(Los Angeles County Super. Ct. No. CK50724) APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee.
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Judgment reversed in part, affirmed in part. Orders reversed.
Paul M. (father) appeals from a judgment declaring his child to be a dependent of the court based on the trial court's finding that father's usage of medical marijuana placed the child at substantial risk of serious physical harm or illness pursuant to Welfare and Institutions Code*fn1 section 300, subdivision (b),*fn2 and ordering him to randomly test for drugs and to participate in parenting courses and drug counseling.*fn3 He contends that the evidence was insufficient to support the trial court's finding. He also contends that the trial court's orders based on such finding constitute an abuse of discretion. Father seeks to reverse the judgment as to the jurisdictional finding against him and to vacate the orders based on such finding. We conclude that father is correct and, accordingly, we will reverse the judgment in part and reverse the orders as to him.
FACTUAL AND PROCEDURAL BACKGROUND
The minor child at issue in this appeal is Drake M. (Drake) who was born in August of 2010. Drake came to the attention of the Department of Children and Family Services (DCFS) on May 10, 2011 by referral when he was only nine months old. The referral alleged that father and Lisa H. (mother)*fn4 used marijuana, that mother had a history of extensive drug abuse and of prior DCFS involvement with another child with whom she failed to reunify,*fn5 and that the reporting party was concerned for the safety and welfare of Drake.
Upon being interviewed on May 10, 2011 as part of DCFS's investigation of the allegations, mother acknowledged that father used marijuana for his arthritis but she did not know how often he used it. DCFS reported that she stated "that father and her [sic] never used marijuana in the presence of Drake," and that "Aundrea[*fn6 ] watches Drake while they smoke marijuana in the garage." DCFS also reported that "mother denied any domestic violence between father and her." The DCFS social worker observed Drake and described him as "clean without marks or bruises." The social worker also reported that Drake "appeared to be reaching developmental milestones" and, with respect to his healthcare, that "mother stated the child Drake has been going to Kaiser in Downey." DCFS reported that, according to Kaiser, Drake was three months behind on his immunization schedule.
With respect to the home assessment, the social worker noted that the family lived in "a two-bedroom apartment with one bathroom," "a playpen in the living room" and "a crib in the parent's room." Mother explained to the social worker that "Drake sleeps in his crib and never sleeps in the bed with [the] parents." Aundrea slept in the second bedroom. There was plenty of food in the home and there were working utilities. The social worker also noted a poster of "various types of marijuana on the wall of the home" and that there was "beer in the refrigerator."
Father was interviewed on May 11, 2011. He "stated that he uses marijuana three times a week for his arthritis and pain in his body." When asked who watched Drake while he and mother used marijuana, he stated that Aundrea watched Drake when she was home, that another relative watched Drake when Aundrea wasn't home, and that he and mother do not always use marijuana at the same time. He also stated, "None of us use drugs in front of our child." Father denied any personal history of previous DCFS involvement, mental illness or criminal activity. He also stated that he was willing to do whatever was necessary to prevent Drake's removal from his custody. Father agreed to take on-demand drug screens. He missed several tests due to his being uncomfortable urinating in front of another person. He tested positive for cannabinoids with respect to those tests he took. However, he tested negative for all other drugs. DCFS later described the family's strengths to include that Drake was healthy, that there was family support and that father was employed.
Mother agreed to a safety plan with DCFS under which Yolanda F., Drake's paternal grandmother, would ensure neither mother nor father were alone with Drake while under the influence of marijuana. However, paternal grandmother had to leave California due to an emergency in North Carolina and could no longer participate in the plan.
DCFS filed a petition on May 24, 2011. Count b-3, as amended, alleged that "The child Drake [M.'s] father, Paul [M.], is a current user of legal marijuana which on occasion's [sic] renders the father incapable of providing regular care and supervision of the child. The father's drug use endangers the child's physical health, safety and well being, creates a detrimental home environment and places the child at risk of physical harm, [sic] and damage." With respect to mother, the petition, as amended, included the following counts against her: "b-1 [¶] The child Drake [M.'s] mother, Lisa [H.] has a history of illicit drug use including amphetamine and marijuana which renders the mother periodically incapable of providing regular care and supervision of the child. On 05/10/2011 & 8-10-11, the mother had a positive toxicology screen for Cannabinoids. The child's sibling, Jonathan [P.] . . . received Permanent Placement services due to the mother's substance abuse. The mother's illicit drug use endangers the child and places the child at risk. . . . [¶] b-2 [¶] The child Drake [M.'s] mother, Lisa [H.] has a history of mental and emotional problems including a diagnosis of Bi-polar [sic] disorder which periodically render the mother unable to provide regular care for the child. The mother has occasionally failed to take the mother's psychotropic medication as prescribed. The child's sibling, Jonathan [P.] . . . received Permanent Placement services due to the mother's mental and emotional problems. The mother's mental and emotional problems endanger the child and place the child at risk."
At the detention hearing, the trial court found that DCFS had made a prima facie case for detaining Drake and vested placement and custody with DCFS. However, the trial court specified in its minute order that "THE DETENTION FINDINGS ARE MADE AGAINST THE MOTHER ONLY." The trial court stated, "The minor is going to be detained from the mother and placed with the father." The trial court (1) found that father was Drake's presumed father; (2) ordered mother to move out of the family home; (3) ordered reunification services for mother, including monitored visits, weekly random drug testing, substance abuse counseling and parenting courses; and (4) ordered family maintenance services for father including weekly random drug testing.
DCFS interviewed father again in June of 2011 with respect to his marijuana usage. Father stated "he tried marijuana in his 20's and then used the drug 'every now and then.' " He stated he had always used the drug to manage his pain and had obtained a medical marijuana recommendation in February of 2011, a copy of which is in the record. He stated he went to Kaiser for his knee pain and, after X-rays were taken, he was told "he has the knees of an old man." When he has to walk a long distance, the pain is such that he must use a cane. Although he received a referral for rehabilitation, he didn't attend the program, took Motrin and sought a recommendation for medical marijuana. He stated he had been using marijuana three to four times a week but stopped mid-May of 2011.*fn7 Paternal grandmother stated that father " 'won't accept' " mother's using marijuana and that "father does not use in front of her or Drake." Father's ex-wife, Gina M., also confirmed that father used marijuana recreationally when younger but now used it for arthritis in his hands and knees because of his work as a concrete mason. DCFS noted that father had been employed for many years and "appears capable of providing for the child Drake's basic needs." Father stated Drake was taken to see his doctor for his nine-month check-up and received immunizations.
The combined adjudication and disposition hearing was held on October 5, 2011. Father testified in his defense. He testified that he worked as a cement mason which required him to spend three hours each day on his knees. He also testified that he received pain medication for his knees from his doctor at Kaiser but that the pills did not work for him. He stated he wasn't satisfied with this course of treatment and sought out medical marijuana as an alternative.
When asked if he smoked marijuana inside his home, father replied, "No, ma'am, not at all" because "there's no smoking in my house." He stated that he only smokes in his detached garage and Drake is never present when he does so. The marijuana is kept in a locked tool box on a shelf in the garage, far out of Drake's reach. Father testified that he does not smoke marijuana daily, but about four or five times per week. He states he smokes mostly in the beginning of the day or around lunchtime.
Father also testified that a minimum of four hours passes between when he smokes marijuana and when he sees Drake after work. He also testified that he is never alone with Drake when he smokes. When asked if he is ever feeling the effects of marijuana when he picks up Drake at day care, he replied, "Not at all." In response to the hypothetical question, "What if you still were?" he stated, "I would leave him there longer or make arrangements . . . " He also stated that the DCFS social worker was aware of his using marijuana, has been to his house numerous times, but has never seen him smoke it nor found any within the home as it is kept in the detached garage.
When asked whether he'd been back to see Dr. Rose, the physician who recommended he use marijuana for his knee pain, father replied, "No. I just - the renewal is once a year. I have to go back there in a year." The court admonished father and stated, "You said if you use this cannabis therapeutically you're suppose [sic] to continue to ...