Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J39964
RIVERA, J.
S.P., the father of R.M., appeals from the order denying him reunification services. He contends that the court erred in bypassing reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10). We affirm.
All further statutory references are to the Welfare and Institutions Code.
I. FACTUAL BACKGROUND
On February 5, 2010, the Solano County Department of Social Services (the Department) filed a section 300 petition alleging that father had failed to protect R.M., age 4, due to father’s history of substance abuse including drug-related arrests and positive tests for methamphetamine. The petition further alleged that on February 3, 2010, father was arrested for having drug paraphernalia and methamphetamine in his possession. Father was with R.M. at the time of his arrest. The petition also alleged that R.M.’s half sibling was currently a dependent of the court in out-of-home placement, and that father had failed to reunify with the half sibling due to his domestic violence history and ongoing criminal activity. The petition was filed in response to father’s arrest. As an incident to that arrest, father’s car was searched pursuant to the conditions of his probation. The police found a small pouch containing approximately half a gram of methamphetamine and drug paraphernalia, including one pipe containing methamphetamine that appeared ready for use. R.M. was in the backseat of the car; there was no car seat for him. Father reported that he had custody of R.M. because mother was homeless and unable to care for him. The Department, however, was also aware that father had an open child welfare services case for another son. R.M. was taken into protective custody. The Department was in the process of assessing the maternal grandparent’s home for placement.
The police initially detained father in the course of an investigation concerning his attempt to cash a fraudulent check.
Father was on probation for burglary and vandalism charges.
On February 24, 2010, parents waived their right to a jurisdictional hearing. On March 1, 2010, R.M. was placed in the home of the maternal grandmother.
The Department’s report for the dispositional hearing stated that the 18 month review hearing in R.M.’s half sibling’s case was held on March 30, 2010. The court in that case terminated father’s reunification services because he was not in compliance with his case plan. The report also indicated that R.M. had been the subject of a previous section 300 petition in 2006 following allegations that he suffered injuries that were non-accidental. Jurisdiction in that case was terminated after mother completed 12 months of reunification services and transitioned to a family maintenance plan. Father was not offered reunification services in that case.
The report further noted that mother was unable to provide for R.M.’s needs as she is often homeless and has a long history of mental health issues, and that father was incarcerated due to a probation violation. Mother, however, was cooperative with the Department, had a strong relationship with R.M. and was determined to reunify. The Department recommended reunification services for her.
As to father, the Department reported that he had a long history of substance abuse and domestic violence, and that although he completed a substance abuse treatment program, he continued to test positive for drugs and was recently arrested for possession of methamphetamines and drug paraphernalia. Finally, the report stated that defendant was offered 18 months of reunification services in R.M.’s half sibling’s case, but was unable to reunify and the court terminated services. The Department recommended that reunification services not be offered to father as section 361.5, subdivision (b)(10) was applicable. It indicated that father was unable to rehabilitate from his long standing substance abuse, was not currently participating in drug treatment services, continued to engage in criminal activity, and the issues surrounding his substance abuse that were present in R.M.’s half sibling’s case continued to exist.
On April 7, 2010, the court ordered reunification services for mother, but continued the case for father because he was incarcerated. On April 28, 2010, the matter was continued for a contested disposition hearing with regard to father. On June 14, 2010, father’s counsel informed the court that father had been sentenced to state prison for 16 months.
The disposition hearing was held on July 27, 2010. Father was in prison and waived his appearance. The Department’s social worker confirmed her recommendation that father not be offered reunification services. She testified that father was unable to reunify with R.M.’s half sibling despite having 18 months of reunification services. She further testified that father continues to struggle with substance abuse issues. As far as his compliance with the reunification plan in R.M.’s half sibling’s case, he completed a drug treatment program, but had tested positive for methamphetamine on November 13 and 23, 2009, and December 7, 2009. He also failed to drug test on January 12 and 19, 2010. He did not provide attendance slips for NA and AA meetings. The court took judicial notice of the fact that the petition in this case was filed before father’s reunification services in R.M.’s half sibling’s case were terminated.
In argument, counsel for the Department urged the court to apply the bypass provisions of section 361.5, subdivision (b)(10) because father failed to reunify with R.M.’s half sibling after 18 months of services and the issues that brought him before the court in that case – drug abuse and incarceration – are the same issues in this case. Counsel for father argued that the bypass provision did not apply because the court must find that the parent has not subsequently made reasonable efforts to treat the problems that led to the removal and since services to R.M.’s half sibling were not terminated until March 2010, he had no time subsequent to that termination when he was not incarcerated and able to make efforts to treat his substance abuse problems. The court took the matter under submission. On August 5, 2010, the court denied father reunification services pursuant to the bypass provisions of section 361.5, subdivision (b)(10).
We grant the Department’s motion to augment the record on appeal to include the court’s corrected findings and order after the dispositional hearing.
II. DISCUSSION
Father contends that the court erred in bypassing reunification services pursuant to section 361.5, subdivision (b)(10). He argues that there is no substantial evidence that he did not make a reasonable effort to resolve his problems because, due to the overlap between the dependency proceedings for R.M. and his half sibling, father had no time to attempt to do so. We conclude that the record fully supports the court’s finding.
“ ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ [Citations.] ‘ “If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed....” ’ ” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
In order to deny reunification services to a parent under subdivision (b)(10) of section 361.5, the court must find 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 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.” (§ 361.5, subd. (b)(10), italics added.)
“ ‘ “Section 361.5 [, subdivision (b)] reflects the Legislature’s desire to provide services to parents only where those services will facilitate the return of children to parental custody.” ’ ” (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1269–1270.) “When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be ‘ “an unwise use of governmental resources.” ’ [Citations.]” (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112.)
Father acknowledges that the first requirement of section 361.5, subdivision (b)-previous termination of reunification services-is established by the evidence. The issue before us is whether father made a reasonable effort to correct the problems that led to the removal of R.M.’s half sibling. (§ 361.5, subd. (b)(10); Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 97 (Cheryl P.))
“The ‘no reasonable effort’ clause provides a means of mitigating a harsh rule that would allow the court to deny services based only upon the parent’s prior failure to reunify with the child’s sibling ‘when the parent had in fact, in the meantime, worked toward correcting the underlying problems.’ [Citation.]” (Cheryl P., supra, 139 Cal.App.4th at p. 97.) The reasonable effort to treat standard “is not synonymous with ‘cure.’ The mere fact that [the mother] had not entirely abolished her drug problem would not preclude the court from determining that she had made reasonable efforts to treat it.” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
There is some disagreement in the courts concerning the reasonable effort to treat standard when a case involves the almost simultaneous termination of services in the sibling’s case and the application of the bypass provision in the new case. In Cheryl P., the court held that the statutory language in section 361.5, subdivision (b)(10) refers to the parent’s efforts made since removal of the sibling in the new case. (Cheryl P., supra, 139 Cal.App.4th at p. 98.) While in In re Harmony B. (2005) 125 Cal.App.4th 831, 842-843, the court held that “[w]hen... the two proceedings occur in immediate proximity, the trial court required finding under the ‘no-reasonable effort’ clause is a formality because the parent’s circumstances necessarily will not have changed.” The court reasoned that any other interpretation of the statute would be unworkable. (Id. at p. 843, fn. 5.) “In our view, the statute was amended to provide a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings; it was not amended to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so.” (Id. at p. 843.)
While we can envision a scenario under which, like here, the two dependency proceedings overlap and the parent is demonstrating a reasonable effort to ameliorate the conditions that resulted in the child’s removal, this is not such a case. Rather, the record demonstrates that despite completing a substance abuse treatment program during the half sibling’s dependency, father continued to test positive for methamphetamine in late 2009, and then in January 2010, he failed to drug test. Shortly thereafter, on February 3, 2010, he was arrested and found in possession of methamphetamine, the incident that served as the basis for the filing of the petition in this case. While reunification services were not terminated in R.M.’s half sibling’s case until March 30, 2010, the record demonstrates that father failed to address the substance abuse and criminal activity issues that resulted in R.M.’s half sibling’s dependency. To the contrary, although he was granted an additional six months of services in the half sibling’s case, he failed to address his long standing substance abuse issues resulting in his arrest and current incarceration. It would have been “fruitless” and “an unwise use of governmental resources” for the court to have provided reunification services under the circumstances. (See In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
Finally, father argues that notwithstanding the court’s denial of reunification services under section 361.5, subdivision (b)(10), the court should have ordered services under section 361.5, subdivision (c) because they would be in R.M.’s best interests. “Section 361.5, subdivision (c) prohibits the court from ordering reunification for a parent who, like [father], ” falls within one of the enumerated exceptions of subdivision (b), “ ‘unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.’ ” (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123.)
Here, father not only was not entitled to reunification services under the bypass provision of section 361.5, subdivision (b)(10), the record contains substantial evidence that reunification would not be in the best interests of R.M. The burden of affirmatively demonstrating that reunification is in the best interests of the child is upon the parent. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) Here, given father’s history of substance abuse and criminality, and his failure to address those issues, it was not in the best interests of R.M. to further prolong the dependency process to provide reunification services to father.
III. DISPOSITION
The order is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.