Appeal agreed and reversed the order requiring the mother to
take parenting classes, noting that the mother “did not abuse her
children, fail to protect them, or engage in any other
inappropriate behavior. Father’s rampage was an isolated
incident perpetrated by only him, during which mother
immediately interceded, physically restrained and calmed him,
and directed another to call the police.” (Id. at p. 181.) Under
these circumstances, the court found no basis to require the
mother to attend parenting classes.
The present case is distinguishable from Jasmin C. Unlike
Jasmin C., in which there was no evidence that the mother’s
parenting was deficient in any way, there is some evidence in the
present case that father may be using marijuana. Although that
evidence did not support an independent count of the petition, it
did support the court’s order that father be required to drug test
upon a reasonable suspicion that he was under the influence of
marijuana or other drugs.
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DISPOSITION
The dispositional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
SALTER, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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