Filed 6/8/22 In re M.K. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Kern County. Susan M. Gill, Judge.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.

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Six-year-old Michael M. and 12-year-old M.K. (the children) were removed from S.K. (mother) and placed with the noncustodial parent, M.M. (father). Father appeals the juvenile court’s dispositional order requiring him to participate in substance abuse counseling and to submit to random drug testing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitions

On July 7, 2021, the Kern County Department of Human Services (the department) filed dependency petitions on behalf of the children and their four half‑siblings[1] pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j),[2] alleging they were at substantial risk of serious physical harm or illness due to mother’s failure to (1) adequately supervise or protect them; (2) provide them with adequate food, clothing, and shelter; and (3) provide them with regular care due to her substance abuse and mental health problems. Additionally, the children were at substantial risk of being abused or neglected because their half-siblings were found to have been abused or neglected in prior dependency proceedings. The petitions alleged that the preceding month mother had left all six children alone in a motel room without adequate food or resources for two days until the department received a referral and made contact with the children. Michael had a seizure during mother’s absence and his half‑siblings were unable to sleep because they were worried he would die. Mother had untreated mental health and substance abuse problems and had been leaving all six children alone in motel rooms for days at a time on an ongoing basis. The petitions did not set forth any allegations against father.

Detention

On July 7, 2021, at the detention hearing, the juvenile court ordered the children detained from mother and gave the department discretion to place them with father. The court continued the detention hearing for further investigation.

After the detention hearing, a social worker met with father. She explained that although the allegations were not against him, it was concerning that he was not aware of how the children were doing. He acknowledged he should have been more present in their lives. They reviewed his voluntary case plan which consisted of random drug testing and counseling for parenting and child neglect. Father denied alcohol or drug use, including any marijuana use. He agreed to submit to a voluntary drug test. The drug test came back positive for marijuana.[3]

On July 9, 2021, a social worker went to father’s residence to conduct a home call. She addressed his positive marijuana drug test. Father explained he smoked marijuana about twice a week to help with his depression symptoms. He smoked outside of his home and did not smoke around the children.

On July 12, 2021, at the continued detention hearing, the department recommended against placing the children with father. Part of its reasoning was that father tested positive for marijuana and Michael had ongoing medical issues. He was experiencing frequent seizures. His last seizure occurred that weekend and lasted five minutes. The juvenile court addressed father’s marijuana use and agreed it was of significant concern due to Michael’s medical issues. The court stated that father had “to have all of his faculties on board, if [Michael] is going to have medical issues.” It directed father to stop using marijuana. The juvenile court ordered the children detained from mother and placed with father under the supervision of the department, and set a combined jurisdiction and disposition hearing.

On July 30, 2021, a social worker met with father to review his case plan. Father reported he last smoked marijuana a week prior. Later that month, M.K. reported father had rolled a marijuana joint in front of her and smoked it.

Jurisdiction and Disposition

On October 8, 2021, at the continued combined jurisdiction and disposition hearing, the juvenile court found the children were persons described by section 300, subdivisions (b) and (j), and continued the disposition hearing.

On October 28, 2021, a social worker made an announced visit to father’s home. She told him his last two tests were positive for marijuana. However, she noted the level of marijuana present in his system was decreasing, which she thought was “fantastic.” By that time, father had submitted to four drug tests since the detention hearing and had tested positive for marijuana each time. He said he was trying to smoke less.

In the report prepared for the disposition hearing, the department recommended father participate in family maintenance services, including random drug testing and counseling for parenting, child neglect, and substance abuse.

On December 1, 2021, at the disposition hearing, father’s counsel objected to the department’s recommendation that he participate in family maintenance services. Father’s counsel requested the juvenile court terminate jurisdiction over the children and make a custody and visitation order. The department argued it still had concerns about father’s parenting skills and noted that M.K. reported she only felt “kind of safe” in his care because he had mood swings. The juvenile court acknowledged father had “stepped up to the plate very nicely[,]” but that placement seemed “pretty fragile.” The court declined to terminate jurisdiction and ordered family maintenance services be provided to father, which included substance abuse counseling. The department noted it felt substance abuse counseling was necessary given Michael’s seizures. Father’s counsel objected again. The court responded:

“[Father’s counsel], you’ve made your position very clear and I understand that, and I understand that marijuana is legal, but when [father] was first approached by the social worker in this case, he said, ‘I don’t smoke marijuana,’ and yet he does. And now he says, ‘Well, I smoke outside of the house; I don’t smoke around the children.’ It still impairs his ability to care for the children, just as alcohol would. I would take the same position with respect to alcohol, which is also legal.

“He’s got, as [the department] pointed out, a child who’s got medical issues. [Father], I think, has the same medical issue. And unless there is some reason that the marijuana is helpful with respect to his seizures, which I haven’t heard any evidence of, then I think it’s a problem and it’s impairing. So I want him to have substance abuse counseling, at least to recognize the effect of the substance use. [¶] … [¶]

“My reasoning is, we have kids, a child [Michael] who tried to burn the house down. We have a child who says father yells a lot. Both kids say father yells a lot. The placement is somewhat fragile, and we need the father to be on his game and not impaired. I don’t think I need in the report evidence that marijuana impairs a person somewhat from being able to do what they need to do to function. [¶] … [¶]

“I think he needs the additional help.”

The juvenile court then ordered father to submit to random, unannounced drug testing at least once a month. In sum, father was ordered to participate in parenting, child neglect, and substance abuse counseling and to submit to monthly random drug testing. A six-month review hearing was set.

On December 3, 2021, father filed a notice of appeal.

DISCUSSION

Father contends the juvenile court abused its discretion by ordering him to participate in substance abuse counseling and submit to random drug testing. We disagree.

Section 362, subdivision (a) provides that “f a child is adjudged a dependent child of the court on the ground that the child is a person described by [s]ection 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child.” Such orders may be directed to the parents or guardians of the dependent child and “may include a direction to participate in a counseling or education program.” (§ 362, subd. (d).) “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 [s]ection 300.” ([i]Ibid.) However, “[t]he problem that the juvenile court seeks to address need not be described in the sustained section 300 petition. [Citation.] In fact, there need not be a jurisdictional finding as to the particular parent upon whom the court imposes a dispositional order.” (In re Briana V. (2015) 236 Cal.App.4th 297, 311.)

“We review the juvenile court’s disposition case plan for an abuse of discretion.” (In re I.R. (2021) 61 Cal.App.5th 510, 522.) “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 Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)

The juvenile court did not act in excess of its discretion by ordering father to participate in substance abuse counseling and to submit to random drug testing. From July to October 2021, father tested positive for marijuana four times. Father argued he did not smoke in the children’s presence or allow them to have access to the drug, but M.K. reported he had rolled a marijuana joint in front of her and smoked it. Most significantly, Michael had serious medical needs that required father to function at his best. As the juvenile court stated, father needed to be “on his game and not impaired” because the children had heightened needs. Given the juvenile court’s broad discretion to determine what would best serve the children’s interests, and the evidence of father’s continued marijuana use coupled with Michael’s medical needs, we conclude the court did not abuse its discretion in ordering him to participate in substance abuse counseling and random drug testing.

DISPOSITION

The juvenile court’s dispositional orders are affirmed.

* Before Hill, P. J., Snauffer, J. and DeSantos, J.

[1] The children’s half-siblings are part of the same dependency proceedings, but they have different fathers and are not part of this appeal.

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

[3] Father also tested positive for oxycodone, but he had a prescription for it and provided the department with a copy of it.