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In re S.S.

Court of Appeals of California, Fourth District, Division Two.
Nov 7, 2003
No. E033249 (Cal. Ct. App. Nov. 7, 2003)

Opinion

E033249.

11-7-2003

In re S.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L. S., Defendant and Appellant.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. William C. Katzenstein, County Counsel, and Julie A. Koons, Deputy County Counsel, for Plaintiff and Respondent. Harry Zimmerman, under appointment by the Court of Appeal, for Minor.


D.S. (mother), the mother of S.S., who is presently seven years old, appeals from a dispositional order denying her reunification services. Father is not a party to this appeal. He was granted reunification services even though he is incarcerated in state prison with an anticipated release date in December 2003. On appeal, she contends that the court abused its discretion in denying her services. We disagree and affirm.

PROCEDURAL HISTORY AND FACTS

S.S. was born exposed to methamphetamine. Mother admitted using methamphetamine during the pregnancy and the night before S.S. was born. Mother had a 10-year history of methamphetamine abuse dating from age 19 when she joined the carnival. She also had a criminal history for drug possession, assaulting the father of her second son with a car, and theft related offenses.[]

Mother has two older sons by different fathers who are not the subject of this appeal. The oldest lives with his father. The second has lived with the maternal grandparents under a voluntary guardianship since 1992.

The Riverside County Department of Public Social Services (DPSS) filed a petition on behalf of S.S. under Welfare and Institutions Code section 300, subdivisions (b) and (g).[]

All further statutory references are to this code unless otherwise stated.

On September 19, 1996, the court sustained the petition and found that S.S. came within the provisions of section 300, subdivision (b). The court ordered that S.S. be placed with mother in a residential substance abuse program.

Mother left the first program due to S.S.s health problems. She tested negative for two months. In January 1997, mother enrolled in another program but was discharged from the program due to noncompliance.

A section 387 petition was filed due to mothers discharge from the program.

By April, 1997, mother had enrolled in another program, and S.S. was returned to her care. The 387 petition was dismissed.

The court held the required periodic review hearings. At the review hearing held on May 14, 1998, the court terminated the dependency.

From 1998 to 2002, DPSS received a number of referrals alleging that S.S. was a neglected child. Mother interred into a voluntary services agreement with DPSS, but promptly moved away leaving no way for DPSS to contact her. Thereafter, for a period of about one year, mother left S.S. to live with the maternal grandmother

Starting in 2001, mother began use of methamphetamine again. Mother was convicted of felony possession of methamphetamine in March 2002, but was diverted to a Proposition 36 drug program. She failed to comply with the program, and a warrant issued for her arrest.

By December 2002, S.S. had left her grandmothers home and began residing with mother again. DPSS received a referral based on S.S.s living conditions and because she had a lice infestation.

On December 10, 2002, the social worker and a deputy sheriff went mothers residence to investigate. They discovered mother and S.S. driving away. The officer effected a stop. Mother was arrested on the outstanding warrant and searched. In the pocket of the shirt she was wearing was a baggie with a very small amount of methamphetamine, possibly only residue. She claimed that she had obtained the shirt from a storage area and did not know that the baggie was in the pocket. Mother appeared to be under the influence, but was never charged with that offense.

DPSS filed a new petition on December 12, 2002, alleging that S.S. came within subdivisions (b) and (g) due to mothers drug use and fathers incarceration. S.S. was detained with a maternal aunt and her husband.

Mother admitted her return to methamphetamine use during 2001, the summer of 2002, and in December 2002. She explained a positive drug screen for marijuana stating that she had taken three hits for shoulder pain relief. She claimed a five-year period of sobriety during and following the prior dependency.

DPSS recommended that no reunification services be provided for mother.

A contested hearing was held. At the conclusion of the hearing the court sustained the petition and declared S.S. to be a dependent of the court. The court removed custody from mother and denied her reunification services.

DISCUSSION

Section 361.5, subdivision (b)(13) provides that reunification services need not be provided when the court finds by clear and convincing evidence that the parent has a history of extensive, abusive, and chronic use of drugs and has resisted prior court ordered treatment for a period of three years immediately prior to the filing of the petition, or has failed or refused to comply with a program of drug 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. Mother does not challenge the courts finding under this section, but she does contend that the court abused its discretion in not ordering reunification services because the best interests of S.S. require it.

Section 361.5, subdivision (c) states services shall not be provided after a finding under section 361.5, subdivision (b)(13) "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." The court therefore retains discretion to order services if it is in the best interest of the child to do so. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 77-78.)

Where the underlying finding under section 361.5, subdivision (b)(13) is not challenged, the denial of reunification services, under section 361.5, subdivision (c), is reviewed for an abuse of discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179; In re Brian M.(2000) 82 Cal.App.4th 1398, 1401, fn. 4.) We find none.

At most, mother can only point to conflicting evidence regarding whether or not it would be in S.S.s best interest to provide mother with reunification services.

First, mother points out that she successfully completed her reunification plan and received a dismissal of the prior dependency. She benefited from the services, based on a claim of five years sobriety, and was willing to eagerly partake of further services in the present dependency.

However, the court had before it evidence that mother had used methamphetamine, off and on, for a period of 16 years starting at the age of 19. She had tried other drugs and first experimented with drugs in junior high school. She had been in a minimum of five drug programs, some residential and some outpatient. She had been involuntarily removed from some during the first dependency. She not only relapsed after termination of the first dependency, but was convicted of a new felony possession charge for which a warrant issued due to noncompliance with her Proposition 36 drug program.

At the time of the contested hearing, it had not been determined if this program would be reinstated. In the report prepared for the jurisdictional/dispositional hearing, mother discussed her drug use in the summer of 2002. She told the social worker that she just was not ready to quit yet. Her relapse and criminal problems strongly suggest she has not benefited from her programs, and she is unable or unwilling to use the skills and behaviors taught in them to refrain from drug use, justifying the denial of reunification services. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1009-1010.)

While she claims she will be cooperative with addition services, the court could find otherwise. Mother signed a voluntary services agreement in 2001 after a neglect referral and promptly absconded. Mother admitted that she had no intention of complying with that agreement, and apparently shortly thereafter, she voluntarily gave physical custody of S.S. to her grandmother for about a year. Mother had taken back custody of S.S. only for a short time before her arrest on the drug warrant.

Second, mother contends that S.S. wants to be reunited with mother, and her wishes should be given great weight. S.S. was placed with her maternal aunt and uncle. The social worker interviewed her, and she told the social worker that she wished to return to her mother in the future. She was asked how she liked her placement. She said that she would enjoy remaining "a little bit here" until she was able to return to mothers care. The report further recounted an incident that occurred after S.S. visited with mother. On her return to her aunts home, she became upset due to concern that she might be removed from the aunts home and was worried about long-term care issues. Even if S.S. wanted to return to mother, the court could reasonably infer that it was not in her best interest to do so. S.S.s wishes are not determinative of her best interests. (In re Michael D. (1996) 51 Cal. App.4th 1074, 1087.)

Third, mother contends that S.S. was never abused while in her care. We agree that there was no intentional physical abuse, but, without going into detain, there was evidence of neglect. S.S.s living conditions often were marginal at best. There were frequent moves, and S.S. had seen mothers drugs and mother using them.

Fourth, mother contends that since father was ordered reunification services, a permanent plan therefore could not be immediately implemented to provide S.S. with the stability that she needs. Therefore, there was no harm in offering services to her. We simply disagree. Mother and father are not similarly situated. The court could have offered services to mother using this reasoning, but it was not an abuse of discretion based on all of the circumstances not to.

At most, mother has established that reasonable minds could differ regarding the courts exercise of discretion in denying reunification services to mother. On this record, there was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

We concur: Ramirez, P.J., Richli, J.


Summaries of

In re S.S.

Court of Appeals of California, Fourth District, Division Two.
Nov 7, 2003
No. E033249 (Cal. Ct. App. Nov. 7, 2003)
Case details for

In re S.S.

Case Details

Full title:In re S.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY…

Court:Court of Appeals of California, Fourth District, Division Two.

Date published: Nov 7, 2003

Citations

No. E033249 (Cal. Ct. App. Nov. 7, 2003)