Opinion
E068893
11-15-2017
D.J. et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Daniel L. Vinson for Petitioner, D.J. Marla C. Mahoney for Petitioner, J.I. No appearance for Respondent. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ110913) OPINION ORIGINAL PROCEEDING; petition for extraordinary writ. Timothy F. Freer, Judge. Petition denied. Daniel L. Vinson for Petitioner, D.J. Marla C. Mahoney for Petitioner, J.I. No appearance for Respondent. No appearance for Real Party in Interest.
Petitioners D.J. (father) and J.I. (mother) filed separate petitions for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order denying reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues there was insufficient evidence to deny her reunification services under section 361.5, subdivision (b)(10) and (b)(11). She further argues that it was in the best interest of her child, E.J. (the child), to provide services. (§ 361.5, subd. (c).) Father makes the same arguments. We deny the writ petitions.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted. --------
FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2017, the Riverside County Department of Public Social Services (DPSS) filed an amended section 300 petition on behalf of the child, who was 19 months old at the time. The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect). Specifically, the petition alleged that the child was at substantial risk of serious harm, since he ingested methamphetamine while in the care and custody of mother and father (the parents). The petition further alleged that the parents abused controlled substances, that father had a case history with Child Protective Services (CPS) in Riverside County and San Bernardino County due to allegations of general neglect and substance abuse, and that mother's parental rights were terminated after she failed to reunify with the child's half sibling, J.A., who was then adopted.
The social worker filed a detention report and stated that DPSS received a referral on June 7, 2017, alleging that the parents brought the child to the emergency room because they thought he was having a seizure. They denied he had been exposed to any substances. The child was exhibiting withdrawal symptoms, such as being jittery, screaming, and crying. He tested positive for methamphetamine. The parents did not appear to be under the influence, and they denied any current substance abuse. They had no idea how the child could have tested positive for methamphetamine. The social worker interviewed mother. She reported that, although she had a history of methamphetamine use, she had not used any methamphetamine for the past 10 years. Mother agreed to submit to a saliva drug test, but continued to deny drug use. She eventually admitted she used methamphetamine on June 4, 2017, after being confronted with the results of the drug test and being confronted by a police officer that there was white substance residue on her tongue. She also admitted that she used methamphetamine six months prior, and admitted that she and father used methamphetamine together four days prior to the current incident. When asked if she would be willing to participate in a substance abuse program to address her substance abuse history, mother said she did not have a problem and did not need a program.
The social worker further reported that there were six prior referrals as to mother, alleging general neglect and/or severe neglect. Most of the referrals were unsubstantiated or evaluated out. However, the referral on August 2, 2000, was substantiated. The referral stated that mother was arrested on July 21, 2000, for being under the influence and in possession of marijuana. One of mother's children was in the home when mother was using controlled substances. That child was placed with the father, and mother was offered drug treatment, but she refused. Then, on October 19, 2005, DPSS received a referral alleging both severe and general neglect, which was substantiated. Mother tested positive for methamphetamine and Benzodiazepine when she gave birth to her son, J.A. She admitted that she used valium on October 18, 2005, and that she did not receive prenatal care.
The social worker interviewed father, who said he believed the child picked up the methamphetamine either from the balcony they shared with their neighbors or somewhere in the apartment complex where they resided. Father was adamant that he had never tried any illegal substances. However, when the social worker informed him about mother's disclosure, he then admitted he had used methamphetamine, but only one time, and he continued to deny any substance abuse. When asked about any previous involvement with CPS, father said he had other biological children who were dependents in San Bernardino County, but they were not removed from his care, but rather from the care of their mother. He said he gave custody of them to their maternal grandmother before they were removed. The social worker reported that there had been 12 prior referrals as to father, regarding his other children; however, the majority of the allegations were unsubstantiated or unfounded. In 2000, a referral alleging general neglect was noted to be "inconclusive." However, father expressed that he was "trying to get off drugs," and he planned to move to get away from his friends who used drugs. In 2001, a referral alleging general neglect and caretaker absence was substantiated. (See post.)
The court held a detention hearing on June 14, 2017, and detained the child in foster care.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on July 3, 2017, recommending that the court sustain the petition and deny reunification services for father, pursuant to section 361.5, subdivision (b)(10) and (b)(11). The social worker reported that mother started using marijuana at age 15 and methamphetamine at age 21. Mother stated that peer pressure influenced her drug use, and she last used on June 4, 2017; however, prior to that she was sober for 11 years. As to mother's history regarding her son, J.A., the social worker reported that, in 2005, he was taken into protective custody after she and J.A. tested positive for methamphetamine and Benzodiazepine when he was born. Both J.A. and mother's older son, O.G., were detained and mother was provided with reunification services as to J.A. In July 2006, her services were terminated. However, she was given services as to O.G. In January 2007, mother's services as to O.G. were terminated with a planned permanent living arrangement, and a section 366.26 hearing was set as to both children. Then, in April 2007, mother's parental rights were terminated as to J.A., with adoption being the permanent plan; the permanent plan for O.G. was legal guardianship.
The social worker further reported that father had a CPS history in San Bernardino County and Riverside County "pertaining to substance abuse issues." With regard to the 2001 referral alleging general neglect and caretaker absence, the social worker reported that father and his family were homeless and staying with relatives, prior to the birth of the child, A.J. A.J. was born premature and had to stay in the hospital for neonatal care. During the two months A.J. was hospitalized, father and A.J.'s mother only visited 10 times. Father arrived at the hospital under the influence of alcohol twice. They were offered family reunification services for A.J. and family maintenance services for their other child. On January 29, 2003, father's parental rights were terminated as to A.J. Furthermore, on May 5, 2016, a court sustained a section 300 petition with regard to father's daughter and denied him reunification services, pursuant to section 361.5, subdivision (b)(10) and (b)(14).
The social worker opined that placement of the child with the parents in the current case was not in his best interest. The parents continued to make poor choices, and abused controlled substances and cared for the child while under the influence of methamphetamine. The social worker noted that, although they had received preventative services in the past, they failed to benefit from them, as evidenced by the current circumstances.
The social worker filed an addendum report on August 2, 2017, and reported that the child was placed in a foster home on June 9, 2017. The social worker further reported that the parents were having supervised visits twice a week. The parents interacted and responded appropriately to him, and the child appeared to be happy during visits. The social worker also reported that the parents had actively sought out services, since the child was taken into protective custody. Mother enrolled in the MOMS Intensive Outpatient Program on June 30, 2017. Father enrolled in the Riverside County Substance Abuse program on July 12, 2017, and was doing well in the program. However, the social worker still recommended that the child remain a dependent. The parents had failed to benefit from services, in that problems that permeated the family in 2002 and 2005, which resulted in CPS involvement, still existed. The parents had participated in services previously, but failed to utilize what they learned. They were not forthcoming about how the child ingested methamphetamine while in their care. Father eventually admitted he used methamphetamine on June 4, 2017, at a party with mother. He stated that the child was at the party with them. The social worker noted that the child was ambulatory and could have ingested a lethal dosage of methamphetamine, while under the care of incapacitated parents. The social worker was concerned that the parents would continue to exercise poor judgment and endanger the child's welfare. The parents did not acknowledge their substance abuse problem, which would continue to negatively impact their protective capacity. The social worker opined that it was not in the best interest of the child to offer the parents reunification services, as it would be detrimental to his safety due to their substance abuse issues, lack of supervision that led to him ingesting methamphetamine that could have killed him, and lack of protective capacity to ensure his safety. The social worker concluded that the parents had a prior CPS history due to substance abuse issues and continued to engage in the same actions that jeopardized the welfare of their other children; as such, they were placing the child at continued risk of similar harm.
The court held a contested jurisdiction/disposition hearing on August 10, 2017. Mother was present, and her counsel stated that if she were called to testify, she would say she was not currently abusing controlled substances, she never had a positive saliva or urine test with DPSS, she was enrolled in the MOMS program and was participating in weekly therapy, she was visiting the child twice a week, and she had joint custody of her other son with his father, and neither that son nor the child were born drug exposed. As to jurisdiction, mother essentially submitted. However, as to disposition, mother requested reunification services. She acknowledged the section 361.5, subdivision (b)(10) and (b)(11) bypass provisions, but argued there was nothing in the reports to show that she had failed to make reasonable subsequent efforts that led to the removal of the siblings. Mother's counsel argued that the absence of any positive drug tests indicated that mother had, in fact, made reasonable subsequent efforts to address the issues that led to removal. Thus, she contended that DPSS had not met its burden of proof. Mother's counsel further argued that it was in the child's best interest to provide mother with services, in light of the positive visitation.
Father was also present, and his counsel stated that if he were called to testify, he would say he was currently participating in a substance abuse program, was testing clean, and was not abusing controlled substances; he was having consistent visits with the child, and the visits were going very well. Father would also testify that he would complete a substance abuse program and any other services requested by DPSS. During closing arguments, father's counsel pointed out that DPSS cited to a 2003 case where father's parental rights were terminated. However, he claimed that father was not involved in that case; then he argued there was no indication of any substance abuse that led to that case. Counsel further argued that DPSS had no evidence that father failed to subsequently address the problems that led to that case because they had no information about the case, except that it ended with the termination of parental rights. Thus, DPSS had not met its burden under section 361.5, subdivision (b)(10) and (11). Counsel also contended that it was in the child's best interest to order services, since father was taking this case seriously, and he would complete his case plan if given services, would continue to have appropriate visits, and would work with mother to stay clean and raise the child appropriately.
County counsel argued that the parents clearly had not benefited from their past services, in that they had methamphetamine in the presence of a one year old, and they lied about the facts from the start. As to the child's best interest, county counsel pointed out that, although the parents were currently participating in services, mother did not begin until the end of June, and father only started on July 12 or 13. Thus, given the short amount of time, they had only shown that they wanted to make efforts. However, those efforts were not enough to overcome the fact that the child could have died by ingesting methamphetamine. The parents should have learned in the past 10 or so years that something like this could happen, and it was not in the child's best interest to place him in that same situation.
The court stated that the most troubling part of the case was that the parents knew the child had ingested methamphetamine, and they reacted quickly and took him to the hospital. However, with the child's life on the line, the parents did not immediately tell the hospital staff what happened. The court stated: "People that have made reasonable progress would say, look, the priority is the child, saving the child. No matter what happens to me, the fact [is] that I have to admit that I used, ingested methamphetamine, that the child got into meth, we had a party." However, the court pointed out that is not what happened here. It noted that, "[w]ith the child's life on the line at the hospital, it was stalling, lying, and being evasive about what happened."
The court further stated that it reviewed the past referrals of both mother and father. It observed that, in 2005, DPSS received a referral against mother alleging severe and general neglect. Mother tested positive for marijuana and Benzodiazepine and admitted to using valium on October 18, 2005, when she gave birth to J.A., and J.A. also tested positive for methamphetamine and Benzodiazepine. The court noted that by 2007, she was not able to reunify with her other child while she had reunification services, and J.A. was adopted. Thus, the court looked at mother's entire timeline and found that the evidence of her efforts to ameliorate the problem that led to removal did not show that her efforts were reasonable.
The court also noted father's history and concluded that the current situation was not an aberration, but part of a lifestyle. The court encouraged him to continue trying to change his lifestyle. It then sustained the petition, declared the child a dependent of the court, removed him from the parents' custody, and placed him in the care of DPSS. The court found that the parents were persons described in section 361.5, subdivision (b)(10) and (b)(11), and it denied reunification services, as they were not in the best interest of the child. The court then set a section 366.26 hearing for December 11, 2017.
ANALYSIS
The Court Properly Denied Services Under Section 361.5,
Subdivision (b)(10) and (b)(11)
Mother and father both argue that we must reverse the order denying reunification services under section 361.5, subdivision (b)(10) and (b)(11), because there was insufficient evidence to support the findings. Mother also argues that the court failed to analyze whether granting services was in the child's best interest. Father contends that reunification was in the child's best interest. We conclude that the court properly denied services.
A. Section 361.5
"Section 361.5, subdivision (b) lists a number of situations in which reunification services are likely to be futile and need not be offered to a parent. [Citation.] These exceptions to the general rule reflect a legislative determination that in certain situations attempts to facilitate reunification do not serve the child's interests. [Citation.] When the juvenile court determines by clear and convincing evidence that one of the enumerated situations exists [citation], reunification services shall only be ordered if 'the court finds, by clear and convincing evidence, that reunification is in the best interest of the child' [Citation]." (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202 (D.B.).) Section 361.5, subdivision (b)(10), provides that reunification services may be denied to a parent when the juvenile court finds by clear and convincing evidence that "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian." Section 361.5, subdivision (b)(11), provides that services may be denied when "the parental rights of a parent over any sibling or half sibling of the child had been permanently severed . . . and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."
"We review under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged." (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401; see D.B., supra, 171 Cal.App.4th at p. 203.)
B. The Court Properly Denied Mother Services
Mother concedes that the first prong of section 361.5, subdivision (b)(10) and (11), was met in that she previously had reunification services terminated and parental rights terminated as to the child's sibling(s). However, she argues that there was insufficient evidence to support the court's finding that she failed to make reasonable efforts to treat the problems that led to the removal of the child's siblings. She specifically argues that the only apparent bases for the court's finding that she had not made reasonable efforts to treat the problem that led to the removal of the child's siblings were its belief that the parents were engaged in a drug lifestyle, as well as a timeline of mother's life that the court referred to. She also points out that the evidence presented indicated that she had only used drugs two times in the past 10 years, that since the termination of her parental rights in 2007, she had two other children who were born without drug exposure, she had no drug-related criminal convictions, she was currently enrolled in a substance abuse program, and she had never tested dirty with DPSS.
The evidence was sufficient to support the court's finding that mother had not made reasonable efforts to treat the problem that led to the removal of the child's siblings. The child's siblings were removed because of mother's neglect and drug use. The court stated that the most troubling part of the case was that the parents knew the child had ingested methamphetamine, and they reacted quickly and took him to the hospital. However, with the child's life on the line, they did not immediately tell the hospital staff what happened. The court essentially asserted that, if mother had made reasonable progress in treating the problems that led to the removal of the child's siblings, she would have immediately admitted that she used methamphetamine and that the child had ingested methamphetamine, in order to help save the child. Instead, mother stalled, lied, and/or was evasive about what happened to the child. Furthermore, mother was still using drugs and neglecting the child. Her neglect in this case, in allowing the child to be in an environment where he could ingest methamphetamine, and in not prioritizing his life enough to immediately tell the hospital staff the truth that he did so, was sufficient evidence that she had not made reasonable efforts to treat her problems.
Mother additionally argues that the court failed to make a separate analysis as to whether offering reunification services would be in the best interest of the child. She cites to section 361.5, subdivision (c)(2), which provides: "The court shall not order reunification for a parent or guardian described in paragraph . . . (10), [or] (11), . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." We initially note the statute states that the court "shall not" order services "unless" it finds that reunification is in the child's best interest. (§ 361.5, subd. (c)(2).) In other words, it appears to only require a best interest analysis if a court wants to order reunification services for a parent who falls within one of the bypass provisions. Such was not the case here. In any event, the record demonstrated that reunification with mother was not in the child's best interest. The child ingested methamphetamine while in her care. When the parents brought the child to the hospital, mother denied that he was exposed to any substances, even though he was exhibiting withdrawal symptoms. After being confronted with the test results, she claimed she had no idea how the child could have tested positive for methamphetamine. She tried to blame the situation on the "ghetto" apartment complex where they lived. Mother denied any history of substance use or any current use. She only admitted her recent drug use after being confronted with the police officer's field sobriety test results.
In light of mother's failure to protect the child from exposure to drugs, and her lies and refusal to take responsibility in the situation, we cannot see how it would be in the child's best interest for him to reunify with her.
C. The Court Properly Denied Father Services
Father argues that the record was devoid of any facts pertaining to his issues in any previous dependency, and DPSS did not show that he failed to make reasonable efforts to treat previous problems. While the record does not contain details pertaining to father's previous dependencies, it does reflect that the dependencies pertained to his substance abuse issues. It also shows that father's parental rights were terminated as to his child, A.J., on January 29, 2003.
Moreover, the court here implicitly found that father failed to make reasonable efforts to correct the problem that led to the child's sibling being removed from his custody. In recounting the circumstances in the instant case, the court noted that father and mother knew that the child had ingested methamphetamine, and they got him to the hospital quickly. The court essentially asserted that, if father had made reasonable progress in treating the problems that led to the removal of the child's sibling, he would have prioritized the child's life and told the truth about what had happened. Instead, father stalled, lied, and/or was evasive. The court further noted father's history of DPSS referrals and concluded that this instant case was "a continuation of a history or a past" and was "part of a lifestyle." The record supports the court's conclusion, as it reflects allegations dating back to 2001 of general neglect and a history and lifestyle of drug use. With regard to one referral received by DPSS in 2003, father was "admonished to remain clean and sober to avoid placing children at risk." The fact that father was still struggling with the same issues of drug use and placing his child at risk some 14 years later indicates that he had not made a reasonable effort to treat his problems.
Father argues that, even if section 361.5, subdivision (b)(10) or (b)(11) applied, the court should have ordered reunification services because it was in the child's best interest. In support of this position, he merely claims that he was doing everything possible to address his current issues (e.g., participating in a substance abuse program), had repeatedly tested clean, and he had "excellent visits with his child." He points out that he interacted appropriately with the child, and he was affectionate, attentive, and caring with him. However, father had already had at least two prior dependencies due to drug use. As the court noted, he had not benefitted from his previous services. In the instant case, the child ingested methamphetamine while in father's care. When father brought the child to the hospital, he, like mother, initially denied any current substance abuse and said he had no idea how the child could have tested positive for methamphetamine. Only after further questioning did he admit that he used methamphetamine on June 4, 2017, at a party with mother and that the child was with them. The child was at an age where he could walk and could have ingested methamphetamine, while father was incapacitated. The record clearly shows that father repeatedly exercised poor judgment, and that he lacked the protective capacity to ensure the child's safety.
We conclude there was sufficient evidence to support the court's finding that section 361.5, subdivision (b)(10) and (b)(11), applied and that reunification services were not in the child's best interest. (§ 361.5, subd. (c).) Thus, the court properly denied both mother and father services.
DISPOSITION
The writ petitions are denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.