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Jaime S. v. Superior Court of San Diego Cnty.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 8, 2012
D060884 (Cal. Ct. App. Feb. 8, 2012)

Opinion


JAIME S., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. D060884 California Court of Appeals, Fourth District, First Division February 8, 2012

         NOT TO BE PUBLISHED

         PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing San Diego County Super. Ct. No. NJ11540E.

          McINTYRE, J.

         Jaime S. seeks writ review of juvenile court orders denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing regarding her daughter Brooklyn H. (Statutory references are to the Welfare and Institutions Code.) She contends the court erred by denying her reunification services under section 361.5, subdivision (b)(10), (11) and (13), and insufficient evidence supports the finding it was in Brooklyn's best interests to deny services to her. We deny the petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         Brooklyn is Jaime's seventh child. Jaime's first child lives with that child's father. Her next two children, Shaine L. and Payton L., were removed from her care in 1999 when she did not protect them from physical abuse. She received one year of court-ordered reunification services, but did not reunify with these children and parental rights were terminated in 2000. Jaime's fourth child died in infancy. Her fifth and sixth children, Aiden S. and Justice S., were removed in July 2007 after she tested positive for heroin and methamphetamine and Justice was born addicted to methadone. In March 2009, the court terminated parental rights to Aiden and Justice.

         Jaime has a long history of abusing drugs. She reported that by 2001 she was using heroin every day. In 2003 she was incarcerated for possessing a controlled substance and other crimes. After her release she attended drug treatment. She returned to custody in 2004 and from October 2005 to October 2006 was enrolled in inpatient drug treatment programs. She was in inpatient drug treatment in 2007, then moved to a sober living/transitional housing facility in January 2008, but quickly relapsed into drug use. In June 2008, while she was pregnant with Brooklyn, she was hospitalized and became a paraplegic when an abscess on her spine caused by her heroin injections became infected. She remained in the hospital until Brooklyn was born in November 2008.

         In November 2008, the San Diego County Health and Human Services Agency (the Agency) petitioned on Brooklyn's behalf, alleging she was at risk based on Jaime's substance abuse, criminal history, relapses and failure to complete treatment programs. The court sustained the petition, removed custody and ordered reunification services.

         Jaime made progress with her reunification plan, and in May 2010 the court ordered Brooklyn placed in her care. In November, the court terminated jurisdiction.

         However, by July 2011 Jaime had returned to abusing drugs. She said from July 4 to July 23, she used heroin three to four times every day, sometimes in front of Brooklyn and sometimes at night while Brooklyn was sleeping next to her. Heroin and drug paraphernalia were easily accessible to Brooklyn.

         The Agency petitioned on Brooklyn's behalf based on Jaime's relapse and substance abuse history, and Brooklyn was detained with Aiden's and Justice's adoptive parents, the B.'s. At the jurisdictional hearing, the court found the allegations of the petition to be true. Subsequent to the filing of the petition, Jaime tested positive for methamphetamine and morphine.

         The social worker recommended Jaime not be offered reunification services. The B.'s reported that when Brooklyn came to their home, she was unwilling to eat fruits and vegetables and other healthy foods, but would eat and chew paper products and plastic. She had health problems, lacked stamina and was afraid of bathing and swimming. The B.'s said that after two months in their care, she was eating better, had a regular bedtime schedule and much more energy, was no longer afraid of being in water, enjoyed playing with Aiden, Justice and other children, and was very comfortable in their home. The B.'s said, however, that after visits with Jaime, Brooklyn regressed, including repeatedly hugging the B.'s and telling them how much she missed them, making growling sounds, acting out and hitting her siblings. A developmental evaluation showed she was emotionally reactive and had anxiety problems. The B.'s said they wanted to adopt her.

         At the dispositional hearing, after considering the evidence and argument by counsel, the court found the provisions of section 361.5, subdivision (b)(10), (11) and (13), applied and that offering services to Jaime would not be in Brooklyn's best interests. It denied services and set the matter for a section 366.26 hearing.

         Jamie petitions for review of the court's orders. (§ 366.26, subd. (l) ; Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

         DISCUSSION

         I

         Jaime contends there is not substantial evidence to support the court's denial of services under section 361.5, subdivision (b)(10), (11) and (13). She argues there was not substantial evidence to support finding she had not made reasonable efforts to treat the problems that led to Aiden's and Justice's removal, or that she had resisted court-ordered drug treatment within the three years before the filing of the petition.

         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)." (Cheryl P. v. Superior Court, supra, at p. 95.) 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.' "

         A. Section 361.5, subdivision (b)(10) and (11)

         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...."

         Jaime does not dispute that the first prongs of section 361.5, subdivision (b)(10) and (11) were met. Her reunification services and parental rights to Shaine and Payton were terminated in 2000. Her reunification services to Aiden and Justice were terminated in 2008 and parental rights terminated in 2009.

         The second prongs of section 361.5, subdivision (b)(10) and (11), were met as well. The record shows Jaime did not make a reasonable effort to treat the drug problem that led to removal of her older children. Although she was able to remain sober for more than two years while she was in treatment programs and under supervision, when she attempted to live on her own with Brooklyn, she relapsed within only four months. After Brooklyn's birth in November 2008, Jaime entered residential treatment in February 2009, where she remained until September 2009, when she moved to a sober-living home with two other people and a house manager. Brooklyn was placed with Jaime in May 2010 while she lived in the sober-living home. In August 2010, she and Brooklyn moved to the home of a friend and her family, where they lived for at least seven months. She and Brooklyn moved into their own apartment in March or April 2011. Soon after being on her own, Jaime decreased her attendance at Narcotics Anonymous (NA) meetings, attending four meetings in May, one in June and none in July. She relapsed when she ran into the person who used to supply her with drugs, invited this person to her home and within one day was using heroin again. She told the social worker she thought her relapse was the result of the stress of moving to her own apartment and not having everything she wanted for the apartment. When Jaime felt stress, she was not able to use what she had learned from treatment or draw on the support system that was available to her, but quickly returned to drug use. This record supports the conclusion that she did not make a reasonable effort to treat her drug problem.

         Jaime's reliance on In re Albert T. (2006) 144 Cal.App.4th 207 is unfounded. In In re Albert T., supra, at p. 221, the court stated " '[T]he 'reasonable effort to treat' standard found in [subdivision (b)(10) and (11)] is not synonymous with 'cure.' The mere fact that [the parent] has not entirely abolished her drug problem would not preclude the court from determining that she has made a reasonable efforts to treat it.' " This statement indicates the juvenile court may find the fact the parent's drug problem has continued shows a lack of a reasonable effort to treat the problem or shows the parent has made a reasonable effort despite continuance of the problem. Here, the court reasonably found Jaime's significant relapse when Brooklyn was in her care showed a lack of reasonable effort. The teaching of In re Albert T. does not support Jaime's position.

         Substantial evidence supports the court's decision to deny services to Jaime based on her failure to make reasonable efforts to treat her pervasive drug abuse problem under section 361.5, subdivision (b)(10) and (11).

         B. Section 361.5, subdivision (b)(13)

         Section 361.5, subdivision (b)(13), provides reunification services need not be provided to a parent when the court finds by clear and convincing evidence:

         "That the parent... 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."

         Not succeeding in drug treatment during the years before the child is removed from parental custody is considered resisting drug treatment within the meaning of section 361.5, subdivision (b)(13). (In re Brooke C. (2005) 127 Cal.App.4th 377, 383; In re Levi U. (2000) 78 Cal.App.4th 191, 200.)

         Substantial evidence supports the court's finding that section 361.5, subdivision (b)(13), applied. Jaime had a history of extensive, abusive and chronic use of drugs. She received court-ordered treatment in 1997, 2007 and 2008, but relapsed. She argues her active search for help during her 2011 heroin relapse shows she was not resistant to court-ordered treatment. However, she did not seek help when she felt stress after moving to her own apartment with Brooklyn, but, instead, stopped regular attendance at NA meetings, and did not call members of her support system to tell them she had relapsed until she had been using heroin several times each day for almost three weeks. On this record, the finding Jaime resisted prior court-ordered treatment during the three-year period before the filing of the petition within the meaning of section 361.5, subdivision (b)(13), is fully supported.

         II

         Jaime asserts, even assuming section 361.5, subdivision (b)(10, (11) and (13) apply, there was insufficient evidence to support finding providing reunification services to her would not be in Brooklyn's best interests.

         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." (In re Eric B. (1987) 189 Cal.App.3d 996, 1005.)

         Jaime has not shown an abuse of the court's discretion. She was not able to remain sober even after becoming a paraplegic and losing custody of Brooklyn and four of her older children. Brooklyn made great progress in the home of the B.'s who had adopted Aiden and Justice. She referred to their home as "Brooklyn's home" and to her room there as "Brooklyn's room." The B.'s said they would be honored to adopt Brooklyn and to have her be part of their family. Brooklyn had behavior problems after visits with Jaime, including hitting Aiden and Justice, growling and speaking in a gravelly voice and clinging to the B.'s and telling them she missed them. At the end of visits she was always happy to return to Mrs. B.

         The court did not abuse its discretion by finding it would not serve Brooklyn's best interests to provide reunification services to Jaime.

         DISPOSITION

         The petition is denied.

          WE CONCUR: BENKE, Acting P.J., AARON, J.


Summaries of

Jaime S. v. Superior Court of San Diego Cnty.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 8, 2012
D060884 (Cal. Ct. App. Feb. 8, 2012)
Case details for

Jaime S. v. Superior Court of San Diego Cnty.

Case Details

Full title:JAIME S., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY…

Court:COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 8, 2012

Citations

D060884 (Cal. Ct. App. Feb. 8, 2012)