In re Omar N.

Filed 8/23/07 In re Omar N. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Objector and appellant Abdul N. (appellant), father of Omar N., appeals a dispositional order of the juvenile court which continued drug testing as to father at the discretion of the Alameda County Social Services Agencys (Agency) Child Welfare Worker (CWW). The sole issue on appeal is whether the juvenile court abused its discretion by giving the Agencys CWW unfettered discretion to determine whether drug testing should continue following the dispositional hearing. We conclude there was no abuse of discretion.

Facts & Procedural Background

Pursuant to Welfare and Institutions Code section 300 subdivision (b), the Agency filed a dependency petition on December 20, 2006, alleging Omar M. faced substantial risk of harm based on the parents failure and inability to protect and provide for the child. In support of the allegations, the petition stated that on December 17, 2006, Raquel G. and her child Omar both tested positive for amphetamines, opiates and methadone at the time of the minors birth. The petition also related that Omar was born with breathing problems and dehydrated; the mother, Raquel G., received no prenatal care; Raquel admitted to using illegal drugs for over 20 years, and admitted to using heroin five days before giving birth; Raquel has extensive law enforcement history dating to 1986 involving prostitution and drugs; Raquel is diagnosed with bi-polar and is currently prescribed Lithium and Remeron but fails to attend therapy regularly; Raquel has a history of unstable housing and income, and admitted to a history of staying in hotels and panhandling; Raquel has a 17-year old son who has never been in her care and is being raised by a maternal grandmother.

An accompanying detention report dated December 21, 2006, states Omar N. was delivered to protective custody by an Emergency Response Child Welfare Worker. It relates the minor is currently admitted to Eden Hospital with an expected discharge date of December 20th or 21st, and will be placed in foster care when discharged. It further relates: The father of the baby has stated that he was aware that mother was pregnant and using. The father of the baby stated that he was the one who paid for the mother to get on Methadone and that she wasnt ready or willing to do so prior to two weeks ago. [] . . . [F]ather has [both] admitted and denied a prior history of heroin and alcohol use . . . . The father stated that he wants the mother and baby to live with him, and that the mother can live with him as long as she is clean. The father stated that he has support from his family and would raise [the] child on his own if necessary. The father reported he has recently quit his job so he can take care of the baby.

On December 21, 2006, the juvenile court found removal was necessary and ordered Omar be detained. The court vested temporary placement and care with the Agency. The court also ordered Omar could be released at the discretion of the Agency to appellant or suitable adult relative.

According to the jurisdiction/disposition report filed on January 3, 2007, Omar was still in hospital making slow progress and was expected to be discharged in two weeks. The medical social worker reported Omar was showing signs of withdrawal and had been prescribed morphine orally. The report related: Hospital staff report that . . . the mother is still living with the father at this address and has yet to enter into a drug treatment program. The report recommended that Omar be made a dependent of the Juvenile Court, that he remain out of home for the time being, and that the parents be ordered to receive family reunification services.

On January 3, 2007, the juvenile court declared the allegations of the petition true and continued disposition to January 24, 2007 until Omar had been discharged and appellant had undergone drug testing. An addendum report prepared for the January 24 hearing states appellant has enrolled in random drug testing and parenting classes. The mother no longer lived with appellant. Appellant had been visiting Omar with a social worker present. On January 24, the court ordered that the CWW has discretion to allow for visits between the minor and the father and [CWW] has discretion to release the minor to the father. The court continued disposition to February 7, 2007.

A further addendum report prepared for the February 7 hearing reports continuing supervised visitations between appellant and Omar. The report states appellant presents as loving and sweet towards Omar and was observed as becoming aware of Omars cues and responding appropriately at this time. The CWW stated she had received 6 drug test results from Terra Firma for the father with all negative results. The CWW reports she was advised to reduce the fathers drug testing to once every other week, so she contacted Terra Firma and informed them of the change. As to disposition, the addendum report recommended in relevant part that the court order the Agency to provide child welfare services to the father and order the father to participate in all aspects of the case plan. It recommended that Omar not be returned to the physical custody of the parents, and that the Agency be ordered to arrange visitation between Omar and the parents.

In its dispositional order of February 7, 2007, the court adjudged the minor a dependent child of the court. The court modified the Agencys recommendations by ordering that the care, custody, control and conduct of said dependent child shall be under the supervision of the [Agency] to reside in the home of the father forthwith. And as recommended, the court also ordered the Agency to provide family maintenance services to the minor and father. Additionally, the court ordered that fathers drug testing is at the discretion of the CWW. The court scheduled a progress report hearing for May 9, 2007, and a six-month review hearing for July 31, 2007. On February 14, 2007, appellant filed his Notice of Appeal challenging the courts order continuing drug testing to father at the discretion of the CWW.

Discussion

Appellants sole contention on appeal is that the juvenile court abused its discretion when it gave the [Agency] unfettered discretion to decide when appellant no longer had to drug test. Appellant contends such alleged unfettered discretion is legally analogous to the issue of whether a juvenile court can delegate discretion to permit visitation. In this regard, appellant refers us to cases standing for the proposition that a juvenile court may not abrogate its own responsibility to determine whether visitation occurs but may only allow the Agency to determine the time, place, and manner of visitation. Pressing his analogy, appellant asserts the juvenile courts order in this case was an unreasonable delegation of its responsibility to determine whether drug testing should occur. We disagree.

Appellant does not challenge the fact that drug testing was included as part of his case plan describing the family reunification services to be provided for him. Indeed, appellant asserts he agreed to random drug testing even before the juvenile court took jurisdiction. Whether thats the case or not, one of the service objectives for appellant set forth in the case plan for the provision of family maintenance services states: Stay free from illegal drugs and show your ability to live free from drug dependency. Comply with all required drug tests. The projected completion date for this service objective is stated as July 4, 2007. So appellants complaint is not that he was subjected to drug testing in the first place: nor is it even that the trial court erred by refusing his request at the dispositional hearing on February 7 to order drug testing be discontinued as of that date. Apparently, his sole complaint is that the trial court erred by giving the Agency discretion to discontinue drug testing at any time before the progress review hearing set for May 9, 2007 or the projected completion date for drug-testing set for July 4, 2007.

This record just does not support appellants claim the Agency had unfettered discretion in the area of drug testing. As noted, the drug testing requirement was set forth in the case plan for family reunification services, and the projected completion date for the drug-testing service objective was stated as July 4, 2007. On January 3, 2007, the juvenile court found jurisdiction but continued disposition to January 24, 2007, specifically so that drug tests could be obtained on appellant. The juvenile court approved the provision of family reunification services to appellant in its dispositional order of February 7, 2007. The court denied appellants request at the dispositional hearing on February 7 to discontinue drug testing as of that date. The court set a progress review date for May 9, 2007, and gave the Agency discretion to determine the need for continued drug testing in the meantime. Moreover, we note the Agency already exercised its discretion in this area to decrease the frequency of appellants drug testing to once every two weeks after appellant tested negative for drugs on six occasions. And it goes without saying that the court did not abuse its discretion by declining on February 7 to eliminate drug testing entirely, despite appellants negative drug tests, when: (1) the court had just placed a two-month old baby in appellants custody to reside in his home; (2) the baby was born a drug addict and had to be orally fed morphine to overcome withdrawal symptoms; (3) appellant knew the mother was using drugs during the pregnancy; (4) appellants own history of drug use is ambiguous; (5) appellants criminal history showed an infraction for being under the influence of a controlled substance; and, (6) appellants home where the baby was to reside with him was shared with two other individuals, one of whom had previous arrests and convictions involving theft and possession of a controlled substance. (Cf. In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007 [court did not abuse its discretion in ordering random drug testing as part of the reunification plan because fathers history of arrests for driving under the influence indicated drug-testing was designed to remedy the problems leading to the loss of custody].)

In any case, even if the issue of visitation is viewed as analogous to the issue of drug testing, we see no separation of powers problem in the juvenile courts limited grant of discretion to the Agency in the matter of appellants continued drug testing. We note the decision in In re Danielle W. (1989) 207 Cal.App.3d 1227, wherein the court, in upholding a visitation order granting discretion to the Agency, sets forth the following test: The correct principle deducible from the better-reasoned cases dealing with the separation of powers seem to be that even the primary function of any of the three departments may be exercised by any other governmental department or agency so long as (1) the exercise thereof is incidental or subsidiary to a function or power otherwise properly exercised by such department or agency, and (2) the department to which the function so exercised is primary retains some sort of ultimate control over its exercise, as by court review in the case of the exercise of a power judicial in nature. (Citation.) (In re Danielle W., supra, 207 Cal.App.3d at p. 1236 [italics added].) The court continued: The nature of the task of the juvenile court system in responding to the rapidly changing and complex family situations which arise in dependency proceedings and the interests of judicial economy require the delegation of some quasi-adjudicatory powers to a member of the executive branch dedicated to the dependent childs welfare. As long as that role is limited and subject to supervision, as it was here, there is no violation of the separation of powers doctrine. (Id. at p. 1237 [italics added].) As in In re Danielle W., supra, the discretion granted to the Agency here with respect to drug testing was limited and subject to the courts continuing supervision by way of the case plan and progress review. Accordingly, there is no violation of the separation of powers doctrine.

DISPOSITION

The juvenile courts dispositional order of February 7, 2007, is affirmed.

_________________________

Horner, J.*

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.