San Bernardino Cnty. Children & Family Servs. v. J.S. (In re N.P.)

In re N.P., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.

E073227

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

April 28, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. J276989)

OPINION

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Plaintiff and Respondent.

I

INTRODUCTION

J.S. (Father) is the father of eight-year-old N.P. Father appeals from the juvenile court's order requiring him to participate in an outpatient substance abuse program.¹ Specifically, Father contends the juvenile court abused its discretion by ordering him to participate in an outpatient drug program because he was not a substance abuser and there was no evidence his marijuana use impacted his ability to properly and safely parent N.P. We find no abuse of discretion and affirm the order.

II

FACTUAL AND PROCEDURAL BACKGROUND

In July 2018, the family came to the attention of the San Bernardino County Children and Family Services (CFS) when an immediate response referral was received with allegations of severe neglect and caretaker absence/incapacity by Mother. Mother had 10 children between the ages of eight months and 17 years, including N.P.² Law enforcement responded to the home to conduct a "'welfare check'" in response to a report that the children had been left alone for over six hours in a small home with no fan in hot temperatures. Mother admitted that she had left the children home while she frequented bars with friends three to four nights a week and stayed out until the bars closed. Mother was arrested and later released.

It was also reported that Mother failed to attend to N.P.'s severe dental needs. A year previously, Mother was advised N.P. had rotten teeth and various infections in her gums and teeth. Mother was informed that N.P.'s dental infections were painful and needed to be taken care of immediately. However, it had been over a year and Mother still had not taken N.P. to a dentist to have her teeth treated. Mother acknowledged that she had not followed up with N.P.'s dental care. The children revealed that Mother slapped them in the face, called them names, and banged their heads against a wall. The children also stated that Mother had told them to say everything was going well in the home and that they were not left at home alone or physically abused.

On July 18, 2018, CFS filed a petition on behalf of N.P.³ pursuant to Welfare and Institutions Code⁴ section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect). The petition alleged that Mother had a substance abuse problem, Mother had inflicted non-accidental physical harm on N.P., and Mother had neglected N.P.'s teeth causing them to rot. The petition further alleged that Father should have known Mother had placed N.P. at risk and that Father had a history of engaging in domestic violence.

Father called the social worker and expressed his desire for N.P. to be placed in his custody. He noted that he had been in contact with CFS regarding a prior referral andthat he had been attempting to obtain custody of N.P. from Mother. The social worker assessed Father's home and placed N.P. in Father's care.

Father is N.P.'s biological father, but he and Mother had never cohabitated and had never been married. Mother was married to another man at the time N.P. was born.⁵ Father was in a relationship with Mother before he was incarcerated. After his release, Father had maintained a relationship with N.P.

At the detention hearing on July 19, 2018, N.P. was removed from Mother's care and maintained in Father's custody.

On August 8, 2018, CFS filed a first amended section 300 petition on N.P.'s behalf removing the allegation that Father had engaged in domestic violence.

On September 4, 2018, Father was ordered to submit to a drug test, and the test was positive for marijuana.

On September 25, 2019, Father was present via video for a hearing when, after an off-the-record conversation, the juvenile court indicated there were some concerns about Father's positive drug test. N.P.'s counsel asked that Father continue to be drug tested and that counsel be notified if he continued to test positive or missed any drug tests, as N.P. was very young and should not be exposed to marijuana. Father was ordered to continue drug testing and the social worker was to monitor the results to assess whether Father should be referred to a substance abuse treatment program.

On October 19, 2018, CFS reported that N.P. was doing well in her father's care and recently had the needed dental surgery. CFS recommended that N.P. be maintained in Father's care on family maintenance services. Father reported that he had called the child abuse hotline several times to report his concerns about Mother's ongoing care of his daughter and her dental issues. CFS noted that since N.P. had been released to Father's care, he had taken care of her medical and dental needs and had enrolled her in school. CFS recommended that the last allegation against Father—that he had failed to protect N.P.—be dismissed. Father agreed to continue to work with CFS and participate in random drug testing and other services ordered by the juvenile court.

On October 26, 2018, at the jurisdictional/dispositional hearing, the juvenile court found true the allegations in the first amended petition against Mother as amended and dismissed the allegation against Father. The court also found Father to be N.P.'s presumed father and declared N.P. a dependent of the court. The court maintained N.P. in Father's custody under a family maintenance plan. Father submitted on CFS's recommendation that the court retain jurisdiction to supervise N.P.'s care, and the court ordered Father to participate in family maintenance services. Father and Mother were both ordered not to be under the influence of any controlled substances. Father was also ordered to undergo drug testing. CFS was given authority to dismiss N.P.'s case with an approval packet upon 30 days of clean testing and no missed tests.

Between December 20, 2018 and January 10, 2019, Father tested positive for marijuana twice and then stopped submitting to testing. Father had six "'No shows'"from January 30 through April 11, 2019. Father admitted to continued marijuana use to deal with pain from a shoulder injury. He claimed that "due to his spiritual beliefs, he does not use medication" and that is why he had obtained a medical marijuana card. He also stated that he went to a doctor and was prescribed medication and that "he may take that medication and stop using marijuana." Father advised the social worker that he would bring his medical marijuana card and his medical diagnosis of his shoulder injury to the CFS office. Father further asserted that he smoked marijuana outside and that he kept it locked up, out of N.P.'s reach. He believed that his marijuana use did not affect his functioning or ability to provide for N.P. The social worker advised Father that the goal was to dismiss N.P.'s case, but that he needed to test clean as part of his family maintenance services. Father stated he would stop using marijuana.

Father continued to maintain employment at a Wal-Mart warehouse, and N.P. had "expressed enjoying feeling happy and safe living with her daddy." N.P. was described as a "very happy child" who shared how "'daddy'" took good care of her, played video games with her, ate ice cream with her, and had fun with her. N.P. also stated that she liked seeing her paternal grandmother and cousins every day.

CFS reported that despite Father's continued marijuana use, Father had continued to provide a safe and stable home environment for N.P. and that N.P.'s medical, dental, and educational needs had been met. CFS noted that Father had utilized the support of his family, including the paternal grandmother and paternal aunts, who had been identified as his safety network. The paternal grandmother had "not voiced anyconcerns" about Father's continued marijuana use "as she [did] not believe it has interfered with his ability to parent [N.P.]." The paternal grandmother also stated that Father did not take prescription medication as "'[i]t's against his spiritual beliefs.'" The paternal grandmother acknowledged that she watched N.P. almost daily.

CFS was unable to request dismissal of the matter by approval packet due to Father's continued marijuana use. CFS recommended further family maintenance services for Father to allow him to continue to randomly test for a minimum of two months to ensure negative tests.

At the April 26, 2019 semi-annual review hearing, with Father present via video conference, the juvenile court admonished Father that his defiant and excessive use of marijuana jeopardized his continued custody of his daughter. The court explained: "the court did not authorize the use of marijuana in this case. The court's understanding at the last hearing was that father had agreed to cease using and agreed to submit to ongoing testing. In fact, he is still using marijuana and is not testing. [¶] Sir, that placed [N.P.]'s placement with you in jeopardy. And there could be a request to remove her from your care at a minimum. You've been ordered to test. Every missed test is considered a positive test. If you are using and you test, we'll get levels so we can at least—I'll give you a moment—so we can see they are within a...