Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS for Extraordinary Writ. Robert Stevenson, Referee. Los Angeles County Super. Ct. No. CK61893
Claire Boudov, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Owen L. Gallagher, Principal Deputy County Counsel, for Real Party in Interest.
Kristen Aagaard for Minor.
WILLHITE, J.
INTRODUCTION
In this petition for extraordinary relief, Summer N. challenges the trial court’s orders removing her son J. from her custody and terminating reunification services. We conclude that substantial evidence supports all of the trial court’s orders and therefore deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events of 2005
In December 2005, Summer N. (Mother) and her 18-month old son J. were residing in the home of a friend. On December 21, the police executed a search warrant at the home and found a large quantity of illicit drugs. The police referred the matter to the Department of Children and Family Services (Department). Mother admitted to Department that she smoked marijuana. Department immediately detained J.
On December 23, Department filed a section 300, subdivision (b) petition. As sustained by the trial court several months later, the petition alleged that Mother’s abusive use of marijuana rendered her unable to provide J. with regular care and supervision and thus placed the child at substantial risk of physical harm. The trial court ordered J. detained and placed in Department’s custody. In addition, the court ordered Department to provide family reunification services and to set up drug testing for Mother.
All statutory references are to the Welfare and Institutions Code.
On December 30, the trial court continued its detention order. It permitted Mother to visit with J. on the condition that she participate in drug testing.
2. Events of 2006
On January 26, 2006 the court conducted a Pretrial Resolution Conference. Department reported that Mother admitted smoking marijuana but claimed that she was only an infrequent user. The court released J. to Mother’s custody and ordered Mother to submit to weekly drug testing.
At the February 16 mediation hearing, Department reported that in the previous six weeks, Mother had missed five drug tests and tested positive once.
At the March 2 adjudication hearing, the trial court sustained the section 300 petition. The court ordered Mother to undergo drug testing, to attend drug counseling, and to take classes to gain an understanding of the problems caused by exposing her young child to substance abuse. The court placed J. with Mother in the maternal grandmother’s home under Department’s supervision and directed Department to provide family maintenance services.
At the August judicial review hearing, Department reported that in the prior five months, Mother had tested positive once for marijuana, tested negative six times, and failed to appear for four tests. Mother was ordered to submit to “on demand” drug testing and to comply with family preservation services. Department was ordered to provide family maintenance services. The court found that Department had made reasonable efforts to comply with the case plan to enable J.’s safe return to his home. J. remained with Mother.
3. Events of 2007
Following a review hearing conducted on March 16, 2007, the court continued its previous orders, including directing Department to provide family maintenance services and ordering Mother to comply with all of its orders regarding drug testing and drug rehabilitation. The court found Department had made reasonable efforts to comply with the case plan. Because Mother had been ordered to submit to eight additional drug tests since the August 2006 hearing but had tested positive once and failed to appear for the seven other tests, the court ordered: “If mother does not comply with drug rehabilitation and drug testing, [Department] to walk matter on calendar to possibly detain minor from Mother.” The court set the matter for a review hearing in September 2007.
In May 2007, Mother’s situation markedly deteriorated. First, she tested positive for marijuana and a week later failed to appear for a test. Department interviewed Mother on May 14. Mother admitted to periodic use of marijuana. She offered several explanations for her illicit conduct. She claimed that the “service providers” and “the rest of the people related to her are causing her stress and anxiety.” In particular, she explained that she was stressed and depressed because her boyfriend Tony Mason physically abused her. Significantly, Mother stated “that smoking marijuana is good for her health and there is no reason for her to leave the marijuana consumption or to avoid contact with her boyfriend” because neither “present[ed] a risk for her son J.” Mother admitted she was no longer attending the out-patient drug program offered by the Antelope Valley Council on Alcoholism & Drug Dependency (AVCADD). (Mother was subsequently terminated from the program for non-attendance.) When the social worker advised Mother that an in-patient drug program was the only viable alternative, Mother refused to participate. Although Mother agreed on the following day to attend an-inpatient program, she never fulfilled that promise. In light of all of these events, Department removed J. from Mother’s custody.
The most recent incident had occurred on April 26 when Mason hit her in the forehead, leaving a welt.
She had attended four sessions in March and April but then missed the next four sessions.
On May 17, Department filed, pursuant to section 342, a subsequent petition. In relevant part, it alleged two separate reasons why Mother’s inability to provide for J. put him at risk of harm. The first was that Mother had an on-going physically abusive relationship with Tony Mason. The second was that Mother’s continual use of marijuana persistently affected her ability to provide for regular care of J. In particular, Mother not only had failed to participate in a drug rehabilitation program and submit to random testing, but, in a two-month period, had tested positive for marijuana three times.
Section 342 provides, in relevant part: “In any case in which a minor has been found to be a person described by Section 300 and the [Department] alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, [Department] shall file a subsequent petition. . . . [¶] All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section.”
In that same time period, she failed to appear for three other tests and only once tested negative.
After Department filed the subsequent petition but before the trial court ruled upon it, Mother tested positive three more times for marijuana and failed to appear for “on-demand drug testing.” Mother admitted to her social worker that she smoked marijuana on a daily basis. Department’s report for the upcoming jurisdictional hearing indicated Mother had failed to comply with her promise made in April to obtain a restraining order against Mason and that, in fact, she continued to maintain a relationship with him. In addition, Mother stated she did not understand why it was necessary to maintain contact with Department, attend a drug treatment program, or end her abusive relationship with Mason.
On June 21, the trial court sustained the subsequent petition and set the dispositional hearing for August 14. On the domestic violence issue, the trial court ordered Mother to obtain a restraining order against Mason. Mother never did so. On the drug addiction issue, Mother was given an appointment to enroll in a substance abuse program at Tarzana Treatment Centers. She did not attend the initial assessment meeting, and never participated in the program. She told the social worker she did “not need to” attend the Tarzana program. In addition, Mother failed to provide specimens for three scheduled drug tests, claiming she did “not need to be tested.”
Prior to the dispositional hearing, Department filed a request to terminate reunification services and to set the matter for a permanency planning hearing. Department urged that the statutory period in which it was required to furnish reunification services commenced in December 2005 when J. was first removed from Mother’s custody. Using that date as the beginning point, Department argued that Mother had already received 20 months of family reunification, maintenance and preservation services, none of which had succeeded in ameliorating the underlying problems. In the alternative, Department urged that even were the trial court to consider additional reunification services, it should deny them under section 361.5, subdivision (b)(13) because Mother had a history of drug abuse and had refused to comply with the treatment programs offered to her.
Mother’s opposition claimed that the time frame to provide reunification services did not commence until the trial court sustained the subsequent petition in May 2007 so that Department had to provide the statutorily required six-months reunification services through November 2007.
The trial court conducted the dispositional hearing on August 14. Department’s report, in addition to setting forth the events described above, noted that Mother had not followed through on her promise, made in a signed agreement executed on June 25, to attend the in-patient drug program at Acton Rehabilitation Center. Mother’s explanation was that there was no need for her to enter Acton because she “only smokes weed.” After reviewing all the pertinent documents (reports and court minute orders) and listening to argument from counsel, the trial court ruled:
“First, with respect to the disposition issues, the court is going to find that the child [J.] should be declared a dependent of the court under Welfare and Institution Code section 300b.
“I do find by clear and convincing evidence that return of the child to the parent at this time would create a substantial danger to the physical health, safety, protection or physical or emotional well-being of the child, and there are no reasonable means by which the child’s physical health can be protected without removing the child from the parent’s physical custody. . . .
“. . . Further, the court finds that the Department made reasonable efforts to prevent or eliminate the need for [J.’s] removal from the home of [his] parent.
“. . . the cases cited by the Department are right on point in this case [and] are the cases that the court relies on with respect to [the fact] that mother has now exceeded her time for services, whether they are F.M. [family maintenance] services together with F.R. [family reunification] services.
The cases are In re N.M. (2003) 108 Cal.App.4th 845 and Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159.
“There is not a tolling that takes place with respect to services that were ordered. I think initial removal was when the clock starts ticking, and I think that we’ve had at least 20 months now of services that have been provided to the mother. The mother still resists treatment and she indicates that she gets nervous or anxious with respect to [her boyfriend Tony Mason]; that she wants to smoke marijuana to help her with her anxiety. She does not want to do a drug program. She wants to continue smoking marijuana. She does not want to do a program.
“So I think that it’s clear to the court, one, as I indicated, that there is a substantial danger if I were to return, and I believe that mother has received more than enough services in this case that are required by law, so I’m going to order no further F.R. services for the mother. I’m going to terminate any F.R. services.”
The trial court set the 366.26 hearing for December 11, 2007.
Mother filed this petition to regain custody of J., or minimally, to receive further family reunification services. Counsel for J. has joined in Department’s answer opposing Mother’s petition.
DISCUSSION
A. Removal of J. From Mother’s Custody
Mother first contends that the trial court “erred in finding a substantial risk of detriment and removing J. from [her] custody under section 361(c).” (Capitalization and boldface omitted.) We disagree.
When, as here, Department seeks to remove a child from a parent’s custody at the dispositional phase of a dependency proceeding (the Aug. 14, 2007 hearing), it must establish by clear and convincing evidence a parent’s inability to provide proper care for the child and a resulting detriment to the child were he to remain with the parent. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694; § 361, subd. (c).)
While clear and convincing evidence of parental neglect is required in the trial court to remove a child from a parent’s custody, “on appeal the proper standard of review is the substantial evidence rule. ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent [here, Department] and all legitimate inferences indulged in to uphold the [trial court’s removal order], if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deduction for those of the trier of fact . . . .’ [Citations.]” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Here, two independent grounds support the trial court’s removal order.
The first is Mother’s on-going drug abuse and her abject failure to even begin to address that problem. It is uncontradicted that Mother has a substance abuse problem. From her first encounter with Department in December 2005 through her May 2007 interview with her social worker, Mother freely admitted to smoking marijuana. Not only did she test positive on multiple occasions, but her frequently missed tests must be considered to be positive tests. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343.) In addition, Mother has failed to acknowledge that her on-going use of marijuana constitutes a problem. She either rationalized it (marijuana was necessary to relieve stress) or downplayed its significance (she “only smokes weed”). Mother was given multiple opportunities to participate in out-patient treatment or to enroll at an in-patient facility. She never completed any of these options, often telling the social worker that she did not “need” any program and proclaiming that she would continue to smoke marijuana.
Department’s answer to Mother’s petition states that from December 2005 through August 2007, “mother had been ordered to submit to 39 random drug tests. The results: mother tested positive or failed to appear on 32 of those 39 tests.” Mother’s reply to the answer does not challenge this factual assertion.
As our Legislature has declared: “The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.) In this case, the trial court could reasonably infer that Mother’s addiction to marijuana coupled with her denial of any problem interfered with her ability to provide proper care for J. Mother’s argument that her use of marijuana is an insufficient basis to remove her son from custody because there is no evidence she ever abused or neglected J. misses the point. “A removal order 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. (2000) 82 Cal.App.4th 1127, 1136, italics added, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Mother next urges that the trial court should have considered another option before ordering J.’s removal from her custody. She opines that the trial court should have voluntarily placed J. with his grandmother while Mother completed a residential drug program. Putting aside the fact that this position is contrary to what Mother urged in the trial court, the trial court specifically found that there were “no reasonable means” to protect J. without removing him from Mother’s custody and that Department had made reasonable efforts to eliminate the need for his removal. Substantial evidence supports that decision. Department offered Mother many opportunities to address her substance abuse problem. Nonetheless, Mother failed to even acknowledge her addiction, let alone begin to correct the problem. Instead, she defiantly proclaimed that she would continue to use marijuana. The trial court’s removal order was therefore not an abuse of discretion.
“‘The governing statute, section 361, subdivision (c), is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being and there are no “reasonable means” by which the child can be protected without removal. [Citation.] The statute embodies “an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent’s homes where it was safe to do so.” [Citations.]’” (In re Henry V. (2004) 119 Cal.App.4th 522, 528, italics added.)
At the dispositional hearing, Mother’s counsel (who also represents her on this petition) stated: “Mother is willing to do whatever the court asked her to do, . . . but Mother does not want to go to a residential program.” (Italics added.)
The second ground to support the trial court’s removal order is domestic violence: Mother’s altercations with her boyfriend Tony Mason. A parent’s physically abusive relationship with her adult partner can constitute child neglect even if the child does not witness it. (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 562, including authorities cited therein.) That principle has particular application here because the physical abuse was inextricably bound up with the problem of substance abuse. Mother claimed that Mason’s abuse was one reason she continued to smoke marijuana, a situation which, as explained above, created a substantial risk of harm to J.
On appeal, Mother does not contest that she and Mason had a physically abusive relationship. Instead, she claims that “by August 14, 2007, [she] was no longer having any contact with the abusive boyfriend.” Her supporting evidence is not compelling. For one thing, her June 25, 2007 statement to her social worker that she had not been “keeping in touch” with Mason was made at the same time that she falsely claimed that she did not smoke marijuana. On that basis alone, the trial court could reasonably disbelieve her claim that she no longer saw Mason. Mother relies upon the statement in the August 14, 2007 social report that since June 21 of that year, there had been no report by Mother, her uncle or her grandmother that Mother was “in touch [with] Mason or any of his associates.” However, to the extent this statement includes Mother’s denial of any association with Mason, the trial court was not, as explained above, required to credit her assertion. To the extent that this statement includes assertions made by her two relatives, that fact is of little, if any, value absent a showing that they were with her 24 hours a day.
Mother next argues that the trial court had an option other than removing J. from her custody to protect him from the domestic violence. (In re Henry V., supra, 119 Cal.App.4th at p. 528.) She argues that “the domestic violence . . . could have been eliminated by a restraining order issued by the juvenile court.” Mother ignores the facts that in April 2007 she agreed to obtain such a restraining order but failed to do so and that on June 21, 2007 the juvenile court ordered her to obtain a restraining order against Mason but she failed to obey that order. Further, on May 14, 2007, Mother told her social worker that she did not believe her relationship with Mason “present[ed] a risk for her son [J.].” In light of all of these circumstances, the trial court did not abuse its discretion in concluding that removing J. from Mother’s custody was the only viable option to protect him from the risk created by Mother’s physically abusive relationship with Mason.
Department’s supplemental report, filed on August 14, 2007 states that Mother’s grandmother “filed a Restraining Order towards Tony Mason to stop harassment. That restraining order protects” Mother, Mother’s grandmother, Mother’s brother and J. Although the record contains a copy of a completed request, it does not indicate it was actually filed with the superior court or that the superior court granted the request.
B. Reasonableness of Reunification Services
Mother urges that the trial court’s “finding that the Department had provided reasonable services in this case is not supported by substantial evidence and must be vacated.” Mother relies upon one comment made by the social worker in the June 21, 2007 report. Mother’s argument suffers from two deficiencies: Mother failed to raise this point below and the comment does not support her claim that Department failed to offer reasonable services.
The comment is the following: “[Department] believes mother may suffer from an undiagnosed problem that may require an assessment by Regional Center.” (Italics added.) From this, Mother argues: “The social worker therefore recognized that mother had some sort of disability which was preventing her from fulfilling the requirements of the case plan. This acknowledgment qualified as reasonable efforts which the Department failed to make.”
Department’s answer to the petition explains that “[r]egional centers are operated by private nonprofit community agencies and are responsible for coordinating the delivery of services for developmentally disabled persons. [Citations.]”
Although Mother’s counsel (the same attorney who represents her in this writ proceeding) had this report before both the June 21 jurisdictional hearing and the August 14 dispositional hearing, she never raised in the juvenile court the point she now advances. If she felt the services offered up to that juncture had failed to address the possibility that Mother may suffer from a disability, she should have raised that point before the trial court and requested formulation of a different plan. (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365, fn. 6; and In re Christina L. (1992) 3 Cal.App.4th 404, 416.) The failure to do so constitutes a forfeiture of the right to contend for the first time in this petition that Mother was offered inadequate services. (See In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.)
In any event, Mother’s argument takes the social worker’s comment out of context. The comment followed a lengthy discussion of the efforts Department had made to ameliorate Mother’s substance abuse problem; Mother’s unwillingness to seek help, and Mother’s failure to understand the risk created by continuing an admittedly abusive relationship with Mason. Thus, the statement is nothing more than an expression of the social worker’s opinion that perhaps Mother suffered from an developmental disorder. (See fn. 11, ante.) It is not an acknowledgement that Department’s services to that point had been inadequate. This is particularly so given the fact that drug counseling and rehabilitation programs—the very services offered to mother in the previous 18 months—are directed at identifying and addressing the root causes of an individual’s substance abuse problem, including emotional and developmental disorders. Had Mother followed through on the services presented to her, any disorder she had—if, in fact, she did have one—would have been identified and addressed. In sum, it is Mother’s failure to participate in the services offered, not any alleged inadequacy in the treatment plan, that resulted in the trial court’s orders removing J. from her custody and terminating further services.
C. Termination of Reunification Services
Mother next contends that even if the trial court properly removed J. from her custody in August 2007, she was entitled to additional reunification services. We disagree.
When a child is removed from a parent’s custody, the juvenile court “shall order the social worker to provide child welfare services to . . . the child’s mother” (§ 361.5, subd. (a)) unless the court finds that one of the statutory exceptions to providing reunification services is present (§ 361.5, subd. (b)). As Mother concedes, those exceptions can apply when, as here, the juvenile court removes the child from the parent’s custody pursuant to a petition filed under section 342. (In re Joel T. (1999) 70 Cal.App.4th 263, 268.)
The exception relevant to this proceeding is found in subdivision (b)(13) of section 361.5. It reads, in pertinent part: “Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, . . . [¶] That the parent . . . has a history of extensive, abusive and chronic use of drugs or alcohol and . . . has failed or refused to comply with a program of drug or alcohol treatment described in the case plan . . . on at least two prior occasions, even though the programs identified were available and accessible.” The statute evinces “a legislative determination that an attempt to facilitate reunification between a parent and child generally is not in the minor’s best interests when the parent is shown to be a chronic abuser of drugs who has resisted prior treatment for drug abuse. [Citation.] In effect, the Legislature has recognized that, under those circumstances, ‘it may be fruitless to provide reunification services . . . .’ [Citation.]” (In re Levi U. (2000) 78 Cal.App.4th 191, 200.)
We have already explained why substantial evidence supports the trial court’s finding, made under the clear and convincing evidence standard, that Mother’s substance abuse problem create a substantial risk of harm to J. were he to be returned to her custody. In rendering that ruling, the court also found that Mother had resisted all efforts to address her substance abuse problem, intended clearly to continue to use marijuana, and lacked any intent to participate in any drug rehabilitation program. We briefly recapitulate the facts pertinent to those findings. From the time the first petition was filed in December 2005 through the August 2007 dispositional hearing, Mother admitted smoking marijuana and defiantly proclaimed her intent to continue to do so, notwithstanding court orders to the contrary. Although ordered to comply with drug testing, she failed abysmally. She often tested positive and frequently missed tests (the functional equivalent of a positive test). She was ordered to participate in drug counseling and to enroll in a drug rehabilitation program but did not comply with any of these orders. In particular, although she briefly attended the AVCADD drug counseling program, she was terminated in May 2007 for non-attendance. In June 2007, she was given an appointment to enroll at Tarzana Treatment Centers’ substance abuse program but failed to keep the appointment. And she breached her written promise, also made in June 2007, to attend the in-patient rehabilitation program at Acton Rehabilitation Center. Given these facts and the provisions of section 361.5, subdivision (b)(13), the trial court’s decision to terminate reunification services was not an abuse of discretion. Mother’s actions “demonstrated a resistance to eliminating the chronic use of drugs . . . which led to the need for juvenile court intervention to protect [J.]. In other words, [she] has demonstrated that reunification services would be a fruitless attempt to protect [J.] because [her] past failure to benefit from [the] treatment[s offered to her] indicates that future treatment also would fail to change [her] destructive behavior.” (Karen S. v. Superior Court (1999)69 Cal.App.4th 1006, 1010.)
Mother’s contrary argument is not persuasive. She merely urges that because the trial court did not explicitly refer to section 361.5, subdivision (b)(13) when it terminated services, we cannot rely upon that statutory provision to uphold the trial court’s order. We disagree. The matter was adequately raised below. Both Department’s motion and its oral argument at the August 14 hearing relied, inter alia, upon that statute. The parties’ pleadings in this writ proceeding address the statute. And most importantly, the trial court essentially found that the predicates to the statute’s application had been established because it explained that after “at least 20 months now of services that have been provided to the mother[,] [she] still resists treatment and . . . that she wants to smoke marijuana. . . . She does not want to do a drug program. She wants to continue smoking marijuana. She does not want to do a program.” Because substantial evidence supports those findings (In re Brooke C. (2005) 127 Cal.App.4th 377, 382), we uphold the trial court’s order terminating reunification services pursuant to section 361.5, subdivision (b)(13).
We therefore need not consider whether the order denying further reunification services can be upheld on the basis that Department had continually provided Mother with services since J.’s first detention in December 2005. (See cases cited in fn. 6, ante.)
DISPOSITION
The petition is denied.
We concur:
EPSTEIN, P. J., MANELLA, J.
At the dispositional hearing, the only reference to a restraining order was a passing comment by Mother’s counsel that the “grandmother was to get a restraining order.”