Opinion
F082065
02-25-2021
L.N., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Juvenile Law Center and Nichole M. Verville for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 01CEJ300383-4)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary L. Green, Commissioner. Juvenile Law Center and Nichole M. Verville for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
Before Franson, Acting P.J., Smith, J. and DeSantos, J.
-ooOoo-
At a contested jurisdictional and dispositional hearing in November 2020, the juvenile court adjudged now nine-month-old M.M. a dependent child under Welfare and Institutions Code section 300, subdivisions (b)(1) and (j), ordered her removed from her mother, L.N. (mother), under section 361, subdivision (c)(1) and set a section 366.26 hearing on March 9, 2021. Mother contends the evidence was insufficient to support the court's findings and orders and seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) vacating the section 366.26 hearing and directing the juvenile court to terminate dependency jurisdiction and return M.M. to her custody, return M.M. to her custody with family maintenance services or order family reunification services. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Mother has an extensive child welfare history, involving multiple children and overlapping dependency cases. In December 2000, mother's then eight-month-old son, Christopher, was taken into protective custody after she was arrested for petty theft and violating probation. She was using cocaine and marijuana and exhibiting mental health problems. She was involuntarily detained after she was found running naked in the street, holding Christopher and talking about giving him tranquilizers. (§ 5150.) She was ordered by the juvenile court to complete drug treatment and a mental health assessment but did not comply. In January 2001, mother gave birth to B.B. at 25 weeks gestation and tested positive for cocaine. B.B. was placed with a relative while mother received residential drug treatment. However, mother was noncompliant. In March 2002, the court terminated mother's reunification services for Christopher and in June 2002, denied mother reunification services for B.B. The juvenile court terminated her parental rights as to both children in 2003.
In May 2016, then one-year-old T.S. was removed from mother's custody after mother was observed carrying T.S. like a football, yanking her arm, leaving her on the sidewalk while she walked across the street and asking strangers to give her and T.S. a ride. In October 2016, the juvenile court adjudged T.S. a dependent and allowed mother to retain custody of her while participating in family maintenance services, which included inpatient drug treatment. Mother was also on probation, a condition of which required her to complete a substance abuse program. Mother successfully completed treatment, transitioned into sober living with T.S. and moved in with her family. However, in February 2017, she tested positive for methamphetamine, cocaine and benzoylecgonine. Mother agreed to attend outpatient substance abuse treatment under a plan of family maintenance. Dependency was dismissed in October 2017.
On July 15, 2019, then four-year-old T.S. was removed from mother a second time after law enforcement found mother acting erratically. She was speaking very rapidly, unable to stay still, making incoherent statements and refusing to hand T.S. over to the officers. Mother was medically evaluated at the scene and involuntarily detained. (§ 5150.) She initially admitted using methamphetamine while caring for T.S. but subsequently denied it. She accused the social worker of kidnapping T.S. and reminded him she was " 'only one step away from being crazy.' " The juvenile court ordered T.S. detained, finding prima facie evidence mother's mental health and substance abuse placed T.S. at a substantial risk of harm. Mother was offered random drug testing pending the disposition of the case. She participated in drug testing and tested positive for marijuana from July to September 2019 and for creatinine from January through May 2020. The presence of creatinine at those levels indicated to the department mother was flushing drugs from her system prior to drug testing. The department considered the positive results for creatinine to be positive drug test results. She completed outpatient substance abuse treatment in December 2019 but refused to participate in mental health therapy. She was referred to a therapist because of her history of involuntary detentions but declined to complete the assessment and denied symptoms of anxiety and/or depression. She told the therapist she was released from involuntary detention in July 2019 without a psychiatric diagnosis or psychotropic medication. Mother completed a parenting class in January 2020 and enrolled in a class for women who experienced trauma.
Despite mother's efforts, the department advised against providing her reunification services for T.S. Although she had a good relationship with T.S. and interacted well with her, mother made bizarre statements to the staff during a visit in July 2019. She said she had a 23-year-old daughter who was hit by a train. She also said she paid $1,000 a week for shots so that she could get pregnant with T.S., who she said died when she was two months old. T.S. meanwhile was in a stable placement and doing well there. She was afraid of mother and did not want to reunify with her. A contested jurisdictional/dispositional hearing was set in her case for July 27, 2020.
Mother gave birth to M.M. in May 2020. She and the baby were discharged together from the hospital. Concerned for the baby's safety, a social worker and a police officer conducted a welfare check on then four-day-old M.M. at mother's apartment. Mother initially resisted allowing them access to the baby or her apartment. However, she had a room dedicated to the baby and ample supplies and clothes as well as a playpen and car seat.
Mother denied current drug or alcohol abuse, stating she attended Narcotics Anonymous meetings and tested for the department. She denied any history of domestic violence or mental health problems or being on probation or parole. M.M.'s alleged father, Eugene M., was present during the social worker's visit. He also denied being on probation or parole. The social worker advised the parents a social worker would follow up with them the following week. Meanwhile, the department ascertained that Eugene was on parole and mother had an active warrant for her arrest for petty theft and was in violation of probation.
On June 3, 2020, the department took M.M. into protective custody and placed her with a paternal aunt. The department filed a dependency petition on her behalf, alleging under section 300, subdivision (b) mother's mental health problems and substance abuse placed M.M. at a substantial risk of harm. As factual support, the department cited mother's mental state on July 15, 2019, the day T.S. was removed from her custody, alleging she was speaking very rapidly, unable to sit still, making incoherent statements and refusing to physically hand over T.S. to law enforcement. It further alleged mother's use of methamphetamine, cocaine, marijuana and hallucinogens negatively impacted her ability to provide M.M. proper care and protection. The department further alleged under section 300, subdivision (j) that M.M.'s siblings suffered abuse and neglect as a result of mother's substance abuse and that M.M. was at risk of similar abuse and neglect.
Eugene did not elevate his paternity status and did not maintain contact with the department. Troy S., mother's husband, was identified as M.M.'s presumed father. Troy did not participate in the proceedings.
The juvenile court ordered M.M. detained and ordered the department to offer mother random drug testing, a mental health assessment and any recommended treatment and arrange visitation. The court set the jurisdictional/dispositional hearing for July 27, 2020.
The department recommended the juvenile court deny the parents reunification services. As to mother, it recommended denial under section 361.5, subdivision (b)(10) and (11) because she failed to reunify with M.M.'s siblings and subsequently failed to treat the problems (substance abuse and mental illness) that necessitated their removal. The department also recommended denial of services under section 361.5, subdivision (b)(13), alleging mother has a history of "extensive, abusive and chronic use of drugs" and resisted court-ordered treatment for the problem by using methamphetamine at the time of T.S.'s removal in July 2019.
The juvenile court began the contested hearing as to T.S. on July 27, 2020, and concluded it the following day. The court denied mother reunification services (§ 361.5, subd. (b)(13)) and set a section 366.26 hearing to select a permanent plan for T.S. The court set a contested jurisdictional/dispositional hearing as to M.M., which was conducted on November 19, 2020.
Mother challenged the juvenile court's rulings by extraordinary writ petition, which we denied. (L.N. v. Superior Court (Nov. 4, 2020, F081498) [nonpub. opn.].) We grant Real Party in Interest's request and take judicial notice of our case file and opinion in case No. F081498. (Evid. Code, §§ 452, subd. (d), 459, subds. (a) - (c).)
Mother sought to show at the contested hearing that she made significant changes in her life. She was mentally stable and maintaining her sobriety and did not pose a risk of harm to M.M.
Jaclyn Curtis, a marriage and family therapist, testified she began treating mother in August 2020 and mother regularly attended her weekly appointments. Therapist Hillary LeRoux conducted a partial mental screening with mother and determined she did not need mental health treatment because mother did not report any symptoms of anxiety, depression, trauma or anger. Mother told LeRoux she was hospitalized once overnight but did not mention any other hospitalizations. She said the department wanted her to complete a mental health screening because it was concerned that she had anger issues. However, she worked through her anger by attending anger management classes. LeRoux did not have enough information to determine whether mother was forthcoming about her mental health.
Mother testified she was participating in random drug testing at her own expense and attended Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings. She believed her sobriety date was July 19, 2020. She was not aware she tested positive for alcohol on September 11, 2020, until her attorney informed her. She did not drink alcohol that day but ate rum cake. She also cut her hands while making boxes and used hand sanitizer. She thought either could have caused her to test positive for alcohol. She took a "safe class" at the women's shelter. She wanted to learn about the effects of abusive relationships on children. She also took an infant postpartum class to learn about bonding and started a class on trauma through dreams, but was unable to finish it because of COVID-19 pandemic restrictions. She was employed and had a two-bedroom apartment and would participate in any services ordered by the court.
On cross-examination, mother testified she completed substance abuse treatment on December 5, 2019. Since T.S.'s removal, she completed a parenting class, an aftercare program, attended NA/AA meetings and participated in drug testing. She stopped participating in aftercare four months before, when she began working. She did not believe she had a current drug problem or suffered from mental illness.
M.M.'s paternal aunt (and caregiver) and maternal grandmother testified M.M. recognized mother and their visits went well. The paternal aunt was willing to provide M.M. a permanent home if mother did not reunify.
Social worker Karla Aguilar discussed mother's positive test result for alcohol with the substance abuse specialist, who said mother's level was very high and would not result from eating rum cake.
The juvenile court sustained the petition, ordered M.M. removed from parental custody, denied the parents reunification services as recommended and set the section 366.26 hearing.
DISCUSSION
On appeal, we review jurisdictional and dispositional findings and orders under the substantial evidence standard of review. (In re A.S. (2011) 202 Cal.App.4th 237, 244.) Substantial evidence exists when the evidence is "reasonable in nature, credible, and of solid value," so that "a reasonable mind would accept [it] as adequate to support [the] conclusion." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we consider the record as a whole, in a light most favorable to the juvenile court's findings and conclusions, and we defer to the juvenile court on any issues of credibility of the evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) The existence of evidence of some support for a contrary finding will not defeat the finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.) Moreover, "[w]hen the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact." (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) However, we bear in mind that the juvenile court was required to make the finding on the heightened clear and convincing evidence standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.) I. Substantial Evidence Supports the Jurisdictional Finding Under Section 300 , Subdivision (b)(1)
Mother contends there is insufficient evidence to uphold jurisdiction under either section 300, subdivision (b)(1) or (j). We disagree.
In order to exercise its dependency jurisdiction over a child, the juvenile court must find by a preponderance of the evidence that the child is described by one or more of the subdivisions set forth in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) When the court makes multiple jurisdictional findings, as occurred here, we need only find substantial evidence supports one of them to uphold the court's exercise of its jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)
"Section 300, subdivision (b)(1), authorizes a juvenile court to exercise dependency jurisdiction over a child if the 'child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent ... to adequately supervise or protect the child, or ... by the inability of the parent ... to provide regular care for the child due to the parent's ... mental illness, developmental disability, or substance abuse.' (§ 300, subd. (b)(1).)" (In re L.W. (2019) 32 Cal. App. 5th 840, 848.)
The department alleged two counts under section 300, subdivision (b)(1); one related to mother's mental instability, the other to her drug use. As evidence of her mental instability, the department cited her behavior on July 15, 2019, when she was speaking rapidly and incoherently, moving continuously and refusing to cooperate with the police.
Mother contends her history of substance abuse and alleged untreated mental illness are insufficient to support a true finding under section 300, subdivision (b)(1) without proof she posed a current risk of harm. She points out the department presented no evidence she used any substances while pregnant with M.M. or cared for M.M. while under the influence. As to her mental health, she claims she presented evidence she was mentally stable. Specifically, she demonstrated she was participating in weekly therapy, had an extensive support network, maintained employment and a household, regularly visited M.M. and attended all her court hearings.
"Although 'the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm[,]' " ... [a] parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) Thus, the court may consider all the circumstances affecting the child, including past events, when determining whether a child presently needs the juvenile court's protection. (Id.) "[T]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) Further, a parent's denial of wrongdoing or failure to recognize the negative impact of her conduct is also a relevant consideration in the court's determination of risk under section 300. (In re Tania S. (1992) 5 Cal.App.4th 728, 735; fn. 4; see also In re A.F. (2016) 3 Cal.App.5th 283, 293 [" '[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.' "].)
Here, mother's history of mental health problems and substance abuse is significant and longstanding, dating back to 2000 when she was pregnant with B.B. and using cocaine. She had to be involuntarily detained and was offered drug treatment twice but did not comply. Within four years, her parental rights to two children were terminated. Though there is a long gap preceding T.S.'s removal, drug abuse and mental instability remained problems for mother. She was using methamphetamine when T.S. was removed both times and had to be involuntarily detained in 2019. She refused to be assessed for mental health services and denied any symptoms of mental illness despite her history of involuntary detention and the persistence of bizarre thoughts. As recently as July 2019, she believed she had an adult daughter who was hit by a train and that T.S. died as a baby. Mother also denied having any problem with methamphetamine.
Given mother's longstanding history of drug use and mental instability, and persistent denial, the juvenile court could find she posed a substantial risk of harm to M.M. as described in section 300, subdivision (b)(1). II. Substantial Evidence Supports M.M.'s Removal
Mother contends the juvenile court failed to articulate a factual basis for removing M.M. from her custody, merely stating there were " 'safety concerns' " related to her history and current status. The record does not support mother's claim.
In order to remove a child from parental custody, the juvenile court must find by clear and convincing evidence there is or would be a substantial danger to the child's physical or emotional well-being if the child were returned home and there are no reasonable means by which the child's physical health can be protected short of removal. (§ 361, subd. (c).) The court must state the facts on which it made the decision to remove the child. (§ 361, subd. (e).)
"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B. (2018) 26 Cal.App.5th 320, 332.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] 'The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.' " (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
M.M. was taken into protective custody because mother had an extensive history of child neglect and was uncooperative with the department. Though mother had not physically harmed M.M., there was a risk that she would if M.M. were placed in her care. Further, by the dispositional hearing, the risk had not abated. Though mother was making efforts to resolve her substance abuse problem, she completely denied having any mental health problems despite compelling evidence that she did.
Contrary to mother's assertion, the juvenile court explained its rationale for concluding M.M. could not be safely returned to her custody. The court believed mother's mental instability and substance abuse endangered M.M. and mother lacked sufficient insight into her problems to safely parent her. As a child of tender years, M.M. was at a heightened risk of harm if neglected. Consequently, returning her to mother's care, given mother's history of drug abuse and mental illness, would place her at a substantial risk of harm. III. Substantial Evidence Supports Denial of Reunification Services Under Section 361 .5, Subdivision (b)(11)
When the juvenile court removes a child from the parents' custody, it must provide reunification services for the child and the child's parents unless it finds any one of the exceptions enumerated in section 361.5, subdivision (b) applies to the parents. (§ 361.5, subds. (a) & (b).) These exceptions to the general rule reflect a legislative determination that attempts to facilitate reunification in some cases are futile and do not serve the child's interests. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202.) When the juvenile court determines by clear and convincing evidence that one of the exceptions exists, it is prohibited from providing reunification services unless it finds by clear and convincing evidence that reunification is in the child's best interest. (§ 361.5, subd. (c).)
As with the jurisdictional finding, we can uphold the juvenile court's denial of services order if substantial evidence supports one statutory basis for denial. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876 [where one basis is supported by substantial evidence the court does not need to consider the sufficiency of evidence to support the other bases.].) We conclude substantial evidence supports a denial of services to mother under section 361.5, subdivision (b)(11).
A parent may be denied reunification services under section 361.5, subdivision (b)(11), if the juvenile court finds by clear and convincing evidence "the parental rights of [the] parent over any sibling or half sibling of the child had been permanently severed, ... 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."
It is undisputed mother's parental rights to Christopher and B.B. were terminated. The question is whether mother subsequently made reasonable efforts to treat the problems necessitating their removal, i.e., drug abuse and mental instability.
The " 'reasonable effort' " requirement is "not synonymous with 'cure.' " (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) Further, the juvenile court should always attempt to preserve a parent/child relationship despite a substantial child welfare history if there is a reasonable basis to conclude that the relationship can be saved. (Ibid.) However, the court may reasonably consider the "duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable." (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914-915.)
Mother contends she "demonstrated a willingness to change" as evidenced by the various services which she initiated without departmental assistance. The juvenile court, however, found mother's efforts were "halfhearted." The court found her explanation for the positive test result (alcohol) not credible and her testimony evasive when pressed about her mental health needs. The court was particularly concerned about mother's mental health condition, which it did not believe she meaningfully addressed, and which was potentially very serious. On that evidence, the court could find mother failed to make reasonable efforts to treat her mental health problems after the termination of her parental rights as to M.M.'s half siblings. Thus, substantial evidence supports the juvenile court's orders denying mother reunification services under section 361.5, subdivision (b)(11) and setting a section 366.26 hearing.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).