Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for Extraordinary Writ. Donna Levin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. CK38814
Law Offices of Timothy Martella, Trane Martin Hunter and Melissa A. Chaitin for Petitioner.
Andrea Ordin, County Counsel, James M. Owens, Assistant County Counsel and Jeanette Cauble, Senior Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.
No appearance for Real Parties in Interest C.O., Ernesto, Jr., T.O. and R.W.
TURNER, P. J.
I. INTRODUCTION
D.W., the mother, has filed a mandate petition challenging an order refusing to provide reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10), (11) and (13). The juvenile court’s October 5, 2011 order refused to provide reunification proceedings for the children, C.O., Ernesto O., Jr., (Ernesto, Jr.), T.O. and R.W. R.C. is the now deceased father of R.W. Ernesto O., Sr., (Ernesto, Sr.) is the father of C.O., Ernesto, Jr. and T.O. We deny the petition.
Future statutory references are to the Welfare and Institutions Code.
II. PROCEDURAL HISTORY
A. March 1, 2011 Petition-C.O., Ernesto, Jr. And T.O.
On March 1, 2011, the Department of Children and Family Services (the department) filed a section 300 petition. Named as parents were the mother and Ernesto, Sr. Their children were identified as: C.O., 4 years of age; Ernesto, Jr., age 2 years; and T.O., less than one-year old. C.O., Ernesto, Jr. and T.O. were ordered detained. As will be noted, R.W. was not yet born when the March 1, 2011 petition was filed.
B. June 17, 2011-The Mother’s Abortive No Contest Plea
Stacy Miller prepared an Adjudication/Disposition report which is dated August 5, 2011. On June 17, 2011, the mother entered a no contest plea to various parts of the petition. As will be noted, at first, the department did not object to the provision of reunification services. The children’s counsel, Ana Inguanzo, objected to the provision of reunification services and a contested disposition hearing commenced. Midway through the disposition hearing, Deputy County Counsel Victoria Steele stated the department was changing its position concerning the provision of reunification services. Ms. Steele indicated the department, based on the testimony of Ms. Miller, the social worker who prepared the Adjudication/Disposition report, would now oppose providing reunification services to the mother. Ms. Miller’s testimony and Ms. Steele’s reaction to it are detailed at pages 11-13, infra.
C. August 10, 2011 Petition-R.W.
After the abortive entry of the mother’s no contest plea to the March 1, 2011 petition involving C.O., Ernesto, Jr., and T.O., R.W. was born. On August 10, 2011, the department filed a section 300 petition as to R.W. Identified as the parents of R.W. are the mother and R.C. At the August 10, 2011 detention hearing, R.W. was ordered detained.
D. Consolidated Consideration Of The Two Petitions And Jurisdiction And Disposition Hearings
The jurisdiction hearing was held on October 4, 2011. The juvenile court sustained three allegations in the March 1, 2011 petition concerning C.O., Ernesto, Jr. and T.O. First, the juvenile court found that the mother had assaulted another woman on February 24, 2011, within the meaning of section 300, subdivision (a) As a result, the mother was detained pursuant section 5150. Second, the juvenile court found the mother is a current alcohol, morphine and prescription drug abuser within the meaning of section 300, subdivision (b). Third, the juvenile court found the mother had engaged in acts of domestic violence.
There are three sustained allegations in the August 10, 2011 petition as to R.W. First, the juvenile court found that the mother had assaulted another woman on February 24, 2011, within the meaning of section 300, subdivision (a). As a result, the mother was detained pursuant section 5150. Second, the juvenile court found the mother is a current alcohol, morphine and prescription drug abuser within the meaning of section 300, subdivision (b). Third, the juvenile court found the mother has a history of engaging in violent altercations within the meaning of section 300, subdivision (b).
The disposition hearing was held on October 5, 2011. The department argued the mother should receive no reunification services. The mother’s reunification services request was denied pursuant to section 361.5, subdivisions (b)(10), (11) and (13). The mother filed a timely mandate petition.
III. EVIDENCE
A. The Detention Report Filed March 1, 2011, For C.O., Ernesto, Jr. and T.O.
The detention report was prepared by Children’s Social Worker Jessica Martinez. The detention report began by identifying three children who had previously been cared for by the mother. The first child, K.W., who was deceased, was killed in a drive-by shooting while in the mother’s custody on April 29, 2000. The second child was A.L. who was in the custody of a maternal aunt, R.C., under an October 7, 2003, dependency court legal guardianship order. The mother rarely visited A.L. The third child was E.O. who was receiving permanent placement services from the department and resided with a prospective adoptive mother, P.O. The mother never bonded with E.O. The reason was the mother’s incarceration. E.O. disgusted the mother. The mother had previously stated to a social worker that E.O. was better off in foster care. Ms. Martinez wrote, “Mother reported that she informed her case [social worker] that [E.O.] would be better off in foster care because she was fearful she would hurt [E.O.]” The mother was four months pregnant with R.W. Ernesto, Sr., the father of the three children listed in the March 1, 2011 petition, was incarcerated at the Red Rock Correctional Center in Eloy, Arizona.
Both E.O. and C.O., two sisters, were subjects of a voluntary family maintenance case in 2006, 2007 and 2008. On May 2, 2008, the two sisters were taken into protective custody as a result of: their parents’ failure to provide the necessities of life; the mother’s drug abuse; and the mother’s mental illness. On January 14, 2009, E.O. and C.O. were returned to the mother’s custody. After a supplemental petition was sustained, reunification services for E.O. were terminated and adoption was identified as the permanent plan. On June 25, 2010, a voluntary family maintenance plan was opened and concluded in January, 2011.
Ms. Martinez detailed the mother’s extensive prior contacts with the department. On July 15, 1999, the mother was detained pursuant to section 5150 and made no efforts to provide for a child, K.W. On August 19, 1999, the mother was detained in the juvenile hall. K.W. was placed in protective custody. On April 29, 2000, K.W., while visiting with the mother, was shot to death. On February 27 and August 11, 2002, two allegations of neglect were determined to be unfounded or inconclusive. On August 17, 2006, the mother was alleged to have asked a relative to care for C.O. The mother threatened to harm C.O. if the relative failed to care for the youngster. Voluntary family services were provided to the mother. The voluntary family maintenance service plan concluded on March 28, 2007, because the family had stabilized. On April 26, 2008, the mother and Ernesto, Sr. were homeless and unable to provide a safe environment for the children. The children were placed in foster care. On February 23, 2010, the detention report states that a referral from an unidentified source indicates: the mother wanted to jump out of her apartment; the mother was admitted to a hospital for suicidal ideations; while at the hospital, the mother tested positive for methamphetamines; the mother had tried to smother E.O.; and the mother may be discharged from the hospital by February 23 or 24, 2010. A social worker recommended no action be taken as the mother was compliant with her voluntary family maintenance plan. On June 25, 2010, another voluntary family maintenance plan was opened after Ernesto, Sr. was arrested for carrying a loaded firearm and making threatening remarks. On December 25, 2010, the voluntary maintenance plan was concluded because the mother had completed her substance abuse program and was returning clean narcotics drug tests.
The mother has an extensive prior criminal arrest and conviction record. On October 18, 1998, the mother, as a juvenile, was arrested for deadly weapon assault and inflicting great bodily injury. She was placed in the juvenile hall. On January 8, 2003, the mother was arrested and later convicted of misdemeanor grand theft. On February 9, 2004, the mother was arrested and later convicted of felony taking a vehicle without the owner’s consent. On February 17, 2004, she was arrested for trespassing. She was later convicted of a misdemeanor. At some point, the mother was convicted of first degree burglary. She violated the terms of her probation and was sentenced to prison on the burglary charge. Also, her vehicle theft probation was revoked and she was sentenced to prison. She arrived in state prison on July 29, 2004. On February 19, 2008, the mother was found in violation of parole and returned to prison custody. She was paroled on April 20, 2008. The mother had two arrests for assaultive conduct.
Additionally, Ernesto, Sr. had an extensive record. Ms. Miller identified 20 contacts Ernesto, Sr. had with criminal justice agencies. On May 18, 2010, Ernesto, Sr. was arrested for carrying a loaded firearm and engaging in threatening conduct. He was sentenced to prison for 11 years. Neither the mother nor Ernesto, Sr. were truthful when discussing his extensive criminal record.
The filing of the March 1, 2011 petition was precipitated when the mother struck a neighbor over a dispute concerning an unpaid loan. The mother described the incident for Ms. Martinez, the social worker who prepared the detention report, thusly: “[M]other reported that she had lent her neighbor money. Mother reported that she had confronted her neighbor numerous times to be paid back. Mother reported that she was on her last pack of diapers and she is financially struggling. Further, mother reported that she heard the neighbor state ‘that bitch never lets her children play outside.’ Mother reported that she felt angry and confronted her neighbor, cursing and demanding that her money be returned to her. Mother reported that she told the neighbor, ‘my kids [don’t] go outside to play because of bitches like you.’ Mother reported that she slapped the neighbor. Mother reported that she would have further assaulted the neighbor if not for the neighbor’s [three-year-old] child coming outside. Mother reported that when she returned to her home she ‘needed to talk to someone’....” The mother telephoned Dr. Lynne Nieto, a board-certified psychiatric nurse. Dr. Nieto was treating the mother. The mother described their conversation to Ms. Martinez: “Mother reported that when she returned to her home, she ‘needed to talk to someone’ or she was ‘going to lose it.’ Mother reported that she contacted [Dr.] Nieto who was unable to talk and told her she would return her call in 20 minutes. Mother reported that she could not wait that long because she was so upset. Mother reported that when she finally spoke to [Dr.] Nieto she stated that she wanted to ‘rip that bitch[’]s head off’ and that she wanted ‘not only to hurt her neighbor, but to break something in her body[.’”] The mother asserted to Ms. Martinez that Dr. Nieto blew the entire incident out of proportion. Dr. Nieto said the mother was diagnosed “as schizo effective disorder bipolar” and with post traumatic stress disorder. Dr. Nieto had discontinued prescribing Neurontin once the mother became pregnant. The mother stopped taking Abilify after she passed out. As a result, the mother had not taken psychotropic medications for two weeks.
Ms. Martinez summarized Dr. Nieto’s views: “She reported that mother has been going to the hospital to get prescriptions for Vicodin. She reported that mother also did not tell the hospital that she was pregnant. She reported that mother was given Ativan, which is very dangerous to her unborn child. She reported that mother was very aware that she should not have accepted Ativan. She reported that despite her legitimate medical condition, she believes that mother may be abusing the medications by self medicating. She reported that she is also concerned because mother has admitted to using marijuana and methamphetamine while pregnant. She reported that for the last few weeks mother has been ‘decompensating’ (a loss of ability to maintain normal or appropriate psychological defenses, sometimes resulting in depression, anxiety, or delusions).”
Dr. Nieto, who regularly treated the mother, expressed other concerns to Ms. Martinez. Dr. Nieto was concerned about: the mother’s lack of bonding with her unborn child; the mother’s effort to have the paternal grandmother secure custody of the child; R.C.’s mother is affiliated with a gang; the mother was out of control and only “intermittently truthful”; the mother was short with the children and yelled at the youngsters; and the mother states she is distraught and “‘can’t take it anymore.’” Dr. Nieto noted the 3 children, C.O., Ernesto, Jr. and T.O., were currently in day care 12 hours per day, 5 days per week. This level of daycare was about to conclude. Dr. Nieto was concerned whether the mother could handle the three children on a full time basis. The mother confirmed that the day care benefit would terminate at the end of June 2011.
The mother said she: was very upset; was depressed and overwhelmed; had a difficult time getting out of bed in the morning; felt like injuring the neighbor; and wanted to break some bones. There were no clean clothes for the children in the home. Two children had diarrhea but the mother did not take them to see a physician. The mother saw no reason to take the two children to see a physician despite the fact they had suffered from diarrhea for two days. One of the children, Ernesto, Jr., had eczema but the mother had no medicine to treat him. The mother acknowledged she should have taken Ernesto, Jr. to see a doctor once the eczema medicine ran out. The home was messy, a condition the mother attributed to her depression and the children, who were in day care 12 hours per day, 5 days a week. The mother was detained pursuant to section 5150. The mother was later released. According to the mother, the hospital staff did not believe she should have been detained in the first place. However, upon being released, pursuant to Dr. Nieto’s orders, the mother returned to a Long Beach hospital. At the hospital, the mother was treated for a hernia.
The mother was four months pregnant and did not care to have the baby. The mother was considering whether the baby should be adopted. Ms. Martinez wrote: “[M]other repeatedly expressed great distain for her pregnancy and unborn child. Further, mother talked about her unborn child coldly and as if it [were] an object.... [M]other was observed to be dangerously unattached to the baby she is currently carrying.” Notwithstanding these feelings, the mother refused to undergo an abortion. Ernesto, Jr. and T.O. were in child care but that would end June 31, 2011. Child care for C.O. was scheduled to end March 31, 2011.
According to the mother, the father of the unborn child, R.C., was in custody as a result of a parole hold. R.C., a gang member, has an extensive violent criminal history, according to the mother. During their eight-month relationship before he was incarcerated, R.C. committed three acts of domestic violence directed at the mother. On the first occasion, he knocked her unconscious. On one occasion, the father visited the mother in the hospital, injected himself with heroin in a restroom and attacked her. On the third occasion, after being released from custody and while subject to a restraining order, R.C. attacked the mother. She fought back and injured him. The mother provided the information concerning these three domestic violence incidents involving R.C. The mother had no objection to R.C. having custody of her unborn child. When asked why she entered into a relationship with R.C. in the first place, the mother said she was depressed, homeless, and drug addicted. Further, Ernesto, Sr. had abandoned her and she was pregnant.
B. Ms. Martinez’s March 1, 2011 Addendum Report
Ms. Martinez also prepared an addendum report. The addendum report indicated that the mother had admitted trying to smother E.O. in 2009. The detention report referred to the smothering incident as an allegation by an unspecified individual. Ms. Martinez clarified the smothering incident was reported by the mother. Further, the mother admitted stabbing Ernesto, Sr. three years prior to the filing of the detention report.
C. Ms. Miller’s March 29 Jurisdiction, April 14 Status And June 15, 2011 Review Reports
Ms. Miller’s report recommends that family reunification services be provided to the mother. A Team Decision Making conference was held which also recommended that reunification services be provided. The jurisdiction report reveals that on January 20, 2011, there was a hot line referral which indicated the mother was depressed and pregnant. The referral indicated the mother had used methamphetamine and marijuana while pregnant. The family home was clean and the children were properly clothed. The mother denied she had used methamphetamines or marijuana since October 2010. Ms. Miller attached a negative February 18, 2011 drug test result. In Ms. Miller’s view, the mother had been very diligent in drug testing and caring for the children. Ms. Miller referred to the mother’s assault on a neighbor discussed at length in the detention report. But Ms. Miller’s report contains none of the details in the detention report. According to Ms. Miller, Dr. Nieto indicated the mother was compliant in taking prescribed medications.
In the April 14, 2011 status review report, Ms. Miller identified the number of placements for the children: C.O. had been placed five times; Ernesto, Jr. had been placed twice; and T.O. had been placed two times. C.O. was on the home of P.O. along with E.O. As noted, P.O. was the prospective adoptive mother for E.O. As of March 8, 2011, the mother had moved into a sober living facility. The mother was enrolled in the Total Family Support Clinic where she received classes in: drug education; self esteem; relapse prevention; parenting; and anger management. In addition, she would receive individual counseling. The status review report reiterated matters specified in the jurisdiction report. Also, E.O. was closely bonded with P.O., the prospective adoptive mother. E.O. was thriving and referred to P.O. as “momma” according to Ms. Miller. Ms. Miller recommended that E.O. be adopted.
The June 15, 2011 interim review report indicated the mother continued to attend her outpatient substance abuse program. The mother visited with C.O., Ernesto, Jr. and T.O. If returned to the mother’s custody, the three children could live in her sober living facility. Louis Moody, a case manager at the Total Family Support Clinic, indicated the mother had improved her coping skills in dealing with “all case related issues” including working with an individual counselor. Mr. Moody said the mother had successfully completed three drug tests. Dr. Nieto indicated the mother’s mental status was stable. Ms. Miller continued to recommend the provision of reunification services. Also, Ms. Miller believed the children should be permitted to have unmonitored visits with the mother.
D. June 17, 2011 Hearing
On June 17, 2011, the department recommended the mother be denied reunification services. With that understanding in mind, the mother pled no contest to several of the petition’s allegations. Her admission encompassed sections 300, subdivisions (b)(1), (2), (3), (5) and (6). Ms. Inguanzo represented the three children, C.O., Ernesto, Jr. and T.O. (R.W. had not yet been born.) Ms. Inguanzo objected to the mother receiving reunification services. As a result, a contested disposition hearing was held.
Ms. Inguanzo called Ms. Miller, the social worker assigned to the case who recommended that reunification services be provided, to testify. Ms. Miller was asked about the mother’s prior dependency case involving A.L. Ms. Miller admitted she did not know anything about the case other than that it resulted in a guardianship. Ms. Inguanzo asked Ms. Miller the following question, “There’s an admission by the mother that she tried to beat and smother Anthony and that’s one of the reasons why she was taken away from her?” Ms. Miller responded: “I don’t remember that. I apologize. I don’t remember him right now.” Ms. Miller admitted the mother’s parental rights to A.L., a full sibling of C.O. and E.O., had been terminated.
Ms. Miller knew the mother was involved in a violent altercation with a neighbor. As a result, the mother was detained pursuant to section 5150 because of the recommendation of a PhD. nurse. According to the nurse, the mother wanted to seriously injure the victim. Also, the mother admitted she could not control herself. Ms. Miller testified the mother was released from the psychiatric hold. The mother was released only to be later subject to a second psychiatric hold. Also, the mother had been involved in other violent altercations and was alleged to have stabbed the father of C.O., Ernesto, Jr. and T.O.
Ms. Miller agreed that C.O. had been detained initially on May 6, 2008. In January 2011, C.O. was returned to the mother’s custody and the case was closed. Thus, between May 6, 2008, and mid-January 2011, the mother received reunification services. Less than five weeks later, the present petition was filed which involved C.O., Ernesto, Jr. and T.O. Ms. Miller agreed the mother had been diagnosed with: severe anxiety; major depression with schizo-affective; posttraumatic stress disorder; and suicidal ideation. Ms. Miller knew that the mother had talked about jumping out of an apartment building. Ms. Miller knew that the mother had talked about harming A.L., the child subject to the prior guardianship order. The mother admitted taking a drug while pregnant that was dangerous to the unborn child. Further, Ms. Miller indicated that the detention report explained the mother attempted to give A.L. to the father’s mother. The father was a gang member with an extensive criminal record who used heroin extensively. On three occasions, the father engaged in “three very severe incidents of domestic violence” directed at the mother. The mother allowed the children to stay with the father. Ms. Miller was asked whether the detention report indicated the mother was allowed to stay with the father. Ms. Miller responded, “I don’t recall, but I will say yes.” When asked whether the mother had an ongoing history of drug use, Ms. Miller answered, “I am not sure how to answer that.” Then Ms. Miller admitted the mother used methamphetamines on an “off and on” basis. Also, the mother used alcohol heavily. Ms. Miller was unable to produce any evidence the mother had completed any drug tests.
At this point, the department’s attorney requested that an off the record conference be held. Thereafter, the department’s lawyer, Ms. Steele, announced: “[B]ased on the testimony here that I believe... the department is going to change the recommendation based on what we have heard on the stand, the testimony that we have heard.” The mother was permitted to withdraw her no contest admission. The case was then set for contested adjudication and disposition hearings.
E. Ms. Miller’s August 9, 2011 Jurisdiction/Disposition Report And Last Minute Information For Court Document
On August 5, Ms. Miller completed a Jurisdiction/Disposition report concerning C.O., Ernesto, Jr. and T.O. which was filed on August 9, 2011. As noted, Ernesto, Sr., who was imprisoned in Arizona, is the father of C.O., Ernesto, Jr. and T.O. Ms. Miller reiterated the mother’s extensive record of prior contacts with the department. Ms. Miller’s listing of department contacts omitted some of which were in Ms. Martinez’s detention report. Ms. Miller also set forth the extensive prior criminal records of the mother and Ernesto, Sr. previously discussed in the detention report.
The mother continued to write R.C., the father of R.W., who had not yet been born. The mother admitted using narcotics in January, 2011. Ms. Miller wrote, “Mother has demonstrated that even though she has completed two substance abuse programs over the past 3 years, she is not able to remain clean and sober when she is overwhelmed and under stress.” Further, the mother continued to respond emotionally during telephone calls according to Ms. Miller. The mother insulted and berated the foster mother of Ernesto, Jr. and T.O. on several occasions. The mother also became extremely angry and yelled at Ms. Miller several times. Each time though, the mother called Ms. Miller back and apologized. The mother continued to maintain her relationship with R.C., a drug abuser and gang member, even when directed not to do so. The mother was receiving prenatal care at Miller Children’s Hospital in Long Beach. The hospital staff recommended that the mother speak with its social worker. The mother had failed to do so.
Mr. Moody, the case manager in the mother’s treatment program, Total Family Support Clinic, noted she had successfully completed all of her drug tests. The mother had attended either 27 or 40 group sessions involving: drug education; anger management and domestic violence; relapse prevention; and parenting. Also, the mother participated in individual counseling. Ms. Miller continued to recommend that reunification services be provided to the mother.
Ms. Miller attached a Multidisciplinary Assessment Team report. The report indicated the mother was depressed because of the 11-year sentence given to Ernesto, Sr. The mother refused to discuss whether she had been involved in domestic violence but denied recent drug use. The mother appeared to love, was strongly bonded and interacted well with C.O. who was a happy youngster. The foster parents for the three children were committed to providing appropriate care for the youngsters who were adjusting to their new environments. P.O., the prospective adoptive mother of E.O., wanted to adopt C.O. However, the foster mother of Ernesto, Jr. and T.O. was pregnant and indicated the two boys should be placed in another foster home. According to their foster mother, Ernesto, Jr. and T.O. exhibited aggressive behaviors and are in need of physical care she cannot provide.
The Last Minute Information For The Court document noted that R.W. had been born. Hospital staff called the Child Abuse Hotline. A department social worker, Nenita Bulandus, had placed a hold on R.W.’s release. R.W.’s detention hearing was set for August 10, 2011.
F. August 10, 2011 Detention And Addendum Reports-R.W.
1. Detention report
The detention report, prepared by Ms. Bulandus, identified R.W.’s siblings or half siblings: K.W. who was killed in a drive by shooting on April 29, 2000 in Compton; 10-year old A.L. whose legal guardian is a maternal aunt; nearly 4-year old E.O. who resides with the prospective adoptive mother, P.O.; 3-year old C.O. who is in foster care with P.O.; and 2 and one-half year-old Ernesto, Jr., and 18-month old T.O., who reside with a foster family whose identity is not fully disclosed.
The detention report reiterated the mother’s extensive criminal record. The detention report noted she was paroled on April 20, 2008. The detention report reiterated the department’s extensive contacts with the mother discussed in Ms. Miller’s August 5, 2011 report. In addition, the detention report stated that on February 23, 2010, the mother was hospitalized because she felt overwhelmed and has expressed suicidal ideation. The mother admitted trying to “smother” E.O. The mother admitted previously stabbing Ernesto, Sr., the father of C.O., Ernesto, Jr. and T.O. In addition, on January 20, 2011, the department was notified the mother was seen by the Children’s Hospital medical staff. The mother was eight weeks pregnant and had used methamphetamines and marijuana within days of being seen in the hospital. Also, the mother, who had attempted suicide on multiple occasions, was depressed. In addition, the detention report related the facts of the February 24, 2011 fight with the mother’s neighbor and ensuing section 5150 detentions. On January 20, 2011, the mother, who was depressed and eight weeks pregnant, admitted taking methamphetamines and smoking marijuana. The detention report states that the mother had attempted to commit suicide on multiple occasions. On February 24, 2011, the mother got into a fight with a neighbor. The mother was detained pursuant to section 5150. The mother was released the same day but was then once again detained pursuant to section 5150.
R.W., who was healthy when born, was initially detained based in part on the following statement made to a hospital intern as related in the detention report, “Mother informed a resident intern that in the year of 2008 she attempted to suffocate her child (name unknown).” Ms. Bulandus, the social worker who prepared the detention report, was able to confirm the smothering allegations and wrote: “On [August 7, 2011], CSW met with medical social worker Julie Crouch.... Julie stated that last year, [February 23, 2010], mother told her that she tried to smother child [E.O.], in 2009.” The hospital staff was concerned because the mother, who was receiving medication for depression, desired to breastfeed R.W. Further, Ms. Bulandus was concerned about the mother’s prior inability to reunify with C.O., E.O., Ernesto, Jr. and T.O. despite being provided reunification services. The mother had been diagnosed with Schizoid Affective Disorder, Bipolar borderline who needed to take Wellbutrin and Seroquel. The mother’s mental health difficulties were long-term in nature. Ms. Bulandus wrote: “[Dr. Nieto] does not know when mother can ever get back on her feet because her mental health problems and behavior and emotion are complicated by her drug addiction.”
R.W.’s father, R.C., who had engaged in mutual acts of domestic violence with the mother, was unavailable for immediate interview because he had been arrested on a parole violation. In 2010, R.C. visited the mother in a hospital. R.C. went into a bathroom and injected himself with heroin. R.C. then got into a fight with the mother. The mother and R.C. saw each other until he was arrested, apparently on December 14, 2010. The mother had discussed allowing R.W. to be adopted.
The mother resided in a sober living facility. Two months prior to the detention hearing, the mother had pushed another resident in the sober living facility. Dr. Nieto indicated the mother was involved in various programs but had not made significant progress. When offered program referrals by a social worker, the mother refused to accept them. The mother said she was already enrolled in programs, apparently at Total Family Support Clinic. In Dr. Nieto’s view, the family was at “very high risk” for future abuse.
2. Addendum report
The addendum report prepared for the detention hearing indicated the department may seek an order pursuant to section 361.5 which would deny reunification services to the mother.
G. The September 9, 2011 Jurisdiction/Disposition Report For R.W. Prepared By Carla Flores
Ms. Flores, a dependency investigator, prepared the Jurisdiction/Disposition report for R.W. Ms. Flores repeated the mother’s extensive criminal and department record discussed in earlier reports. Ms. Flores also attached superior court docket sheets which showed: on January 8, 2003, the mother was convicted of grant theft; on February 17, 2004, the mother was convicted of trespassing; on February 9, 2004, the mother was placed in probation for taking a motor vehicle; and on July 13, 2004, the mother was sentenced to prison after she violated her probation.
As to E.O., the mother was unable to provide for the child due to depression. The mother said as to E.O.: “I don’t want to hold her. I just want her gone.” As to A.L., the mother still had a relationship with him. Prior to losing custody, the mother visited A.L. while the child was staying at the maternal grandmother’s home. The mother went to prison. While incarcerated, the mother’s sister was granted a guardianship over A.L. R.W. had already been matched with a prospective adoptive mother. The prospective adoptive family home had already been approved by the department.
As to R.W., the mother no longer wanted the child to be adopted. The mother said she changed her mind once she had her first ultrasound. Yet Dr. Nieto told Ms. Flores: “She has said she didn’t want this baby and was going to give the baby away. I really felt this baby needed to be detained.” Ms. Flores interviewed Lenny Brite, the manager at the sober living facility where the mother resided. Ms. Flores described part of their conversation: “Ms. Brite stated, ‘I don’t think [she is] fit to be a mother.’ [I] asked Ms. Brite what her main concern about the mother is. Ms. Brite reported that mother stated, ‘I hate this baby....” The mother’s statement about hating the child was made on September 7, 2011. Further, Ms. Brite stated, “If [R.C.] wasn’t going to be around, she didn’t want the baby. It’s comments like that I feel she’s not fit. She’s ignorant.” P.O. did not believe the mother had adequate parenting skills.
The mother denied she ever stabbed Ernesto, Sr. and indicated she was considering renewing her relationship with him. On August 25, 2011, R.W.’s father, R.C., died of a heroin overdose. The mother, citing his demise, refused to provide any significant information concerning domestic violence incidents with R.C. The mother admitted she “got really drunk” when advised of R.C.’s death. Her blood alcohol level reached.30 per cent. The mother was restricted for 30 days from leaving her sober living facility after she became intoxicated. Yet, on September 8, 2011, the mother was in a Wal-Mart store unescorted in violation of the restriction, shopping for clothes for R.C.’s funeral. The mother spoke with Angie Guardado, the mother of R.C.’s two oldest children. The mother admitted during their discussion that R.C. would hit her. Ms. Flores also noted: “[Ms.] Guardado reported that mother informed her that she would use crystal meth and further informed her that she (mother) was abusing her prescription drugs.”
The mother had used methamphetamine while pregnant with T.O. who was born in 2010. But she stopped using methamphetamine when she found out she was pregnant with R.W. The mother denied using drugs since February 20, 2010. But Dr. Nieto, a board certified psychiatric nurse, stated that the mother used morphine pills on August 27, 2011. And Dr. Nieto stated the mother had used alcohol twice during the week of August 27, 2011. Dr. Nieto refused to prescribe any more drugs for the mother.
Ms. Brite indicated the mother liked methamphetamines, pills and alcohol. Ms. Brite described the mother’s manipulative nature: “[The m]other was seeking attention, as the paramedics... would take mother to the hospital just because mother wanted narcotics, as the hospital would give it to her. [I] asked [Ms.] Brite why the paramedics... would go out to the home. Ms. Brite stated, ‘She would make up something. She is a very good liar. She is getting better at telling the truth.’” The mother had been given department referrals for drug testing. But the mother had failed to even call the drug testing facility.
The mother was asked how many times she had been hospitalized. At, first the mother could not recall and then gave evasive answers. The mother was taking Wellbutrin in the daytime and Seroquel in the evening. The anti-depressants were prescribed by Dr. Nieto. As to Dr. Nieto, the mother told Ms. Flores: “I’m not going to be involved with her anymore. I’m not going to be bothered with this lady. She’s not really communicating with me.”
The mother wanted to reunify with the children. The mother said: “To be given another chance. I know I’ve been given many, but I’m not perfect.” Ms. Flores recommended no reunification services be provided.
H. The September 12, 2011 Interim Review Report Prepared By Mary Quinones
Ms. Quinones was the social worker assigned to C.O., Ernesto, Jr. and T.O. Ernesto, Jr. was experiencing tantrums but the children were otherwise developing normally. Ms. Quinones recommended no reunification services be provided to the mother.
I. Jurisdiction Hearing Testimony
The sole witness to testify at the jurisdiction hearing was Ms. Flores, the dependency investigator. Ms. Flores was assigned R.W.’s case on August 11, 2011. Ms. Flores read various reports but did not speak with Ms. Miller. Ms. Miller had been replaced by another social worker on the case involving C.O., Ernesto, Jr. and T.O. Ms. Flores had not spoken to the new social worker assigned to the three older siblings case. Ms. Flores admitted there was no evidence the children saw the mother shove the other sober living resident. Ms. Flores did not interview the neighbor. And the mother was never arrested because of the pushing incident with the other sober living facility resident. But Ms. Flores did interview Ms. Brite, the manager of the mother’s sober living facility. Both Ms. Brite and Dr. Nieto confirmed the fact the mother pushed the other sober living facility resident. There was no evidence the mother had physically abused the children in this case. In terms of the mother’s admission about wanting to smother E.O., this incident was never the basis of a sustained petition. The mother told a social worker, Ms. Crouch, about the desire to smother E.O.
Ms. Flores was asked about the incident in the hospital when R.C. used heroin and a fight broke out with the mother. At the time, C.O. was detained. R.C. was arrested. But one month later, a dependency case involving C.O. was closed. And a voluntary family maintenance plan was also closed. The mother indicated the children were never present during the hospital altercation. Ms. Flores did not interview C.O., Ernesto, Jr. or T.O. about whether they saw any of the domestic violence incidents involving Ernesto, Sr. and the mother. The mother admitted spending the night with R.C. the week before he died of a heroin overdose.
Ms. Flores interviewed Dr. Nieto who had worked with the mother for three years. When asked whether the mother was medication compliant, Ms. Flores testified: “[Dr. Nieto] never confirmed such information. The information that she gave me was that she had taken away the medication for the mother because of her recent relapse with drinking alcohol and taking two morphine pills.” Both Dr. Nieto and Ms. Brite confirmed that the mother had taken the morphine. Dr. Nieto was no longer able to work with the mother. Ms. Flores testified: “[S]he did transfer the mother’s case because... they couldn’t work together. [¶] She described mother as ‘manipulative, impulsive, and erratic.’ She also reported that when mother doesn’t get her way, she gets upset. Therefore she transferred the case to somebody else.” Dr. Nieto described the mother’s attitude, “If you don’t tell her what she wants to hear, she becomes angry.” Further, Dr. Nieto described the mother as erratic, impulsive and out of control. Ms. Flores also had questioned the mother’s believability. Ms. Flores admitted the only time the mother had relapsed was after R.C. died. And Ms. Flores was unaware of any drug test results from the time period around R.C.’s spending the night with the mother and his death. Ms. Flores indicated the mother had abused drugs “off and on” since the age of 15.
Ms. Flores was also asked about the mother’s lack of attachment to R.W. This information came from both Dr. Nieto and P.O., the foster mother for E.O. Both Ms. Brite and Dr. Nieto indicated the mother was incapable of parenting a child.
J. Disposition Hearing Testimony
Ms. Flores and Mr. Moody, who supervised the mother’s treatment program, testified at the disposition hearing. Ms. Flores testified the mother had been receiving mental health services from Dr. Nieto since December 14, 2009. Dr. Nieto had treated the mother during the pregnancy of T.O. and R.W. The mother had resided in the sober living facility since March 5, 2011. Ms. Flores did not know anything about the mother’s treatment program. Ms. Flores did speak with the social worker who was assigned to the case involving C.O., Ernesto, Jr. and T.O. Neither that social worker nor Ms. Flores had seen any proof of the mother’s recent participation in any treatment program. Ms. Flores was shown alleged drug testing results. Ms. Flores testified she had never seen documentation of drug test results in the format provided by Mr. Moody. Ms. Flores did not know what services the mother was receiving in Mr. Moody’s program. The mother had never provided Ms. Flores with proof of participation in any program.
Mr. Moody, whose program was approved by the department, testified he had an associate arts degree. Mr. Moody was supervised by a program manager. Mr. Moody had spoken to Ms. Miller. The mother enrolled in Mr. Moody’s program on March 27, 2011. The mother continued to participate in the program. Mr. Moody identified the mother’s drug test results which were designed to uncover marijuana, methamphetamine and cocaine usage. Mr. Moody said the drug tests would not reveal if the mother was abusing prescription drugs and alcohol. Mr. Moody knew the mother had relapsed in August. But Mr. Moody did not know the circumstances of the mother’s August drug and alcohol abuse. Mr. Moody had no knowledge that the mother had allegedly spent one week in a motel with R.C. Had Mr. Moody known that, he would have wanted to have the mother undergo a drug test. No testing occurred in August or September 2011.
Mr. Moody testified, “Mother is doing group therapy for drug education, anger management, relapse prevention, and parenting.” Mr. Moody believed the mother was making substantial progress. Mr. Moody had no drug test results for the mother since July 22, 2011. Even though the mother relapsed in August, she was not drug tested. Mr. Moody believed the mother could expect to stay in his program until February which could be followed by aftercare. The mother attended 27 classes and her attendance could improve according to Mr. Moody. Between March and July 2011, the mother’s attendance was fair in Mr. Moody’s view. The mother attended only two classes in September 2011. Mr. Moody did not characterize as fair the mother’s minimal attendance in September.
IV. DISCUSSION
A. Overview
The mother argues there is no substantial evidence she failed to make reasonable efforts to reunify with the children, as required by section 361.5, subdivisions (b)(10) and (11). The department argues that reunification services could be denied pursuant to section 361.5, subdivision (13) which involves a parent’s failure to comply with drug rehabilitation programs. And the department further argues substantial evidence supports the juvenile court’s section 361.5, subdivision (b)(10) and (11) findings.
Section 361.5, subdivisions (b)(10), (11) and (13) state: “(b) 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: [¶]... (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian 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 that parent or guardian. [¶] (11) That the parental rights of a parent over any sibling or half 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. [¶]... (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.” We apply the substantial evidence standard of review. (In re Albert T. (2006) 144 Cal.App.4th 207, 216; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
2 Reasonable efforts
There are two elements to section 361.5, subdivisions (b)(10) and (11) cases. First, there must be a prior failure by the parent to reunify with a child. (In re Albert T., supra, 144 Cal.App.4th at p. 217; Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.) The mother concedes this element is satisfied. The second element is that the parent has not made reasonable efforts to treat the problems which caused the sibling to be removed from parental custody. (In re Albert T., supra, 144 Cal.App.4th at p. 217; Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.)
There is substantial evidence the mother has not made reasonable efforts to treat the causes of E.O.’s detention in 2008. This resulted from the mother’s drug abuse and mental health problems. With regard to the mother’s substance abuse, she had repeatedly been provided treatment programs. Yet she continued to abuse alcohol and narcotics. Dr. Nieto indicated the mother had not made significant progress despite being in treatment. When offered a drug referral, she refused to accept them stating she was already in a program. Yet, according to Mr. Moody, that program had not tested the mother since July 22, 2011. Nor did the program test the mother after she ingested morphine and alcohol during the week of August 27, 2011. According to Dr. Nieto, during the week of August 27, 2011, the mother ingested alcohol on two occasions. On one occasion during that week, the mother’s blood alcohol level was.30 per cent. Dr. Nieto also explained that on August 27, 2011, the mother ingested morphine. Ms. Brite explained that the mother would call paramedics just to be taken to the hospital in order to receive narcotics. Dr. Nieto confirmed that the mother would secure Vicodin at a hospital and may be self-medicating. According Dr. Nieto, the mother, while pregnant took Ativan; a drug that cannot safely be taken by a woman expecting a child. And the mother took Ativan with the knowledge it was unsafe if taken by a pregnant woman. The mother’s addictive behavior was so serious that Dr. Nieto stopped prescribing anti-depressants. Moreover, as of the disposition hearing, the mother was not actively participating in her drug treatment program. Mr. Moody characterized the mother’s attendance at her program in June and July of 2011 as fair. She had missed classes in September and failed to attend any in October 2011. Mr. Moody did not believe attending only two classes in September could be characterized as “fair” participation in the Total Family Support Clinic program. Additionally, prior to his heroin overdose death, the mother was spending time with R.C. In terms of substance abuse, there is substantial evidence the mother has not made reasonable efforts to bring her addictive behavior to an end.
In addition, there is substantial evidence the mother has not made sufficient efforts to resolve her mental health issues. During two of her prior pregnancies, the mother had taken Seroquel. Dr. Nieto wanted the mother to take Seroquel. When she had been pregnant previously, the mother had taken Seroquel. But now, the mother refused to take the anti-depressant Seroquel. Further, the juvenile court could reasonably find the mother’s domestic violence history was tied to her mental illness. The mother had previously been involved in abusive relationships with the fathers of K.W. and A.L. However, the mother entered into and maintained a sometimes violent relationship with Ernesto, Sr. After receiving counseling and participating in programs, the mother then entered into a relationship with R.C. who violently assaulted her on three occasions. And after years of counseling and treatment, the mother assaulted a neighbor and later pushed a fellow sober living facility resident. The mother spoke to Dr. Nieto after assaulting the sober living facility resident. The mother in that conversation with Dr. Nieto expressed a desire to “rip” the other woman’s head off. Further, there was evidence the mother was duplicitous and manipulative. Dr. Nieto indicated the mother had “borderline” behavior. The mother was so unreliable that Dr. Nieto was compelled to stop prescribing anti-depressants. Substantial evidence support the juvenile court’s findings concerning the mother’s unwillingness to take reasonable steps to resolve the issues that led to the detention of A.L. and E.O.
3. Drug abuse
The mandate petition fails to challenge the juvenile court’s section 361.5, subdivision (b)(13) drug abuse findings. The mandate petition does not list the drug abuse finding as a ground for relief as required by California Rules of Court, rule 8.452(a)(1)(D). Nor does the memorandum of points and authorities identify the drug abuse issue as a basis for granting the petition as mandated by California Rules of Court, rule 8.452(b)(2). Thus, the failure to properly present the section 361.5, subdivision (b)(13) question forfeits the issue. (Cal West Nurseries, Inc. v. Superior Court (2005) 129 Cal.App.4th 1170, 1174; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
Nevertheless, even if we were to consider the issue, substantial evidence supports the juvenile court’s section 361.5, subdivision (b)(13) findings. A return to drug use after the provision of substance abuse programs can support a section 361.5, subdivision (13) finding. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401-1402; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1008, 1009-1011; In re Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.) There is substantial evidence the mother was provided substance abuse treatment and she returned to the use of alcohol and narcotics. Ms. Flores indicated the mother had abused drugs “off and on” since the age of 15. Over the years, the mother had been provided substantial drug and alcohol treatment services. Yet she has continued to use marijuana, methamphetamines and alcohol. This constitutes substantial evidence which supports the juvenile court’s section 361.5, subdivision (b)(13) finding.
4. Children’s Best Interests
Section 361.5 subdivision (c) permits the juvenile court to still provide reunification services if it is in the child’s best interests: “The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” For the reasons previously stated, there is substantial evidence reunification is not in the best interests of any of the children.
IV. DISPOSITION
The petition is denied. Pursuant to California Rules of Court, rules 8.452(i) and 8.490(b)(3), this opinion is final forthwith.
We concur: ARMSTRONG, J.MOSK, J.