Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 04CEJ300207-2. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Hana B. Balfour, under appointment by the Court of Appeal, for Defendant and Appellant.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J., and Kane, J.
OPINION
INTRODUCTION
Appellant, T. D., appeals from an order of the juvenile court denying her request for reunification services as to her son D.V. after the juvenile court denied those services on December 18, 2007, pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(13). Appellant also contends the court abused its discretion in not making a finding pursuant to section 361.5, subdivision (c). Respondent contends these issues were resolved against appellant in case No. F054419, a writ proceeding, as to another sibling. Respondent argues the doctrines of res judicata and law of the case should be applied to the issues raised in the instant appeal.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
We hereby grant respondent’s pending motion to take judicial notice of our opinion in case No. F054419.
Although most of our opinion in case No. F054419 is germane to the instant action and restated in large part herein, we will decline respondent’s invitation to apply the doctrines of res judicata or law of the case to this appeal.
FACTS AND PROCEEDINGS
The main issue in this case is whether there was sufficient evidence concerning appellant’s drug use to support the juvenile court’s order denying her reunification services as to D. V. In December 2002, L. W., D. V.’s older sibling, was born. She was drug exposed at birth. In May 2003, appellant took L. W., T. D.’s sibling, to the emergency room to be evaluated for sexual molestation. At the time, appellant was under the influence of phencyclidine (PCP) and admitted to prior use of controlled substances. L. W.’s medical examination was negative for sexual molestation and appellant was advised about the consequences of her drug use. It was determined that appellant was meeting L. W.’s needs and no further action was taken.
In September 2004, appellant was found lying face down in the street high on drugs. L. W. was in her stroller in a gutter. The juvenile court adjudged L. W. a dependent based on appellant’s drug use. In October 2004, prior to her admission for treatment, appellant tested positive for PCP multiple times. She also tested positive for marijuana and Vicodin. In November 2004, appellant, then pregnant, entered a court-ordered residential drug treatment.
In March 2005, appellant completed the residential phase of the drug treatment program. Approximately, two weeks later, she gave birth prematurely to twin boys, D. V. and L. V., and was hospitalized shortly thereafter for pneumonia. L. V. died in May 2005, shortly after his birth.
Appellant spot tested negatively for drugs in early 2005, but also consistently failed to submit for testing from late 2004 through late July 2005. Appellant regularly tested negative for drugs during the rest of 2005 until January 2006, when she began to miss more tests. In late March 2006, appellant tested positive for opiates but then repeated her pattern of testing negative from April through May 2006. Appellant again began to periodically miss tests from late May through July 2006. Appellant had several negative tests in July 2006 and two negative tests in August 2006. Between August 11, 2006, and early April 2007, appellant consistently failed to submit to testing. In August 2006, the juvenile court terminated dependency and awarded appellant sole legal and physical custody of L. W.
In the May 2007, police were called to appellant’s home to investigate allegations appellant was physically abusing D. V. Appellant had her children sleeping in the car for the evening. The police reported that appellant had been using drugs, was known for using the drug “KJ,” and was stealing property to support her drug habit. In June 2007, police found appellant’s home was dirty and needed to be cleaned. In July 2007, appellant left the children at the child welfare office but soon reclaimed them. She stated the children wanted to kill themselves.
The instant dependency proceedings were initiated in August 2007, when appellant was arrested for being in possession and under the influence of PCP. Four-year-old L. W. and two-year-old D. V. were found alone at home in an unsanitary environment. The social services department (department) took the children into protective custody and filed a dependency petition on their behalf which the juvenile court sustained. The condition of the home included, but was not limited to, trash, human feces, and soiled clothing strewn everywhere.
In August 2007, appellant completed another court-ordered substance abuse assessment. Appellant, now age 27, reported that she first used marijuana at age 15, alcohol at age 18, and PCP in 2000 at the age of 20. Appellant continued to use PCP and used it regularly thereafter, with the exception of a 27-month period of abstinence, which ended when she relapsed several days before her arrest. Although appellant admitted smoking PCP several days before her arrest, she denied that the PCP found in her car was hers. Appellant told the evaluator she did not see the need for further drug treatment. The evaluator recommended appellant participate in an extensive outpatient substance abuse treatment program.
The department filed a petition alleging appellant failed to protect L. W. and D. V. due to appellant’s use of PCP and that appellant left the children alone making the home unsafe for the children. The petition stated appellant had previously completed a drug treatment program during a prior dependency case involving L. W.
At the conclusion of mediation, the parties agreed to the petition language as amended. Appellant submitted on the amended petition, in effect admitting that she had relapsed due to a substance abuse problem with PCP which negatively affects her ability to provide regular care, supervision, and protection of her children. Appellant agreed that despite receiving family reunification services in 2004 and 2006, which included substance abuse treatment, she had relapsed. Appellant submitted to the allegation that on or about August 9, 2007, she was found to have PCP in her possession and was under its influence. Furthermore, she and her children were living in an unsanitary residence and her children were both young, requiring a sober and attentive care provider.
The department recommended the court order L. W. and D. V. removed from appellant’s custody and that appellant be denied reunification services pursuant to section 361.5, subdivision (b)(13) due to her history of extensive and chronic use of drugs. Between August 29, 2007, and September 20, 2007, appellant had six positive drug tests. Appellant told the social worker that she did not want to participate in an inpatient drug treatment program. The children appeared to the social worker to have a closer bond with their grandmother than with appellant. Although appellant regularly visited her children, the social worker believed that reunification with appellant was not in the best interests of the children.
The dispositional hearing was convened in October 2007, continued several times, and conducted as a contested hearing over multiple sessions beginning December 4, 2007. Appellant argued there was insufficient evidence, as required by section 361.5, subdivision (b)(13), that she had a history of extensive, abusive, and chronic use of drugs or alcohol. To that end, appellant offered the testimony of the caseworker, who could not refute appellant’s attorney’s statement that there were no positive tests after October 2004 until dependency was dismissed in August 2006 and that there was no information that appellant used PCP from September 2006 through August 2007. Appellant had one no-show for drug testing in October 2007, and all negative tests between October and November 2007.
Appellant also testified and, contrary to her statement to the drug assessor, stated that she first used PCP at the age of 22 and a half or 23. She also stated that she only used PCP “off and on.” She denied using PCP or any other drug from the time L. W. was removed in 2004 until dependency was dismissed in August 2006. Appellant denied any further drug use until late June or July 2007 when she relapsed. She stated she continued to participate in and benefit from court-ordered services. Appellant continued drug testing. Appellant also claimed the children loved her and were bonded to her.
Following testimony and argument, the court issued its findings and orders on December 18, 2007. The court found that appellant’s drug use was more extensive than that to which she testified and that her PCP use in July and August 2007 was not an isolated incident given the condition of the home when the children were removed. The court also concluded that the children’s need for stability was extreme and that continued efforts at reunification would not serve their best interest. Consequently, the court denied appellant reunification services as to both children pursuant to section 361.5, subdivision (b)(13) and set a section 366.26 hearing to implement a permanent plan for L.W. The court did not set a hearing to implement a permanent plan for D. V. but instead ordered the department to provide reunification services for D. V. and his father.
DISCUSSION
Appellant argues substantial evidence does not support the juvenile court’s order denying her reunification services under section 361.5, subdivision (b)(13) (subdivision (b)(13)), the applicable provisions of which provide: “Reunification services need not be provided to a parent [¶ ]… [¶ ] [who] has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition that brought [the child] to the court’s attention .…” Appellant claims the evidence demonstrates that she only used PCP for four years between 2000 and 2004 and then again for a short period upon her relapse in July 2007. That relatively short duration, she argues, is in sharp contrast to the lengthy histories of drug use found to be chronic and extensive in the many cases she cites. The problem with those cases is that none of them analyzed the “extensive, abusive and chronic use” element of subdivision (b)(13).
In re Brooke C. (2005) 127 Cal.App.4th 377, 381 (Brooke C.) [15 years of drug use]; In re Brian M. (2000) 82 Cal.App.4th 1398, 1400 (Brian M.) [15 years of drug abuse]; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 (Randi R.) [29 years of alcohol abuse and 16 years of drug abuse]; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 778 (Laura B.) [18 years of drug abuse]; Karen H. v. Superior Court (2001) 91 Cal.App.4th 501, 503 (Karen H.) [10 years of substance abuse]; In re Levi U. (2000) 78 Cal.App.4th 191, 194 (Levi U.) [10 years of substance abuse]; and Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1018 (Letitia V.) [at least 8 years of substance abuse].
Brooke C., supra, 127 Cal.App.4th at p. 383; Brian M., supra, 82 Cal.App.4th at pp. 1401-1403; Randi R., supra, 64 Cal.App.4th at p. 73; Laura B., supra, 68 Cal.App.4th at pp. 779-781; Karen H., supra, 91 Cal.App.4th at pp. 504-505; Levi U., supra, 78 Cal.App.4th at pp. 200-201 and Letitia V., supra, 81 Cal.App.4th 1009, 1016.
Further, the evidence supports a conclusion that appellant’s PCP use was chronic and extensive beyond what she is willing to admit. Even assuming all the drug tests appellant missed following the birth of her twins in March 2005 would have resulted in negative results, the fact remains that she tested positive for opiates in March 2006. Additionally, the police were reporting appellant’s PCP use in the spring and summer of 2007 and appellant’s bizarre behavior supports that claim. She was acting irrationally, her house was dirty and she and the children were sleeping in the car. It was during this same time that appellant left the children at the child welfare office claiming they wanted to kill themselves.
The juvenile court could reasonably infer from this evidence that appellant had returned to using PCP, her drug of choice, and that her world was spinning out of control with her children without constant supervision and living in squalor. Even though appellant’s PCP use included periods of sobriety, it spanned from at least 2000 through the removal of the children in August 2007. Appellant continued to test positive through most of September 2007, after her children had been removed. Appellant’s use of PCP was both chronic and extensive.
Further, we reject appellant’s claim that her relapse was isolated and did not constitute resistance to treatment under the statute. To that end, for the reasons already stated, we concur with the juvenile court that appellant and the children’s circumstances in August 2007 reflected more than just a brief relapse. In addition, it is well settled that resistance to treatment may occur, as did here, through resumption of regular drug use after a period of sobriety. (Laura B., supra, 68 Cal.App.4that p. 780.)
Finally, we find no abuse of discretion in the juvenile court’s determination that reunification would not be in the children’s best interest. (§ 361.5, subd. (c).) Appellant’s many opportunities to attain sobriety and the children’s extreme need for stability strongly support the juvenile court’s decision not to attempt reunification. We find no error on this record.
Notwithstanding an affirmative finding under subdivision (b)(13), the juvenile court may exercise its discretion and order reunification services under section 361.5, subdivision (c) if it determines reunification services would serve the child's best interest.
DISPOSITION
The judgment is affirmed. This opinion is final forthwith as to this court.