Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. EJ02199E-F, Martin W. Staven, Judge. (Retired Judge of Tulare Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
McDONALD, Acting P. J.
Jaqueline S. appeals dispositional orders denying her reunification services in the juvenile dependency cases of her daughters, S.C. and L.C. (together, the children). She contends the court erred by finding she had not made reasonable efforts to treat the problems that led to removing two of her other children from her custody and the subsequent termination of her reunification services and parental rights to those children. She also asserts the court abused its discretion by determining it was not in the children's best interests to provide services to her. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2010 S.C. and L.C. were taken into protective custody and Jaqueline was arrested when methamphetamine was found in her purse while she was shopping with S.C. at a grocery store. She said three-year-old S.C. and six-month-old L.C. lived with their father, Timothy C., and that morning she had picked up S.C. from him, then left her with a friend while she went to buy methamphetamine. She said she had planned to use some of the drug and to sell the rest. She returned to get S.C. and drove with her to the store, then inadvertently left her purse in the store bathroom, where it was discovered with the methamphetamine and a pipe inside. She admitted using methamphetamine the previous night.
Jaqueline has four older children who are not in her care. A relative assumed guardianship over the two oldest children. After dependency proceedings regarding the two others, Jaqueline's parental rights were terminated and the relative adopted those children. Timothy said he cared for S.C. and L.C. full time and Jaqueline visited them once each week.
Jaqueline admitted she had been using methamphetamine for approximately 11 years. In November 2006, after she had admitted using methamphetamine while pregnant with S.C., she was offered voluntary services, but did not participate in the services offered. While she was pregnant with L.C. in October 2009, she admitted using methamphetamine and tested positive for the drug. She enrolled in the KIVA Women and Children Family center (KIVA) residential substance abuse program, completing it in March 2010, but she admitted using methamphetamine just after graduating from the program. Jaqueline said her substance abuse is triggered by her untreated mental health issues.
On June 15, 2010, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of S.C. and L.C. under Welfare and Institutions Code section 300, subdivision (b), alleging Jaqueline's substance abuse placed them at substantial risk. The court ordered the children detained and ordered supervised visits for the parents. At Jaqueline's request, the court referred her to substance abuse treatment and to the dependency drug court program.
Statutory references are to the Welfare and Institutions Code.
After Jaqueline was released from custody, the social worker asked her to submit to drug testing, but Jaqueline did not drug test. She did not attend drug court and the court issued a warrant for her arrest. Jaqueline told the social worker she was on a waiting list for two residential substance abuse treatment programs, but staff at those programs had not heard of her. Then, she had a screening appointment for the program at North County Serenity House (Serenity House), but she did not attend the appointment. She subsequently began treatment at Serenity House, but left after two days. In October she arranged to return to KIVA, but did not arrive for her appointment. The social worker reported Jaqueline had little contact with the Agency and did not return the social worker's telephone calls.
At the jurisdictional hearing on October 13, 2010, the court found the allegations of the petitions to be true. At the dispositional hearing on October 22, the social worker recommended denying reunification services for Jaqueline. The social worker testified Jaqueline had not successfully dealt with her substance abuse problems in the past, and she did not comply with the treatment programs to which she had been referred after S.C. and L.C. were taken into protective custody. The social worker said S.C. had difficulty adjusting to foster care. During visits the children were excited to see Jaqueline, sometimes S.C. cried at the end of visits, and at the end of one visit, Jaqueline cried and S.C. tried to comfort her.
After considering the evidence and argument by counsel, the court removed custody of the children from Timothy and ordered reunification services for him. The court found Jaqueline was the noncustodial parent and it would be detrimental to place the children with her. It denied services for Jaqueline under section 361.5, subdivisions (b)(10) and (11). It found she had not made reasonable efforts to treat her drug abuse problems and it would not be in the children's best interests to order reunification services for her.
DISCUSSION
I
Jaqueline contends the court erred by denying her services under section 361.5, subdivisions (b)(10) and (11), because the Agency did not prove she had not made reasonable efforts to treat the problems that led to removal from her custody of two of her other children and the subsequent termination of reunification services and parental rights to those children.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
It is presumed in dependency cases that parents will receive reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95.) "Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5 subdivision (b)." (Ibid.) In In re Joshua M. (1998) 66 Cal.App.4th 458, 467, the court stated:
"Notwithstanding the crucial role of reunification services when a child is removed from the home [citation], the Legislature, by enacting section 361.5, subdivision (b), has discerned '... it may be fruitless to provide reunification services under certain circumstances.' "
Section 361.5, subdivision (b)(10), provides reunification services need not be provided when the court finds by clear and convincing evidence:
"That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
Section 361.5, subdivision (b)(11), provides reunification services need not be provided to a parent when the court finds by clear and convincing evidence:
"That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling...."
Jaqueline concedes the first prongs of section 361.5, subdivisions (b)(10) and (11) were met. Two of her older children were removed based on her inadequate supervision, substance abuse, possession of drug paraphernalia, and lack of stable housing. Reunification services were provided, but Jaqueline did not remedy the problems that led to those children's removal. In November 2003, the court terminated her services and in May 2004, terminated her parental rights.
Substantial evidence supports the court's finding that Jaqueline did not make reasonable efforts to treat the problems that led to the siblings' removal. Although Jaqueline had made some attempts to refrain from substance abuse during the past years, she always returned to using methamphetamine. She admitted using the drug during her pregnancies with S.C. and L.C. and admitted using it just after she left the KIVA treatment program. At the time she was arrested, she said she typically used methamphetamine three to four times each week. She admitted she had recently purchased methamphetamine, had driven while under the influence of the drug while S.C. was in the car, and planned to sell some of the methamphetamine she had bought.
After S.C. and L.C. were detained, the social worker, at Jaqueline's request, referred her to substance abuse treatment and drug court. However, Jaqueline did not follow the social worker's instructions to drug test and she did not attend the drug court hearing. She said she had contacted two residential treatment programs, but staff there had no record of her. She then enrolled in the Serenity House program, but left after only two days, saying its location was too far from the court. She said she would begin the KIVA program again, but she did not enroll.
Jaqueline also had not addressed her mental health problems. She said her depression and anxiety triggered her methamphetamine use, but there was no evidence she had sought psychological or psychiatric help after she left KIVA in March 2010. Although she had been provided with referrals to help her obtain stable housing, she remained homeless.
Jaqueline's argument that the social worker erroneously recommended denying her services based on the children's positive tests for methamphetamine is unfounded. After the children were taken into protective custody, the social worker reported tests for methamphetamine were presumptively positive and confirmatory tests were pending. When the confirmatory tests showed negative results, counsel for the Agency informed the court the tests were negative. At the September 15, 2010, hearing, at the Agency's request, the court struck the allegations the children had positive methamphetamine tests, which was count two of the petition. Although at the jurisdictional hearing on October 13, the court stated it found counts one, two and three true, the minute orders from that hearing correctly note there were true findings only on counts one and three. The same judge presided at the September 15 and October 13 hearings and presumably did not base its order that services would not be ordered for Jaqueline on its misstatement at the October 13 hearing.
We also are not persuaded by Jaqueline's argument that because some Agency reports did not mention she was taking Valium under a doctor's prescription, the court mistakenly based the denial of services on the fact she tested positive for Valium at S.C.'s birth. There were numerous factors on which the social worker based her recommendation to deny services and no evidence the court improperly relied on Jacqueline's Valium use.
We reject Jaqueline's argument the court overlooked the good care she had provided to the children. There had been previous referrals to child welfare services before the children were taken into custody. The court could reasonably find Jaqueline's methamphetamine use had caused her not to take good care of them. We also find unpersuasive Jacqueline's argument that the court applied the wrong legal standard in denying her services by penalizing her for not overcoming her drug addiction instead of considering her efforts to treat it. The court properly considered whether Jaqueline had made reasonable efforts to overcome her drug addiction. It looked at her history of resuming drug use after treatment and her recent record of not participating in treatment. The court emphasized Jaqueline's lack of consistent effort. It stated:
"The other issue is whether there had been reasonable efforts. Not even close. She's made efforts from time to time, but not -- she just didn't make a reasonable effort. And here we are, like, in October where she was going to go to a program and didn't make it."
Jaqueline has not shown the court applied an incorrect standard in denying her reunification services.
Jaqueline claims there were barriers to her making reasonable efforts. She complains the social worker did not ask her for verification of her attendance at Narcotics Anonymous (NA) meetings and then reported she had not provided attendance slips, and the social worker did not help her resolve a bench warrant issued when she did not attend drug court. She also claims the social worker did not give her referrals to help her address her homelessness and vetoed her plan to re-enroll in KIVA. These claims are unfounded. The social worker testified that in July 2010 she had asked Jaqueline to attend NA and provide verification of her attendance. Although she did not subsequently ask Jaqueline to verify that she had attended meetings, it is reasonable to assume Jaqueline would have provided verification had she attended. Further, it is unclear how the social worker being unhelpful with the bench warrant prevented her from entering treatment, and the social worker did provide her with referrals that included referrals for housing. As for the social worker not supporting her plan to re-enroll in KIVA, because Jaqueline had resumed her methamphetamine use just after she completed the KIVA program in March 2010, the social worker may have believed attending KIVA again would not benefit her. In any event, the social worker's opinion did not prevent Jaqueline from participating in KIVA or another treatment program.
Substantial evidence supports the court's finding under section 361.5, subdivisions (b)(10) and (11), that Jaqueline had not made reasonable efforts to treat the problems that led to removal from her custody of two of her older children and the subsequent termination of her reunification services and parental rights to those children.
II
Jaqueline also asserts the court abused its discretion by determining it was not in the children's best interests to provide services to her.
If the court determines that no reunification services will be provided because the parent is described by one of the exceptions of section 361.5, subdivision (b), "[t]he burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) The juvenile court has broad discretion to determine whether further reunification services would be in a child's best interests. (Id. at p. 1229.) "[T]he juvenile court is vested with a 'very extensive discretion in determining what will be in the best interests of a child, ' and... its determination will not be reversed save for clear abuse of that discretion. [Citation.]" (In re Eric B. (1987) 189 Cal.App.3d 996, 1005.)
Jaqueline has not shown the court abused its discretion. She continued to use methamphetamine after losing custody of her other children, she endangered S.C. when she drove with her in the car while she was under the influence of the drug, and, although she enrolled in treatment, she left after only two days. She had relationships with the children and S.C. was sad when visits ended, but the court could consider the evidence that S.C. was acting in the role of a parent in determining whether ordering services for Jaqueline would be in S.C.'s best interests.
As to Jaqueline's argument the court should have ordered services for her because it ordered services for Timothy, services may be ordered for one parent and not ordered for the other. (In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) "The court's determinations regarding whether to offer services, and which particular services to offer, are necessarily made as to each parent individually." (Ibid.) Jaqueline has not shown an abuse of the court's discretion.
DISPOSITION
The orders are affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.