Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for extraordinary writ review, No. 82981-5, Jamileh Schwartzbart, Commissioner.
Brent C. Woodward, for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
Petitioner (father) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his infant son B.T.M. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and his girlfriend, K.M., an intact couple, each have a 20-plus year history of marijuana use, which resulted in the severance of their parental rights to their son B.M., who was removed from their custody in February 2006 after a sheriff’s deputy arrived at their home to arrest K.M. for fraud. When the deputy entered the apartment, he smelled a strong odor of marijuana and both parents appeared to be under the influence of some drug. There was also little food and the apartment was filthy and strewn with piles of trash and laundry. B.M. was wet and dirty and his hair was matted and uncombed.
K.M. also filed a writ petition (F056558).
The social services department (department) took B.M. into protective custody and the juvenile court exercised dependency jurisdiction after sustaining allegations petitioner and K.M.’s substance abuse contributed to their inability to provide B.M. a safe and sanitary home. At the disposition hearing, the juvenile court ordered reunification services for petitioner only. Petitioner’s services included drug treatment and random drug testing. Petitioner failed to comply and, in late October 2007, the juvenile court terminated petitioner and K.M.’s parental rights to B.M.
In June 2008, K.M. gave birth to petitioner’s second son, B.T.M., who was taken into protective custody at birth after K.M. tested positive for marijuana. Two days after B.T.M.’s birth, petitioner also tested positive for marijuana. B.T.M. was not tested and, upon his release from the hospital, was placed in foster care.
The department filed a dependency petition alleging petitioner and K.M. continued to use marijuana, placing B.T.M. at risk of neglect. The juvenile court ordered B.T.M. detained and ordered the department to arrange weekly supervised visitation and refer petitioner and K.M. for parenting classes, substance abuse and mental health evaluations, domestic violence assessments, and random drug testing. That same day, petitioner completed a domestic violence assessment and no treatment was recommended. He also completed a substance abuse evaluation.
During his substance abuse evaluation, petitioner disclosed a 21-year history of marijuana use. He stated he last smoked marijuana a few days before the evaluation. He reported the only time he participated in substance abuse treatment was while attempting to reunify with B.M. Though he did not complete the treatment program, he maintained sobriety for a year. He relapsed after failing to reunite with B.M. but stated he was ready for a change and was eager to begin a new substance abuse treatment program. The evaluator recommended petitioner complete intensive outpatient substance abuse treatment, attend 12-step meetings, and submit to random drug testing.
Petitioner participated in less intensive outpatient treatment until August 2008 when he entered intensive outpatient treatment. Meanwhile, he tested positive for marijuana twice in June and for cocaine three times in July.
In mid-July 2008, petitioner and K.M. met with the social worker and the mediator to discuss the department’s allegations. Petitioner and K.M. were willing to submit to the allegations, modified only to correct B.M. and B.T.M.’s names.
Petitioner and K.M. waived their trial rights on the allegations and, at the jurisdictional hearing in July 2008, the juvenile court found the allegations true and adjudged B.T.M. a dependent child of the court. The court also set the matter for disposition.
In November 2008, the department filed its dispositional report. By that time, petitioner had completed his mental health evaluation and was not recommended for treatment. He was also attending multiple weekly Narcotics Anonymous meetings and was scheduled to complete his parenting class in mid-November. However, despite petitioner’s progress, the department recommended the court deny petitioner reunification services under section 361.5, subdivision (b)(11) and (13) because of his extensive drug use, resistance to treatment, and failure to make reasonable efforts to treat his drug problem after his parental rights to B.M. were terminated. The department recommended the court deny services to K.M. on the same grounds plus one other. Further, the department reported petitioner and K.M. visited B.T.M. twice weekly. However, B.T.M. was not bonded to them. For that reason as well as the extensiveness and untreated nature of petitioner and K.M.’s drug use, the department opined reunification would not serve B.T.M.’s best interest.
Petitioner and K.M. objected to the department’s recommendations and a contested dispositional hearing was conducted over several days in November 2008. Petitioner and K.M. argued their progress warranted an order for reunification services.
At the dispositional hearing, petitioner testified he completed inpatient drug treatment in October 2007 and was transitioning to outpatient drug treatment. He explained he was doing much better in drug treatment this time because he was more focused on his sobriety. He also testified he and K.M. were prepared to resume custody of B.T.M.
The social worker testified petitioner and K.M. were progressing well but she did not advocate for reunification services because of their long-standing drug use. She also testified approximately two weeks prior to the hearing, B.T.M. was placed in a new home but the caregivers were not willing to adopt him. She expected he would be moved again to a “risk adopt home.” The social worker did not anticipate B.T.M. would have difficulty attaching to new caregivers and did not believe the recentness of his change in placement weighed in favor of finding it in his best interest to reunify with petitioner and K.M.
At the conclusion of the hearing, the juvenile court ordered B.T.M. removed from petitioner and K.M.’s custody and denied them services (petitioner under section 361.5, subdivision (b)(11) and K.M. under section 361.5, subdivision (b)(10) and (11)). In doing so, the court found significant their continued drug use while participating in services. Further, the court did not equate their participation in services with sufficient reasonable efforts to treat the problems that led to B.T.M.’s removal as referred to in section 361.5, subdivision (b)(10) and (11). The court also found it would not be in B.T.M.’s best interest to provide petitioner and K.M. services. Having so found, the court set a section 366.26 hearing. This petition ensued.
DISCUSSION
Denial of Reunification Services
A. Denial of Services under Section 361.5, subdivision (b)(11)
Petitioner contends the juvenile court erred in denying him reunification services under section 361.5, subdivision (b)(11) (subdivision (b)(11)) because he made reasonable efforts to resolve his drug abuse. We disagree.
The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent unless the court finds by clear and convincing evidence that one of 15 exceptions set forth in section 361.5, subdivision (b), applies. The applicable exception, subdivision (b)(11), authorizes the denial of reunification services if the court finds,
“[t]hat the parental rights of a parent over any sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent 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 the parent.”
Petitioner does not dispute the first prong has been satisfied nor could he. The court terminated petitioner’s parental rights over B.T.M.’s brother B.M. Rather, petitioner contends there was insufficient evidence to show he failed to make subsequent reasonable efforts to address his drug use after his parental rights to B.M. were terminated. To that end, he claims the only evidence of his drug use following the termination of his parental rights was the positive test results in June and July 2008. Aside from that, he contends, the only other evidence of his drug use was his history which, he claims, the court weighed too heavily. Instead, he argues the court could have and should have concluded his compliance with services ordered after B.T.M.’s detention constituted subsequent reasonable efforts under subdivision (b)(11).
We review the court’s determination of whether reasonable efforts were made in the light most favorable to the judgment below to determine whether the decision is supported by substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In this case, we conclude that it is.
First, evidence of petitioner’s marijuana and cocaine use in June and July 2008 was not the only evidence he continued to use drugs after his parental rights to B.M. were terminated. He admitted relapsing after he was told B.M. would be adopted and tested positive for marijuana just days after B.T.M.’s birth. More compellingly still, he raised no challenge to the department’s allegations he continued to use marijuana despite receiving substance abuse treatment during B.M.’s dependency. These allegations were found true and formed the basis of the juvenile court’s dependency jurisdiction. The foregoing facts provide more than sufficient evidence of petitioner’s ongoing drug use.
Secondly, while every effort should be made to save a parent’s relationship with a child despite the parent’s history of substantial misconduct (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464), the “‘no-reasonable effort’” clause was not intended to provide a parent, such as petitioner, another opportunity to address his underlying problem when he failed to do so between termination of his parental rights to one child and removal of the second. (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.) Rather, it was intended to mitigate an otherwise harsh result in the case of a parent who, in the meantime, worked toward correcting the underlying problem. (Id. at p. 842.) In light of petitioner’s failure to address his drug use prior to B.T.M.’s detention, we conclude the juvenile court correctly applied subdivision (b)(11) in petitioner’s case.
In re Harmony B. (2005), supra, 125 Cal.App.4th 831 actually discusses section 361.5, subdivision (b)(10), which applies to a parent whose reunification services to another child have been terminated, but the “reasonable effort” language is the same as in subdivision (b)(11).
B. Best Interest of the Child
Notwithstanding the applicability of subdivision (b)(11), the juvenile court could have exercised its discretion and ordered reunification services on a finding it would serve B.T.M.’s best interest. (§ 361.5, subd. (c).) Petitioner argues it was error not to because he regularly visited B.T.M. and because B.T.M., having been recently placed with new caregivers, was no more bonded to them than to petitioner and K.M.
In reviewing the juvenile court’s determination reunification services will not benefit the child, we apply the abuse of discretion standard rather than, as petitioner asserts, the substantial evidence test. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) To prevail on an abuse of discretion argument, petitioner would have to show the juvenile court’s decision not to order reunification services was arbitrary, capricious or exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) As applied to these facts, we find no abuse of discretion. Petitioner’s prognosis for successful reunification was poor given the extensiveness of his drug use and failure to benefit from services. In addition, though petitioner regularly visited and acted appropriately with B.T.M., B.T.M. was not bonded to him. Based on the foregoing, we find no error in the juvenile court’s order denying petitioner reunification services.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.