Filed 9/8/16 In re D.T. CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE

In re D.T., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G053207
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 15DP0063)
                   v.
                                                                       OPINION
A.P.,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Gassia
Apkarian, Judge. Affirmed as modified with directions.
                   Neale B. Gold, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Petitioner and Respondent.
                                              *              *               *
              A.P. (mother) appeals from the juvenile court’s jurisdictional findings and
dispositional orders in a Welfare and Institutions Code section 300 proceeding. Mother
concedes her 14-year-old special needs daughter, D.T., comes within the jurisdiction of
the juvenile court, but she contends the evidence is insufficient to support the juvenile
court’s findings she willfully or negligently failed to protect D.T., or that she had an
unresolved substance abuse problem. She also contends the court abused its discretion by
ordering her to complete a substance abuse treatment program. We agree with mother
the record does not contain sufficient evidence she had a substance abuse problem, and
the court erred in ordering her to complete a substance abuse treatment program. The
judgment is affirmed in all other respects.


                                               I
                        FACTUAL AND PROCEDURAL BACKGROUND
              In December 2015, the Orange County Social Services Agency (SSA) filed
a juvenile dependency petition (Welf. & Inst. Code, § 300, subds. (b), (g); all statutory
citations are to this code unless otherwise designated) alleging D.T. (born March 2001)
came within the jurisdiction of the juvenile court because she had suffered, or was at
substantial risk of suffering, serious harm as a result of her parents’ failure or inability to
supervise or protect her adequately, the failure or inability to supervise or protect her
adequately from the conduct of a custodian with whom she had been left, and the willful
or negligent failure to provide her with adequate food, clothing, shelter, or medical
treatment. Specifically, the petition alleged mother was currently incarcerated in the
State of Georgia for trafficking methamphetamine. Mother placed D.T. with a maternal
     1
aunt, who subsequently left the child with the maternal grandmother. D.T. has a

         1
               The petition incorrectly identifies the name of the aunt. This does not
affect the issues on appeal. The juvenile court should correct its records to conform to
proof.

                                               2
congenital brain disorder and suffers from severe physical impairments and
developmental delays. She is nonverbal and nonambulatory. Medical personnel opined
D.T.’s severe disability requires constant supervision, the maternal grandmother was not
meeting the child’s medical and educational needs, and she had left her unattended on
several occasions. The grandmother reported being overwhelmed by the effort required
to meet the child’s special needs. The petition also alleged mother had an unresolved
substance abuse problem. The whereabouts of the alleged father were unknown.
              At the jurisdiction hearing in February 2016, mother submitted on SSA’s
reports. She agreed a jurisdictional finding under section 300, subdivision (g), was
appropriate, but she argued the reports contained insufficient evidence she had a
substance abuse problem. She also argued she did not fail to protect D.T. because she
arranged for a temporary legal guardianship when she was incarcerated and she believed
the maternal grandmother would meet the child’s medical and educational needs.
              The court sustained the allegations. In rejecting mother’s argument she
adequately protected D.T., the court explained “[i]t is not clear at all to this court that the
mother has taken any steps in order to provide for this child’s care. In fact, it is the
court’s understanding that the grandmother . . . put money together in order to get this
child to be transported here from Georgia” after mother was arrested. The court stated
mother was arrested, and family members “scooped up the kids and did the best they
could.” Mother apparently “notarized a letter for the maternal aunt to be able to enroll
[D.T.] in school and for medical needs.” Concerning the substance abuse allegations, the
court apparently agreed there was no evidence mother personally used drugs, but “the
word ‘abuse’ is a much bigger terminology. When you’re trafficking narcotics, that’s
abuse of narcotics as well.” The court noted mother needed “education in: Don’t be
around drugs and kids at the same time. So the word ‘abuse’ does not mean personally
inhaling.”



                                               3
              At the disposition hearing, the juvenile court took judicial notice (Evid.
Code, §§ 452, 453) of records from the Georgia Department of Corrections reflecting
mother received a 30-year sentence for trafficking 400 grams of methamphetamine, and
she had a release date in 2026, although mother believed she would receive parole in
March 2016. Mother objected to a substance abuse program as part of the case plan
because there was no evidence she used drugs or suffered from a current substance abuse
problem, or that substance abuse had affected her parenting. The court found a “direct
nexus between risk to child and mother’s involvement with methamphetamine” and
stated “the drug component of services will remain.” The court declared D.T. a
dependent child (§ 360, subd. (d)) and found her welfare required custody be taken from
her parents (§ 361, subd. (c)(1)). The court ordered reunification services, adopted SSA’s
case and visitation plans, and set a review hearing for July 2016.


                                             II
                                        DISCUSSION
A.   Substantial Evidence Supports Jurisdiction
              Mother contends there is insufficient evidence to affirm the juvenile court’s
jurisdictional findings under section 300, subdivision (b), that she willfully or negligently
failed to protect D.T., and that she had an unresolved substance abuse problem. She
states she “made arrangements for” D.T. “to be well cared-for when she became
incarcerated.” Mother states she “did not neglect her children but instead had a plan, and
took active measures, to ensure all of her children, including [D.T.] were cared for.” She
also states there was no evidence she had a substance abuse problem (allegation b-6).
She cites her statements in SSA’s reports admitting she had trafficked in drugs, but had
never used them, and the absence of other evidence she used drugs.
              Section 300 provides in relevant part, “A child who comes within any of
the following descriptions is within the jurisdiction of the juvenile court which may

                                              4
adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b)(1) The child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child, or the willful or negligent failure of the child’s parent or
guardian to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical treatment,
or by the inability of the parent or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness, developmental disability, or substance abuse.” We
review the evidence to determine whether substantial evidence supports the trial court’s
jurisdictional findings. (In re David M. (2005) 134 Cal.App.4th 822, 828; In re Heather
A. (1996) 52 Cal.App.4th 183, 193.) Substantial evidence means evidence that is
reasonable, credible and of solid value. (In re N. S. (2002) 97 Cal.App.4th 167, 172;
In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)
              SSA responds we should refrain from addressing mother’s jurisdictional
claims because mother concedes a statutory basis for jurisdiction exists, and there is no
evidence the challenged jurisdictional findings, apart from the substance abuse finding,
have consequences for mother beyond jurisdiction. SSA notes mother has not challenged
two sustained factual allegations under section 300, subdivision (b), nor does she
                                                                                    2
challenge the court’s jurisdictional findings under section 300, subdivision (g).



       2
               The unchallenged section 300, subdivision (b), sustained factual allegations
(b-1 and b-2) include mother’s current incarceration and therefore her inability to care for
and support her daughter, she left the child in the care of the maternal aunt who then
placed the child with the grandmother, and the whereabouts of father are unknown.
Mother also does not challenge the sustained allegations under section 300, subdivision
(g), that allege in substance mother has been incarcerated and cannot arrange for D.T.’s
care, or the person with whom D.T. resides is unwilling or unable to provide care or
support for the child.

                                               5
              “‘When a dependency petition alleges multiple grounds for its assertion that
a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm
the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases
for jurisdiction that are enumerated in the petition is supported by substantial evidence.
In such a case, the reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the evidence.’ [Citation.] ‘As
long as there is one unassailable jurisdictional finding, it is immaterial that another might
be inappropriate.’ [Citation.]” (In re D.P. (2015) 237 Cal.App.4th 911, 916 (D.P.);
In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) A court may exercise “‘discretion and
reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as
the basis for dispositional orders that are also challenged on appeal [citation]; (2) could
be prejudicial to the appellant or could potentially impact the current or future
dependency proceedings [citations]; or (3) “could have other consequences for [the
appellant], beyond jurisdiction” [citation].’ [Citation.]” (D.P., supra, at p. 917.)
              Mother asserts affirming findings she negligently failed to protect D.T. will
have “the unintended consequence of holding incarcerated parents to impossible
standards of care and reverse the Legislative intent of ensuring simply because a parent is
incarcerated they should not lose their child” and “will have the unintended consequence
of condoning juvenile courts in rendering orders not in line with statutory or case law nor
Legislative intent. It allows courts to make up their own definitions and ideas about what
it means to bring a child within its jurisdiction” and “also harms Mother in this case now,
and in the future.”
              We disagree. Mother has not demonstrated the section 300, subdivision
(b), findings concerning her willful or negligent failure to protect D.T. served as the basis




                                              6
for the dispositional orders, or will affect dependency proceedings beyond jurisdiction.
                                                  3
Accordingly, we decline to reach these issues.
              The juvenile court also found (allegation b-6) “mother . . . has an
unresolved problem with substance abuse which includes, but may not be limited to,
methamphetamines.” As part of the reunification case plan, the court ordered mother
after release from custody to successfully complete an SSA approved drug treatment
program.
              Mother contends there is no evidence she has a substance abuse problem,
meaning that she personally abused methamphetamine or other illegal drugs. SSA asserts
we need not determine whether “unresolved problem with substance abuse,” as used in
the petition and found by the court to be true, connotes personal abuse of substances.
SSA asserts this finding did not “necessarily . . . trigger” the drug treatment case plan
component. SSA also asserts trafficking a dangerous drug with children in her custody
justified a case plan requirement for drug treatment “weighted towards addressing the
dangers such drugs can pose to children and others near and around the selling and
trafficking process.”
              We address this issue because the substance abuse finding likely
contributed to the juvenile court’s imposition of a drug treatment program. (D.P., supra,
237 Cal.App.4th at p. 917.) As noted In re Drake M. (2012) 211 Cal.App.4th 754, 764-
769 (Drake M.), jurisdiction exists where the parent is unable to provide regular care for
the child due to substance abuse. (See § 300, subd. (b)(1) [“A child who comes within

       3
               Although we do not reach these issues, mother’s intentional conduct in
trafficking methamphetamine with children in the home caused her to become
incarcerated and rendered her unable to care for her children, arguably created a
substantial risk D.T. would suffer serious physical harm or illness. Likewise, mother’s
selection of the grandmother to care for D.T. also arguably created a substantial risk D.T.
would suffer serious physical harm or illness. Mother did not supply the grandmother
with the legal and financial means to care for D.T., and the grandmother lacked the
ability to care for such a severely disabled child.

                                              7
any of the following descriptions is within the jurisdiction of the juvenile court which
may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b)(1) The child
has suffered, or there is a substantial risk that the child will suffer, serious physical harm
or illness, . . . by the inability of the parent . . . to provide regular care for the child due to
                                       4
the parent’s . . . substance abuse”].) Substance abuse is understood as a “‘“maladaptive
pattern of substance use leading to clinically significant impairment or distress”’” within
a given time period. (Drake M., supra, at p. 766 [substance abuse for purposes of section
300, subdivision (b), must be based on evidence sufficient to show the parent had been
diagnosed as having a current substance abuse problem by a medical professional or
establish the parent has a current substance abuse problem as defined in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM)];
Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346 [relief granted to parent
where there was no clinical evaluation or testing reflecting substance abuse].)
               Here, the petition’s use of the phrase “unresolved problem with substance
abuse,” and the court’s associated finding, are not supported by evidence of a pattern of
substance use causing significant impairment or distress. We will direct the court to
modify the petition and finding b-6 to reflect, “The mother, [A.P.], is currently
incarcerated in Georgia for trafficking 400 grams of methamphetamine.”
B.   Outpatient Drug Treatment Is Unwarranted
               Mother also argues the court abused its discretion by ordering her to
complete a substance abuse treatment program as part of her case plan where there was
no evidence she was a substance abuser. She asserts this component of the case is not
tailored to the facts of the case, and constitutes a waste of government resources.
               When “a child is adjudged a dependent child of the court on the ground that
the child is a person described by Section 300, the court may make any and all reasonable
       4
              SSA did not allege that D.T. was at risk of harm by the inability of mother
to provide regular care due to mother’s substance abuse.

                                                 8
orders for the care, supervision, custody, conduct, maintenance, and support of the
child. . . .” (§ 362, subd. (a).) The court may also “direct any and all 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 . . . . The
program in which a parent or guardian is required to participate 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).) “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.) But the reunification plan must be tailored to the unique
facts of the case. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
              SSA notes drug treatment is “typically necessary for actual users of drugs,”
but the juvenile court’s decision to require drug treatment in this case was not an abuse of
discretion because mother trafficked a dangerous drug out of her apartment with children
in her custody. SSA cites minor’s counsel’s statements below suggesting a drug
treatment program would include information about the risks posed by dealing with
methamphetamine in the presence of children, especially a special needs child such as
D.T. SSA also asserts the case plan required drug treatment only until the assigned social
worker determined treatment was no longer necessary.
              We have reviewed SSA’s Web site providing referral links to substance
abuse programs (http://ssa.ocgov.com/comres/substance). These programs appear to
have no relevance to persons who are not substance abusers. Nothing reflects these
programs are directed at, as SSA suggests, educating a parent on the “dangers of
interacting with drugs, drug users, and her child with such dangerous drugs present.” We
will direct the court to delete the outpatient drug treatment program from the case plan.
Presumably, many people who sell or transport illegal methamphetamine also use the
drug. Accordingly, the juvenile court did not err in ordering substance abuse testing after

                                              9
mother is released from custody. If mother tests positive, or if other evidence reveals she
has a drug abuse problem, the court may impose a substance abuse treatment program.
And, nothing precludes the social worker from ordering mother to obtain counseling and
attend parenting education programs that would educate mother on the risks to her
children from trafficking in illegal drugs and associating with drug users.


                                             III
                                       DISPOSITION
              The juvenile court is directed to amend the petition and to modify its
finding b-6 to reflect, “The mother, [A.P.], is currently incarcerated in Georgia for
trafficking 400 grams of methamphetamine.” The court is also directed to modify the
case plan to delete the requirement that mother complete a substance abuse treatment
program. In all other respects, the judgment is affirmed.




                                                   ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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