In re Matthew N. CA2/2 ( 2014 )

Filed 6/23/14 In re Matthew N. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
In re MATTHEW N., a Person Coming B251698
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK75938)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RAYMOND N.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Annabelle Cortez, Judge. Affirmed.
Cthristopher R. Booth, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Appellant contends that the dependency court improperly ordered him to submit to
alcohol testing and to participate in a 12-step program. We find that the dependency
court’s dispositional order best served the interest of appellant’s child and thus was not an
abuse of discretion. Accordingly, we affirm.
BACKGROUND
This matter came to the attention of the Department of Children and Family
Services (DCFS) on September 28, 2012. Three-year-old Mathew N. had been brought
to the emergency room by S.W., Mother, for treatment of blisters resulting from burns on
his back, buttocks, and thigh areas. Mother gave inconsistent explanations for Mathew’s
burns. Finally, after failing a polygraph test, she admitted that she had hit Mathew and
placed him in a bathtub with scalding hot water.
Mathew was the subject of a prior dependency proceeding in 2009, when he was
born prematurely at 24 weeks and tested positive for cocaine. In that proceeding, the
dependency court sustained a count stating that Raymond N., Father, had a history of
marijuana use and was a daily user of alcohol, leaving him unable to adequately protect
and supervise Mathew. At the conclusion of the prior proceeding, Father was granted
monitored visitation with Mathew.
Mother had an extensive DCFS referral history, including for smoking crack
cocaine in the presence of her children, and had been diagnosed with schizophrenia and
severe depression. Father had a considerable criminal history, including convictions for
marijuana possession for sale, narcotics possession for sale, battery, and firearms
offenses, and was on probation at the time the instant dependency proceeding was
initiated for being a felon in possession of a firearm. Father’s probation term was
scheduled to end on May 21, 2013. He was an “active father” to Mathew and visited
Mathew pursuant to the prior visitation orders.
A Welfare and Institutions Code section 300 petition1 was filed on October 9,
2012, on behalf of Mathew as well as three half siblings (who are not subject to this
1 All further statutory references are to the Welfare and Institutions Code.
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appeal). The petition alleged that Mother physically abused Mathew by repeatedly
striking him and placing him in scalding hot water. At the October 9, 2012 detention
hearing, the dependency court detained Mathew in foster care, granted Father monitored
visitation, and ordered DCFS to provide Father with low-cost or no-cost weekly
substance abuse testing.
Father tested positive for alcohol on October 12, 2012.
A jurisdiction/disposition report was filed on November 27, 2012. Father told the
social worker that he was shocked when he heard that Mother had physically abused
Mathew. He said that, although he knew Mother had been diagnosed with mental health
issues, she was a good mother to the children when he was in a relationship with her.
Father acknowledged that he had a criminal past, but he said he was a “changed man,”
and requested that all four children be placed in his care. DCFS was not in favor of this
arrangement due to Father’s criminal history and because he was on probation. The
social worker noted, however, that Father was visiting Mathew on a regular basis, and the
visits were going well.
Father’s home was evaluated in November 2012 for possible placement of
Mathew. Father lived with relatives in a large home that appeared neat and clean, with
running water and electricity. The social worker reported that Father’s interactions with
Mathew were “very positive” and he appeared to be a “good father.”
The social worker spoke with Father’s probation officer, who reported that Father
was complying with the terms of his probation. The probation officer recommended
against Mathew being released to Father, though, because Father had an unresolved
alcohol problem. The probation officer said that Father had alcohol on his breath on two
separate visits to her office. The most recent time was on November 8, 2012, when,
according to the probation officer, “it smelled like he took a bath in alcohol.” Father told
the probation officer that he was going to resolve his alcohol problem in order to gain
custody of Mathew.
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Father tested negative for drugs and alcohol on December 12, December 18, and
December 27, 2012, and January 4, 2013. He missed a test on January 14, 2013,
claiming that the social worker “did not put the paperwork in on time.”
Over DCFS’s objection, Mathew was released to Father’s custody on January 17,
2013. Father was ordered to abstain from alcohol, to submit to weekly drug and alcohol
tests, to enroll in Alcoholics Anonymous (A.A.) with a sponsor, and to take Mathew to
all of his appointments. On February 12, 2013, Father reported that he was attending
A.A. meetings twice weekly and would have a sponsor once he attended more meetings.
The dependency court sustained the section 300 petition on July 17, 2013, finding
that Mother abused Mathew by striking him and placing him in scalding hot water, that
she engaged in violent physical altercations with her male companion in 2012 (not
Father), and that she had a history of mental and emotional problems. Father was not
named in the petition.
At the July 26, 2013 disposition hearing, DCFS continued to object to the release
of Mathew to Father. Counsel for DCFS stated that in the prior dependency proceeding,
Father had failed to comply with the case plan, which included regular testing. He
initially tested positive and then stopped testing altogether. DCFS still had concerns
about Father and believed that Father should continue to submit to testing in order to
demonstrate sobriety, and continue to participate in a 12-step program. DCFS added that
Mathew is a special-needs child. Father’s counsel noted that Father had not tested
positive for alcohol since October of the prior year, and argued that Father should not be
subject to continued testing.
The dependency court declared Mathew a dependent of the court, ordered him
removed from Mother, and made a home-of-parent order for Mathew with Father, with
family preservation services. Father was ordered to participate in a 12-step program with
a sponsor and to submit to on-demand drug and alcohol tests, and to complete a full
rehabilitation program if any tests were missed or positive.
Father timely appealed the dispositional order.
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DISCUSSION
Father contends on appeal that the order requiring him to submit to drug and
alcohol testing was improper. Following the filing of Father’s opening brief, this Court
took judicial notice of an order from the dependency court dated January 24, 2014,
vacating the order that Father test for drugs. Father concedes that the issue of drug
testing is now moot, but argues that he should not be required to test for alcohol
consumption or participate in a 12-step program.
The dependency court has “broad discretion” in fashioning a dispositional order to
best serve and protect the child’s interests. (In re Cole C. (2009) 174 Cal. App. 4th 900,
918; In re Christopher H. (1996) 50 Cal. App. 4th 1001, 1006 (Christopher H.).) As such,
we will reverse a dispositional order only if it suffers from a clear abuse of discretion.
(Christopher H., at p. 1006.)
Section 362, subdivision (a), vests discretion in the dependency court to “make
any and all reasonable orders for the care, supervision, custody, conduct, maintenance,
and support” of a dependent child. Father contends, however, that the substance abuse
component of the dispositional order violates section 362, subdivision (d), which states:
“The program in which a parent or guardian is required to participate shall be designed to
eliminate those conditions that led to the court’s finding that the child is a person
described by Section 300.” Father argues that, in this dependency matter, the condition
that led to Mathew’s becoming a dependent of the court was Mother’s abuse and
psychological problems, not Father’s drinking.
The appellate court in In re Basilio T. (1992) 4 Cal. App. 4th 155 reversed the
portion of a dispositional order requiring the appellant parents to drug test and participate
in substance abuse therapy. The court noted the absence of any evidence that the
appellants had a substance abuse problem. (Id. at p. 172.) It explained, however, that if
evidence of a substance abuse problem arose later in the proceedings, the trial court could
modify the reunification plan to include a substance abuse component. (Id. at p. 173, fn.
9.)
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In contrast, the appellate court in Christopher H. found that a dispositional order
requiring drug and alcohol testing was warranted even though the dependency court
struck the allegation that the appellant’s alcohol problems negatively affected his ability
to care for his son. (Christopher H., supra, 50 Cal. App. 4th 1001, 1004-1006.) The
appellate court found the matter distinguishable from In re Basilio T. because the record
demonstrated that the appellant had a substance abuse problem based on his three arrests
for driving under the influence. (Christopher H., at p. 1007.) The problem posed a
potential risk of interfering with the appellant’s ability to care for his son, and made
reunification unlikely unless the problem was managed. (Ibid.) Although the
dependency court was technically not required to address the appellant’s substance abuse,
it had discretion to do so, and, given the appellant’s history of arrests, it would have been
“remiss” to fail to address the problem even though the problem had not yet affected the
appellant’s ability to care for his son. (Id. at p. 1008.)
The reasoning of Christopher H. applies equally well here. Father is correct that,
in this proceeding, Mathew was not found to be a dependent of the court because of
Father’s substance abuse issues. But, as in Christopher H., the record contains
substantial evidence that Father has substance abuse issues that have the potential to
leave him unable to properly care for Mathew. Father’s numerous convictions include
one for marijuana possession and another for narcotics possession. In the prior DCFS
proceeding, the dependency court sustained a count that Father had a history of marijuana
use and was a daily user of alcohol, leaving him unable to adequately protect and
supervise Mathew. The record reflects that Father tested positive for alcohol in that prior
proceeding and then stopped testing entirely. Father also tested positive for alcohol as
the instant matter was ongoing, in October 2012, and missed another test in January
2013. And his probation officer reported that Father has an unresolved alcohol problem
and went to her office smelling as if he had taken a “bath” in alcohol in November 2012.
As of the time of the July 2013 disposition hearing, Father had no recently missed
or failed tests. Father’s apparent efforts to overcome his alcohol abuse issues and turn his
life around are commendable, and in all respects he appears to be a loving parent to
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Mathew. Alcohol testing will facilitate Father’s efforts to provide a suitable home for
Mathew, who is not only young, but also has special needs. (See Christopher H., supra,
50 Cal. App. 4th 1001, 1008.) The dependency court, therefore, did not abuse its
discretion by requiring Father to test for alcohol and to participate in a 12-step program.
DISPOSITION
The dispositional order, including the alcohol abuse component of Father’s case
plan, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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