Filed 2/10/21 In re K.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Sabina A. Helton, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Deputy County Counsel, for Plaintiff and Respondent.

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The father of minor K.G., Jr., (K.G.) appeals from the juvenile court’s disposition order requiring him to submit to eight on-demand drug tests. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Dependency Referral and Petition

Father and mother are the parents of K.G., a boy born in February 2018. Father also has two older children from prior relationships. Following K.G.’s birth, the child resided with mother in the maternal grandmother’s home, and had visits with father when permitted by mother. This matter came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in June 2019, based on a referral alleging father had made criminal threats against mother in the child’s presence. According to the reporting party, father went to mother’s home to visit K.G., and began searching through her belongings. When mother told father to leave, he brandished a gun and threatened to kill her and the maternal grandmother. He then fled on foot as mother called the police.

In an interview with DCFS about the referral, mother denied father displayed a weapon or threatened to harm her or anyone else in the home. She stated she called the police because father attempted to steal her videogame console while he was visiting K.G. Though mother denied father engaged in any threatening conduct during the incident, she disclosed that she and father had a history of domestic violence, including an altercation in 2018 where father tried to hit her.

On July 25, 2019, DCFS filed a dependency petition on behalf of K.G. pursuant to Welfare and Institutions Code[1] section 300, subdivisions (a) and (b). The petition alleged mother and father had a history of engaging in violent altercations in the child’s presence. On July 26, the juvenile court detained K.G. from father and released him to mother pending an adjudication hearing. The court also issued a temporary restraining order prohibiting father from having any contact with mother. Father was granted monitored visits with K.G. to take place at DCFS’s office.

2. DCFS Reports and Amended Dependency Petition

For its September 4, 2019 jurisdiction and disposition report, DCFS interviewed mother and father about the allegations in the petition. In her interview, mother again denied father had a gun during the June incident, but stated he did threaten to kill both her and the maternal grandmother. Mother further reported father had previously threatened her with a gun when she was pregnant with K.G., and had been physically violent on other occasions prior to K.G.’s birth. In his interview, father denied engaging in any physical altercations against mother. While father admitted he and mother had a history of verbal altercations, he denied threatening mother or the maternal grandmother, or brandishing a weapon in their presence. Father recounted that, during the June incident, he attempted to retrieve his videogame console from mother’s room, and immediately left when she called the police.

With respect to the parents’ history of drug use, mother reported father began having a drug problem when she was pregnant with K.G. Mother also stated father was a current user of cocaine which she saw him using after a visit with K.G. when the child was two months old. Father reported mother drank alcohol and smoked marijuana on a daily basis. He had seen mother driving while intoxicated when K.G. was in her care. Father denied any alcohol use, but admitted he smoked one marijuana blunt per day. He stated he stored the marijuana in the trunk of his car, and never smoked in the presence of his children or when they were alone in his care. Father told DCFS he was willing to submit to a drug test.

In an addendum report filed on October 29, 2019, DCFS addressed new allegations father had made against mother. Father reported mother had contacted him in violation of the court’s orders, and had recently left K.G. in his care on a few occasions, including an overnight stay. Additionally, in a telephone call surreptitiously recorded by father, mother asked him where they could meet and denied accusing him of threatening her with a gun during the June incident. Father gave DCFS a copy of the recording along with recent text messages he had received from mother.

In a last minute information report filed on November 5, 2019, DCFS stated it had received a new referral alleging mother had been driving under the influence of alcohol with K.G. in her vehicle. At DCFS’s request, mother agreed to submit to a drug test which was positive for marijuana and cocaine. On November 5, the juvenile court detained K.G. from mother. The court also issued a mutual stay‑away order for both parents.

On December 12, 2019, DCFS filed a first amended petition on behalf of K.G. The amended petition added a count under section 300, subdivision (b) alleging that mother had a history of substance abuse and was a current abuser of cocaine and marijuana. Pending the adjudication hearing, K.G. was placed in the home of a nonrelative extended family member.

For a December 13, 2019 addendum report, DCFS conducted additional interviews with mother and father about the allegations in the amended petition. Mother denied she drove K.G. in her vehicle while she was under the influence of drugs or alcohol. She admitted she regularly consumed marijuana edibles and used cocaine on one occasion in October 2019. She denied, however, that she ever used drugs while K.G. was in her care. When asked about father’s drug use, mother responded father was the reason she knew anything about cocaine. She claimed father sold cocaine and used both cocaine and marijuana. She also stated she saw father using cocaine on a FaceTime call one to two weeks before the last court hearing.

In his interview, father denied any history of selling or using cocaine. He admitted he sold marijuana when he was 18 or 19 years old to financially support his oldest child. He also admitted he continued to smoke marijuana, but indicated he had decreased his usage since DCFS’s intervention. According to father, he currently smoked one-half of a marijuana blunt one to two times per day. He stored the marijuana in a locked backpack that he kept in the closet out of the reach of his children. He only smoked marijuana when his nine-year-old daughter was in school or sleeping. If his daughter was asleep, he would smoke on the stairs outside the home while the child’s grandmother was present inside. Father denied ever being under the influence of drugs while his daughter was in his care. When asked if he was willing to stop smoking marijuana, father said, “It’s no problem. I don’t have to smoke. It’s just to pass the time when I’m bored.” Father again agreed to submit to a drug test, and disclosed he would test positive for marijuana because he used the drug the previous night. Father claimed he had missed his two prior on-demand drug tests because he was out-of-town or taking care of his daughter.

In an addendum report filed on February 18, 2020, DCFS informed the court that mother had tested positive for marijuana on four occasions since December 2019 and failed to appear for one test. Mother had enrolled in a drug and alcohol treatment program and a domestic violence batterers’ program, and was participating in therapy. Mother was visiting regularly with K.G., and given her progress in services, DCFS had liberalized mother’s visits from monitored to unmonitored. Father still had not submitted to a drug test or provided proof of enrollment in any services nor had he attended any visits with K.G. When DCFS inquired why father had not appeared for any of his drug tests, father stated he was unavailable because of his work schedule.

DCFS recommended the juvenile court assert jurisdiction over K.G., and release the child to the home of mother on the condition she reside with K.G.’s current caregiver. DCFS also recommended the court grant family reunification services to father, including random drug testing to monitor his marijuana levels. DCFS further proposed that, if father’s test results indicated high levels of marijuana or illicit drug use, he participate in a substance abuse program.

3. Jurisdiction and Disposition Hearing

Starting on February 19, 2020, the juvenile court held the jurisdiction and disposition hearing. Over father’s objection, the court admitted in evidence the entirety of the reports filed by DCFS. The court also heard testimony from mother, father, and the two officers who responded to mother’s home during the June 2019 incident. The officers testified that mother had reported father brandished a gun and threatened to kill her. In their respective testimony, however, both mother and father denied he had a gun or made criminal threats against her during the incident. While mother testified father had threatened and assaulted her on other occasions prior to K.G.’s birth, father denied he had ever been physically violent toward her. Father testified both mother and the maternal grandmother had a history of calling the police to make false accusations against him.

On February 24, 2020, following the close of testimony, the juvenile court sustained an amended version of the dependency petition under section 300, subdivision (b). The court found that mother and father had a history of engaging in violent physical and verbal altercations in K.G.’s presence, and that father’s violent conduct toward mother and mother’s failure to protect K.G. from such conduct placed the child at substantial risk of harm. The court further found that mother was a current abuser of marijuana and a recent user of cocaine, and that mother’s substance abuse rendered her incapable of providing K.G. with regular care and supervision.

Turning to disposition, the juvenile court declared K.G. a dependent of the court, and ordered the child be released to the homes of both mother and father on the condition they reside separately in DCFS-approved housing. The court ordered mother to participate in a full drug and alcohol program and a 12-step program, submit to weekly random or on-demand drug testing, attend a domestic violence support group for victims, and complete parenting education and individual counseling. The court ordered father to participate in a domestic violence program for perpetrators, parenting education, individual counseling, and submit to eight consecutive random or on-demand drug tests with decreasing marijuana levels.

Father timely appealed.

DISCUSSION

On appeal, father solely challenges the portion of the disposition order requiring him to submit to on-demand drug tests showing decreasing levels of marijuana. Father contends the juvenile court abused its discretion in ordering him to participate in drug testing because DCFS never alleged father was abusing marijuana or any other substance, and his legal use of marijuana did not pose any safety risk to K.G.

1. Father’s Notice of Appeal is Sufficient to Challenge the Disposition Order for Drug Testing

We first address DCFS’s argument that we lack jurisdiction to consider this appeal because father’s notice of appeal made no reference to the order requiring him to submit to drug testing. Instead, the notice of appeal stated father was appealing from (1) the sustained jurisdictional findings, (2) the declaration of dependency, and (3) the denial of his motion to exclude certain evidence at the jurisdiction hearing.

A notice of appeal “is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.405(a)(3).) “ ‘[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ ” (In re Joshua S. (2007) 41 Cal.4th 261, 272; see Cal. Rules of Court, rule 8.405(a)(3) [“notice of appeal must be liberally construed”].) In dependency proceedings, liberal construction of a notice of appeal is “particularly appropriate” where “the jurisdictional finding and dispositional order were rendered simultaneously on . . . the date specified in the notice of appeal.” (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017; see In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1209 [construing notice of appeal from jurisdiction finding as including proper appeal from disposition order]; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112 [same].)

While father’s notice of appeal did not specify the portion of the disposition order requiring drug testing, it did identify each of the dates on which the combined jurisdiction and disposition hearing was held, including February 24, 2020—the date on which the jurisdiction findings and disposition order were both rendered. The notice also stated that, in addition to seeking “review of the section 300 jurisdictional findings,” father was appealing from the order made under “Section 360 (declaration of dependency).” Under these circumstances, we liberally construe father’s notice of appeal as encompassing an appeal from the disposition order for drug testing.

2. The Juvenile Court Did Not Abuse Its Discretion in Ordering Father to Submit to Drug Testing

Father argues the juvenile court’s order for drug testing constituted an abuse of discretion because there was no finding or allegation that father had a substance abuse problem that placed K.G. at risk of harm. We conclude, however, that father forfeited his claim of error by failing to object to the order in the juvenile court, and even if not forfeited, the claim lacks merit.

“ ‘A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture . . . applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.’ ” (In re N.O. (2019) 31 Cal.App.5th 899, 935; see In re S.B. (2004) 32 Cal.4th 1287, 1293.) The “failure to object to a disposition order on a specific ground generally forfeits a parent’s right to pursue that issue on appeal.” (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.)

In this case, father never objected to the portion of the disposition order requiring him to participate in drug testing. At the jurisdiction and disposition hearing, father’s counsel did object to certain components of DCFS’s proposed case plan, including a 52‑week domestic violence program and an in‑person anger management course, and the juvenile court agreed to narrow the scope of those requirements. However, in response to DCFS’s request that father participate in random drug testing with decreasing marijuana levels, father’s counsel stated: “The marijuana is something that the department has been aware of, and I think father is willing to test. I believe one of the tests that he missed recently was because a sibling of his was missing at the time, and they were trying to locate that sibling. [¶] Going forward, I think the father would be willing to have the court see that his marijuana levels are going down, but that doesn’t seem to be a safety concern at this time given that he has his [older] child released to his care.” When the juvenile court thereafter stated it was ordering father to submit to on-demand drug tests showing a decrease in his marijuana levels, his counsel merely inquired about the required number of tests, but did not raise any objection to the order itself. Father accordingly forfeited his right to challenge the order on appeal.

Even assuming father’s claim of error was not forfeited, he has failed to demonstrate the juvenile court abused its discretion in issuing the drug testing order. When fashioning a dispositional order, the juvenile court may make “all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child.” (§ 362, subd. (a).) The court also may “direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section.” (Id., subd. (d).) “At disposition, the juvenile court 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. [Citations.] Instead, the court may consider the evidence as a whole.” (In re Briana V. (2015) 236 Cal.App.4th 297, 311.) The juvenile court may “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 K.T. (2020) 49 Cal.App.5th 20, 25.) The “ ‘juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accordance with this discretion. [Citations.] The court’s determination in this regard will not be reversed absent a clear abuse of discretion.’ ” (In re Corrine W. (2009) 45 Cal.4th 522, 532.)

Although the juvenile court did not make any jurisdiction findings based on father’s drug use, the court acted well within its discretion in ordering father to submit to eight on-demand drug tests to show a decrease in his marijuana usage. During the dependency proceedings, mother reported to DCFS that father “picked up a drug problem” around the time of K.G.’s birth. She also claimed father was a current user of both marijuana and cocaine, and she last saw him using cocaine one to two weeks before a scheduled hearing in the case. While father denied any use of cocaine, he admitted to DCFS he used marijuana on a daily basis and solely for recreational purposes. Father initially stated he smoked one marijuana blunt per day before bedtime. He later acknowledged he also smoked marijuana in the daytime while the daughter who lived with him was in school.

Father told DCFS he had been reducing his marijuana usage since the agency’s intervention with the family. He also repeatedly stated he was willing to submit to a drug test. Yet despite these assurances, father failed to appear for each of his drug tests even after DCFS informed him that a missed test would be considered a positive test. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 [refusing to drug test, without adequate justification, may be evidence of drug use]; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [juvenile court could properly consider each missed drug test as “the equivalent of a positive test result”].) When DCFS later warned father that his continual failure to submit to a drug test could negatively impact his ability to reunify with K.G., father responded he had to work and “would just have to deal with the consequences in [c]ourt.” Because the juvenile court decided to release K.G. to the homes of both mother and father under DCFS’s supervision, the court reasonably could conclude it was in the child’s best interest to order drug testing for father as part of his case plan. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 [although the juvenile court dismissed jurisdictional allegation based on the father’s alcohol use, it did not abuse its discretion in ordering father to submit to drug testing].)

This court’s prior decision in In re Drake M. (2012) 211 Cal.App.4th 754 does not compel a different conclusion. In Drake M., at page 770, we reversed an order requiring the father of a dependent child to participate in drug testing and counseling because “there [was] nothing in the record to indicate that he [had] a substance abuse problem.” The father in that case used medical marijuana to treat chronic knee pain pursuant to a physician’s recommendation. (Id. at p. 760.) There was no evidence that he used marijuana for nonmedical purposes or was ever under the influence of the drug while his child was in his care. (Id. at p. 767.) Prior to the adjudication hearing, the father agreed to submit to on-demand drug tests, which were positive for cannabinoids but negative for all other substances. (Id. at p. 759.)

In this case, as discussed, father failed to submit to a single drug test. The juvenile court therefore was unable to verify father’s claim that he was not abusing marijuana or engaging in any illicit drug use. Moreover, at the time of disposition, K.G. had just turned two years old, and thus required constant care and supervision. Yet father had not had K.G. in his care for any significant period of time, nor demonstrated an ability to safely parent a child of such tender years while using marijuana on a daily basis. Given K.G.’s young age and father’s refusal to voluntarily participate in drug testing, the juvenile court did not abuse its discretion in ordering father to submit to a limited number of drug tests to show, not the absence of any marijuana use, but merely a decreasing level of usage.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

LAVIN, J.

[1] All further statutory references are to the Welfare and Institutions Code.