Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate. Sherri Sobel, Juvenile Court Referee. Petition denied.
Law Offices of Katherine Anderson, Victoria Doherty and John Reilly, for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Real Party in Interest.
Children’s Law Center of Los Angeles, Diane Coto and Sophia Ali, for Minors.
MANELLA, J.
Petitioner Kalee K., mother of Michelle and Moses K., seeks reversal of the juvenile court’s dispositional order denying petitioner family reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(10), (b)(11) and (b)(13), and setting the matter for a section 366.26 hearing to consider termination of parental rights on March 5, 2008. The attorney for the children joins respondent Department of Children and Family Services (DCFS) in opposition. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, petitioner’s two older children, Matthew D. and Marshall D., were placed under dependency jurisdiction due to drug abuse on the part of petitioner and the children’s father, Hector D. The two boys had been removed from petitioner’s custody after voluntary family maintenance and family preservation services failed to resolve her addiction to drugs. On July 29, 2004, petitioner’s parental rights over Matthew and Marshall were terminated.
The two boys were ultimately adopted by their paternal grandparents in 2006.
Petitioner gave birth to Michelle in 2004 and Moses in 2006. She was not under the influence of drugs when she gave birth. She obtained appropriate housing and at first, appeared to be meeting the children’s basic needs. In February 2007, the caseworker visited the family’s home, assessed the minors’ situation, and found no immediate safety threats. The home was clean, there was food available, petitioner was not under the influence of drugs, and the caseworker found no drugs or drug paraphernalia in the home. But petitioner admitted she had relapsed after a year of sobriety and had used drugs earlier. She told the caseworker she was tired of using drugs and wanted to remain substance free. She also told the caseworker she had obtained a temporary restraining order against Hector.
The caseworker’s reports stated that the visit was triggered by “a referral.” Petitioner testified at the disposition hearing that the visit occurred because she requested DCFS intervention to help with her drug problem.
One report states that petitioner admitted using drugs three days earlier, another reports states that petitioner “relapsed back into drug use about 6 months ago.”
Initially, petitioner reported Hector was the father of Michelle and Moses. Subsequently, she reported that Anthony R. was the father of Michelle. At the disposition, the court denied both men presumed father status. Neither is a party to this appeal.
In March 2007, petitioner and DCFS entered into a voluntary family maintenance plan. Under the plan, petitioner agreed to attend a substance abuse program and parenting classes, to undergo counseling, and to participate in random drug testing. At the end of July, the caseworker visited petitioner’s home to check petitioner’s progress. When granted access by another adult, the caseworker found petitioner hiding in a closet. Petitioner said she did not want to talk to the caseworker because she was not in compliance with the voluntary agreement and had not been for the entire five-month period. The caseworker investigated further and found no food in the house for the minors and that petitioner was not in compliance with any aspect of the voluntary program. The next day, petitioner tested positive for methamphetamine and marijuana. A few days later, at a team decision making meeting led by the caseworker, petitioner promised to begin a substance abuse program the next day. DCFS detained the children and placed them in a foster home. The petition for jurisdiction was filed on August 13, 2007. At the detention hearing that same day, the court ordered drug treatment for petitioner with individual counseling and random testing.
Prior to that, petitioner had missed a number of scheduled drug tests.
In the August 30, 2007 report prepared for the jurisdiction/disposition hearing, the caseworker reported that petitioner had been enrolled in a substance abuse program for approximately three weeks and appeared to be doing well. She was once again pregnant. The caseworker expressed concern that petitioner’s father, a long-time substance abuser who continued to smoke marijuana, had begun living with her. In addition, petitioner had arrived late for two visits with the children. The report noted that the case met the criteria for denial of reunification services under section 361.5, subdivision (b)(11). Nevertheless, DCFS recommended that reunification services be provided to petitioner for six months.
Petitioner herself had been a dependent child as the result of her mother’s substance abuse and an absentee father.
Petitioner failed to appear at the August 30, 2007 combined jurisdiction/disposition hearing. The court continued the hearing to September 19, for a contest. In the interim, the court ordered DCFS to continue to provide reunification services.
In September 2007, the caseworker learned that petitioner’s drug test for August 22, 2007 had shown a sharply higher THC level, which was interpreted to mean that she had used marijuana shortly before the test. The caseworker also learned that petitioner had missed a drug test and had reduced attendance at her substance abuse program to once a week or less. In addition, she continued to arrive late to visits with the children. On September 12, petitioner’s counselor at Atlantic Recovery Services recommended that petitioner enter an in-patient program. On September 19, DCFS filed a last-minute information for the court. In it, the recommendation regarding reunification services was changed to a request that they be denied. The court continued the jurisdiction/disposition hearing to November, requesting a supplemental report from DCFS. DCFS was again ordered to continue to provide reunification services to petitioner.
Prior tests had been positive for THC, but this was apparently attributed to the lingering presence of the substance in those who had used marijuana in the past.
The supplemental report, dated November 1, 2007, reported that petitioner had six negative drug test reports for the period between September 19 and October 9, but the testing had been done by the substance abuse program rather than the facility to which DCFS had referred her. Petitioner continued to arrive late for visits with the children and had missed one visit entirely without having called to cancel. She had not entered the in-patient substance abuse program her counselor had recommended in September. She was, however, attending a program that met for two hours every evening. Based on her failure to test at the approved facility and her late arrivals for visits with the children, the caseworker concluded “[petitioner] is picking and choosing what she will comply with, and ignoring whatever she doesn’t want to do.” DCFS continued to recommend no reunification services.
At the contested jurisdiction/disposition hearing on November 8, 2007, the court found the following allegation to be true: “[Petitioner] has a five[-]year history of substance use and is a recent user of methamphetamine, amphetamine, and marijuana which limits [her] ability to provide the children with regular care and supervision. Further, [petitioner] had a positive toxicology screen for methamphetamine, amphetamine, and marijuana on 7/31/07. Further the children’s siblings . . . received permanent placement services due to [petitioner’s] substance use. [Petitioner’s] illicit drug use . . . places the children at risk of harm.”
Immediately following its finding on jurisdiction, the court asked the attorney for DCFS which statutory provisions supported its recommendation that reunification services not be provided. Counsel identified subdivisions (b)(10), (b)(11), and (b)(13) of section 361.5. The court ruled that petitioner fell within all those subdivisions and that she, therefore, had the obligation to prove by clear and convincing evidence why it would be in the children’s best interests to provide reunification services. (See § 361.5, subd. (c).) Counsel did not object, but proceeded to put on a case for reunification.
Called to the stand by her attorney, petitioner testified that she continued to have a relationship with her older children, who had been adopted by their paternal grandmother, and saw them almost every day. She made sure they were enrolled in school, helped them with their homework, taught them English, and occasionally provided support. She voluntarily referred her family to DCFS in 2007 because she wanted help with her drug problem. She stopped attending the initial program after one and one-half months due to the expense. She admitted using methamphetamine and marijuana prior to the July 31 positive drug test and using marijuana once after that. She said she used marijuana for the last time before she began the program with Atlantic Recovery Services and that she began the program the day after the children were detained. The program included individual counseling, group counseling, and parenting classes. She attended the program every day. She was tested for drugs twice a week at the program.
Petitioner’s counselor, Diane Kemp, testified that petitioner was in an intense recovery program that required four clinical group sessions, one individual counseling session, three 12-step meetings, and two random drug tests per week. The counselor believed petitioner was taking the program seriously and making progress. The counselor further believed petitioner would need more than six months to complete the program.
DCFS presented no witnesses or evidence other than that contained in the reports. Its attorney argued that based on petitioner’s history, provision of reunification services was not warranted. The attorney for the children agreed.
The court found that although petitioner presented evidence of doing well in her new program, proof of successful completion of approximately 60 days of a substance abuse program was insufficient to meet her burden of establishing that provision of reunification services would be in the best interests of the children. The court noted the bad choices petitioner had made and continued to make, including becoming pregnant by three different men within a short period of time and testing positive for drugs during her most recent pregnancy. On the evidence presented, the court did not “have confidence that [petitioner] can make the decisions necessary to make her a proper parent.” The court then scheduled a section 366.26 hearing for March 5. Petitioner’s counsel asked which particular provisions of section 361.5, subdivision (b) applied, and the court replied “all three.”
DISCUSSION
Although reunification of dysfunctional families is a fundamental goal of dependency law, section 361.5 permits the court to deny reunification services to a parent under a variety of circumstances, including: (1) where “the court ordered termination of reunification services for any siblings or half sibling of the child because the parent . . . failed to reunify with the sibling or half sibling” and the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . .” (subd. (b)(10)); (2) where “the parental rights of a parent over any sibling or half sibling of the child had been permanently severed” and the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . .” (subd. (b)(11)); and (3) where “the parent . . . 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 . . . on at least two prior occasions, even though the programs identified were available and accessible” (subd. (b)(13)).
If the court finds that a parent falls within one of these categories -- a finding that must be made by “clear and convincing evidence” (§ 361.5, subd. (b)) -- the court “shall not order reunification” unless it also finds by clear and convincing evidence “that reunification is in the best interest of the child” (subd. (c)). Here, the juvenile court found that petitioner fell under these provisions and that she failed to establish that reunification would be in the best interest of the children. Petitioner contends the juvenile court’s determination that she fell under these provisions was procedurally defective and not supported. We agree that the evidence did not support that petitioner fell under subdivision (b)(13), but otherwise reject petitioner’s contentions.
1. Failure to Hold Separate Hearing and Make Express Findings
Preliminarily, petitioner asserts a procedural argument. She notes that after making its jurisdictional findings, the court immediately found that petitioner fell under subdivisions (b)(10), (b)(11), and (b)(13) of section 361.5 without further hearing or argument, and contends this represented a “summar[y] determin[ation]” that “violated [her] due process rights.” She further contends “the court failed to delineate under which subsections [it] was denying family reunification services and how they were applicable in this case.” She argues that this must mean the court failed to apply the “two . . . prong analysis mandated by the statute.”
We do not construe petitioner’s argument as a challenge to the constitutionality of section 361.5, subdivision (b). To the extent petitioner is contending that this provision represents an unconstitutional shifting of the burden of proof onto the parent to prove the benefit of reunification services, that issue has been addressed and resolved by numerous courts in favor of the provision’s constitutionality. (See, e.g., In re Joshua M. (1998) 66 Cal.App.4th 458, 473 [“subdivision (b) represents a reasonable and rational means to advance a prime purpose of juvenile court law -- providing protection and stability to dependent children in a timely fashion -- by efficiently allocating scarce reunification services”]; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 [“Experience has shown that with certain parents . . . the risk of recidivism is a very real concern. Therefore, when another child of that same parent is adjudged a dependent child, it is not unreasonable to assume reunification efforts will be unsuccessful.]; In re Christina A. (1989) 213 Cal.App.3d 1073, 1079-1080 [“The stated purpose of section 361.5, subdivision (b) is to exempt from reunification services those parents who are unlikely to benefit. This purpose is related to that of the juvenile law itself -- to ensure the well-being of children whose parents are unable or incapable of caring for them by affording them another stable and permanent home within a definite time period. . . . [¶] It is apparent that section 361.5, subdivision (b) bears a rational relation to these purposes. It is reasonable for the state, before expending its limited resources for reunification services, to distinguish between those who would benefit from such services and those who would not.”].)
It is true that the court issued its ruling on the applicability of section 361.5, subdivision (b) without inviting counsel to present evidence or argument on whether petitioner fell under the specified subsections. Moreover, although the court found that petitioner fell under subdivisions (b)(10), (b)(11) and (b)(13), neither on the record nor in its order did it state that it made the finding by clear and convincing evidence or recite specific facts in support of such finding. However, the DCFS reports contained abundant evidence describing petitioner’s behavior since February 2007, including her problems with substance abuse and her unsuccessful efforts at treatment. The reports also contained DCFS’s recommendation, based on this evidence, that the court find petitioner was not entitled to reunification services. When the court announced its ruling in favor of DCFS on this point, counsel for petitioner did not object or seek to present additional evidence or argument. Accordingly, DCFS’s contention that petitioner waived this contention is well taken. (See In re Anthony P. (1995) 39 Cal.App.4th 635, 640-641.) Moreover, for the reasons set forth below, we conclude the outcome would have been no different had the court conducted proceedings and rendered its findings in a more formal fashion. Therefore, any procedural anomalies did not prejudice petitioner or require reversal.
Section 361.5, subdivision (a), sets forth the general rule that “whenever a child is removed from a parent’s . . . custody, the juvenile court shall order [DCFS] to provide child welfare services to the child and the child’s mother and statutorily presumed father . . . .” For the subdivision (b) exception to apply, the court must “find[], by clear and convincing evidence” that the parent falls under one or more of the enumerated subsections. (§ 361.5, subd. (b).) The statutory language does not require express findings, and we are aware of no authority for the proposition that failure to expressly set forth factual findings on the record to support denial of reunification services under section 361.5, subdivision (b) constitutes error. (Compare § 361.2, subd. (c) [requiring court to make findings “either in writing or on the record of the basis for its determination” when it removes minor from parents or places child in custody of offending parent] and California Rules of Court, rule 5.695(f)(5)(F) [“court must specify on the record the basis for the finding that the child suffered severe sexual abuse or the infliction of severe physical harm” under subd. (b)(6)].) We need not resolve whether an express finding on the record is required prior to denial of reunification services under section 361.5, subdivision (b), because a juvenile court’s failure to make necessary findings is harmless where the appellate court can determine from the record that it is not reasonably probable such findings would have been in favor of the parent. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218; accord, In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, overruled on other grounds in Renee J. v. Superior Court (2001)26 Cal.4th 735; see, e.g., In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [failure to make express finding did not prejudice parents and evidence amply supported court’s determination].) Accordingly, we apply that standard to our review of the facts here.
In In re Albert T. (2006) 144 Cal.App.4th 207, the court stated that “[g]iven the importance of reunification services in the dependency system,” it had “considerable doubt as to the propriety of implying findings from an otherwise silent record to justify denial of those services.” (Id. at p. 219.) The court stopped short of holding that express findings were required.
2. Applicability of Subdivision (b)(13)
Part one of section 361.5, subdivision (b)(13) applies only where the parent has “resisted prior court-ordered treatment” during the three-year period prior to filing the petition. Here, the record contains evidence that petitioner and her older children were the subject of a prior dependency proceeding due to her abuse of drugs. However, there was no evidence of any formal order by the court to undergo treatment. Absent evidence of “prior court-ordered treatment,” the court could not have found that petitioner fell under the first part of subdivision (b)(13).
DCFS’s brief misquotes the language of subdivision (b)(13), omitting the words “court-ordered” that were inserted between “prior” and “treatment” in 2002. (Stats. 2002, ch. 918, § 7.)
Although more than three years had passed between the termination of the prior dependency proceeding and the initiation of the current proceeding, petitioner’s “resistance” to treatment -- had such treatment been ordered -- might have occurred within the requisite time period. (See Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 [where neither order nor attendance at treatment program occurred within three years of current petition, subdivision (b)(13) nevertheless applied because parent “evidenced behavior that demonstrated resistance to . . . rehabilitation” during that period, including “resumption of regular drug use after a period of sobriety”]; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [parent’s failure to maintain long-term sobriety after completion of rehabilitation programs considered resistance to treatment].)
The second part of subdivision (b)(13) applies when the parent “has failed or refused to comply with a program of drug or alcohol treatment described in the case plan . . . on at least two prior occasions.” The second part of subdivision (b)(13) also comes into effect only where “the programs [were] components of prior reunification plans recommended [by the caseworker] pursuant to section 358.1 and subsequently ordered by the juvenile court in formal dependency proceedings.” (Laura B. v. Superior Court, supra, 68 Cal.App.4th at p. 779, fn. 3.) Here, the absence of evidence of a formal order in the prior proceeding precludes a finding that petitioner fell under either part of subdivision (b)(13).
3. Applicability of Subdivisions (b)(10) and (b)(11)
Subdivisions (b)(10) and (b)(11) of section 361.5 are triggered by two findings. The first is that the parent has undergone termination of reunification services (subd. (b)(10)) or termination of parental rights (subd. (b)(11)) in a proceeding involving a sibling of the children who are the subject of the current case. There is no dispute that this occurred in the instant case. The second is that the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling . . . .” (§ 361.5, subd. (b)(10), (b)(11) Whether a parent has made a “reasonable effort” under the statutory definition depends on the vigor of the attempt and does not require proof of success or even necessarily progress. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99.) “‘[R]easonable effort to treat’ is not synonymous with ‘cure.’” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) “The mere fact that [the parent] had not entirely abolished her drug problem would not preclude the court from determining that she had made reasonable efforts to treat it.” (Ibid.) A “brief relapse” or “setback” followed by immediate resumption of treatment does not necessarily prove lack of effort. (Laura B. v. Superior Court, supra, 68 Cal.App.4th at p. 780.) On the other hand, “lackadaisical or half-hearted efforts” are not indicative of reasonable effort. (Cheryl P. v. Superior Court, supra 139 Cal.App.4th at p. 99.)
Here, clear evidence supports the court’s implied finding that petitioner had not made a reasonable effort to treat the problem that led to removal of her older sons. Although petitioner was apparently able to keep herself drug free for limited periods, such as prior to the birth of Michelle and Moses, there was no evidence that she underwent or attempted any treatment during the period between July 2003, when parental rights over her older children were terminated, and February 2007, when she contacted DCFS. Petitioner’s decision at that point to approach DCFS for assistance was an admirable one. However, other than her testimony that she attended a drug treatment program for a brief period, there is no evidence that she complied with any aspect of the voluntary maintenance plan to which she agreed. She admitted as much in July, when the caseworker arrived to find no food in the house and petitioner hiding in the closet. Her July 31 drug test was positive for both methamphetamine and marijuana. That test was preceded by a number of missed drug tests, which the court could properly presume would have been positive.
Despite her lack of effort, petitioner was given another chance after the children were detained. Petitioner began attendance at a treatment program and DCFS recommended in its August 30, 2007 jurisdiction/disposition report that reunification services be provided. However, within weeks, her TCH levels -- which had always tested high during this period -- shot up and her program attendance slacked off. It was only after DCFS filed the last minute information on September 19, recommending cessation of reunification efforts, that petitioner began attending her program and undergoing drug testing more regularly. As the court found, this represented a mere 60 days of effort. To determine reasonableness of effort, the 60 days must be measured against her years of drug usage and failure to undergo any type of treatment. The conclusion that petitioner had not made a reasonable effort to rectify the problem that led to the removal of Matthew and Marshall in the many years since her parental rights over them had been terminated was amply supported.
Once the court found that petitioner fell under one or more subdivisions of section 361.5, subdivision (b), it was not required to order reunification services unless petitioner established by clear and convincing evidence that reunification was in the best interests of the minors. Given petitioner’s long history of drug abuse and her continued use of drugs during the pendency of the current proceedings despite her latest pregnancy, it is not surprising that the court was unable to make such finding.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.