Opinion
No. H037694
02-15-2012
S.S., Petitioner, v. SUPERIOR COURT OF SANTA CRUZ Respondent, SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz Super. Ct. No. DP002129)
I. STATEMENT OF THE CASE
S.S. is the mother of D., the child at issue here. S.S. (mother) has filed a petition for an extraordinary writ seeking review of the juvenile court's decision to remove D. from her custody, not provide reunification services, and set the matter for a hearing under Welfare and Institutions Code section 366.26 to determine a permanent plan. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452 (hereafter Rule 8.452).) Mother contends the court abused its discretion in declining to order reunification services.
All further unspecified references are to the Welfare and Institutions Code.
We find no abuse of discretion. Substantial evidence supports findings necessary to deny reunification services. Accordingly, we will deny the petition.
II. BACKGROUND
D. was born in March of 2007. On September 2, 2011, police conducted a probation search of mother's apartment. Present were mother, her four-year-old-son, D., and Richard Kiszka who was also on probation. Inside a bedroom police found a baggie of methamphetamine, a glass pipe, a police scanner, a homemade blunt force weapon, and a police baton. Mother and Kiszka were arrested, mother's father was called to take custody of D. Kiszka tested positive for methamphetamines. Mother was released the next day.
On September 7, 2011, a social worker visited mother. Mother admitted that she had been keeping bad company, not attending substance abuse meetings, doing nothing to maintain her sobriety, and not staying in touch with support people. However, mother repeatedly denied that she had actually relapsed. She also denied knowing anything about the drugs, pipe, or weapons in her apartment. She said she had met Kiszka a month before, suspected that he might be using methamphetamines, but claimed to be unaware that he was under the influence at the time of the search. Mother appeared to be genuinely affected by the fact that D. got very scared and upset when deputies arrived and conducted the search.
On September 14, 2011, the Santa Cruz County Department of Human Services (the Department) filed a juvenile dependency petition under section 300, subdivision (b) generally alleging that D. was at risk of harm due to mother's and father's failure to protect, failure to supervise, and inability to provide regular care due to substance abuse. In addition to summarizing the search and mother's recent arrest while on probation, the petition alleged that mother had chronic substance abuse issues and history of drug and alcohol related criminal conduct dating back to 1990. The petition further alleged that there had been a previous dependency for D. from August 2009 to June 2011, and although it had required mother's participation in substance abuse treatment, testing, counseling, and parenting education, she continued to use drugs and had failed to ameliorate the issues that warranted involvement by the Department and court. The Department sought the removal of D. from mother's custody. After a hearing on September 15, the court ordered D. detained and placed under the care of the Department, which then maintained his placement with his grandfather.
Attached to the petition was an investigative narrative of mother's history.
Because father is not involved in this writ proceeding, we need not summarize the allegations about him.
The Department prepared a report for the jurisdictional hearing, which was eventually set for December 2, 2011 (the Report). The Report outlined mother's criminal history from 1999 to 2011, which included over 20 arrests, mostly drug and theft related, and convictions for driving under the influence, petty theft, possession of stolen property, possession of drugs, burglary, and obstructing a peace officer.
The Report also outlined mother's and D.'s child welfare history. It revealed that around the time of D.'s birth in March 2007, mother was participating in a residential substance abuse treatment program at Mondanaro-Baskin Center as part of a Proposition 36 disposition. In October 2007, mother and father were arrested in a vehicle for being under the influence. D. was with them at the time. Allegations of neglect were substantiated, and D. was released to mother's mother. Thereafter, mother actively engaged support services, attended counseling at a women's center and weekly aftercare at Mondanaro-Baskin Center, submitted to drug testing, and was involved with Primero Pasos.
In November 2008, mother was on probation, and sheriff's deputies conducted a search of her residence. She was out doing laundry, and her boyfriend was watching 18-month-old D. The boyfriend was under the influence, and heroin and methamphetamines and assorted drug paraphernalia were found in a case on the bedroom dresser. Mother arrived home during the search. An investigation of general neglect by mother was deemed inconclusive.
In July 2009, mother was arrested at home, and D. taken into protective custody because mother appeared to be under the influence and drug paraphernalia was found at home. Mother admitted that she smoked a "couple of blows a day." The Department filed a dependency petition alleging general neglect, the petition was sustained, and the court declared D. to be ward.
In September 2009, mother was arrested at home for being under the influence. She had signs and marks of recent drug use and tested positive for opiates and methamphetamines. Syringes and a glass pipe were found in D.'s bedroom. D. was not in mother's custody at the time. The matter was referred to mother's case worker at the time.
Over the course of the first dependency, the court ordered 18 months of reunificiation services, which included substance abuse assessment and treatment, drug testing, counseling, and parenting. During this time, she entered Matrix drug treatment program in August 2009 and was discharged in October for excessive absences and continued drug use. She immediately entered the Janus detox residency program where she stayed for two months. She returned to the Matrix program, where her attendance was perfect. She tested positive in November, December, March, and April. Otherwise, Matrix staff reported that she was doing an outstanding job and was very involved in the recovery community, she could recognize the triggers for relapse, and she had admitted her relapses, sought help, and discussed what she would do differently in the future. Mother also became a group leader at Matrix and graduated from the program in November 2010.
D.'s first dependency was dismissed in June 2011.
The Report further stated that after mother's arrest in September 2011, a social worker spoke to mother's mother (Grandmother). Grandmother reported that mother had relapsed on methamphetamine the day before her previous dependency case had been dismissed. Mother had also told grandmother that she needed to "get clean." Grandmother reported that mother had tried unsuccessfully to get into the Janus drug treatment program and then said she would get clean on her own.
The Report outlined mother's response to the allegations in the current petition. She noted that no criminal charges had been filed against her, and she denied that the drugs and paraphernalia found in the bedroom were hers, noting that she and D. were in the living room at the time. Mother also denied using drugs at the time of her arrest and said she had been clean for over a year, her longest period of sobriety. She admitted a relapse on September 28, 2011, but said she promptly admitted it to the social worker. She explained that at that time she had stopped going to Alcoholics Anonymous (AA) meetings, doing anything, or interacting with anyone. Mother also admitted a "small relapse" a couple of months before her arrest. However, she had immediately tried to get into the Janus detox program. She said she was not active in AA, was in a Janus Relapse Prevention program, participated in panels at Sobriety Works, and worked with a sponsor and had ongoing testing.
The Report recommended that the court declare D. a dependent, not offer mother reunification services, and set a hearing under section 366.26 to determine a permanent plan.
III. THE HEARING AND THE COURT'S RULING
At the hearing, the counsel for the Department highlighted the information it the Report. It noted that before the 2009 dependency, mother had a long history of drug abuse, she had participated in three treatment programs, and she had relapsed after each one. After the 2009 dependency, when D. was two years old, mother had continued to use drugs and was discharged from a treatment program. Nevertheless, she had received 18 months of reunification services and had begun counseling and serious participation in substance abuse treatment. She excelled, convincing her treatment staff that she understood her triggers and recognized relapse behavior. She became a leader in the program. However, just before the case was dismissed, mother relapsed. She was unable to get into a detox program and decided to detox herself.
Eventually, the dependency case was dismissed, and mother regained custody. Even then she relapsed despite her learning and apparent accomplishments during 18 months of rehabilitation services. Finally, counsel opined that when D. lived with mother, the environment was undstable. She noted that although mother seemed to have learned to identify triggers and behavior conducive to relapse during the last dependency reunification period, mother thereafter had a man staying in her apartment who she suspected used drugs and who did use drugs, there were drugs and weapons in the apartment, she denied relapsing herself, and she denied knowing anything about the drugs, paraphernalia, and weapons in the apartment where she lived with D.
Given mother's record, counsel argued that even if mother was a good mother during visitation and when she was sober, she had demonstrated an inability to maintain her sobriety for any more than a year. For these reasons, it was appropriate to bypass reunification.
Counsel for D. agreed with this recommendation. She noted that the court had declared him a dependent when he was two years old, after which he lived with his grandfather. He was returned to mother's custody in December 2010, the case was dismissed in June 2011, and mother relapsed. D. has been back and forth between mother and grandfather for a period of time and was now back with his grandfather, who was the most stable person in his life. That said, counsel for D. recommended that mother have liberal visitation because she had some excellent parenting skills and interacted with D. very well.
Mother did not make a presentation. However, her attorney argued that it was in D.'s best interests to reunify with mother and asked the court to give mother one more chance. Counsel assured the court that mother would be vigilant with her recovery program and stay connected to her support group. Counsel conceded that mother had relapsed but characterized her relapse as brief. Counsel further noted that there was no evidence that mother had tested positive after her recent arrest, and mother had been sincerely affected by D.'s reaction to the probation search. Thereafter, mother had immediately sought to enter treatment and called the social worker and admitted her pre-arrest relapses.
The court was unpersuaded. It noted that the Department had worked hard for many years to help support mother, giving her more opportunities than many because she had responded so well. The court noted that during the last dependency, mother did well at drug rehabilitation and had impressed treatment staff with her serious involvement. However, the court further noted that despite mother's enthusiasm, engagement, and apparent success at rehabilitation in the eyes of treatment staff, sadly and tragically mother had relapsed even before the dependency case was dismissed; and she relapsed again thereafter. Then she returned to a lifestyle very similar to that which caused the first dependency, exposing her young son to drugs and drug users in the house. The court found that mother's repeated cycle—entering drug treatment, achieving some success, and then relapsing—revealed an inability to overcome a chronic drug problem which rendered her unable to provide a safe and stable environment for D., who, because of mother's drug-related problems, had spent more time out of her custody than with her.
Given the record before it, the court found the allegations in the petition true and declared D. to be a ward of the court. Under section 361.5, subdivision (b)(13), the court further ordered that reunification would not be provided, finding that mother had a history of chronic drug abuse, she had been provided court-ordered treatment for years, and she had failed or refused to comply with her rehabilitative program on at least two occasions.
IV. ADEQUACY OF THE WRIT PETITION
The writ procedure outlined in section 366.26, subdivision (l) and implemented in rules 8.452 enables a party to obtain expeditious review of the findings and orders of the juvenile court in setting a section 366.26 hearing. (See Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Trial counsel is not required to file a writ petition if trial counsel believes a petition has no arguable merit, and the filing of any such petition would breach the attorney's professional obligation and would be frivolous. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583-584.) Although mother was represented by appointed counsel, she has filed the instant writ petition in propria persona. Nevertheless, she must still follow the correct rules of procedure. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
Section 366.26, subdivision (l) provides, "(l) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. [¶] (2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section."
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A party seeking extraordinary writ relief is obliged to submit a petition that " 'substantively addresses the specific issues to be challenged and is supported by an adequate record.' " (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 582.) "The petition must be accompanied by a memorandum." (Rule 8 452(a)(2).) The memorandum "must provide a summary of the significant facts," and it must "support each point by argument and citation of authority." (Rule 8.452(b)(1), (b)(2).)
As the Department points out, the mother's petition falls far short of these procedural requirements. Mother does not summarize the significant facts of the case, she makes factual assertions without any citations to the record, she includes material outside the record, and her argument is not supported by any legal authority.
Where the petition is defective, it may be summarily denied. (Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 157 [under former but identical rule of court]; Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956 [same].)
Despite its deficiencies, however, we will entertain the mother's petition on the merits. "The interest at stake in [such] petitions is of extreme importance, as the termination of reunification services in most instances ensures the subsequent termination of parental rights at the section 366.26 hearing." (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 580.) Moreover, the statute encourages reviewing courts to consider such petitions on their merits. (§ 366.26, subd. (l)(4)(B); Steve J. v. Superior Court, supra, 35 Cal.App.4th 798, 807.)
V. PROPRIETY OF THE DISPOSITION ORDER
Generally, we review a court's dispositional order for abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; In re Ronny P. (2004) 117 Cal.App.4th 1204, 1207.) We review the factual findings that the court made in support of its decision under the substantial evidence test. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.) Specifically, we view record in the light most favorable to the court's order, indulging in all reasonable inferences, and uphold the court's findings when supported by substantial evidence. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694; In re Robert H., supra, 96 Cal.App.4th at p. 1330; James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
As best we can tell from mother's petition, her primary challenge is to the court's decision to bypass reuinification services.
Under section 361.5, subdivision (a), reunification services are to be provided whenever a child is removed from the parent's custody. However, subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services can be bypassed. These bypass provisions represent legislative recognition that under certain circumstances reunification services are likely to be fruitless and would not serve the child's interests, and therefore they need not be offered. (In re William B. (2008) 163 Cal.App.4th 1220, 1228; In re Kenneth M. (2004) 123 Cal.App.4th 16, 20; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)
When the juvenile court determines by clear and convincing evidence that one of the enumerated situations exists (§ 361.5, subd. (b)), reunification services shall only be ordered if "the court finds, by clear and convincing evidence, that reunification is in the best interest of the child" (§ 361.5, subd. (c)).
Here, the court denied mother reunification services under section 361.5, subdivision (b)(13), which applies when "the parent or guardian of the child 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, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
In Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, the court held that " 'resisted prior treatment' " meant "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 pp. 1009-1010, italics added [construing language of former section 361.5, subd. (b)(12), italics added; see, e.g., Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [completion of drug treatment program but "failure to maintain any kind of long-term sobriety must be considered resistance to treatment"]; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 [resistance shown by resumption of drug use after period of sobriety].)
The record amply supports the court's finding that mother had a history of chronic drug use from the time she was 19 years old that had led her to engage in criminal behavior and, after D.'s birth, had jeopardized his well-being. The record also establishes that mother had participated in numerous drug treatment programs over the last 10 years—Las Hermanas, Mondanaro Baskin, Janus detox, Matrix program. At her most recent treatment program at Matix, mother appeared to have had great success in the eyes of staff, and she completed the program in November 2010. However, it is undisputed that mother relapsed a few times before completing the Matrix program, testing positive in four different months. She relapsed again after completing the program and just before the first dependency case was dismissed in June 2011. Mother admitted a "small relapse" some months before her arrest on September 2, 2011. On that date, drugs, drug paraphernalia, and a drug user were found in the home where she cared for D., circumstances the court reasonably found to be strikingly similar to those that had led to D.'s first dependency. And after her arrest and D.'s removal, mother admitted a relapse on September 28.
This record provides substantial evidence to support the court's finding that mother had resisted court-ordered treatment, in that her repeated relapses over a lengthy period demonstrated an inability to overcome her chronic addiction and apply and use the knowledge and skills she had gained in the years of participation in treatment programs to maintain a sober life with consistent dependability. Thus, we find substantial evidence to supporting the court's finding under section 361.5, subdivision (b)(13) and its order not to provide reunification services.
Finally, it is undisputed that mother has exposed D. to drugs and drug users in the home from the moment he was born, and the last time she did so was after she had completed the Matrix treatment program. Also, as the court found, D. had spent the majority of his short life not in mother's care because of her chronic addition. Given these circumstances, we conclude that the record supports the court's finding that reunification was not in D.'s best interests.
In her petition, mother claims the court erred in denying reunification services because (1) despite her arrest on September 2, 2011, she was never charged with a crime; (2) at the time of the search, there was no "open case"; (3) she had successfully completed all court-ordered drug treatment programs; (4) she was currently attending parenting class and was scheduled to graduate in a week; (5) she and D. were closely bonded, and he had expressed his love for and desire to be with mother; (6) D. had never actually witnessed mother being arrested; (7) her relapses had been brief incidents and not prolonged periods of drug use; and (8) she was currently enrolled in drug treatment.
Most of this information was before the court through the presentation by mother's attorney and counsel's assurances of mother's commitment to sobriety. The court did not find them sufficiently compelling to overcome the evidence of mother's chronic addiction and resistance to treatment, and we do not find that these circumstances rendered the court's decision arbitrary or unreasonable as a matter of law. It is conceivable that the court could have been persuaded to reject the Department's recommendation against reunification services. However, the court did not do so, and our review begins and ends with a determination as to whether there is any substantial evidence to support the findings underlying the court's decision. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) Even if the circumstances enumerated by mother together with the record reasonably permitted more than one reasonable inference or finding concerning reunification services, we lack the power to substitute our own assessment of the evidence for those of the juvenile court. (Ibid.)
VI. DISPOSITION
The petition for extraordinary relief is denied.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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BAMATTRE-MANOUKIAN, J.