In re Shanda H.

Filed 4/6/07 In re Shanda H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

David H. appeals following the dispositional hearing in the dependency case of his daughter, Shanda H. He contends that the juvenile court erred by ordering him to participate in the Substance Abuse Recovery Management System (SARMS) and to submit to a psychological evaluation as part of his reunification plan. We affirm.

BACKGROUND

In August 2006, just after Shanda was born, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition. The petition alleged that from November 2005 until August 2006, Shanda's mother, D.A., abused alcohol and cocaine. The petition also alleged that D.A. had received little prenatal care and that she admitted having used drugs and alcohol during her pregnancy. She further admitted a history of drug use, and that one of her older children was born with a positive toxicology for cocaine. The petition alleged that David denied knowing that D.A. was using drugs and alcohol during her pregnancy, and that he thus failed to, and was unable to, stop her from doing so.

Shanda was detained in a foster home. At the September 15, 2006 jurisdictional hearing, the court entered a true finding on the petition. David's counsel listed as issues for trial whether David would be required to participate in substance abuse treatment and undergo a psychological evaluation. The court told counsel that it would make a SARMS referral, and said that counsel could speak to David about whether he wanted to participate voluntarily. The court stated: "I typically rely on SARMS to help make an assessment whether there's a drug issue or not." The court ordered David, who was present in court, to return for an October 5 settlement conference and for the October 17 contested dispositional hearing.

David appeared in court for the October 5, 2006 settlement conference. The matter was not settled and the court ordered him to return on October 17. He returned on October 17. Over his counsel's objection, the court referred David to SARMS for an evaluation. The court stated: "Frequently, [SARMS] tells me there's no ongoing issue there. This is a case that came in because of mother's drug use. And that certainly raises an issue of what's going on in the home." The court continued the matter to December 8 and ordered David to return on that date.

David did not appear for the December 8, 2006 hearing. David's attorney said that David was diabetic; that he had heard that David had "some medical problems" earlier in the week; and that "[t]he social worker . . . had indicated [David] had said his blood sugar levels were high." Counsel said that he had expected David to be at the hearing and requested a continuance "to figure out why he is not here." The court denied the request for a continuance. The court proceeded to declare Shanda a dependent and ordered her placed in a foster home. The court referred David for a SARMS evaluation and ordered him to submit to a psychological evaluation.

THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION

BY ORDERING DAVID TO SUBMIT TO A SARMS EVALUATION

AND A PSYCHOLOGICAL EVALUATION

Just after Shanda's birth, D.A. told a social worker that she had used cocaine and consumed beer off and on since the birth of her older children, who were ages four and seven. She said that she had used cocaine during her pregnancy with Shanda, including just before delivery. D.A. said that she and David lived together, they had been dating for a year, and that he had been her boyfriend for four months. She said that she used drugs when David was not home, and that when he found out that she had cocaine in the house and was using drugs, he became angry and told her to stop. D.A. told the social worker that David "runs safe houses and is very supportive in her sobriety." D.A. said that the area where she lived was "full of drugs." She denied that David used drugs.

David had five drug-related convictions dating from 1981 to 2000, and had incurred two other criminal convictions during the same period. On August 22, 2006, he told the social worker that he did not understand how D.A. could have had a positive drug test because he had been taking care of her. On August 29, David said that he had not known that D.A. was using drugs. He said that he had gone through drug treatment in 2000. When the social worker asked him why, he said, "because [I] wanted to." When the social worker asked whether David's drug treatment had been court ordered, he admitted that it was. David said, "[I] was pulled over in a car and [I] had some weed." He claimed that he had not used drugs since that incident. When the social worker asked David if he would be willing to submit to a urine test, he became very upset and asked why. The social worker explained that D.A. had said that she used cocaine in the house and that David knew about it. David refused to test, and reiterated that he did not know D.A. was using drugs, and that she never used in the house.^[1]

On August 31, 2006, a police officer stopped the car David was driving for a Vehicle Code violation. David's driver's license had expired nearly 11 years previously. D.A., who was riding in the car with David, was arrested on outstanding warrants and was taken to jail. During a strip search, two plastic packages of cocaine were found in her vaginal area.

There are indications in the record that D.A. was developmentally delayed. She appeared to be under David's influence and dependent on him. Her grandmother told the social worker that she was D.A.'s guardian and conservator, that she received social security income (SSI) for D.A., and that she had custody of D.A.'s two older children. D.A.'s grandmother said that David was trying to obtain D.A.'s SSI checks, and that the grandmother was concerned that David was taking advantage of D.A. David's sister told the social worker that he took advantage of his own mother.

At the outset of this case, the social worker tried to set up an appointment to meet with David. He told the social worker that he had to speak to his employer about getting the time off and said that he would then call the social worker.^[2] He never called. On October 4, 2006, David failed to appear for a "team decision meeting" with the social worker and his relatives to discuss Shanda's safety and placement. The social worker arranged another meeting for December 5. David said that he could not attend the December 5 team decision meeting because his blood sugar level was over 400.

David apparently never called the foster home to ask how Shanda was doing, and by December 7, 2006, he had visited her only twice. He had various explanations for his failure to visit: he did not feel well, he had glass fragments in his eye because someone had thrown a rock through the window of the trolley in which he was riding, his home was infested with bed bugs, and he was working with SSI to have D.A.'s checks sent to his house.

The Agency recommended that David's case plan include drug testing and SARMS. The request was based on his drug history; his residence with D.A., who tested positive for drugs when Shanda was born; his presence when D.A. was arrested with drugs on her person; D.A.'s statement that David was aware of her drug use; and a concern that he might have relapsed. The social worker testified that if substance abuse testing revealed that David was using drugs, appropriate services could be offered to him, and if the testing showed that he was not using drugs, the matter would not be pursued.

The Agency also recommended that David's case plan include a psychological evaluation. The social worker requested an evaluation to determine if there were "any undiagnosed conditions" that should be addressed and to find out if there were further services the Agency could provide to help David reunify with Shanda. She testified that David said that he was stressed and depressed, that he was worried and was not sleeping due to "this whole situation," and that he had sought help from a family friend who was a counselor.

In referring David for a SARMS evaluation, the court stated, "[David] strikes me, based on my observations and the reports, as being a seemingly manipulative person. I think he's done a serious job of taking advantage of [D.A.] in this case, and I have no doubt he would be happy to take advantage of [Shanda] as well." It "strains my credulity to think [David] is living with [D.A.] who is using drugs and, in fact, smuggling drugs in her vagina, yet he has no idea what's going on with that. He is acting in a very unstable manner at this point, not appearing for court hearings, not attending visitation. To my mind he's acting like a drug user in all the ways that we see. Moreover, as I've mentioned, a manipulative person which is in fact a feature of some drug users and frankly a con artist. And I have no doubt that he would deny to [sic] the cows came home something that was in fact true. [] Finally, his refusal to test to me is Exhibit A for the likelihood of recent use. I'm not able to make any determination [whether David] is in fact clean based on his own word. He has very little credibility with me. I would like to have SARMS do what they do best, what we use them for. Take a look at the situation and to actually test the person. . . . If SARMS tells me we don't have an issue, I would certainly respect that."

In ordering David to submit to a psychological evaluation, the court stated, "[D.A.] and [David] have what I would describe as weird perhaps creepy family dynamics. [David] I think has some underlying issues. I've already mentioned the manipulation that I perceive and my view that he is . . . at best, a con artist of some sort. This is not a cookie cutter case. It's usually my practice to avoid requesting psychological evaluations . . . but in this case, I need to know what is going on in [David]'s head. There's something strange going on to my mind, and I do concur I'm not an expert. That's why I want an expert to look at it."

The Agency must make "a good faith effort to develop and implement a family reunification plan [citation] with services tailored to suit the needs of the parents [citation]." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810.) "The reunification plan ' "must be appropriate for each family and be based on the unique facts relating to that family." ' " (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006, quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.) "The court has 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." (In re Christopher H., supra, 50 Cal.App.4th at p. 1006.)

David cites In re Sergio C. (1999) 70 Cal.App.4th 957, and In re Basilio T. (1992) 4 Cal.App.4th 155, two cases in which the reviewing courts reversed orders for drug-related reunification plan components. In In re Basilio T., supra, 4 Cal.App.4th 155, the reunification plan required substance abuse testing and abstinence from alcohol and drugs. (Id. at p. 163, fn. 4.) The only factor supporting those requirements was the social worker's observation that the mother "behaved somewhat out of the usual . . . ." (Id. at p. 172.) This court concluded that the mother's behavior did not justify the substance abuse component of the reunification plan. (Id. at pp. 172-173.) In In re Sergio C., supra, 70 Cal.App.4th 957, the juvenile court ordered the father to submit to random drug tests. (Id. at p. 958.) The only basis for the order was the mother's allegation that the father used and sold drugs. (Id. at pp. 959-960.) The reviewing court concluded that drug testing could not be ordered "based solely on the unsworn and uncorroborated allegation of an admitted drug addict who has abandoned her children." (Id. at p. 960.) The court reversed and remanded "with directions to order a further investigation before deciding whether, in fact, drug testing is necessary . . . ." (Ibid.)

In re Basilio T., supra, 4 Cal.App.4th 155 and In re Sergio C., supra, 70 Cal.App.4th 957 are clearly distinguishable from the instant case. Here, there was much more than unusual behavior or an uncorroborated allegation to support the court's suspicion that David was using drugs and/or that he had psychological issues. David has a criminal history that includes drug-related offenses. He was living with D.A., who was using drugs, and drove the car in which she rode while carrying drugs. D.A. said that David knew she was using drugs. As an acknowledged former drug user, presumably David would have recognized the signs that D.A. was using, yet he denied any such knowledge. Moreover, David displayed little interest in Shanda or in this case, while displaying a keen interest in D.A.'s SSI checks. He made conflicting statements regarding his employment and regarding the mandatory nature of his former drug treatment. His sister reported that he was manipulative with his own mother.

The juvenile court read the reports, listened to the social worker's testimony, and observed David first hand. After doing so, it rejected David's claim that he was unaware of D.A.'s drug use. It further determined that his failure to visit Shanda and to appear for court hearings, his manipulative behavior, and his refusal to drug test were consistent with drug use. Similarly, the court believed that David's behavior suggested the presence of underlying psychological issues. The court concluded that David should be evaluated by SARMS and by a psychologist. A SARMS evaluation would assist the court in ascertaining whether David needed drug treatment, and a psychological evaluation would assist the court in ascertaining whether he had a psychological condition that needed to be addressed.

This court will not second-guess the juvenile court's observations of David or reassess his credibility. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) A SARMS evaluation and a psychological evaluation are screening tools designed to assist the court in deciding what reunification services are needed. The court was well within its in discretion in ordering David to submit to a SARMS evaluation and a psychological evaluation.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] On October 5 and 17, he again refused to drug test, saying that he graduated from the Rescue Mission and no longer used drugs.

^[2] David claimed that he was a chef and a motivational speaker. Later, he said that he was unemployed, that he had hurt his back on his previous job, and that he received disability payments.