Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 2786-DEP.
Bruiniers, J.
Angelina T. (Mother) appeals from an order denying her reunification services with her child, A.S. The basis for denial of service was that she had failed to make reasonable effort to treat problems that had led to earlier removal of another child from her custody, and to termination of her parental rights as to that child.
We conclude the juvenile court erred and conclude that no substantial evidence in the record supports the determination. We reverse.
I. Background.
We necessarily summarize the facts of both the current dependency matter and the prior dependency proceedings involving A.S. and his siblings.
2002–2004 Dependency Case of Israel G.
In November 2002, the Sonoma County Human Services Department (Agency) filed a juvenile dependency petition on behalf of five-month-old Israel G., alleging that he was a dependent child within the meaning of Welfare and Institutions Code section 300, subdivisions (b), (g) and (j). Israel G. is an older half-sibling of A.S., the minor who is the subject of this appeal. Infant Israel G. was found in a running car with an unrelated man who was in a deep sleep. The man had consumed several beers and two lines of methamphetamine the previous night, had methamphetamines in his possession in the car, and had a history of five arrests and three convictions on drug-related charges in the previous eight years. Mother identified the man as her boyfriend of one month. The petition further alleged that Mother had kicked Israel G.’s six-year-old brother in the head with her shoe in October 2002, resulting in a two-inch abrasion on the boy’s forehead. Mother had been arrested for the kicking incident and for other outstanding warrants and was incarcerated at the time Israel G. was found in the car. Israel G. was detained.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother reported that she gave birth to twins when she was 15 years old and the twins were living with her father in Santa Rosa. Mother met Israel G.’s father in Santa Rosa and moved with him to Bakersfield, but she returned after she discovered he had a wife and six other children. Mother said she was not aware that her current boyfriend had a drug problem or that he was using drugs. She denied kicking Israel G.’s older brother in the head and said the injury occurred accidentally when they were play wrestling. Following Israel G.’s removal, Mother visited regularly with Israel G., and the visits were appropriate. After she was released from jail, found appropriate housing, and tested negative for drugs. Israel G. was returned to her care under a family maintenance plan.
In January 2003, a supplemental petition was filed alleging that Mother had left Israel G. with an unrelated person when she went to jail for a probation violation (a positive drug test). Israel G.’s living conditions were unsafe: he had been “showered” with glass when a window was broken in the home where he was staying, and people in the home were using drugs. Soon after Mother was released from jail, she tested positive for methamphetamines. Israel G. was removed from Mother’s care and Mother received reunification services.
Mother was on probation for a 2001 theft conviction. Child endangerment charges for the alleged abuse of Israel G.’s sibling in October 2002 were dismissed in May 2003.
As of August 2003, Mother was in a new relationship and engaged to be married, she was unemployed, she lacked California identification, her living situation was unstable, and she did not keep the Agency apprised of her address. Mother often brought her other children to her visits with Israel G. and at times she yelled and swore at the older children, although parenting education services improved Mother’s behavior over time. Mother did not submit to drug testing between April and August 2003, and she did not show up for her scheduled admittance to a residential treatment program in April.
On September 19, 2003, on the Agency’s recommendation, the court terminated Mother’s services. Israel G.’s alleged father was never located and never received services. In March 2004, the court terminated Mother’s and the alleged father’s parental rights to Israel G. Israel G.’s adoption was finalized in 2005.
That judgment was affirmed on appeal. (In re Israel G. (Mar. 7, 2005, A106294) [nonpub. opn.].)
2007–2009 Dependency Cases of I.T. and A.S.
In December 2007, the Agency filed a juvenile dependency petition on behalf of Mother’s two-year-old son, I.T., pursuant to section 300, subdivisions (b) and (j). At the time he was taken into protective custody, I.T. was living with Mother and David S. (A.S.’s father) and Mother was several months’ pregnant with A.S. I.T.’s father was Jesus O.
David S. was named in the petition as A.S.’s alleged father. A judgment of paternity was entered in April 2008.
On December 19, 2007, the police responded to a report that David S. had brandished a gun and threatened two teenage neighbors. Upon entering David S.’s home, police concluded it was unsafe housing for I.T. due to the presence of several pounds of marijuana, drug paraphernalia, illegal weapons, exposed electrical wires and rotten food, all within I.T.’s reach, and the absence of edible food. David S. was arrested and charged with crimes arising from the confrontation with the teenage neighbors. He had a 15-year history of arrests for possession of drugs or drug paraphernalia and for drug use. A petition was filed on behalf of I.T., apparently alleging the aforementioned facts as well as the fact that the 2002 dependency case of Israel G. had resulted in termination of Mother’s parental rights.
The record of I.T.’s dependency case is not in the appellate record, but the dependency record for A.S. includes many references to I.T.’s largely concurrent dependency case. We take or infer the facts of I.T.’s dependency case from these references.
Mother was admitted to the hospital due to placenta previa soon after December 19, 2007, and she stayed there until A.S. could be delivered by Cesarean section. In January 2008, before the delivery, a social worker discussed a “probable bypass recommendation” with Mother. Mother responded with a “clear articulation of the situation and her intent” to reunite with I.T. The social worker said she would consider recommending services if Mother could show through her actions that she intended to change, specifically regarding her drug abuse issues that had led to Israel G.’s removal. The social worker told Mother that the Agency would file a petition on behalf of A.S. as soon as he was born, but that Mother could get custody of A.S. if she immediately entered a residential drug treatment program.
On January 16, 2008, the dependency petition as to I.T. was sustained. Apparently, both Mother and I.T.’s father, Jesus O., were granted reunification services.
A.S. was born prematurely (34 weeks; 4 lbs., 15 oz.) in late January 2008. Mother’s attitude toward Agency intervention initially was negative. However, four days after A.S.’s birth, Mother entered a residential treatment program (Casa Teresa) and A.S. was placed with her there after he spent two weeks in the neonatal intensive care unit. On January 29, 2008, the Agency filed a petition on behalf of A.S. under section 300, subdivisions (b), (g) and (j). The petition alleged the facts that had given rise to I.T.’s petition and also alleged that Mother tested positive for THC on December 20, 2007.
In a March 2008 status report, the Agency reported that Mother was performing satisfactorily in treatment, where she and A.S. were under 24-hour supervision and monitored by a public health nurse. At a March 5 hearing, the Agency reported it was very happy with Mother’s progress in treatment. The court sustained A.S.’s petition, placed A.S. with Mother, and ordered family maintenance services for Mother.
In May 2008, Mother graduated from the Casa Teresa residential substance abuse treatment program. By late August, Mother had completed the Casa Teresa aftercare program and was participating in a dependency drug court program. Both programs included random drug testing and the Agency had not been informed of any missed or failed tests. Mother was attending at least three Alcoholics Anonymous or Narcotics Anonymous groups per week. She was taking prescribed medication for depression and had begun individual therapy in July. She arranged for in-home parenting classes when the recommended classes conflicted with her other services, and she regularly participated in the in-home parenting sessions. She refused to attend a domestic violence support group, insisting she had not been involved in a violent relationship.
Against Agency advice, Mother initially returned to David S.’s home after her release from Casa Teresa (he was incarcerated at the time). In July 2008, the Agency received a suspected child abuse referral regarding A.S. and responding officials found David S.’s home in a “ ‘deplorable state, ’ ” with old food lying on the counter, dog feces and urine throughout the home, soiled diapers, clothes and other belongings strewn through the home, and rancid milk and minimal other food in the refrigerator. Mother and A.S. relocated to Casa Teresa after the incident. Mother told the Agency that even while she was living at David S.’s home, she spent most evenings with a friend across the street and most weekends at Casa Teresa. She also reported that she had ended her relationship with David S. She agreed to work with a community resource worker to find different housing and Casa Teresa promised to house Mother and A.S. until they could find safe alternative housing. A.S. appeared to be in good condition and well cared for. The Agency substantiated the allegation of general neglect, but left A.S. in Mother’s care.
In August 2008, the Agency recommended continuing family maintenance services with respect to A.S. for another six months. “[Mother] has demonstrated that she is more than capable of being a clean and sober mother to [A.S.] who ensures that his safety, health, and overall well being is of her utmost priority. It is obvious to this Social Worker that [Mother] loves [A.S.] and is willing to do whatever is necessary to ensure that he stays in her care. [¶] [Mother] has begun to discover that leading a clean and sober life can also be fun, which has also lead [sic] her to re-evaluate her relationship with [David S.]”
In I.T.’s case, reunification services for Mother were extended in August 2008 for six additional months. In October, I.T. was released to his father’s care with family maintenance services and reunification services were continued for Mother.
At a November 20, 2008 hearing, the Agency reported that Mother was “doing very, very well.” She and A.S. had been living in all-female Catholic Charities transitional housing since September and the social worker observed that “not only does [A.S.] look happy and healthy, but [Mother] look[s] good, the house looks good, everything appears to be going very very well....” Mother stayed in regular contact with the social worker and provided updates on A.S.’s medical care. She was “doing well” in dependency drug court, and in individual therapy. “All her reports have been very positive.” The social worker “overall ha[d] no concerns about [A.S.]’s care.... She’s very very pleased with mother’s progress.” At the January 2009 12-month review hearing in I.T.’s case, Mother’s services were extended another six months.
In a March 2009 status review report in A.S.’s case, the Agency wrote that Mother had progressed to the fourth phase of dependency drug court program and was scheduled to graduate in May or June 2009. She was testing negative for drugs. She continued to attend individual counseling, where she had made significant progress and had recently coped well with a stressful situation (the loss of a close friend). She continued to regularly attend parent education sessions, where she was making progress. She continued to attend 12-step programs and test clean for drugs. She had “become more open to asking for and accepting the assistance offered by this Social Worker, which is a radical change from when this case began.” A.S. was doing well and Mother was obtaining all necessary medical care for him. The Agency recommended dismissing the dependency case and returning full legal and physical custody to Mother. In April 2009, the court found that the conditions that justified assumption of jurisdiction no longer existed, signed exit custody orders, and dismissed A.S.’s dependency case. A final judgment was filed April 17, 2009.
A June 2009 status review report in I.T.’s case stated that Jesus O. and Mother were coparenting I.T. well, with Mother watching I.T. for two full weekdays and overnight on weekends. Mother had continued with her substance abuse programs and had been invited to mentor other dependency drug court clients. She “was open and honest [with the Agency] about a new relationship she is involved in and invited this Social Worker to meet him, which this Social Worker did.” I.T. was doing well. The Agency wrote, “[Mother] has made such exponential growth and progress during the course of this case, that words are not sufficient. She has kept the survival fire within her for motivation and determination to succeed with her recovery and changing her life, but she has allowed the anger and attitude to dissolve so that she is now accepting of help and guidance.... Even when all odds were against her, she persevered and now has [I.T.] in her care about 50 percent of the time.”
In June 2009, I.T.’s dependency case was dismissed. I.T. was released to his father’s care, with a “shared physical custody exit order” that allowed unsupervised visitation by Mother.
The Current A.S. Dependency Case
On February 2, 2010, a mandated child abuse reporter (apparently, A.S.’s day care provider) told the Agency that A.S.’s words were very limited, that he arrived at school with a full diaper, that he was wheezing, that Mother smoked around A.S., and that A.S. had bruises suspected to be from “the pit bull.” A written statement by the mandated reporter indicated that A.S. had injuries to his right eyebrow, cheeks, stomach, back, and lower right bottom, and that A.S. had pointed to a scratch (apparently on his arm) and said, “dog bite, dog bite, RRRRR.” The reporter wrote, “I’m assuming he was attacked by family pit bull again.” A responding social worker observed rashes on A.S.’s face and buttocks, a slight bruise in the size and shape of a fingertip near his left hip, a new bruise on the left side of A.S.’s forehead, and scratches and reddish marks on other parts of his body. Photographs of the injuries were taken.
On February 9, 2010, the Agency sought and obtained a protective custody warrant authorizing the removal of A.S. from Mother’s care. On February 10, the Agency filed a petition on behalf of A.S. pursuant to section 300, subdivisions (a), (b) and (j). Under section 300, subdivision (a) (risk of serious physical harm), the petition alleged, “[A.S.] has multiple bruises and linear scratches/marks and other various scratches on his head, body and upper leg area, and markings consistent with a handprint on the minor’s torso. On or about February 4, 2010, the minor had scratches near his eye area, body and legs. On [or about February] 8, 2010, the minor had a bruise on his forehead and new scratches on his body. In addition, the minor has rashes on his face and buttocks. [Mother] has failed to provide an adequate explanation as to how the injuries occurred, placing the minor at substantial risk of further physical harm in her care.” Under section 300, subdivision (b) (failure to protect), the petition alleged that Mother and David S. had histories of substance abuse, and under section 300, subdivision (j) (abuse of sibling), the petition alleged that Mother’s parental rights had been terminated as to Israel G. and that I.T. had been declared a dependent and his case was dismissed after he was released to his father’s care.
An allegation of domestic violence that David S. struck Mother on December 19, 2007, resulting in an arrest for assault and a conviction for criminal threats, was later stricken as inaccurate.
The Detention Report & Hearing
Mother told the Agency and court that all of A.S.’s injuries were accidental. Mother denied that she or her current boyfriend (Travis M.) hurt A.S. and she said she disciplined A.S. only with timeouts. Mother explained the rash on A.S.’s cheeks as caused by wind burn, which developed because Mother took A.S. to day care by bus early in the morning so she could attend school at Santa Rosa Junior College, where she was a full-time student. She said the day care providers had never raised any concerns with her about her care of A.S. Because A.S. had asthma, Mother did not smoke in A.S.’s presence and the other people living in her home did not smoke inside.
Mother denied substance abuse or domestic violence. She testified that she had been clean since November 2007, she attended Narcotics Anonymous meetings three times a week, and she met regularly with a sponsor. She welcomed unannounced visits by the social worker and agreed to follow any other family maintenance recommendations.
The father, David S. told the Agency that Mother used methamphetamines and that his adult daughter had visited Mother and observed that A.S. was constantly dirty, he had eating issues, his teeth were rotting, and he was left with various people he did not know.
The court ordered A.S. detained and made certain specific factual findings, referring to color photographs of A.S. that had been placed in evidence: “[I]t is true that children do get wind rashes and having a cold face with some juice on an early morning could result in a little bit of rash around the child’s face as seen in picture 31. But the court has a concern as to picture 30 as to what appears to be the bruise on the child’s forehead above the child’s left eye. [¶] On picture 33, we do have what appears [sic] to be scratch marks on the child’s buttocks area and... under the child’s left underarm, there’s also a similar mark consistent with that of a scratch. [¶] On the next page, there’s the long scratch mark across the child’s upper right thigh.... [I]n particular, the last picture listed as picture 34 does appear to have what looks like three finger marks on the child’s chest. [¶]... [T]he Court does find a prima facie showing has been [made] [a]nd the child does come within section 319 of the Welfare and Institutions Code, there being no reasonable means to protect the child’s physical and emotional health without removing the child from the parent’s physical custody.”
Section 319 provides that a court may order a child detained only if “a prima facie showing has been made that the child comes within Section 300, the court finds that continuance in the parent’s or guardian’s home is contrary to the child’s welfare, and [as relevant here]... [¶] [t]here is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable means by which the child’s physical or emotional health may be protected without removing the child from the parent’s or guardian’s physical custody.” (§ 319, subd. (b)(1).)
The Jurisdiction and Disposition Hearing
The court held a joint jurisdiction and disposition hearing on May 10, 2010. Conflicting evidence was presented regarding A.S.’s scratches and bruises, his diaper rash, Mother’s relationship with Travis M., Mother’s concern for A.S.’s safety, and Mother’s prior efforts to treat the problems that led to Israel G.’s removal.
Bruises & Scratches
As evidence of the injuries, the Agency relied on the mandated reporter’s statements in the record (the reporter did not testify) and the photographs of the injuries. Pat Ray, the adoption worker in Israel G.’s case and the social worker assigned to A.S.’s current case, testified that Mother had provided no explanation for A.S.’s bruises and “just said that it was typical two year old behavior that kids fall.” Mother testified she did not know how A.S. got the scratches, but he got the bruise by his eye because he fell as he was walking down two steps and tripped. He was an active child and he had come home from day care with similar scratches and bruises that were documented in day care incident reports. None of A.S.’s scratches or bruises required medical attention.
Diaper Rash
Regarding A.S.’s diaper rash, Ray testified that it was “extreme and untreated, ” and Mother acknowledged it was very serious. Ray testified that Mother was bringing A.S. to daycare with soiled diapers on a regular basis and telling the day care providers that she was rushed in the morning. A responsible parent would change the child more frequently and “not leave the child in overnight diapers and take him to school in that condition.” Minor’s counsel had Ray confirm that A.S. was dropped off with a “totally soaked diaper” and with his bottle full of Hawaiian Punch. Mother testified that it took her an hour to travel by bus from home to the day care center and when she arrived she would ask if she should change him before she left but they would tell her they would take care of it. She did not bring A.S. to daycare with an overnight soaked diaper. She testified that A.S. developed diaper rash because she had bought cheap diapers. She took him to the doctor, who prescribed medication for the rash. She used Desitin or Balmex and changed his diapers more frequently, but when the rash did not go away she switched back to more expensive diapers.
Mother’s Relationship with Travis M.
Mother and Travis M. both testified that they began their relationship in about February 2009 when Mother was living in the all-female housing, and that both Mother and Travis M. were in 12-step programs and were not actively using drugs or alcohol. Travis M. frequently gave Mother rides to 12 step meetings and other appointments. On a couple of occasions, he watched A.S. while Mother was at an appointment. Travis M. lived in a separate residence from Mother with his parents and his two children, whom he had raised for about two years after their mother turned them over to his care. There was no child protective services history regarding Travis M.’s children. Travis M. had a good relationship with A.S. and had never struck, scratched or otherwise injured him. Mother and Travis M. planned to marry and combine their households, including A.S. and Travis M.’s daughters.
Travis M. started using methamphetamines when he was 11 years old and had used them for 26 years with some periods of “clean time, ” the maximum being the most recent 18 months. He was last released from prison about three and one half years previously, and he had been “on court probation to the drug court” since late January 2009 and was due to complete drug court in June 2010. He attended 12-step meetings at least five times a week, he had a sponsor and was sponsoring someone else, he had completed the 12 steps, and he was submitting to drug testing two to four times a week and all tests were clean.
Josephine McKay was the social worker assigned to A.S.’s prior dependency case and I.T.’s case from at least September 2008 until the dismissal of those cases. She testified that Mother’s involvement with Travis M. was inconsistent with her understanding of Mother’s situation at the time she recommended dismissal of A.S.’s prior dependency case. In her final report in that case, McKay wrote that Mother for the first time was living independently without a male companion. McKay testified that she learned about Mother’s relationship with Travis M. through I.T. after A.S.’s prior dependency case had already been dismissed and that Mother indicated Travis M. was a friend who gave her rides, not that he was a boyfriend. However, McKay’s final report in I.T.’s case stated that Mother “was open and honest [with the Agency] about a new relationship she is involved in and invited this Social Worker to meet him, which this Social Worker did.” McKay acknowledged that she ran a criminal background check on Travis M. when she learned of the relationship in 2009 and determined that Travis M. had arrests and convictions for drug use and possession, but not for violent offenses or offenses against children and no child welfare history. She also determined that Travis M.’s driver’s license, car insurance and car registration were current. She testified, “There was nothing that would indicate that he was a potential danger to either of the children” and she did not advise Mother to terminate her relationship with him or to restrict his contact with A.S. However, McKay told the court that “based on the situation [Mother] was in, it would be difficult for her to believe that it would be okay to leave her children with somebody else.” She said if she had known while A.S.’s prior dependency case was still pending that Mother was in a romantic relationship with Travis M., “it would have been cause for concern based on [Mother’s] history of choosing men and ending up in violent situations.”
The evidence is undisputed that Mother was living at the time in women-only sober living housing provided by Catholic Charities, and Mother testified that she received no financial assistance from Travis M. while she lived there.
Ray testified that she ran a criminal background check on Travis M. in 2010 and discovered that he had been arrested for domestic violence against another woman in January 2010. According to a police report of the incident, the woman said that she had an ongoing sexual relationship with Travis M., he had been drinking, kicked and slapped her, and threatened to “beat her ass.” Police observed injuries on the woman that were consistent with her allegations. Travis M. was arrested and an emergency protective order was issued, but he testified that at the time of the disposition hearing the charges had been dropped and no temporary restraining order had been issued. Travis M. testified that he did not have an ongoing sexual relationship with the woman, who was his ex-girlfriend, that the woman was mad at him because she wanted to renew their relationship and he refused, that the woman kicked him and he did nothing more than restrain her by placing his arm across her chest, and that he was not intoxicated. Mother said she believed Travis M.’s account of the incident based on her familiarity with his character and she was not concerned about the incident.
Mother’s Concern for A.S.
Ray described Mother’s reaction to the issues that brought A.S. back before the court as “cavalier[, ]... a demonstrated lack of compassion for [A.S.] and curiosity and interest [in him].” Ray acknowledged that when she first told Mother about the bypass recommendation, “it was a very sad, tearful occasion, ” and that Mother’s visits with A.S. were emotional and demonstrated a strong bond between her and A.S. However, Mother otherwise seemed defensive and did not want to acknowledge the existence of any problem. The Agency and minor’s counsel both argued that Mother’s demeanor on the witness stand demonstrated her lack of concern about the case and about her son.
Mother’s Efforts
McKay testified that Mother had followed through with all elements of her case plans in the 2007–2009 dependency cases of A.S. and I.T. except for one domestic violence referral. Mother “demonstrated that she had utilized the resources that were offered and that she followed through with and that sobriety was the primary risk that affected her children. But she maintained it and demonstrated that it was solid in her life.” McKay recommended dismissal of the prior A.S. dependency case because she believed A.S. would be safe in her care. Mother testified that she had not used illegal substances since November 27, 2007. She tested positive in December 2007 because THC was still in her system. She progressed to step four in her 12-step program but started over again with her new sponsor, whom she contacted two to three times a week.
At the close of the evidence, the court dismissed the allegations in the petition under section 300, subdivision (b), which were based on the parents’ history of substance abuse, and otherwise sustained the petition.
On disposition, the Agency recommended a bypass of services under section 361.5, subdivision (b)(11) (hereafter, § 361.5(b)(11)). That section applies when the court finds by clear and convincing evidence “[t]hat 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.” (Ibid.) The Agency argued, “[J]urisdiction in [Israel G.]’s case was based on mother’s leaving him in an unsafe environment with a man who was unfit to care for him. [After] mother initially received family maintenance services... [she] again left [Israel G.] with a non-related person without adequate provision.... Ultimately mother’s parental rights were terminated with regard to [Israel G.] [¶]... [J]urisdiction [over A.S.] originally was based upon mother’s drug use.... Eventually mother succeeded in her drug treatment program and eventually the case was dismissed on April 1, 2009. In the dismissal report, the social worker noted mother ‘has shared that this is the first time in her adult life that she [mother] has lived independently with out [sic] the assistance of a male partner.’ [¶]... [¶]... [T]he Department has [since] determined mother’s new boyfriend was [Travis M.] and that on January 8, 2010, [Travis M.] [w]as arrested for domestic violence against another woman with whom he had an ongoing sexual relationship. The [police] report indicated [Travis M.] was drinking alcohol.... At no time before the Department’s independent discovery of the foregoing information did mother reveal to the Department her involvement with a boyfriend who had just been arrested for domestic violence and who apparently used alcohol to excess.” The Agency continued: “In this case, mother’s drug history and her efforts to treat that problem are not the issue. The issue which mother has failed to make a reasonable effort to treat is her failure to protect [A.S.]... In the face of mother’s failure to even acknowledge the injuries to [A.S.], the Department submits the evidence demonstrates that any effort made by mother has been lackadaisical and half-hearted so as to support the bypass of any further reunification services to her pursuant to section 361.5(b)(11).”
Mother argued that the files in the prior dependency cases of both I.T. and A.S.—showing she had successfully reunited with or maintained custody of both children—demonstrated that Mother had made reasonable efforts to address the issues that led to Israel G.’s removal. Those cases were “a testament to mother’s effort... in complying with the case plan in all elements including therapy, substance abuse, parent education, and not just going through the motions, but doing an excellent job as Ms. McKay indicated.” Even if the court found Mother failed to make reasonable efforts, Mother argued, reunification services should be granted under section 361.5, subdivision (c) because doing so was in A.S.’s best interest as he had a strong bond and an affectionate, loving relationship with Mother.
See footnote 12.
The Bypass Ruling
The juvenile court ordered a bypass of services. The court found that in Israel G.’s case arose because Mother “entrusted the child to an inappropriate person.... [¶] Looking at the evidence in this particular case, the mother does offer explanations for all of the various allegations. But what is clear is that the child suffered abuse at someone’s hands and there [were] ongoing problems and the mother should have been conducting her own investigation... to ensure that the child didn’t suffer from additional abuse. [¶] Any way you look at it, having a wet diaper on a child who has a diaper rash only exacerbates the problem. It is clear from all the testimony that the child would arrive at day care with a full diaper. So the Court does believe that the mother has failed to learn from the past problems[.] [A]lthough the law does not require that there be a cure, the law does require that there be progress made to combat the problem. [¶] There needs to be a reasonable effort to treat the problem. In light of what happened in this particular case, in light of the history and the testimony the Court has heard, the Court cannot find that there has been a reasonable efforts to treat the problem that led to the removal of the sibling.” The court’s written order denied Mother reunification services under section 361.5, subdivision (b), finding by “clear and convincing evidence that the parental rights over any sibling or half-sibling of the child had been permanently severed and... the mother has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling.” The court removed A.S. from Mother’s care and placed him with David S.’s sister, and granted reunification services to David S.
II. Discussion
A. Legal Standard for Bypass of Services
We review an order denying reunification services under section 361.5, subdivision (b) (hereafter, § 361.5(b)) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (Cheryl P.).) In doing so, we examine the whole record in a light most favorable to the juvenile court’s findings and conclusions, deferring to that court on issues of credibility. (In re Albert T. (2006) 144 Cal.App.4th 207, 216 (Albert T.).)
One case, In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 (Baby Boy H.), has suggested an abuse of discretion standard of review. We have found no other case employing this standard.
We observe first that, while conflicting testimony was presented about the source of the bruises and scratches on A.S. and the reasons for his diaper rash, there are no issues before us as to the sufficiency of the evidence to sustain the court’s findings that A.S. was a dependent child and that his removal from Mother’s custody was necessary to protect his safety and welfare. On the conflicting evidence, the court found that “[A.S.] suffered abuse at someone’s hands” and that Mother “entrusted the child to an inappropriate person.” Mother’s appeal challenges only the court’s denial of reunification services.
“Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement ‘the law’s strong preference for maintaining the family relationships if at all possible.’ [Citation.]” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) “[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother” unless an exception set forth in section 361.5(b) applies. (§ 361.5, subd. (a), italics added.)
Section 361.5(b)(11) applies one of those exceptions “when the court finds, by clear and convincing evidence, ... [¶]... [¶]... [t]hat 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.” (Italics added.)
Even if the court finds that section 361.5(b)(11) applies, it retains the discretion to grant reunification services if it “finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).) Mother urged the court to grant services under section 361.5, subdivision (c) if the court found that section 361.5(b)(11) applied, but the court declined. Because we conclude that the court erred in applying section 361.5(b)(11) in the first instance, we need not consider whether the court abused its discretion in also denying services under section 361.5, subdivision (c). Under that subdivision, the parent would have the burden of affirmatively demonstrating that reunification is in the best interests of the children. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
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. (In re Joshua M. (1998) 66 Cal.App.4th 458, 470.) The exceptions 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.” (Baby Boy H., supra, 63 Cal.App.4th at p. 474.) “As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.] Nevertheless, as evidenced by [section 361.5(b)], the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.] 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.]” (Baby Boy H., at p. 478; Cheryl P., supra, 139 Cal.App.4th at p. 96 [in enacting § 361.5, subd. (b)(10), “ ‘the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended’...”]; see also Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744–745 [superseded by statute in other respects.]) The exception “recognizes the problem of recidivism by the parent despite reunification efforts” and the fact that “when another child of that same parent is adjudged a dependent child, it is not unreasonable to assume reunification efforts will be unsuccessful.” (Baby Boy H., at p. 478.)
B. Application to Current A.S. Dependency Case
In denying reunification services here, the trial court found that Israel G.’s case arose because Mother “entrusted the child to an inappropriate person.” The court further found that because Mother exhibited similar behavior in the instant case she had not made reasonable efforts to overcome the problem. “[W]hat is clear is that the child suffered abuse at someone’s hands and there [were] ongoing problems and the mother should have been conducting her own investigation... to ensure that the child didn’t suffer from additional abuse. [¶]... [T]he Court does believe that the mother has failed to learn from the past problems[.] [A]lthough the law does not require that there be a cure, the law does require that there be progress made to combat the problems.”
The Agency asserted that “[t]he issue which mother has failed to make a reasonable effort to treat is her failure to protect [A.S.]” Here the court could, and did, reasonably conclude on the evidence before it that Mother had failed to protect A.S. and that the present situation was severe enough to necessitate removal of A.S. from Mother’s custody.
The only issue here is whether there is also substantial evidence to support a finding that Mother failed to make a “reasonable effort “ to treat the problems that led to the earlier termination of her parental rights to Israel G., and the court’s implicit finding that it would be fruitless to provide Mother with reunification services. The threshold question is how a “reasonable effort” is to be defined and measured.
There is a split of authority about whether the clear and convincing evidence standard of proof should be taken into consideration when a reviewing court determines if dependency findings are supported by substantial evidence. Several courts, relying on Witkin and a 1973 decision of our Supreme Court in Crail v. Blakely (1973) 8 Cal.3d 744, hold that “on appeal from a judgment required to be based upon clear and convincing evidence, ‘the clear and convincing test disappears... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)” (In re Angelique C. (2003) 113 Cal.App.4th 509, 519; see also In re Mark L. (2001) 94 Cal.App.4th 573, 580–581; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 371, pp. 428–429.) In In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654, however, the court held, “On review, we employ the substantial evidence test, however bearing in mind the heightened standard of proof.” (Italics added.) Two divisions of this district have taken the latter approach. (In re Henry V. (2004) 119 Cal.App.4th 522, 529–530; In re Isayah C. (2004) 118 Cal.App.4th 684, 694–695; see also Cheryl P., supra, 139 Cal.App.4th at p. 98 [“we conclude a trier of fact could not reasonably make such a finding by clear and convincing evidence”].) We need not take a position on the issue because, even assuming the former more lenient standard of review applies, we conclude there was insufficient evidence to support the juvenile court’s order.
It is self-evident from the circumstances leading to the most recent removal of A.S. from her custody that Mother had not yet succeeded in treating the problems (or at least all of the problems) that led to the prior dependency proceedings and the loss of her parental rights to Israel G. It also seems self-evident that successful efforts cannot be what section 361.5(b)(11) requires. Had Mother’s efforts been entirely successful, A.S. would not now be a dependent child and it would not have been necessary to remove him from her care. “ ‘[T]he ‘reasonable effort to treat’ standard found in [section 361.5(b)(11)] is not synonymous with ‘cure.’ ” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.).)
The “ ‘no reasonable effort’ clause provides a means of mitigating a harsh rule that would allow the court to deny services based only upon the parent’s prior failure to reunify with the child’s sibling ‘when the parent had in fact, in the meantime, worked toward correcting the underlying problems.’ [Citation.]” (Cheryl P., supra, 139 Cal.App.4th at p. 97.) “The statute provides a ‘parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings.’ [Citation.] To be reasonable, the parent’s efforts must be more than ‘lackadaisical or half-hearted.’ [Citation.]” (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.)
The court’s statement that “[A.S.] suffered abuse at someone’s hands” and that her loss of Israel G.’s case arose because Mother “entrusted the child to an inappropriate person” suggests that the court may have believed Mother had inappropriately entrusted A.S. to Travis M.’s care, and thus “failed to learn from the past problems[.]” However, the Agency expressly declined to argue that Travis M. caused A.S.’s injuries and the court did not so find. The Agency instead focused on the Mother’s apparent lack of concern for A.S.’s injuries. On appeal, the Agency similarly argues that the current problem was Mother’s cavalier attitude toward A.S.’s injuries and her lack of concern about the risk Travis M. might pose to A.S. To tie those problems to the problems that led to Israel G.’s removal, the Agency broadly defines the historical problem as Mother’s “disregard for [Israel G.]’s safety and physical well-being.”
The Agency also implied at the hearing and argues on appeal that the court should take into consideration the amount of services Mother had already received in prior dependency cases. After discussing Mother’s apparent lack of concern about A.S., Ray testified, “Additionally, I looked at all the services that we provided. I reviewed the report that Kara Jacobs wrote with regards to [I.T.] and saying that we’re going to give her a chance [by providing services rather than recommending bypass]. But she can’t have a second chance. There’s no wiggle room.... I would like to again put myself on the limb; but I see my previous coworker put herself on the limb and the child ended up being removed from the mother’s care.” The Agency makes a similar argument on appeal.
The trial court appeared to focus on the lack of tangible progress in Mother’s parenting abilities resulting from Mother’s efforts. While progress (or lack thereof) may certainly be an indicator of the reasonableness of the efforts being made by a parent, it is not the determinative factor. In Cheryl P., court expressly distinguished between reasonable efforts and progress. “The juvenile court’s approach... of focusing on [the parents’] progress rather than the extent of their efforts may have been proper if Agency had sought a denial of services under section 361.5, subdivision (b)(2), which allows the court to deny services when a parent’s mental disability ‘renders him or her incapable of utilizing those services.’ [Citation.] However, Agency sought to deny services... pursuant to section 361.5, subdivision (b)(10). [¶]... Agency states the statutory language requirement of ‘reasonable efforts... implies the efforts need to be likely to actually ameliorate the problems, which further implies the court should be able to see progress.’ We disagree. In our view, it is more likely the Legislature used the adjective ‘reasonable’ to ensure that lackadaisical or half-hearted efforts would not be deemed adequate rather than to additionally require a certain level of progress.” (Cheryl P., supra, 139 Cal.App.4th at p. 99.)
While the Agency characterized Mother’s efforts here as “lackadaisical and half-hearted, ” we do not believe that the totality of the evidence supports that characterization. Here, it was undisputed that Mother made not only reasonable but impressive efforts to overcome a substantial and fundamental problem that led to the removal of Israel G., specifically her substance abuse problem. Substance abuse was “a huge focus of the case plan” in Israel G.’s case. Mother entered and completed residential drug treatment and aftercare, complied with dependency drug court requirements including drug testing, regularly attended 12-step meetings and worked with a sponsor, moved into a sober living environment, and maintained her sobriety. Her progress in these efforts was closely monitored during the pendency of I.T.’s and A.S.’s first dependency cases, and the Agency did not contend at the May 2010 hearing on bypass that Mother had relapsed in these efforts. In fact, the Agency told the court that “currently, there is no suggestion mother is actively using[, ]” and that “she has been working very hard on [her substance abuse problem] and seems to be succeeding at occurring [sic].” Significantly, after termination of her rights to Israel G., Mother had successfully utilized the reunification services provided in her subsequent dependency proceedings to reunite with two children (A.S. and I.T.), largely because of her substantial progress in addressing her substance abuse problems and also because of her participation in parenting education and individual therapy. In McKay’s words, Mother “made such exponential growth and progress during the course of [I.T.’s case] that words [we]re not sufficient.”
The fact that Mother had not entirely eliminated her problems does not preclude a determination that she had made “reasonable efforts to treat” them, and it is necessary to consider all of her conduct subsequent to Israel G.’s dependency proceeding. (See Renee J., supra, 96 Cal.App.4th at p. 1464 [inappropriate to engage in “selective hindsight” in assessing reasonable efforts].)
The decision of the Second District Court of Appeal in Albert T. is consistent with our view of the “reasonable effort” requirement. (Albert T., supra, 144 Cal.App.4th 207.) In Albert T., the appellant mother, who was cognitively delayed with an intelligence quotient of 55, surrendered her six-year-old son (Alan) because he suffered from bipolar disorder and attention deficit hyperactivity disorder and she was unable to care for him. Prior voluntary services had been ineffective in resolving the family’s problems. (Id. at p. 210.) While Alan’s case was pending, the mother reported domestic violence by the father of another child, Albert. Although the mother complied with her case plan in Alan’s case—receiving mental health services, parenting instruction, and joint therapy with Alan—she was unable to grasp the skills she needed to handle Alan and her services were terminated. The mother then participated in voluntary family maintenance services with respect to Albert. The agency later discovered that Albert was living with an aunt and the mother had neither visited him nor provided financial support. Moreover, the mother had slapped the seven-year-old daughter of her roommate and she was in a relationship with a man with a history of domestic violence. (Id. at pp. 212–213.) A petition filed on behalf of Albert was sustained and the mother was denied services under section 361.5, subdivision (b)(10). (Id. at p. 216.)
Section 361.5, subdivision (b)(10), like section 361.5(b)(11), requires a reasonable efforts finding.
The court of appeal reversed. (Albert T., supra, 144 Cal.App.4th at pp. 219, 222.) The court assumed for purposes of argument that domestic violence was a problem “that led to the removal of the sibling [Alan]” and observed that the mother had completed several programs designed to deal with domestic violence, including individual counseling during Alan’s case and parenting classes and individual counseling on behalf of Albert. (Id. at pp. 220–221.) “What then is the evidence to support an implied finding [the mother] has not made a reasonable effort to treat her problem of entering into relationships that involve domestic violence? Apparently the fact that [she] has not resolved the problem[.]... Although the [agency’s] account of [the mother’s] failure to avoid relationships with violent men may be true, ... section 361.5, subdivision (b)(10)... is directed to the parent’s reasonable efforts to treat the problem, not the success or failure of those efforts.” (Albert T., at p. 221.)
We are not unsympathetic to the trial court’s justifiable frustration with Mother’s history of recidivism in neglect of her children, and its understandable skepticism that provision of further reunification services would allow return of A.S. to her custody. Nor are we unmindful of the overriding need to allow A.S. to achieve a stable, permanent home. The court obviously felt that provision of further services would be “fruitless.” (See In re Rebecca H. (1991) 227 Cal.App.3d 825, 837; see also Renee J., supra, 96 Cal.App.4th at p. 1464; Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)
But “[i]t should (but cannot) go without saying that ‘fruitless’ is a pretty high standard. 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. Courts must keep in mind that ‘[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.’ [Citation.] 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. To the contrary, the primary focus of the trial court must be to save troubled families, not merely to expedite the creation of what it might view as better ones.” (Renee J., supra, 96 Cal.App.4th at p. 1464.)
To the extent that the court focused solely on the obviously inadequate result of Mother’s prior efforts to address her problems, it applied the wrong legal standard. Applying the correct standard, substantial evidence does not support a finding that Mother had failed to make “reasonable efforts” to treat those problems. “Although further reunification services may ultimately be unsuccessful in allowing [the child] to return home, [the mother] has earned the right to try.” (Albert T., supra, 144 Cal.App.4th at p. 221.).
III. Disposition
The May 10, 2010 order denying reunification services to Mother is reversed. On remand, the court shall conduct a new hearing to determine the appropriate family reunification services to be provided to Mother and to conduct further proceedings consistent with this opinion.
We concur: Simons, Acting P.J., Needham, J.
It appears that a bypass of services would have been justified at the start of A.S.’s first dependency case because at that time Mother had not made a reasonable effort to address the problems that led to Israel G.’s removal. Therefore, the Agency did “go out on a limb” in the sense that it offered services when it had legal grounds to deny them. The circumstances of A.S.’s second dependency case, however, were significantly different. By that time, as we discuss post, Mother had made substantial efforts to overcome the problems that led to Israel G.’s removal. Thus, the Agency would not have been going “out on a limb” if it offered Mother services; it would have been fulfilling its statutory duties. The mere fact that Mother received substantial prior services is not a lawful basis for denying services in a new dependency proceeding. (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188–1189.)