Opinion
F051174
12-12-2006
HEATHER M., Petitioner, v. THE SUPEROR COURT OF FRESNO COUNTY, Respondent, FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Charles Barrett, for Petitioner. No appearance for Respondent. Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter N. 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
In April 2006, petitioner, then 19 years old and on probation, was arrested at her home for being under the influence of methamphetamine. Then 18-month-old N., also present in the home, was taken into protective custody by the Fresno County Department of Children and Family Services (department) and placed in foster care. The whereabouts of N.s father were unknown.
At the time of her arrest, petitioner told the arresting officer that she smoked methamphetamine earlier in the day and that she used methamphetamine approximately once a month. She later told the investigating social worker that the day of her arrest was the first time she used methamphetamine in three years. As a result of her arrest, petitioner was sentenced to two months in jail and ordered by the superior court to complete inpatient drug treatment upon her release from custody.
On April 6, 2006, the department filed a dependency petition seeking N.s removal pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The juvenile court detained N. based on the petition and ordered the department to refer petitioner for a substance abuse evaluation.
Petitioner completed the substance abuse evaluation in late April. She told the substance abuse specialist (specialist) that her first use of a substance was alcohol at the age of 13. She claimed she used methamphetamine only twice in her life, once at the age of 15 and then again on the day of her arrest. She claimed to have successfully completed court-ordered substance abuse treatment three years prior while in custody at juvenile hall and did not believe she needed further treatment.
In his report, the specialist noted that petitioner was apprehensive when responding to questions about her drug and alcohol use and appeared to minimize the extent of her use. Based on his interview with her, he recommended intensive outpatient substance abuse treatment and random drug testing.
In June 2006, at a contested jurisdictional hearing, the juvenile court adjudged N. a dependent (§ 300, subds. (b) & (g)) and set the matter for disposition. In July, the department moved for a bonding study and asked for a two-month continuance of the dispositional hearing. The court denied the motion.
In its dispositional report, the department recommended the court deny petitioner reunification services pursuant to section 361.5, subdivision (b)(13) based on her extensive and chronic drug use and resistance to prior court-ordered treatment. The department reported that petitioner began using alcohol when she was 14 or 15 years old and claimed to drink occasionally, primarily on the weekend. She also began using methamphetamine when she was 15 or 16 years old and used it when it was available.
The department further reported that petitioner was ordered by the juvenile delinquency court in July 2003 to complete six months of inpatient in-custody treatment at the juvenile hall substance abuse unit (SAU) followed by six months of aftercare. The department included a statement by petitioners probation officer that her use of alcohol and/or controlled substances would have to be significant for her to be ordered into the SAU. Petitioner completed the inpatient phase of treatment but only two of the six months of aftercare.
In addition, the department reported that on June 6, 2006, petitioner entered the inpatient drug treatment program ordered by the superior court, but discharged herself from the program three days later. She was immediately referred to another inpatient drug treatment program but missed three successive intake appointments in June. She claimed she did not have transportation to attend the appointments. According to the caseworker, petitioner was offered but declined transportation. Petitioner later explained that she preferred outpatient to inpatient drug treatment.
Finally, the department reported that petitioner visited regularly with N. and that there appeared to be a significant mother/child bond. Nevertheless, petitioners denial of her substance abuse and her refusal to accept treatment prompted the departments conclusion reunification would be futile and not in N.s best interest.
Petitioner challenged the departments recommendation and a contested dispositional hearing was conducted on August 23, 2006. Petitioners position at trial was that there was insufficient evidence to conclude she has an extensive and chronic substance abuse problem and that she resisted treatment. Alternatively, she argued services would nevertheless be in N.s best interest.
Prior to the evidentiary phase of the hearing, counsel for petitioner challenged as multiple hearsay the probation officers conclusion contained in the departments report that petitioners substance abuse had to be significant to result in her in-custody substance abuse treatment and asked that it be stricken from the report. The court declined to strike the statement but advised counsel it recognized there was no evidence to support the probation officers conclusion.
Petitioner testified she had been participating in outpatient drug treatment for approximately a week. However, on cross-examination, she was evasive about whether she was actually participating in the program or had merely enrolled. She stated she discontinued inpatient treatment in June 2006 because the specialist recommended outpatient treatment and she did not want to spend six months as an inpatient for a problem she does not have. She denied resisting inpatient treatment and refuted the departments claims that she refused transportation to the intake appointments.
Petitioner further testified that SAU was for alcohol use only. Even though she did not complete the aftercare portion of the program, she claimed she no longer abused alcohol. She also testified she stopped using drugs in January 2004 and that she and N. tested negative at the time of N.s birth in October 2004.
Following petitioners testimony, county counsel urged the court to deny petitioner reunification services. County counsel also argued that, though petitioners bond with N. weighed in favor of a recommendation for services at one time, subsequent considerations dissuaded the department from making such a recommendation. Specifically, county counsel cited occasions when petitioner missed or was late for visitation and when petitioner did not interact with N. during visitation. County counsel also cited N.s delayed emotional development and manifestations of distress (pulling of her own hair, banging her head and hoarding her food), which county counsel attributed to the neglect N. suffered in petitioners care rather than to a reaction from being separated from petitioner.
At the conclusion of the hearing, the court denied petitioner reunification services pursuant to section 361.5, subdivision (b)(13). The court also found reunification services would not be in N.s best interest and set the matter for a selection and implementation hearing. This petition ensued.
DISCUSSION
Petitioner argues there was insufficient evidence of extensive, abusive and chronic drug use and resistance to treatment to warrant denying her reunification services under section 361.5, subdivision (b)(13). We disagree.
We review the juvenile courts orders and findings to "determine if there is any substantial evidence-that is, evidence which is reasonable, credible and of solid value-to support the conclusion of the trier of fact. [Citations.]" (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In so doing, we resolve all conflicts in favor of the prevailing party and do not reweigh the evidence. (Ibid.)
Under section 361.5, subdivision (b)(13), the juvenile court may deny reunification services if "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 courts attention ...." (§ 361.5, subd. (b)(13).) When a parent falls within this provision, the court is prohibited from ordering reunification services "unless [it] finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).)
According to the appellate record, petitioner was ordered to complete a six-month substance abuse treatment program in July 2003. Petitioner claimed the program was designed to treat alcohol use only and that she suffered no further problems with alcohol after completing the inpatient portion of the program. She also violated probation twice by being under the influence of methamphetamine, once as a juvenile and again as an adult in April 2006. She stated these were the only two times she used methamphetamine. However, she also stated that she used methamphetamine once a month.
Under these facts, while we do not find overwhelming evidence of extensive, abusive and chronic use of drugs and/or alcohol, nevertheless we find the evidence sufficient to uphold the courts finding. Petitioners drug and alcohol use extended over approximately four years, beginning with arrests for alcohol possession and being under the influence of methamphetamine in 2002. By 2003, she had developed a sufficiently serious problem with alcohol abuse that it warranted six months of inpatient treatment and six months of aftercare. Even if she remained sober after treatment, as she claimed, she either continued or took up regular drug use because she admitted monthly use of methamphetamine. The duration and regularity of her substance abuse, based on her own admissions, supports a finding of extensive and chronic drug and alcohol abuse. Viewing the evidence in favor of the courts finding, which we must, we concur petitioner has a history of extensive and chronic abuse of drugs.
We also conclude substantial evidence supports the juvenile courts finding petitioner resisted court-ordered treatment. Resistance can be refusal to undergo substance abuse rehabilitation. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.) It can also be enrolling and participating in rehabilitation and dropping out or resuming regular drug use after a period of sobriety. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1402.)
In this case, petitioner demonstrated resistance to rehabilitation in several ways. She dropped out of court-ordered inpatient treatment for alcohol abuse in 2004 without completing aftercare. She also dropped out of court-ordered inpatient drug treatment in June 2006. She then refused inpatient drug treatment at another facility and repeatedly missed intake appointments. This all occurred within three years of the filing of the instant petition in April 2006.
Therefore, based on the foregoing, we conclude substantial evidence supported the juvenile courts order denying petitioner reunification services pursuant to section 361.5, subdivision (b)(13). Since petitioner does not challenge the courts additional finding that reunification would not be in N.s best interest (§ 361.5, subd. (c)), we need not address it.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.