Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review, Jane Cardoza, Judge, Super. Ct. No. 07CEJ300050-2
Kenneth K. Taniguchi, Public Defender, Julie Ann Bowler, Deputy Public Defender, 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 Levy, Acting P.J., Cornell, J., and Gomes, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son, J. 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 J.G. are the parents of two sons, W. and J. In October 2008, when the instant juvenile dependency proceedings were initiated, W. was a dependent of the juvenile court awaiting a new hearing after this court reversed the juvenile court’s jurisdictional and dispositional findings in his case (case No. F053983). Because the facts and circumstances in W.’s case are germane, we will take judicial notice of our opinion in case No. F053983 and incorporate, where relevant, the salient facts.
J.G. did not file a writ petition.
In February 2007, the juvenile court ordered then 10-month-old W. detained from J.G.’s custody based on a juvenile dependency petition filed by the Fresno County Department of Children and Family Services (department) alleging J.G.’s drug use caused her to neglect W. Petitioner appeared early in the proceedings and was conferred presumed father status. He also requested custody of W., which the department opposed based on petitioner’s prior child welfare history pertaining to children he fathered by another woman. The juvenile court found the allegation as to J.G. true and adjudged W. a dependent of the court. The court also ordered the department to assess petitioner for placement.
After assessing petitioner’s request, the department still opposed placing W. in his custody because in 1994 petitioner’s infant son, C., was taken into protective custody amid allegations petitioner physically abused C. and used methamphetamine. The juvenile court removed C. from petitioner’s custody and offered petitioner reunification services. Petitioner completed an outpatient substance abuse treatment program and a parenting program. In 1996, he reunified with C. and the juvenile court terminated its dependency jurisdiction. However, in 2000, petitioner was convicted of possessing a controlled substance and, in 2002, for corporal injury on a spouse/cohabitant. Petitioner entered a six-month residential substance abuse treatment program, which he successfully completed in December 2002.
In June 2007, the department filed a subsequent petition (§ 342) on behalf of W., alleging the facts and circumstances surrounding C.’s removal and petitioner’s subsequent convictions placed W. at risk of harm. Petitioner demurred to the subsequent petition, arguing it failed to show a current risk of harm. However, the juvenile court overruled the demurrer, sustained the petition and, at the dispositional hearing in August 2007, ordered reunification services for petitioner and J.G. In October 2007, petitioner appealed from the juvenile court’s order overruling his demurrer as well as its jurisdictional finding and dispositional orders as to W.
Petitioner’s services plan required him to participate in parenting classes, complete domestic violence, substance abuse and mental health evaluations and follow any recommended treatment and submit to random drug testing. However, petitioner failed to participate in any of the services. As a result, the juvenile court terminated his services as to W. at the six-month review hearing in November 2007.
The juvenile court continued J.G.’s services as to W. and, over the course of the ensuing six months, petitioner and J.G. maintained a romantic but volatile relationship. In November 2007, J.G. told the social worker she and petitioner had a fight and she was staying with her father. She said she could not return to petitioner’s home because he was selling drugs from the home and petitioner kicked her out of the house after she engaged in a physical altercation with his girlfriend. In January 2008, J.G. entered residential substance abuse treatment but left five days later after she hit and kicked petitioner who had come to the facility to visit another resident, a woman with whom he had children. That same month, J.G. told the social worker she relapsed because petitioner had other women coming to the home and she could not take the pressure. Asked why the other women were coming, she explained that petitioner supplied their drug habits.
In May 2008, at the 12-month review hearing, the juvenile court terminated J.G.’s reunification services and set a section 366.26 hearing. However, in June 2008, this court issued its opinion, concluding substantial evidence did not support the juvenile court’s jurisdictional finding as to W. and reversing the juvenile court’s jurisdictional finding and dispositional order.
In August 2008, the department filed a first amended subsequent petition, alleging W. would be at a substantial risk of harm if placed in petitioner’s custody and setting forth two counts pursuant to section 300, subdivision (b). On October 22, 2008, the juvenile court found the allegations true. Meanwhile, in September 2008, J.G. gave birth to petitioner’s son J., the subject of this writ petition. The department removed J. from J.G.’s custody and, on October 23, 2008, filed a dependency petition on J.’s behalf pursuant to section 300, subdivision (j), alleging petitioner and J.G. neglected W. and their continuing substance abuse and failure to comply with court-ordered services placed J. at a similar risk of harm.
Petitioner told the social worker he could not care for J. because he was trying to reunify with W. and work to support himself and could not do everything. He denied using drugs and refused to drug test. However, on October 23, 2008, he submitted a hair follicle for testing and the results were positive for methamphetamine at levels indicative of excessive and ongoing use. According to the substance abuse specialist, hair follicle testing detects drug use only during that period from 14 days to three months from the date tested. Consequently, he estimated, petitioner could have used methamphetamine anywhere from July 23 to October 9, 2008.
In October 2008, the juvenile court ordered J. detained and ordered petitioner to participate in the same services it ordered at the dispositional hearing for W. in August 2007. In January 2009, at a contested jurisdictional hearing, the juvenile court adjudged J. a dependent of the court. At that same hearing, the juvenile court conducted the dispositional hearing as to W., adopted as petitioner’s reunification services plan the services already ordered and set the six-month review hearing for July 2009.
In April 2009, the juvenile court granted the department’s motion to move J. from his foster home in Fresno and place him with his great-uncle in Long Beach who also had custody of W. The great-uncle expressed an interest in adopting both W. and J.
The dispositional hearing as to J. was continued multiple times and conducted in May 2009. Meanwhile, the department filed its dispositional report, recommending the court deny petitioner reunification services pursuant to section 361.5, subdivision (b)(13) because of his continued drug use despite completion of two court-ordered treatment programs. The department also recommended the court deny J.G. services. In addition, the department opined it would not be in J.’s best interests to provide his parents services because it was unlikely they would make significant progress within the six-month statutory timeframe for reunification given their failure to benefit from services ordered in W.’s case, failure to participate in services ordered at the detention hearing for J. and their failure to maintain regular contact with the department.
Neither petitioner nor J.G. personally appeared at the dispositional hearing in May 2009. At the conclusion of the hearing, the juvenile court removed J. from their custody, denied them reunification services as recommended and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues the juvenile court abused its discretion in denying him reunification services for J. We disagree.
“The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) The duty of a court reviewing a denial of reunification services is “to determine whether there is any substantial evidence to support the juvenile court's findings. In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]” (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
Section 361.5, subdivision (b) grants the juvenile court discretion to deny reunification services when it finds clear and convincing evidence the parent is described by any of 15 enumerated paragraphs. In this case, the juvenile court denied petitioner reunification services pursuant to subdivision (b)(13) of section 361.5 (subdivision (b)(13)), which provides in relevant part:
“(b) Reunification services need not be provided to a parent … when the court finds, by clear and convincing evidence …: [¶ ] … [¶ ] (13) [t]hat the parent … 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.…”
Petitioner does not contend there was insufficient evidence he has a history of extensive, abusive, and chronic use of drugs or alcohol or that he resisted prior court-ordered treatment by testing positive for methamphetamine. Rather, he points out that he sufficiently abstained from drug use such that C. was returned to his custody in 1996.
The fact that petitioner successfully reunified with C. 13 years ago is not germane to the applicability of subdivision (b)(13) in this case. The question is whether he was provided court-ordered substance abuse treatment, and then three years prior to the filing of the dependency petition as to J., resisted that treatment. Here, there is irrefutable evidence that he did. He completed two court-ordered treatment programs, the last one in 2002. In addition, according to hair-follicle testing, he was using methamphetamine sometime between July 23 to October 9, 2008, in amounts and frequency indicative of excessive and ongoing use. Resumption of regular drug use after a period of sobriety has been held to constitute resistance to treatment under the statute. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.) Further, the resistance occurred prior to the filing of J.’s dependency petition on October 23, 2008. Consequently, the juvenile court properly found a statutory basis for denying petitioner reunification services under subdivision (b)(13).
Further, having found subdivision (b)(13) applicable, the juvenile court was foreclosed from ordering reunification services unless it found by clear and convincing evidence that reunification would serve J.’s best interest. (§ 361.5, subd. (c).) In this case, there is no evidence that granting petitioner reunification services would serve J.’s best interest. Rather, the evidence is to the contrary. Petitioner stated he had no interest in reunifying with J., preferring rather to focus his efforts on reunifying with W. Beyond that, petitioner was afforded opportunities to engage in reunification services for W. and J. and proved himself noncompliant.
“The court shall not order reunification for a parent … 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.”
Nevertheless, petitioner contends the juvenile court was not acting in J.’s best interest when it denied him services to reunify with J. at “virtually the same time” it granted him services to reunify with W. This is particularly “untenable,” he argues, in light of the court’s order placing them in the same home. Additionally, he contends the juvenile court erroneously considered the department’s assertion he would not likely progress in the six months when it decided to deny him services. We disagree.
The child's “best interests” is a complex concept that requires a juvenile court to consider a number of factors that will vary according to each child’s needs and circumstances. Though W. and J. were juvenile court dependents at the same time, their cases were tracking separately. Consequently, their personal circumstances were different. Further, the juvenile court’s decisions to order services for W. and deny them for J. did not occur as close in time as petitioner suggests. Rather, there was a four-month lapse between the January 2009 dispositional hearing in W.’s case and the May 2009 dispositional hearing in J.’s, certainly enough time for circumstances to change. More importantly, however, we are not reviewing the juvenile court’s order granting petitioner reunification services in W.’s case. We are reviewing its order denying him services as to J. and, as we have already stated, it did not abuse its discretion in doing so.
Finally, we address briefly petitioner’s contentions that J.’s placement with W. should have weighed in favor of ordering services and the department’s opinion he would not progress with services should not have been considered at all. The juvenile court’s decision to allow J.’s placement with W. is exactly that--a placement not a services issue. Further, assuming the juvenile court considered petitioner a poor candidate for services, it was correct in doing so. Petitioner’s refusal to participate in reunification services was a bona fide consideration in determining whether provision of services would serve J.’s best interest. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.)
Based on the foregoing, we conclude the juvenile court did not abuse its discretion in denying petitioner reunification services as to J.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.