Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. Nos. JV14986, JV14987, JV14988
Swager, J.
Appellant seeks to reverse an order that denied her reunification services in this dependency proceeding. We conclude that the juvenile court was justified in denying reunification services to appellant pursuant to Welfare and Institutions Code section 361.5, subdivision (b), (10) and (11), and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellant has an extensive and regrettable history with respondent Napa County Department of Health and Human Services (Department). In the 22 years since February of 1985, appellant and the fathers of her eight children have been through 43 separate referrals to the Department, along with multiple dependency proceedings that have culminated in termination of reunification services and parental rights, denial of reunification services, foster care placements, and adoptions.
For the sake of confidentiality and convenience, we will refer to appellant, her minor children, the minor’s father, and any other members of her family by their first names. We will collectively refer to Antonio, Jose, and Rosendo, the subjects of this dependency proceeding, as the minors.
The jurisdictional and disposition reports only recount the prior dependency cases which resulted in denial or termination of reunification services, or termination of parental rights.
Appellant’s child Harvey, a half-sibling to the minors in the present case, was born in August of 1985. He was the subject of a dependency action initiated in July of 1994. When Harvey was an infant he had allegedly been physically and sexually abused by his father. Harvey, in turn, admitted that he sexually molested his four-year-old sister Vicky in 1994. Reunification services to appellant were ultimately terminated, and foster care for Harvey was ordered. By 2003, after repeated delinquent behavior by Harvey, the dependency case was closed when a determination was made to treat him as a “602 ward rather than a dependent.”
The minors’ half-sibling Armando was placed into protective custody with the Department in May of 1999, when he was born exposed to opiates and diagnosed with Hemophilia. Reunification services to appellant and the father Rosendo were terminated by July of 2000. Parental rights were terminated thereafter, Armando was adopted, and the dependency case was dismissed in February of 2003.
Another half-sibling of the minors, Kayla, born in September of 2001, was placed in protective custody in June of 2003, after the Department learned that with appellant’s permission she had been taken by 15-year-old half-sister Judy, who was then on juvenile probation, to Oklahoma by Greyhound bus. Judy also asserted that appellant and her father Armando smoked marijuana and used cocaine with friends in the presence of Kayla. The parental rights of appellant and Armando were terminated in September 2004, and Kayla was adopted in October 2005.
A dependency proceeding for appellant’s daughter Judy, born in January of 1987, was commenced in July of 2003, after she reported that she had been repeatedly raped by her father during a recent trip to Oklahoma, as had occurred regularly during summer visitation in past years, or when her father visited Napa. Appellant waived her right to reunification services, and the case was dismissed in July of 2004, due to the impending emancipation of Judy.
Appellant’s three youngest children, Rosendo, Antonio, and Jose, were born in November of 2002, October of 2003, and August of 2006, respectively. Their biological and presumed father Armando was married to appellant, but separated from her before this dependency proceeding was initiated. The precipitating events for the proceeding occurred on the afternoon of November 12, 2006, with a report to the Napa Police Department from a “concerned citizen” that Antonio, then age three, had been observed walking around Fuller Park in Napa without an attending parent or adult. When Napa police officers responded, appellant was present with Antonio. She was warned of the dangers of leaving the child unattended. About two hours later another report was received that Antonio was again left without adult supervision in the park after dark for at least 45 minutes. When officers arrived and found appellant elsewhere in the park, she was intoxicated and acknowledged that she did not know “where her child was.” Antonio’s half-sibling Judy was called to the scene. Judy reported that she, along with a maternal aunt of the minors and a family friend, had been recently caring for the minors due to appellant’s continuing homelessness, drug and alcohol abuse problems. Antonio was taken into protective custody by one of the officers. Rosendo and Jose, who were staying with a family friend, were also taken into custody by Child Protective Services. Appellant was arrested for felony child endangerment.
The action was preceded by 13 different unsubstantiated referrals related to the minors.
The present dependency petition, filed on November 14, 2006, alleged that appellant failed to protect or provide support for Antonio, and had been incarcerated for child endangerment (§ 300, subds. (b), (g)). The petition further alleged that Rosendo and Jose were at serious risk of harm or illness due to appellant’s neglect of their sibling, her substance abuse, and inability provide care for them (§ 300, subd. (j)).
Following a hearing the juvenile court found a factual basis for detention of the minors within the meaning of section 300. The minors were removed from appellant’s custody and detained. At the scheduled jurisdictional hearing on January 11, 2007, appellant and the father Armando waived their rights and submitted the matter on the jurisdictional report. The allegations of the petition were found true, and the minors were declared dependents of the juvenile court, with placement out of the home of the parents. Reunification services were ordered for the father, and he was granted visitation with the minors. Appellant was also granted visitation with the minors. In light of the Department’s recommendation for denial of reunification services to appellant, she requested a contested dispositional hearing.
The dispositional report recited appellant’s history of substance abuse, including her ingestion of alcohol during pregnancy with at least three of her children. The report also mentioned appellant’s prior repeated referrals, failures to comply with reunification plans, inability to care for herself or her children, and continued use of alcohol, methamphetamines, and marijuana. Appellant had twice previously been “convicted of being under the influence and completed a diversion program for both convictions,” but was still currently “unable to remain clean and sober.” She also suffered a conviction for petty theft in 1991, and pled guilty to felony willful cruelty to a child (Pen. Code, § 273a, subd. (a)) on February 7, 2007.
Following the detention of the minors, appellant failed to regularly contact the social worker, although she appeared “for the majority of her visits” with the minors, and displayed “appropriate affection and empathy for them.” Appellant remained homeless, living under bridges; several times she was beaten and robbed. She also failed to report to her probation officer as ordered following her conviction of inflicting cruelty on a child. In addition to her substance abuse, appellant also suffers from depression, which she treats only sporadically with medication.
Appellant enrolled in an outpatient drug and alcohol treatment facility, the Women’s Recovery Program, but participated irregularly and ineffectively. The report noted that she had not “followed through” with any of her intervention programs. She tested positive for drug use, and acknowledged her difficulty in refraining from drug or alcohol use. The Women’s Recovery Program suggested that appellant needed a “higher level of care” in a residential treatment center for an extended period. The dispositional report recommended denial of reunification services to appellant.
Appellant testified at the dispositional hearing held on May 7, 2007. She admitted her addiction to alcohol and methamphetamines. Appellant testified that she entered the Project 90 residential treatment program (Project 90) in Napa two months before, and was scheduled to graduate in June. Appellant expressed that she wished her enrollment in Project 90 had occurred earlier, but was not aware of the program. She also attended parenting classes and had a sponsor through AA. She was able to maintain visitation with the minors at the Project 90 facility. Appellant asserted that for the first time she admitted her addiction. She professed to have increased self-esteem and devotion to the program. She intended to accept an offer from the Project 90 program to act as “a mentor” for the other residents at the facility after she graduated. Appellant believed that she would be able to succeed with her rehabilitation.
The juvenile court also received the dispositional report in evidence, and took judicial notice of three prior dependency actions which resulted in appellant’s failure to reunify with her children or termination of her parental rights.
Appellant’s daughter Judy testified that she noticed a change in appellant as a result of her participation in the Project 90 program. Appellant is happier, healthier, cleaner, and is “trying to be there for her kids.” Judy hoped that the minors would “have a chance to go back” with appellant.
The juvenile court found that appellant failed to make “enough” effort to treat her problems, and “that reunification services would not be in the best interest of the children.” Reunification services to appellant were therefore denied under section 361.5, subdivision (b)(10) and (11). Continued visitation with the minors was granted to appellant. This appeal followed.
DISCUSSION
Appellant argues that the juvenile court erred by denying her reunification services “pursuant to section 361.5, subdivision (b), subsections (10) and (11).” She claims “there was no substantial evidence to support” the court’s finding that she “failed to make a reasonable effort to treat the problems” that resulted in detention of the minors, as required by the statutory provisions to deny her reunification services. She further maintains that denial of reunification services to her is not “in the best interest” of the minors, as section 361.5, subdivision (b) also requires.
“There is a presumption in dependency cases that parents will receive reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5, subdivision (b).” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95, italics omitted.)
“[S]ubdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services may be bypassed altogether.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) Specifically, section 361.5, subdivision (b)(10), “authorizes denial of reunification services if the court finds, ‘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.” (In re Albert T. (2006) 144 Cal.App.4th 207, 217.) Subdivision (b)(11) provides another, related exception where “ ‘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.’ ” (In re Angelique C. (2003) 113 Cal.App.4th 509, 516–517.)
“ ‘In enacting section 361.5, subdivision (b), the Legislature has recognized that, notwithstanding the crucial role of reunification services when a minor is removed from the home, it may be useless under certain circumstances to provide services. [Citations.] “Section 361.5 reflects the Legislature’s desire to provide services to parents only where those services will facilitate the return of children to parental custody. The exceptions in subdivision (b) to the general mandate of providing reunification services ‘demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child’s interest.’ [Citation.]” [Citation.]’ [Citations.]” (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1269–1270.) “ ‘Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]’ ” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, quoting In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
To apply the exceptions found in section 361.5, subdivision (b), “the juvenile court must find both” that (1) the parent previously failed to reunify or parental rights were permanently severed with a sibling or half-sibling, “and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling.” (In re Albert T., supra, 144 Cal.App.4th 207, 218.) The party seeking bypass of reunification services under section 361.5, subdivision (b) has the burden of proving by clear and convincing evidence that reunification services need not be provided according to one of the enumerated exceptions. (In re Albert T., supra, at p. 221; In re Angelique C., supra, 113 Cal.App.4th 509, 521; Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.)
“We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.] ‘In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court’s order was proper based on clear and convincing evidence. [Citation.]’ [Citation.]” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839–840.) “Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. [Citation.] We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact.” (In re Albert T., supra, 144 Cal.App.4th 207, 216.)
I. The Finding that Appellant Failed to Undertake Reasonable Efforts to Treat her Problems .
Appellant acknowledges that the first requirement of section 361.5, subdivision (b) – previous termination of reunification services or permanent severance of parental rights of a parent over any sibling or half-sibling – is established by the evidence. The dispute before us centers upon the second element of the statute: “This necessarily involves deciding ‘whether or not [appellant] has made a reasonable effort’ ” to correct the problem that led to the removal of the siblings or half-siblings from her custody. (In re Angelique C., supra, 113 Cal.App.4th 509, 521.)
The “ ‘reasonable effort to treat’ standard [under section 361.5, subdivision (b)(10),] is not synonymous with ‘cure.’ ” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464; see also Cheryl P. v. Superior Court, supra, 139 Cal.App.4th 87, 97.) “ ‘The inclusion of the “no-reasonable effort” clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.’ [Citations.]” (In re Albert T., supra, 144 Cal.App.4th 207, 218.) “ ‘If the evidence suggests that despite a parent’s substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so.’ ” (Cheryl P., supra, at pp. 97-98, quoting Renee J. v. Superior Court, supra, at p. 1464.) “ ‘The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case.’ [Citation.]” (In re Harmony B., supra, 125 Cal.App.4th 831, 842.) On the other hand, “Section 361.5, subdivision (b)(10) does not impose a ‘fruitless’ standard, which would be a ‘pretty high standard.’ [Citation.]” (Cheryl P., supra, at p. 97.)
Here, appellant’s 22-year history of repeated failure to reunify with her children and termination of parental rights suggests in the strongest terms that she has not been willing or able to work toward correcting the underlying, serious impediments to retaining custody of her children, in spite of the many opportunities granted to her to do so. She has exhibited a marked failure to care for her children, neglect of their welfare, and lack of rudimentary parenting skills. In light of appellant’s past performance, the risk of her recidivism is a very real and serious concern. (Renee J. v. Superior Court, supra, 26 Cal.4th 735, 745.)
The present dependency proceeding found her still drug and alcohol addicted, homeless, without food or diapers for the minors, living in a van with the children or temporarily entrusting them to the care of family and friends. The dependency ensued when three-year-old Antonio was left alone in a busy city park after dark while appellant drank to the point of intoxication. After the minors were detained, appellant failed to cooperate with or properly contact the social worker, and continued to test positive for drugs. Given her history and current state of affairs, nothing less than an immediate, comprehensive endeavor to overcome her numerous parental problems was necessary. Instead, she entered into an outpatient drug abuse program, but did not participate. She did not cooperate fully with the Department or make herself available for random drug tests, failed drug tests, and did not seek to take full advantage of voluntary programs to obtain parenting and other necessary instruction. (Cf., Cheryl P. v. Superior Court, supra, 139 Cal.App.4th 87, 98; In re Albert T., supra, 144 Cal.App.4th 207, 221; Renee J. v. Superior Court, supra, 96 Cal.App.4th 1450, 1464.) Appellant’s efforts thus consist of this: only two months before the dispositional hearing, she enrolled in the Project 90 program. According to appellant’s testimony, her progress in the current program has been positive. Her daughter attested to appellant’s encouraging improvement as a result of her participation in the Project 90 program.
Upon our examination of the record in its entirety, we find substantial evidence to support the juvenile court’s conclusion that appellant’s efforts – that is, her last-ditch enrollment in a drug abuse treatment facility – have not been reasonable. While we commend appellant for finally approaching one aspect of her parental deficiencies – her substance addiction – and hope for her eventual success in that, we cannot find under the facts presented that her current, brief, limited undertaking of unknown ultimate outcome constitutes a reasonable effort to correct her pervasive parental deficiencies. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137–1138; Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 751.)
II. The Finding that Reunification Services are not in the Best Interests of the Minors .
We turn to the finding that reunification services are not in the best interests of the minors. “Section 361.5, subdivision (c) prohibits the court from ordering reunification for a parent who, like appellant,” falls within one of the enumerated exceptions of subdivision (b), “ ‘unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.’ ” (In re Kobe E. (2007) 146 Cal.App.4th 1113, 1123; see also Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 107; In re Diamond H., supra, 82 Cal.App.4th 1127, 1138.) However, “ ‘the court may still order reunification services be provided if the court finds, by clear and convincing evidence, that reunification is in the best interests of the child. [Citation.]’ [Citation.]” (Renee J. v. Superior Court, supra, 26 Cal.4th 735, 745.) The burden of affirmatively demonstrating that reunification is in the best interests of the children is upon the parent. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
Section 361.5, subdivision (c) provides, in pertinent part: “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.”
“[A] court called upon to determine whether reunification would be in a child’s best interest may, indeed, consider a parent’s current efforts and fitness as well as the parent’s history.” (In re Ethan N., supra, 122 Cal.App.4th 55, 66.) The gravity of the problem that led to the dependency, the strength of relative bonds between the dependent child and both parent and caretakers, and the child’s need for stability and continuity are all relevant considerations in determining the best interests of the minors. (Id. at pp. 66–67; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) “The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) “As a reviewing court, we will reverse a juvenile court’s order denying services only if that discretion has been clearly abused.” (In re Angelique C, supra, 113 Cal.App.4th 509, 523–524.)
Appellant’s current lack of fitness to care for the minors as well as her dismal history of parenting militate in favor of a finding that the minors’ best interests are not served by granting her reunification services. Appellant has a bond with the minors that seems to have endured and is illustrated by their relationship with her during visitation. Even so, the seriousness of the neglect and dysfunction that resulted in the current dependency, coupled with the unmitigated history of appellant’s failure to gain control of her life and maintain custody of her children, provides ample support for the finding that reunification is no longer in the best interests of the minors. (In re Ethan N., supra, 122 Cal.App.4th 55, 67; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 74.) The court did not abuse its discretion by finding that it is not in the best interest of the minors to prolong the lengthy dependency process to continue to provide reunification services to appellant. (In re Brooke C. (2005) 127 Cal.App.4th 377, 383; Francisco G. v. Superior Court, supra, 91 Cal.App.4th 586, 601; In re Diamond H., supra, 82 Cal.App.4th 1127, 1137–1138; In re Jasmine C. (1999) 70 Cal.App.4th 71, 78.)
Accordingly, the order is affirmed.
We concur: Marchiano, P. J. Margulies, J.