Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 07CEJ300173. Jamileh Schwartzbart, Temporary Judge.
Pursuant to California Constitution, article VI, section 21.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel for Plaintiff and Respondent.
OPINION
DAWSON, J.
Ke. P. (father) appeals from the order made January 24, 2008, denying him family reunification services. Father contends that there is insufficient evidence to support the dependency court’s findings under Welfare and Institutions Code section 361.5, subdivision (b)(13) and that the court abused its discretion by not finding in his favor under section 361.5, subdivision (c). We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
A dependency petition filed July 3, 2007, pursuant to section 300, subdivision (b), alleged that K.P., born in 2001, and Ki. P., born in 2002, (the children) were at risk of serious physical harm due to domestic violence in the home and because of father’s and the mother’s substance abuse problems.
A subsequently filed detention report stated the children had come to the attention of the Department of Children and Family Services (the Department) after it received referrals of general neglect of the children. Father and the mother were not married but lived together, and father was considered the children’s presumed father. The children told the Department that they had witnessed acts of domestic violence between their parents and watched them use marijuana in their presence. Both parents acknowledged medicinal use of marijuana, but denied any ongoing domestic violence. Father claimed that he suffered from Kohler’s disease and was taking prescription medication for chronic pain. He told the Department that he sometimes used cocaine three to four times a week, and he last used it a week earlier. Father also told the Department that he had previously completed seven drug treatment programs, a 52-week batterer’s treatment program, and an anger management program.
At the detention hearing, the dependency court ordered the children detained.
The report filed in anticipation of the jurisdiction hearing recommended that the court sustain the allegations in the petition and stated that both parents had been referred to services. The social worker reported that the children had seen father hit the mother, resulting in a black eye, and had seen the mother pull out a “butcher knife” and hold it to father’s throat. According to the report, father tested positive for marijuana and cocaine on July 3, 2007. Father told the Department he did not need substance abuse, mental health, or domestic violence counseling and he did not believe any intervention would be beneficial.
At the October 4, 2007, contested jurisdiction hearing, both parents, pursuant to an agreement, submitted to the allegations in the petition regarding domestic violence. The allegations regarding drug use were dismissed on the condition that both father and the mother “do an ASI and any recommended treatment and random drug-testing.” The court found that the children came within the jurisdiction of section 300, subdivision (b).
“ASI” appears to refer to an addiction severity index assessment.
The report filed in anticipation of the disposition hearing recommended that the children be found to be dependents of the court and to continue placement outside the parents’ custody. The Department recommended that the mother be ordered to participate in reunification services, but that father be denied services pursuant to section 361.5, subdivision (b)(13). Although the Department acknowledged that the minors had a bond with father, it did not believe that father would benefit from services, because his problems persisted despite the fact that he had participated in prior court-ordered substance abuse treatment, anger management, and batterer’s programs.
The report stated that mother told the Department she had been using marijuana for 20 years but had obtained a prescription for it in July of 2007. She admitted she had a problem with marijuana, but she continued to deny any domestic violence with father. She did not think she needed to participate in domestic violence classes but was willing to do so to reunify with her children.
The report stated that father had told the Department he had used drugs, particularly alcohol, cocaine, marijuana and LSD, for at least 23 years. He had participated in seven substance abuse treatment programs, four of which were residential. During his intake counseling in July of 2007, father admitted that he drank alcohol and used cocaine in June of 2007. In November of 2007, father told the Department that he quit using illegal substances and was now using only prescription medications for pain and prescription marijuana for a mood disorder. Father had prescriptions for OxyContin, diazepam, Magnacet, promethazine with codeine, Lunesta, hydrocodone, and medical marijuana. All of the random drug tests taken by father since his positive test for cocaine and marijuana on July 3, 2007, had come back positive for marijuana and opiates. The Department expressed concern that “someone with [father’s] extensive substance history, who is regularly using medical marijuana, three powerful painkillers, a relaxant, an antihistamine containing a painkiller, and a sleep aid be[] able to care for children.”
The report stated that father “adamantly” denied that he had a substance abuse problem or that he needed to participate in substance abuse treatment. He also denied that he engaged in any domestic violence with the mother and, although he wished to reunify with the children, felt he only needed to participate in counseling and a parenting class. He was willing to participate in a 12-week anger management class but not the recommended lengthier batterer’s treatment program.
Father’s criminal history included various drug convictions dating back to 1994 and 1998 and misdemeanor convictions for willful cruelty to a child and infliction of corporal injury on a spouse/cohabitant in 2004.
At the January 10, 2008, contested disposition hearing, the social worker acknowledged that father’s prescription medications could account for the positive opiate showing in his drug tests and that he not had any drug-related criminal convictions since 1998. But, nevertheless, the Department “has serious concerns” regarding father’s drug use. While father tested positive for cocaine on only one occasion, July 3, 2007, he had told a social worker that he used cocaine three to four times a week prior to the dependency proceedings. And, according to the social worker, although father had been evaluated as having a need for both drug and alcohol treatment and a 52-week batterer’s treatment program, he expressed in “numerous conversations” that he did not think he needed any treatment or that he had a problem with domestic violence.
The social worker testified that father had drug tested consistently since July 3, 2007, and that he was attending a parenting program and a therapy program, although he was discharged from the therapy program for missing two sessions. The social worker confirmed that the children were happy to see father during their once a week visits and that the children had expressed a desire to return to his care. But the social worker did not think father would benefit from reunification services because he had participated in court-ordered treatment programs in the past and he currently denied any need for substance abuse or domestic violence treatment.
Father testified that he had obtained a marijuana prescription in 2002 for chronic pain. He hoped to have hip replacement and shoulder surgery in the next half year. Father denied telling the Department that he had been using cocaine three to four times a week prior to dependency proceedings, claiming instead that he had stated that he had used cocaine on one occasion three to four days prior to July 3, 2007.
Father acknowledged that he and the children’s mother “had our share of problems,” and he was willing to take a 12- to 15-week domestic violence course, but not the longer class. He acknowledged that a substance abuse program would not be a bad thing, but he was unsure about the timing of the classes and his upcoming surgeries. Father testified that he had always tried to be a good father and to provide for the children’s needs.
The mother also testified that the Department was mistaken about its claim that father used cocaine three to four times a week prior to the dependency proceedings.
Counsel for father argued that California Rules of Court, rule 5.695(f)(5)(M) prevented the court from denying father services because, although the children had come within the court’s jurisdiction for substance abuse reasons, those allegations had been dismissed. The dependency court delayed its order and asked that the parties research this issue and brief the court.
On January 24, 2008, after both parties had briefed the issue, the court revisited that matter. Following argument, the dependency court found that the children were dependents of the court and ordered that they continue to be removed from the parents’ custody. The court found that the Department had established clear and convincing evidence that section 361.5, subdivision (b)(13) was applicable to father. The court specifically noted father’s longstanding cocaine use.
The dependency court then addressed whether reunification services would nonetheless be in the children’s best interests pursuant to section 361.5, subdivision (c). The court acknowledged that there was a relationship between father and the children, but determined that the children’s need for stability was greater than the father’s history and his current efforts. The court found there was a “significant denial and minimization of the issues that he faces and the lack of efforts with respect to any substance abuse treatment or domestic violence treatment .…” As a result, reunification services were ordered for the mother but denied for father.
DISCUSSION
1. Denial of reunification services pursuant to section 361.5, subdivision (b)(13)
As a general rule, reunification services are offered to parents, whose children have been removed from their custody, in an effort to eliminate the conditions leading to the loss of custody and to facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) But recognizing that in certain categories of cases it is fruitless to provide reunification services, the Legislature has enacted provisions for “fast-track” permanency planning under certain circumstances. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) One such circumstance is where a parent has a long-term history of drug or alcohol abuse and has resisted treatment for his or her alcohol or drug problem. Section 361.5, subdivision (b)(13), provides:
“(b) Reunification services need not be provided to a parent … when the court finds, by clear and convincing evidence, any of the following: [¶] … [¶] (13) That the parent … 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.”
Here, the dependency court denied father reunification services based on the first provision of the statute; i.e., that he has a history of extensive, abusive and chronic use of drugs and he has resisted prior court-ordered drug treatment within three years of the filing of the instant petition. Father argues that his circumstances do not trigger the provisions of the statute because: (1) he had only one positive test for cocaine on July 3, 2007, and the more recent positive drug tests were due to his use of prescription medications; and (2) the last substance abuse treatment he participated in took place in 1998—nearly nine years prior to the filing of the instant petition—and did not come not within the required three-year period. We disagree.
Our review of the dependency court’s findings is limited to considering whether substantial evidence supports the finding. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75 [findings under § 361.5, subdivision (b)].) “[E]ven where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact.” (In re Jasmine C., supra, at p. 75.) “When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.)
Here, father focuses on his current prescription drug use as being legitimate and the fact that he had only a single positive test for cocaine on July 3, 2007. But he ignores other overwhelming evidence that he is struggling with a longstanding addiction to cocaine as well as other drugs. A review of the record shows substantial evidence of father’s extensive drug abuse. Father himself reported to the social worker that he had used multiple controlled substances for many years, particularly alcohol, cocaine, marijuana, and LSD. By his own admission, he stated he had used approximately “4,000 hits of LSD during his lifetime,” which really “‘messed [him] up.’”
Father has been convicted of various drug charges, including possession for sale of methamphetamine and marijuana in 1994. As a result, he participated in a residential substance abuse treatment program at the California Rehabilitation Center until his release a year later in December of 1995. In May of 1998, while on probation and participating in a residential treatment program at the Salvation Army, father pled guilty to misdemeanor possession of cocaine and driving under the influence of a controlled substance.
Father met with an ASI evaluator on July 18, 2007. The ASI evaluator reported that father told him that he first used alcohol at age 14 and had used it for 23 years. Father also told the evaluator that he had used cocaine for 20 years, beginning at age 17, and marijuana for 19 years, beginning at age 16. Father stated that the last time he used alcohol, cocaine, or marijuana was in June of 2007. Father stated that he had been treated for alcohol abuse six times and for drug abuse six times. He last attended 180 days of inpatient treatment 10 years ago, but he did not successfully complete the program. The evaluator stated that father had a “dual problem with alcohol and drugs,” even though father claimed he had no substance abuse problems. The ASI evaluator recommended appellant for an inpatient substance abuse program, based on “past substance abuse, client testing positive for cocaine, past drug charges, [and] alcohol & drug use .…”
The dependency court specifically rejected father’s claim that the social worker misunderstood father’s statement of cocaine use in June of 2007. According to the court, “the statement in the detention report is that both aspects, the frequency of use of cocaine, is there is a specific statement about that as well as a specific statement separately about the last time he used, which was about a week ago, so it doesn’t make sense to the Court that there would have been confusion about that on the part of the social worker.” The court also found that father was “grossly minimizing” his abuse of drugs and it was not convinced that father “now being on a number of prescription medications obviates the existence of substance abuse problems.”
We also reject father’s claim that his last substance abuse treatment in 1998 was “well outside the relevant three-year period referred to [in] the pertinent statute.” In essence, father is arguing that the statute requires that both the court order for treatment and the resistance to treatment occur during the three years prior to the filing of the dependency petition. Since father was last court-ordered to complete inpatient drug treatment in 1998, he argues, his circumstances do not trigger the provisions of the statute and the court erroneously denied him services. We disagree.
The delimiting phrase “during a three-year period immediately prior to the filing of the petition” (§ 361.5, subd. (b)(13), has been held to modify the verb “resisted.” Therefore, the statute only requires that the resistance, not the court order, occur within three years of the filing of the dependency petition. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780 (Laura B.).)
In Laura B., the mother had an 18-year history of drug use and completed at least three substance abuse rehabilitation programs more than three years before the dependency petition was filed. (Laura B., supra, 68 Cal.App.4th at pp. 778, 780.) But she began using drugs again the year before her daughter was born and the dependency petition was filed. (Ibid.) The dependency court denied her reunification services pursuant to the same provision at issue here, then contained in former subdivision (b)(12) of section 361.5, which provided, as relevant to this case, that the juvenile court could deny reunification services to a parent who “has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition which brought that minor to the court’s attention .…” In 2002, the provision, then contained in former section 361.5, subdivision (b)(13), was amended to replace “prior treatment” with “court-ordered treatment.”
Section 361.5 was amended effective October 10, 2001, without substantive change, renumbering subdivision (b)(12) as (b)(13). (Stats. 2001, ch. 653, § 11.3, pp. 4123.)
Statutes 2002, chapter 918, section 7, page 4512.
On appeal, the mother in Laura B. argued the dependency court erred in denying her reunification services because there was no evidence rehabilitation programs were available to her during the three years prior to the filing of the dependency petition. (Laura B., supra, 68 Cal.App.4th at p. 779.) The Laura B. court affirmed the dependency court’s denial order, holding that the statute “does not require proof that the prior treatment occur during the three-year period; it requires proof that the resistance to such treatment occur.” (Id. at p. 780.)
One may resist prior treatment in a number of ways. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [“failure to maintain any kind of long-term sobriety”]; Laura B. supra, 68 Cal.App.4th at p. 780 [entering one or more programs then dropping out before completion, or resumption of substance abuse after a period of sobriety]; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010 [active resistance by refusing to attend, or declining to participate; passive resistance by continuing to use despite participation in a program]; but see In re Brian M. (2000) 82 Cal.App.4th 1398, 1403 [long-term substance abuse but not enrolling in drug treatment is not resistance to treatment].) These references are not exhaustive because a finding that a parent resisted prior treatment for drug abuse depends on the facts of each case.
Here, while father’s drug abuse treatment may not have occurred during the three-year period prior to the filing of the petition, there is substantial evidence that father’s resistance to such treatment did occur during that time period. Father admitted that he continued to use drugs for many years, and, in fact, admitted that he had used cocaine the week before the dependency petition was filed. He also stated repeatedly that he did not think he had a substance abuse problem and that he did not need treatment.
The court described father’s problem as “substance abuse with prescription or without prescription, and the very real dangers that the … combination of drugs and domestic violence presents to [the] children; physical danger, psychological danger and emotional … damage.” The court continued, stating that substance abuse was “a significant aspect of this case,” and it was “not convinced that just the obtaining of prescriptions takes that out of the equation[,] [a]nd if nothing else the Court finds that there was longstanding cocaine use sufficiently established in the record for dispositional purposes.”
With regard to subdivision (b)(13) of section 361.5, the Legislature clearly intended to empower the dependency court to deny reunification services to a parent who at some time was ordered into drug treatment but resisted it, as in this case, by continuing to use drugs within three years prior to the filing of the dependency petition. To that extent, a denial of services in a case such as father’s is precisely what the Legislature intended, and we find no error.
2. Denial of reunification services notwithstanding section 361.5, subdivision (c)
Father next contends that, even if the requirements of section 361.5, subdivision (b)(13) were met, the dependency court abused its discretion in failing to order reunification services anyway under section 361.5, subdivision (c). It is true that a parent subject to section 361.5, subdivision (b)(13) might still obtain reunification services if the parent proves that those services would be in the children’s best interests. Section 361.5, subdivision (c) reads, in relevant part: “The court shall not order reunification for a parent … described in paragraph … (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 minor’s best interests. (See In re Ethan N. (2004) 122 Cal.App.4th 55, 65 (Ethan N.).)
In Ethan N., this court listed various factors to be considered in evaluating whether reunification services are in the best interests of the children after it is determined that reunification is no longer the objective. 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, of paramount concern, the child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-68.)
Father insists there was substantial evidence that ordering reunification services for him would have been in the children’s best interests. Father argues that the problems that led to the dependency proceedings were not as grave as those in Ethan N., in which the child was removed due to the death of a sibling by severe neglect, a long history of family violence, and the abuse and neglect of other children even after extensive reunification services had been provided. He argues there was no prior history of dependency proceedings in his case and that there was a bond between him and the children in that he visited them as often as he could and they were excited to see him. He also argues that, although he was reluctant to participate in services for domestic violence and he disputed having a substance abuse problem, by the time of the disposition hearing, he was open to the idea of attending a shorter domestic violence course and to the recommendation of substance abuse treatment.
Aside from the fact that father attended weekly visitations with his children and claimed that the children loved him and wished to spend time with him, father has done nothing to demonstrate that it would be in the children’s best interests to offer him reunification services. Father consistently minimized or denied that he had a domestic abuse or substance abuse problem, until the dispositional hearing, when he reluctantly admitted that he might have a problem. And his willingness to participate in services for both of those issues was half-hearted—he wished only to participate in a shorter domestic abuse program than was recommended and he wasn’t sure how a substance abuse program would interfere with his scheduled surgeries. The social worker testified that, during visits with the children, father interacted with them, engaged them in conversation, and played board games and did homework with them, but that the Department did not feel father had demonstrated an ability to provide the stability and continuity the children needed. And a letter received from father’s therapist recommended that father have “therapeutic supervised visits” with the children because his “problem solving skills are not based in reality, and that he verbalized things in a superficial content and still den[ied] the domestic violence and still den[ied] recent drug use.” As stated by the dependency court at the dispositional hearing, father’s failure or unwillingness to address the issues that resulted in removal of his children bears negatively on the children’s stability and need for continuity, especially at their young ages of five and six.
Father also argues that, because the mother will be engaged in reunification services, granting reunification services to him would not unduly delay the stability and permanence to which the children are entitled, and reunification services would increase the chance that the children would reunify with the only father they have ever known. But reunification services were not denied father because they would cause a delay; they were denied because father has consistently refused to acknowledge his long-standing problems with domestic violence and substance abuse, his past failures to alleviate those problems, and his current unwillingness to participate in services to remedy those problems.
Father has failed to establish error.
DISPOSITION
The order is affirmed.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.