Opinion
D073161
06-08-2018
In re J.C. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.C., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J518671A-C) APPEAL from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
K.C. (Mother) appeals juvenile court orders denying her reunification services regarding her three children pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(13). She contends the court abused its discretion by denying her reunification services because substantial evidence showed it was in her children's best interests to grant her reunification services.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When Mother was 16 years old, she began using drugs and alcohol. At 22 years old, she was addicted to methamphetamine and alcohol. Subsequently, she also became addicted to heroin. Mother has three children: J.C., born in 2012; B.B., born in 2014; and K.C., born in 2015.
As a result of her substance abuse, Mother was at times unable to care for her children and dependency petitions were filed for them. In April 2013, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition for J.C. after Mother was arrested for possession of heroin. She admitted she sometimes drove with J.C. in her car after using heroin. She also admitted regularly using heroin and methamphetamine once or twice a week. As part of the dependency case, the court ordered reunification services for Mother, including substance abuse services. She completed a six-week residential drug treatment program and also attended Narcotics Anonymous (NA) meetings, relapse prevention group meetings, and after care planning. B.B. was born during that dependency proceeding. Mother reunified with J.C. and the dependency case was terminated in July 2014.
In September 2014, Agency filed dependency petitions for J.C. and B.B. after Mother resumed abusing methamphetamine and other drugs. As part of those dependency cases, the court ordered reunification services for Mother, including substance abuse services. She completed a 10-month outpatient drug treatment program and attended 12-step meetings. K.C. was born during those dependency proceedings. Mother reunified with J.C. and B.B. and their dependency cases were terminated in February 2017.
Agency offered Mother a voluntary case for K.C., which Mother accepted and then received services including substance abuse treatment.
In April 2017, Mother tested positive for 6-acetylmorphine, a metabolite of heroin. She did not show up for subsequent drug tests scheduled in May and June. In July, Agency filed the instant section 300, subdivision (b) dependency petitions for J.C., B.B., and K.C. The petitions alleged that Mother's children had suffered, or there was a substantial risk that the children would suffer, serious physical harm or illness by Mother's inability to provide regular care for them due to her substance abuse. The petitions specifically alleged that Mother used heroin and methamphetamine to excess and had a long history of substance abuse dating back to 2013. They further alleged that Mother had acknowledged she had relapsed and needed substance abuse treatment.
Agency's detention report stated that on July 3, 2017, Mother arrived to pick up J.C. and B.B. at the home of a relative who had been caring for them for a few days. Mother appeared to be under the influence as evidenced by her shaking, crying, hyperactivity, inability to focus, stumbling, not walking straight, rapid speech, fluttering eyes, and restlessness. Mother left without J.C. and B.B., both of whom remained in the relative's care. K.C. was in Mother's care later that day when an Agency social worker observed that Mother appeared to be under the influence. Mother told the social worker that she was aware of her need to go back and receive substance abuse treatment for her recent relapse and drug abuse. A maternal relative reported that she agreed to care for J.C. and B.B. one weekend a month to give Mother a break, but Mother left them with her every weekend. On July 5, the social worker found Mother asleep in her car outside her home. Mother stumbled out of the car, swayed back and forth, spoke inaudibly, slurred her speech, and leaned on the hood of the car. At the children's detention hearings, the court found Agency had made prima facie showings on the petitions and detained them with relatives.
Agency's jurisdiction and disposition report and addenda recommended, inter alia, that the court deny reunification services to Mother pursuant to section 361.5, subdivision (b)(13). Agency stated Mother had a chronic and pervasive addiction that led to the children repeatedly being exposed to drugs and violent/criminal activity, thereby placing their safety in jeopardy. Mother had an ongoing pattern of getting sober, but was unable to maintain her sobriety without Agency or court oversight. Despite previous participation in and completion of drug treatment programs, Mother had not demonstrated an ability to utilize any of the tools she learned in treatment to avoid a relapse or to regain sobriety once a relapse had occurred. Mother acknowledged that she had participated in extensive services offered by Agency, but did not know what other services could help her address Agency's protective concerns regarding the children. Mother's addiction to methamphetamine and heroin had remained unaffected despite intensive treatment and services she had received over the past three years. Although she participated in treatment, Mother had resisted implementing any of the tools and resources available to her to maintain her sobriety after her children's prior dependency cases were closed. Furthermore, although Mother had shown brief periods of sobriety while under the watchful eye of the court, Agency had very little confidence Mother would be able to maintain her sobriety and ensure her children's safety once the court no longer oversaw her. Agency believed that if the children were once again reunified with Mother, they would again be exposed to her addiction and placed in dangerous situations that could lead to physical harm. The children deserved to be in a home environment free from drugs, substance abuse, and chaos. The children needed safety and stability with caregivers they could trust in order to heal from their traumas and disrupted lives. Although Mother had been in KIVA's drug treatment program for about three months and had demonstrated progress, Agency continued to be greatly concerned about her ability to remain clean and sober and safely parent the children in the long term. Because of the impact of Mother's resistance to treatment and pervasive substance abuse has on her children, Agency recommended that reunification services be denied to her and that the children be placed in a safe and stable home. Agency recommended that the children be placed in out-of-home care with relatives.
In November 2017, a contested jurisdiction and disposition hearing was held at which the court received, inter alia, Agency's reports and heard the testimony of two Agency social workers, Mother, and Mother's therapist. In particular, LaShawn White, Mother's former Agency social worker, testified that although Mother completed two prior drug treatment programs and worked on a relapse prevention plan, in April 2017 Mother failed to follow that plan and relapsed. White agreed with Agency's recommendation that Mother be denied reunification services in the instant proceedings. Mother's substance abuse was chronic and she had received every service during her prior cases. The repeated removals of J.C. and B.B. had affected their behavior and development, and they needed stable environments and caregivers.
Fanita Durham, Mother's current Agency social worker, testified that she recommended that reunification services be denied to Mother because she had ample opportunities to parent the children and had completed substance abuse treatment, but nevertheless relapsed and tested positive for drugs in April 2017. Mother did not return to treatment until July 2017 after her children were removed. Mother was a chronic abuser of drugs, resisted treatment, and did not use her relapse prevention plan. Although Mother was compliant with her services while under court and Agency supervision, she quickly resumed drug use once the cases were closed and neglected to use the tools she had learned. Durham did not believe that granting Mother reunification services would be in the children's best interests. The children deserved consistency and stability, which Mother had shown she was unable to provide them.
Rhonda Smallwood, Mother's therapist, testified that Mother was in the beginning stages of therapy that was estimated to last about one year. Mother appeared to be committed to her sobriety.
Mother testified that she had a chronic, substantial substance abuse problem. She had been sober since July 13, 2017, and had been participating in the KIVA residential program for almost four months. She believed the KIVA program was significantly different from the programs she had completed in the past. She also believed that her therapy with Smallwood was different from her prior therapy. She believed she had a higher chance of staying sober this time because she had a bigger support system, made friends at KIVA, was more aware of her triggers, and planned to fill her schedule more so that she had less idle time. Mother was also now employed at a sandwich shop, which was her first job in seven years.
The juvenile court made true findings on the petitions, removed the children from their parents, and denied reunification services to Mother pursuant to section 361.5, subdivision (b)(13). The court noted that Mother acknowledged she had received appropriate services in the past, but had not followed through on her relapse prevention plan. It stated that Mother was not really asking for more services or different services, but for more time. Noting that this was Mother's third dependency case in four years, the court found that the children should not have to wait for Mother to commit to recovery in a meaningful way. Mother relapsed about two months after the first case closed and about four months after the second case closed. Although relapse of a day or even several days would not necessarily preclude a parent from receiving reunification services, the court stated that "there is a difference between relapse and really just resuming a drug using lifestyle [and] unfortunately, that's what we have here." It stated: "[T]his [case] goes beyond a day or two of relapse, unfortunately." Therefore, the court found that Agency had met its burden to show, by clear and convincing evidence, that Mother had a long history of drug abuse and treatment resistance. Noting that the burden then shifted to Mother to show, by clear and convincing evidence, that it nevertheless is in the children's best interests that she receive reunification services, the court found she had not met that burden. The court stated: "[I]t's simply not in the children's best interests to be subjected to the disruption and trauma that come[s] with life with an addicted parent." The court therefore denied Mother reunification services pursuant to section 361.5, subdivision (b)(13).
The court nevertheless ordered reunification services for J.C. and B.B.'s father and K.C.'s father.
Mother timely filed a notice of appeal challenging the orders denying her reunification services.
DISCUSSION
I
Section 361.5, Subdivision (b)(13) and Standards of Review
In general, the juvenile court is required to provide reunification services to a child and the child's parents when the child is removed from parental custody in a dependency proceeding. (§ 361.5, subd. (a).) However, "the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services 'those parents who are unlikely to benefit' [citation] from such services or for whom reunification efforts are likely to be 'fruitless' [citation]." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.).) When the court finds that reunification services should be denied, it generally "fast tracks" the child to permanency planning so that permanent out-of-home placement can be arranged. (Id. at p. 1121.)
As relevant to this case, section 361.5, subdivision (b), provides:
"Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶]If the court finds that a provision of section 361.5, subdivision (b) applies, then the court "shall not order reunification for [the] parent . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) When a court determines that one of the section 361.5, subdivision (b) exceptions to reunification services applies, the burden then shifts to the parent to rebut the legislative assumption that services would be an unwise use of governmental resources and show that reunification services for that parent would be in the child's best interests. (In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).)
"(13) That [a] 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 . . . ."
"We review an order denying reunification services under [section 361.5] for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122.) If there is substantial evidence to support the order, we must affirm the order even if there is evidence that could have supported a contrary order. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) Regarding a court's best interests determination, we review for abuse of discretion the court's finding whether a parent has met his or her burden to show it is in the child's best interests that the parent receive reunification services. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165.) On appeal, we presume the juvenile court's order is correct and Mother has the burden to overcome that presumption and affirmatively show the court erred. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
II
Substantial Evidence to Support Section 361 .5, Subdivision (b)(13) Finding
Mother contends the juvenile court erred by finding that she should be denied reunification services pursuant to section 361.5, subdivision (b)(13). However, based on our review of the record, we conclude there is substantial evidence to support the court's findings that Mother has a history of extensive, abusive, and chronic use of drugs and has resisted prior court-ordered treatment for that problem during the three-year period immediately preceding the filings of the petitions. (§ 361.5, subd. (b)(13).)
Mother apparently does not, nor could she reasonably, dispute that she has a history of extensive, abusive, and chronic use of drugs within the meaning of section 361.5, subdivision (b)(13). Mother told an Agency social worker that she was addicted to methamphetamine at age 22 and subsequently became addicted to heroin. In or about April 2013, Mother was arrested for possession of heroin. She admitted she sometimes drove with J.C. in her car after using heroin. She admitted regularly using heroin and methamphetamine once or twice a week. At the contested jurisdiction and disposition hearing, Mother testified that she had a chronic, substantial substance abuse problem. Accordingly, there is substantial evidence to support the court's finding that Mother has a history of extensive, abusive, and chronic use of drugs.
Contrary to Mother's assertion, there is also substantial evidence to support the court's finding that Mother has resisted court-ordered treatment for her chronic drug abuse problem during the three-year period prior to the filings of the instant petitions. (§ 361.5, subd. (b)(13).) As discussed ante, Mother received court-ordered drug treatment in the two prior dependency cases. During the first case (April 2013 through July 2014), she completed a court-ordered six-week residential drug treatment program and also attended NA meetings, relapse prevention group meetings, and after care planning. During the second case (September 2014 through March 2017), she completed a court-ordered 10-month outpatient drug treatment program and attended 12-step meetings. However, shortly after each case closed, Mother relapsed and resumed her regular abuse of drugs. Although Mother completed both prior drug treatment programs, she failed to maintain any long-term sobriety and therefore has shown she is resistant to treatment.
In Randi R. v. Superior Court (1998) 64 Cal.App.4th 67 (Randi R.), the mother completed two drug treatment programs, but relapsed within one year after each program. (Id. at p. 73.) Randi R. concluded that "while she has technically completed [drug] rehabilitation programs, her failure to maintain any kind of long-term sobriety must be considered resistance to treatment." (Ibid.)
In Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006 (Karen S.), the court explained that resistance to treatment within the meaning of former section 361.5, subdivision (b)(12) encompasses both active and passive behavior. (Karen S., at p. 1010.) Karen S. stated:
In 2001, the Legislature amended section 361.5 to reassign former subdivision (b)(12) as subdivision (b)(13). (Stats. 2001, ch. 653, § 11.3.)
"The common definition of 'resist' is either 'to withstand the force or effect of' or 'to exert oneself to counteract or defeat.' [Citation.] The definition encompasses both active and passive behavior. Thus, a parent can actively resist treatment for drug or alcohol abuse by refusing to attend a program or by declining to participate once there. The parent also can passively resist by participating in treatment but nonetheless continuing to abuse drugs or alcohol, thus demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life. In either case, a parent has demonstrated a resistance to eliminating the chronic use of drugs or alcohol which led to the need for juvenile court intervention to protect the parent's child. In other words, the parent has demonstrated that reunification services would be a fruitless attempt to protect the child because the parent's past failure to benefit from treatment indicates that future treatment also would fail to change the parent's destructive behavior." (Id. at p. 1010.)In that case, the father had continued to abuse drugs and alcohol despite participating in treatment programs in the past. (Ibid.) Karen S. concluded the father was passively resistant to treatment within the meaning of former section 361.5, subdivision (b)(12).
Similarly, in William B., supra, 163 Cal.App.4th 1220, the father completed substance abuse treatment, but thereafter began using drugs again and continued to use drugs at least every other week until he was arrested a few months later. (Id. at p. 1230.) William B. concluded: "This behavior cannot be considered a simple relapse; rather, it was a resumption of drug use demonstrating resistance to treatment." (Ibid.; cf. In re Brooke C. (2005) 127 Cal.App.4th 377, 383 [mother did not have mere brief relapse, but instead continued to abuse drugs after participating in several substance abuse treatment programs, thereby resisting treatment under § 361.5, subd. (b)(13)]; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 [resistance to treatment can "come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety"]; In re Brian M. (2000) 82 Cal.App.4th 1398, 1402 [resistance to treatment can include return to substance abuse after completion of treatment program].)
Based on the cases ante and the evidence in this case, the court could reasonably find that Mother was resistant to treatment under section 361.5, subdivision (b)(13) because she relapsed and continued her regular drug use shortly after completion of prior court-ordered drug treatment programs within three years of the instant petitions. Mother has repeatedly failed to apply the skills she learned in drug treatment programs to maintain sobriety, thereby showing any further attempts at reunification would be fruitless. The court could reasonably find that Mother's conduct showed a deliberate choice to resume regular drug use and did not constitute a brief relapse. Therefore, there is substantial evidence to support the court's finding that Mother resisted court-ordered treatment for her chronic drug abuse problem during the three-year period prior to the filings of the instant petitions. (§ 361.5, subd. (b)(13).) To the extent Mother cites evidence and inferences therefrom that would have supported a contrary finding, she misconstrues and/or misapplies the substantial evidence standard of review. (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122; In re Megan S., supra, 104 Cal.App.4th at p. 251.)
III
Children's Best Interests Finding
Mother contends the court abused its discretion by finding that she did not meet her burden to show it was in her children's best interests that she receive reunification services. We disagree.
As discussed ante, if the court finds that a provision of section 361.5, subdivision (b) applies, then the court "shall not order reunification for [the] parent . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) Because the court in this case found that section 361.5, subdivision (b)(13) applied to deny Mother reunification services, the burden then shifted to Mother to rebut the legislative assumption that services would be an unwise use of governmental resources and show that reunification services for her would be in her children's best interests. (William B., supra, 163 Cal.App.4th at p. 1227.) "To determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity." (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116 (Allison J.).)
Although the court recognized and considered Mother's current efforts in receiving treatment for her long history of drug abuse and the strength of her bonds with her children, it also considered the instability in her children's lives that her chronic drug abuse had caused. (Cf. Allison J., supra, 190 Cal.App.4th at p. 1116.) It noted the instant case was Mother's third dependency case in the past four years. The court found that the children should not have to wait for Mother to commit to recovery in a meaningful way. The court found Mother had not met her burden to show, by clear and convincing evidence, that it is in her children's best interests that she receive reunification services, stating: "[I]t's simply not in the children's best interests to be subjected to the disruption and trauma that come[s] with life with an addicted parent." Based on our review of the record, we conclude the court did not abuse its discretion by finding Mother had not met her burden and by denying her reunification services. "Children should not be required to wait until their parents grow up." (In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632.) The court in this case could reasonably conclude that the best interests of J.C., B.B., and K.C. would be better served by providing them with the best opportunity for stability in their lives rather than to wait, once again, to see whether Mother can eventually maintain sobriety and provide them with the stability they deserve. (Cf. In re G.L., supra, 222 Cal.App.4th at pp. 1165-1166 [court did not abuse its discretion by finding it was in child's best interests for mother to receive reunification services]; Randi R., supra, 64 Cal.App.4th at p. 73 [court did not abuse its discretion by finding it was not in child's best interests for mother to receive reunification services].) To the extent Mother cites evidence and inferences therefrom that would have supported a contrary finding, she misconstrues and/or misapplies the abuse of discretion standard of review. (In re G.L., at pp. 1164-1165.) In particular, the fact that the fathers of J.C., B.B., and K.C. were granted reunification services does not show that it is likely Mother will reunify with her children or that the court otherwise abused its discretion by denying her reunification services. In re G.L., supra, 222 Cal.App.4th 1153, cited by Mother, is factually inapposite to this case and does not persuade us to reach a contrary conclusion.
DISPOSITION
The orders are affirmed.
BENKE, Acting P. J. WE CONCUR: NARES, J. O'ROURKE, J.