Filed 5/31/17 In re M.W. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


In re M.W., a Person Coming Under the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
D.B.,
Defendant and Appellant.



A149725

(Contra Costa County
Super. Ct. No. J16-00240)

INTRODUCTION
D.B. is the presumed father of M.W. At the disposition hearing, the court adjudged M.W. a dependent child and extended reunification services to both parents. D.B. accepted the reunification plan, including random drug testing, but he now objects to random testing and the additional requirements that he attend up to three NA/AA meetings a week and obtain a sponsor, complete outpatient drug counseling and, if he tests positive test for drugs, enter and complete a residential drug treatment. On the facts of this case, we agree the court abused its discretion by imposing drug counseling and residential drug treatment as a mandatory part of his reunification plan. We find the order for random testing reasonable. We therefore reverse the court’s order and strike all the treatment-related conditions save random testing, and remand to the trial court for further proceedings.
INTERGRATED STATEMENT OF THE CASE AND FACTS
Petition
M.W. was born in late December 2015. Mother has a history of domestic violence and drug use with M.W.’s father, D.B., which resulted in the removal of Mother’s three older children and the initiation of dependency proceedings in October 2014. The current dependency investigation was initiated in February 2016 when the Contra Costa County Children and Family Services Bureau (Bureau or CFSB) received a referral indicating that Mother had a continuing romantic relationship with D.B. and might be letting him see the baby.
On March 9, 2016, the Bureau filed a Welfare and Institutions Code section section 300 petition alleging, under subdivision (b), that one-month-old M.W. was at serious risk of harm from Mother’s failure to protect her from D.B., with whom she had a “history of engaging in domestic violence.” She had failed to obtain and serve a restraining order against D.B. as ordered by the court in the earlier dependency proceeding and continued to have contact with D.B., which she concealed from the Bureau. A second count, under section 300, subdivision (j), alleged that three-year-old S.E., M.W.’s half sibling, had been removed from Mother’s care by CFSB on October 31, 2014, and that reunification services for that child were terminated on February 25, 2016.
Detention
Mother attended the detention hearing held on March 10, 2016; D.B. did not. At the hearing, the court admitted into evidence: (1) Mother’s case plan from the ongoing dependency involving S.E.; (2) a restraining order application by Mother dated March 2, 2016, and (3) the detention report. The case plan indicates that Mother, age 31, has three sons: C.F., age 10, L.F., age 7, and S.E., age 3. D.B. is not their father. These children were removed from Mother’s care in October 2014. C.F. and L.F. had been placed with their father, and S.E. with an aunt and uncle. Among other things, the case plan required Mother to attend a domestic violence prevention program, abstain from illegal drugs, submit to random drug and alcohol tests, enter and complete an inpatient drug treatment program, attend one to three AA/NA meetings per week, and “obtain a restraining order against the abuser.”
Mother applied for a temporary restraining order against D.B. on March 2, 2016. According to her application, she and D.B. “used to date” and they had a two-month-old child in common. D.B. was 19 years old. In her declaration, Mother elaborated: She dated D.B. for about eight months, until she got pregnant with his child. During that time, they did drugs together, which often caused them to “engage in violent situations.” Two months into her pregnancy, they split up. Mother “got clean” as soon as she found out she was pregnant, had remained sober since April 2015, and was currently residing in a sober living facility with their daughter.
One day in May 2015, D.B. started an argument with her in their home, but she did not want to fight so she walked to the police station. D.B. followed her, yelled at her, slapped her in the face, knocking off her glasses, and threw his phone at her, narrowly missing her head. At the police station, D.B. continued his belligerent behavior and was arrested. Mother further alleged she and D.B. were friends before they started dating; they used drugs when they lived together; and there was violence “during the full term of our relationship.” She ran away from him in January 2015 and got clean. “[D.B.] has demonstrated that he can harm me, because he has done it. I want nothing bad for him, but to get clean and put his life together as I have done.” The request for a temporary restraining order was denied pending a hearing on March 24, 2016, although a “good conduct order” was issued.
The detention report included a statement from an unidentified person (RP) that Mother had been living in a sober living home since October 2015. Mother stated she had been with D.B. for one to two years but they were no longer involved, although she referred to him as her fiancé. The social worker reported, “There is a serious history of DV, drug use & weapons involved,” and D.B. had reportedly “pulled a weapon on someone during an altercation.” The social worker also reported that D.B. had not been involved in services “to help him with his DV problem or drug use.”
According to the RP, there was documented evidence Mother was still seeing D.B., and Mother told someone at Kaiser at the end of December she was taking the baby to visit D.B. daily. Mother denied this to the social worker. With respect to her case plan regarding domestic violence, Mother stated she was afraid of the two fathers of her older children and had restraining orders against both of them. On February 26, 2016, Mother advised the social worker she was going to file for a restraining order against D.B. as soon as her house manager could take her to the courthouse. On February 29, 2016, Mother called the social worker to tell her she was advised by her domestic violence liaison to file the restraining order on March 1, 2016. On March 3, 2016, after a hearing in S.E.’s dependency case, the Bureau “decided not to close the referral but to promote this referral to a case and petition the court to remove [M.W.] from her home.” Mother was contacted and professed confusion, since she was doing so well. Attempts to contact D.B. were unsuccessful.
The detention report included several excerpts from the disposition report submitted to the court on February 2, 2015, in the half siblings’ cases. The allegations in the disposition report form the factual basis for the allegations of domestic abuse and drug use by D.B., as follows. On October 29, 2014, a referral was made by an RP, who alleged that Mother had physically abused two of her three sons, C.F. and L.F. The RP said Mother, Mother’s fiancé, D.B., and a friend of D.B.’s had beaten C.F. C.F. reported that Mother had threatened to kill D.B., and that D.B. had threatened his own father. On January 20, 2015, C.F. and L.F. reported to the social worker that they had been hit, apparently by Mother, with a “ ‘spiky belt’ multiple times.” They also reported that D.B. was “ ‘dangerous’ though their Mother still trusted him.” They reported D.B. had beaten their mother a few weeks earlier, and maternal grandmother said Mother spent one night at a shelter, but returned home January 6, 2015. C.F. and L.F. also reported that D.B.’s friend hit them in the stomach and that D.B. threatened to call his brother to come over and hurt C.F. Mother continued to bring D.B. to visits with the children, despite their fear of him, although he stayed in the car.
The detention report also included the conclusions of the social worker who wrote the disposition report in S.E.’s case. That social worker found the children were not safe at home with Mother because of filthy conditions, lack of food, Mother’s unaddressed needs for substance abuse testing and treatment, domestic violence treatment, and parenting education. The social worker expressed puzzlement at Mother’s decision to “remain in an appallingly violent relationship with eighteen year old [D.B.].”
The detention report also included excerpts from a court memo prepared by another social worker for a February 17, 2016 hearing in S.E.’s case. It had come to the attention of the Bureau that Mother continued to maintain a significant relationship with D.B., “with whom she was involved in domestic violence and drug use,” all the while insisting she was no longer seeing him. However, after receiving Mother’s medical records from Kaiser, the Bureau learned that D.B. had attended prenatal appointments with Mother, and had been present at M.W.’s birth in late December 2015. Mother also communicated to Kaiser her intention to take the baby to visit D.B. every day, “as he was not allowed to visit [her] at the sober living environment where [Mother] resides.” Mother disclosed to Kaiser that she and D.B. worked in the same 99 Cent Store: he was a sales associate and she was his manager. She told Kaiser she had no past domestic violence history with D.B. Finally, on January 7, 2016, after the social worker asked Mother about her prenatal care, Mother specifically asked her Kaiser doctor not to disclose anything to the social worker about the visits or the birth other than the fact of her care. This attempt to deceive the Bureau “[u]ltimately . . . had an impact on [CFSB]’s recommending a termination of Family Reunification services for the mother with [S.E.].”
M.W. was detained in an out-of-home placement. The court set the matter for jurisdictional hearing on March 17, 2016. On that day, D.B. appeared, was appointed counsel, and requested a paternity test. The matter was continued to April 18, 2016.
Request for Judicial Notice
On March 30, 2016, the Bureau filed a motion requesting the court take judicial notice of various documents in S.E.’s dependency case, including the original petition dated October 31, 2014; the minute order from the jurisdictional hearing; Mother’s case plan attached to the disposition report; the minute order from the disposition hearing; and the minute orders from review hearings on January 21, 2016, and February 25, 2016. These documents show that the petition in S.E.’s case alleged that (1) Mother’s house was unsanitary and unsafe: she had multiple dogs and her house was littered with dog feces; and (2) Mother had a “pervasive substance abuse problem which impair[ed] her ability to adequately parent” S.E. in that (a) she “had smoked and allowed others to smoke marijuana in the home in the presence of the children,” and (b) had last used methamphetamine in September 2014. Under section 300, subdivision (j), the petition alleged that on October 29, 2014, Mother struck S.E.’s sibling in the face with a belt.
After a contested jurisdiction hearing in S.E.’s case at which both Mother and D.B. testified, the court sustained allegations (j)(1), (b)(2)(a), and (b)(2)(b), but dismissed counts (b)(1), (b)(1)(a), and (b)(3). The court ordered the “stay away” order against D.B. to remain in effect.
On January 21, 2016, the court suspended overnight visits pending the Bureau’s completion of its review of Mother’s medical records from Kaiser relating to D.B.’s attendance at Mother’s doctor’s visits. Overnights with S.E. could resume, unless D.B. had been attending appointments, in which case overnights were not to resume and all visits were to be supervised. On February 25, 2016, reunification services were terminated and a section 366.26 termination of parental rights hearing as to S.E. was set for June 15, 2016.
The Bureau also requested that judicial notice be taken of Mother’s application for a domestic violence restraining order filed March 2, 2016, the temporary restraining order, and a minute order dated March 24, 2016. These showed that on March 24, 2016, Mother’s request for a restraining order came on for hearing, at which time both Mother and D.B. testified. The case was dismissed at Mother’s request.
Jurisdictional Hearing and Findings
A jurisdictional hearing was held in M.W.’s case on May 19, 2016. Both parents were present. The court granted D.B. presumed father status and took judicial notice of the documents requested in the Bureau’s motion. No additional evidence was presented by any party. Both parents waived their rights to a contested hearing and submitted on the Bureau’s evidence, subject to argument.
Both parents submitted drug tests. Mother’s test was negative; D.B.’s test was positive for THC.
On the basis of the evidence presented, the court dismissed the section 300, subdivision (b) allegations in their entirety, finding that “the Department has failed to prove the allegation at b-1.” The court found true and sustained the subdivision (j) allegation that Mother failed to reunify with S.E. and amended the subdivision (j) petition “according to proof” by adding and sustaining a second allegation: “The child’s half sibling was exposed to domestic violence that occurred between the child’s mother and the child’s father in 2014 and 2015, and the half sibling was physically beaten by the child’s father. [¶] . . . [¶] The child’s mother failed to reunify with the half sibling and took active steps to conceal her ongoing relationship with the child’s father while in a period of family reunification.”
The court advised D.B.: “You really need to address the use of marijuana. I’m very familiar with the half siblings’ case . . . . And I know Mother struggled with substance abuse issues back in the day. There’s no evidence that she continues to struggle with those. But there’s a lot of evidence that you do, as you’re dirty today. So you need [to] stop using drugs, including marijuana. And I encourage you to do that. . . . [¶] But what led to this child’s half sibling being before this Court is nothing short of pretty horrific circumstances that involved you as well. So you need to address those issues. Hopefully between that time and now, you’ve matured a little bit. You’re a very young person. And hopefully you’ve matured a lot and you’re going to make better decisions going forward. But that sort of behavior that was described in the half sibling’s case is completely inappropriate. Period.” The court set the matter for disposition hearing on June 20, 2016.
Disposition Hearings and Findings
The disposition report, dated June 16, 2016, indicated that D.B. was born in 1996 and was 19 years old at the time of report. Mother was born in 1985. Mother had two police contacts in 2014, and no convictions. D.B. had 10 police contacts between 2013 and 2015, and no convictions. None of D.B.’s police contacts involved drugs. The report repeated information contained in the detention/jurisdiction report, including that “[p]er the investigative narrative, there were reports of domestic violence and drug use by [M.W.] and [D.B.],” and that in 2014 D.B.’s mother reported that D.B. “was engaging in substance use and criminal activity in spite of her attempted interventions.” It included no new information about D.B.’s drug use during the time he lived with Mother in 2014, and no information indicating current drug use. It did not mention D.B.’s positive test for THC on May 19, 2016. Nevertheless, the social worker concluded M.W. was not safe at home with D.B. because he “has presented with a substance abuse problem and anger management issues for which he is not engaged in services and . . . which contributed to the removal of [Mother’s] older children. . . . During a supervised [visit] with daughter, [M.W.], [D.B.] stated on June 9, 2016, that he disagreed with the drug part of his case plan as [M.W.] was not removed due to drugs. During this visit, [D.B.] was observed to smile and state that he just wanted to know what everyone was going to do next year when marijuana was legal.” The social worker opined: “[D.B.] has no insight into his aggressive, assaultive, and volatile behavior and substance use and their effects on his parenting of [M.W.] and his relationship with [M.W.’s] mother.”
The Bureau recommended family reunification services for both parents. In addition to requirements addressing D.B.’s anger management and domestic violence issues, the proposed case plan included random drug/alcohol testing for six months; successful completion of an outpatient substance abuse treatment program; successful completion of a residential treatment program if the outpatient program recommends it or if D.B. tests positive; and attendance at one to three AA/NA meetings a week and engagement with a sponsor.
On June 20, 2016, D.B. tested negative for drugs. The matter was continued to July 11, 2016, for a contested disposition hearing requested by minor’s counsel, who objected to the Bureau’s recommendation for reunification services for Mother. On that date, D.B. again tested negative for drugs. D.B. indicated he was prepared to submit on the case plan with the exception of the substance abuse requirements. The court indicated it was aware of information in the “detention juris report” for S.E. “relating to [D.B.’s] use of marijuana” to which D.B. and his counsel were not privy.
The contested hearing commenced with Mother’s testimony. She admitted D.B. had attended prenatal visits with her, was present at the birth, and came with a car seat when she left the hospital. She saw him once on the street during the next two weeks when she was leaving her domestic violence group. After that, she spoke with him a few times on the phone; she asked him for diapers for the baby and he dropped them off at a friend’s house. Since the baby’s detention, she had spoken to D.B. a few times, had run into him a few times on the days they visited the baby, and had dinner with him once. She was not afraid of D.B.; the last incident of domestic violence occurred in May 2015. Mother admitted she and D.B. used marijuana in front of her other children “at the time” she was living with him. The matter was continued for further hearing.
On September 15, 2016, new counsel was appointed for Mother due to a conflict of interest. The court indicated it was not inclined to bypass services for Mother. Based on Mother’s previous testimony about D.B.’s use of marijuana, and on “evidence” in the detention/jurisdiction report in S.E.’s case “relating to [D.B.]’s use and abuse of substances in the presence of [S.E.] and his older brothers in Mother’s household and in the course of their relationship,” the court was prepared to order drug testing and treatment for D.B. The court ordered him to test that day; he did, with negative results. However, the court reserved the issue of testing and drug treatment pending counsel’s review of a redacted copy of the report in question. The court adjudged M.W. a dependent child, made the requisite findings, ordered visitation under certain conditions, and adopted the modified findings and recommendations in the Bureau’s June 16, 2016 report.
On September 28, 2016, the court once again took up the question “whether [D.B.] should be ordered to submit to drug testing and participate in treatment.” D.B.’s counsel pointed out that the detention report in S.E.’s case related to drug use in 2014, when D.B. was 18 years old. He had tested negative for drugs four times since the single positive test, and there was no evidence of current use or a current problem. Counsel did not object to testing, with the understanding that D.B. would go into treatment if he tested positive. The court observed that there was “nothing random about coming to court on a schedule[d] court date, which is scheduled weeks, sometimes months in advance, and testing clean,” but the court acknowledged counsel’s point that depending on how much and how frequently one smoked, marijuana would stay in the system for some time.
Minor’s counsel agreed with the Bureau’s position that D.B. be ordered to test. She did not address the treatment question. County counsel indicated “the Bureau would be okay with random testing for that period,” and if he missed a test or tested positive “then he’s to go into treatment.” The court decided to adopt the case plan as presented by the Bureau. “I think it’s appropriate in this case. I also think, quite frankly, it’s important to address all of the issues . . . in hopes that reunification is successful and we do not see this child or this family before the Court again.”
DISCUSSION
D.B. argues the juvenile court abused its discretion by entering dispositional orders requiring substance abuse testing and treatment as part of D.B.’s reunification plan. We review the court’s orders for abuse of discretion. (In re Nolan W. (2009) 45 Cal.4th 1217, 1223 (Nolan W.); In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
The parameters of the court’s discretion to require a parent’s participation in drug testing and treatment as part of a reunification plan are set forth in Nolan W., supra, 45 Cal.4th 1217. “The Legislature has given juvenile courts broad discretion to fashion reunification orders designed to address the problems that have led to a dependency proceeding. Unfortunately, in a great many dependency cases, parental substance abuse is one such problem. . . . [W]hen a parent accepts services, and when substance abuse treatment is reasonably related to the minor’s welfare, the juvenile court has authority to order the parent to participate. (§§ 361.5, subd. (a), 362.)” (Nolan W., at p. 1229.) “Of course, the juvenile court’s discretion in fashioning reunification orders is not unfettered. Its orders must be ‘reasonable’ and ‘designed to eliminate those conditions that led to the court’s finding that the child is a person described by Section 300.’ (§ 362, subd. (c).) ‘The reunification plan “ ‘must be appropriate for each family and be based on the unique facts relating to that family.’ ” [Citation.]’ [Citation.] Thus, in In re Basilio T. (1992) 4 Cal.App.4th 155, 172–173, the court reversed a dispositional order requiring substance abuse counseling because there was no evidence to suggest either parent had a substance abuse problem. On the other hand, a reunification order requiring submission to random drug and alcohol testing was found to be appropriate in the case of a father who had a history of excessive alcohol and drug use. (In re Christopher H., [supra, 50 Cal.App.4th] at pp. 1006–1008; see also Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 [requirement that the mother be free of drugs and alcohol during visitation was reasonable to protect the children’s well-being].)” (Nolan W., at p. 1229.)
D.B. argues his marijuana use was not one of the stated bases for the court’s assertion of dependency jurisdiction, either in M.W.’s case or in S.E.’s case. It is true that one of the bases for jurisdiction in M.W.’s case was Mother’s continued relationship with the child’s father (D.B.), who had exposed M.W.’s half siblings to domestic violence between them and had also physically beaten a half sibling, and her concealment of that relationship from the Bureau. However, the basis for jurisdiction in S.E.’s case was that mother had a “pervasive substance abuse problem” and had “smoked and allowed others to smoke marijuana in the home in the presence of the children.” The detention/jurisdiction and disposition reports in S.E.’s case established that D.B. smoked marijuana in front of the children. As such, D.B.’s marijuana use was one of the conditions which led to the section 300 finding in S.E.’s case, albeit not the major one. In turn, D.B.’s marijuana use in front of the S.E. and his brothers was one of the conditions which led to the Bureau’s concerns about Mother’s ongoing clandestine relationship with D.B., and to the assertion of jurisdiction, even if none of the findings in M.W.’s case named him.
D.B. also argues that the evidence of his prior marijuana use was “flimsy” and, coming from Mother, unreliable at best. However, Mother’s statements about her drug use with D.B. in 2014 in her declaration in support of a restraining order, and at the contested dispositional hearing, were made under oath. In addition, her admissions were corroborated by statements her older sons made to the police and the social worker investigating S.E.’s case. There is sufficient factual basis to support a finding that D.B. used marijuana in front of the children in 2014.
Finally, D.B. argues the court’s orders for testing and treatment were an abuse of discretion because there was a paucity of evidence of recent drug use or drug abuse by him. We agree, in part. The sole indication of current use was a single positive test for THC on May 19, 2016. Subsequent tests on June 20, July 11, September 15, and September 28, 2016 were negative. Mother’s testimony at the dispositional hearing and in her declaration in support of the restraining order was that she and D.B. last used marijuana together in 2014, before she learned she was pregnant. He was 17 and 18 at the time. Even if his marijuana use was tied up with his domestic violence issues, the last incident of domestic violence occurred in May 2015. It is an abuse of discretion to order “invasive” drug testing and treatment in the absence of some reliable evidence that substance abuse is a current problem. (In re Sergio C. (1999) 70 Cal.App.4th 957, 960; In re Drake M. (2012) 211 Cal.App.4th 754, 768.) In our view, and given the current state of scientific research, a single positive test for THC followed by four negative tests over several months does not support a finding of substance abuse in need of amelioration by imposition of orders for outpatient and residential drug treatment and thrice weekly attendance at NA/AA meetings with a sponsor. (In re David M. (2005) 134 Cal.App.4th 822, 830; In re Alexis E. (2009) 171 Cal.App.4th 438, 452 [“the mere use of marijuana by a parent will not support a finding of risk to minors”].) On the other hand, given the evidence of D.B.’s past history of marijuana use and abysmal lack of good sense in connection with it, it was not at all unreasonable for the court to impose the random testing requirement for six months, as recommended by the Bureau, with the proviso that participation in mandatory treatment modalities would be ordered in the event of a positive test. We therefore affirm the order for random drug testing for six months, but reverse the court’s treatment-related orders. We remand for the juvenile court to modify D.B.’s reunification plan in a fashion consistent with this opinion.
DISPOSITION
The court’s dispositional order imposing drug treatment at this time as part of D.B.’s reunification plan is reversed. The matter is remanded to the juvenile court with directions to modify D.B.’s reunification plan consistent with this opinion.


_________________________
Dondero, J.


We concur:


_________________________
Humes, P. J.


_________________________
Banke, J.




























A149725 In re M.W./DSS v. D.B.