Opinion
A154037
06-25-2018
C.T., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-01223)
By this petition for extraordinary relief, the mother of Wesley G., seeks relief from orders denying reunification services and setting a hearing to select a permanent plan for the child. She contends the evidence does not support the court's denial of services and the court improperly delegated discretion over ongoing visitation. We deny the petition.
BACKGROUND
Wesley was born in November 2017. He and petitioner both tested positive for methamphetamine at the time of his birth. A juvenile dependency petition (Welf. & Inst. Code, § 300) filed on November 28, 2017, alleged that he was at substantial risk of harm in petitioner's care for this reason, as well as due to petitioner's history of substance abuse dating to around 1999, mental health disorders, and history of domestic violence with the alleged father, Michael G. Wesley was detained and supervised visitation was ordered for petitioner. The dependency petition was sustained on January 18, 2018, on petitioner's plea of no contest.
All further statutory references will be to the Welfare and Institutions Code.
Petitioner has a long history of substance abuse, having started to use methamphetamine at age 14. She entered a treatment program at Wollam House at age 19, after which she was clean and sober for 12 years, but she relapsed in 2015. Her parents took guardianship of her two older children because she "didn't want to drag [her] kids in my mess." For the following two years petitioner had periods of being clean for a few weeks, then using consistently. She reported having last used on November 22, 2017, the day before Wesley was born, and having also used approximately three weeks before.
Petitioner has an extensive criminal history including felony convictions for vehicle theft and burglary, misdemeanor convictions for use of a controlled substance, possession of a controlled substance, driving under the influence of alcohol, vandalism, receiving stolen property, theft, and driving with a suspended license, and numerous arrests resulting in citations and charges dismissed in furtherance of justice. At the time the dependency petition was filed, she was on probation for burglary in Contra Costa County and for possession of a stolen vehicle in Napa County. Her Contra Costa probation officer reported that she had recommended an inpatient substance abuse program "to no avail," and that petitioner had been in custody from September 27 to October 13, 2017, for reasons including testing positive for methamphetamine.
The record reflects seven arrests for driving under the influence of alcohol/drugs during the years petitioner described as the period of sobriety, two resulting in convictions and the others in citations.
The alleged father also had an extensive criminal history and history of substance abuse. There was a domestic dispute in November 2016 in which, by petitioner's description, she hit him first and he responded by hitting her and breaking her nose. Michael G. was in jail when Wesley was born. The court later found that he was not the father, and petitioner stated at the January 18, 2018 hearing that she had ended her relationship with him.
The detention report described petitioner as cooperative, fully recognizing her need for substance abuse treatment and intent on obtaining treatment and keeping her child. Upon leaving the hospital after Wesley's birth, petitioner enrolled in a 60-day treatment program at Wollam House on November 27, which she completed on January 26, 2018. Medi-Cal denied coverage for an additional 30 days, finding a lack of medical necessity. A supervisor at the program reported that petitioner did well in the program but still needed to work on anger management and relationship issues with Michael G. and with her family. According to the supervisor, petitioner's prognosis was " 'fair' " if she followed all the aftercare directions, which included participating in outpatient treatment and in a 12-step program, getting a sponsor and building a positive support system. Petitioner was scheduled to begin the Ujima East Outpatient Program (Ujima) on February 6, 2018.
Petitioner was referred for drug and alcohol testing on November 29, 2017, tested negative on three dates in December, missed tests on two dates due to being in the hospital, and had negative tests on four dates in January. On the occasion of the first missed test, she was tested at the hospital, with negative results. On the second occasion, she reported that her request for testing was denied, but she tested negative at Wollam two days later.
Appellant had visits with Wesley approximately twice a week, for two to three hours, both while she was in the Wollam House program and afterward. The visits reportedly went well.
The Children and Family Services Bureau (Bureau) initially recommended reunification services for petitioner, noting her strong desire for reunification and "extensive and immediate" participation in and compliance with services. The disposition report, however expressed "strong concerns" about petitioner's relationship with Michael G. and stated that while petitioner reported having terminated contact with him, in light of her "extensive criminal history, and extensive pattern of substance use, recovery, and relapse, the Bureau needs to see [petitioner] demonstrate her sobriety and choice of healthy relationships over time" before recommending that Wesley be returned to her care.
Petitioner failed to appear for the scheduled disposition hearing on March 1, 2018. County counsel related the social worker's report that petitioner had missed her drug test the week before, missed her visit with Wesley that week and was now married to Michael G. The court suggested that the case might fall within the statutory provision for bypass of reunification services based on failed attempts at treatment for chronic substance abuse.
A few weeks later, the Bureau changed its recommendation to bypass under section 361.5, subdivision (b)(13). The Bureau reported that petitioner was living with Michael G.'s mother but stated that Michael G. was not allowed in the home, and that marrying him was a " 'stupid' and 'spur of the moment' " decision and she was no longer with him. She had had negative drug tests on February 8 and March 13, but had missed tests on five dates in February and March. Petitioner told the social worker she had missed one of the tests because her car broke down and another because she was in the hospital, and claimed to have documentation of both, but the social worker had not yet received any documentation. The other missed tests were apparently not explained. Petitioner's visitation had been "inconsistent": She cancelled a visit on February 28, saying her car broke down, and failed to confirm a visit on March 7, resulting in it being cancelled, but appeared for the scheduled visit on March 14. Petitioner had attended her February 6 appointment at the Ujima program but had not completed the intake or started any services there; she was scheduled for another intake appointment on March 19. The Bureau had been informed of a February 7, 2017, Napa County probation order requiring appellant to "immediately enroll in, pay for, and successfully complete an outpatient treatment program or a residential treatment program if required and as chosen by the Probation Officer."
Counsel for the minor supported the Bureau's recommendation for bypass.
The court found the bypass provision applicable, adopted the Bureau's recommendations and set the matter for a section 366.26 hearing.
DISCUSSION
Section 361.5, subdivision (b), provides in pertinent part: "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: [¶] . . . [¶] (13) That 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." Section 361.5, subdivision (c)(2), directs that "[t]he court shall not order reunification for a parent or guardian described in paragraph . . . (13) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (Id., subd. (c)(2).)
In finding the provisions of section 361.5, subdivision (b)(13), applicable, the juvenile court noted petitioner's "extraordinary and extensive history" and the fact that after the Napa County Superior Court ordered substance abuse treatment in February 2017, Wesley was exposed to methamphetamine in utero. The court noted that the Bureau initially gave petitioner "the benefit of the doubt" and took an "optimistic" view, but petitioner then missed five drug tests, which the court viewed as creating a reasonable inference that she "has not been clean." Petitioner claimed she had been clean but the court felt the missed tests and her actions "suggest[ed] otherwise, including her choice to marry, her lack of consistent visitation, her failure to show up to drug test and her failure to enroll and participate in outpatient treatment in a timely fashion." The court also noted petitioner's "extraordinary" criminal history, almost all of which it saw as related to substance use and abuse. The court applauded petitioner's completion of the Wollam House program but found she had not addressed her substance abuse issues since, stated it could not find clear and convincing evidence that offering services would be in Wesley's best interest.
We review an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Petitioner contends such evidence is lacking here because the Napa County court order did not direct her to immediately engage in treatment but instead gave the probation officer discretion as to whether treatment was needed, and "it is unclear how much of a delay there was between probation directing [petitioner] to enter program and her participation in and graduation from Wollam House." She argues that completion of the Wollam House program was considered to fulfill the requirements of the criminal court order, that she was scheduled for another intake appointment at the Ujima program at the time of the disposition hearing, that although she missed some drug tests, those she took were negative, and that she was in and out of the hospital with significant health concerns.
This assertion is puzzling. The Bureau's update, dated March 19 and filed March 26, states that staff at the Ujima informed the social worker that petitioner was scheduled for another intake appointment on March 19. The disposition hearing occurred on March 27, and no mention was made of petitioner having engaged with the Ujima program.
Section 361.5, subdivision (b)(13), "reflects 'a legislative determination that an attempt to facilitate reunification between a parent and child generally is not in the minor's best interests when the parent is shown to be a chronic abuser of drugs who has resisted prior treatment for drug abuse. [Citation.] In effect, the Legislature has recognized that, under those circumstances, "it may be fruitless to provide reunification services. . . ." [Citation.]' (In re Levi U. (2000) 78 Cal.App.4th 191, 200.) Resistance to prior treatment for chronic use of drugs may be shown where the parent has participated in a substance abuse treatment program but continues to abuse illicit drugs. (Ibid.)" (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.) Resistance to treatment may be shown by evidence of resumed drug use after treatment, as well as by evidence of direct action such as dropping out of programs. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 206; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780.) In In re William B. (2008) 163 Cal.App.4th 1220, 1230, for example, the father's resumption of regular drug use after participating in court-ordered treatment was held to demonstrate resistance to treatment.
Here, the Napa County probation order entered nine months before Wesley's birth required petitioner to participate in drug treatment at the direction of the probation officer. The probation officer referred her for in-patient treatment and reported that petitioner did not follow through. Petitioner admitted using methamphetamine twice during her pregnancy, and Wesley was born with methamphetamine in his system. Petitioner then participated in and completed a 60-day outpatient treatment program but failed to follow through on the outpatient services that were "part of her after care treatment plan" from the residential program. She missed a number of drug tests, which, "without adequate justification, is 'properly considered the equivalent of a positive test result . . . .' " (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384, quoting In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.) She became inconsistent in her visitation with Wesley, and failed to appear for the originally scheduled disposition hearing. These facts constitute substantial evidence supporting the juvenile court's conclusion that petitioner resisted court-ordered treatment within the meaning of section 361.5, subdivision (b)(13).
At the disposition hearing, petitioner represented that she did not immediately enter a program because she was in jail "most of last year," her case was being transferred to Contra Costa County and the Napa County probation officer considered her 60-day Wollam House program as satisfying the probation requirement. County counsel confirmed that the Napa probation officer believed the requirement was satisfied. The assertion that petitioner was in jail "most of last year" is difficult to reconcile with the criminal history reported by the Bureau. That history indicates petitioner was sentenced in the Napa case on June 22, 2016, to three years' probation with 152 days in jail, which presumably had been served by the time the probation order concerning treatment was made on February 7, 2017, due to petitioner having tested positive for methamphetamine in December 2016, and admitted using on January 8, 2017. No further jail time is indicated in the criminal history until September 21 and 27, 2017, when sentences of 52 days and 20 days were imposed.
Petitioner told the social worker on March 7 that she was experiencing medical issues, and that she had missed one of her drug tests because she was in the hospital, but neither the record nor petitioner's brief in this court offer any explanation of how these problems excused her failure to address her substance abuse issues. As of March 19, she had not provided documentation of the hospital visit. The social worker reported having "empathized" with petitioner about the medical problems but "explained that part of the dependency process is the Bureau assess [petitioner's] ability to navigate life's obstacles in order to address the needs of her child."
Petitioner also challenges the juvenile court's refusal to order reunification services under section 361.5, subdivision (c)(2), which permitted the court to order such services despite the applicability of subdivision (b)(13) upon a finding that reunification was in Wesley's best interest. We review the court's decision for abuse of discretion. (In re William B., supra, 163 Cal.App.4th at p. 1229.) Petitioner urges that the court should have ordered services because of her "immediate and significant efforts" to address her problems after Wesley's birth, her record of positive visitation, and the fact that Wesley was not in a concurrent placement and therefore no consideration of stability in his placement or bond with his caregiver militated against providing services to petitioner.
" '[T]o 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; see also William B., supra, 163 Cal.App.4th at p. 1228.) It is the parent's burden to prove that the minor would benefit from the provision of court-ordered services." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.) Petitioner focuses on her efforts immediately following Wesley's birth (which the juvenile court applauded) but ignores the evidence that she failed to follow through on that progress and thereby resisted treatment for her long standing substance abuse issues. For the reasons stated above, and considering Wesley's very young age and the fact that he had never lived with petitioner, we cannot fault the juvenile court's conclusion that there was not clear and convincing evidence reunification would be in Wesley's best interest. Accordingly, the juvenile court did not abuse its discretion.
Petitioner relies upon Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, (Renee J.) and In re Albert T. (2006) 144 Cal.App.4th 207 (Albert T.), which applied the principle that "[i]f the evidence suggests that despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so," as the "primary focus of the trial court must be to save troubled families." (Renee J., at p. 1461; Albert T., at p. 218.) Both cases involved the statutory provision for bypass of reunification services where a parent has been unsuccessful in reunifying with another child and has failed to make a reasonable effort to treat the problems leading to the sibling's removal. (§ 361.5, subd. (b)(10).) Both cases reversed denial of services where the evidence showed the parent had made reasonable efforts with respect to the child in question. (Renee J., at pp. 1464-1465; Albert T., at pp. 218-222.) The present case involves a different bypass provision and, as we have explained, substantial evidence supports application of the provision. Because Renee J. and Albert T. found the juvenile court had improperly applied the relevant bypass provision, neither opinion had occasion to discuss the directive of section 361.5, subdivision (c), that reunification not be ordered for a parent described in one of the enumerated bypass provisions "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child."
Finally, petitioner contends the juvenile court abused its discretion by "in essence" delegating to the Bureau discretion as to whether visitation should continue. At the hearing on March 27, after explaining its decision to deny services, the court adopted the Bureau's recommendations, which included petitioner having supervised visitation a minimum of one hour per month. After the court ordered petitioner to appear for the section 366.26 hearing and informed her of her right to challenge the court's orders, counsel for the minor began to address a potential placement with a friend of the present temporary caretaker. Petitioner became upset and disruptive, causing the court to order her to leave the courtroom. The court stated for the record, "The record should reflect that the mother just referred to the court as a dumb bitch as she slammed the door open and left the courtroom, and she's screaming in the hallway." The discussion then returned to the potential placement. At the conclusion of the hearing, the court stated, "I am a little concerned about mother and her behavior here in court and her volatility level as she left, which is rather consistent with her history, and the court has ordered Mr. [G.] out of the courtroom and no contact because he is incredibly volatile and disruptive. I will allow the visitation order to remain for now, but if mother becomes disruptive or combative at any time during any visit with this child, visits are suspended pending return to court."
Petitioner emphasizes the importance of visitation, even after reunification services are terminated. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) When reunification services are terminated after having been provided, the court must permit continued visitation unless it finds visitation would be detrimental to the child. (§ 366.21, subd. (h).) When reunification services are denied, the statutory language is permissive (In re J.N. (2006) 138 Cal.App.4th 450, 458-459)—"the court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." (§ 361.5, subd. (f), italics added.) But if the court orders visitation, it must "ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur." (Hunter S., at p. 1505.) The court "may delegate the responsibility of managing the details of visitation—including time, place, and manner—but not the decision whether visitation will occur." (In re Kyle E. (2010) 185 Cal.App.4th 1130, 1135.) "[T]he power to decide whether any visitation occurs belongs to the court alone." (In re S.H. (2003) 111 Cal.App.4th 310, 317.)
Here, the court did specify a minimum level of visitation—one hour, once per month. Petitioner maintains that by allowing the Bureau to suspend visits if she became "disruptive" or "combative," the court gave the Bureau authority to terminate visits "absent a detriment finding based on a subjective assessment of [petitioner's] behavior." We disagree with petitioner's view that this amounted to an improper delegation of authority. The court had observed conduct by petitioner that would be of obvious concern if it occurred during visitation. It did not give the Bureau authority to terminate visitation, only to suspend visits "pending return to court." The court thus reserved for itself the ultimate decision whether "any" visitation would occur, but gave the Bureau authority to manage visitation to ensure the child's well-being. We find no abuse of discretion.
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.