Opinion
F076605
08-01-2018
In re L.B., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. KRISTA B., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CEJ300351-4)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Ellison, J.†
-ooOoo-
Appellant Krista B. (mother) gave birth to L.B., the subject of this dependency appeal, in July 2017, a month before the juvenile court denied her reunification services as to her minor children, K.B., Charles B., and Penny C., pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(13) because of her "extensive, abusive, and chronic use of drugs" and resistance to prior court-ordered treatment. L.B. was detained from mother's custody and in November 2017, following a contested dispositional hearing, the court denied her reunification services as to L.B. under the same statute. Mother contends the court erred in denying her reunification services because the statute does not apply and, alternatively, providing her reunification services served L.B.'s best interest. We affirm.
Statutory references are to the Welfare and Institutions Code.
Mother challenged the juvenile court's denial of services order as to L.B.'s siblings on appeal and we affirmed. (In re K.B. et al. (Mar. 8, 2018, F076151) [nonpub. opn.].) We granted mother's request to take judicial notice of the record on appeal and appellate briefing in that case.
FACTS AND PROCEEDINGS
In October 2014, the Fresno County Department of Social Services (department) received a crisis referral alleging mother was neglecting then one-year-old K.B. The reporting party stated mother was "very pregnant" and was smoking marijuana and crystal methamphetamine, which she used in front of K.B. The reporting party believed mother was prostituting to support her drug habit; she was seen with K.B. going into a restroom accompanied by an unknown male. The day after receiving the crisis referral, the department received a telephone call from a staff member at a doctor's office, stating mother tested positive for marijuana the previous August. Mother characterized herself at that time as a "chronic marijuana" user. She later admitted to departmental staff that she began using marijuana six years before at the age of 14 to manage her stress. In December, the department took L.B.'s siblings, then 13-month-old K.B. and one-month-old Charles, into protective custody after receiving a report that mother was under the influence of methamphetamine and acting aggressively with her 17-year-old sister. The juvenile court provided mother 12 months of reunification services, including inpatient substance abuse treatment and domestic violence counseling, which she completed. In June 2016, she gave birth to Penny and the following December she reunified with the children and the court terminated its dependency jurisdiction.
In January 2017, mother contacted the police to report that Shawn, her husband and the father of the children, struck her in the face, resulting in a black eye and swollen lip. Mother had allowed Shawn to live in the home in violation of a restraining order. Shawn was arrested and mother, then pregnant with L.B., entered the Marjorie Mason Center with the children, testing positive for marijuana during the intake. In early March 2017, she was terminated from the center for not participating in any of the programs and spending her days outside the facility, returning before curfew. She left Penny with her paternal grandmother and K.B. and Charles with their former foster parents for several days but did not pick them up as arranged. When mother failed to take the children to the social worker's office for a safety check, the department obtained protective warrants for the children and placed them with their former foster parents. The department recommended the juvenile court deny mother reunification services under section 361.5, subdivision (b)(13).
In July 2017, at a contested dispositional hearing, mother testified she was participating in an outpatient treatment program, which she planned to finish. She was also participating in parenting classes and was scheduled for a domestic violence assessment later in the month. The children were happy to see her at visits and she believed they were bonded to her. On questioning by county counsel, she stated she tested positive for marijuana on June 22, 2017. Mother's attorney conceded during argument section 361.5, subdivision (b)(13) applied but argued the court should find it would serve the children's best interest to provide mother reunification services. The juvenile court issued its ruling in August 2017, and denied mother reunification services as recommended, finding reunification would not serve the children's best interests. The court ordered reunification for Shawn and Matthew, Penny's biological father, and set a six-month review hearing for November 2017. Mother appealed and we affirmed.
On July 24, 2017, mother gave birth to L.B. Three days later, she and L.B. were at a parent's class and L.B.'s eyes appeared bloodshot and bruised. He was wrapped in a dirty blanket which smelled of "old blood." The reporting party stated L.B. displayed signs of "shaken baby syndrome."
On August 1, 2017, social worker Elizabeth Castro-Guerrero met with mother at her home. Mother admitted using marijuana but denied any contact with Shawn. Castro-Guerrero held L.B. and did not see any bruising. She found the house clean and stocked with sufficient food.
On August 10, 2017, Public Health Nurse Janelle Peterson spoke with Physician's Assistant Thomas Bouasy, who examined L.B. on August 3rd. Bouasy found no signs of retinal hemorrhage, bruises, or shaken baby syndrome. L.B. was an acceptable weight for his age. Bouasy made a note, however, that mother was acting strangely and could only provide limited birth information and reported L.B. had some sort of heart murmur. When questioned further, she was very vague and could not provide any further details about a heart condition. Bouasy referred L.B. for an echocardiogram. That same day, Castro-Guerrero contacted the Fresno Police Department to report her concerns about L.B.'s welfare and was told mother had an active felony warrant and would be arrested. She took L.B. into protective custody and transported him to the hospital where he was medically cleared for shaken baby syndrome and placed in foster care.
Castro-Guerrero visited mother at the county jail and informed her there would be a meeting to discuss her plan of care for L.B. and the department's concerns about her domestic violence and substance abuse. Mother said she was participating in outpatient treatment and parenting classes.
Mother attended the meeting, after which the department filed a dependency petition on L.B.'s behalf. The petition alleged mother used marijuana during her pregnancy with L.B. and failed to make an adequate plan of care for him after her arrest. The petition further alleged mother abused and neglected L.B.'s siblings and listed Shawn as L.B.'s father.
The juvenile court ordered L.B. detained but did not offer mother any services except weekly supervised visits pending the disposition of the case. The court offered Shawn visitation as well as predispositional services.
In its report for the dispositional hearing, the department recommended the juvenile court deny mother reunification services under section 361.5, subdivision (b)(13), citing her ongoing use of marijuana despite completion of inpatient drug treatment in February 2016. As to whether reunification services would serve L.B.'s best interest notwithstanding application of the statute, the department acknowledged that mother regularly visited him and they were well bonded, but mother had not demonstrated the ability to maintain sobriety.
Mother's attorney filed a statement of contested issues, requesting a contested hearing on the jurisdictional allegations and the department's recommendation to deny her reunification services.
The juvenile court conducted a contested hearing on jurisdiction and disposition in November 2017. Mother's attorney presented her position by argument only. As to denial of services, counsel argued section 361.5, subdivision (b)(13) did not apply because there was no evidence of current drug use. If it applied, she argued, the juvenile court should provide her reunification services because it would serve L.B.'s best interest to do so. County counsel argued the department was concerned that mother may be using substances, including but not limited to marijuana, given her behavior and failure to provide documentation she was participating in substance abuse treatment or random drug testing despite the department's repeated requests.
The juvenile court found the allegations in the petition true and denied mother reunification services as recommended, having found mother failed to maintain her sobriety and resisted treatment. The court also found providing mother reunification services would not serve L.B.'s best interest. The court ordered reunification services for Shawn and set a six-month review hearing for May 2018. The court continued its visitation order as to mother unchanged.
DISCUSSION
Section 361.5, subdivision (a) directs the juvenile court to order reunification services when it removes a child from parental custody unless the court finds any one of the enumerated exceptions in section 361.5, subdivision (b) applies. The general rule of section 361.5, subdivision (a) reflects a "strong preference for maintaining the family relationship if at all possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) When, however, one or more of the exceptions applies, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Id. at p. 478.)
In its opening paragraph, section 361.5, subdivision (b) provides that reunification services "need not" be provided to a parent when the court finds by clear and convincing evidence that "any" of the exceptions or situations described in the 17 subparagraphs listed applies. However, in most of these situations, the "need not" proviso is effectively overridden by a statutory presumption against offering the parent reunifications services. (Id., subd. (c).) Specifically, when certain exceptions apply, including section 361.5, subdivision (b)(13), subdivision (c) prohibits the court from offering the parent reunification services, "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
Subsequent references to section 361.5, subdivision (b)(13) are denoted "subdivision (b)(13)."
We review a juvenile court's application of section 361.5, subdivision (b) for substantial evidence, bearing in mind that clear and convincing evidence requires a heightened burden of proof. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
The juvenile court here found that mother was a parent described in subdivision (b)(13). This exception applies when the parent seeking reunification services has a "history of extensive, abusive, and chronic use of drugs or alcohol" and, as relevant here, "has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought the child to the court's attention." (§ 361.5, subd. (b)(13).)
When, as here, the court finds subdivision (b)(13) applies, the general rule favoring reunification no longer applies and the juvenile court is prohibited from ordering reunification services "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) The parent has the burden of affirmatively demonstrating reunification with the child—and therefore offering reunification services to the parent—would serve the child's best interest. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
The juvenile court has broad discretion in determining whether the parent has met this burden and therefore whether to offer the parent reunification services under section 361.5, subdivision (c). (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) As a reviewing court, we will not disturb the court's best interest determination absent an abuse of discretion. (Id. at pp. 523-524.)
Mother contends subdivision (b)(13) does not apply to her because her marijuana use is not "extensive, abusive, and chronic." She argues her characterization of herself as a "chronic user" is not evidence that she is and appellate cases upholding the finding involved years of use far exceeding hers. She points to Randi R. v. Superior Court for example, which involved a 38-year-old mother who began drinking alcohol at the age of nine and using drugs at 12, and D.B. v. Superior Court involving a 41-year-old father who began using alcohol and drugs while a teenager. Mother also contends she did not resist court-ordered treatment but rather briefly relapsed. We conclude substantial evidence supports the application of the statute to mother's circumstances.
Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.
D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 201. --------
Mother is a 23-year-old, self-described "chronic" marijuana user who began using the drug at age 14. She was using marijuana in October 2014, when L.B.'s siblings were removed. She was also using marijuana when she checked into the Marjorie Mason Center in March 2017, despite having completed inpatient drug treatment the year before and being pregnant with L.B. She admitted marijuana use in June and August of 2017. One could reasonably infer from the record that mother's drug use was "extensive, abusive, and chronic." The fact that such drug use was found in more extreme appellate cases does not negate the finding as to her.
Further, mother's resumption of marijuana use was not a brief relapse but a resistance to treatment. Whether a relapse constitutes "resistance to treatment" under the statute depends on how it evolves. The type of relapse that demonstrates resistance is one that results in the resumption of regular drug use after a period of sobriety. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.) It is not a mere "setback" or "brief relapse." (Ibid.) Consequently, a person could suffer a brief relapse and not be considered resistant to treatment if that person did not resume regular drug use. However, that is not what mother did. Following her successful completion of drug treatment, she resumed regular marijuana use that lasted until L.B. was removed from her custody. Thus, her relapse evolved into regular drug use and constituted resistance to treatment under the statute. Therefore, the juvenile court did not err in applying subdivision (b)(13) to her.
Finally, mother cannot demonstrate the juvenile court abused its discretion by concluding reunification would not serve L.B.'s best interests. She points out correctly that she and L.B. were well-bonded and argues providing her reunification services would not delay permanence for him since he was in reunification with Shawn. However, the strength of the parent-child bond and the child's need for stability and continuity are only two factors the court may consider in determining whether reunification serves a child's best interest. The court may also consider a parent's fitness and history and the likelihood reunification services will succeed. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.) In this case, mother's ongoing use of marijuana militated against reunification despite her bond with L.B. and the fact that reunification was still open. On this record, there is simply no basis for concluding the juvenile court abused its discretion by declining to find reunification services would serve L.B.'s best interests. We find no error in the court's ruling.
DISPOSITION
The order denying mother reunification services is affirmed.
† Retired judge of the Fresno Superior Court assigned, by the Chief Justice pursuant to article VI, section 6 of the California Constitution.