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Erin D. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 13, 2020
No. A159012 (Cal. Ct. App. Jan. 13, 2020)

Opinion

A159012

01-13-2020

ERIN D., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1900567)

Erin D., the mother of six-year-old McKenzie L., files this petition for an extraordinary writ to overturn an order by the juvenile court bypassing reunification services for her and setting a hearing under Welfare and Institutions Code section 366.26. She argues that the denial of reunification services, premised on her failure to reunify with two older children (see § 361.5, subd. (b)(10)), is not supported by substantial evidence. We deny her petition.

All further statutory references are to the Welfare and Institutions Code.

BACKGROUND

Eight years before this case began, in September 2010, mother's chronic drug abuse led to the initiation of dependency proceedings in Alameda County over her two children after her second child tested positive for methadone at birth. The juvenile court in that prior case sustained allegations mother had a history of drug abuse, frequently used methamphetamine, cocaine, Vicodin and methadone; had been arrested for abusing drugs in public; and had frequently used methamphetamine during her most recent pregnancy. She received reunification services, but they were terminated in October 2011. The two children were placed in a legal guardianship with their paternal grandparents and, in May 2012, the proceedings were dismissed.

McKenzie was born about eight months later, in January 2013, and like her older brother, she tested positive for methadone at birth. Child protection authorities once again investigated, and mother admitted she had used methamphetamines and methadone during the pregnancy. She received seven months of voluntary services, reported that she had decided to stop using methamphetamines seven months before McKenzie was born, and participated a drug treatment program. The case was closed after seven months.

Several months later, though, in December 2013, when McKenzie was ten months old, dependency proceedings were initiated, and McKenzie was removed from mother's custody and placed with a maternal uncle and aunt, based on sustained allegations that mother had relapsed into methamphetamine use and had been arrested for driving under the influence while her baby was in the car. Mother entered a substance abuse treatment program where she was described as a leader, and in 2014 McKenzie was eventually returned to mother's custody and the case was closed.

Three years later, mother had relapsed again. For nine months in 2017, McKenzie's uncle and his wife cared for the child again because of mother's drug use. They did so again for several weeks in February 2018, but mother became angry and confrontational during a visit with them and took her child from them. She then left her child with another relative (an aunt), who in turn took the child to a different relative's home where the child stayed until March 8, 2018.

At that point, on March 9, 2018, child protection authorities investigated once again. Mother admitted using methamphetamines as recently as four days earlier. Relatives reported mother had a long history of substance abuse and had been receiving methadone treatment for approximately seven years, and that they were available to support the child, but that mother was confrontational and no longer allowed to live in their home. The relatives who had previously cared for McKenzie signed a safety plan and agreed to keep McKenzie in their care and intended to apply for a temporary guardianship

Three more referrals to child welfare officials took place in 2018, all indicative of mother's continued drug abuse. In July, mother was investigated and appeared to be impaired by drugs and "completely 'out of it.' " A relative said she was concerned mother had been using drugs for the past several months. And mother again admitted using methamphetamines as recently as one month earlier. The Agency also received reports that mother might be a heroin addict and often stayed with substance abusers. Then in August, officials investigated after a reporter voiced concerns that mother was chronically late (by hours) to pick up her daughter from her afterschool program, giving a new excuse every day, and was not meeting McKenzie's needs. Mother appeared to be homeless and was trying to get into a shelter. Several months later, in October, child protection authorities received a report that mother had trouble maintaining focus, exhibited delayed responses, lost track of conversations, had sores on her face and track marks on her body, and was possibly prostituting out of her home. They investigated about a week later and observed no track marks, and mother claimed her last methamphetamine use had been earlier in the year, in February, when her daughter had been staying with mother's sister.

The following year, there were two more referrals. In March 2019, child protection authorities investigated a report that raised concerns about mother's continued substance use and noted she had been over two hours late to pick up her daughter. The "assessed out referral" noted mother "present[ed] with symptoms of substance abuse," in that she was jittery, had filthy hair, and had scabs on her face. Then in May, both the police and child protection authorities were contacted when McKenzie was left at her afterschool program one day until nearly 8:30 p.m. When mother was found, she was distressed but lucid and didn't appear to be under the influence of substances. About this incident, the October 2019 disposition report noted mother was "clearly struggling with housing and instability," however, and reportedly was staying at a homeless shelter. She claimed she'd been threatened and accosted that day and had escaped but had no transportation to pick up her child.

All of this culminated on June 1, 2019, when police received calls reporting concerns about McKenzie from people who had observed mother walking the streets of a residential neighborhood aimlessly with McKenzie all day. When police investigated, they found the two sitting in someone's driveway. An after-hours social worker was dispatched, who found the child appropriately dressed and not in any immediate distress but observed mother was a bit disheveled, quite anxious and "presented with rapid speech" and suspected she was under the influence of drugs. The child was hungry and hadn't eaten for several days, they were homeless and were trying to get into a homeless shelter or to stay with a friend. Mother couldn't articulate any plausible plan for getting shelter or providing for her child's needs, and McKenzie was taken into protective custody and placed in an emergency foster home.

These proceedings were commenced several days later, on June 4, 2019. The court sustained allegations that mother's chronic and long-standing substance abuse problem impaired her ability to safely care for McKenzie (§ 300, subd. (b)(1)), citing in particular an incident in May in which mother had been under the influence of an unknown substance in her child's presence, and sustained allegations McKenzie was at risk because mother had failed to reunify with her two other children due to substance abuse (id., subd. (j)).

Mother admitted to Agency case workers that she had a history of substance abuse and said that a month before McKenzie had been detained she had quit taking methadone "cold turkey" and had begun taking a drug called suboxone through a health center in Contra Costa County. She claimed that was the only drug she was currently using and claimed she had been clean and sober for about 6 years.

For the next five months, mother had access to voluntary services but did little to avail herself of them. During the first three months of the case (in June and then again in August), mother was given referrals three times to parenting education classes, counseling and drug treatment programs as well as a referral to drug testing; she didn't take advantage of any of those services and denied she had a drug addiction. At some point she also claimed she was accepted into another drug treatment program ("La Casa") but said she had encountered an issue with its intake process; she never followed up to resolve the intake issue as she had promised to do so that she could begin that treatment program. At one point, she also reported having entered a "sober living environment," but within weeks she reported living in a shelter again because she kept getting "kicked out of" other shelters. She reportedly had begun attending NA and AA as well as taking suboxone. She also began participating in random drug testing through Kaiser in order to receive suboxone, but the Agency didn't have sufficient information to verify those toxicology screening methods and asked her to drug test instead through the facility to which it had referred her. She tested negative in Kaiser's random drug tests six times (from May to August 2019) but skipped all 22 random drug tests through the Agency's approved provider (from July through November).

Almost four months into the case, on September 28, 2019, mother entered an inpatient drug treatment program, but less than two weeks later, on October 7, she left the program. The circumstances were somewhat confusing and murky (mother reported it had to do with her arriving late to the program one night after having gone to the hospital that day). Nevertheless, mother did not try to enter another program after that or engage in any other services; she merely asked the Agency if she could enter the same inpatient program in Alameda County that she had participated in during her prior dependency, which she reportedly loved.

The contested disposition hearing, which took place on November 14, 2019, proceeded on the basis of the Agency's written reports and no additional live testimony. McKenzie had been placed with her maternal uncle and aunt and was reported as thriving in their care, and they had agreed to become her legal guardians. The Agency recommended bypassing reunification services for mother under section 361.5, subdivision (b)(10) on the ground that reunification services had previously been terminated for her two older children and mother had not subsequently made a reasonable effort to treat those prior problems. The minor's counsel concurred in the Agency's recommendation. Mother's counsel did not argue there was insufficient evidence to bypass reunification services. She argued only that it would be in her daughter's best interest to grant her six months of services anyway.

When a parent meets the statutory criteria for bypassing reunification services, the juvenile court nonetheless has discretion to order reunification services if it finds that doing so is in a child's best interest. (See §361.5, subd. (c)(2).)

After hearing argument, the court found mother had not made reasonable efforts to treat the problem that led to the removal of McKenzie's siblings, and denied reunification services. It found that McKenzie undoubtedly loves her mother, but that mother "simply has not done anything of substance successfully to address a very long-term addiction, and that puts the child at severe risk." The court found mother has not made the effort to get into a residential drug treatment program since the case began, and "has not engaged in any other services despite many opportunities over these five months, not to mention the past case, to address her issues. She did not show for any drug testing whatsoever." The court adjudged McKenzie a dependent of the court and set the case for a section 366.26 hearing on March 12, 2020. This writ petition followed.

DISCUSSION

Under subdivision (b)(10) of section 361.5, a juvenile court is authorized to deny reunification services to parent who has failed to reunify with another child if the court finds by clear and convincing evidence the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling." We review the court's finding for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)

The "reasonable effort to treat" standard is not synonymous with total success but neither will any effort, no matter how minimal, suffice. As summarized by the legal authority mother cites: "The reasonable effort requirement focuses on the extent of a parent's efforts, not whether he or she has attained 'a certain level of progress.' [Citation.] 'To be reasonable, the parent's efforts must be more than "lackadaisical or half-hearted." ' [Citations.] However, '[t]he "reasonable effort to treat" standard 'is not synonymous with 'cure.' " ' " (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).) It does "not . . . mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable." (Id. at pp. 914-915.)

Judged by this standard, substantial evidence supports the court's finding. Mother relapsed into drug use numerous times since losing custody of her other children, including as recently as a year or so before this case was initiated. Indeed, by her own admission, she relapsed into drug use and used cocaine a year before McKenzie's most recent removal. Even after this case was initiated, she did not take advantage of services to any significant degree, continued to deny she had an addiction, and skipped all random drug tests sanctioned by the Agency. Although the details differ in some minor respects, this case bears unfortunate and painful similarities to several reported decisions that have upheld the denial of reunification services for families undone by chronic parental drug abuse in the past, and those decisions amply support the juvenile court's ruling here. (See R.T., supra, 202 Cal.App.4th at pp. 913-915 [upholding bypass of reunification services where mother's substance abuse problem persisted after parental rights to older sibling were terminated, mother had multiple relapses even after minor had been returned to her custody in a prior case and mother had been using drugs again for nearly a year when minor was removed a second time]; In re Lana S. (2012) 207 Cal.App.4th 94, 98, 104, 108-109 [upholding denial of reunification services under section 361.5, subdivision (b)(10) to mother with lengthy history of drug abuse and child protective services intervention, even though mother previously underwent treatment and once reunified with oldest child; "[s]he has had years to address her drug abuse, and her refusal to voluntarily drug test and participate in services in this case signifies her lack of interest in treatment"]; Francisco G., supra, 91 Cal.App.4th at p. 601 [substantial evidence supports finding that parent had not made reasonable efforts to treat problems that led to removal of siblings; father remained in denial about past substance abuse until contested disposition hearing and had only recently begun seeking services].) We commend mother's very recent efforts to take some steps to address her serious drug problem. And, like the juvenile court, we do not doubt she shares a strong bond with her daughter. But "[i]n light of the prior history, [mother's] recent efforts simply came too late." (Francisco G. at p. 601.) Nonetheless, we encourage mother to continue on her recent path toward sobriety, with the goal of making change that is lasting that might be of benefit to her and her daughter in the future, in other ways.

DISPOSITION

The petition is denied. This decision is final immediately.

/s/_________

STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.


Summaries of

Erin D. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 13, 2020
No. A159012 (Cal. Ct. App. Jan. 13, 2020)
Case details for

Erin D. v. Superior Court

Case Details

Full title:ERIN D., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jan 13, 2020

Citations

No. A159012 (Cal. Ct. App. Jan. 13, 2020)