Filed 1/5/22 In re A.H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re A.H. et al., Persons B310939
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 20CCJP00688
SERVICES,
Plaintiff and Respondent,
v.
D.H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Commissioner.
Reversed in part.
Leslie A. Berry, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
INTRODUCTION
The juvenile court exercised jurisdiction over A.H. and
B.H., the children of M.H. (mother)1 and D.H. (father), under
Welfare and Institutions Code2 section 300, subdivisions (a) and
(b). The juvenile court found the children were at substantial risk
of serious physical harm due to their parents’ history of domestic
violence and mother’s abuse of alcohol.
The juvenile court removed the children from their parents
and ordered father to participate in individual counseling,
parenting classes, a domestic violence program, a psychological
evaluation if his therapist deemed it appropriate, and weekly and
random drug testing. It further ordered that if father had any
unexcused missed tests, the Department of Children and Family
Services (Department) could request an order requiring him to
participate in a full drug treatment program with further testing,
and that if father had any “dirty” tests, he would be required to
participate in a full drug treatment program with further testing.
On appeal, father solely challenges the portions of the
dispositional order regarding his participation in drug testing
and a full drug treatment program. He argues that because the
record does not reflect his medicinal use of marijuana presented
any risk of harm to the children, affected their well-being, or was
related in any way to the reasons they were declared dependents
of the court, the juvenile court erred by requiring his
participation in those services. We agree with his argument and
reverse the challenged portions of the dispositional order.
1 Mother is not a party to this appeal.
2 All further undesignated statutory references are to the
Welfare and Institutions Code.
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BACKGROUND
Mother and father are the parents of two children, A.H.
and B.H. At the time this case was initiated, A.H. was 14 years
old and B.H. was 10 years old. Since moving from Texas to
California in 2017, the family has resided in a hotel room located
in Wilmington.
The family came to the Department’s attention in January
2020, when it received a referral alleging the children were being
neglected by mother and emotionally abused by father. The
reporting party stated the parents were involved in “ongoing
domestic violence” and “engage in physical altercations in the
presence of the children.” The reporting party further related
that three months prior, there was an incident in which “father
slammed mother against a wall and mother collapsed to the
floor[,]” where she “was unconscious for ‘ten minutes or so.’”
Following an investigation, on February 4, 2020, the
Department filed a petition on the children’s behalf under section
300, subdivisions (a) and (b). The petition alleged the children
were at risk of serious physical harm due to: (1) ongoing domestic
violence between the parents in their presence (counts a-1
and b- 1); and (2) father’s abuse of marijuana, which “render[ed]
[him] incapable of providing regular care and supervision of the
children[,]” and mother’s failure to protect them from father’s
marijuana abuse (count b-2).
On March 16, 2020, the Department filed its first amended
petition. In addition to reasserting the counts initially pled, the
amended petition alleged the children were at risk of serious
physical harm due to mother’s abuse of alcohol and father’s
failure to protect them from her alcohol abuse (count b-3). It
further alleged the parents placed A.H. “at risk of developmental
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and emotional harm and damage[ ]” because they “failed to enroll
[A.H.] in school for three years and failed to ensure she received a
proper education or provide access to education” (count b-4).
At the adjudication hearing held on August 18, 2020, father
testified on his own behalf. After hearing his testimony and
argument from counsel, the juvenile court sustained the first
amended petition as pled, declared the children dependents of the
court under section 300, subdivisions (a) and (b), and removed
them from their parents under section 361, subdivision (c)(1). The
court ordered father to participate in a 52-week domestic violence
program, parenting classes, individual counseling, and a
psychological assessment if his therapist deemed it appropriate.
It also ordered father to participate in weekly and random drug
testing, and “admonish[ed] . . . father that his marijuana levels
are to go down and out.” Moreover, the court ordered that “if any
test is missed or dirty,” father must complete a full drug
treatment program with additional testing.
On August 27, 2020, father filed an application for
rehearing from the jurisdictional and dispositional findings under
section 252.3 In support, father argued the juvenile court erred by
3 Section 252 provides, in relevant part: “At any time prior to
the expiration of 10 days after service of a written copy of the
order and findings of a referee, a minor or his or her parent or
guardian or, in cases brought pursuant to Section 300, the county
welfare department may apply to the juvenile court for a
rehearing. That application may be directed to all or to any
specified part of the order or findings, and shall contain a
statement of the reasons the rehearing is requested. If all of the
proceedings before the referee have been taken down by an
official reporter, the judge of the juvenile court may, after reading
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sustaining counts b-2 and b-4. On September 16, 2020, the
application was granted with respect to the adjudication of counts
b-2 and b-4.
Rehearing took place on November 30, 2020. There, the
Honorable Craig S. Barnes found that based on the evidence,
father’s use of marijuana “seem[ed] to be consistent with the legal
use of cannabis[,]” and that he did not appear to use it “in a way
that seemed to be inappropriate, or putting the children at
substantial risk of harm.” He therefore dismissed count b-2.
Judge Barnes also dismissed count b-4, finding the Department
did not “me[e]t its burden on that score.” A new disposition
hearing before the commissioner who presided over the initial
adjudication hearing was set for January 11, 2021.
Following a continuance, the disposition hearing was held
on February 1, 2021. There, the juvenile court again declared the
children dependents of the court under section 300 and removed
them from both parents under section 361, subdivision (c)(1). The
court ordered father to participate in individual counseling,
parenting classes, a domestic violence program, a psychological
assessment if recommended by his therapist, and weekly and
random drug testing. The court further ordered that
“[i]f . . . father tests dirty[,] he will need to enroll in a substance
abuse program and continue to test[,]” and that [i]f . . . father has
any unexcused missed tests[,] [the Department] may walk the
matter on to possibly request a drug program for . . . father[.]”
Father timely appealed.
the transcript of those proceedings, grant or deny the
application.”
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DISCUSSION
I. Governing Principles and Standard of Review
In general, “[a]t the dispositional hearing, the juvenile
court must order child welfare services for the minor and the
minor’s parents to facilitate reunification of the family.
[Citations.] 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 its discretion. [Citations.]”
(In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) “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.’
[Citation.] ‘The reunification plan “‘must be appropriate for each
family and be based on the unique facts relating to that family.’”
[Citation.]’ [Citation.]” (In re Nolan W. (2009) 45 Cal.4th 1217,
1229.)
Where a parent’s substance abuse is concerned, “[t]he
juvenile court has authority to require a parent to submit to
substance abuse treatment as part of a reunification plan as long
as the treatment is designed to address a problem that prevents
the child’s safe return to parental custody.” (In re Nolan W.,
supra, 45 Cal.4th at p. 1229.) “[W]hen a parent accepts
[reunification] 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. [Citations.]” (Ibid.)
“We review the juvenile court’s disposition orders for an
abuse of discretion[.] [Citation.]” (In re K.T. (2020) 49 Cal.App.5th
20, 25; In re Christopher H., supra, 50 Cal.App.5th at p. 1006.)
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We note that despite the well-settled principles above
governing the applicable standard of review, father contends we
should review the challenged portions of the juvenile court’s
dispositional order de novo. In support of his position, however,
he has not cited any pertinent legal authority. Accordingly, we
conclude father has forfeited his contention on this point
(see Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852 [appellate courts may treat an argument as forfeited “[w]hen
an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority[ ]”]), and
apply the abuse of discretion standard in addressing his
challenge to the dispositional order.
II. Analysis
Father’s sole contention on appeal is that the juvenile court
erred by requiring him to participate in weekly and random drug
testing, permitting the Department to request his enrollment in a
full drug treatment program and further testing if he had any
unexcused missed tests, and requiring him to participate in a full
drug treatment program and further testing if he had a “dirty”
test. In support, he contends the record reflects his legal,
medicinal use of marijuana was unrelated to the grounds upon
which the juvenile court exercised jurisdiction, did not place the
children at risk of harm, and did not otherwise affect their well-
being. As discussed below, we agree with his argument.
A.H. and B.H. separately discussed father’s marijuana use
during interviews with a Department social worker in March
2020. A.H. related father smokes marijuana outside once or twice
per week, that she has seen him smoke, and that he has told her
he smokes marijuana. She related his marijuana use “‘helps
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him[ ] [and] makes him feel better.’” According to A.H., father
“‘acts the same[ ]’” when he smokes marijuana. Similarly, B.H.
related father uses marijuana outside, and although she has not
seen him do so, she “can smell [the scent of marijuana] every
other day.” B.H. stated father “‘acts normal[ ]’” when he uses
marijuana.
At the initial adjudication hearing, father testified about
his marijuana use. He stated he began using marijuana in 2017
“because [he] had to take some medicine for cancer . . . that
cause[d] his body to spasm and [his] muscles to contract when [he
was] sleeping[.]” Father testified he used marijuana “[j]ust before
[he went] to bed” to “help [him ]. . . sleep better.” He “always
smoke[d]” in a room at the hotel that was separate from his
family’s residence and “never smoke[d] around [his] children.” He
stated that because he worked evenings and went to sleep in the
early morning, the children were “usually asleep[ ]” in their hotel
room and were in mother’s care when he smoked. Father related
he “always ke[pt] [the marijuana] on [him] in [his] pocket in [his]
jeans[,]” and that he “never le[ft] it out for [the children] to see or
to get.”
The evidence discussed above is the only evidence in the
record pertaining to father’s marijuana use. In short, the record
reflects father smoked marijuana for medicinal purposes outside
the children’s presence, and that his marijuana use did not affect
his behavior toward them. The evidence does not demonstrate
father’s marijuana use facilitated, or was otherwise related to, his
domestic violence issues with mother, mother’s alcohol abuse, his
failure to protect the children from mother’s alcohol abuse, the
parents’ failure to enroll A.H. in school upon arrival in California,
their reported failure to provide the children with sufficient food,
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or their reported failure to ensure the children were seen by
dental and medical professionals as needed.4 Thus, the record
does not establish father’s marijuana use placed A.H. or B.H. at
risk of harm, was related to the grounds upon which the court
exercised jurisdiction over the children, or otherwise affected
their well-being. Nor does the record demonstrate his marijuana
use pertained to any of the “problem[s] . . . prevent[ing] the
child[ren]’s safe return to parental custody[ ]” identified by the
Department. (In re Nolan W., supra, 45 Cal.4th at p. 1229.)
Additionally, the record does not demonstrate use or abuse
of other drugs caused or contributed to father’s domestic violence
or neglect of the children’s needs. At the initial adjudication
hearing, father testified he did not use any other drugs. We
acknowledge that in February 2020, father was arrested after
mother contacted the police to report an incident of domestic
violence, and the police “discovered an off-white substance
resembling crystal [m]ethamphetamine in [his] . . . right jean coin
pocket[ ]” while conducting their post-arrest search. The record,
however, does not contain any evidence establishing the
substance was subsequently tested or otherwise confirmed to be
4 In January 2020, B.H. told the Department mother refused
to take her to the dentist even though B.H. told her that she had
a toothache and was in pain. She also stated that since moving to
California, her parents refused to take her to the doctor, even
when she said she was not feeling well. B.H. further related that
sometimes the family did not have enough food. In its
jurisdiction/disposition report, the Department identified the
parents’ failure to ensure the children had food and received
proper medical care as concerns underlying its recommendation
for the children’s removal, in addition to the concerns reflected in
the first amended petition.
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methamphetamine. Nor does the record contain any evidence
indicating father used methamphetamine on or around the date
of his arrest, or at any other time, including when he had the
children in his custody. Further, the children were not residing
with their parents on the date of father’s arrest, as they were
detained from them and temporarily placed in foster care on
January 31, 2020.
Accordingly, for the reasons discussed above, we conclude
the existing evidence does not demonstrate father’s participation
in weekly and random drug testing and/or a full drug treatment
program is “‘designed to eliminate those conditions that led to the
court’s finding that the [children are] . . . person[s] described by
Section 300[,]’” “is designed to address a problem that prevents
the child[ren’s] safe return to parental custody[,]” or “reasonably
related to the [children’s] welfare[.]” (In re Nolan W., supra, 45
Cal.5th at p. 1229.) The juvenile court therefore abused its
discretion when it ordered him to participate in those services.
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DISPOSITION
The portions of the dispositional order requiring father to
participate in weekly and random drug and alcohol testing,
permitting the Department to request an order requiring father’s
participation in a full drug treatment program with further
testing in the event of an unexcused missed test, and requiring
father to participate in a full treatment program with further
testing in the event of a “dirty” test, are reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
MICON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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