Filed 4/19/22 In re J.O. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Kristen Lecong, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for minor.

* * *

The juvenile court sustained a dependency petition concerning J.O. and released the infant to his parents’ shared custody. Five months later, following reports of domestic violence between the parents, the court sustained a supplemental petition, removed J.O. from T.O.’s (Father) custody, and ordered both parents to undergo random drug testing as part of their case plans.

Father challenges the juvenile court’s jurisdictional and dispositional findings and orders on the supplemental petition. Specifically, he contends the court erred in sustaining the substance abuse allegations and abused its discretion by adding drug testing to his case plan. We disagree and affirm the court’s findings and orders.

FACTS

In September 2020, the Orange County Social Services Agency (SSA) filed a petition under Welfare and Institutions Code[1] section 300 concerning two-month-old J.O. based his parents’ alleged failure to protect him (id., subd. (b)(1)), and their abuse of J.O.’s half-siblings (id., subd. (j)). The petition cited, among other things, B.B.’s (Mother) mental health issues and inability to care for J.O, Father’s inability and unwillingness to care for J.O., Mother’s and Father’s criminal histories, Mother’s history of domestic violence with the father of her other child, Father’s history of domestic violence with the mother of his six other children, Father’s anger management issues and history of physically abusing his other children, and Mother’s and Father’s failures to reunify with J.O.’s half-siblings in prior dependency proceedings.

At the detention hearing, the juvenile court released J.O. to his parents’ shared custody and issued protective orders requiring, among other things, that the parents not engage in any domestic violence or exposure to drugs. In January 2021, the court sustained the petition in its entirety, ordered that J.O. stay in the parents’ custody, and approved a plan for family maintenance.

Father moved out of Mother’s residence in March 2021. Although the parents technically continued to share physical custody of J.O., Father did not consistently interact with J.O, reportedly because he had moved back to a homeless shelter and was not allowed to have the child there. Throughout April 2021, Mother expressed frustration that Father was not caring for or visiting the child and that his unavailability was jeopardizing Mother’s employment. The parents agreed to a specific visitation plan in May with the assumption that Father would obtain housing, but Father continued to have housing issues and to miss visitation with J.O.

The domestic violence incident giving rise to the supplemental petition at issue here occurred on June 15, 2021. According to Mother, Father came to her home unannounced in the early hours of the morning, began making negative comments toward her, and struck her four times in the head. When the police arrived, they arrested Father and issued Mother an emergency protective order. According to the responding officers, the situation was calm upon their arrival, but Mother was shaking, possibly from fear or anxiety. An officer also noted that there was a strong smell of marijuana in the home.

During the ensuing investigation, Mother and Father both denied smoking marijuana. Mother denied smelling any marijuana that night but claimed Father generally did smoke and drink. Father denied using any drugs or alcohol, but reported that he smelled marijuana that night, that Mother often smoked marijuana and drank alcohol while caring for the child, and that Mother had smoked marijuana before he arrived. Father also denied Mother’s domestic violence allegations, stating that he and Mother were having an honest conversation when law enforcement arrived. In support of his account concerning Mother’s use of alcohol and drugs, Father provided photographs of what appeared to be marijuana packaging and small empty bottles of alcohol on a nightstand. He also suppled a negative drug test he obtained on July 14, 2021.

SSA obtained a protective custody warrant removing J.O. from Father’s custody and filed a supplemental juvenile dependency petition under section 387. Allegations s-1, s-2, and s-3 of the supplemental petition summarized the original sustained petition and the components of each parent’s family maintenance case plan; allegations s-4 and s-5 concerned the June 15 incident of domestic violence and the parents’ ongoing relationship problems; and allegation s-6 alleged the parents exposed J.O. to substance abuse in the home and may have unresolved substance abuse issues.

At the detention hearing, the juvenile court heard testimony from Mother and Father, both of whom continued to deny smoking marijuana on June 15. When questioned about drug testing, Father testified he “would have no issues drug testing” and asked the court to order “50/50 [custody] with maintenance [services], with drug testing.” The court also heard testimony from the social worker, who thought it would be a good idea for both parents to drug test given that each was accusing the other of using marijuana.

During argument, Father’s counsel asked the juvenile court not to sustain the supplemental petition and to continue family maintenance services. J.O.’s counsel asked the court to sustain the supplemental petition, order supervised visitation for Father, and order both parents to participate in random drug and alcohol testing. Counsel for SSA joined in those requests.

The juvenile court found the supplemental petition’s allegations true by a preponderance of the evidence, noting that Mother’s account of the June 15 domestic violence incident was more credible than Father’s account. The court then adopted SSA’s recommendations, ordered J.O. removed from Father’s custody, and ordered J.O. to remain in Mother’s custody. The court also approved the case plan but amended it to require that both parents participate in drug and alcohol testing for at least 60 days.

Father filed a timely notice of appeal.

DISCUSSION

1. The Substance Abuse Allegations

Father first contends the juvenile court erred in sustaining the supplemental petition’s substance abuse allegations against him. According to Father, the supplemental petition’s allegations were facially insufficient to show the court’s prior placement order was no longer effective in protecting J.O., and there was insufficient evidence to justify imposing additional case plan requirements on Father. We cannot agree.

A supplemental petition under section 387 may be used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of custody. (§ 387; Cal. Rules of Court, rule 5.560(c).) The petition must contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in rehabilitating or protecting the child. (§ 387, subd. (b).) “A section 387 petition need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. [Citations.] The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child.” (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.)

SSA has the burden to prove the supplemental petition’s factual allegations by a preponderance of the evidence. (In re A.O. (2010) 185 Cal.App.4th 103, 109-110.) We review the juvenile court’s findings on a section 387 supplemental petition for substantial evidence. (In re D.D. (2019) 32 Cal.App.5th 985, 990 (D.D.).)

Father contends the supplemental petition’s allegations were insufficient to show the prior placement order was no longer effective in protecting J.O. According to Father, allegations s‑1, s‑2, and s‑3 summarized the original sustained petition and the components of each parent’s family maintenance case plan, and did not provide any grounds for the juvenile court to determine the original disposition of shared custody was no longer appropriate; and allegation s‑6, which concerned substance abuse, was purely speculative in nature. Father further asserts there was insufficient evidence that he has a substance abuse issue.

As a preliminary matter, Father’s arguments ignore sustained allegations s‑4 and s‑5, which concerned the June 15 domestic violence incident and the parents’ ongoing conflictual relationship. Those unchallenged findings show the prior placement order was no longer effective in protecting J.O.; standing alone they are sufficient to justify the sustaining of the supplemental petition.[2]

Contrary to Father’s arguments, the remaining allegations also support the juvenile court’s orders. Although allegations s‑1, s‑2, and s‑3, taken individually, might appear to be only a recounting of the circumstances which led to the prior disposition, those allegations become relevant when considered together with the supplemental petition’s other allegations concerning domestic violence, the parents’ ongoing conflict, and substance abuse. (D.D., supra, 32 Cal.App.5th at p. 995 [in sustaining supplemental petition, “court properly considered the totality of the circumstances rather than viewing each separate incident in a vacuum, devoid of any context”].)

As for the s‑6 allegation concerning substance abuse, we do not find the allegation to be as speculative as Father suggests; it alleges in no uncertain terms that the parents “exposed [J.O.] to substance abuse in the home” and explained how each parent blamed the other for the strong smell of marijuana detected on June 15.

Furthermore, substantial evidence supports the juvenile court’s order sustaining that allegation: the officers who responded to the June 15 domestic violence incident detected a strong odor of marijuana in Mother’s residence, Mother denied smoking that night, Mother asserted Father often smoked and drank, and the court found Mother’s account was more credible than Father’s.

We acknowledge that Father denied smoking marijuana, presented a negative drug test taken a month after the June 15 incident, and insisted it was Mother who was responsible for the marijuana odor. But under the substantial evidence standard, “‘“we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.”’” (In re I.J. (2013) 56 Cal.4th 766, 773.) Applying those standards here, we must affirm the juvenile court’s orders sustaining the supplemental petition. (See also Drake M., supra, 211 Cal.App.4th at pp. 766‑767 [very young child faces inherent and substantial risk of serious physical harm if caregiving parent is abusing mind-altering drugs that render parent less capable of providing requisite supervision].)

2. Random Testing

Father next contends the juvenile court abused its discretion in ordering Father to submit to random drug and alcohol testing as part of his enhancement services. Again, we cannot agree.

A juvenile court has discretion to order enhancement services, which are a form of discretionary child welfare services offered to the parent not retaining custody, to enhance the child’s relationship with that parent. (§ 362; In re Destiny D. (2017) 15 Cal.App.5th 197, 212-213 (Destiny D.).) Any such enhancement services “shall be designed to eliminate those conditions that led to the court’s finding that the child is a person described by Section 300.” (§ 362, subd. (d).) As enhancement services are wholly discretionary, we affirm an order for enhancement services unless the appellant demonstrates the order was arbitrary, capricious, or patently absurd. (See Destiny D. at p. 213.)

In this case, the juvenile court ordered both parents to test for drugs and alcohol for a minimum of 60 days.[3] This was consistent with Father’s testimony at the dispositional hearing on the supplemental petition, during which he testified he “would have no issues drug testing” and asked the court to order “50/50 [custody] with maintenance [services], with drug testing.”

Notwithstanding that testimony, Father now argues the juvenile court abused its discretion in ordering drug testing because substance abuse problems were not the reason J.O. was originally adjudged a person described by section 300, and because the court had no basis for ordering drug testing.

We are not persuaded. It was appropriate for the juvenile court to make changes to Father’s case plan during the proceedings on the supplemental petition because the previous disposition was no longer effective in protecting J.O. And the added drug testing requirement was reasonable based on concerns about the parents’ drug use. (See also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 [juvenile court did not abuse its discretion in ordering random drug or alcohol testing as part of reunification plan, even though the father’s substance abuse had not yet posed a danger to the child].) We see no abuse of discretion.

DISPOSITION

The juvenile court’s findings and orders are affirmed.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MARKS, J.

[1] All further undesignated statutory references are to this code.

[2] Citing Father’s failure to challenge the juvenile court’s sustaining of allegations s‑4 and s‑5, SSA contends Father’s appeal is not justiciable. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1490-1491 [appeal is not justiciable if appellate court cannot grant effective relief].) However, because Father also challenges the court’s orders requiring him to drug test, we exercise our discretion to reach the merits of his arguments concerning the substance abuse allegations. (See In re Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.).)

[3] The court did not specify whether Father would need to complete additional case plan requirements should he test positive or miss a test.