Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J05207.
NICHOLSON, Acting P.J.
Infant minor M.S. appeals from the juvenile court’s dispositional order removing him from the custody of mother (H.S.), but granting her reunification services. The minor contends the court should have denied services because mother failed to reunify with his siblings in a prior proceeding or to cure the drug problem that led to the prior dependency. (Welf. & Inst. Code, § 361.5, subds. (b)(10), (b)(13).)
All further undesignated statutory references are to the Welfare and Institutions Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2009, the San Joaquin County Human Services Agency (Agency) filed a section 300 petition as to the newborn minor, alleging:
Mother tested positive for amphetamines, methamphetamine, and marijuana just after the minor’s birth. She admitted to using methamphetamine and marijuana the day before giving birth. Her drug use severely impaired her ability to care for the minor. She failed to obtain prenatal care while pregnant with the minor.
The minor’s siblings, S.M. (born in 2002) and E.S. (born in 2004), were removed from mother’s custody after she tested positive for amphetamines, methamphetamine, and marijuana while giving birth to E.S. Mother failed to reunify with them, and the maternal grandmother became their legal guardian in 2007.
Mother had a criminal record and history including petty theft and hit-and-run with property damage.
Mother had participated in drug rehabilitation, but had been unable to resolve her drug dependence.
Mother was homeless throughout most of her pregnancy and only recently moved in with the maternal grandfather. She had no means of support and could not provide stability for the newborn minor.
The whereabouts and circumstances of the alleged father, R.P., were unknown.
On July 1, 2009, the juvenile court ordered mother to participate in a drug rehabilitation program called “Parental Recovery Options Plan I.”
On July 14, 2009, at the jurisdictional hearing, mother submitted on the section 300 petition (with one minor amendment), and the juvenile court sustained the amended petition.
The dispositional report, filed August 17, 2009, recommended out-of-home placement with reunification services for mother. The report stated:
The alleged father’s whereabouts remained unknown. The minor was placed with the maternal aunt, J.S., and her female partner, M.S., whose home had been assessed and found appropriate.
Mother reported that for the last nine years she had lived mainly with her father. She had had her own apartment from November 2008 to April 2009, but acted as her father’s primary caretaker while he recovered from surgery.
Mother, who was 35 years old at the time the dispositional report was filed, began using methamphetamine and marijuana in high school, after becoming depressed due to a close friend’s accidental death. She had struggled with depression and unresolved grief and loss ever since.
Mother and the father of her oldest child had had an off-and-on relationship for some years, but were currently just friends. She was not in a romantic relationship now and believed she should focus on herself and her recovery.
Since July 3, 2009, mother had resided at El Dorado House, a residential drug treatment facility, where she was participating in all aspects of the program. She visited the minor every week and acted appropriately during visits, which had recently been moved to El Dorado House; the visits had increased to two hours per week, and could increase further if the facility’s staff recommended it. She “really ‘want[ed] to keep this baby.’”
In the social worker’s view, mother was now willing to take the necessary steps to change her life. She recognized that she alone was responsible for what had gone wrong and was “aggressively tackling the hard issues that led to her long[-]term drug abuse.” Although her prognosis remained guarded, mother deserved “the second chance that just might be the turning point for her.”
On September 9, 2009, over objection of the minor’s counsel, the juvenile court granted the Agency’s request to expand mother’s visitation from two to six hours per week pending the contested dispositional hearing.
At the contested dispositional hearing, which took place on September 25, 2009, and October 28, 2009, the minor’s counsel opposed services for mother. Counsel asserted that, having been counsel for the minors in the prior dependency, she was familiar with mother’s history of addiction and failures in drug treatment, and her “manipulative” character. Given her history and character, it was foreseeable that, if not denied services, mother might obtain custody of the minor by performing well in the residential part of rehabilitation, then relapse and “dump” him with relatives.
To support her position, counsel called several of mother’s relatives and prior drug counselors as witnesses. Mother, a drug counselor at El Dorado House, and the social worker gave opposing testimony.
Testimony
Rosemary Gomez, a substance abuse counselor, testified that she counseled mother in the Parental Recovery Options Program (PROP) beginning on December 19, 2005. Mother was assigned to “PROP II” after failing in “PROP I” (in which she had been enrolled since 2004) due to noncompliance with the recommendations of her case manager. Gomez requested mother’s termination from PROP II on May 30, 2006, because she had failed to participate in several recommended outpatient programs. After that, mother was ordered to report to El Dorado House for inpatient treatment, but did not do so. During this period, mother failed to appear for dependency drug court four times. Even if mother were now testing negative and complying with a treatment program, it would not change her prognosis, because she had done that before and it did not last.
Catherine Cotraro, who counseled mother in PROP I starting in July 2004, testified that mother completed the six-month residential phase of a program called Family Ties, but failed to complete the required six-month aftercare and was discharged in September 2004. At that point she was “rolled over to PROP II Drug Court, ” where counselor Gomez took over the case. El Dorado House (where mother was now) had “stricter rules” than Family Ties.
G.S., the maternal grandfather, testified that mother and the older minors had lived with him for a while starting in 2005, after she left a residential program, but eventually she had to move out because she had relapsed in her drug use. While she was with him, she would sometimes disappear for days at a time, abandoning the minors; she could briefly be a good mother, but as soon as she started seeing her drug-world friends, it all went downhill again. He loved her and wished she could “straighten out, ” but she never did. She had never financially supported her children or herself, instead relying on him for money. She borrowed from him to rent an apartment, then lost it in a couple of months. So far as he knew, she did not have housing, work, or transportation now. She was still seeing old friends from the drug world. Nothing she said could be trusted because she lied all the time. He had not talked to her for two or three months and did not know anything about her current treatment program.
R.A., the maternal grandmother and guardian of the older minors, testified that mother regularly and timely visited them during the first two months of the guardianship, but after that came late or not at all. Mother had not seen them for a year. R.A. said mother had tried in the past to resolve her drug and alcohol problems, and had done “okay” for a couple of months after getting out of rehab, but then was supposed to look for a job and did not find one. She did not act as a proper parent to the older minors, yelling at them or rebuffing them when they sought her attention. She lacked patience and would rather be around her friends than her children. She was not credible because “[s]he makes up a lot of stories and believes them.” She had not taken responsibility for her actions since her best friend in high school was killed in an accident and she started doing drugs and drinking.
R.A. knew that mother had not had a car since then.
R.A. felt it would not be a good idea to allow mother to get the infant minor back because he needed to be taken care of and “not taken from place to place or left with different people.” However, if she could “fix herself first” by solving her drug and alcohol problems, it might be different. Mother was capable of working and taking responsibility under the right circumstances and should be given the opportunity to complete a drug program. But even if she did so, R.A. would not support having the infant minor placed with her.
Under further questioning, R.A. said she did not think mother should receive custody of the infant “at this moment” (which R.A. seemed to think was what “reunification” meant). If mother “gets help and better [sic], that’s a different story.” However, R.A. did not think mother would be able to resolve her problems in the next six or 12 months.
J.G., mother’s aunt, had observed mother with the older minors and did not think she was a good parent. She got impatient and angry with them; she also broke promises to them. At family functions, she always became disruptive, caused problems, and upset the minors. J.G. had been optimistic when mother was in Family Ties, but mother failed to follow through on getting a job and housing. If she said things would be different this time, J.G. would not believe her. J.G. had not seen mother since the previous summer.
If mother were in a drug program and completed the aftercare phase, J.G. would feel that mother should have “[s]ome level of contact” with the infant minor. J.G. believed mother was trying to get clean now. Mother was a different person and a different parent when she was clean and sober and had not been drinking. J.G. wanted mother to “get herself straight, ” and “if she gets her baby back, wonderful, ” but she could not take care of a baby now. In J.G.’s opinion, she would not be able to do it in six or 12 months, either (although “maybe” she could in two years).
Mother admitted her history of relapses in drug treatment, but testified that she was doing better this time because she was “not blaming anybody else” or lying about anything: she was blaming herself and asking for help. In the past, she had not gotten all the help she needed, especially in terms of support from her family. But now at El Dorado House she could seek a sponsor, do vocational training, and learn about herself. She intended to keep doing whatever she needed to do to get better.
When she left El Dorado House, she intended to go to a shelter; she had already put in an application. She also intended to get her GED (general equivalency diploma) and to start taking “medical classes.”
She did not agree that she had been a bad parent to the older children, but admitted she had not recently called them, written to them, or given them birthday cards and Christmas presents. She had gotten into the habit of lying to her family, but only because they did not believe her when she told the truth. She had not yet tried to make amends with them, but she would sometime; that was the eighth step in Alcoholics Anonymous (AA) and she was still working on the first. She denied getting anyone to forge AA/[Narcotics Anonymous] (NA) attendance slips for her.
She began using drugs 17 years ago, when she was in high school and her best friend was killed, and used them almost continuously since then. However, she stayed clean and sober for five months at some time the previous year, before she became pregnant. Her family was her substance abuse “trigger, ” because they always wanted to argue with her, never believed anything she said, and saw her as a failure. They had disbelieved her when she told them her stepfather had molested her, until approximately 10 years later when her sister told them he had also done it to her.
She had not visited the older minors in the last year only because she had no way to get there. Every time she had come before, the children would say, “[G]randma tells us that you don’t love us.” That was not true. She still hoped to get them back, though it would take time.
She had two months left in the El Dorado House residential program, ending on December 31, followed by three months of aftercare during which she would have to go back twice a week for testing. She had no dirty drug tests in the program. She was written up once because she went out on a pass with a friend and got separated from her, in violation of the rules; she tested negative afterward. The residential program had seven phases, and she was in the last or “elder” phase, where she supported others and acted as a role model. She completed her parenting program there. She would start personal counseling the next week.
She now had six-hour unsupervised visits with the infant minor every Sunday. He smiled all the time during the visits.
She was good friends with A.M., the father of the older minors. He was sober and working with NA. He supported her in her program. The infant minor’s father, on the other hand, wanted nothing to do with the infant or the dependency case.
Tammy Wine, a senior counselor at El Dorado House, corroborated mother’s account of her progress there. Mother was not only an “elder, ” but a “core member” who functioned as a liaison between staff and clients. Mother was eligible for overnight visits with the infant minor, and the staff supported them.
Social worker Lianne Willey testified her initial interview with mother and her review of mother’s old Child Protective Services file convinced her mother could be successful with a second chance at recovery. Willey supervised three or four of mother’s visits with the infant minor and thought they went very well: he recognized her, was comfortable with her, reached out toward her, and knew her to be a caretaker. Mother had drug tested regularly in her current program and had not had a dirty test or missed an appearance. When Willey wrote in August 2009 that mother’s prognosis was “guarded, ” it meant that if she continued as she was going, the prognosis was good, but “[i]f it fell apart, it fell apart”; as of now, Willey would revise the prognosis to “good.” In other cases where Willey recommended denying services for failure to reunify with other minors, there had been numerous failures, whereas here there had been only one; furthermore, unlike in those other cases, mother’s attitude showed she wanted to change and was ready to do it.
Willey admitted that her dispositional report had summarized mother’s prior failures in drug treatment without mentioning every specific program mother failed.
The Court’s Ruling
After hearing argument, the juvenile court ruled as follows:
“Okay. I looked at the previous file and I also looked at the beginning of this particular case and we can always look at whether or not someone has made reasonable efforts. We can view it from different perspectives as to what the code section says. You know, I looked back at this file and as all counsel knows, whenever we are at detention and I ask whether or not somebody voluntarily wants to come under the jurisdiction of drug court, it is not a mandatory situation. At that time the parent has the opportunity to say yes or no until we get to the actual jurisdictional hearing and I determine jurisdiction. Whether it’s at a subsequent hearing that may be 2 or 3 weeks away or whether it’s a contested hearing that is scheduled some time later.
“In this particular file, I’ve looked back and mother came under the Court’s jurisdiction voluntarily on the first day of detention. I’ve heard what’s been said here today and I also recognize people can be very manipulative, okay. We can be nice. We know what to say when we need to say it. We tell the judge those things we think the judge wants to hear. We can look right. We can act right. We can do all of those things and figure that that’s going to make it and get us across. So I’ve been around the block a couple of times. I can also recognize that when someone may be attempting to do that. Or if I don’t recognize it, as I tell all the folks in drug court, it’s one chance, you only have one opportunity to mislead me and if that happens, then from then on it’s over, our relationship has been changed dramatically.
“I think there’s been a change in [mother] but I think it’s a working change. I think she’s just starting to do that. I’m not going to place the child with her. I’m not even going to order overnights at this point. But I am going to order services. I think she has to work on this. She has to prove to herself and to this Court that the Court should look beyond the period of time that she’s going to be directly under the support of El Dorado House.
“And we can start taking a look at some advance visitation after. In light of her previous history, I’m not going to allow for overnights at El Dorado House. And I’m not going to allow for placement at El Dorado House, even though I know that can occur, okay.
“But I am going to allow for services to look at potentially you getting your child back, okay. And so this way we don’t get into manipulation. This way I end up seeing that you’re really -- what you’re telling this Court and what you’ve told this Court that you’re now upfront and honest with yourself and with all of us here and that you are ready now to be a mother and a parent and a responsible person at that.”
DISCUSSION
The minor contends the juvenile court erred by ordering reunification services for mother because she was not entitled to services under section 361.5, subdivisions (b)(10) and (b)(13), and clear and convincing evidence did not show that reunification was in the minor’s best interest. The court did not err.
Reunification services are normally offered to parents whose children are removed from their custody, so as to eliminate the conditions leading to custody and to further the goal of preserving the family whenever possible. (§§ 361.5, subd. (a); In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, the juvenile court need not offer reunification services if clear and convincing evidence shows that conditions exist which would make it futile or detrimental to the minor to attempt reunification. (§ 361.5, subds. (b)(2)-(b)(15), (e)(1); In re T.M. (2009) 175 Cal.App.4th 1166, 1171-1172.) Two such conditions were alleged here: (1) The court previously terminated reunification services to mother for the minor’s siblings or half siblings because mother failed to reunify with them, and she had not subsequently made a reasonable effort to treat the problems causing their removal (§ 361.5, subd. (b)(10)), and (2) Mother had a history of extensive, abusive, and chronic use of drugs or alcohol, resisted prior court-ordered treatment during a three-year period immediately prior to the filing of the section 300 petition in this proceeding, and failed or refused to comply with a substance abuse treatment program at least twice before. (§ 361.5, subd. (b)(13).)
But even if there are grounds for denying services under section 361.5, subdivision (b), the juvenile court may nevertheless order services if it finds by clear and convincing evidence that reunification is in the child’s best interest. (§ 361.5, subd. (c).)
“If the evidence suggests that despite a parent’s substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so. Court must keep in mind that ‘[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.’ [Citation.] The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. To the contrary, the primary focus of the trial court must be to save troubled families....” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464, original italics.)
“The juvenile court has broad discretion to determine what would best serve and protect the child’s interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion. [Citation.]” (In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.) Even where the juvenile court was required to apply the clear and convincing evidence standard, we do not apply that standard on appeal; rather, we view the evidence most favorably to the court’s order and uphold the order if substantial evidence supports it. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
The juvenile court here impliedly found reunification would be in the minor’s best interest if mother could continue on her present path, and offering mother reunification services was reasonably likely to keep her on that path. Mother’s testimony and that of her supporting witnesses, which the court found credible, constituted substantial evidence that for the first time she was properly motivated to rehabilitate herself and had taken substantial steps toward that goal. Under section 361.5, subdivision (b)(10), a parent need not show that she has cured her substance abuse problem, merely that she has made reasonable efforts to treat it. (See Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1464.) Mother’s voluntary self-commitment to dependency drug court at the earliest opportunity and her subsequent progress at El Dorado House showed that she was now making such efforts.
The court, well aware of mother’s long history of addiction, relapses, and shortcomings in parenting, exercised due caution by not granting her the increase in visitation her counselors and the social worker recommended. The court’s remarks also showed its intent to keep a close and skeptical eye on mother’s efforts in the future.
It is true, as the minor says, that substance abuse is hard to overcome and mother had repeatedly failed to do so. However, the juvenile court declared it would not ignore any future lapse by mother and she still had to prove she could continue to progress outside El Dorado House.
The minor relies on In re Ethan N. (2004) 122 Cal.App.4th 55, in which the appellate court held that an order granting reunification services was not in the minor’s best interest, despite the mother’s progress in resolving her substance abuse problems. However, that case turned on a fact not present here: the mother’s neglect had caused the death of the minor’s half sibling. (Id. at pp. 64-68; § 361.5, subd. (b)(4).) The court found inapplicable the premise that juvenile courts should try to save child-parent relationships if possible (Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1464) because Renee J. v. Superior Court addressed only section 361.5, subdivision (b)(10): “[S]ection 361.5, subdivision (b)(10)..., unlike subdivision (b)(4), makes the parent’s successful efforts at overcoming the problems that led to removal of a sibling a barrier to denial of reunification with another child. In that sense, subdivision (b)(10) is not so far along on the continuum of legislative response to child abuse as is subdivision (b)(4).... [¶] In the end, what we come back to is the enormous hurdle faced by a parent seeking reunification with a child after previously causing the death of another by abuse or neglect.... [¶] The cases in which a parent who has been responsible for the death of a child through abuse or neglect will be able to show that reunification will serve the best interest of another child... will be rare.” (In re Ethan N., supra, 122 Cal.App.4th at p. 68.) Because our case does not involve subdivision (b)(4) of section 361.5, the court’s conclusion in In re Ethan N. that the juvenile court had not applied the correct standards to examining the question of the minor’s best interest in light of subdivision (b)(4) (In re Ethan N., supra, at p. 68) is irrelevant.
The minor also relies on In re William B. (2008) 163 Cal.App.4th 1220, in which the appellate court reversed an order granting reunification services to the mother despite the applicability of section 361.5, subdivision (b)(13). However, that case is distinguishable on its facts.
In In re William B., The minors, who were nine and five years old respectively, were removed from their parents’ custody due to the parents’ substance abuse three times, and from the mother’s sole custody an additional time. (In re William B., supra, 163 Cal.App.4th at pp. 1223-1224, 1228.) Not only had the mother repeatedly resisted court-ordered drug treatment within the three years preceding the latest removal, but she was apparently still not making any effort to undergo or seek such treatment. (Id. at pp. 1223, 1226.) Finally, the juvenile court “improperly focused on the children’s love for their mother rather than any realistic chance they would find permanency and stability with her.” (Id. at p. 1223.) Because our case differs materially in all of those respects, In re William B. is inapposite.
Lastly, the minor relies on this court’s decision in In re D.F. (2009) 172 Cal.App.4th 538, upholding the denial of reunification services to the father under section 361.5, subdivision (b)(3) (removal of a child from a parent’s custody due to physical or sexual abuse). (In re D.F., supra, 172 Cal.App.4th at pp. 544-548.) However, we there concluded the juvenile court acted properly because father did not admit any abuse or acknowledge any need to change, and the minor, who suffered severe trauma, wished to remain with his current caretaker and avoid the father as much as possible. (Id. at p. 547.) As there are no such facts in our case, In re D.F. is also inapposite.
DISPOSITION
The judgment (order granting reunification services) is affirmed.
We concur: ROBIE, J., MAURO, J.