Opinion
NOT TO BE PUBLISHED
Original Proceedings; petition for extraordinary writ review, No. 82981-5, Jamileh Schwartzbart, Commissioner.
Katherine M. Fogerty, for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, A.P.J., Cornell, J., and Kane, J.
Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her infant son B.T.M. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is a 30-year-old woman with a long history of drug abuse. She first used marijuana, her drug of choice, at age six. She also has an extensive criminal history dating back to 1994.
As of the filing of the appellate record, petitioner had given birth to five children, a daughter and four sons, including B.T.M. In 1995, petitioner gave birth to her daughter A. who was exposed to cocaine and marijuana in utero. A. was taken into protective custody and petitioner was provided reunification services, including drug treatment. However, petitioner failed to comply and her parental rights to A. were terminated in 1998. In 2002, petitioner gave birth to a son E. while incarcerated. The juvenile court ordered reunification services, including substance abuse treatment. Petitioner was released from custody in March 2003 but rearrested in April 2003 after she tested positive for marijuana. Consequently, she was unable to participate in services. At the six-month review hearing in August 2003, the court terminated reunification services and, in May 2004, terminated petitioner’s parental rights as to E. In December 2003, while incarcerated, petitioner gave birth to a son L. This time the court denied her reunification services and, in October 2004, terminated her parental rights as to L. In March 2005, petitioner gave birth to a son B.M. She tested positive for marijuana at the time of delivery and admitted using marijuana throughout her pregnancy with him. The juvenile court detained B.M. and denied petitioner reunification services, which this court affirmed on appeal (F051215). In October 2007, the juvenile court terminated petitioner’s parental rights as well as those of B.M.’s father, B.M., Jr.
In June 2008, petitioner gave birth to her fourth and B.M., Jr.’s second son, B.T.M., the subject of this writ petition. The social services department (department) placed a hospital hold on him after petitioner tested positive for marijuana. Petitioner admitted ongoing use and stated to the social worker, “I smoke grass sometimes, what is wrong with that?” Upon his release from the hospital, B.T.M. was placed in foster care.
B.M., Jr. also filed a writ petition from these proceedings (F056546).
The juvenile court detained B.T.M. pursuant to a dependency petition alleging petitioner and B.M., Jr.’s continuing marijuana use placed B.T.M. at risk of neglect and ordered the department to arrange visitation and services for both parents. Services consisted of parenting classes, substance abuse and mental health evaluations, domestic violence assessments, and random drug testing. In July 2008, petitioner and B.M., Jr. waived their trial rights and the court adjudged B.T.M. a dependent child.
Over the course of the next four months, petitioner consistently visited B.T.M. and was loving and affectionate toward him. She completed a domestic violence assessment and mental health evaluation but was not referred for services. In addition, she enrolled in a parenting course. In June 2008, she began outpatient substance abuse treatment and attended three Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings each week. However, she tested positive for marijuana throughout July and August 2008. When confronted with the results, she denied they were the result of recent drug use. Instead, she claimed they were caused by the continuing release of THC, which she explained deposits in the fatty tissue. However, the substance abuse specialist (specialist) at the treatment program told the social worker there was no explanation for petitioner’s positive results other than ongoing marijuana use. The specialist also spoke to a pharmacist to make sure certain prescribed medications petitioner was taking did not affect the processing of THC from her system. The pharmacist stated they would not.
THC is the abbreviation for tetrahydrocannibol, the psychoactive substance in marijuana.
From late August through October 2008, petitioner tested negative for drugs. In October, she completed the primary phase of drug treatment and began the less intensive treatment phase. She was working on steps 4 and 5 of the 12-step program and obtained a sponsor. She also increased her attendance at NA/AA meetings to six times a week. According to her counselor, she was actively participating in treatment and doing exceptionally well. She complied with the terms of parole in October and was discharged. In addition, she completed her parenting course in November with perfect attendance.
Despite petitioner’s progress, however, the department recommended the court deny her reunification services under section 361.5, subdivision (b)(10), (11) and (13) because of her extensive drug use, resistance to treatment, and failure to make reasonable efforts to treat her drug problem after failing to reunify with her other children. The department also recommended the court deny reunification services to B.M., Jr. Further, the department reported B.T.M. had not established a significant bond with petitioner and B.M., Jr. For that reason, as well as the extensiveness and untreated nature of petitioner’s drug use, the department opined reunification would not serve B.T.M.’s best interest.
Petitioner and B.M., Jr. objected to the department’s recommendations and a contested dispositional hearing was conducted over several days in November 2008. Petitioner and B.M., Jr. argued their progress weighed in favor of providing reunification services.
Petitioner testified she participated in many drug treatment programs in the past. However, she believed this time was different because she was more committed to her sobriety. She also testified she had a home and all the necessities to take custody of B.T.M. She also claimed 120 days of sobriety, which county counsel challenged on cross-examination. Petitioner insisted she last used marijuana in June 2008, the day before B.T.M.’s birth. She claimed her positive drug tests after that were caused by the release of THC stored in her system and her use of steroids. She testified she was last released from custody in September 2007. After that, she sought help for her drug abuse from her parole agent but was told she needed to contact the department. She did not have the money to pay for services herself but attended church and meetings.
At the conclusion of the hearing, the juvenile court denied petitioner reunification services under section 361.5, subdivision (b)(10) and (11). The court disbelieved petitioner’s testimony she discontinued drug use after B.T.M.’s birth and found it significant she continued to use marijuana while participating in services. Further, the court rejected petitioner’s argument she should not be denied reunification services under section 361.5, subdivision (b)(10) and (11) because she made reasonable efforts to treat her drug problem. The court also denied B.M., Jr. reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Denial of Reunification Services under Section 361.5, subdivision (b)(10) and (11)
Petitioner contends the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(10) and (11) because she made reasonable efforts to resolve her drug abuse. We disagree.
The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent unless the court finds by clear and convincing evidence one of 15 exceptions set forth in section 361.5, subdivision (b), applies. Subdivision (b)(10) of section 361.5 authorizes the denial of reunification services if the court finds,
Even if the court finds section 361.5, subdivision (b)(10) or (11) applies, it has discretion to order reunification services if it determines, by clear and convincing evidence, that reunification is in the child’s best interest. (§ 361.5, subd. (c).) Petitioner does not contend the juvenile court abused its discretion by failing to order reunification services notwithstanding the applicability of section 361.5, subdivision (b)(10) and (11).
“[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent … failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent … and that 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 .…”
Subdivision (b)(11) of section 361.5 is similar in that it authorizes the denial of reunification services to a parent whose parental rights have been “permanently severed” as to a sibling or half sibling of the child and that parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling.”
Petitioner does not dispute the first prong of either subdivision (b)(10) or (11) of section 361.5 has been satisfied nor could she. The juvenile court terminated her reunification services for A. and E. and her parental rights to A., E., L., and B.M. because she failed to reunify with them. Rather, petitioner contends the juvenile court erred in not concluding her successful participation in the services provided subsequent to B.T.M.’s detention supported a finding she made subsequent reasonable efforts to address her drug abuse.
We review the court’s determination of whether reasonable efforts were made in the light most favorable to the judgment below to determine whether the decision is supported by substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In this case, we conclude that it is.
While every effort should be made to save a parent’s relationship with a child despite the parent’s history of substantial misconduct (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464), the “no-reasonable effort” clause was not intended to provide a parent such as petitioner another opportunity to address an underlying problem when she had many opportunities and failed to do so. (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.) Rather, it was intended to mitigate an otherwise harsh result in the case of a parent who, having failed to reunify, subsequently worked toward correcting the underlying problem. (Id. at p. 842.)
In this case, petitioner had the opportunity after the removal of A. and E. to participate in drug treatment and discontinue her use of drugs. However, she continued her drug use. As a consequence, the juvenile court terminated her reunification services as to both children, the last incident occurring in 2003. Despite losing her chance to reunify with A. and E. and ultimately losing her parental rights to them, petitioner continued to use marijuana as evidenced by her use of marijuana during her pregnancies with B.M. and B.T.M. Those facts support the juvenile court’s finding petitioner failed to make subsequent reasonable efforts to resolve her drug abuse and its order denying her reunification services under section 361.5, subdivision (b)(10) (subdivision (b)(10)).
Having concluded substantial evidence supports the juvenile court’s denial of services under subdivision (b)(10), we need not review the court’s order denying petitioner reunification services under section 361.5, subdivision (b)(11) (subdivision (b)(11)). Nevertheless, were we to review it, we would affirm it as well based on the same reasoning. Just as petitioner’s ongoing drug use triggers the “no reasonable effort” clause under subdivision (b)(10), it also triggers it under subdivision (b)(11). In either case, we find no error on this record.
In re Harmony B. (2005), supra, 125 Cal.App.4th 831 analyzes section 361.5, subdivision (b)(10) but the “reasonable effort” language is the same as in subdivision (b)(11).
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.