Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 08CEJ300264-3, Jane Cardoza, Judge.
Laloni A. Montgomery, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Appellant Irene S. (mother) appeals from an order of the juvenile court denying her reunification services with her infant child, I.P. Mother contends there was insufficient evidence to support the court’s determination that she was not entitled to reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10), (11), and (13). She also argues that the court abused its discretion by not finding that reunification was in the best interests of the child under section 361.5, subdivision (c).
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm the court’s order.
FACTUAL AND PROCEDURAL HISTORIES
When I.P. was born, mother tested positive for methamphetamine. As a result, I.P. was placed on protective hold. On April 30, 2010, the Fresno County Department of Social Services (Department) filed a section 300 petition on I.P.’s behalf, alleging that (1) mother had a history of substance abuse and tested positive for methamphetamine at the time of birth (§ 300 (b)), and (2) mother’s two older sons (I.P.’s half-siblings) had been removed in October 2008 and mother had failed to reunify with them (§ 300 (j)).
On May 4, 2010, the juvenile court ordered I.P. removed from the home of the parents. The order also applied to the presumed father, who is not a party in this appeal. An amended petition was filed on May 21, 2010. Mother submitted the petition on the basis of the Department’s jurisdiction report. On June 8, 2010, the court sustained the dependency petition.
The Department prepared a disposition report dated July 6, 2010, recommending that mother be denied family reunification services pursuant to section 361.5, subdivision (b)(10), (11), and (13).
The report described the mother’s history of substance abuse and the dependency proceedings of her two sons, A.S. and E.S.R. According to prior case information, mother admitted using alcohol, marijuana, and methamphetamine for eight years. A.S. was born drug exposed and E.S.R. was exposed during pregnancy. Mother was provided voluntary family maintenance services from 2006 to 2007, including substance abuse treatment, but she failed to follow through. She entered a residential treatment program but left the program shortly after. She was then referred to an outpatient program, but she did not participate.
On October 27, 2008, A.S. and E.S.R. were removed from mother because of her substance abuse and homelessness. In December 2008, mother received reunification services and was again referred to an outpatient program, but she failed to attend two intake appointments. On January 7, 2009, she was scheduled to begin an inpatient substance abuse treatment program, but she did not enter the program. On January 9, 2009, she had a positive drug test. Mother told the Department that she had arranged to begin the outpatient program she previously had been referred to, but the program reported that she did not attend her intake appointment. On January 21, 2009, the juvenile court sustained a dependency petition.
On February 4, 2009, the court ordered the Department to provide mother with reunification services, which included a substance abuse evaluation, recommended treatment, and random drug testing. On April 6, 2009, mother entered the Comprehensive Addiction Program (CAP) for residential treatment, but on May 13, 2009, she was discharged from CAP for noncompliance (fraternizing with male clients). On May 14, 2009, mother stated that she was not willing to participate in residential treatment. On May 19, 2009, she tested positive for amphetamine/methamphetamine.
On August 19, 2009, reunification services were terminated and a permanent plan hearing was ordered. On January 6, 2010, the court ordered a permanent plan of adoption for the two boys, and mother’s parental rights were terminated. At the time, mother was about five months pregnant with I.P.
With respect to the current dependency case of I.P., mother contested the Department’s recommendation that she be denied reunification services, and a hearing was conducted on September 14, 2010. The Department submitted on the basis of the disposition report dated July 6, 2010.
Mother testified that she voluntarily entered a residential drug treatment program, WestCare, in February 2010, but left the program without completing it because I.P.’s father did not want her to have the baby there. She admitted to using drugs three days before she gave birth. Mother reentered WestCare on April 30, 2010, and left on July 11, 2010, again without completing the program. She attended Narcotics Anonymous and Alcoholics Anonymous meetings. Mother testified that, after she left the residential program, she was “bumping into triggers” and did not want to relapse, so she enrolled in WestCare for a third time. Mother told the court, “I can be clean and sober, and I actually let the program work with me and face the things that I should have faced then with my boys now.… I need to do something with my life.… I already experienced what I experienced with my boys, and I don’t want to experience that with my daughter.” She admitted that she had “a history of starting something and not finishing it.…”
After hearing testimony, the court adjudged I.P. a dependent and denied reunification services to mother. The court adopted the findings of the Department report and stated:
“[T]he evidence is abundantly clear that—and overwhelming that mother has an extensive and chronic substance abuse history. It is of such a significance that upon the termination of parental rights as to her two sons, within a short period of time, mother understanding—I think she understood the significance of using drugs shortly before giving birth to the child [I.P.], given that mother had been in a program, left the program and used drugs at the birth of her child, that Child Protective Services would be at her door. And then the actions that she then took after the child was detained, undermines her testimony today that she’s a changed individual. Mother appears to say the right things. However, her actions speak louder than her words. The Court, in evaluating the evidence, cannot ignore mother’s history and her current actions in regards to making significant changes in her life.”
The court concluded:
“So, that is the basis of the Court denying mother reunification services, and she meets all the statutory reasons or statutes in regards to not providing her with services, and there’s no showing or no evidence that would be the basis of any finding by this Court that it would even be in the best interest of the child to provide services.”
DISCUSSION
“There is a presumption in dependency cases that parents will receive reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section [361.5], subdivision (b). [Citation.] Section 361.5, subdivision (b) is a legislative acknowledgement ‘that it may be fruitless to provide reunification services under certain circumstances.’ [Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96.)
Section 361.5, subdivision (b), provides in part:
“Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] … [¶]
“(10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.
“(11) That 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. [¶] … [¶]
“(13) 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.”
We review the juvenile court’s order denying reunification services under section 361.5, subdivision (b), for substantial evidence. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.)
Mother contends that the court erred in denying her reunification services under section 361.5, subdivision (b)(10) and (11), because the court did not expressly determine whether she failed to make “a reasonable effort to treat the problems that led to removal of” her two boys. (§ 361.5, subd. (b)(10) and (11).) We need not address this contention because the court properly denied reunification services pursuant to section 361.5, subdivision (b)(13). (§ 361.5, subd. (b) [reunification services need not be provided if court finds any of enumerated exceptions apply]; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)
Under section 361.5, subdivision (b)(13), two prongs must be found by clear and convincing evidence to deny a parent reunification services. First, the parent must have “a history of extensive, abusive, and chronic use of drugs or alcohol.” Second, the parent either (1) “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 (2) “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.”
Mother concedes the first prong of section 361.5, subdivision (b)(13), admitting that her substance abuse history is chronic and extensive. She also concedes that the juvenile court’s order of February 4, 2009, referring her to residential treatment and drug testing, qualified as “court-ordered treatment” specified in the second prong of section 361.5, subdivision (b)(13). She argues, however, that the element of resisting court-ordered treatment was not satisfied because “there must have been evidence of court ordered treatment for three years beginning on February 4, 2006” (bolding omitted), i.e., for three years before the court-ordered treatment. She offers no authority for her position, and we see no basis for it. Section 361.5, subdivision (b)(13), does not require a showing that the parent resist court-ordered treatment continuously for three years or that the court-ordered treatment be in place for three years; rather, it requires a showing that the parent “resisted the treatment within the three years immediately preceding the filing of the current petition.…” (In re William B. (2008) 163 Cal.App.4th 1220, 1230, italics added.)
Mother next claims that she did not resist treatment. “[A] parent can actively resist treatment for drug or alcohol abuse by refusing to attend a program or by declining to participate once there.” (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) In addition, proof of resistance “may come in the form of dropping out of programs, or in the form of resumption of regular drug use after a period of sobriety.” (In re Brian M. (2000) 82 Cal.App.4th 1398, 1402.)
Here, there is substantial evidence that mother resisted court-ordered treatment within the three-year period immediately preceding the filing of the petition on April 30, 2010. Within four months after the court order of February 4, 2009, mother was discharged from a residential drug treatment program for noncompliance; she refused to attend another program (stating that she was not willing to participate in residential treatment); and she used drugs (testing positive for amphetamine/methamphetamine). Mother again tested positive for methamphetamine in April 2010 at the time of I.P.’s birth.
Mother relies on the fact that she has reenrolled in WestCare twice in 2010 to show that she has not resisted treatment. Of course, this also shows that she dropped out of drug treatment twice. This also completely ignores her behavior in 2009, when she refused treatment and tested positive for drugs. She asserts that the “only proof provided of drug use was the positive test at the child’s birth, ” but this was significant drug use. This argument also overlooks her positive drug test from May 2009. As the juvenile court observed, having very recently had her parental rights terminated as to her two sons, mother understood the significance of using drugs shortly before giving birth. Yet, she chose to leave a residential drug treatment program and use drugs three days before giving birth. Drug use under these circumstances may be considered resistance to treatment.
Mother also argues that the element of failing or refusing to comply with drug treatment described in a case plan required by section 358.1 on at least two prior occasions was not satisfied because there was only one case plan that satisfies the language of the statute—the court-ordered plan of February 4, 2009. The second prong of section 361.5, subdivision (b)(13), is disjunctive; it may be satisfied by showing either resistance to court-ordered treatment during the three years immediately preceding the filing of the petition or failure or refusal to comply with treatment described in a case plan required by section 358.1 on at least two prior occasions. Since, as discussed above, substantial evidence supports the first element of the second prong (resistance to court-ordered treatment), we need not consider this argument.
In any case, section 361.5, subdivision (b)(13), does not require that the parent fail or refuse to comply with two different case plans. Rather, it requires that the parent fail or refuse to comply with treatment in a case plan “on at least two prior occasions.” (§ 361.5, subd. (b)(13).) Here, the record shows three occasions of failure or refusal to comply with such treatment: On May 13, 2009, mother was discharged from CAP for noncompliance; on May 14, 2009, she stated she was not willing to participate in further residential treatment; and on May 19, 2009, she tested positive for amphetamine/methamphetamine. For all these reasons, the court did not err by denying reunification services pursuant to section 361.5, subdivision (b)(13).
Finally, mother contends that it was an abuse of discretion for the juvenile court to find that it was not in the child’s best interests to reunify with her. It is true that a parent subject to section 361.5, subdivision (b), may still obtain reunification services if the parent proves that those services would be in the child’s best interests. Section 361.5, subdivision (c), provides, in part: “The court shall not order reunification for a parent … described in paragraph … (10), (11), … (13)... of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” It is the parent’s burden to demonstrate that reunification services would be in the child’s best interests. (See In re Ethan N. (2004) 122 Cal.App.4th 55, 65 (Ethan N.).)
Mother observes that the court did not expressly state it was evaluating the evidence by a “clear and convincing” standard. Since the applicable standard of proof is stated in the statute (§ 361.5, subd. (c)), we presume that the court applied the correct standard. (In re Bernadette C. (1982) 127 Cal.App.3d 618, 625 [“where the issue is well settled, it is presumed that the trial judge applied the appropriate standard and no articulation is required”]; Ross v. Superior Court (1977) 19 Cal.3d 899.)
In Ethan N., this court listed various factors to be considered in evaluating whether reunification services would be in the best interests of the child under section 361.5, subdivision (c). Factors include a parent’s history, current efforts and fitness, the gravity of the problem that led to the dependency, the strength of bonds between both parents and caretakers, and the child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-68.)
Here, mother points out that she grew up in foster care herself, she began using drugs at age 12, and she was only 23 years old at the time of the hearing. These facts do not demonstrate that it would be in her daughter’s best interests to offer mother reunification services. She argues that “[h]er particular burden is extreme and the efforts which she had made at the time of the disposition hearing deserved consideration.” The court did consider the efforts she made, but found them to be insufficient, concluding that “the actions that she then took after the child was detained, undermines her testimony … that she’s a changed individual.”
Mother also argues that, because the court ordered reunification services for the presumed father, allowing her to participate in reunification services would not delay permanency planning for the child. Reunification services, however, were not denied mother because they would cause a delay; they were denied because of mother’s history of substance abuse and resistance to treatment. In this case, we cannot say that the court abused its discretion in determining that it would not be in the child’s best interests to provide mother reunification services. (See In re William B., supra, 163 Cal.App.4th at p. 1229 [“A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c)” and “[a]n appellate court will reverse that determination only if the juvenile court abuses its discretion”].)
DISPOSITION
The juvenile court order is affirmed.
WE CONCUR: Detjen, J., Franson, J.