Opinion
F075841
09-14-2017
PATRICK L., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Patrick L., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CEJ300124-2)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M. Arax, Judge. Patrick L., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
Before Gomes, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
Patrick L. (father), in propria persona, seeks extraordinary writ review of the juvenile court's dispositional orders denying him reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(13) and setting a section 366.26 hearing to consider a permanent plan of adoption for his now four-year-old daughter, Serenity. (Cal. Rules of Court, rule 8.452.) Section 361.5, subdivision (b)(13) allows the juvenile court to deny a parent reunification services when it finds there is clear and convincing evidence that "the parent ... of the child has a history of extensive, abusive, and chronic use of drugs ... and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition[.]" We deny the petition.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency proceedings were initiated in October 2016, when the Fresno County Department of Social Services (department) removed then three-year-old Serenity from parental custody for the second time in two and a half years. She and her half brother were removed from the custody of their mother, Amanda, in April 2014, because Amanda used methamphetamine and was homeless. The juvenile court provided Amanda and father reunification services, including substance abuse treatment. Amanda was noncompliant and the court terminated her services in April 2015. Father, however, successfully completed his court-ordered services and the court awarded him sole legal and physical custody of Serenity in July 2016. Approximately a month later, father relapsed.
Amanda did not seek writ review of the juvenile court's setting order.
In October 2016, Amanda contacted law enforcement after she went to father's apartment and found him sleeping on the bedroom floor, leaving then three-year-old Serenity unsupervised. She stated the apartment was a "wreck" and "reaked of marijuana." Serenity had access to edible marijuana treats, which were in a pan on her bed.
A social worker made an unannounced visit to father's home. Serenity appeared clean and healthy and showed no signs of abuse or neglect. Father admitted using methamphetamine two days before with Amanda and smoking two to three bowls of marijuana daily. He said Amanda brought methamphetamine with her when she visited Serenity at his house and they smoked it in the bathroom while Serenity watched television. He denied that he and Amanda were involved romantically and said he was willing to participate in substance abuse treatment. The social worker took Serenity into protective custody and the department placed her in foster care where she remained.
In early November 2016, a social worker interviewed the parents. Amanda was pregnant with another man's child. She denied taking drugs to father's apartment. She also denied using drugs but enrolled in outpatient substance abuse treatment the day before. She said she was diagnosed with bipolar disorder and was taking medication to treat it. Father was also participating in outpatient treatment and random drug testing. In addition, he was attending Alcoholics/Narcotics Anonymous (AA/NA) meetings and had found a sponsor and a parenting class. As to why he relapsed, he explained it occurred when he broke his ankle, which made him feel helpless. He was also not used to being a responsible adult and having to pay rent and bills. He said his recovery effort would be different this time because he planned to "dig deep" and work on his codependency, depression, grief, loss and sadness. He believed he could stay clean and sober this time. Asked why he let Amanda into his home, he said he "messed up" and was disappointed in himself.
The juvenile court ordered Serenity detained pursuant to a dependency petition filed by the department, alleging father's methamphetamine use and Amanda's neglect of Serenity's half brother placed Serenity at a substantial risk of harm. (§ 300, subds. (b)(1) & (j).) The court denied the parents services pending its disposition of the case but ordered reasonable, biweekly, supervised visits.
In its report for the jurisdictional/dispositional hearing (combined hearing), the department recommended the juvenile court find the allegations in the petition true and deny the parents reunification services under section 361.5, subdivision (b)(10) (as to Amanda) and (b)(13) (as to both parents). With respect to father, the department reported that he began using methamphetamine 10 years before at the age of 17. By 2014, his methamphetamine use had increased to twice a day. He attempted inpatient treatment three times before entering a residential treatment program in September 2014. In January 2015, he completed 120 days of residential treatment and enrolled in 90 days of sober living. He also completed a parenting class in January 2015, and participated in individual therapy and attachment based therapy with Serenity, which he successfully completed in August 2015.
Section 361.5, subdivision (b)(10) permits the denial of reunification services to a parent whose reunification services for a half sibling of the child were terminated because the parent failed to reunify with the half sibling and to subsequently make reasonable efforts to treat the problem that required the removal of the half sibling. In this case, the juvenile court terminated Amanda's reunification services for Serenity's half brother in the prior dependency case and the department alleged that she failed to subsequently treat her drug abuse.
The department also opined that providing the parents reunification services would not serve Serenity's best interests. Although she lived with father continuously from April 27, 2015, until her removal in October 2016, and was strongly bonded to him, she was showing signs of emotional stress. According to the paternal uncle, she was not her usual self on an occasion when he took her to the fair but instead "was angry, acting closed off and would not eat." The department believed it unfair that Serenity, a "smart toddler," should have her needs subjugated to those of her parents.
The juvenile court may provide a parent reunification services despite the applicability of section 361.5, subdivision (b)(10) and (13) if it finds by clear and convincing evidence that reunification is in the child's best interest. (§ 361.5, subd. (c).)
The juvenile court conducted a contested, combined hearing in June 2017. In the interim, the department filed an addendum report in March, informing the court of the parents' continued involvement in services. Father completed his parenting class, remained in outpatient treatment, participated in individual therapy and parent support groups, attended weekly AA/NA meetings, met with his sponsor and regularly drug tested with negative results. He also visited Serenity once a week for two hours under supervision. The department reiterated its recommendation the court deny the parents reunification services, noting that they sought services on their own, but only did so following the court's involvement. The department also opined that Serenity was in need of a sober and stable care provider who could meet all of her physical, emotional and social needs. The department's plan was to place her for adoption with maternal relatives, her foster mother, or locate a risk adopt foster home.
The juvenile court heard testimony from both parents at the contested, combined hearing. Father testified about his continuing involvement in services, including outpatient treatment, which he began in October 2016. He anticipated completing treatment within three weeks, but hoped to extend it because he continued to benefit from it. He regularly met with his sponsor but had to find a new one because his sponsor informed him he could no longer serve in that role. The court clarified that it was not because of anything father had done but because the sponsor had health problems.
Father further testified his primary focus this time was on recovery whereas his primary goal during the prior dependency was to regain custody of Serenity. He did not incorporate AA into his prior recovery and isolated himself. Asked whether Amanda was a trigger for him, he acknowledged that she was initially but he addressed his codependent relationship with her in therapy and had moved forward.
Amanda testified she was prepared to take custody of Serenity with family maintenance services. She was living in her own apartment and caring for her five-month-old son. She completed outpatient treatment, a parenting class, and a parent/partner support group. She also had a sponsor and regularly attended AA meetings. She denied using methamphetamine with father, claiming she last used illegal substances in May 2016. She could not, however, pinpoint the exact date in May.
Minor's counsel asked Amanda why she enrolled in outpatient substance abuse treatment in November 2016, if she was clean and sober. Amanda testified she felt she needed the treatment and believed she was stable enough to sit in group settings and attend the classes. Counsel also asked her about her social worker's observation in early November 2016, that she was talking fast and was extremely hard to follow. Amanda recalled that statement but maintained that she was not using drugs at that time.
The juvenile court asked Amanda why father would lie about her drug use. She did not know but suspected he was angry that she reported him and wanted to prevent her from being part of Serenity's life.
The juvenile court found the allegations in the dependency petition true and adjudged Serenity a dependent child. The court found Amanda made reasonable efforts to address her drug abuse and, therefore, declined to deny her services under section 361.5, subdivision (b)(10). The court, however, found sufficient evidence to deny both parents services under section 361.5, subdivision (b)(13). The court further found it would not serve Serenity's best interest to provide the parents reunification services and set a section 366.26 hearing.
Father appeared before this court and argued for reunification services so that he could regain custody of Serenity.
DISCUSSION
Father contends the juvenile court's denial of services order is error because he participated in services to address his substance abuse problem. He seeks an extraordinary writ directing the juvenile court to provide services to reunify with Serenity and vacate its order setting a section 366.26 hearing.
As we have stated, section 361.5, subdivision (b)(13) allows the juvenile court to deny a parent family reunification services based on, among other things, clear and convincing evidence that the parent has a history of extensive, abusive and chronic use of drugs, and has resisted prior court-ordered treatment for such a problem during the three-year period prior to the filing of the petition before the court.
Father does not challenge evidence of his "extensive, abusive and chronic" use of methamphetamine. Nor does he deny that he relapsed shortly after Serenity was returned to his custody in July 2016, and used methamphetamine until she was removed the following October. Rather, by asserting that his participation in services renders the juvenile court's denial of services order error, he in essence argues that his efforts to address his drug abuse subsequent to Serenity's removal mitigate his circumstances. Unfortunately, such is not the case. Father needed to address his drug abuse before the department removed Serenity so as not to have "resisted prior court-ordered treatment" under the statute as we now explain.
When a child is removed from parental custody, the juvenile court is required to order reunification services for the child and the child's parents, unless the court finds by clear and convincing evidence that the parent is described by any of the 17 exceptions set forth in section 361.5, subdivision (b). (§ 361.5, subds. (a) & (b)(1)-(17).) These exceptions to the general rule reflect a legislative determination that attempts to reunify may be futile under certain circumstances and may not serve a child's interests. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) Thus, by including the circumstances described in subdivision (b)(13), the Legislature determined it may be futile to attempt reunification for a parent with a drug history, like father's, who resisted drug treatment.
Case law has defined "resistance" to treatment and includes father's situation—i.e., completion of a court-ordered substance abuse treatment program and resumption of regular drug use during the three years prior to the petition being filed. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780 (Laura B.)
Laura B. examined the meaning of "resistance to treatment" under section 361.5, subdivision (b)(12), the antecedent version of subdivision (b)(13) of section 361.5. (Laura B., supra, 68 Cal.App.4th at pp. 780-781.) Section 361.5 was amended, effective October 10, 2001, without substantive change, renumbering subdivision (b)(12) as (b)(13). (Stats. 2001, ch. 653, § 11.3, p. 4123.) In 2002, section 361.5, subdivision (b)(13), was amended to replace "prior treatment" with "prior court-ordered treatment." (Stats. 2002, ch. 918, § 7, p. 4512.) --------
Thus, the juvenile court properly denied father reunification services under section 361.5, subdivision (b)(13) because of his prior completion of court-ordered treatment and subsequent resumption of drug use. The fact that he made efforts to reenter drug treatment after Serenity's removal pertains to the period after the petition was filed and is, therefore, irrelevant.
Nevertheless, nothing precludes father from filing a petition under section 388, subdivision (a)(1) and asking the juvenile court to modify its order denying him reunification services and enter an order granting him services.
Section 388, subdivision (a)(1) permits anyone having an interest in a dependent child to petition the juvenile court for a hearing to change, modify, or set aside a previous order on the ground of changed circumstances or new evidence. A parent seeking to change an order of the dependency court bears the burden of proving by a preponderance of the evidence that (1) there is a change in circumstances warranting a change in the order, and (2) the change would be in the best interest of the child. During argument, father informed the panel that he is motivated to reunite with Serenity and he described specific areas in which he has made progress. Though the panel could not consider the evidence because it was not part of the appellate record, father may wish to consult with his attorney on the propriety of filing a petition under section 388 based on that evidence.
We conclude the juvenile court properly denied father reunification services under section 361.5, subdivision (b)(13) and therefore had no choice but to set a section 366.26 hearing to select a permanent plan for Serenity. (§ 361.5, subd. (f).)
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.