In re John M. CA2/7 ( 2023 )

Filed 5/23/23 In re John M. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JOHN M. et al., Persons B319111
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 20CCJP00499)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
OSCAR M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Oscar M. (Father) appeals from the jurisdiction findings
and disposition orders declaring 15-year-old John M. and nine-
year-old Emerald M. dependents of the juvenile court after the
court sustained allegations under Welfare and Institutions Code 1
section 300, subdivision (b)(1), that Father had mental and
emotional problems, including visual and auditory hallucinations,
and Father and Maria R. (Mother) had a history of substance
abuse, including methamphetamine use, which placed the
children at risk of serious physical harm. Father contends there
is not substantial evidence to support the court’s jurisdiction
finding he abused drugs, and therefore, the disposition orders
requiring him to participate in a full drug program with aftercare
and random drug testing should be reversed.
Because Father does not appeal from the jurisdiction
findings based on his mental and emotional problems or Mother’s
substance abuse, his challenge to the jurisdiction finding based
on his substance abuse is not justiciable. Moreover, the juvenile
court did not abuse its discretion in ordering Father to
participate in a drug program and random drug testing. We
affirm.
1 Further statutory references are to the Welfare and
Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referrals, Investigation, and Petition
On December 3, 2021 the Los Angeles County Department
of Children and Family Services (Department) received a referral
alleging Father took Emerald to the hospital because he believed
she had been sexually assaulted by an unknown perpetrator who
had been coming into the home. The reporting party stated
Father was hallucinating and delusional. Paternal grandmother,
Gudelia H., denied anyone came into the home she shared with
Father, and Emerald denied anyone touched or abused her. The
referral also alleged Father had been placed on a “5150 hold”
months earlier after pointing a gun at his nephew.2
A social worker interviewed Father in the family home on
December 3. Father was calm and answered questions
coherently. He did not appear to be under the influence of drugs
or alcohol; however, he reported hearing five or six voices
speaking to him during the interview. Father stated that around
the time the COVID-19 pandemic began (in early 2020), he and
2 Section 5150 authorizes peace officers and certain mental
health professionals to hospitalize individuals perceived to be a
danger to themselves or others for a 72-hour period to conduct a
mental health evaluation. On June 28, 2021 the Department
received a referral alleging Father was placed on a 5150 hold
after he pulled out a gun for protection and accused Gudelia and
the paternal aunt of bringing “‘enemies’” into the home and
installing surveillance devices. The referral was deemed
inconclusive. On November 27, 2021 Father reported he had
video footage of unknown people coming into his home while he
and the children were sleeping. The Department did not find
sufficient evidence to assign the referral for an investigation.
3
Mother, who were then married and living together, started
having problems.3 Father began to hear “weird noises around the
home,” but Mother told him he was “crazy,” and she moved out,
leaving the children with him. Father started hearing more
noises, and he became convinced something bad was happening
to the children. He installed video cameras throughout the home,
and he claimed he could see the shadows of people moving around
in the recordings. According to Father, people would come
through the front door or crawl through the ceiling, and it
appeared the people were sexually molesting the children.
Father admitted he smoked marijuana in the past, but in
the summer of 2020 he stopped because he was working as a bus
driver for the Los Angeles Unified School District (LAUSD) and
was subject to random drug testing. The last time he smoked
marijuana was in early 2020. Father denied using illicit drugs or
keeping drug paraphernalia in the home. The social worker told
Father hallucinations can result from drug use and asked Father
if he would take a drug test the following day. Father declined to
do so. The social worker conducted a walk-through of the home,
but it was dark in Father’s room, so she could not see if there
were drugs or drug paraphernalia in the home. On December 8,
2021 Father again declined to take a drug test, and after
agreeing on January 7, 2022 to take a drug test, he failed to show
for a test scheduled for the next day. On January 10 Father
again agreed to drug test, and the next day he tested negative.
3 Father and Mother were married in 2012 or 2013, and on
October 28, 2021 the family court entered a judgment of
dissolution awarding them joint legal custody of the children,
with Father having sole physical custody and Mother having
unmonitored visitation.
4
On December 3, 2021 the social worker interviewed John,
Emerald, and Gudelia individually. John reported that around
the beginning of the year, Father would say people were coming
into the home to hit John and Emerald and to touch Emerald
inappropriately. John told Father no one had come into the home
or had done anything improper, but Father was insistent. John
stated in December and in subsequent interviews in early 2022
that he had never seen Father drink alcohol, use drugs, or be
under the influence of drugs.
Emerald told the social worker that in 2020 Father began
to talk about people being in the home. He had stopped for some
period, but recently started seeing people again. She had never
witnessed Father being under the influence of drugs or alcohol;
he was not violent; and she felt safe in the home. Emerald denied
she had been sexually abused. However, on at least one occasion
Father wrapped her tightly in a blanket because he feared a
stranger would touch her sexually. She later reported she was
afraid of Father’s behavior and preferred to stay with Mother.
Gudelia stated she wanted Father to receive counseling
because he was hearing voices. Father had shown Gudelia the
video recordings he believed depicted people entering the home
and abusing the children, but she did not see anything abnormal
on the recordings. Gudelia did not know what was causing
Father’s hallucinations, but she wondered whether he might be
using drugs. However, although she had seen Father use
marijuana in the past, she had never seen him use or be under
the influence of illicit drugs. Father did not smoke around her or
the children, and she never saw drugs or paraphernalia in the
home.
5
Mother told the dependency investigator she received a text
message on December 25, 2021 from a person she did not know
(although she suspected the message came from Father’s
girlfriend) stating, “Save the children. He has been on meth for a
month. They are not safe.”
Father’s girlfriend, Van T., denied Father used drugs. She
said Father was a very loving and attentive father, and Father’s
belief that people were trespassing in his home was grounded in
reality because Mother had shown up in his backyard before, and
they could hear noises because the walls of the house were thin.
Paternal aunt Denise M. reported that Father’s behavior
had changed substantially in the prior two years, and he had
become paranoid, aggressive, and “‘schizophrenic.’” Denise found
a brown bag containing a pipe in Father’s sock. It was “‘not a
regular looking pipe for weed.’” Rather, it looked “‘like a straw
and from the end, a ball all clear.’” Denise believed Father was
using drugs on and off, and he needed help but was too proud to
ask. She believed Van was the reason Father was using drugs in
light of a comment by Father that Van had “connections.”
On January 27, 2022 the Department received a second
referral alleging Father called the police because he believed
friends of John had entered the home and punched John in his
back. When a mandated reporter arrived at the home, Father
showed video recordings he insisted showed multiple people in
the home, but the reporter saw only furniture. According to the
police report, John told the responding police officers that no one
had hit him. Further, John said Father was a drug user and was
using methamphetamine. Mother arrived at the scene and
likewise told the officers she believed Father was using
methamphetamine.
6
The next day the social worker interviewed Mother, who
was living at the home of maternal grandmother. Shortly after
marrying Father in 2012 or 2013, they began using
methamphetamine and smoking marijuana together, a few times
per year at first, then on long weekends. In 2015 Mother stopped
using drugs and asked Father to do the same. Father agreed,
and Mother believed Father was drug-free from 2015 until early
2020. However, a few days before Mother moved out in 2020, she
saw that Father had a “meth rock” in one of his socks. At that
time Father would occasionally tell her that people were trying to
break into the home. In 2021 Father started sending her videos
purporting to show intruders (who were not there). Mother
became concerned that Father’s delusions might be due to his
using methamphetamine. Mother admitted she had last used
methamphetamine three months earlier. She used marijuana on
a daily basis to manage her stress, and she tested positive for
marijuana but negative for all other substances on January 31,
2022.
On January 28 the social worker visited Father at his
home. Father appeared tired and was experiencing delusions
during the visit, but there was no indication he was under the
influence of any substance. Father reiterated he did not use
drugs and told the social worker that Mother was conspiring
against him with the people whose voices he heard. Asked if he
had ever used methamphetamine or a drug other than
marijuana, he responded, “‘Maybe cocaine,’” but it was a “‘long
time’” ago and he had not used it recently. The social worker
asked Father to take a drug test the following day, but Father
declined, noting he had already tested (presumably referring to
the January 11 negative test). On January 31 the social worker
7
again asked Father to take a drug test, and he declined. Father
agreed to drug test on February 2, and he tested negative for
drugs.
On February 4, 2022 the children were detained from
Father and released to Mother. On February 8 the Department
filed a petition on behalf of John and Emerald under section 300,
subdivision (b)(1), alleging Father had mental and emotional
problems, including auditory and visual hallucinations, which
placed the children at risk of serious physical harm, and Mother
failed to protect the children from Father’s mental and emotional
problems (count b-1). The petition further alleged Mother was a
current abuser of methamphetamine and marijuana, and Father
failed to protect the children from Mother’s drug use (count b-2);
and Father had a history of substance abuse, including cocaine,
methamphetamine, and marijuana, and Mother failed to protect
the children from Father’s substance abuse (count b-3).
At the February 10, 2022 detention hearing, the juvenile
court detained the children and released them to Mother. The
court ordered Mother and Father to have weekly random and on-
demand drug testing and referred Father for psychiatric or
psychological counseling and follow-up treatment.
B. The Jurisdiction and Disposition Report and Hearing
The jurisdiction and disposition report attached the police
call logs for multiple 2021 incidents. The log for the June 28,
2021 incident (in which Father brandished a gun) indicated
Father was possibly under the influence of alcohol or marijuana.
The log for an incident on September 8, 2021 (in which Father
reported three people were sexually assaulting the children)
included a notation that Father was “possibly 5150/under the
8
influence of narcotics.” The log for a November 25, 2021 incident
(in which Father rambled about people touching the children)
included a notation that Father was “possibly under [the]
influence.”
The March 9, 2022 last minute information for the court
stated Father had been referred for weekly testing and tested
negative for drugs on February 24, 2022; he was turned away on
March 3 for inadequate identification. A social worker stated
Father’s negative tests were “‘not on-demand’” because “‘he would
call and agree to test days later.’” Father had enrolled in a
parenting class and attended a therapy session, but he declined
to undergo a psychiatric evaluation.
At the March 10, 2022 jurisdiction and disposition hearing,
the juvenile court sustained all three counts concerning Father’s
mental health and Mother’s and Father’s drug abuse, but the
court struck the allegations that each parent failed to protect the
children from the other parent. As to count b-3 alleging Father
had a history of substance abuse, the court found, “Father
himself admitted that he may have used cocaine. He was not
forthcoming at all regarding his own substance abuse or
substance use. He was observed by his own relative [Denise] . . .
that there is a significant change of behavior especially with
regard to his aggression and paranoia in the last two years in
which the aunt also found a pipe which is . . . not one used for
marijuana.” The court found this was circumstantial evidence of
Father’s continued use of drugs, placing the children at risk of
harm “because his drug use may be a contributing factor to his
erratic behavior and his paranoia.” Further, “with regard to the
father’s negative [drug] tests, those are not random tests. Those
are scheduled tests. So we do not have any information whether
9
the father is indeed sober as of this point in time. And by his own
statement to his sister, the paternal aunt, he told his sister that
his girlfriend has past drug connections.”
The juvenile court declared the children dependents of the
court and ordered them removed from Father’s custody and
released to Mother. The court ordered Father to participate in a
full drug program with aftercare, weekly random and on-demand
drug testing, mental health counseling including a psychological
assessment, parenting classes, and individual counseling to
address case issues. The court also ordered Father to take all
prescribed medication, and it ordered monitored visitation for two
hours twice weekly.
Father timely appealed. Mother did not appeal.
DISCUSSION
A. Father’s Challenge to One of Three Jurisdiction Findings Is
Not Justiciable
Father contends there is not substantial evidence to
support the juvenile court’s finding on count b-3 of the petition
that Father had a history of substance abuse, placing the
children at risk of serious physical harm. Father does not,
however, challenge the juvenile court’s exercise of jurisdiction
over John and Emerald based on the sustained allegations
Father had mental and emotional problems and Mother was a
current substance abuser. Nor does he challenge the children’s
placement with Mother. Because the juvenile court has
jurisdiction over the children regardless of whether the court
properly sustained the substance-abuse allegation as to Father,
10
and he has not identified any adverse consequences of that
finding, Father’s challenge is not justiciable.
An appeal from a jurisdiction finding under section 300 is
not justiciable where “no effective relief could be granted . . . , as
jurisdiction would be established regardless of the appellate
court’s conclusions with respect to any such [challenged]
jurisdictional grounds.” (In re Madison S. (2017) 15 Cal.App.5th
308, 329 (Madison S.); accord, In re I.A. (2011) 201 Cal.App.4th
1484, 1490 [“An important requirement for justiciability is the
availability of ‘effective’ relief—that is, the prospect of a remedy
that can have a practical, tangible impact on the parties’ conduct
or legal status.”].) “As long as there is one unassailable
jurisdictional finding, it is immaterial that another might be
inappropriate.” (In re Ashley B. (2011) 202 Cal.App.4th 968, 979;
see In re Briana V. (2015) 236 Cal.App.4th 297, 308 [“‘[A]
jurisdictional finding good against one parent is good against
both. More accurately, the minor is a dependent if the actions of
either parent bring [the minor] within one of the statutory
definitions of a dependent.’”]; Briana, at p. 309 [“[W]e need not
address jurisdictional findings involving one parent where there
are unchallenged findings involving the other parent.”].)
Nevertheless, appellate courts “may exercise their
‘discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) serves as the basis for
dispositional orders that are also challenged on appeal [citation];
(2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings [citations];
or (3) “could have other consequences for [the appellant], beyond
jurisdiction.” (In re D.P. (2015) 237 Cal.App.4th 911, 917,
11
quoting In re Drake M. (2012) 211 Cal.App.4th 754, 762-763;
accord, Madison S., supra, 15 Cal.App.5th at p. 329.)
Father acknowledges the juvenile court has jurisdiction
over John and Emerald regardless of the resolution of this
appeal, but he urges us to exercise our discretion to consider his
challenge because a sustained substance-abuse finding could
potentially impact future dependency proceedings, and it is the
basis for the disposition orders. (See In re D.M. (2015)
242 Cal.App.4th 634, 638-639 [appellate court exercised
discretion to consider mother’s challenge to jurisdiction finding
she intentionally inflicted serious physical harm upon the child
despite unchallenged findings based on father’s physical and
sexual abuse of mother where the finding as to mother had the
potential to impact future proceedings, and the court’s order that
she attend parenting classes and individual counseling “hinge[d]
on the validity of the jurisdictional finding against her”].)
We decline to exercise our discretion. Father has failed to
identify any consequences in a potential future dependency
proceeding that will result from the juvenile court’s substance-
abuse finding. The Department’s evidence that Father used
methamphetamine, cocaine, and marijuana in the past and had
resumed using methamphetamine (including possession of the
drug and paraphernalia), as well as Father’s paranoid and
delusional behaviors endangering the children, may be
considered in a future dependency proceeding regardless of the
jurisdiction finding in this case, and any future custody order
would need to be based on conditions existing at that time. (See
Madison S., supra, 15 Cal.App.5th at p. 330 [“[T]he substance of
the spanking allegation would almost certainly be available in
any future dependency or family court proceeding, regardless of
12
any determination on our part as to whether it formed an
independent basis for juvenile court jurisdiction.”]; In re I.A.,
supra, 201 Cal.App.4th at pp. 1494-1495 [“Father . . . fails to
suggest any way in which this [jurisdiction] finding actually could
affect a future dependency or family law proceeding, and we fail
to find one on our own. In any future dependency proceeding, a
finding of jurisdiction must be based on current conditions.”].)
Moreover, although Father challenges the disposition
orders requiring that he participate in a full drug program with
aftercare and random drug testing, he argues only that the
orders should be reversed because the jurisdiction finding should
be reversed. But the juvenile court had discretion to order a
disposition case plan for Father based on the sustained
allegations against Father and Mother. (See In re K.T. (2020)
49 Cal.App.5th 20, 25 [“The court’s broad discretion to determine
what would best serve and protect 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.”]; In re D.L. (2018)
22 Cal.App.5th 1142, 1148 [“Irrespective of whether the court’s
jurisdictional findings as to [mother] were well founded, the court
had jurisdiction over the child. Accordingly, it had the authority
to order a nonoffending parent to participate in services.”].) As
we discuss below, regardless of whether Father’s alleged
substance abuse would support jurisdiction, the court had
discretion to order Father to participate in a drug program and
random drug testing to protect John and Emerald.
13
B. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Father To Participate in a Drug Program and
Random Drug Testing
We review the juvenile court’s disposition orders for an
abuse of discretion. (In re F.P. (2021) 61 Cal.App.5th 966, 975
[“‘The juvenile court has broad discretion to determine what
would best serve and protect the child’s interests and to fashion a
dispositional order accordingly. On appeal, this determination
cannot be reversed absent a clear abuse of discretion.’”]; In re
K.T., supra, 49 Cal.App.5th at p. 25.)
There was significant evidence Father continued to use
illicit drugs and his substance abuse endangered the children. As
the juvenile court observed, Father admitted he used marijuana
and cocaine in the past, but he was not forthcoming about using
other drugs. He denied ever using methamphetamine, but
Mother reported she and Father regularly used
methamphetamine before 2015, and she suspected Father was
again using methamphetamine because she found a meth rock in
his sock in 2020 and his behavior had grown increasingly
paranoid and delusional in late 2021. Denise likewise believed
Father was using methamphetamine because she found a glass
pipe in his sock (not of the type used to smoke marijuana) and
Father exhibited dramatic behavioral changes since 2020,
including aggression and paranoia. Although John told social
workers he never saw Father use drugs, he reported to the police
officers who responded to the January 27, 2021 incident that
Father used methamphetamine. The police call logs for Father’s
calls on September 8 and November 25, 2021 and January 27,
2022 also stated Father may have been under the influence of
drugs or alcohol at the time of the calls. Father declined the
14
Department’s requests to test for drugs on December 4 and 8,
2021 and January 31, 2022, and he failed to report to an agreed-
upon test on January 8, 2022. Although he tested negative for
drugs on January 11 and February 2, 2022, Father took both
tests a few days after he declined or missed a test. After the
juvenile court at the detention hearing referred Father for weekly
drug testing, Father tested negative once (on February 24, 2022)
and was turned away for a lack of identification once (on
March 2). As the court found, Father’s negative tests were not
random and did not demonstrate Father was not using drugs.
Although Father argues he was required to drug test for LAUSD,
there is no evidence in the record regarding Father’s work-related
testing.
Moreover, Father does not dispute there is extensive
evidence he experienced increasing visual and auditory
hallucinations, delusions, and paranoia beginning in 2020 and
continuing during the jurisdiction hearing. Nor does he challenge
the juvenile court’s findings that these behaviors endangered the
safety of John and Emerald. The court reasonably found Father’s
use of methamphetamine may have contributed to these
behaviors. Regardless of whether Father’s past and continuing
substance abuse constituted substantial evidence to support the
court’s substance-abuse finding under section 300,
subdivision (b)(1), the evidence was sufficiently concerning to
support the court’s disposition plan ordering Father to undergo
random weekly drug testing and to participate in a drug program
with aftercare.
15
DISPOSITION
The jurisdiction findings and disposition orders are
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
16