Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. CK34145 Deborah B. Andrews, Judge.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford for Plaintiff and Respondent.
MANELLA, J.
Appellant Norma M. (Mother) appeals the juvenile court’s jurisdictional and dispositional orders, contending substantial evidence did not support the court’s jurisdictional findings or its finding that reunification services need not be provided due to Mother’s past actions that resulted in her loss of parental rights over at least three half-siblings of the minor who is the subject of the current proceedings. Mother further contends that the court erred in failing to consider whether the best interest of the child required provision of reunification services and in delegating excessive discretion over visitation to the Department of Children and Family Services (DCFS). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother gave birth to a baby girl, also named Norma, in March 2010. When baby Norma was born, she and Mother tested drug free. However, Mother had a lengthy history with DCFS. In 1998, her daughter Angelica was declared a dependent due to Mother’s “frequent” use of rock cocaine, which included use during her pregnancy. Two other children -- Antonio and Kimberly -- were detained after being born with positive toxicology screens in 2005 and 2006, respectively. In the proceedings that involved Antonio and Kimberly, the court found jurisdiction warranted by Mother’s “current” and “frequent” use of cocaine and/or amphetamine.
The baby was originally referred to as “Norma L., ” using the last name of Mother’s fiancé, Julio L., who was named father on the birth certificate. There was no dispute, however, that when Mother met Julio, she was already pregnant from her previous relationship with Adrian G. Initially, both Julio and Adrian sought presumed father status. Julio withdrew his request and the court ultimately named Adrian the presumed father.
Julio tested positive for methamphetamine on March 22.
The parties state in their briefs that Mother had two other children. The detention report identified two others: Travis, born in 2004, and Bobby, born in 2007, and further stated that Mother voluntarily gave custody of Travis to her sister and that Bobby was placed with his father. In a subsequent report, the name “Travis” is used in reference to the baby boy born in 2005 -- elsewhere referred to as “Antonio” -- who was the subject of dependency proceedings from 2005 to 2007.
Mother received reunification services after Angelica was detained, from October 1998 until April 1999. The nature of the services offered is not clear. Mother was not offered reunification services with respect to Kimberly. Whether she was offered reunification services with respect to Antonio and the nature of any such services offered is also unclear.
A DCFS caseworker visited shortly after Norma’s birth and found no signs of abuse or neglect of Norma or of substance abuse on Mother’s part. Mother, who was 30 at the time, admitted a history of substance abuse that began when she was 14 and included use of alcohol, marijuana, cocaine, and methamphetamine. She made contradictory statements about when she had last used drugs, stating both that it had been two years earlier and that it had been when she was two months pregnant with Norma. She said she had attended a substance abuse treatment program for a short period after the birth of her previous child, Bobby. Initially, Mother was not interested in attending a drug treatment program, expressing the belief she would be able to stay clean on her own. However, a few days later, at the behest of the caseworker, Mother admitted herself into an inpatient drug treatment program at His Sheltering Arms, which allowed her to keep the baby with her.
From the caseworker’s description, Mother’s living situation was far from ideal. She, Julio and the baby were living in a one-room dwelling that lacked a kitchen, refrigerator or hot plate. The day the caseworker visited, the room was dark, cluttered and dirty.
Julio also began a drug treatment program, as an outpatient.
In May 2010, DCFS filed a section 300 petition seeking jurisdiction over Norma. The petition alleged that Mother had a 16-year history of alcohol and drug abuse and that three of Norma’s siblings or half-siblings had received permanent placement services due to Mother’s substance abuse: Angelica, born in 1998, Antonio, born in 2005, and Kimberly, born in 2006.
DCFS did not detain Norma and did not seek a detention order. The “non-detained” report stated “it is in the best interest of the child that [the] court monitors [family maintenance services] as [M]other has a long history of failing to follow through with prior case plans” and “DCFS services are necessary to ensure[] that [the] parents are able to proper[ly] provide adequate care and supervision to meet the physical and emotional well being of the child. The risk for further abuse is high.” DCFS’s recommendation was to leave Norma in the custody of Mother on the condition that Mother and child reside in the drug treatment program for at least one year. At the hearing, counsel for Norma intervened and asked that the child be detained. The court agreed that there was a prima facie case for detention on the reported facts and ordered Norma detained in foster care.
In the June 2010 jurisdiction/disposition report, the caseworker stated that Mother had enrolled in a different drug treatment program, People in Progress, but the caseworker had no further information about the program or Mother’s progress. Adrian reported that when he met Mother, she was using drugs and drinking. He also stated that he had seen Mother a day prior to his interview with the caseworker and that she appeared to be drunk. In a later interview, he further reported that Mother had participated in a drug treatment program early in her pregnancy with Norma and did not use drugs for the first two months. However, she relapsed in the third month. Adrian subsequently saw Mother on the street while she was pregnant; she appeared to be under the influence of alcohol and/or drugs. Adrian’s sister, Rosa G., with whom Mother and Adrian had briefly lived while Mother was pregnant, stated that Mother arrived home drunk one day and that after Rosa asked her to move out, she saw Mother on the streets, apparently under the influence of drugs. Mother denied current use. Julio reported that Mother had used drugs and alcohol in the past, but he did not believe she was currently doing so. The caregiver who monitored parental visits with Norma reported that Mother was not very attentive to the baby during visitation, but that Adrian appeared to be attempting to develop a bond. In a supplemental report, the caseworker stated that Mother was not in an inpatient program, but again back living with Julio in the small, single room in which she had originally been interviewed. DCFS recommended no reunification services for Mother pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10), (11), and (13).
Shortly before this hearing, Adrian asked for custody of Norma for the first time.
Mother avoided being interviewed for this report.
DCFS recommended that Adrian be provided parenting classes and alcohol and drug testing. Undesignated statutory references are to the Welfare and Institutions Code.
At the September 13, 2010 jurisdictional hearing, the court found true under section 300, subdivision (b), that Mother had a 16-year unresolved history of alcohol and drug abuse, that three of Norma’s siblings or half-siblings had received permanent placement services due to Mother’s substance abuse; that Mother had failed to comply with a prior court-ordered substance abuse program or court-ordered random drug testing; that Mother had a criminal history of conviction for possession of a controlled substance; and that Mother created a detrimental and endangering home environment by allowing Julio to have unlimited access to Norma at a time when he was abusing drugs.
The dispositional hearing was held October 6, 2010. The court ordered no reunification services for Mother pursuant to section 361.5, subdivisions (b)(10), (11), and (13). The court found that Mother had attended a treatment program only briefly after Bobby was born, and “other than that, [M]other has not received treatment for her addiction to drugs” due to her perception that “she could remain clean and sober on her own.” The court further found that Mother had failed to reunify with other siblings or half-siblings, who had subsequently been adopted, that the reasons for the prior dependency proceedings were her drug use, and that she had not subsequently made reasonable efforts to treat the problem. The court placed Norma with Adrian, granted Mother monitored visitation and instructed DCFS to “help facilitate” a visitation schedule for Mother. Mother appealed.
DISCUSSION
A. Jurisdiction
In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving by a preponderance of the evidence that the minor comes under the juvenile court’s jurisdiction. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) On appeal from a jurisdictional order, “we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings.” (In re Veronica G., supra, at p. 185.)
The court found jurisdiction appropriate under section 300, subdivision (b). This provision permits the court to adjudge a child a dependent of the juvenile court where: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness... by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s... substance abuse.” Mother contends that substantial evidence does not support the court’s jurisdictional finding because she and Norma were drug free at the time of the baby’s birth and because Norma received appropriate care during the period she was in Mother’s custody. We disagree.
A true finding under subdivision (b) of section 300 requires proof of: “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “The third element... effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) In determining whether a risk of serious physical harm exists for purposes of subdivision (b), courts may consider “‘the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the minor or the minor’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.’” (In re Rocco M., supra, at p. 823, quoting § 300, subd. (a); accord, In re Janet T. (2001) 93 Cal.App.4th 377, 388.) “[P]ast harmful conduct is relevant to the current risk of future physical harm to a child....” (In re J.N. (2010) 181 Cal.App.4th 1010, 1025.)
The evidence demonstrated that Mother had engaged in a pattern of abusive conduct causing physical harm to other children and a substantial risk of harm to Norma. Mother admitted having a long-term substance abuse problem that began when she was a teenager. Although she provided contradictory statements in this regard, she admitted in one interview to having used illegal drugs during her pregnancy with Norma, and several witnesses confirmed seeing Mother under the influence during that pregnancy. At least three of Mother’s older children were born with amphetamine or cocaine in their systems. (See In re Monique T. (1992) 2 Cal.App.4th 1372, 1378 [where child born with dangerous drugs in his or her system, legal presumption arises that dependency jurisdiction is appropriate].) Although Mother was drug free when Norma was born and when subsequently tested by DCFS, she was not obtaining treatment, had never completed a treatment program, and was living with Julio, who tested positive for methamphetamine. The lack of treatment and association with current drug users supported the inference that she was unlikely to remain drug free for long. Indeed, by the time of the jurisdictional hearing, Mother had withdrawn from drug treatment and had been observed by Adrian under the influence of some substance, either drugs or alcohol. In short, the court’s conclusion that Norma was at substantial risk of injury due to Mother’s substance abuse problem was supported by substantial evidence.
The Legislature has specifically stated: “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.)
B. Reunification Services
Section 361.5, subdivision (a) provides that with certain exceptions, the court “shall order” DCFS to provide parent reunification services whenever a child has been removed from his or her custody. Subdivision (b) of section 361.5 creates a number of exceptions to that general rule. Under subdivision (b)(10), services need not be provided if the court previously ordered termination of reunification services for any sibling or half sibling of the child because the parent failed to reunify with that sibling or half sibling after he or she was removed pursuant to section 361, and the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling.” Subdivision (b)(11) similarly provides that reunification services need not be provided if parental rights over any sibling or half sibling of the child have been permanently severed, and the parent involved “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling.” Under subdivision (b)(13), the court must find that “the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”
“In enacting section 361.5, subdivision (b), the Legislature determined that, in certain situations, ‘attempts to facilitate reunification do not serve and protect the child’s interest.’” (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010, quoting In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) “‘Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]’” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744; accord, In re William B. (2008) 163 Cal.App.4th 1220, 1227.) We review for substantial evidence a juvenile court’s finding that a parent is not entitled to reunification services under section 361.5, subdivision (b). (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)
Mother contends that substantial evidence does not support the court’s findings that subdivisions (b)(10), (11), and (13) of section 361.5 apply. We find that substantial evidence supports the court’s findings under subdivisions (b)(10) and (11). Consequently, we need not consider the applicability of subdivision (b)(13).
Respondent contends the court’s actions in refusing to provide Mother reunification services were appropriate under section 361.2, subdivision (b)(3), which grants the court discretion, when placing a detained child with a non-custodial, non-offending parent, to withhold reunification services from the parent from whom the child was removed. As no party raised this provision below and the court did not refer to it, but instead made explicit findings under section 361.5, subdivision (b), we will not consider it for the first time on appeal.
The primary issue under subdivisions (b)(10) and (11) of section 361.5 is whether the parent made a reasonable effort to treat the problems that led to the removal of his or her other children. The “‘reasonable effort to treat’ standard... is not synonymous with ‘cure.’” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) “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.... 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.” (Ibid., citations omitted.) The statute provides an opportunity for a parent who has worked toward correcting his or her problems to have that fact taken into consideration in subsequent proceedings. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393; In re Harmony B. (2005) 125 Cal.App.4th 831, 843.) To be deemed sufficient, the parent’s efforts must be serious and substantial; “‘lackadaisical or half-hearted’” efforts will not support a finding of reasonableness. (K.C. v. Superior Court, supra, at p. 1393, quoting Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99.)
The evidence established that Mother had made no meaningful effort to treat the long-term substance abuse problem that led to removal of her older children in the years preceding Norma’s birth. She attended several programs briefly -- after Bobby’s birth, early in her pregnancy with Norma, when she was first contacted by DCFS after Norma’s birth, and after Norma was detained -- but there is no evidence to suggest she made substantial progress in any of them. She was observed to be under the influence of drugs and/or alcohol both during her pregnancy and after Norma’s detention. At the time of the disposition, she had dropped out of the residential treatment program and was residing with Julio. On this record, the court’s finding of “no reasonable effort” was adequately supported.
C. Best Interests of Child
Subdivision (c) of section 361.5 permits the court to order reunification services for a parent described in subdivisions (b)(10), (11), and (13) if it finds “by clear and convincing evidence” that “reunification is in the best interest of the child.” Mother contends that in denying her reunification services, the court erroneously failed to consider this provision. As respondent points out, however, once the court determines that subdivision (b) applies, the parent bears the burden of establishing that the best interest of the child supports reunification efforts. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66; accord, Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 492.) Mother did not raise this issue below and presented no evidence to support her contention that reunification would have been in Norma’s best interest. Moreover, Norma was in Mother’s custody for only a short period of time after her birth and from the caretaker’s reports, it appears that Mother was not attentive to the child during visitation. Accordingly, nothing in the record supports that Norma had a close bond with Mother or would have benefited from continuing the relationship. (See In re Ethan N., supra, at p. 67 [strength of relative bonds between child and parent and child and caretaker is important factor relevant to determination of child’s best interest].)
D. Visitation
The court’s final order provided monitored visits for Mother and instructed DCFS to “help facilitate [the] visitation schedule.” Citing In re Moriah T. (1994) 23 Cal.App.4th 1367, Mother contends that the court erred by placing excessive discretion over visitation in the hands of DCFS. Mother is mistaken. Moriah T. held that a juvenile court violates “the statutory scheme” and the “separation of powers doctrine” when it delegates “the absolute discretion to determine whether any visitation occurs.” (23 Cal.App.4th at p. 1374.) As long as the order is clear that regular visitation is to occur, however, the court may delegate to the applicable agency the power to determine the “time, place and manner” of such visitation. (Id. at p. 1375.) “[T]he frequency and length of visits are simply aspects of the time, place and manner of visitation” and “the juvenile court may grant to the county agency the discretion to determine the frequency and length of visitation ordered by the court.” (Id. at pp. 1376-1377.) “Requiring a disposition order to specify frequency and length of visitation compromises the ability of the county agency to fulfill its statutory mandate to supervise each case in a manner consistent with the child’s best interests. Visitation arrangements demand flexibility to maintain and improve the ties between a parent or guardian and child while, at the same time, protect the child’s well-being.... Thus, parties in a dependency proceeding should not be locked into a visitation order which specifies a rigid schedule and length of visits. Such an order is not in the best interests of either the child or the parent or guardian because it fails to allow the flexibility necessary to rapidly accommodate the evolving needs of the dependent child and his or her parent or guardian.” (Id. at p. 1376.)
The court’s order granted Mother visitation, but left to DCFS the determination of the time, place, manner and frequency. If DCFS is misinterpreting the order and Mother is receiving no visitation or no regular visitation, she may bring the matter to the attention of the juvenile court.
DISPOSITION
The orders are affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.