Filed 12/29/17 In re C.F. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re C.F. et al., Persons Coming Under the Juvenile Court Law. H044734
(Monterey County
Super. Ct. Nos. 17JD000035,
17JD000037)
MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES,

Plaintiff and Respondent,

v.

A.F.,

Defendant and Appellant.

A.F. (father) appeals from the juvenile court’s dispositional order directing him to submit to hair follicle drug testing as part of his reunification plan. He argues the test constitutes an invasion of privacy and is unrelated to his reunification with his children. As we explain below, we disagree. Given father’s history of drug use, requiring a hair follicle drug test was both reasonable and supported by substantial evidence. We affirm.
BACKGROUND
1. The Dependency Petition
On March 2, 2017, the Monterey County Department of Social and Employment Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (f) (caused another child’s death through abuse or neglect), and (g) (no provision for support) alleging C.F. (born 2004), M.F. (born 2006), and M.M.F. (born 2014) were at a substantial risk of harm and came within the juvenile court’s jurisdiction.
The petition alleged that father and E.S. (mother) had four children together, C.F., M.F., M.M.F., and L.F., a three-month-old baby. On February 21, 2017, the Department received a referral alleging the children were being physically abused and neglected. At the time, mother was hospitalized due to a schizoaffective disorder. She had previously expressed a desire to seriously hurt L.F. Father often left the children in mother’s care knowing that she sometimes behaved erratically due to her mental health issues.
On February 28, 2017, a social worker visited the family’s home to find a police car parked outside. Officers informed the social worker that L.F. had died, and the home was now a crime scene. At the time, C.F. and M.F. were living with their paternal grandmother in the main house located on the property. Father had been living with M.M.F. and L.F. in a trailer at the same site. Mother was still hospitalized and was not at home. Father told officers that he had fallen asleep at 10:00 p.m. the previous night while sharing a bed with M.M.F. and L.F. He woke up at 10:00 a.m. the next morning and noticed something was wrong with L.F. He tried to rouse L.F., who was not responsive. Father called 911, but paramedics were unable to resuscitate him. Officers noted father appeared to be “coming down” from methamphetamine use, and the trailer where father lived was unsanitary.
The Department had previously received nine referrals for the family. The allegations in the referrals varied. There were allegations that father abused drugs like methamphetamine and heroin, father had driven with the children while under the influence, father had been recently incarcerated, mother had mental health issues, and there was domestic violence between the parents. None of the children corroborated the allegations against their parents and there had never been evidence of child abuse or neglect. In April 2016, father admitted to smoking marijuana but denied using any other drugs. Father had previously been arrested for assault with a firearm, domestic violence, willful cruelty to a child, and assault with a stun gun and assault with a deadly weapon. Mother also had a history of substance abuse and a criminal history.
2. The Detention Hearing
On March 3, 2017, the juvenile court made prima facie findings and ordered the children detained from their parents. The court ordered a psychological evaluation for mother and drug testing for father. Mother objected to the psychological evaluation. Father did not object to drug testing.
3. The Jurisdictional Hearing
a. The Jurisdiction Report
The Department filed a jurisdiction report on March 16, 2017, recommending the court amend the petition as set forth in the report, sustain the amended petition under section 300, subdivisions (b), (f), and (g), maintain the children in their out-of-home placement pending the disposition hearing, and set the matter for a disposition hearing. The Department recommended the section 300 petition be amended to reflect the fact that father was no longer incarcerated, because he had recently been released from jail. It also requested a correction to the spelling of D.M.’s name.
The social worker had spoken to father. Father had requested his children be returned to his care, because criminal charges had not been filed against him. However, the social worker noted that father remained a suspect in L.F.’s death. An investigation was still ongoing, and police were awaiting the results of toxicology tests. Furthermore, father’s trailer was in an unlivable condition and there were concerns that he had not adequately supervised M.M.F. or L.F. Methamphetamine had been found in two of father’s cars, and the social worker had received reports that father was using drugs. Thus, the social worker believed the children’s physical and emotional well-being would be at risk if they returned to father’s care.
Mother remained hospitalized due to her mental health issues. She had shown some improvement, but it was unclear when she would be released. Upon release, she was set to go to a short-term crisis program that would assist her with coping with her mental illness.
Attached to the jurisdiction report was the social worker’s investigative narrative and delivered service logs, which provided additional information about the family’s issues and the events leading to L.F.’s death. Father had admitted to the social worker that he had used methamphetamine two days before L.F. died. There were concerns that father had inadvertently rolled over L.F. in his sleep while he was coming down from drugs. The maternal grandmother said that father was actively using marijuana, methamphetamine, and heroin.
The social worker had visited father while he was in jail. Father had been in tears. He told the social worker that he was a long-time drug user but claimed he wanted to get clean. He said he went to bed between 10:00 p.m. and midnight the night L.F. died and when he woke up around 10:00 a.m. he noticed L.F. was not okay. He had called 911 and was performing CPR on L.F. when emergency personnel arrived. He could not recall rolling over L.F. in his sleep and prayed he did not do so. Father told the social worker he was a horrible person and a horrible father. He described L.F. as the “best baby,” who was easy to take care of and was generally not fussy. Father said he missed all of his children. Although M.F. was not his biological child, father had been there for M.F. since he was born and viewed him as his own son.
The paternal grandmother blamed much of the family’s problems on mother’s mental health issues. Mother had previously reported having thoughts of seriously hurting L.F. She had stated in the past she wanted to grab L.F. and throw him against the wall.
b. The Hearing
On March 21, 2017, father requested a contested hearing on jurisdiction. He filed a trial brief in opposition to the jurisdictional report, denying some of the allegations in the petition and challenging some of the statements in the report as hearsay. The Department filed a response, arguing the social worker would be able to testify at the contested hearing on jurisdiction.
Prior to the hearing, a preliminary family mental health assessment was completed by Children’s Behavioral Health. As part of the assessment, father was interviewed shortly after his release from jail. At the time of the interview, father was both distraught with grief and angry with the system. Father denied using drugs and asserted he had never been charged with a drug crime. He also insisted he had never tested positive for drugs throughout his most recent probationary period.
The children were also interviewed. C.F. appeared to be protecting his parents during the interview. He agreed that father’s anger could be a problem but would not offer any additional information. M.M.F. was experiencing significant emotional reactions to a baby who was at her foster home and appeared to have unresolved feelings about the death of L.F. She said she missed her mother and wanted to go home with her. She had not expressed a similar desire to go home with father. M.F. said he did not want to think about losing L.F. Before L.F. died, M.F. described everything as “good.”
As part of the assessment, father was observed visiting all three children. During the visit, father engaged with the children, read them books, and tickled them. At several moments, father appeared to be upset about the family’s circumstances and the necessity of having supervised visits.
On May 1, 2017, mother made a Marsden motion, which the trial court denied. That same day, the court held the contested jurisdiction hearing. At the outset of the hearing, the Department indicated that law enforcement had provided a test that showed father was high on methamphetamine the day after L.F. died. The Department also said it would agree to strike the allegations under section 300, subdivision (f) (caused the death of another child through abuse or neglect) with the right to amend the petition if additional information about L.F.’s death came to light. Father agreed to having the allegations under section 300, subdivision (f) dismissed. All parties submitted on the jurisdiction report filed on March 16, 2017. The juvenile court admitted into evidence and considered the family mental health assessment, the trial briefs submitted by the parties, and the jurisdiction report. Thereafter, the juvenile court found that all three of the children fell within its jurisdiction.
4. The Disposition Hearing
a. The Disposition Report
On May 18, 2017, the Department filed a disposition report recommending the children be removed from mother and father’s care and adjudged as dependents of the juvenile court. The report also recommended mother and father be offered reunification services. It was further recommended that father receive reunification services for C.F. and M.M.F., and M.F.’s biological father D.M. receive reunification services for M.F. At the time, C.F. and M.F. were placed together in a licensed foster home. M.M.F. was placed separately in a concurrent foster home.
According to the report, father had tested positive for methamphetamine and marijuana the day after L.F.’s death. Photos of father’s trailer taken after L.F. died showed it was in disarray with safety hazards present, which posed a risk for M.M.F.
The report described the family’s history and M.F.’s parentage. Mother and father had been in a relationship since they were 18 years old. Mother conceived M.F. with D.M. while father was in jail. D.M. wanted to have contact with M.F. but stayed away due to father’s possessive nature. At one point, father physically attacked D.M. D.M. was excited to form a relationship with M.F. He acknowledged he needed to build a relationship with M.F. in order to facilitate reunification.
Mother was still receiving mental health treatment at the time the report was prepared. She believed the treatment she was receiving was beneficial, and she remained committed to attending to her own needs. She knew she needed to address her mental health issues so she could take care of her children.
Father had been consistent with visiting the children and expressed the desire that the children not make the same mistakes he had made. Father, however, also maintained he had done nothing wrong and claimed the children had been “illegally seized” from him. When visited by the social worker, father would make statements about signing forms to “move [the process] along” without truly comprehending what was being asked of him. Father appeared to lack insight, and he insisted he did not need to participate in services since he was not at fault.
The report concluded that the children could not be safely maintained in mother and father’s care. Mother continued to have mental health issues that impaired her ability to take of the children. Father had failed to address the issues that brought the children into the dependency system. He had also been unresponsive to the Department.
The Department had considered both the maternal grandmother and the paternal grandmother as possible relative placements for the children. The Department had reservations about both grandmothers. The maternal grandmother had not followed the Department’s instructions about contact and confidentiality. She was also rude, agitated, and demanding when dealing with the Department. Furthermore, she had a contentious relationship with father. The Department was concerned that the paternal grandmother lacked the ability to protect the children from father. The Department believed the children were emotionally stable in their current placements and placing them in another home would be detrimental.
Father had participated in weekly supervised visits with all three children since March 14, 2017. The visits had gone well. Father was attentive to the children. He brought them food and played games. Mother had begun visiting the children following her discharge from the hospital. D.M. had weekly supervised visits with M.F., which were also going well.
Overall, mother’s mental health had been improving. Mother said father did not approve of her being away from him, as she was currently in a short-term residential crisis program. However, mother said she knew she had to be around counselors and other people to help her get stronger and address her mental health issues. Mother wanted to reunify with the children. Father also wanted to reunify with the children. However, he continued to express his opinion that the children had been illegally seized from him. He had not been responsive with the Department and had not complied with drug testing. Father said his attorney had advised him not to submit to the drug tests. The Department spoke to father’s attorney about the drug tests and noted that it received “contradictory information” from the attorney. Father’s interactions with the Department were unpleasant. He would often become agitated and rude.
Attached to the report were pictures showing the conditions inside the trailer the day L.F. died and a letter written by father that was sent to the Department. In his letter, father claimed he did not know why his children had been taken from him.
b. Mental Health Assessment Addendum
Prior to the hearing, the Department filed an addendum to its prior family mental health assessment. The report included additional information about father and also summarized the information gleaned from the prior assessment. After the first assessment, father was interviewed again in May 2017. At this second interview, father was angry and “indignant only over the ‘illegal seizure’ of his children by the Department of Social Services.” The interviewer told father he suspected father’s anger preceded the dependency case and shared his opinion that father’s anger issues damaged his relationships, affecting mother and the children’s mental health. The interviewer recommended individual therapy, but father denied having psychological problems. Father expressed his opinion that therapy was “just another hoop” to jump through and denied responsibility for the children’s detention. Father had consistently refused to submit to drug tests. He maintained he did not currently use drugs. Father said he had always tested clean when he was previously on probation.
The Department also assessed D.M. and mother. The assessment indicated that D.M. was congenial during the interview and demonstrated an understanding of M.F.’s needs. Mother was still at her short-term residential crisis program. It was determined that her mental health and substance abuse issues would be more appropriately addressed in the “Adult System of Care.”
c. The Hearing
On May 30, 2017, the juvenile court held a dispositional hearing. The parties did not object to the dispositional report. The Department informed the court that an issue had arose following the preparation of the report. The Department claimed it had an order to conduct drug testing for father that included both urinalysis and hair follicle drug testing. Father was now maintaining that on the advice of his counsel, he would submit only to a urinalysis drug test.
The trial court heard argument from the parties about the hair follicle drug testing requirement. Father’s counsel argued the court had to order drug testing via the least intrusive means under Family Code section 3041.5. Father’s counsel maintained that hair follicle drug testing was not the least intrusive means to test for drugs. He insisted Family Code section 3041.5 applied, because the present dependency was essentially a “custody visitation” case. He also maintained that juvenile courts frequently borrow from the Family Code, Evidence Code, and the Welfare and Institutions Code in the dependency context.
The Department argued hair follicle drug testing was appropriate in the context of this case. It would allow the Department to detect father’s drug levels for the past 90 days. It would also allow the Department to observe whether the levels were going up or down. The Department explained that methamphetamine levels last approximately three days in a person’s system before it is undetectable from a urinalysis drug test. Accordingly, a person could time his or her drug tests to ensure they will test clean. The Department believed father’s drug abuse was a serious issue that he needed to work on in the dependency, and it did not want father to be able to deceive the Department in any way.
The trial court agreed with the Department and found it was reasonable to request hair follicle drug testing. The trial court noted the test would help the Department gauge father’s progress with his sobriety, especially because methamphetamine levels dissipate quickly with a urinalysis drug test. It then concluded hair follicle drug tests would be in the family and the children’s best interests.
Afterwards, the court adopted the Department’s recommended findings and declared all three children dependents of the court. The children were removed from the physical custody of their parents, and reunification services were ordered for father, mother, and D.M. D.M. was found to be M.F.’s biological father. Father appealed.
DISCUSSION
On appeal, father challenges the trial court’s imposition of the hair follicle drug test requirement as part of his reunification plan. He argues the trial court abused its discretion when it ordered him to submit to the test, because it constitutes an invasion of his privacy and does not facilitate reunification with his children.
1. Overview and Standard of Review
“The overarching goal of dependency proceedings is to safeguard the welfare of California’s children.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) Preservation of the family, with reunification services offered to the parents, is a priority when a dependency case commences. (Ibid.) “With some limited exceptions not relevant here, section 361.5 requires the juvenile court to order child welfare services for both parent and child when a minor is removed from parental custody.” (Ibid.)
“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. (1996) 50 Cal.App.4th 1001, 1006 (Christopher H.); § 362.) “The juvenile court 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 . . . .” (§ 362, subd. (d).) “The reunification plan ‘ “must be appropriate for each family and be based on the unique facts relating to that family.” ’ ” (Christopher H., supra, at p. 1006.) “We review the propriety of court-ordered reunification services at this stage for abuse of discretion.” (In re D.C. (2015) 243 Cal.App.4th 41, 56.)
2. Analysis
Father argues the hair follicle drug test ordered by the court is an unjustifiable invasion of his privacy that has no rational connection to his reunification with his children. He claims the court found the test necessary because it would help the Department “figure out where a particular person is with regard to his or her sobriety.” Thus, he insists the court did not perceive the hair follicle drug test to be a necessary part of his reunification plan pursuant to section 361.5.
First, we reject father’s claim that the juvenile court’s statements during the dispositional hearing demonstrates it believed hair follicle drug testing was unrelated to father’s reunification plan. The court’s statements reflect it understood the hair follicle drug test would track father’s sobriety during the dependency, which is related to his reunification with his children. The record reflects father’s history of drug abuse. He tested positive for methamphetamines the day after L.F. died. Although it is unclear if father’s drug use played a role in L.F.’s death, there were concerns that father had been “coming down” from drugs when he went to bed with L.F. the night he died. Father himself had previously expressed fear that he may have rolled over L.F. Throughout the dependency, the Department maintained that father’s drug use was a serious issue that he needed to work on.
Father, however, maintains that the hair follicle drug test is an impermissible intrusion on his privacy rights. He argues it is not the least intrusive drug test that can be ordered, which is what is required under Family Code section 3041.5. “[Family Code] section 3041.5[, subdivision] (a) requires any court-ordered drug testing to conform to federal drug testing procedures and standards, and those federal standards at present only allow for urine tests.” (Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181, 1187 (Deborah M.).)
Father is mistaken that Family Code section 3041.5 is applicable in the dependency context. The plain language of the statute contravenes his claim. Family Code section 3041.5 begins by limiting its application to “any custody or visitation proceeding brought under this part, as described in Section 3021, or any guardianship proceeding brought under the Probate Code.” Family Code section 3021 describes that “[t]his part applies in any of the following” proceedings: dissolution of marriage, nullity of marriage, legal separation of the parties, an action for exclusive custody pursuant to Family Code section 3120, proceedings to determine physical or legal custody or for visitation under the Domestic Violence Prevention Act, proceedings to determine physical or legal custody or visitation under the Uniform Parentage Act, or proceedings to determine physical or legal custody or visitation in an action brought by the district attorney under Family Code section 17404. Based on this language, visitation and custody proceedings brought in the dependency context are not contemplated by Family Code section 3041.5.
Father recognizes that in dependency cases, juvenile courts are given broad authority to order reunification services for parents to make the home safe for a child’s return. (§ 361.5, subd. (a).) However, he maintains that “ ‘[g]overnmentally compelled drug testing implicates the federal and state right to be free of unreasonable searches and seizures, and the state right of privacy.’ ” (Deborah M., supra, 128 Cal.App.4th at p. 1189.) Thus, “to pass constitutional muster, the intrusiveness of the testing must be weighed, along with the individual’s legitimate expectation of privacy, the nature and immediacy of the government concern at issue, and the efficacy of drug testing in meeting that concern.” (Id. at p. 1193; Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 268.) Father argues the hair follicle drug test serves no purpose and does not address the concerns raised in the dependency. He claims the test would merely confirm his past drug use, which he did not deny. He also argues the results of the test would be merely duplicative of any results gleaned from a urinalysis drug test.
Contrary to father’s claims, the Department articulated valid reasons for requesting a hair follicle drug test. The Department argued below that methamphetamines dissipate quickly in a person’s system. With appropriate timing, it would be feasible for a drug user to cheat the urinalysis drug test and test clean for drugs by abstaining from using drugs for several days. In contrast, a hair follicle drug test would show the levels of drugs within a person’s system for the last 90 days. Thus, the hair follicle drug test would help ensure father remained drug-free by detecting past levels undetectable from a urinalysis drug test. The test would not merely confirm father’s past drug use. It also would not be merely duplicative of the urinalysis drug test.
Given father’s history of drug use and the role drug abuse played in the children’s removal, the juvenile court reasonably found the hair follicle drug test to be a “constructive tool for [father’s] continued sobriety.” (In re Carmen M. (2006) 141 Cal.App.4th 478, 494.) Admittedly, the imposition of a drug testing requirement implicates father’s right to privacy. However, once a court finds a child is at risk and assumes jurisdiction, “a parent’s liberty and privacy interest yield to the demonstrated need of child protection.” (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 203.)
In his reply brief, father argues the Department does not offer evidence to support its claim that a hair follicle drug test would permit it to monitor his past drug levels. He also argues that testing hair follicles is not a scientifically accepted method to test for substance abuse, and no standards have been set by the federal government to license laboratories to test hair follicles or to accept test conclusions. Father did not raise these claims in his opening brief. “[I]t has long been the rule that an appellate court will generally decline to consider any questions not raised in the opening brief.” (In re Ricky H. (1992) 10 Cal.App.4th 552, 562.) Father does not explain why these claims were not timely raised. Thus, he has forfeited them on appeal.
Additionally, father has also forfeited these claims by failing to raise them below. At the dispositional hearing, he did not present any evidence or argument on either of these two issues. Instead, he challenged the imposition of the hair follicle drug test solely by arguing the Department was required to order drug testing by the least intrusive means under Family Code section 3041.5. Thus, having also failed to raise these claims to the juvenile court, father has forfeited them on appeal. (E.g., In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [failure to object to inadequacy of social study]; Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1024 [failure to raise evidentiary objections].)
DISPOSITION
The juvenile court’s order is affirmed.






Premo, J.





WE CONCUR:






Elia, Acting P.J.








Grover, J.