Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK20992, Robin Miller Sloan, Judge.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Mary M. appeals from the order of the juvenile court denying her reunification services as to her daughter, Nicole B., pursuant to Welfare and Institutions Code section 361.5, subdivision (b). We find the court erred in denying her request to continue the contested disposition hearing, but find no prejudice and affirm the order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Nicole and her younger brother, Gary B., were detained in 2004 after Gary was born with a positive toxicology for methamphetamine. Mother participated in reunification services, including a drug program, and the children were returned to her care in January 2006.
The Department of Children and Family Services (the Department) received a referral in December 2006 alleging that mother was using drugs in the presence of the children and had neglected her responsibilities to her children. The maternal grandmother told the social worker that mother and the children had been staying with her for several weeks, and that mother had been “partying” since moving in, leaving the children in the grandmother’s care for days at a time. Mother tested positive for methamphetamine.
The children were detained, and a section 300 petition was filed on their behalf on January 12, 2007. They remained in the home of their maternal grandmother. In the February 14, 2007 adjudication and disposition report, the Department recommended that no reunification services be provided to mother because three of her older children had been the subject of a dependency case in 1996 based in part on mother’s drug use. Mother had failed to reunify with these children. Mother also had two other children who were living with their fathers pursuant to family court rulings.
The social worker had spoken with Nicole’s father, Allan B., who was interested in obtaining custody of Nicole. The Department recommended he be provided with reunification services. No services were recommended for Gary’s father, Gary B., because he had not had any communication with the Department. This appeal only involves Nicole.
The court continued the matter to April 2, 2007 for mediation, and to April 3 for adjudication and disposition. Nicole’s parents agreed to an amended petition, which alleged in count b-1 that mother “has an unresolved history of substance abuse and is a user of methamphetamine. Further on or about 12/5/06 mother had a positive toxicology screen for methamphetamine and amphetamine. Further the children’s siblings . . . received permanent placement services due to mother’s substance abuse. Mother’s history and use of illicit drugs and mother’s failure to reunite with siblings who were removed from mother’s care due to substance abuse places the children at risk of harm.” The parties also submitted on counts b-3 and b-4, alleging Gary’s father’s current drug use and Nicole’s father’s history of substance abuse, which endangered the children. It was agreed that Nicole’s father would receive family reunification services, including drug and alcohol testing and parenting, and that he would provide documentation from his medical providers regarding his ability to care for Nicole. No agreement was reached as to mother’s reunification services.
At the adjudication and disposition hearing on April 3, 2007, the court sustained the amended petition based on the mediation agreement. Mother submitted evidence that she was participating in individual therapy and parenting programs. She requested a 30-day continuance of the disposition hearing, pursuant to section 358, subdivision (a)(3). The court asked what mother would show if granted the continuance. Counsel indicated mother would be able to show additional progress in her programs. The court denied the continuance, and proceeded to disposition as to Nicole. Mother testified, counsel argued, and the court then ordered no reunification services for mother. Services were ordered for Nicole’s father. Mother appeals from this order.
The disposition hearing for Gary was continued to May 17, 2007, for due diligence with respect to notifying Gary’s father. Following a contested disposition hearing on May 24, 2007, the court ordered no reunification services for mother or father as to Gary, and set a section 366.26 permanency planning hearing for him. Mother challenged that order by petition for writ of mandate, in case No. B199960. By written opinion filed August 28, 2007, this court denied the writ petition. As we shall explain, our determination in the writ proceeding informs our disposition of this appeal.
DISCUSSION
I
Mother claims, and the Department agrees, that the court erred in denying a continuance of the disposition hearing. When a child is found to be a person described by section 300, the court then proceeds to “hear evidence on the question of the proper disposition to be made of the child.” (§ 358, subd. (a).) If the Department recommends reunification services be denied pursuant to section 361.5, subdivision (b), “the court shall continue the proceedings for a period not to exceed 30 days. The social worker shall notify each parent of the content of subdivision (b) of Section 361.5 and shall inform each parent that if the court does not order reunification a permanency planning hearing will be held, and that his or her parental rights may be terminated within the timeframes specified by law.” (§ 358, subd. (a)(3), italics added; see also Cal. Rules of Court, rule 5.686(b).)
In this case, the Department recommended that reunification services be denied to mother. Under section 358, subdivision (a)(3), when the court adjudicated Nicole a dependent child, it was obligated to continue the disposition hearing for a period not to exceed 30 days. It was error for the court to deny mother’s request for a continuance.
No harm resulted from the error, however. Although the court denied the request for a continuance of Nicole’s disposition hearing, it continued the disposition hearing as to Nicole’s brother, Gary, to May 17, 2007 to satisfy notice requirements as to Gary’s father. The issue at Gary’s disposition hearing was identical to that at Nicole’s: whether reunification services should be denied to mother pursuant to section 361.5, subdivision (b)(10) and (11).
During the six weeks between Nicole’s disposition hearing and Gary’s hearing, mother had the opportunity to marshal additional evidence of her efforts to treat the problems that led to the removal of her older children, including any progress she had made in counseling and drug treatment during that extended period. Despite this additional time, mother was unable to show sufficient improvement to convince the trial court that she had made reasonable efforts to treat the drug problems which had led to the removal of and her failure to reunify with her older children. As we explained in denying her petition for writ of mandate in Gary’s case: “Mother made no effort to treat her drug problem for seven or eight years and then attended a drug program and drug counseling only when she was caught using drugs (the first time when Gary B. was born with methamphetamine in his system, and the second time when someone reported her drug use to DCFS). Mother did not self-report or ask for help in treating her drug problem. And during the period between the two programs, there is no evidence of other treatment. [I]n light of her long history of drug abuse, and the approximate decade that has passed since the removal of her other three children, her attendance of one drug program and one series of drug counseling sessions in response to DCFS involvement does not rise to the level of subsequent reasonable efforts.”
Even if the court had continued Nicole’s disposition hearing as required by section 358, subdivision (a)(3), we conclude beyond a reasonable doubt that a result more favorable to mother would not have been reached. (See Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387.) Any error in denying the continuance was harmless.
II
Mother claims the court erred in denying her reunification services because she had made reasonable efforts to treat the problems which led to the detention of her older children. Section 361.5, subdivision (b)(10) provides that reunification services may be denied if the court finds, by clear and convincing evidence, that it “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 or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) 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.” Subdivision (b)(11) provides that reunification 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 this parent is the same parent described in subdivision (a), 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.”
“A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence.” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) The evidence at the April 3, 2007 disposition hearing for Nicole was that her older siblings had been removed from mother’s care in 1996, based in part on mother’s drug abuse. (She lost custody of three other children in family law cases based on the same problem.) Mother testified that she had been abusing drugs “off and on” for 10 to 11 years. She also testified she had been clean and sober for “almost seven or eight years but I didn’t work a program. I didn’t have a support group or a sponsor.”
Although Gary was born in 2004 with drugs in his system, mother claimed she did not use drugs during her pregnancy, except “at the very last” when the father got out of jail and came to stay with her. She claimed she was clean and sober during the entire pregnancy “except the stupidity of that evening.” Mother testified that she completed a substance abuse program in February 2005, after Nicole and Gary were removed from her care. Nicole and Gary were returned to mother in early 2006. Mother testified that she was clean and sober for almost two years, until she tested positive in December 2006. She said she took drugs at that time because Gary’s father had raped her in May 2006, and she heard that he was back in town and had started calling her mother. According to mother, this was a five-day binge, which stopped when she was caught. This was the incident that gave rise to the present case. At the time of the hearing, mother was enrolled in three programs—parenting, drug counseling, and individual counseling.
This evidence shows that mother has a persistent problem with drug abuse that has extended over more than a decade. She portrays the problem as now being limited to a single evening mistake just before Gary’s birth or a few days of binging before she was caught in December 2006, claims which the court need not have credited. Most importantly, mother’s efforts to overcome her drug problem have been intermittent and unsuccessful. She admittedly did not enroll in any programs after her older children were removed from her care in 1996. The first drug program she entered was after Gary and Nicole were removed from her care in late 2004. They had been returned to her for less than a year before she was caught using in December 2006. She again enrolled in drug programs only after the children were removed. Mother’s lengthy history of drug abuse and her limited efforts to overcome the problem support the court’s conclusion that she had not yet made reasonable efforts to treat the problem which led to the removal of her older children.
III
Mother also argues that even if the court properly found she had not made reasonable efforts to treat the problems leading to the loss of her older children, it had discretion to order services when those services would benefit the child. (See Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) But mother makes no showing that it was in Nicole’s best interests to order those services.
Reunification services have been ordered for Nicole’s father, so the case will not proceed to permanency planning because of the denial of services to mother. Mother may continue to visit with Nicole, and she may participate voluntarily in drug, parenting, and other appropriate programs during father’s reunification period. If she makes substantial progress in addressing the problems giving rise to the removal of her children, she may seek a modification of the current orders under section 388 based on changed circumstances. We find no abuse of discretion in the court’s denial of reunification services to mother.
DISPOSITION
The order is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.