Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK43794 Jacqueline H. Lewis, Judge. Orders are affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant, N.H.; John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant, Ty. S., Sr.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
In this dependency case appeal (Welf. & Inst. Code, § 300 et seq.), we review the validity of an order that denied a parent’s section 388 petition. The minor child in the case is Ty. S., Jr. (Ty.). His parents are N.H. (Mother) and Ty. S., Sr. (Father).
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Section 388 provides in relevant part that “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner’s relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction.” Then, “[i]f it appears that the best interests of the child may be promoted by the proposed change of order, . . . or termination of jurisdiction, the court shall order that a hearing be held . . . . ” Section 388 petitions are addressed in California Rules of Court, rule 5.570.
At the disposition hearing, reunification services were denied to Mother because she had failed to reunify with her other children, her parental rights had been severed to some of her children, and she had a years-long history of drug abuse and failure to succeed in drug treatment programs. Reunification services were denied to Father because he was going to be incarcerated for a substantial period of time, there was no bonding between Father and Ty., and Ty. is very young.
Four months after the disposition hearing, Mother filed a section 388 petition seeking reunification services and unmonitored visits with the minor. Her grounds for the request were that she had been successfully participating in a drug treatment program that she entered after the minor was born. The section 388 petition was heard immediately before the section 366.26 hearing. The petition was denied and the parents’ parental rights were terminated.
We find no abuse of discretion in the denial of the section 388 petition and we will therefore affirm that order of denial as well as the order terminating the parents’ parental rights.
BACKGROUND OF THE CASE
1. Previous Dependency Matters
Ty. was born in March 2007. He came to the attention of the Department of Children and Family Services (the Department) when Mother tested positive for marijuana the day before he was born. Ty. tested negative. According to the record, Ty. is Mother’s tenth child, and counting him, eight of those ten children have been declared dependents of the juvenile court.
Mother’s next youngest child, C.Y. (born in 2006), and C.’s sister, Ch.Y. (born in 1996), came to the attention of the Department the day after C. was born. C. was born with amphetamines in her system, and Mother tested positive for amphetamines, barbiturates and TCA. At the time Ty. was born, C. and Ch. were living with their father and Mother was not receiving reunification services for them.
Mother’s children Charles W. (born in 1992), Char. W. (born in 1993), B.C. (born in 1997) and T.H. (born in 2000) were all detained when T. tested positive for drugs when she was born. Mother’s child, Jordan H. (born in 2002) was born with drugs in his system and he was detained. At the time Ty. was born, three of those five children had been adopted and the other two (Charles and Char.) were receiving permanent placement services. Additionally, one of Mother’s children died at birth, and another was placed for private adoption at birth.
According to the record, Mother has never reunified with any of these dependent minors; they were permanently removed from her care because of her continued use of drugs and her irregular visits with them. At one of the hearings in the instant case, the court indicated the dependency court record for Mother’s children consists of 15 volumes of court files.
2. Ty.’s Case
a. Pre-Disposition Hearings and Reports
The day after Ty. was born, a Department social worker interviewed Mother and Father at the hospital. Mother reported she was currently enrolled in an outpatient substance abuse program and a sober living program, and she stated that although she had used marijuana in early February 2007 she was not currently using drugs. She indicated she wanted to be permitted to care for Ty. because she had changed her life. She volunteered to enter a residential drug program. The record shows she has an extensive criminal history, which includes theft and prostitution.
Father told the social worker he has a job, is going to school, and Ty. is his first child. He stated he does not use drugs. However, when he volunteered for a drug test the test came back negative but diluted. He explanation was that he drinks a lot of water and juice for a stomach problem, and he stated he would retake the test. He also admitted to using marijuana sometimes but stated he had not used any for four months. His next test, taken two days later, was negative and not diluted. He was currently on probation for robbery; however he did not initially reveal that to the social worker. He stated he and Mother have been in a relationship for 16 months and they have an apartment together. Both he and Mother told the social worker that their relationship is positive.
Initially, the Department planned on removing the minor from Mother’s custody and placing him with Father, but ultimately Ty. was detained by the Department and placed in shelter care. At the detention hearing held on March 26, 2007, the court found grounds to detain Ty., and ordered monitored visitation for the parents.
A Department report dated April 24, 2007 states Mother admitted to using marijuana twice during her pregnancy with Ty., denied using any other illegal substance during that pregnancy, and admitted to having a seven-year history of substance abuse. She also admitted to having been enrolled in substance abuse programs three times and never completing any of them. The report notes that the social worker assisted Mother in entering an inpatient treatment program after Ty. was born so that the minor could be placed in Father’s home, but then when Ty. was placed elsewhere, Mother left the inpatient program. Based on Mother’s lengthy history of substance abuse and the fact that some of her children had been adopted, the Department recommended that reunification services not be offered to her. The Department also recommended no reunification services for Father because the social worker learned that Father’s probation was revoked in April 2007 and he was sentenced to prison for approximately two years.
On April 27, 2007, the court adjudicated and sustained the allegation against Father in the dependency petition, to wit, that he is a current abuser of marijuana and that renders him incapable of providing a home with regular care and supervision for Ty. and endangers the minor’s physical and emotional health and safety. The allegation against Mother was adjudicated at a subsequent hearing and found to be true. It states she has a seven-year history of substance abuse, including amphetamine, barbiturates, and TCA, is a current user of marijuana, used illegal drugs during her pregnancy with Ty. and had a positive toxicology screen the day before he was born, and this renders her incapable of providing Ty. with regular care and supervision and endangers his physical and emotional health and safety, and further, several of Mother’s other children were dependents of the juvenile court because of Mother’s drug use and received permanent placement services.
A report dated May 18, 2007 from the Substance Abuse Foundation of Long Beach, Inc. states Mother enrolled in its outpatient treatment program on April 6, 2007, was in continuous enrollment since then, and was attending one-to-one counseling, and groups for parenting, self-esteem and relapse prevention, and was having random urine tests. The report states Mother was demonstrating a commitment to her treatment goals, had excellent attendance, and intended to enroll in the inpatient residential program on June 1, 2007. Mother’s case manager at the treatment program told the Department social worker Mother’s drug tests were approximately twice a week. Mother told the social worker the rent on her apartment was paid through the end of May 2007 and she would enter the inpatient program in June and would pursue services even if the court did not order family reunification services for her.
b. The Disposition Hearing
At the May 21, 2007 disposition hearing, Mother testified the inpatient treatment program lasts a year and then participants transfer to the sober living program, however she stated she would complete the inpatient program in six months. She stated she was currently in the outpatient program, her drug tests are three times a week and all of her tests have been negative, and she has one-on-one counseling. She stated she visits the minor once a week for an hour. A May 4, 2007 letter to the Department social worker from the foster agency social worker states Mother and Father had visits with Ty. at its office once in March and once in April. The letter further states the foster mother reported that she and Mother were attempting to schedule another visit but were missing each other’s phone calls.
The court declared Ty. a dependent of the court under section 300, subdivision (b), and ordered that physical custody of the minor be taken from the parents. Pursuant to section 361.5, subdivision (b)(10), (11) and (13), the court ordered no reunification services for Mother, and pursuant to section 361.5, subdivision (e)(1), the court ordered no reunification services for Father. The court ordered monitored visits for the parents, but none for Father until he is no longer incarcerated. A section 366.26 hearing was set for September 17, 2007.
Section 361.5, subdivision (b) provides in relevant part: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:
c. Subsequent Department Reports and Mother’s Section 388 Petition
Ty. was referred to Regional Center for ISAM, excessive crying, drug withdrawal symptoms and developmental delays. His foster mother indicated a desire to adopt him. He had been placed with her when he was four days old. She told the social worker that Mother was being more consistent about visiting Ty. and was seeing him one a week; however, the foster mother felt that Mother lacked knowledge of child development. On June 25, 2007, the court ordered the Department to initiate an adoption home study for Ty.’s foster mother. The home study was approved by a Department adoption worker on September 11, 2007.
The Department’s September 17, 2007 report states Ty. was well bonded to his foster mother/prospective adoptive parent who provides him with a safe, loving home. The foster mother reported that Ty.’s withdrawal symptoms (shaking) had lessened with time but he often cries when he is not being held. He was receiving physical therapy for his muscle tone and was scheduled to see an ophthalmologist for a “crossed” eye. The foster mother indicated she and her two daughters consider the minor to be a part of their family. The social worker opined it was likely that the foster mother would adopt the child.
Mother’s monitored visits with the minor had increased from once a month in March and April to twice a month in May, and then four times a month in June and July. The visitation log was not yet available to show her visits for August. The foster mother monitored visits at a Department office and reported that often Mother does not fully engage with Ty. because she is talking on her cell phone or with a companion that she brings to the visits. The foster mother also stated that Mother does not appear to know how to change the minor’s diaper or feed him.
On September 17, 2007, the date originally set for the section 366.26 hearing, Mother filed a section 388 petition, seeking a modification of the disposition order. The court set a hearing on the petition for October 29, 2007 and continued the section 366.26 hearing to that date.
In her petition, Mother asked that she be provided with reunification services and that her visitation with Ty. be liberalized to unmonitored so long as she continued in her substance abuse program and continued to test clean. The basis for the requested change was that she was participating in the inpatient treatment program and additional programs of parenting, anger management and individual counseling. She asserted the proposed modification of the disposition order would benefit Ty. because it would “allow [him] to better form a more meaningful attachment with Mother and would allow [him] the opportunity to meet and know his four siblings.”
Included with Mother’s section 388 petition was a letter from Substance Abuse Foundation of Long Beach, Inc. Dated September 7, 2007, it states that Mother enrolled in the residential program on April 6, 2007. The September 7, 2007 letter lists 21 groups, types of meetings, and studies and counseling that Mother was receiving. It lists three dates in August 2007 and states “Negative” for each date, which is apparently a reference to drug testing.
An August 29, 2007 note from the program states the residential program enrollment date was June 4, 2007, and as noted above, Mother informed the Department social worker that she would enter the residential treatment program in June 2007.
Also included with the section 388 petition was a letter from Mother to the dependency court. In her letter, Mother admitted her past drug use and mistakes, acknowledged she had engaged in irrational thinking, and stated she is now willing to live sober and care for her children. She stated she has twice weekly drug tests and they are negative, she is learning to deal with the issues that caused her drug addiction, she is attending LA Trade Tech to have a positive future for herself and her children, and she now understands the negative impact she has had on her children and she wishes to reunite with them and is doing her best to accomplish that goal. She stated she works as a marketing assistant for the Substance Abuse Foundation of Long Beach, Inc., five days a week, six hours a day.
There is also a letter to the court from Mother’s sponsor. The sponsor states Mother has improved in her understanding of her drug life since she enrolled in the treatment program and Mother has the understanding to continue on a drug-free path. A September 2007 report from the Department states Mother informed the social worker that as of September 4, 2007, she would enter the sober living aspect of the drug treatment program and enroll in Los Angeles Trade Tech to study cosmetology and fashion design.
The Department’s October 29, 2007 report states that on October 6, 2007, Mother received a six-month certificate of completion of substance abuse treatment. An unsigned letter from the program, dated September 25, 2007, states Mother’s five drug tests in August and five tests in September were all negative. Father’s parole date was reported to be December 3, 2008.
The Department’s written response to Mother’s section 388 petition states that a Mr. Galloway from the substance abuse program reported that Mother was participating in all of the programs in which she was enrolled without any problems and was on the right track so long as she remained focused. The Department social worker challenged Mother’s assertion in the section 388 petition that granting her reunification services and liberalized visitation would facilitate Ty. getting to know his siblings. The Department observed that Mother does not have custody of any of her many children and has no meaningful relationship with any of them. The social worker opined it is doubtful that Mother can parent Ty., given Mother’s history of not parenting any of her other children and not ever staying with any of her other substance abuse treatment programs to the point of continued sobriety.
d. The Section 388 and 366.26 Hearings
Due to congested court calendars and the illness of one of the attorneys, the section 388 and 366.26 hearings were continued several times from October 29, 2007, to January 15, 2008. At the January 15 hearing, Mother testified regarding her section 388 petition, as did Baldomero Gonzalez, the assistant program administrator at the Substance Abuse Foundation of Long Beach, Inc.
Mr. Gonzalez stated he had been one of Mother’s case managers and was now supervising her current case manager. He testified as follows. Mother has had an “off-and-on relationship with [the substance abuse program] I believe three years, three years plus.” Mother began her current treatment in April as an outpatient and in June 2007 as an inpatient and her contract is for one year. “[T]his time” she has done well in that her attitude improved, “[s]he isn’t so self-centered and selfish as she has been in the past” and she “seems motivated.” Whereas her previous enrollments in the program were “somewhat of a joke,” this time “[i]t’s not a joke.” She “seems concerned about her children, her well-being and her future, and really seems like she’s willing to make the necessary changes.” Now she’s “not so boy crazy,” and whereas she has a history of needing someone or something to make her feel complete, now she’s learned to provide that for herself, but as with any change, “it’s not always a constant and there’s a battle.” She has received instruction on relapsing. She was taught to identify triggers, to switch her old behavior to new behavior, and she learned that her prostitution and drug use are connected and if she has no job she will relapse.
Mother was currently living at what Gonzalez described as an off-site property that is not supervised, although there are “like two or three checks a day, if that.” Because Mother is living there, it means she has successfully progressed in her treatment. Mother is enrolled in school, having regular visits with Ty., she has a sponsor and is fully involved in the Alcohol Anonymous 12-step program, and she has been involved in weekly one-on-one counseling and daily group counseling, weekly parenting classes and a women’s group.
Initially Gonzalez stated that since Mother was admitted as an out-patient she has only been drug tested seven or seven-plus times and to his knowledge none of Mother’s drug tests have been positive. However, he was shown the unsigned September 25, 2007 letter sent to the Department by the treatment program and he acknowledged the letter states Mother was tested approximately 10 times. He stated he did not know if she was tested before the first test mentioned in the letter (August 17) and he would have to check if she was tested after the last test mentioned in the letter (September 20). He stated the procedure is to test a patient if a staff member, or another patient, becomes suspicious of a patient, and to also test on referral, such as a request from the Department or the court, however Mother was “tested more because she had a case” but her contract does not set a number of tests to be performed. The initial test is done at the program facility using a dipstick and if it shows positive, the urine sample is sent to a laboratory. The collection from the person providing a sample is witnessed by a staff member. The patients are tested for amphetamine and marijuana. Mr. Gonzalez did not know if they are also tested for barbiturates and opiates. He stated breathalyzers are used for testing for alcohol.
Mother testified as follows. She has only missed one weekly visit with Ty. since March 2007 and she missed the visit because the foster mother was not able to bring the minor to the foster agency. In addition to the types of classes mentioned by Mr. Gonzalez, she also participated in groups relating to attitude adjustment, recovery issues, anger management and life skills. In contrast to her prior enrollments in the program, this time she is open minded to what the program has to offer and is willing to give up her behaviors. Previously she “was doing the same thing over and over and expecting different results” but was getting nowhere, but this time she feels the need for change. She is on the fourth step in Alcohol Anonymous, which is to admit to herself and another person that she is powerless over alcohol. She had been on that step for approximately three months because “we’re just like taking it slow, or whatever.” She has been sober since approximately a week before Ty. was born, when she used marijuana. She is not in a relationship with a man although she does write to Ty.’s father. Perhaps she would reunify with him if he is “on the same page that I’m on” when he is released from prison but she is focused on herself and her recovery. During her visits with Ty., she reads to him, plays with him, and holds him and talks to him. She loves him and all of her children and wishes to raise Ty. in a healthy home. In her current home at the program she is permitted to have children live with her, and other residents there have children living with them. She had monitored visits with two of her other children in the previous month and would like them to know Ty.. She is ready to be a mother to Ty..
The court denied Mother’s section 388 petition. It found that Mother’s condition was changing, not changed, and her eight-year history in dependency court was one of asserting a change of circumstances only to return to drugs and prostitution. Moreover, it was not in Ty.’s best interest to grant reunification services and unmonitored visits to Mother because Mother’s history of temporary getting clean has always meant that she comes back into her children’s lives and then “she starts using again, and she destroys them every single time she walks out [and] [Ty.] might be the only child we can save from that.” The court stated it had “never seen a group of children in all the cases that this court supervises over the last 11 years of sitting here, where the children have suffered more . . . with Mother’s inability to stay clean.”
At the section 366.26 hearing, the court found that Ty. is adoptable and it would be detrimental to him to be returned to his parents because Mother’s life style of drug/prostitution/failure to reunify with her other children is only changing, not changed, and Father is incarcerated. Moreover, the parents have not played a parental role in the minor’s life. The court stated the issue is not giving Mother another chance but rather, doing what is the child’s best interest, which is to not take another risk that Mother would relapse. The parents’ parental rights were terminated.
DISCUSSION
Mother contends the trial court abused its discretion when it denied her section 388 motion for reunification services and unmonitored visitation. We do not agree.
Although a section 388 petition is to be liberally construed in favor of granting a hearing on the petition, and although the person submitting the petition need only make a prima facie showing to receive the hearing, nevertheless when the hearing is granted, such person has the burden of proof on the relief requested and must demonstrate (1) that circumstances have changed or that there is new evidence, and (2) that the proposed modification, change or vacation of the prior court order is in the best interest of the minor child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A reviewing court does not reverse a trial court’s decision on a section 388 petition unless the trial court’s decision is an abuse of its discretion. (In re Casey D., at p. 47.) Abuse of discretion is demonstrated when the decision of the court exceeds the bounds of reason, when it is arbitrary, capricious or patently absurd; and if “ ‘two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Mother’s position on her section 388 petition was that she had made far greater strides in her drug rehabilitation treatment than she had ever made before in her many prior attempts at rehabilitation, and her progress this time was demonstrated not only by the fact that she had remained in the program longer than before but also in terms of achieving a different attitude and mind set regarding the need for sobriety and its benefits to herself and her children. Further, she was attending Los Angeles Trade Tech and had a job at the program facility. Additionally, all of this was accomplished even though the dependency court had denied her reunification services. Nevertheless, the trial court quite correctly observed that Mother was demonstrated changing circumstances, not changed circumstances.
To begin with, the record shows that Mother used marijuana while she was pregnant with Ty., and although the social worker assisted Mother in entering an inpatient treatment program after Ty. was born so that the minor could be placed in Father’s home, when Ty. was placed elsewhere, Mother left that inpatient program despite her representation to the social worker the day after Ty. was born that she had changed her life and wanted treatment so that she could care for the minor.
After she left that rehabilitation effort she entered an outpatient program on April 6, 2007 and then moved into the inpatient program at that same facility two months later. Thus, assuming for purposes of argument that Mother remained in the outpatient program until she entered the inpatient program, by the time the dependency court heard her section 388 petition on January 15, 2008, she had been in continuous treatment for nine months. However, she had not yet left the sober living component of the program to be on her own, and thus she was still in a situation where there was monitoring and testing to keep her on the straight and narrow. Moreover, the record does not show that she was being tested for drugs on a regular random basis during her entire nine months of rehabilitation, and it does not show that she was being tested for barbiturates and opiates. Additionally, she was only on step four of her 12-step program. Further, Mother has a lengthy history of entering rehabilitation programs as part of her case plan in previous dependency matters and then leaving the programs prior to their conclusion. She is in her eighth year of dependency jurisdiction over her children. Given the sum of this evidence, we cannot say the trial court abused its discretion when it found that Mother’s circumstances were changing, not changed. The evidence is not sufficient to conclude that Mother’s changes are likely to be lasting. There is no evidence from a psychiatrist or psychologist attesting to a professional belief that Mother has reached that point.
In addressing the issue of changing vs. changed circumstances, the trial court stated that when a parent is denied reunification services under section 361.5, subdivision (b) and later requests such services in a section 388 petition, the parent must show a change of circumstances that would refute the prior denial of reunification services. The court opined that it would be “nearly impossible” to do that. We view the court’s opinion to mean that since reunification services are statutorily mandated except in certain circumstances, such as those set out in subdivision (b) of section 361.5, then an order denying such services has already determined that a parent has a history that has warrants not attempting to reunite the parent with the child and therefore the parent has a very difficult task trying to convince the court that circumstances have so changed that reunification services are now warranted.
Nor can we find an abuse of discretion in the court’s finding that it would be against Ty.’s best interests to suspend his adoption by the only family he has ever known and with whom he has bonded, and pursue reunification services for Mother just on the speculation that this time, unlike all the others, Mother will remain clean and sober. Perhaps she will accomplish that feat, but it is not in Ty.’s best interests to make him the test case and the trial court so found. The dependency court has been down this path many times before with Mother, and at the section 388 hearing it observed that Mother’s seven-year history of temporarily getting clean has always meant that she comes back into her children’s lives and then “she starts using again, and she destroys them every single time she walks out [and] [Ty.] might be the only child we can save from that.”
When reunification services have terminated and there has been no reunification, or when reunifications services have not been granted as occurred in this case, the focus of the dependency case is not the parents’ interest in the care and custody of their children but rather the child’s need for stability and permanence, and there is a rebuttable presumption that continued care by the foster parent is in the dependent child’s best interest. (In re Stephanie M., supra, 7 Cal.4th 295, 317.) The evidence in this case does not rebut that presumption.
This case is similar to In re Casey D., supra, 70 Cal.App.4th 38, where the mother of the dependent child had been drug free for approximately five months when the trial court heard and denied her section 388 petition wherein she had sought a return of the minor to her care or a long term plan of foster care with reunification services. The reviewing court observed the mother “had an extensive drug history with a tendency to engage in treatment programs when required to do so by outside agencies and then relapse once the requirement was lifted.” (Id. at p. 48.) In affirming the denial of the mother’s section 388 petition, the reviewing court stated that “[a] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] ‘ “[C]hildhood does not wait for the parent to become adequate.” ’ [Citation.]” (Id. at p. 47.) The Casey D. court concluded that because the trial court had found that the mother’s circumstances were changing and not changed, granting her petition would not be in the minor child’s best interests given the minor’s entitlement to stability.
DISPOSITION
The orders denying Mother’s section 388 petition and terminating the parental rights of Mother and Father are affirmed.
We Concur: KITCHING, J. ALDRICH, J.
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“(10) 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.
“(11) 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 of that child from the parent.
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“(13) 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.”
Section 361.5, subdivision (e) provides in relevant part: “(e)(1) If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a).”