Opinion
E034262.
10-30-2003
TYEISHA E., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Harold Gun Lai, Jr. for Petitioner. No appearance by Respondent. Ronald D. Reitz, County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Real Party in Interest.
Petitioner, Tyeisha E. is the mother of T.E. and challenges the juvenile courts order of August 20, 2003, denying reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 to consider terminating parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Petitioner argues that the juvenile court erred when it looked back across her entire 10-year history of drug abuse to determine that petitioners recent four months of drug treatment do not constitute reasonable efforts to treat the problems that lead to the removal of T.E.s half-siblings. Petitioner asserts that the juvenile court should have assessed the reasonableness of her efforts vis-a-vis the shorter time periods subsequent to termination of reunification services and severing of parental rights concerning her other children, as required by section 361.5, subdivisions (b)(10) and (b)(11).
As explained below, we conclude that the juvenile court correctly assessed petitioners efforts subsequent to the termination of reunification services and severing of parental rights, and that substantial evidence supports the courts conclusion that petitioners efforts have not been reasonable.
FACTUAL AND PROCEDURAL BACKGROUND
On April 14, 2003, petitioner gave birth to a baby girl named T.E. T.E. was born six weeks early and weighed four pounds, five ounces. The Department of Childrens Services (DCS) detained T.E., alleging: 1) failure to protect, in that petitioner has a severe substance abuse problem which impairs her ability to parent and petitioner tested positive for amphetamines and marijuana shortly after giving birth (§ 300, subd (b)); 2) no provision for support, in that the alleged fathers whereabouts and ability to parent were unknown (§ 300, subd. (g)); and 3) abuse of sibling, in that T.E. was at risk of abuse or neglect because petitioner had failed to reunify or resolve the concerns which lead to her parental rights being terminated regarding her four other children (§ 300, subd. (j)).
At the April 24, 2003, detention hearing, the juvenile court found a prima facie case had been established for detention and placed T.E. in the temporary custody of DCS. At the June 30, 2003, jurisdictional hearing, the juvenile court found true the allegations set forth in the original petition. The juvenile court continued the July 23, 2003, dispositional hearing so DCS could address Indian Child Welfare Act issues.
At the August 20, 2003, dispositional hearing, the juvenile court found that petitioner had not made reasonable efforts to address the problems which led to the termination of services and parental rights concerning her other four children. Pursuant to section 361.5, subdivisions (b)(10) and (b)(11), the court ordered that no reunification services be provided. The court scheduled the section 366.26 hearing, to consider whether parental rights should be terminated, for December 17, 2003.
DISCUSSION
Petitioner argues that the juvenile court erred in finding that petitioner should not receive reunification services because she did not make a reasonable effort to treat the problems that lead to the removal of T.E.s half-siblings. More specifically, petitioner argues that the juvenile court erred when it considered her recent drug treatment efforts in light of her entire 10-year history of drug problems, rather than the just the statutorily mandated time periods after the juvenile court terminated reunification services (§ 361.5, subd. (b)(10)) and/or terminated her parental rights to T.E.s siblings (§ 361.5, subd. (b)(11)).
Section 361.5, subdivision (b)(10) provides the reunification services need not be provided to a parent when the court finds by clear and convincing evidence that "the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify . . . [and the parent] has not subsequently made a reasonable effort to treat the problems that led to [the] removal. . . ."
Subdivision (b)(11) applies when "The parental rights of a parent over any sibling or half-sibling of the child have been permanently severed, and . . . this parent has not subsequently made a reasonable effort to treat the problems that led to [the] removal. . . ."
Time Frame
Petitioners concern stems in part from the juvenile courts questions to county counsel during the dispositional hearing as to what time period it should look at in determining whether petitioner had made the required "reasonable efforts." County counsel pointed out petitioners long history with drugs compared to her recent treatment efforts. "Yes, mother has begun to address her substance abuse problem. However, as mother admits, she has a long history of substance abuse, dating back to when she was 13, when she first started using marijuana, and 16 years old when she started using methamphetamines. Shes now 23, so were looking at 10 and 7 years." The juvenile court then queried, "May I inquire: is [the] test of reasonable efforts made to address, does that mark from the time that we take, took jurisdiction or do we look to her whole history in this matter?"
In making its ruling, the court stated that, "Im troubled because if we just depend on when you start the inquiry as to reasonable efforts . . . [¶] And, if we start looking at her in the sense of just the beginning of steps of rehabilitation program, shes made some progress . . . [¶] And that, maybe, has to be measured against a ten-year history where she really hasnt. Shes lost previous children . . . [¶] My concern was, if we were looking at just what shes done since this case started, shes making progress. And thats encouraging. But if we look at the history . . . ."
Upon a close review of the transcript, we conclude that, after the juvenile court engaged in a dialogue with legal counsel and itself to determine the correct time period against which to assess petitioners recent drug treatment efforts, it ultimately rejected the longer 10-year time frame. The court correctly assessed petitioners efforts subsequent to the termination of reunification services and severing of parental rights to T.E.s half-siblings. In making its ruling, the juvenile court stated, "[b]ut if we look at the history, as Mr. Markel has suggested, from the previous child, the last child that was terminated, its not [encouraging]. She hasnt done anything to turn her life around." Mr. Markel, representing DCS, had answered the courts time-frame inquiry with "The relevant time frame dates back to when services and or parental rights were terminated as to the prior children, the prior dependencies. . . . [¶] So, in essence, Mom has had since 1999 and or 2001 to start establishing or trying to make reasonable efforts to address the various problems. Not— the time is not limited to the filing in this petition." Finally, in making its findings, the juvenile court stated, "The court further finds that, parental rights of the mother have been terminated as to [T.E.s half-siblings]. And since that termination, mother has not made reasonable efforts to treat the problems that led to removal of the children." (Emphasis added) Thus, the court ruled on petitioners reasonable efforts during the correct time frame, that is, subsequent to the termination of reunification services and parental rights concerning T.E.s half-siblings. Reasonable Efforts
Petitioner also asserts that she has made reasonable efforts, subsequent to termination of reunification services and parental rights to her other children, to address the problems that led to their removal. As discussed below, we conclude that substantial evidence supports the juvenile courts determination that petitioners efforts were not reasonable.
"When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact. [Citations.] (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Here, petitioners three oldest children were removed from her care in May 1999. Allegations of physical abuse and general neglect were substantiated, though it does not appear that there were any allegations of drug use by petitioner. Reunification services as to those three children were terminated in December 2000. Her parental rights to those children were severed in May 2001. Petitioners fourth child was removed shortly after birth in February 2001, after both petitioner and the infant tested positive for methamphetamines. In July 2001, the juvenile court declared that no reunification services would be offered. Petitioners parental rights to that child were terminated in June 2002.
Substantial evidence supports the juvenile courts conclusion that petitioner has not made reasonable efforts to treat the problems that caused her four other children to be removed. Subsequent to the December 2000 termination of reunification services and the May 2001 termination of parental rights concerning her three oldest children, there is nothing in the record to indicate that petitioner made any effort to address the physical abuse and neglect issues that caused the children to be removed. The record indicates that petitioner stopped visiting her children. Petitioner had completed parenting classes, but did not complete the counseling services and anger management classes that had been offered.
Subsequent to the July 2001 denial of reunification services and June 2002 termination of parental rights to petitioners fourth child, petitioner did not participate in drug treatment, but rather continued using drugs, even while pregnant with T.E. Most significant, petitioner began participating somewhat in drug treatment only after T.E. was removed from her care. The nine-month drug treatment program consists of 4.5 hours daily, four days per week. Of the 58 program days during the months of May, June, July and August, petitioner attended 40 days, with 10 unexcused absences in May and June and eight excused absences (for job searches and scheduled visits with T.E.) in July and August. As the juvenile court pointed out, petitioner did not participate 32 percent of the time. During that time, petitioner did test negative for drugs on every occasion tested, though she did miss one drug test early on in the program.
Petitioner told DCS that she abstained from using methamphetamine from 2000 to the beginning of 2003 and abstained from using marijuana for nine months in 2001 and 2002.
Substantial evidence also supports the juvenile courts determination that petitioner has not made reasonable efforts to address her drug problem since her fourth child was removed at birth in 2001. Petitioners attendance at 68 percent of drug treatment classes in the four months or so after the removal of her fifth child does not negate that she did not seek drug treatment at all after the removal of her fourth child, and in fact, continued to use drugs at least on and off after the removal of the fourth child and during her pregnancy with the fifth child. The juvenile court correctly concluded that these are not reasonable efforts.
DISPOSITION
The petition for extraordinary writ is denied.
We concur: /s/ Hollenhorst J. and /s/ Richli J.