Opinion
E082415
08-13-2024
In re O.V et al., Persons Coming Under the Juvenile Court Law. v. MARIA R., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INJ017469 Elizabeth E. Tucker, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Larisa R-McKenna, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P J.
Introduction
Maria R. (Mother) appeals from an order made at a family maintenance status review hearing (Welf. &Inst. Code, § 364) continuing family maintenance services and ordering Mother and husband Oscar V-R. (Father 1) (collectively, Parents) to submit hair follicles for drug testing. The family maintenance services related to two of Mother's four children, O.V. (male, age six) and G.V. (female, age four) (collectively, the Minors), who were retained in their Parent's custody after the Minors' older half sibling, E.R. (female, age 15), had reported being sexually abused by a teenaged nephew of Father 1, while staying with Mother. Jurisdiction was established based on allegations that the Parents failed to protect or supervise the Minors, but the Minors were maintained in Mother's home, while her other children, E.R. and her half brother B.L. (both of whom were half siblings to the Minors), were removed from Mother's custody. Mother refused to participate in reunification services as to E.R. and B.L. (male, age 11), or family maintenance services ordered for the Minors because she doubted E.R.'s report of sexual abuse and did not feel at fault for the incident. Mother also refused to submit to drug testing because she had been clean and sober for many years and the allegations of the petition were unrelated to drug use by the Parents.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
There were other and older children who were subjects of other dependency petitions, but they were not involved in the current proceedings.
After 12 months of family maintenance services for the Minors, family maintenance was continued at a contested status review hearing pursuant to section 364, over Mother's request that jurisdiction be terminated. However, the Riverside County Department of Public Social Services (DPSS or the Department) recommended continuation of the services due to new concerns that Mother and Father 1 had relapsed into methamphetamine use due to a recent domestic violence incident in the home and a report the Parents were using drugs. The court continued the family maintenance plan and ordered the Parents to submit to hair follicle testing. Mother appeals.
On appeal, Mother argues the court abused its discretion by (1) continuing dependency jurisdiction as to the Minors, where the conditions that justified the assumption of jurisdiction no longer existed, and (2) ordering Mother to submit to hair follicle testing for drugs. We affirm.
Because this appeal relates to the orders respecting the Minors only, we focus on the matters and proceedings affecting them, including information about their half siblings where needed for clarity or context.
Prior to September 2021, both E.R. and B.L. lived with Edgar L. (Father 2)., who had physical custody of E.R. and B.L., but E.R. asked to stay with Mother. Thereafter, while E.R. stayed with Mother, B.L. visited Mother, who lived in a trailer along with Father 1, the Minors, and Father 1's sister and her four children, including his teenage nephew, on weekends.
In March 2022, the Department received a referral indicating that E.R. had been sexually abused twice by Father 1's teenage nephew while E.R. and B.L. were at Mother's residence. E.R. returned to live at the residence of Father 2, because Father 2 and E.R.'s stepmother believed E.R. Mother (who has an extensive child welfare history, dating back to 2002 or 2005, including a long history of methamphetamine use), denied having anything to do with the allegations and was uncooperative with the Department in producing the Minors for evaluation. Mother stated she had not used drugs since 2016, when she had an open case involving the Minors who were returned to her care.
Father 2 is not the biological father of E.R.; however, he has raised E.R. since she was a toddler and was the only father she had known. The social worker reported that the court found Father 2 was the presumed father of E.R. and B.L. at a detention hearing held on May 25, 2022, but there are no minute orders or reporter's transcripts for that date, and the only presumed father designation we can find relates to the designation of Father 1.
The child welfare history section indicates the older children were returned to her custody in 2015, before G.V.'s birth. Mother was involved in a dependency involving E.R. and B.L. in 2015, and she eventually regained custody of E.R. and B.L. that same year. Mother had claimed she last used drugs while pregnant with G.V., but that child was born with drugs in her system in 2017, resulting in a new dependency involving the Minors. To the extent Mother reported she stopped using drugs in 2016 when she had an open case and did what she needed to do to have the Minors remain in her care, she was mistaken about the year. The dependency involving these Minors and their half siblings originated in 2017, and eventually E.R. and B.L were placed in Father 2's custody, while the Minors were returned to Mother under a family maintenance plan in 2018, after which she was awarded sole custody of the Minors.
Mother did not believe the allegations because E.R. slept in the same bed as G.V. and a female paternal cousin of G.V. in a trailer with thin walls, so it was not believable that E.R. could have been raped in that bed without the other children noticing and without Mother hearing something. Mother also explained that E.R. and the teenage male cousin had been friendly and acted as if they were in a relationship, so Mother assumed any sexual activity was consensual, although Mother had tried to make sure they were not left alone together. O.V. had reported seeing E.R. and the teenage male cousin kissing.
When interviewed, E.R. told the social worker she was raped twice by the teenage male cousin in the same bed as G.V. slept with her brother O.V. (not the female paternal cousin of G.V., as indicated by Mother.) B.L. who visited Mother on weekends, indicated he thought Mother was using drugs because of the amount of time she spent in the bathroom with a blue box. The Minors showed no signs of abuse or neglect, but when Mother brought the Minors for the face-to-face meeting with the social worker, Mother was sweating profusely. However, neither Mother nor Father 1 agreed to submit to drug testing; Mother explained she was unwilling because the allegations came due to E.R., not substance abuse, she would not agree to submit to drug testing.
On April 6, 2022, an original dependency petition was filed alleging that the Minors were persons described by section 300, subdivision (b)(1), based on allegations of parental failure to protect or supervise. The supporting facts asserted E.R. was sexually abused in Mother's home, that Mother did not believe E.R. and that Mother blamed E.R. (b-1); that Mother has an extensive history of substance abuse involving methamphetamine, and refused to submit to drug testing (b-2); Mother has a case history with DPSS involving sustained allegations of general neglect due to substance abuse, and that her parental rights to an older child were terminated (b-3); Father 1 neglects the children's health by smoking marijuana in his car and in the home and refuses to submit to drug testing (b-4); and despite knowing of the sexual abuse of E.R., the Parents continued to allow Father 1's teenage nephew to reside in the home (b-5).
The termination of parental rights related to a child named in the 2005 petition.
At the initial hearing held on April 21, 2022, Mother and Father 1 denied the allegations of the petition and objected to the Department's request for drug testing. The court maintained the Minors in the Parents' care on the condition that Father 1's teenage nephew not live in the home and not have unsupervised contact with the children.
On May 12, 2022, Mother submitted a saliva drug test, but the results were inconclusive, so she agreed to submit a urine drug test the next day; the results of that test had not been received by the date of the next hearing that was set on May 23. At the May 23 hearing, the Department requested a continuance because it had still not received Mother's test results. The results of that test were never submitted to the court.
The next day, on May 24, 2022, the Department filed a first amended petition to add allegations relating to E.R. and B.L. The amendment was filed because of an incident occurring at Father 2's home, in which a half sibling of E.R. and B.L. had ingested methamphetamine that had been brought into the home by a friend of the stepmother and required hospitalization.
The amended petition's supporting facts included the original allegations against Mother respecting the Minors, but added an allegation relating to the incident at Father 2's residence (b-6), along with allegations that Father 2 had neglected E.R. and B.L. by allowing drugs and drug paraphernalia to be within reach of the children (b-7); permitting known drug users to smoke methamphetamine when E.R. and B.L. were present (b-8); risks of harm due to Father 2's extensive history of methamphetamine use (b-9); Father 2's prior dependency history, including one in which his parental rights were terminated (b-10); and an allegation relating to sibling abuse and neglect of E.R. (j-1). E.R. and B.L. were removed from Father 2 and his wife, along with their children (E.R.'s and B.L.'s half siblings by Father 2) and were placed with a nonrelative extended family member.
The record does not include the minutes or a reporter's transcript of the detention hearing as to E.R. and B.L., which apparently took place on May 25, 2022. However, the jurisdiction report reflects that prior to the adjudication hearing, the children were not living with Father 2 and stepmother.
At the jurisdiction hearing, the trial court struck certain allegations from the petition, namely, the supporting allegations relating to Mother's past drug use (b-2), her prior case history in dependency court (b-3), and Father 1's neglect of the children by smoking marijuana (b-4), as untrue, but found the remaining allegations true, and the matter was continued for a contested disposition hearing. On September 19, 2022, the court conducted the disposition hearing, where all four children were declared dependents of the court. Physical custody of the Minors was retained by Mother and Father 1, under a family maintenance plan.
As to E.R. and B.L. the court made findings under section 361, subdivision (c)(1) against Mother and Father 2, removed E.R. and B.L. from Mother's and Father 2's custody and ordered Mother and Father 2 to participate in family reunification services.
The six-month status review report was submitted on March 15, 2023, recommending that the court continue Mother's reunification services as to E.R. and B.L., as well as her family maintenance services as to the Minors. Visits between Mother and E.R. and B.L. was problematic because they refused to visit Mother due to her disbelief of E.R.'s report of sexual abuse. B.L. explained that he was unwilling to visit Mother because in court Mother had stated she had attempted to schedule visits with B.L. and E.R., but when Mother called the caretaker to arrange for a visit, the caretaker did not answer the phone, which, according to B.L. was not true. B.L. did eventually attend a visit with Mother, which E.R. chose not to attend, and that visit was positive.
Mother had not enrolled in any services, maintaining she was not in need of services because she had been clean and sober since G.V.'s birth, and because she had graduated from the "Mom's program" for substance abuse prior to the current dependency. She did agree to a substance abuse assessment and would submit to a drug test at that time. As for parenting education, Mother maintained she had participated in parenting classes in the past and did not plan to engage in one in the current case.
On April 12, 2023, an addendum report was submitted in advance of the six-month status review hearing. The social worker requested that the court order hair follicle drug testing for Mother and Father 1 to determine if substance abuse services were needed. Mother and Father 1 had not engaged or completed any court ordered services and the Department was unable to verify if the Parents were being truthful about their sobriety because they refused to drug test.
The six-month review hearing and the family maintenance review hearing were conducted May 3, 2023, where the court maintained all the children as dependents, ordered continued reunification services for Mother and Father 2 respecting E.R. and B.L. and continued family maintenance services for Mother and Father 1 respecting the Minors. The court also ordered the Department to strike all substance abuse requirements from Mother's and Father 1's case plans, after the Parents' counsel noted that the substance abuse allegations were found not true.
On June 28, 2023, the Department submitted a family maintenance review report (§ 364), recommending that the court terminate reunification serves for Mother respecting E.R. and B.L. and grant Mother and Father 1 an additional six months of family maintenance services. The report noted that E.R. and B.L. did not wish to reunify with Mother and Father 2. On August 30, the court conducted the 12-month family maintenance review hearing. The court did not grant the Department's request for an order that Mother submit to hair follicle testing at that time, but continued the matter because of a new active referral.
On October 11, 2023, the Department submitted an addendum report again requesting an order for hair follicle testing of Mother and Father 1. The addendum reported that DPSS had received a new referral for neglect on August 29, indicating O.V. hits his sister G.V. and that Mother does not stop the behavior. In addition, the reporting party indicated that Mother leaves the Minors home alone until 6:00 p.m. due to work, and that the Parents were smoking methamphetamine for hours in the bathroom. The reporting party also indicated that someone had stepped on a methamphetamine pipe in the home on one occasion and that there had been domestic violence between Mother and Father 1. The social worker who received the report contacted a regional manager, who made a courtesy visit to the home that day; the Parents were cooperative and there was no indication that the Parents were under the influence of drugs. The regional manager did not find any drug paraphernalia and could not see a hole in the door because it was covered by a towel.
Later, in the evening of the day of the referral, the assigned social worker made an unannounced visit, but due to the presence of large dogs in the yard, the social worker telephoned Mother who indicated she was not at home but could be interviewed by telephone. Mother denied the allegations, but the social worker heard Mother and Father 1 yelling about the Department making false allegations in an effort to remove the children. When the social worker questioned Mother about the hole in the door, Mother questioned her adult daughter (who was in the home) whether she had reported the broken door to the Department. Mother again refused to submit to any type of drug testing. A few days later, a social worker received a video of Father 1 yelling obscenities at Mother's adult daughter in the presence of the Minors and threatening to evict the adult daughter from the home, while Mother stood by in support of Father 1.
G.V. was interviewed about the incident and recalled Father 1 pushing and requesting that Mother's adult daughter leave the residence. The adult daughter then swung her backpack, striking Mother with it, and then threw the backpack, breaking a window. G.V. reported that the hole in the door was caused when Father 1 struck it with a hammer and a photograph of the door showed that the damage to the door was substantial. G.V. also reported that both Parents worked so the children were home "alone" for a short time until the Parents returned home, but that Mother's adult daughter was there for supervision.
On October 18, 2023, the court held a contested family maintenance review hearing, at which Mother requested that the court terminate dependency jurisdiction. By a preponderance of the evidence, the court found conditions that would justify the initial assumption of jurisdiction under section 300 still existed, or those conditions were likely to exist if supervision was withdrawn and continued the Minors as dependents of the court. The court also continued the placement of the Minors with Mother and Father 1, with further family maintenance services. The court also ordered Mother and Father 1 to submit to hair follicle testing forthwith to determine their sobriety and rule out drug use in the home, over the Parents' objections.
Mother timely appealed.
Discussion
1. The Juvenile Court Did Not Abuse Its Discretion By Declining to Dismiss the Case.
Mother asserts the juvenile court erred in continuing jurisdiction at the family maintenance review hearing. She argues that because the circumstances that led to the initial assumption of jurisdiction no longer existed, because the teenage nephew no longer lived in the home, and there were insufficient risk factors to justify continuing court jurisdiction. Further, Mother asserts that jurisdiction in a family maintenance case may only be continued if the initial problems still exist.
The Department argues that the precise conditions that led to the initial assumption of jurisdiction still existed due to Mother's insistence that E.R. was lying, and her failure to demonstrate she can protect the Minors, having refused all services. The Department also disagrees that the identical problems must still exist to justify the additional supervision. We agree with the Department.
A. General Principles Governing Family Maintenance
At a disposition hearing following a finding that a child is a person described by section 300, the court is required to determine the proper disposition for the child. (§ 358, subd. (a).) If appropriate, the court may declare the child a dependent and, without removing the child from his or her home, order family maintenance services to ameliorate the conditions that made the child subject to the court's jurisdiction. (§ 362, subd. (a); rule 5.695(a)(5); In re N.O. (2019) 31 Cal.App.5th 899, 921-922 (In re N.O.); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302 (Bridget A.).) When such an order is made, section 364, subdivision (a), requires a status review hearing to be held within six months. After the child is declared a dependent, the juvenile court must review the status of the child every six months. (In re Armando L. (2016) 1 Cal.App.5th 606, 614 (Armando L.), citing In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154; Bridget A., supra, at pp. 302-303.)
At that hearing, the court considers evidence presented by the social worker, the parent, the guardian, or the child, and the court shall determine whether continued supervision is necessary. "The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary." (§ 364, subd. (c); In re T.S. (2020) 52 Cal.App.5th 503, 512-513.)
Mother is correct that "[s]ection 364, subdivision (c) establishes a statutory presumption in favor of terminating jurisdiction and returning the child to the parents' care without further court supervision." (Armando L., supra, 1 Cal.App.5th at p. 615, citing Aurora P., supra, 241 Cal.App.4th at p. 1155; In re Shannon M. (2013) 221 Cal.App.4th 282, 290.) Under the statute, the juvenile court "shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300." (§ 364, subd. (c); see Aurora P. at p. 1155.) It is apparent, therefore, that at the section 364 review hearing, the juvenile court is not concerned with reunification, but in determining whether the dependency should be terminated, or if supervision is necessary. (Aurora P., at p. 1155; In re Pedro Z. (2010) 190 Cal.App.4th 12, 20.) The juvenile court makes this determination based on the totality of the evidence before it, including reports of the social worker who is required to make a recommendation concerning the necessity of continued supervision. (Aurora P., at p. 1155.)
However, '"[t]he language of section 364 does not literally require that the precise conditions for assuming jurisdiction under section 300 in the first place still exist-rather that conditions exist that "would justify initial assumption of jurisdiction.'"" (In re N.O., supra, 31 Cal.App.5th at p. 923, quoting In re J.F. (2014) 228 Cal.App.4th 202, 210; cf. In re D.B. (2015) 239 Cal.App.4th 1073, 1085.)
B. Standard of Review
The parties assert that the substantial evidence standard of review applies to the decision to terminate or continue jurisdiction. In Aurora P., the reviewing court concluded that the party opposing the "default" or "presumed" outcome of a family maintenance review was the party having the burden of proof. (Aurora P., supra, 241 Cal.App.4th at p. 1163; see In re J.M. (2023) 89 Cal.App.5th 95, 110-111; In re N.O., supra, 31 Cal.App.5th at p. 923 ["Section 364, subdivision (c) establishes a statutory presumption in favor of terminating jurisdiction and returning the child to the parents' care without further court supervision"].) If the social services agency opposed termination of jurisdiction at the section 364 hearing, and the court ruled against it, in accordance with the "default" result, and the Department had appealed from that ruling, the standard of review would be the substantial evidence test. (Aurora P., at p. 1156.) There the '"default result"' was reached upon the agency's recommendation to terminate services, so the minors, who had opposed the default result, had the burden of proof at trial; in such cases, the reviewing court concluded that the substantial evidence test was inappropriate when that party appealed from the court's "default result." (Id. at pp. 1156, 1159, 1163.)
Because the Department met its burden of proof that jurisdiction should continue, which is now challenged on appeal by Mother, we review for substantial evidence. "[W]hen the juvenile court, as trier of fact, found '"that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]."'" (In re N.O., supra, 31 Cal.App.5th at p. 925.)
C. Analysis
The Department presented evidence by way of reports, that Mother persisted in her denial that E.R. was sexually abused, as well as Mother's claim that she had done nothing wrong, that Mother would not participate in family maintenance services, and she did not participate in services. By the express terms of section 364, the Parents' failure to participate in family maintenance services established prima facie evidence that the conditions which justified initial assumption of jurisdiction still existed, justifying further supervision. (§ 364, subd. (c).) But there is more.
The evidence presented by the Department regarding the recent incident of domestic violence-resulting in significant property damage to the door of the residence-and the use of methamphetamine in the house (including the information that a member of the household had stepped on a methamphetamine pipe), in addition to the retaliatory actions taken by the Parents against Mother's adult daughter, establish that "those conditions are likely to exist if supervision is withdrawn." (§ 364, subd. (c).) The juvenile court is not bound to terminate jurisdiction if there is a preponderance of evidence to justify the court retaining it and the parent, guardian, child, or social agency has met that burden. (Armando L., supra, 1 Cal.App.5th at p. 615, citing Aurora P., supra, 241 Cal.App.4th at pp. 1155-1156.)
A photograph of the damage to the door reveals an opening of approximately 12-inches square or more.
The initial burden of proof was on the Department to prove that circumstances existed justifying the continuation of jurisdiction, where the presumption favors termination of jurisdiction. (In re Aurora P., supra, 241 Cal.App.4th at pp. 1158-1159.) Having met its burden of proof, the burden shifted to Mother to prove that the original presumption that jurisdiction should be terminated, now refuted, should nonetheless be applied. (See In re G.Z. (2022) 85 Cal.App.5th 857, 884 [relating to burden shifting when the Department has established a prima facie case for jurisdiction].) Mother was not shown by undisputed facts she was entitled to a termination of jurisdiction as a matter of law.
The Department was not required to ignore the changing circumstances in the home, particularly where domestic violence which occurred recently in the home, in the children's presence, would justify the initiation of dependency jurisdiction, demonstrating that "those conditions are likely to exist if supervision is withdrawn." Mother did not establish she was entitled to a favorable ruling as a matter of law.
2. The Juvenile Court Did Not Abuse Its Discretion By Ordering the Mother to Submit to Hair Follicle Testing for Drugs
Mother argues the trial court abused its discretion by ordering her to undergo hair follicle testing for the presence of drugs. We disagree.
When a child is declared dependent, "the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).) Even if the parents retain physical custody of the child or children, subdivision (c) of section 362, goes on to provide that "the parents or guardians shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court." "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 decision whether to continue jurisdiction in order to permit Mother to participate in additional services, given the children's placement with her, is a decision for the court. (In re Destiny D. (2017) 15 Cal.App.5th 197, 213.) "'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.'" (In re Briana V. (2015) 236 Cal.App.4th 297, 311 (Briana V.), quoting In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 (Baby Boy H.).) The juvenile court may make "all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a); Briana V., supra, at p. 311, citing In re Jasmin C. (2003) 106 Cal.App.4th 177, 180.) The problem that the juvenile court seeks to address need not be described in the sustained section 300 petition. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1008.)
"'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.' [Citation.] In reviewing an order for abuse of discretion, we '"must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child."' [Citation.] 'The trial court is accorded wide discretion and its determination will not be disturbed on appeal absent "a manifest showing of abuse."'" (In re Natalie A. (2015) 243 Cal.App.4th 178, 186-187, quoting In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Where there is no evidence indicating a parent has a substance abuse problem, some cases have reversed orders for drug testing because they were unrelated to the problem that led to the filing of the petition, as Mother urges. (See In re Sergio C. (1999) 70 Cal.App.4th 957, 960 [the only evidence of substance abuse was an uncorroborated report, and father had not known history of drug use]; In re Basilio T. (1992) 4 Cal.App.4th 155, 172-173 [no evidence aside from the social worker's observation that mother behaved somewhat out of the usual and was obsessed with discussing a fortunemaking invention, later confirmed to exist, there was nothing in the record to indicate either parent had a substance abuse problem].)
But where the record reflects evidence that a parent had long history of substance abuse, in addition to recent reports of drug use, drug testing may be ordered even where substance abuse was not the cause leading to the dependency. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1007.) In Christopher H., the trial court included a drug testing requirement of the father's services plan because of his long history of substance abuse, where "substance abuse problems pose a potential risk of interfering with his ability to make a home for and care for" the child. (Ibid.)
In the present case, the initial detention report indicated that B.L. reported that Mother used drugs, and the social worker, aware of Mother's drug-related child welfare history, suspected that Mother was using methamphetamine at that time because she was sweating profusely, although Mother claimed to be clean and sober. During the most recent reporting period, an anonymous reporter informed the Department that someone in the home stepped on a methamphetamine pipe and that the Parents were currently using methamphetamine. Mother's lengthy history of amphetamine use, resulting in numerous prior dependency proceedings in juvenile court, and her refusal to submit to testing, naturally caused the Department to be concerned about drug use throughout the case.
Prior to the recent report, there had been no justification for a drug testing order where the court had stricken the substance use allegations from the jurisdictional findings and there was insufficient basis for finding that the Parents were using controlled substances at that time. The additional and recent information about the domestic violence incident in which the door was severely damaged, and the fresh report of drug use, raised new concerns, and provided additional evidence that the Parents had relapsed. This information was sufficient to warrant not only continuation of the family maintenance services, but an order for hair follicle testing to rule out drug use.
In any event, even if we agreed with Mother that the order for a single hair follicle test was an abuse of discretion, reversal of this order would not necessarily end the matter, where the recent incident of domestic violence in the presence of the children, in addition to the report of Parents' current drug use and the information about the methamphetamine pipe, would warrant a supplemental petition that the previous disposition had been ineffective in protecting the children. (§ 387.) Such a petition would authorize the juvenile court to consider a more restrictive placement for the children and possible removal of the children from Mother's custody. (See In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) We assume Mother does not seek such a result.
Mother emphasizes that the report of drug use, from an anonymous source, was not corroborated, in arguing the order for testing was an abuse of discretion. However, there was ample corroboration for the domestic violence incident, including the damage to the door, as well as reports of drug use from Mother's adult daughter. Drug use had been suspected since the inception of the case, when B.L. reported Mother's suspected drug use. It is well-settled that exposing a child to domestic violence can serve as a basis for dependency jurisdiction. (In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) On this ground alone, a supplemental petition could be sustained.
Mother's arguments-that the drug testing requirement is improper because it was unrelated to the sexual abuse of E.R., which was the original presenting problem that led to the dependency-holds little water where the court is not required to ignore situations posing a risk to children arising during the family maintenance program. (See In re M.F. (2008) 161 Cal.App.4th 673, 681.) Nor is Mother's assertion that the anonymous report of drug use was insufficient evidence to support an order for a single hair follicle test. Mother's lengthy child welfare history and her persistent refusal to submit to drug testing, coupled with the recent incident of someone stepping on a methamphetamine pipe in the home and the reports, anonymous as they may have been, that Mother and Father 1 were using methamphetamine, supports the Department's ongoing concerns that substance abuse was an issue posing a risk of harm to the children.
The order for hair follicle testing was not an abuse of discretion.
Disposition
The judgment is affirmed.
We concur: MILLER J., RAPHAEL J.