Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. 82981-4.
Kristin Bryce Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
VARTABEDIAN, Acting P. J.
The juvenile court sustained a petition pursuant to section 300, subdivisions (b) and (j) of the Welfare and Institutions Code as to Booker M. Appellant Karen M. (mother) asserts there was insufficient evidence to support the jurisdictional finding. Mother also contends there is insufficient evidence to support the dispositional order removing the child and denying her reunification services. We find no merit in these contentions and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to Booker’s birth, mother had experienced the termination of parental rights as to Booker’s three older half-siblings, Anna, Eric, and La’Shawn. She also has experienced numerous criminal convictions.
Anna was born in March of 1995 when mother was 16 years of age. Anna’s father was 34 years old and absent. Anna was detained when mother admitted using controlled substances and was “found to be living an unstable lifestyle.” Mother herself was also detained from her own parents due to their substance abuse. A petition filed in March of 1995 by the Fresno County Department of Social Services, now Fresno County Department of Children and Family Services (department) alleged mother “currently abuses controlled substances including but not limited to cocaine and marijuana which negatively affects her ability to provide” for said minor, and that mother “admitted to using controlled substances.” A later jurisdiction report stated mother had used drugs during her pregnancy with Anna. Mother and Anna were both found to be dependents of the court and placed together in foster care. Mother successfully participated in reunification services, which included random drug testing and substance abuse evaluation and treatment, and Anna’s dependency was dismissed in November of 1995.
Mother, who never reunified with her own parents, began living with Anna’s father. In October of 1996, Anna was again removed from her parents due to unsafe conditions. The court assumed jurisdiction of Anna on the amended petition, which alleged “the home was found to be filthy, unsanitary and a danger to said minor’s well-being.” Various drug treatments were ordered. Mother failed to reunify with Anna and parental rights were terminated in December of 1998.
Eric was born in December of 2002 while mother was incarcerated for a parole violation. Mother, who was scheduled for release in March of 2003, asked that Eric be returned to her upon her release; she applied for the mother/infant program to assist her with locating housing. Mother requested that Eric be placed with her sister or her former foster mother, but the department was not able to locate either and determined that mother could not make suitable arrangements for Eric during her incarceration. A jurisdiction report alleged that Eric was at a substantial risk of being neglected and/or abused because his half-sister Anna had been removed from mother, and mother had failed to reunify with her (§ 300, subd. (j)). In the report prepared in anticipation of the detention hearing, mother advised the social worker that Anna had been removed from mother’s care in part because she was “involved in drugs.” The court assumed jurisdiction over Eric on the basis of mother’s neglect of Anna and subsequent failure to reunify.
In March of 2003, after her release from custody, mother tested positive for marijuana. She admitted periodic marijuana use while incarcerated. Mother was ordered to participate in reunification services, including substance abuse evaluation and treatment and random drug testing. But mother was rearrested the following day on a parole violation and was unable to participate in the ordered services because she was once again incarcerated. Reunification services were terminated at the six-month review hearing in August of 2003, while mother was incarcerated, and her parental rights were subsequently terminated in May of 2004.
La’Shawn was born in December of 2003 while mother was still incarcerated. A dependency petition filed that same month alleged no provision for support due to mother’s incarceration (§ 300, subd. (g)), and abuse and neglect of a sibling (§ 300, subd. (j)). Reunification services were denied as mother had failed to reunify with a sibling of the child (§ 361.5, subd. (b)(10)), her parental rights over a sibling of the child had been terminated (§ 361.5, subd. (b)(11)), and, as to both allegations, mother had failed to treat the problems leading to the previous removal and termination of rights. In October of 2004, mother’s parental rights to La’Shawn were terminated.
Booker, the subject of the appeal here, was born in March of 2005. At that time, the department received a referral alleging general neglect of Booker because mother tested positive for marijuana after his birth. Mother admitted that she had used marijuana on a daily basis while in prison from October of 2004 through February of 2005, but no longer used it. Booker was initially detained, but the referral was inconclusive for general neglect and Booker was returned to mother. A welfare check on Booker in June of 2005 revealed that he was clean, healthy, appropriately dressed, and he had no visible signs of abuse or neglect. The home was found to be clean and appropriately furnished. There was plenty of food.
In February of 2006, a law enforcement officer arrived at the home shared by mother, Booker, and Booker’s father (father) to serve a warrant for fraud relating to mother’s failure to repay a student loan. Booker was 11 months old at the time. When the officer arrived, the apartment had no furniture and little food; it was filthy and strewn with piles of trash and laundry. Booker was wet and “caked with dirt” and on the living room floor with the family dog, a growling, 50-pound pit bull. The officer placed a protective hold on Booker.
When the officer first entered the apartment, he noticed a strong odor of marijuana. The officer told the social worker that he thought both parents appeared to be under the influence of some drug, although no drugs were found and neither mother nor father was arrested on drug-related charges.
The social worker arrived after mother was arrested on the warrant and taken to jail. The social worker verified that Booker was unclean and wearing dirty clothes. He had a strong body odor and his hair was matted and uncombed. The apartment was without furniture, the walls were dirty, and there were piles of dirty clothes and trash in one corner of the living room. The only food in the apartment consisted of one jar of baby food, a container of juice, and several condiment jars. Father told the social worker that the family was in the process of moving to another apartment and all of the food, clothing and furniture were at the new home. He also admitted that he and mother smoked marijuana just before the officer arrived.
The social worker took Booker for placement and then went to the new apartment. The apartment was clean but in disarray. The beds were made and there was plenty of food and formula.
The social worker then contacted mother in jail. There, mother admitted using cocaine and marijuana from the age of nine, but claimed not to have used drugs since her first child was removed from her care. She later admitted using marijuana throughout her pregnancy with Booker. Later still she admitted using marijuana as recently as two weeks before Booker was removed, even though she also claimed to be pregnant with her fifth child. But mother denied father’s report that she had smoked marijuana with him prior to the officer’s arrival. The social worker told mother that Booker had been detained because father appeared to be under the influence at the time of mother’s arrest.
A juvenile dependency petition, filed February 27, 2006, alleged that mother had failed to protect Booker pursuant to section 300, subdivision (b). In support of the allegation, the petition alleged that the house was unsanitary and unsafe, that Booker was dirty, and that both parents had a history of substance abuse. The petition also alleged, pursuant to section 300, subdivision (j), that Booker’s older half-sibling Anna had been removed from mother due to “substance abuse related neglect,” and that half-siblings Eric and La’Shawn had been removed because mother was incarcerated at the time of their births and was unable to make a suitable plan for their ongoing care and support. The petition alleged that, “[d]espite receiving services, including substance abuse treatment, [mother] failed to reunify with her children.”
At the mediation/jurisdiction hearing held March 21, 2006, mother contested the allegations and a contested hearing was set. At the subsequent hearing on April 25, 2006, mother’s attorney waived mother’s appearance, and the allegations of the petition as to mother were found true.
At the disposition hearing on July 26, 2006, the department recommended denial of reunification services to mother, pursuant to section 361.5, subdivision (b)(10), (11), and (13). The disposition report prepared in anticipation of the hearing reiterated that mother had lost her parental rights to three of her children “due to her substance abuse and incarcerations, and she has continued to use controlled substances on a regular basis.” The report stated that mother participated in a drug abuse evaluation on March 5, 2006, and at that time admitted that she began using alcohol at the age of seven and was addicted to “crack” by the time she was 10. Mother stated that she had used “crack” on a regular basis for 10 years, but had last used it in 1995. She admitted that she had used marijuana for 20 years. Mother stated that she had previously participated in alcohol treatment five times and drug treatment five times. The assessor thought that mother appeared to believe that she could continue to use marijuana because “crack,” which she no longer used, was her drug of choice. Mother also acknowledged a lifetime of serious depression, anxiety, hallucinations and trouble controlling her violent behavior.
At the contested disposition hearing held September 12, 2006, mother testified that she was attending a four-week parent education class and was enrolled in outpatient drug treatment classes. She testified her drug test was negative and she was now “taking responsibilities for my action and dealing with my current drug issues.…”
Social worker Jennifer Cooper testified she had been assigned to Booker’s case since he was detained in 2006. Cooper testified that mother was originally offered a parenting class in April of 2006. According to Cooper, mother did not begin parenting classes until September of 2006 because she requested a morning class and was put on a waiting list.
Cooper testified that, although it appeared that mother was “doing satisfactorily in her treatment program” at the time of trial, just a month earlier Cooper “had a staffing with mother” because mother was not doing well in the program. Mother had four excused and four unexcused absences in July, and another social worker was concerned that mother might be getting off track. At the staffing, the other social worker almost stopped the meeting because mother was “very angry, very upset.” As a result, mother was “put on contract” and not allowed any additional unexcused absences.
Mother participated in an ordered drug treatment evaluation in March of 2006, and, as a result, the department recommended that she participate in inpatient substance abuse treatment. But mother informed the social worker that she could not comply with an inpatient program, due to her housing and her two jobs. Because of mother’s concern that she would lose her housing, the department determined that outpatient treatment would suffice, but mother did not begin until June 9, 2006.
Cooper testified that mother was complying with her substance abuse program at present, and her visits with Booker “appear[ed]” to be going well. Nonetheless, Cooper recommended that mother be denied family reunification services “due to her extensive substance abuse history” and her history with the department involving her other children. Cooper noted that mother had been ordered into drug treatment before, but was not able to maintain sobriety for any significant amount of time. Cooper testified that mother’s recent few months of a “drug-free lifestyle” did not change her opinion regarding offering mother reunification services.
The juvenile court concluded that the department established, by clear and convincing evidence, three separate bases for denying mother reunification services, pursuant to section 361.5, subdivision (b)(10), (11), and (13).
Section 361.5, subdivision (b)(10) provides that reunification services need not be provided a parent when the juvenile court finds that the court ordered termination of services for any siblings of the child because the parent failed to reunify with that child and that the parent had not subsequently made a reasonable effort to treat the problem that led to the removal of the sibling; subdivision (b)(11) provides that reunification services need not be provided a parent if the parental rights of a sibling of the child have been permanently severed and that the parent had not subsequently made a reasonable effort to treat the problem that led to the removal of the sibling; and subdivision (b)(13) provides that reunification services need not be provided a parent if the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and either resisted prior court-ordered treatment for the problem during a three-year period immediately prior to the filing of the current petition, or failed or refused to comply with a drug or alcohol treatment program on at least two prior occasions.
The juvenile court also determined that the exception pursuant to section 361.5, subdivision (c)--that the court could nonetheless order reunification if it finds by clear and convincing evidence that reunification would be in the best interests of the minor--was not present. In making this determination, the court stated that it had taken into consideration mother’s current efforts, as well as the longstanding nature and severity of her problems, including substance abuse. And although the court found that mother had a bond with Booker, the court also found that Booker and his caretaker had a bond. The court also considered Booker’s need for stability and continuity as a significant factor.
The court ordered that Booker remain in foster care and that reunification services not be provided mother.
DISCUSSION
1. Jurisdictional findings
Mother contends the court’s jurisdictional findings under section 300, subdivision (b) and/or (j) are not supported by substantial evidence. We disagree.
At the jurisdictional hearing, the trial court must find by a preponderance of the evidence that the minor is a person described in section 300. (In re Heather A. (1996) 52 Cal.App.4th 183, 193; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) As this court explained in In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379, in juvenile dependency cases, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether there is any substantial evidence, contradicted or not, that 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 decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
As relevant here, section 300 provides:
“Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent o the court: [¶ ] …
“(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his … parent … to adequately supervise or protect the child, … or by the willful or negligent failure of the parent … to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent … to provide regular care for the child due to the parent’s … mental illness, developmental disability, or substance abuse.… [¶ ] …
“(j) The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
Mother challenges the sufficiency of the evidence to support the section 300, subdivision (b) jurisdictional finding, claiming that the court improperly based jurisdiction on the past unsanitary condition of the home, rather than on the current clean apartment. She complains that there was no evidence that Booker was actually harmed by the unsanitary conditions in the home. She also argues that there was no evidence that she was under the influence of drugs when she was detained, and, although she occasionally used marijuana, that, in and of itself, was not a sufficient basis to assert jurisdiction over the child.
While it is true that “the question under section 300 is whether circumstances at the time of the [jurisdictional] hearing subject the minor to the defined risk of harm” (see In re Rocco M. (1991) 1 Cal.App.4th 814, 824, original italics), “evidence of past conduct may be probative of current conditions .…” (Ibid; see also In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135 [“‘in determining whether the child is in present need of the juvenile court’s protection, the court may consider past events’”], overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Mother relies on In re Paul E. (1995) 39 Cal.App.4th 996 in support of her argument that jurisdiction is not supported by the record. In that case, jurisdiction was declared over the four-year-old child due to the dirty and unsanitary conditions of the home, although he was not removed from his parents’ custody. The parents improved the living conditions. But the caseworker remained concerned about their ability to function as parents. The house was still messy and dirty, but the unsanitary conditions had been remedied. The caseworker identified trivial hazards, which the parents immediately fixed. The caseworker nonetheless took the child into custody because the parents’ failure to “‘progress in recognizing the dirty conditions of the house demonstrate[d] that they were actually limited by their own ability.’” (Id. at p. 1000.) The appellate court reversed the dispositional order, finding that chronic messiness by itself and apart from any unsanitary conditions or resulting illness or accident is not clear and convincing evidence of a substantial risk of harm. (Id. at p. 1005.)
The facts in In re Paul E. are not comparable to the facts presented here. In re Paul E. involved simply a messy house, with a few trivial hazards, kept by parents who otherwise doted on their only child. Here, it is true that the social worker found the apartment into which the family was moving to be clean and adequately stocked with food and formula. However, during their visit to the home where the family was actually living prior to the anticipated move, officers observed 10-month-old Booker on the floor, unbathed and “caked with dirt.” His clothing was dirty and wet. Booker had a cold and his nostrils were filled with mucus. A growling 50-pound pit bull was on the floor with Booker. The apartment was not simply messy, but dirty, with piles of dirty clothes and trash in the corner of the living room. There was little food in the home. This home’s messiness well exceeded what could be described as chronically messy.
We also reject mother’s claim that there was no evidence to support that Booker suffered any ill effects from the condition of the home. While a subsequent examination found Booker healthy and up-to-date on his immunizations, actual harm is not required. The court need not wait until a significant risk becomes a serious injury before assuming jurisdiction and acting to protect the minor. (In re Heather A., supra, 52 Cal.App.4th at pp. 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) Jurisdiction is appropriate if there is a risk of harm in the future. (§ 300, subd. (b).) The juvenile court could reasonably conclude there was such a risk, especially in light of mother’s history of drug abuse, as discussed further below.
Despite mother’s claim to the contrary, there was evidence of her long-term drug use. The officers who entered the apartment detected a strong smell of marijuana, and both mother and father appeared to be under the influence of drugs. When the social worker spoke to mother the following day, she offered a variety of conflicting statements about her drug use. She admitted using cocaine and marijuana from the age of nine, but denied using drugs after the birth of her first child, Anna. She later admitted she used marijuana up until Booker’s delivery. She claimed to have stopped using marijuana when Booker was born, but then said she had smoked marijuana with a friend two weeks earlier. She denied she smoked marijuana before the officers arrived, despite father’s acknowledgement that they had. Mother even went so far as to claim that Booker’s father did not use drugs, although father told the social worker he had smoked marijuana most of his adult life to control the pain caused by multiple sclerosis. He admitted smoking marijuana in Booker’s presence.
Mother cites In re W.O. (1979) 88 Cal.App.3d 906 for the proposition that the department must prove a nexus between a parent’s drug use and a corresponding danger to the child. In In re W.O., the parents of two minor children appealed from an order removing their children from their home. The juvenile court found the children “happy, content, clean, overall very well cared for” and the parents “concerned,” but concluded that marijuana and cocaine found in the home led to the “remote” possibility of harm because the children might ingest a drug. (Id. at p. 907.) The Court of Appeal reversed, finding that there was no evidence that the drugs could be reached by the very young children and that a “remote possibility” that they could was not sufficient to warrant state interference. (Id. at pp. 910-911.)
The situation here is different. Mother admitted using drugs during her pregnancy with Booker. Prenatal use of a dangerous drug by a mother is probative of future child neglect. (In re Troy D. (1989) 215 Cal.App.3d 889, 899.) Both mother and father admitted to long term use of drugs. Unlike the children in In re W.O., when Booker was found, he was not clean and “overall well cared for,” but filthy, wet, smelly and on the floor with a large pit bull. There was little or no food in the house for him.
Also of import is the fact that mother’s various explanations of her drug use showed a denial, or at least a trivialization, on her part. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) Clearly, drug abuse by a parent is a factor to consider in determining child dependency, especially where the substance abuse is long term.
The statute requires that a child be at substantial risk, not that the child actually suffer substantial harm, before the state can intervene. (§ 300, subd. (b).) This case is characterized by evidence that, perhaps not independently but certainly cumulatively, supports a jurisdictional finding under section 300, subdivision (b).
Mother also contends there is insufficient evidence to support a jurisdictional finding under 300, subdivision (j). Mother claims that the reason for Anna’s detention, some nine years earlier when mother was still a teenager, was due to squalid living conditions and neglect, but not physical abuse or drug use by mother, and that the subsequent detentions of Eric and La’Shawn were strictly based on mother’s neglect of Anna, and nothing more. We disagree.
Section 300, subdivision (j) requires two findings: that a child’s sibling was abused or neglected and that the child is himself or herself at risk of similar abuse or neglect. In determining whether a child falls within the provisions of section 300, subdivision (j), the juvenile court is to consider the nature and circumstances of the abuse inflicted on the sibling, the age and gender of the child, the mental condition of the parent, and any other factors the juvenile court considers probative in determining whether there is a substantial risk to the child. (§ 300, subd. (j).)
The social worker’s report prepared for the jurisdiction hearing chronicled mother’s history with the department as it involved her older children. According to the report, Anna was detained in 1995 due to mother’s substance abuse, and again in 1996, because mother left Anna at home alone in a filthy house at midnight. Although dependency was dismissed in 1995, mother failed to reunify with Anna in 1996, in part because she continued to test positive for drug use and failed to follow through on her substance abuse treatment, and her parental rights as to Anna were terminated in 1998.
The report stated that mother’s second child, Eric, was born in 2002 while mother was incarcerated. He was immediately detained because mother was unable to care for him due to her incarceration and the fact that a sibling of his had been abused or neglected. Although services were ordered for mother, including substance abuse assessment, treatment and drug testing, mother was unable to complete them because she was subsequently reincarcerated, and mother’s parental rights were terminated in 2004. Eric was adopted in 2005.
The report stated that mother’s third child, La’Shawn, was born in 2003 while mother was incarcerated. He was immediately detained, and this time reunification services were denied due to mother’s failure to reunify with Anna and Eric. Mother’s parental rights as to La’Shawn were terminated in 2004. La’Shawn was adopted in 2005.
Mother’s drug use, by her own admission, started when she was a child, continued through all four of her pregnancies, and was as recent as two weeks before Booker was removed. The officer who originally came to the home in February of 2006 thought mother was under the influence of drugs. Booker’s father admitted to using marijuana on February 23, 2006, and he admitted to doing so in Booker’s presence.
These findings support the juvenile court’s finding that Booker was at a substantial risk of harm because the factors that led to abuse of his half-siblings were still present. We reject mother’s claim to the contrary.
2. Dispositional order removing Booker
Mother next challenges the court’s dispositional order removing Booker from her custody. Advancing similar arguments to those discussed above, she asserts the department failed to present evidence that there was any danger to Booker’s well-being if he were returned to mother’s custody after the dispositional hearing. She also contends the juvenile court should have considered less drastic measures to removal. We reject mother’s contentions.
To remove a child from the parent’s custody, at times relevant to this appeal section 361 required a finding, by clear and convincing evidence, of one of the following circumstances: (1) substantial danger to the physical or emotional well-being of the child (or would be if the child were returned home); (2) the parent is unwilling to have physical custody; (3) the child is suffering severe emotional damage; (4) the child (or a sibling) has been sexually abused; or (5) the child has been left without provision for support. (§ 361, subd. (c)(1)-(5).) The relevant provision here is the first, that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c)(1).)
When a parent challenges a dispositional finding, we employ the same standard of review enunciated above. (In re Brison, C., supra, 81 Cal.App.4th at pp. 1378-1379.) Also, we note that the juvenile court has broad discretion to fashion a dispositional order in accordance with the child’s best interests. The court’s dispositional order will not be disturbed absent a clear abuse of that discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.)
An order removing a child from parental custody “is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)
Mother claims first that there was no evidence of substantial danger to Booker if he remained in her care. To support her argument, she points to evidence that Booker was up to date on his medical care, he was healthy without signs of abuse, and he was developing in an age-appropriate manner. She also argues that, by the time of the disposition hearing, she was out of custody, participating in drug treatment, enrolled in a parenting class, employed, and in suitable housing. She had also consistently tested negative on random drug tests.
Mother likens her case to that in Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, in which the court reversed the trial court’s decision that a child could not be safely returned to the mother. In Jennifer A., the mother, a single parent, left her two children alone in a motel room while she went to work, which led to their detention. After proceedings began, mother received a promotion at work. There was no evidence of physical or emotional abuse of the children other than the incident leading to detention; there was no evidence that the mother was unable to provide adequate housing; the mother had no mental illness or physical impairment affecting her parenting skills; she had never been incarcerated; and she had substantially complied with her reunification plan, including parenting classes and drug treatment. The only issue at the time of disposition was the fact that, over the course of one and one-half years of twice weekly random drug testing, while she completed 84 drug-free tests, she missed nine tests, was unable to void once, tested positive for alcohol on one occasion, and tested positive for marijuana on two occasions. Although the mother did admit she occasionally smoked marijuana, the appellate court found there was no evidence to link mother’s substance use with her lapse of judgment in leaving the children at home alone, and the petition never alleged substance abuse as a ground for detention. The mother was never subject to clinical evaluation and was never diagnosed as having a substance abuse problem. (Id. at pp. 1326-1328.)
We find the situation in Jennifer A. markedly different from the current case. Here, while some factors at disposition were in mother’s favor, there was still substantial evidence to support the juvenile court’s order removing Booker from mother’s custody. Unlike the situation in Jennifer A., mother had a substantial prior child welfare history, spanning 10 years, during which she was unable to reunify and lost custody of three children in succession. Mother had an extensive, abusive, chronic and life-long drug problem, which she continued to belittle or minimize. And although mother had had several negative drug tests, she had repeatedly been offered drug treatment and either refused to participate and/or relapsed.
Mother also claims the juvenile court failed to consider less drastic measures than removal of Booker from her custody. But at the time of the contested disposition hearing, some seven months after Booker was first detained, mother had just barely started her parenting classes first offered to her some five months earlier. And although inpatient drug treatment was recommended for mother after her drug evaluation in March, she objected to the fact that it was inpatient treatment and did not begin outpatient treatment until June. While mother’s compliance with services offered was going well at the time of the hearing, even a month earlier the social worker had to meet with mother because she had had a number of absences in her treatment program during the month of July.
On this record, we cannot say the juvenile court erred by ordering Booker removed from mother’s custody. Under the circumstances, the juvenile court reasonably concluded that it would not be safe to return Booker, still under the age of two, due to mother’s failed history in caring for her other children and her chronic drug abuse. For the same reasons, the juvenile court could reasonably have concluded at the time of the hearing that there were no alternatives to removing the child from mother’s custody. Accordingly, we reject mother’s challenge to the juvenile court’s removal order.
3. Dispositional order denying reunification services
Finally, mother contends that the juvenile court erred when it denied her reunification services with Booker under section 361.5, subdivision (b)(10), (11), and (13). We address the subsections using the same standard of review enunciated above and disagree.
The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent or guardian unless the court finds by clear and convincing evidence that one of the 15 exceptions set forth in section 361.5, subdivision (b), applies. (§ 361.5, subd. (a); Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) These statutory provisions reflect that in some circumstances, “‘it may be fruitless to provide reunification services .…’ [Citation.]” (In re Levi U. (2000) 78 Cal.App.4th 191, 200.)
Even if the court finds section 361.5, subdivision (b)(10), (11), or (13), applies, it has discretion to order reunification services if it determines, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).) Mother does not contend the juvenile court abused its discretion by failing to order reunification services notwithstanding the applicability of section 361.5, subdivision (b) (10), (11), and (13).
A. Section 361.5, subdivision (b)(10) and (b)(11)
Section 361.5, subdivision (b)(10), authorizes the denial of reunification services if the court finds,
“[t]hat 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.”
Section 361.5, subdivision (b)(11), is similar, in that it authorizes the denial of reunification services to a parent of whose parental rights have been “permanently severed” as to a sibling or half-sibling of the child and that the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling.”
To apply section 361.5, subdivision (b)(10), the juvenile court must find that the parent previously failed to reunify with a sibling of the child, and in section 361.5, subdivision (b)(11), that the parent’s parental rights to a sibling of the child have been terminated. As to both, the juvenile court must also find that the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the child or termination of parental rights. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; In re Harmony B. (2005) 125 Cal.App.4th 831, 840.) “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 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.” (Id. at p. 842.)
Mother does not dispute that the first prong of subdivision (b)(10) and (11) of section 361.5 has been satisfied: The court terminated reunification services and mother’s parental rights as to Booker’s three older half-siblings. But mother contends that the reasons for the removal of Anna, Eric and La’Shawn are unrelated to the circumstances that led to the removal of Booker. Specifically, mother argues that the allegations leading to Anna’s removal were not based upon substance abuse, and that Eric and La’Shawn were, in turn, detained only due to mother’s incarceration. Therefore, mother argues the department failed to present sufficient evidence that would establish that she had not made reasonable efforts to treat the problem that led to the removal of her three older children to justify the denial or reunification services in this case.
Mother analogizes her case to that in In re Albert T. (2006) 144 Cal.App.4th 207, in which the appellate court reversed the order of the juvenile court denying reunification services to the mother there based upon section 361.5, subdivision (b)(10). In Albert T., the child, Albert, was detained on allegations of domestic violence in the home and that his mother created a dangerous home environment for him by exposing him to her current male companion. (In re Albert T., supra, at pp. 213-214.) The department asked that reunification services be denied based on section 361.5, subdivision (b)(10), because the mother “has lost a child before.” The juvenile court, without any additional argument on the point, agreed and ordered no family reunification services be offered to the mother.
But the appellate court reversed the order, finding that the section 300 petition filed with respect to Alan, the older brother, was based upon the mother’s claim that she was unable to provide for his ongoing care and supervision due to his mental and emotional problems. Mother was mildly mentally retarded and Alan was diagnosed as having both bipolar disorder and attention deficit hyperactivity disorder. Although the earlier petition alleged the mother had a history of and current problems with domestic violence, it did not suggest that the domestic violence was any part of the reason for Alan’s removal or continued status as a dependent child, and the mother was not ordered to complete domestic violence counseling. (In re Albert T., supra, 144 Cal.App.4th at pp. 210-211, 219.)
The department argued the record supported the implied finding that the mother had not made a reasonable effort to treat her issue with domestic violence, which it claimed was a “concern” at the time of Alan’s removal. (In re Albert T., supra, at p. 219.) The court in Albert T. disagreed, stating it had
“considerable doubt as to the propriety of implying findings from an otherwise silent record to justify denial of those services, particularly when the Legislature has not only mandated findings by clear and convincing evidence before applying any section 361.5, subdivision (b), exception but also specifically repeated the requirement of court findings with respect to the no-reasonable-efforts prong of subdivision (b)(10).” (Ibid.)
Here, unlike in Albert T., there is substantial evidence to support the juvenile court’s denial of reunification services. The primary problem that led to Anna’s first removal from mother’s custody in March of 1995 was substance abuse. The petition alleged that mother “currently abuses controlled substances including but not limited to cocaine and marijuana which negatively affects her ability to provide said minor with regular care, protection, supervision and a safe stable home environment.” At the time, mother admitted using controlled substances. The allegation was found true in June of 1995. Mother was ordered to participate in, inter alia, substance abuse evaluation and treatment, as well as random drug testing. Although mother reunified with Anna, Anna was again detained in October of 1996. This time, the petition alleged mother had failed to protect and provide Anna with a safe environment when she left Anna home alone in a filthy home at midnight. An officer found a partial marijuana “joint” on the parents’ dresser. The record shows that mother was again ordered to participate in a substance abuse evaluation and treatment, as well as random drug testing. Mother began residential substance abuse treatment on January 24, 1997, but was discharged three days later because she tested positive for cocaine. She failed to participate in subsequent treatment and tested positive for cocaine in May 1997 and admitted smoking marijuana a week later. She was again referred for treatment on three occasions, but again failed to participate. Reunification services as to Anna were terminated in January of 1998, and seven months later, mother’s parental rights were terminated.
Mother has herself admitted that the problems that led to Anna’s removal included the fact the she was “fifteen years old, unstable, and involved in drugs.” In a later interview, mother stated she did not care about Anna at the time because she was only interested in “getting high.”
Although both Eric and La’Shawn were originally removed because mother was incarcerated, substance abuse was still an issue. As to Eric, mother tested positive after her release and admitted marijuana use while incarcerated. Although ordered to participate in drug treatment and testing, she was reincarcerated before she was able to do so. Thereafter, reunification services and her parental rights were terminated. Reunification services as to La’Shawn were denied based upon the fact that mother had failed to reunify with a sibling of the child, that parental rights over a sibling of the child had been terminated, and that mother had failed to treat the problems leading to removal and termination of parental rights (§ 361.5, subd. (b)(10), (11)). In October of 2004, mother’s parental rights to La’Shawn were terminated.
In addition, during her most recent drug treatment evaluation, conducted March 5, 2006, mother acknowledged a life-long drug problem, beginning at the age of seven when she first tried alcohol. Mother stated that she had used alcohol, to intoxication, for 10 years, cocaine for 10 years, and cannabis for 20 years. Mother stated that she had been treated for alcohol abuse 10 times and drug use 10 times. She stated that half of each of those occasions was for detoxification. This would necessarily include the time period when each of her older three children was removed from her custody and her parental rights terminated. From the foregoing, it is apparent that substance abuse was a primary problem that led to the children’s removal and the termination of mother’s rights as to them.
There is also substantial evidence to support the finding that mother had not made a reasonable effort to treat the problems that led to her children’s removal or termination of her parental rights. By her own admission, mother used drugs up until at least two weeks before Booker was initially detained. When the officers first detained Booker, the apartment smelled like marijuana and mother appeared to be under the influence of some type of drug. Mother tested positive for marijuana at the time of Booker’s birth in March of 2005, and admitted that she used marijuana on a daily basis while she was in prison from October of 2004 until February of 2005.
The juvenile court, in finding that the requirements of section 361.5, subdivision (b)(10) and (b)(11) had been satisfied, stated:
“I think it’s important to note that it has been established that she has not, subsequent to the termination of reunification services of the siblings or termination of parental rights of the siblings made reasonable efforts. She is clearly making some efforts now, but that’s different than a finding that she, subsequent to the termination of parental rights or subsequent to the termination of reunification services for the siblings, has made reasonable efforts. And it does not appear to the Court that her efforts encompassing the last three months or so rise to the level of subsequent reasonable efforts.”
We find substantial evidence to support the juvenile court’s finding that the requirements of section 361.5, subdivision (b)(10) and (11) were satisfied, and we reject mother’s claim to the contrary.
B. Section 361.5, subdivision (b)(13)
Section 361.5, subdivision (b)(13) authorizes the denial of reunification services if the court finds:
“That the parent or guardian 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 court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”
Pursuant to this provision, the court may deny reunification services on either of two bases: (1) the parent with a significant substance abuse problem has resisted treatment of that problem during the three years prior to filing of the petition; or (2) the parent with a significant substance abuse problem has at least twice previously been provided and failed or refused to take advantage of available rehabilitation services while under the supervision of the juvenile court. As to the first prong, there are two types of resistance, active or passive. Active resistance involves refusal to attend a program or participate once there. Passive resistance includes participating in treatment but continuing to abuse drugs or alcohol, “thus demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life.” (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) The second prong of section 361.5, subdivision (b)(13) differs from the first in that it requires proof that the offered programs were components of a prior reunification plan that was ordered by the juvenile court in formal dependency proceedings. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779.)
Mother, while not contesting that she has struggled with substance abuse, claims there is no evidence, pursuant to the first prong, that she “resisted prior court-ordered treatment for this problem during a three-year period immediately prior to filing of the petition.” As argued by mother, the most recent drug treatment was ordered on April 17, 2003, but she was reincarcerated the following day. Reunification services were then terminated for Eric while she was still incarcerated. So, according to mother, she never had a chance to participate in the ordered services, and “[w]hile the circumstances which constitute ‘resistance to treatment’ have expanded since the statute was enacted, parental inability to comply with a treatment program due to incarceration has not been included as either active or passive resistance.”
Mother also contends there is no evidence, pursuant to the second prong of section 361.5, subdivision (b)(13), that she failed or refused to comply with a drug treatment program on at least two prior occasions. According to mother, while she acknowledges that she failed to comply with a program of drug or alcohol treatment in conjunction with services for Anna, the services offered for Eric were neither available nor accessible.
But we need not decide whether a parent’s inability to comply with a treatment program due to incarceration is active or passive resistance. Here, the juvenile court had before it substantial evidence showing that mother resisted prior court-ordered substance abuse treatment programs on numerous occasions. Mother herself stated that she had participated five times in detoxification for alcohol and five times for drugs. The record shows that mother began an inpatient treatment program at Alpha House in January of 1997, but was discharged three days later due to cocaine use. She was referred to the AWARE treatment program in February of 1997, and to the CAP treatment program in both April and May of 1997, but failed to participate in any of them.
The statute does not require that mother fail to participate in drug or alcohol treatment in two or more dependencies, as she seems to imply, but only that she failed to do so on “at least two prior occasions.” Here, mother’s resistance to drug treatment has been amply documented in the record, and the juvenile court properly denied mother reunification services pursuant to section 361.5, subdivision (b)(13). Even if we were to find that the language of section 361.5, subdivision (b)(13) does not fit the circumstances here, denial of services is well supported under section 361.5, subdivision (b)(10) and (11).
DISPOSITION
The judgment is affirmed.
WE CONCUR: HARRIS, J., DAWSON, J.