Opinion
E072696
12-27-2019
In re I.G. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.A., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J279903 & J279904 & J279905) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel for Plaintiff and Respondent.
Defendant and appellant C.A. (mother) is the mother of I.G. (a boy, born February 2019), M.M. (a girl, born Sept. 2009), and S.M. (a girl, born Aug. 2010). Mother appeals the juvenile court's order entered under Welfare and Institutions Code section 300, et seq., making the children dependents of the court and denying reunification services to mother. For the reasons set forth below, we affirm the juvenile court's findings and orders.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
In February 2019 San Bernardino County Children and Family Services (CFS) received a referral alleging general neglect of I.G. At his birth, I.G. and mother tested negative for drugs, but follow-up urinalysis and meconium tests were both positive for THC and opiates. Mother's prior drug tests were positive for cannabinoids, barbiturates, and opiates. Mother denied that she had a substance abuse issue and claimed that the positive drug tests resulted from morphine administered to her during her hospital stays on October 24, 2018, November 23, 2018, and December 13, 2018. Mother also claimed that I.G.'s positive drug tests were a result of her taking prescribed narcotics and CBD oil for her fibromyalgia during her pregnancy. Mother had stopped using the CBD oil months ago so she did not know why I.G. tested positive for marijuana. A CFS social worker consulted with a hospital social worker; the hospital social worker's review of hospital records revealed mother was not prescribed narcotics during her pregnancy.
Mother told the social worker she had two other children, M.M. and S.M. (collectively, daughters); she denied any prior CFS history with respect to daughters. Mother did state that she was homeless a few years ago and daughters resided with their father, C.M. Once mother was able to obtain housing, daughters were returned to her care.
C.M. is not I.G.'s father and not a party to this appeal.
When the social worker researched mother's prior child welfare history, it was discovered mother had a fourth child, Z.A. (a boy, born June 2014), and, had several referrals and two prior dependency cases, one from July 11, 2016, until August 28, 2018, and another from April 6, 2017, until May 11, 2017. When asked why she was not honest about her prior CFS history, mother stated: "I did not lie, I do not consider [Z.A.] as my son because you guys took him from me."
Z.A. is not a subject of this appeal.
Moreover, records indicated that daughters previously had been removed and placed with their father, C.M. C.M. returned daughters to mother; when asked, he could not recall the last time he had the care of them, but he did visit them frequently.
On February 25, 2019, CFS filed section 300 petitions on behalf of daughters and detained them from C.M. pursuant to a detention warrant. When the social worker spoke with daughters, they disclosed that they had lived with mother and her boyfriend, R.G for "a while." Although daughters were free of marks and bruises, their diabetes was uncontrolled. Daughters reported R.G. smoked "weed." R.G. denied having a drug abuse history or knowing about mother's drug use, but acknowledged that he knew about mother's prior CFS history. On the same date, CFS also filed a section 300 petition on behalf of I.G. based on failure to protect and abuse of siblings. Moreover, based on I.G.'s positive drug test and mother's prior child welfare history, CFS detained I.G. from mother's custody pursuant to a detention warrant.
R.G. is not a party to this appeal.
At the detention hearing on February 26, 2019, all three children remained at Loma Linda University Children's Hospital. I.G. was in the hospital due to "vastly fluctuating blood sugars." Upon their release, they would be placed in medically fragile foster homes—daughters in one, I.G. in another. R.G. informed the court that his grandmother may have Native American ancestry, specifically Yaqui and Cherokee Tribes. C.M.'s original ICWA-10 indicated "I don't know" in the field of applicable tribes. C.M. also filled out a form providing the names of the preferred relatives for placement, which included his grandmother and great-grandmother.
In the jurisdiction and disposition report dated March 19, 2019, CFS recommended that no family reunification services be provided to mother because of her prior dependency with Z.A. CFS recommended that services be provided to the fathers, C.M. and R.G.
During an interview on February 28, 2019, daughters reported that R.G. used marijuana. M.M. also reported an incident where mother asked M.M. to get something out of mother's purse, and M.M. found "a pack of weed"; which she described as being "green" and kept in a container. The children reported seeing mother use marijuana. Neither child reported physical or sexual abuse, or domestic violence.
Regarding the children's health, CFS reported that daughters were diagnosed with diabetes mellitus with a gene mutation that required consistent monitoring of caloric intake and daily blood-sugar monitoring. I.G. was also diagnosed with diabetes mellitus and neonatal diabetes. Moreover, he suffered from prenatal drug exposure, a mild mitral regurgitation, trivial to mild tricusp regurgitation, moderate hyperptrophy of the right ventricle, in addition to other medical concerns. I.G. was placed in a special healthcare-needs placement.
On March 1, 2019, the social worker spoke with mother. Mother stated that the allegations against her were all false and that the social worker who removed the children from her "jumped the gun." During her pregnancy, mother was in and out of the hospital because of her fibromyalgia and kidney infections. She maintained that her ob-gyn prescribed her "norcos" during the pregnancy. Mother asserted that she had not used marijuana for over a year. However, in June and July 2018, when she would have been pregnant with I.G., mother tested positive for drugs. Mother's drug test taken at the detention hearing on February 26, 2019, was negative.
Mother showed the social worker a copy of I.G.'s negative drug test results from his birth. She, however, would not release them. Instead, she claimed that she "would be giving it to her attorney." Mother presented other medical records that showed I.G.'s meconium was found "presumptively positive" for opiates and marijuana.
As to the custody of daughters, mother reported that after the last dependency case where the juvenile court awarded custody of daughters to C.M., she and C.M. went to family law court and mediation, and custody was changed. The agreement had been in effect for a few months until the parents decided that the children would reside with mother during the week while visiting with C.M. during the weekend.
The social worker spoke with C.M. regarding custody of the daughters. C.M. stated mother went to family law court to change custody after the prior case was dismissed, but that he had missed all of the hearings because of work. One day, mother showed up with the police with the new custody orders and took daughters. After that, he went to court and a joint custody arrangement was agreed upon. C.M. did not know that mother could not get daughters back in that way. He denied witnessing mother's substance abuse or her being under the influence. C.M. did admit that the girls reported mother's marijuana use to him on occasions.
R.G. knew about mother's substance abuse history and child welfare history because he accompanied her to some of her appointments with the social worker in the prior case.
Mother's prior dependency case involved Z.A. He was removed in September 2016, because mother neglected his medical needs related to his diabetes, and because of mother's substance abuse. Mother was offered family maintenance services but did not follow through and Z.A. was removed in January 2017. Mother was offered reunification services again but, again, did not reunify and services were terminated in August 2018. A contested 366.26 hearing was scheduled for April 10, 2019.
The social worker noted that Z.A. was removed from mother's care because of mother's substance abuse issues and mother's failure to follow up with Z.A.'s diabetic needs. Although mother was granted reunification services in Z.A.'s matter, she continued to test positive even when she was pregnant with I.G. The social worker, therefore, reasoned that mother failed to benefit from services. Mother claimed her positive tests had medical explanations but she was unable to provide the necessary records to the social worker. Moreover, mother had an extensive child welfare history dating back to 2011. Mother had 14 general and severe neglect referrals.
On May 1, 2019, CFS submitted an ICWA declaration of due diligence listing the noticed tribes with return receipts. CFS also submitted additional information to the court, which included I.G.'s meconium tests confirming that he tested positive for THC and opiates. Moreover, Loma Linda University Medical Center records confirmed that mother tested positive for marijuana use during pregnancy. Mother previously had been diagnosed with "THC use disorder, mild, abuse." However, mother's recent drug tests from February 26, 2019, until April 19, 2019, were negative.
On May 1, 2019, at the contested jurisdiction and disposition hearing, mother testified. She stated that she tried marijuana "one time" for hyperemesis, and the positive drug test was recorded in the letter from Loma Linda dated March 26, 2019. Mother stated that medical professionals prescribed marijuana to her while she was pregnant when anti-nausea medicine failed to work. She contended that the doctors prescribed the marijuana even though mother informed them about the dependency case with Z.A. The medical professionals were not aware of her substance abuse issues. Mother did not tell them about her substance abuse issues because she did not feel that she was "addicted to anything." Mother was prescribed Norco for pyelonephritis, which she did not finish because she delivered I.G. As to services, mother stated that she cooperated with CFS, was randomly drug testing, and was participating in counseling and parenting classes. Mother completed an outpatient drug program previously in Z.A.'s case; she acknowledged that she used marijuana in Z.A.'s case, but she did not believe she had a substance abuse problem because she could "cut it off." In fact, when she completed the CFS recommended outpatient program, she cut off marijuana to be "proactive to show the Courts that [she was] trying everything to get [her] kids back." Mother was admitted to the outpatient program for marijuana.
On cross-examination, mother admitted that she tested positive for marijuana on December 13, 2018. She believed that it was the one-time use in September that caused the positive result in December. She stated, "[i]t takes a while to get it out of your system."
During closing argument, counsel for CFS argued that mother had not made a reasonable effort to treat the same issues that had existed in Z.A.'s case. Mother continued to use drugs and I.G. was born positive for THC and opiates. Mother continued to deny any substance abuse issues even though she was diagnosed with THC abuse disorder. Therefore, CFS recommend a bypass of mother's services under section 361.5, subdivision (b)(10). Counsel for the children joined in the recommendation and asked to bypass mother's services.
Mother's counsel argued that mother tried marijuana in September of 2018 for morning sickness but when it didn't help, mother was able to stop using marijuana as evidenced by the fact she continued to test clean after the December 2018 test.
Following arguments, the juvenile court noted that it had concerns about mother's veracity. The court also noted that mother's evidence had to be taken with "a grain of salt" because there is no time "to verify it." The court also noted the children's statements that mother continued to use marijuana. The court stated: "I appreciate that right now that she's been testing negative and I do believe that. Okay. I don't believe that it takes three months to get marijuana out of somebody's system like she indicates and she said on the stand something inconsistent with what she told the worker that she had just used in November. On the stand she said she hadn't used it except for the very one time in September and that's counter to all the evidence that I have." When the court was determining whether to order reunification services for mother, the court found that mother failed to meet her burden to demonstrate that services were in the best interest of the children by clear and convincing evidence. As such, the court bypassed mother's services but ordered reunification services to both fathers. As to ICWA, the court found that ICWA may apply to I.G.
On May 1, 2019, mother filed her timely notice of appeal challenging the court's jurisdictional and dispositional findings and orders.
DISCUSSION
A. SUBSTANTIAL EVIDENCE SUPPPORTS THE JUVENILE COURT'S ORDER BYPASSING MOTHER'S REUNIFICATION SERVICES
Mother contends that the juvenile court "abused its discretion when it denied reunification services to [mother] while granting them to the presumed fathers of the children." (All caps. omitted.)
1. LEGAL BACKGROUND
Generally, the juvenile court is required to provide reunification services to a child and the child's parents when a child is removed from parental custody under the dependency laws. (§ 361.5, subd. (a).) The purpose of providing reunification services is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) It is also the legislative intent, "that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) "Thus, 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' ." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.).)
When the juvenile court concludes reunification efforts should not be provided, it " ' "fast-tracks" ' " the dependent minor to permanency planning so that permanent out-of-home placement can be arranged. (Jennifer S., supra, 15 Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification services are commonly referred to as " 'bypass' " provisions. (Ibid.) One exception may be found where "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 . . . and that, according to the findings of the court, this parent or guardian 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 that parent or guardian." (§ 361.5, subd. (b)(10).)
Once it has been determined one of the situations enumerated in section 361.5, subdivision (b), applies, " ' " the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. " ' " (In re William B. (2008) 163 Cal.App.4th 1220, 1227; accord, In re A.G. (2012) 207 Cal.App.4th 276, 281.) Therefore, if the juvenile court finds that a provision of section 361.5, subdivision (b), applies, 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).) "The burden is on the parent to . . . show that reunification would serve the best interests of the child." (William B., at p. 1227; accord, A.G., at p. 281.)
2. STANDARD OF REVIEW
"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; see In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) If there is substantial evidence to support the order, the appellate court must uphold the order even if evidence could support a contrary holding. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
3. ANALYSIS
The relevant exception here is contained in subdivision (b)(10) of section 361.5, which allows the juvenile court to deny services to a parent under specific circumstances. "To apply section 361.5, subdivision (b)(10), therefore, the juvenile court must find both that (1) the parent previously failed to reunify with a sibling [or half sibling] and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling [or half sibling]." (In re Albert T. (2006) 144 Cal.App.4th 207, 217, italics added.)
In this case, mother has acknowledged that her reunification services were terminated in Z.A.'s case. Z.A. was removed from mother's custody twice. In September of 2016, he was removed because mother continued to test positive for drugs and alcohol. Thereafter, Z.A. was returned to mother under a family maintenance plan. In January of 2017, Z.A. was removed again because mother used marijuana, opiates and alcohol. Moreover, although Z.A. had diabetes, mother neglected his medical needs. The reasons for removing M.M., S.M., and I.G. in this dependency are identical to those reasons that led to the removal of Z.A.
Here, the children were removed when I.G. tested positive for THC and opiates shortly after birth. Daughters stated that they saw mother using marijuana. M.M. also saw "a pack of weed" in mother's purse when mother sent her to retrieve something from it. M.M. described the substance as being "green" and kept in a container. Mother argues that she was penalized for her recreational use of marijuana when its use is "now acceptable and it has been used by politicians of all stripes (including Presidential candidates); it is used by actors, athletes, business people and is on its way to full legalization throughout this country." Even if the use of marijuana were more commonly accepted in today's society, it was mother's abuse of marijuana and its effects on her children that led to their removal, not simply mother's use of it. Mother was unable to monitor the children's medical needs when daughters required consistent monitoring. Just like Z.A., mother's three other children were diagnosed with diabetes mellitus with a gene mutation that necessitated caloric intake monitoring and daily blood-sugar monitoring. Moreover, I.G. was also diagnosed with neonatal diabetes. At the time of detention, daughters were transported to the hospital for diabetic care. Therefore, mother was not penalized for her use of marijuana. The children were removed from her care when mother was unable to parent them because of her drug use.
Furthermore, even though I.G. and mother tested positive for drugs, mother denied using illegal substances. This showed that mother failed to benefit from prior services and failed to make reasonable efforts to address the same issues that led to the removal of Z.A. In Z.A.'s dependency case, mother admitted using marijuana but did not believe she had a problem because she could stop using. She, however, completed an outpatient program recommended by CFS to be "proactive to show the Courts that [she was] trying everything to get [her] kids back." However, even after she attended the outpatient program and received her substance abuse diagnosis, mother continued to use substances and denied using them. As noted above, mother explained that her positive drug test in December 2018 was a result of her one-time use three months previously.
"We do not read the 'reasonable efforts' language in the bypass provisions to mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to 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." (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.)
Mother participated in an outpatient program in Z.A.'s case. However, even after attending this program, she continued to use and test positive, which led the juvenile court to terminate her services in August of 2018. Thereafter, mother associated with I.G.'s father, who smoked "weed" in front of daughters. M.M. also reported seeing "weed" in mother's purse. Mother then gave birth to I.G., who tested positive for drugs. The evidence, therefore, shows that mother continued to abuse drugs, despite her insistence that she did not. She also failed to meet the children's needs, including their medical needs. Instead of addressing the issues that led to the children's removal, mother made excuses. Moreover, mother argues that the court should have granted her reunification services because both fathers have been granted services. Mother reasons that the "norm should be that, if one parent is entitled to services, then both are in much the same manner." Mother, however, is unable to provide authority to support her argument that the court should have granted mother services because the court granted services to the presumed fathers.
At the jurisdiction and disposition hearing, when the court reached the question of reunification services for mother, the court stated:
"And (b)10 would be obviously true. [¶] And then the court—then the burden shifts to Mom, to provide clear and convincing evidence of reunification is in the best interest of the children. And the only thing that I've heard about that is that Mother is no longer using. [¶] I think the children love her but I don't think there's a long-term, really loving relationship based on the prior cases and her homelessness and things like that, not that I'm punishing her for that, but it has to do with the relationship and the closeness they share. [¶] So I'm considering if I don't give her services how am I hurting these children by potentially severing, you know, that contact with Mother, the relationship possibly, so that's kind of what I'm going through in my mind, whether or not Mother's met her burden that by clear and convincing evidence it's in the best interest of the children to give services, and she has not met that burden."
It is evident from the record that mother's efforts, when considering the duration, extent, and context in the long term, were not reasonable. Based on the foregoing, we conclude that the juvenile court properly bypassed mother's reunification services under section 361.5, subdivision (b)(10).
B. THE ICWA ISSUE IS NOT RIPE FOR REVIEW
In her opening brief, mother has a section entitled "commentary on the applicability of the Indian Child Welfare Act (ICWA)." Mother also concedes that there has been "no formal ruling on ICWA" in this case. She states that she "will limit her comments on the notices in this brief not for the purpose of asking this Court to rule on them but to make sure her concerns are part of the record in the trial court and expects that the trial court and trial counsel will address them in the appropriate manner."
We agree with CFS that "Mother's comments are not ripe for a review because they would require speculation on the trial court's ultimate ICWA findings and order, and also because [mother] cannot identify any reversible error." Ripeness refers to the requirement that a case present a current controversy. (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) The ripeness requirement ensures that courts focus on resolving specific legal disputes, rather than abstract differences of legal opinion, and prevents courts from issuing purely advisory opinions. (Pacific Legal Foundation v. California Coastal Com. (19982) 33 Cal.3d 158, 170-172.)
In In re M.R. (2017) 7 Cal.App.5th 886, the juvenile court found that the ICWA noticing had been initiated and ICWA may apply to the children at the time of the dispositional hearing. (Id. at p. 904.) In their appeal from the disposition findings and orders, both parents challenged the adequacy of the efforts made to comply with the ICWA notice requirements. (Id. at p. 903.) We determined that the dispositional ICWA finding was not a final ruling and concluded that the parents' claim was "simply premature" and declined their invitation to review the adequacy of the noticing under ICWA. (Id. at p. 904.) We noted that the children's juvenile court case was still ongoing and acknowledge that the issue could be addressed in the future. (Id. at p. 904, fn. 9.)
In this case, CFS initiated the ICWA noticing, mailed out and received return receipts. The court found that ICWA may apply to I.G. at the dispositional hearing. I.G. is still a dependent of the court and his presumed father is working on reunifying with I.G. The court, therefore, has not made a final judgment on this issue. Therefore, the issue is premature.
In her reply brief, mother acknowledges that the issue is premature, and hence, was seeking an advisory ruling. She wrote: "Appellant made it clear that the purpose of the comments [she] made about the adequacy of the notices was not to have this court rule on them but to alert the trial court and trial counsel (including the County Counsel) of the problems in the notices. [¶] To put it bluntly, trial courts have a dismal record of policing these notices. This Court, like all of the appellate courts throughout this state, routinely reverses trial court findings on the adequacy of ICWA notices and, very often, voices its frustration about what might be called 'needless reversals.' " Mother continued and stated: "All appellant did in this case was point out arguable errors for the trial court and trial court personnel to consider before the trial court makes any rulings on ICWA and to do so before any permanent plan is selected for these children."
In sum, because there is no final ICWA ruling, the issue is not ripe for review.
DISPOSITION
The juvenile court's jurisdiction findings and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. I concur: RAMIREZ
P. J.
MENETREZ, J., Concurring.
I concur in the judgment only, because I respectfully disagree with the majority's characterization of the record and analysis of the issues presented.
For example, the majority describes Mother as having "an extensive child welfare history dating back to 2011" and encompassing "14 general and severe neglect referrals" (maj. opn. ante, at p. 7), but the majority fails to mention that 10 of those referrals were closed as either unfounded (six) or inconclusive (four). The first substantiated referral was in 2016. The majority also states that the girls' "diabetes was uncontrolled," "Mother was unable to monitor the children's medical needs when daughters required consistent monitoring," and "[a]t the time of detention, daughters were transported to the hospital for diabetic care." (Maj. opn. ante, at pp. 3-4, 13.) But my review of the record has revealed no evidence that the girls' diabetes was uncontrolled or that Mother was in any way neglecting the diabetic care of her daughters when they resided with her before being detained in this case. The majority cites none, and the petitions as to the daughters do not allege medical neglect.
Mother argues that subdivision (b)(10) of Welfare and Institutions Code section 361.5 (section 361.5(b)(10)) does not apply to her. She concedes that her reunification services as to Z.A. were terminated, but she contends that she "subsequently made a reasonable effort to treat the problems" that led to Z.A.'s removal, within the meaning of section 361.5(b)(10). We review application of a bypass provision like section 361.5(b)(10) under the substantial evidence standard. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121-1122.)
The provision concerning subsequent reasonable efforts in section 361.5(b)(10) "provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems." (In re Harmony B. (2005) 125 Cal.App.4th 831, 842.) Reasonable efforts need not be perfect and need not be successful; they need only be reasonable. (In re Albert T. (2006) 144 Cal.App.4th 207, 221.) I therefore disagree with the majority's reasoning that Mother's positive drug tests and denial of drug use constitute substantial evidence of a lack of reasonable efforts. (Maj. opn. ante, at p. 14.) The positive drug tests and denials may show that Mother's efforts (if any) did not succeed, but they do not prove anything about what efforts (if any) Mother undertook or whether they were reasonable.
I nonetheless conclude that the juvenile court's application of section 361.5(b)(10) to Mother is supported by substantial evidence. The bypass provision applies if (1) Mother's reunification services as to a sibling or half sibling were terminated because Mother failed to reunify, and (2) Mother did not subsequently make a reasonable effort to treat the problems that led to the sibling's or half sibling's removal. Mother's reunification services as to Z.A. were terminated in August 2018. Mother cites no evidence of any efforts she undertook between August 2018 and the disposition hearing in May 2019 to treat her substance abuse issues, and my own review of the record has revealed none. Mother refers vaguely to participation in a substance abuse treatment program but with no specified timeframe, and the reports and other evidence generally indicate that the program was part of Z.A.'s case, before Mother's services were terminated. Because I am aware of no efforts—let alone reasonable efforts—by Mother to treat her substance abuse issues after her reunification services as to Z.A. were terminated, I conclude that the juvenile court's application of section 361.5(b)(10) is supported by substantial evidence.
Mother also argues that even if section 361.5(b)(10) does apply to her, the juvenile court should have ordered reunification services for her on the ground that reunification would be in the children's best interest under subdivision (c)(2) of Welfare and Institutions Code section 361.5 (section 361.5(c)(2)). We review the court's decision whether to order reunification services under section 361.5(c)(2) for abuse of discretion. (In re A.E. (2019) 38 Cal.App.5th 1124, 1140-1141.)
Mother argues that "as long as there is a reasonable probability that one parent will maintain contact with the minor, there is also a probability that the child will maintain contact with both parents. In such situations, the minor can only benefit when both parents participate in services and not just one." Because reunification services were ordered for the children's fathers, Mother concludes that reunification services should have been ordered for her as well. Mother further points out that the two older children have lived with Mother for significant periods of time and thus are presumably bonded to her, and she notes that they also appear unlikely to be adopted.
Even taken together, all of those considerations fail to show that the trial court abused its discretion by denying reunification services to Mother. Given Mother's positive tests while she was pregnant with I.G. and while her family reunification case with Z.A. was pending, it was not an abuse of discretion for the juvenile court to determine that successful reunification with Mother was unlikely and that ordering reunification services for Mother was therefore not in the children's best interest. The services ordered for the fathers do not affect that reasoning because they do not make it any more likely that Mother will successfully reunify. And if the two older children are not adopted, then they will be able to maintain their relationship with Mother regardless of whether Mother receives reunification services. Thus none of the considerations identified by Mother, taken either individually or together, shows that it was an abuse of discretion to deny Mother reunification services under section 361.5(c)(2).
Finally, although Mother does not raise the issue (and C.M. admitted the allegations of the petition), I must acknowledge my skepticism about whether the record contains substantial evidence to support the jurisdictional findings as to the girls, M.M. and S.M. The girls were 9 and 8 years old, respectively, at the time of disposition, so they were not helpless and vulnerable infants like I.G. As I have already noted, the record contains no evidence that the girls' diabetes was uncontrolled or that Mother (or C.M.) neglected their diabetic care or other medical care in any respect. The principal issue is Mother's substance use, confirmed by various positive tests for marijuana and opiates when she was pregnant with I.G. The record does not contain the lab reports from any of those tests, and it is noteworthy that some of the statements in the reports are refuted by the lab reports that we do have—for example, the detention and jurisdiction/disposition reports state that on February 13, 2019, "a urine analysis" for I.G. was "positive for THC and Opiates," but the lab report shows that I.G.'s urine analysis that day was negative for all substances. But the fundamental issue is that substance use or abuse is not, in itself, a basis for jurisdiction. Rather, there must be a causal nexus between the substance use and physical harm or risk of physical harm to the children. (In re Rebecca C. (2014) 228 Cal.App.4th 720, 727-728; In re Drake M. (2012) 211 Cal.App.4th 754, 768-769.) Having reviewed the record, I have been unable to locate any evidence that Mother's substance use (or substance abuse) interfered with her ability to parent M.M. and S.M. safely and appropriately or that the girls were not properly cared for when they resided with her before being detained in this case. The only remaining issue is the reports' insinuation that C.M. failed to protect the girls from Mother by allowing them to reside with her. But both Mother and C.M. told the social workers that Mother obtained custody through family court after the previous dependency case closed. The record contains no corroboration or refutation of that story—Mother and C.M. did not introduce copies of the family court custody orders, and the reports do not state that the workers tried to obtain copies (or even the family court case number) from either parent. But C.M. can hardly be faulted for complying with a family court order, if one exists.
I concur in the judgment only.
MENETREZ
J.