Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 02CEJ300073-2. Jamileh Schwartzbart, Commissioner.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Leticia N. (Mother) appeals from the dispositional orders of the juvenile court. She contends (1) the juvenile court erred by denying her reunification services and (2) the juvenile court’s visitation order improperly delegates discretion to her children to determine whether visitation will occur. We affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL HISTORY
Mother had seven children. In 2002, some of the children were removed from her care. She completed court-ordered services, including programs on substance abuse, domestic violence, mental health, parenting and drug testing. In 2003, she was reunified with all but one child, D., who remained in long-term foster care. Within months of regaining custody of the children, however, Mother returned to an unstable lifestyle, exposing her children to domestic violence, physical abuse, substance abuse and mental illness. The family spent years living in the homes of friends and relatives.
Mother was arrested in February 2006 because she was under the influence of methamphetamine. In July 2006, she got drunk and did not return home for days. During 2006 she was using methamphetamine and alcohol and was unable to control her drug use. She sought a treatment program.
On December 17, 2006, police responded to the home of Mother’s mother (Grandmother), where Mother and her children had been staying. D., who was 16 years old, had been placed with Grandmother. Mother would leave the children there for days at a time and Grandmother believed she was using narcotics. Mother would yell at the children and degrade them. Mother and Grandmother had not been getting along and, on that particular night, they were arguing. Mother pushed Grandmother and she fell backward over a sofa. D. and Grandmother told Mother to leave the house. They eventually had to push her out and lock the door. When they would not let her back into the house, she became irate, breaking a window and kicking in the door. The children were frightened of her. When the officer arrived, he told Mother to leave for the night to calm down.
The next day, Mother returned to pick up the children. Grandmother refused to give her one of the children and threatened to call the authorities if Mother returned for the child. Mother called the police. When an officer arrived, he concluded Mother was under the influence of narcotics, although she denied it. She was arrested and the five children were taken into protective custody. D., who remained with Grandmother, told the officer he had seen drugs and drug paraphernalia in Mother’s room; he was sure she was using drugs.
On December 20, 2006, the Fresno County Department of Children and Family Services (the department) filed a juvenile dependency petition on behalf of the five children. Allegation a-1 alleged M. and B. had suffered serious physical harm as a result of being hit by Mother. The petition noted Mother had numerous prior referrals to the department for hitting M. and B. Allegation a-2 alleged that the other three children were at substantial risk of suffering harm by being hit by Mother. Allegation b-1 alleged Mother had a history of substance abuse and her relapses and failure to address her abuse placed her children at serious risk of harm. Allegation b-2 alleged Mother had a history of domestic violence that went unabated despite department treatment programs and placed her children at risk of serious harm. Allegation c-1 alleged Mother’s domestic violence placed the children at substantial risk of serious emotional damage.
N. was living with his father.
At the detention hearing, the court ordered “reasonable and supervised” visitation for Mother and the children. The court further ordered: “Under the facts [and] circumstances of this particular case, [it] seems to me it would be detrimental to visit if [the children] didn’t wish to visit. So I will order that visits only occur if they wish to, making a finding of detriment, if they didn’t wish to, because of the facts and circumstances.” When asked whether the court had ordered reasonable supervised visitation with Mother, the court answered: “I did, and unforced.” The court also ordered various services for Mother.
At the time of the jurisdictional hearing, Mother was actively involved in her case plan services. The court found the allegations in the petition true. Again, the court ordered that visitation would be one time per week and be unforced. The court stated the frequency and duration would be up to the department.
At the contested dispositional hearing, the juvenile court ordered that no reunification services be given to Mother. For B., J. and J., the court ordered supervised visits every other week. The court found visitation would be detrimental to M. because he was angry with Mother, possibly depressed, and did not wish to visit with her. He experienced a reasonable distrust of Mother. The court found visitation would be detrimental to K. due to distrust and betrayal issues. For these reasons, the court suspended Mother’s visitation with M. and K.
J. and J. were twins.
DISCUSSION
I. Reunification Services
Mother contends the juvenile court erred by denying her reunification services.
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) When a minor is removed from parental custody, the court must provide services designed to reunify the family unless one of several statutory exceptions applies. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845.) There is no general exception to the provision of reunification services; the court must find by clear and convincing evidence that one or more of the enumerations described in Welfare and Institutions Code section 361.5, subdivision (b) apply to a parent before it may deny reunification services to that parent. (§ 361.5, subd. (b)(1)-(15).) 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.) In this case, the juvenile court denied reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(13).
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
We review an order denying reunification services for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court’s order, and affirm the order even if there is substantial evidence supporting a contrary finding. The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 361.5, subdivision (b)(13) provides that reunification services need not be provided to a parent or guardian who “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.” The statute reflects “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 re Levi U., supra, 78 Cal.App.4th at p. 200.) Within the meaning of the statute, resistance to prior treatment for chronic drug abuse may be shown when the parent has participated in a substance abuse treatment program but continues to abuse illicit drugs. (Ibid.; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1008, 1009-1011 [drug treatment programs not effective in preventing relapse; continuing drug abuse despite participation in various treatment programs constitutes resistance]; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [completion of drug treatment program but “failure to maintain any kind of long-term sobriety must be considered resistance to treatment”]; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 [proof of resistance to treatment may “come in the form of resumption of regular drug use after a period of sobriety”].) The department “must show the parent underwent or enrolled in substance abuse rehabilitation, and during the three-year period before the petition was filed, engaged in conduct that demonstrated resistance to rehabilitation. Proof 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. [Citation.]” (In re Brian M. (2000) 82 Cal.App.4th 1398, 1402, fn. omitted.)
Mother admits she has a long-standing and chronic drug problem, but she maintains she has successfully completed drug treatment and even experienced a four-year period of sobriety before her first relapse in February 2006. She points out that at the time of the dispositional hearing, she was sober and actively involved in a treatment program. For these reasons, she contends the juvenile court erred by finding her resistant to treatment.
Mother misunderstands the concept. Good faith efforts are not enough. Even if she completed various treatment programs and stayed sober for four years, she resumed regular drug use after that period of sobriety. As we have explained, this qualifies as resistance to treatment under section 361.5, subdivision (b)(13). Mother’s conduct has demonstrated resistance to rehabilitation and has shown that reunification services would be a fruitless attempt to protect her children because her past failure to benefit from treatment indicates that future treatment also would fail to change her destructive behavior. Substantial evidence supports the juvenile court’s denial of services under section 361.5, subdivision (b)(13).
Having concluded the juvenile court had a statutory basis for denying Mother reunification services, we need not address the second statutory basis. (Randi R. v. Superior Court, supra, 64 Cal.App.4th at p. 72.)
II. Visitation
Mother argues the juvenile court’s visitation order was improper because it delegates to M. discretion over whether visitation will occur. Mother asserts the juvenile court further erred by finding that visitation would be detrimental to M. because he was angry with Mother.
When the court denies reunification services to a parent, it “may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.” (§ 361.5, subd. (f), italics added.) “[V]isitation is not integral to the overall plan when the parent is not participating in the reunification efforts. This reality is reflected in the permissive language of section 361.5, subdivision (f).” (In re J.N. (2006) 138 Cal.App.4th 450, 458-459, fn. omitted.) Whenever the court does order visitation, it may not delegate to a child the sole discretion to determine whether visitation will take place at all. Such an impermissible delegation of the juvenile court’s power is an abuse of discretion. (In re S.H. (2003) 111 Cal.App.4th 310, 317-318.) We review a visitation order made in a dependency proceeding for abuse of discretion and will not disturb the juvenile court’s decision unless an abuse of discretion clearly is shown. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In this case, the juvenile court’s earlier visitation orders suggest a certain amount of discretion placed in the children to decide whether they wanted to visit with Mother; however, the court’s ultimate visitation order made at the dispositional hearing plainly does not. At the dispositional hearing, the court denied Mother reunification services. The court therefore had discretion to permit visitation, but was required to prohibit visitation if it would be detrimental to the children. The juvenile court exercised its discretion by ordering visitation with B., J. and J. every other week, by specifically finding that visitation was detrimental to M. and K., and by suspending visitation with them. This was not a delegation of authority to M. and K.
Even if the court did delegate such power to the children at an earlier time, those prior visitation orders are no longer in force and thus any issues regarding them were rendered moot by the current orders, which do not suffer any such infirmities. (See In re Audrey D. (1979) 100 Cal.App.3d 34, 39, fn. 4. [we will not review questions that are moot and only of academic importance; no substantial rights can be affected by the decision either way]; In re Diana G. (1992) 10 Cal.App.4th 1468, 1483 [issue of visitation moot following termination of parental rights].)
We also note that ample evidence, including M.’s emotional feelings toward Mother, supported the juvenile court’s finding of detriment. Mother asserts that a child’s anger is not a basis upon which visitation can be denied, but a child’s emotional reaction to the parent is one factor among many that a juvenile court may consider in determining detriment to the child. (See, e.g., In re Danielle W. (1989) 207 Cal.App.3d 1227, 1233 [substantial evidence supported order giving department and children discretion as to visitation with mother, where court’s greatest concern was potential adverse emotional and psychological consequences of forced visits, and the evidence showed the children had reason to feel distrustful of and angry with mother].) The court did not abuse its discretion in suspending visitation with M. and K.
DISPOSITION
The juvenile court’s orders are affirmed.
WE CONCUR: Harris, Acting P.J., Hill, J.