Opinion
E069893
03-28-2018
A.B., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Patricia Nance for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ113163) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew C. Perantoni, Judge. Petition denied. Patricia Nance for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Real Party in Interest.
I
INTRODUCTION
Petitioner A.B. (Mother) has a history with child protective services and a long history of abusing methamphetamines, resulting in the removal of her children, including her nine-year-old daughter, A.H., and 15-month-old son, R.B. Mother seeks an extraordinary writ to vacate the orders of the juvenile court denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(13), and setting a hearing pursuant to section 366.26. (Cal. Rules of Court, rule 8.452.) Mother argues (1) the juvenile court abused its discretion in finding she was resistant to treatment under section 361.5, subdivision (b)(13); (2) the court abused its discretion in finding it would not be in A.H.'s best interest to grant her services; and (3) the court's decision is contrary to the legislative intent of section 361.5, subdivision (b)(13). Finding no merit to these claims, we deny Mother's writ petition.
R.B. is not a subject of this appeal as R.B.'s father C.C. was granted reunification services.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a prior case history with the Riverside County Department of Public Social Services (DPSS) involving her eldest son, 11-year-old A., due to general neglect and Mother's drug use and mental health. In that prior case, Mother received 12 months of reunification services, including substance abuse treatment from 2006 through 2007, and successfully reunified with her eldest son A. However, on October 13, 2017, the maternal grandmother obtained temporary legal guardianship of A. due to Mother's " 'heavy' " drug addiction and inability to care for him. The maternal grandmother had taken care of A. since he was four months old and had tried to help Mother. Mother had refused help from the family.
On October 31, 2017, DPSS received an immediate response referral alleging general neglect and domestic violence. It was reported that Mother had jumped on her boyfriend in an attempt to get him up. In response, the boyfriend choked and threw Mother against a coffee table in the presence of A.H.'s half sibling, R.B. Mother sustained visible injuries to her face and neck.
Mother admitted to smoking methamphetamine four days earlier. Mother tested positive for methamphetamines and amphetamines on an oral saliva test conducted by the social worker on October 31, 2017. She also admitted to smoking marijuana and methamphetamine hours before the physical altercation with her boyfriend. She further admitted to regularly using methamphetamine and marijuana on a daily basis while caring for her infant son. Mother had a history of using methamphetamine spanning 18 years, starting when she was 14 years old. In an effort to combat her addiction, Mother had participated in three drug treatment programs (Cedar House, Inland Valley Recovery Services, and MFI), but failed to complete any of them. Mother, however, claimed that she had completed an "18-month ROC program in Riverside Superior Court."
Mother felt " '[b]roken' " and acknowledged that she needed a higher level of care to " 'kick [her] habit.' " She reported that she felt depressed, was hearing voices, and had been diagnosed with bipolar and " 'Schizoid tendencies.' " Mother had been prescribed medication to combat her mental illness, but she stopped taking her medication because she " 'did not like the way it made [her] feel.' " In regards to domestic violence, Mother reported that she had "always been in a domestic violence relationship with all three of her children's fathers" and was usually the aggressor in the relationship. Mother and her boyfriend had been together five months and used methamphetamine together. She claimed that this was their first physical altercation. However, her boyfriend had previously been incarcerated for domestic violence against her.
Mother also had a lengthy criminal history, with numerous criminal convictions from 2005 to 2016, including convictions for possession of controlled substances, possession of a controlled substance for sale, attempted burglary, shoplifting, and possession of a firearm. She had multiple convictions for drug-related offenses and had spent 14 months in prison for a drug-related offense. Her most recent arrest was for possession of methamphetamines in 2016, and she was on probation until September 29, 2018.
A.H. had been staying at the maternal grandmother's house with her brother, A. The maternal grandmother had been A.H.'s primary caregiver due to Mother's absence. While A.H. lived with the maternal grandmother, she did not see Mother. The paternal grandmother and the paternal aunt also helped raise the children. A. reported that he had witnessed Mother smoking " 'weed' " in front of him and his baby brother on October 17, 2017, and that he wanted Mother to stop " 'using drugs.' " A. had also seen his mother and her boyfriend engage in oral arguments. A. had " 'no desire' " to live with Mother. A.H. reported that she had not witnessed any physical altercation between Mother and her boyfriend, but that she had seen Mother drink beer and smoke cigarettes in her presence.
Mother had initially agreed to allow A.H. to remain with the maternal grandmother and allow the maternal grandmother to obtain legal guardianship of A.H. The maternal grandmother and Mother agreed to a safety plan that would protect A.H. However, Mother subsequently called and threatened the maternal grandmother to return A.H. and A. to her care. Mother had also made unannounced visits to the maternal grandmother's home in an attempt to take both children away from the maternal grandmother. When the social worker went to Mother's home to detain R.B. with the assistance of officers on November 3, 2017, Mother was "incoherent," "belligerent," "mumbled her words," and appeared to be under the influence as evidenced by "her not being able to stand upright, slurring her words, and her" blood-shot eyes.
On November 7, 2017, a first amended petition was filed on behalf of R.B. pursuant to section 300, subdivision (b) (failure to protect). At the detention hearing the following day, R.B. was formally detained and placed in a foster home. Mother was offered supervised visitation and services pending the jurisdictional/dispositional hearing. R.B. was later placed with his paternal aunt.
The original petition was filed on November 2, 2017, on behalf of R.B. based on Mother's chronic and unresolved drug use, Mother's mental health issues, Mother's history with DPSS, Mother's acts of domestic violence, and R.B.'s father's prior criminal history and failure to protect.
A.H. was detained and removed from the maternal grandmother's home due to the maternal grandmother failing to file for legal guardianship of A.H. per the safety plan and Mother no longer consenting to A.H. remaining in the maternal grandmother's home. On November 29, 2017, DPSS filed a second amended petition to add A.H. pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). At the detention hearing the following day, A.H. was placed in a foster home. The court issued a restraining order against Mother protecting the maternal grandmother and A.H. Mother was provided with supervised visitations with A.H.
A third amended petition was filed on behalf of the children on January 29, 2018, with slight changes.
In a jurisdictional/dispositional report dated December 22, 2017, the social worker recommended services for Mother. Mother reported that she had relapsed one time since October 31, 2017, and was seeking assistance and taking her prescribed medication. Mother had enrolled in a substance abuse treatment program, a parenting program, and counseling services.
At the December 22, 2017 jurisdictional/dispositional hearing, the juvenile court, on its own motion, directed DPSS to prepare a best interest analysis under section 365.1, subdivision (b)(13), in regards to Mother. The jurisdictional/dispositional hearing was continued.
In an addendum report dated January 5, 2018, the social worker recommended the allegations in the second amended petition be found true and that reunification services be denied to Mother pursuant to section 361.5, subdivision (b)(13), and that a section 366.26 hearing be set as to A.H. By January 2018, A.H. had been placed with her paternal aunt. The social worker reported that A.H. and Mother appeared to have had a limited parent-child relationship; as Mother relied on the maternal grandmother, the paternal grandmother, and the paternal aunt to provide supervision and support for the child. Over the course of A.H.'s life and in Mother's absence, the maternal grandmother had been the primary caregiver for the child, with the paternal aunt and the paternal grandmother caring for the child on weekends. The social worker noted that while A.H. appeared bonded with Mother, Mother had not been able to "provide the child with consistency and provisions." The social worker further noted that Mother had completed substance abuse treatment programs in the past but had resumed using methamphetamines while the children were in her care. Also noted was the fact that Mother had not been consistent with taking her psychotropic medication. The social worker believed Mother's level of progress was minimal and that there had not been a change in her behavior for an established period of time. Mother did not currently have long-term employment or a long-term employment history, and lacked stable housing. On December 22, 2017, the social worker observed that Mother had a black eye, which Mother indicated was from being in a physical altercation with her fiancé. The social worker, therefore, did not believe it was in the children's best interest to grant Mother reunification services at that time.
The contested jurisdictional/dispositional hearing was held on January 29, 2018. At that time, Mother's counsel argued that there was insufficient evidence to sustain a finding of clear and convincing evidence to deny Mother services pursuant to section 365.1, subdivision (b)(13). Mother's counsel also argued that the legislative intent to deny services to individuals who are found to be "resistant to treatment" did not apply to Mother in this case and that it would be in A.H.'s best interest to grant Mother services. Minors' counsel requested the court deny Mother services, noting Mother's inability to remain clean and sober in a home free from domestic violence. Following further argument, the juvenile court found the allegations in the third amended petition true and declared A.H. and R.B. dependents of the court. The court denied Mother services pursuant to section 361.5, subdivision (b)(13). The court also found services were not in the children's best interest and set a section 366.26 hearing as to A.H.
On January 30, 2018, Mother filed a timely notice of intent to file an extraordinary writ petition pursuant to California Rules of Court, rule 8.452.
III
DISCUSSION
Mother contends the juvenile court erred in denying her reunification services because there was insufficient evidence she was resistant to treatment within the provisions of section 361.5, subdivision (b)(13). She also contends that the court abused its discretion by declining to find that providing services would be in A.H.'s best interest (§ 361.5, subd. (c)) and the court's decision is contrary to the legislative intent of section 361.5, subdivision (b)(13). We find Mother's arguments unpersuasive and we affirm the court's bypass order.
A. Reunification Services Generally
Generally, the juvenile court is required to provide reunification services to a child and the child's parents when a child is removed from parental custody under the dependency laws. (§ 361.5, subd. (a).) The purpose of providing reunification services is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) It is also the legislative intent, "that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) "Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services ' "those parents who are unlikely to benefit" ' [citation] from such services or for whom reunification efforts are likely to be 'fruitless' [citation]." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.).)
When the juvenile court concludes reunification efforts should not be provided, it " ' "fast-tracks" ' " the dependent minor to permanency planning so that permanent out-of-home placement can be arranged. (Jennifer S., supra, 15 Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification services are commonly referred to as " ' "bypass" ' " provisions. (Ibid.)
Once it has been determined one of the situations enumerated in section 361.5, subdivision (b), applies, " ' " the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" ' [Citation.]" (In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.); in accord, In re A.G. (2012) 207 Cal.App.4th 276, 281 (A.G.).) Thus, if the juvenile court finds a provision of section 361.5, subdivision (b), applies, the court "shall not order reunification for [the] parent . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) "The burden is on the parent to . . . show that reunification would serve the best interests of the child." (William B., at p. 1227; in accord, A.G., at p. 281.)
B. Standard of Review
"We review an order denying reunification services under [section 361.5] for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122; see In re Brian M. (2000) 82 Cal.App.4th 1398, 1401 (Brian M.); In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) If there is substantial evidence to support the order, the appellate court must uphold the order even if evidence could support a contrary holding. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) We review the court's best interest determination for abuse of discretion. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165.) In the present matter, the juvenile court's ruling is presumed correct and the burden is on Mother to overcome this presumption by affirmatively establishing error. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) For the reasons explained post, we find that substantial evidence supports the court's finding section 361.5, subdivision (b)(13), applied to Mother and that Mother fails to show reunification services are in A.H.'s best interest.
C. Section 361.5, subdivision (b)(13)
Section 361.5, subdivision (b)(13), provides that reunification services may be denied to a parent when the court finds by clear and convincing evidence "[t]hat the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
Where a parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted treatment for this problem during the three years immediately prior to the filing of the petition, using scarce resources to continue to address the substance abuse problem would be "an enormous expense and drain on a dependency system, which is already strained to the breaking point." (Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016, fn. 3.) Failing to benefit from substance abuse treatment constitutes resistance to prior treatment and is grounds for denying reunification services. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1009-1010 (Karen S.).) As the court in Karen S. stated: "[A] parent can actively resist treatment for drug or alcohol abuse by refusing to attend a program or by declining to participate once there. The parent also can passively resist by participating in treatment but nonetheless continuing to abuse drugs or alcohol, thus demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life. In either case, a parent has demonstrated a resistance to eliminating the chronic use of drugs or alcohol which led to the need for juvenile court intervention to protect the parent's child." (Id. at p. 1010.)
Furthermore, the appellate court in Laura B. v. Superior Court (1998) 68 Cal.App.4th 776 (Laura B.), stated that a social service agency is required only to prove "that a parent has previously undergone or enrolled in substance abuse rehabilitation. Then, during the three years prior to the petition being filed, the parent evidenced behavior that demonstrated resistance to that rehabilitation. Such proof may come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety." (Id. at p. 780.) DPSS, in order to satisfy section 361.5, subdivision (b)(13), was required to show resistance by Mother to the substance abuse treatment during the three years prior to the filing of the petition, not that she participated in substance abuse treatment during that three-year period. (Laura B., at pp. 778-779.)
In the present matter, the juvenile court had before it an abundance of evidence demonstrating Mother's resistance to substance abuse treatment in the three years prior to the filing of the petition. The original petition was filed on November 2, 2017. The record shows that Mother admitted to using methamphetamines for 18 years, beginning at age 14. Mother also admitted to smoking methamphetamine four days prior to October 31, 2017, when she tested positive for methamphetamines and amphetamines on an oral saliva test conducted by the social worker. In addition, Mother admitted to smoking marijuana and methamphetamine hours before the physical altercation with her boyfriend on October 31, 2017. She further admitted to regularly using marijuana and methamphetamine on a daily basis while caring for her infant son. Mother's eldest son had seen Mother using drugs and had expressed his desire for her to stop using drugs. Mother lost custody of her eldest son A. on October 13, 2017, due to her "heavy" drug use and inability to care for him. Furthermore, Mother's behavior was consistent with that of a heavy drug abuser. She appeared incoherent, mumbled her words, and appeared under the influence on November 3, 2017, as evidenced by "her not being able to stand upright, slurring her words, and her eyes were blood shot." Moreover, on January 29, 2016, Mother was convicted of possession of a controlled substance and was on probation until September 30, 2018. Mother had multiple convictions for drug-related offenses from 2005 to 2016 and spent 14 months in state prison for one of the drug-related offenses. Drug abuse was one of the issues in her first dependency with her eldest son A. Although she reunified with A. after 12 months of reunification services, she had not benefitted from the services, based on her subsequent criminal convictions and continued use of methamphetamine leading to this dependency. She participated unsuccessfully in three drug treatment programs in addition to the Riverside Superior Court ROC program she completed. While Mother enrolled in services again on November 1, 2017, she had already completed a drug treatment program and resumed regular drug usage, thereby showing a passive resistance to drug treatments. Mother was unable to use the skills and behaviors taught in the ROC program to maintain a sober life.
Mother's argument to the contrary is unpersuasive in light of the substantial evidence in this case. A rational fact finder could reasonably infer from the evidence in the record that Mother did more than just relapse, she returned to regular drug usage. (Cf. Karen H. v. Superior Court (2001) 91 Cal.App.4th 501, 504 ["[h]ad there been a single positive test or even several positive tests within a period of a few days, petitioner's drug use might have been considered only a relapse"].) The record shows that in the three years prior to the filing of the petitions Mother resisted treatment for her substance abuse problem by continuing to use illegal substances, after having participated in numerous treatment programs and despite being placed on probation and being sent to prison for a drug-related offense. (Laura B., supra, 68 Cal.App.4th at p. 780.)
The record contains sufficient evidence to satisfy the resistance to treatment standard contained in section 361.5, subdivision (b)(13). Resistance to treatment can include return to substance abuse after completion of a rehabilitation program. (Brian M., supra, 82 Cal.App.4th at p. 1402, citing Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.) As previously stated, proof of resistance can "come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety." (Laura B., supra, 68 Cal.App.4th at p. 780.) Ample evidence supported the juvenile court's finding that section 361.5, subdivision (b)(13), applied to Mother.
D. Best Interest under Section 361 .5, subdivision (c)
Mother also contends that the juvenile court abused its discretion when it found that reunification was not in A.H.'s best interests, pursuant to section 361.5, subdivision (c). We disagree.
When section 361.5, subdivision (b)(13), applies, the juvenile court must nevertheless order reunification services for the parent if it finds by clear and convincing evidence that reunification is in the best interest of the child. (§ 361.5, subd. (c).) A juvenile court has broad discretion in determining whether further reunification services would be in a child's best interest. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) As previously noted, an appellate court will reverse that determination only if the juvenile court abuses its discretion. (Id. at pp. 523-524.)
The best interest determination requires consideration of (1) the parent's current efforts, (2) the parent's fitness, (3) the parent's history, (4) the seriousness of the problem that led to the dependency, (5) the strength of the parent-child and caretaker-child bonds, and (6) the child's need for stability and continuity. (A.G., supra, 207 Cal.App.4th at p. 281.) "A best interests finding also requires a likelihood that reunification services will succeed. [Citation.] 'In other words, there must be some "reasonable basis to conclude" that reunification is possible before services are offered to a parent who need not be provided them. [Citation.]' " (Ibid., quoting William B., supra, 163 Cal.App.4th at pp. 1228-1229.) The party seeking to invoke section 361.5, subdivision (c), has the burden of proving by clear and convincing evidence that reunification is in the best interest of the child. (Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 59.)
Here, although the record shows A.H. appeared bonded to Mother, we cannot say the juvenile court abused its discretion in determining it would not be in A.H.'s best interest to provide reunification services. Rather, there is substantial evidence supporting the juvenile court's determination that offering reunification services to Mother was not in A.H.'s best interest. Mother had a long-standing methamphetamine addiction, spanning 18 years. She was unable to remain drug-free for a significant period, despite her participation in numerous drug treatment programs. The evidence showed Mother's pattern of failure to seriously address her significant, long-term, substance abuse problems. She also continued to engage in relationships fraught with domestic violence and failed to manage her mental health issues, despite being enrolled in services. Moreover, A.H. was primarily raised by relatives due to Mother's absence and drug use. Mother's relationship with A.H. appeared to be limited, and she did not occupy a parental role in A.H.'s life. Mother did not provide A.H. with consistency or provisions. Furthermore, Mother was unemployed, did not have long-term employment or a long-term employment history, and lacked stable housing. Substantial evidence shows that it was not in A.H.'s best interest to grant Mother reunification services.
A child's bond with her mother cannot be the sole basis for a best interest finding under section 361.5, subdivision (c). (William B., supra, 163 Cal.App.4th at p. 1229.) Given Mother's significant substance abuse, domestic violence, and mental health issues, the juvenile court reasonably could find Mother's recovery would be a lengthy process. Thus, the court could reasonably find that granting reunification services to Mother would be detrimental to A.H., despite their apparent bond. In reviewing the record, we cannot conclude the juvenile court abused its discretion in determining services were not in A.H.'s best interest.
As previously noted, a parent bears the burden of demonstrating that reunification is in the best interest of the child. (William B., supra, 163 Cal.App.4th at p. 1227.) This requires the parent to give the court "some 'reasonable basis to conclude' that reunification is possible . . . . [Citation.]" (Id. at pp. 1228-1229.) Mother fails to provide "some 'reasonable basis to conclude' that reunification is possible . . . . [Citation.]" (Ibid.) There is no evidence in the record to demonstrate that reunification with A.H. was possible given Mother's history. Mother fails to show reunification services are in A.H.'s best interest.
E. Legislative Intent
In a continuation of her attempt to argue the juvenile court erred in bypassing her services, Mother also asserts the court's decision was contrary to the legislative intent of section 361.5, subdivision (b)(13). Again, we disagree.
As previously noted, section 361.5, subdivision (b)(13), " 'reflect[s] a legislative determination that an attempt to facilitate reunification between a parent and child generally is not in the minor's best interests when the parent is shown to be a chronic abuser of drugs who has resisted prior treatment for drug abuse.' [Citation.] Experience tells us that such a parent has a high risk of reabuse." (William B., supra, 163 Cal.App.4th at p. 1228.) As explained in the preceding sections, the court had before it ample evidence to bypass Mother's reunification services pursuant to section 361.5, subdivisions (b)(13) and (c). As also previously noted, once it has been determined one of the situations enumerated in section 361.5, subdivision (b), applies, " ' " the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" ' [Citation.]" (William B., at p. 1227; in accord, A.G., supra, 207 Cal.App.4th at p. 281.) The court's decision here was not contrary to the legislative intent of section 361.5, subdivision (b)(13).
IV
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.