Opinion
A152453
11-22-2017
J.B., Petitioner, v. SUPERIOR COURT FOR THE COUNTY OF LAKE, Respondent; LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. JV320477B)
At the conclusion of a dispositional hearing for C.B. (Minor), the juvenile court found J.B. (Father) was a person described in Welfare and Institutions Code section 361.5, subdivision (b)(13), denied reunification services, and set a section 366.26 hearing (.26 hearing). Father petitions for writ relief. (Cal. Rules of Court, rule 8.452.) He contends the evidence does not show he was resistant to drug treatment, and that he presented clear and convincing evidence reunification services were in Minor's best interest. We deny Father's petition.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Detention, Jurisdiction, and Disposition
On February 27, 2017, the Lake County Department of Social Services (Department) filed a section 300 petition on behalf of Minor, who was 21 months old at the time. As amended, the petition alleged S.A. (Mother) was unable to adequately protect or care for Minor because of untreated substance abuse issues, lack of appropriate housing, and Mother left Minor with an unsuitable caretaker. (§ 300, subds. (b) & (g).) The petition alleged there was a substantial risk Minor would be neglected because Minor's half-sibling was neglected while in Mother's care. (§ 300, subd. (j).)
Mother is not a party to this proceeding and is mentioned only when necessary. --------
The petition further alleged Father failed to protect Minor because Father should have known about Mother's substance abuse issues, criminal behavior, and unstable housing. (§ 300, subd. (b).) Father was detained in the Lake County Jail in August 2016, and he did not make arrangements for the care and custody of Minor before or during his incarceration. (§ 300, subd. (g).) Since his release, Father had not made appropriate arrangements for the care and custody of Minor. (§ 300, subd. (g).)
On March 2, 2017, the juvenile court held a detention hearing, detained Minor, and set a jurisdictional hearing. Minor was placed in foster care. The Department's jurisdictional report stated that, at the time of Minor's detention, Father "was participating in inpatient drug treatment at the Ukiah Recovery Center," and would be doing so "until May at which time he will go to a sober living facility." The Department attached to its report a copy of Father's "BioPsychoSocial Assessment for entry to Lake County Veteran's Treatment Court," which outlined the circumstances of Father's early life, his military service, and his history of drug use and arrests upon discharge from the Army.
The juvenile court continued the jurisdictional hearing a number of times to address issues of parentage. On June 28, 2017, the juvenile court found Father to be the presumed father of Minor. At the jurisdictional hearing, on July 24, 2017, the juvenile court found the amended allegations to be true, sustained the amended petition under section 300, subdivisions (b), (g), and (j), and set a date for the dispositional hearing.
In its dispositional report, filed August 23, 2017, the Department recommended denial of reunification services for Mother and Father. With regard to Father, the Department relied on evidence showing that, in April 2012, based on a conviction for possession of a controlled substance without a prescription, Father was ordered to accept referral to a drug treatment program in Sonoma County. The Department also attached a copy of a presentence report from two Lake County criminal cases against Father, and the same biopsychosocial assessment attached to the jurisdictional report. The presentence report documented Father's extensive criminal record, and the assessment summarized his participation in multiple drug treatment programs and his long history of attempts to treat his substance abuse problems.
The dispositional report indicated Father was currently in a residential program and continued "to struggle with his sobriety. This is evident by his recent relapse and re-admittance to Ukiah Recovery Center in June 2017," after taking pills while at Hearn House, a rehabilitation center in Santa Rosa. The report noted Father "has had multiple opportunities to treat this substance abuse disorder, yet [Father] has reported abusing substances as recently as 2 months ago, with the most chronic use being reported in May 2016, [when] by his own admission he was using heroin on a daily basis." Based on these facts, the Department recommended denying Father reunification services.
On September 11, 2017, Father submitted a brief challenging the Department's recommendation. Father pointed out the Department provided "no evidence of . . . regular use of illicit substances since May 2016." He argued his self-admission to taking two pain pills in June 2017 was "a relapse rather than resistance to treatment." Father indicated he "now has over a year of sobriety, with one brief relapse." Father argued he was working "immensely hard to overcome his substance abuse history and maintain his relationship with his son." Visits between Father and Minor were at first difficult, but now "begin and end with hugs."
On September 13, 2017, the Department filed a supplemental report, describing the visits between Father and Minor from March to July 2017, noting the visits had not been consistent, Father had "a long way to go" in his recovery efforts, and "the child welfare timeline does not fit in that timeframe."
At the dispositional hearing on September 13 and 14, 2017, a number of witnesses testified in support of Father's request for reunification services. The Veterans Administration social worker, who wrote Father's biopsychosocial assessment, testified Father had "been in compliance throughout with the Veterans Treatment Court," and Father would receive help with housing after treatment at the Ukiah Recovery Center. The social worker testified Father "never had a child to take care of until this child was born," and Father was "ready to make . . . changes," but the social worker acknowledged "there's always going to be concerns" about his ability to remain in recovery.
A deputy probation officer for Lake County testified Father had "done a great job" since being admitted to the Veterans Court in February 2017, and Father was motivated to succeed because he wanted "to be a role model for his child." Both a social worker and an employee of the Lake County Child Welfare Services testified regarding visits between Father and Minor, which were going well.
Father testified he was 50 years old, and he was participating in a drug treatment program at the Ukiah Recovery Center, where he completed anger management, life skills, and parenting classes. Father admitted he started using heroin again in January or February of 2016. Father participated in multiple drug treatment programs, but he claimed this time was different because he had a two-year-old son who needed him.
Father admitted he took two non-prescribed Vicodin pills in June 2017, was taken to hospital in an ambulance, and had to leave Hearn House. However, Father returned immediately to the Ukiah Recovery Center, and he has not tested positive for drug use since he left jail in February 2017. Father described his visits with Minor as emotional because Minor was fourteen months old when Father went to jail, and he missed six months of Minor's development.
Based on this testimony, the evidence before it, and the arguments of counsel, the juvenile court denied reunification services for Father. The juvenile court was sympathetic to Father's situation, but stated it was also bound by the rule of law and the best interests of the child. The juvenile court found clear and convincing evidence Father was resistant to drug treatment in the three years before the petition was filed. The juvenile court stated Father was "in his teens [when] he began his drug history and it continued right along. And there wasn't really a substantial break in that. . . . [H]e's been in and out of recovery, an ongoing addiction to heroin and use of heroin through when he was arrested -- after his child's birth when he was arrested in August of 2016." With regard to the incident involving two Vicodin pills, the juvenile court found it was "more than just a little relapse," because the situation "was serious enough that they called an ambulance." The juvenile court observed that, when given more freedom, Father had "a constant cycle" and a "long history" of "relapsing from time to time."
Addressing the Minor's best interests, the juvenile court found Father's current efforts were good, but he had a "severe history," and an inability to overcome his drug problem "after 30 years of various attempts, different programs." Based on Minor's need for stability, and the "extremely tenuous" nature of Father's situation, the juvenile court denied reunification services, and set a .26 hearing for December 6, 2017. Father petitions this court for extraordinary relief.
DISCUSSION
Father contends "substantial evidence did not support a finding that he was resistant to drug treatment." He also contends the juvenile court abused its discretion in failing to find reunification services were in the best interests of Minor. We address each argument in turn.
I.
The Juvenile Court Did Not Err in Deciding to Bypass Reunification Services for Father
In his petition, Father focuses on whether there was substantial evidence he was resistant to drug treatment. Father contends the June 28, 2017 incident where he took two non-prescribed Vicodin pills was "a relapse and not indicative of resistance to drug treatment." Father points out that, at the dispositional hearing, the Department relied upon accounts of his history of drug use in a probation report for sentencing, and a biopsychosocial assessment written by his Veterans Administration social worker, but both the probation officer and the social worker testified at the dispositional hearing, and both felt that Father should receive reunification services. By the time of this hearing, in September 2017, Father "had over a year of sobriety and had been in treatment for seven months." Father contends his regular heroin use from February to August 2016 "does not rise to the level of clear and convincing evidence of resistance to treatment because it is greatly outweighed by the evidence of Father's seven months of engagement in drug treatment." We are not persuaded.
A. Governing Law and Standard of Review
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to "the child and the child's mother and statutorily presumed father . . . ." (§ 361.5, subd. (a).) The purpose of reunification efforts is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, "[s]ection 361.5, subdivision (b) lists a number of situations in which reunification services are likely to be futile and need not be offered to a parent." (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202 (D.B.).) One of those exceptions arises when the court finds by clear and convincing evidence "[t]hat 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 . . . ." (§ 361.5, subd. (b)(13).)
We review an order denying reunification services for substantial evidence. (D.F. v. Superior Court (2015) 242 Cal.App.4th 664, 669.) We do not make credibility determinations or reweigh the evidence. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) We view the evidence in the light most favorable to the Department, the prevailing party below, and "indulge all legitimate and reasonable inferences to uphold the [juvenile] court's order." (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.)
B. Father Has a History of Extensive Drug Abuse, and He Resisted Court-Ordered Treatment Within Three Years of the Filing of the Petition
Here, Father admits he has a history of extensive, abusive, and chronic use of drugs. The biopsychosocial assessment, prepared by the Veterans Administration in August 2016, states that "by age 11 and 12 . . . [Father] was using illegal substances such as marijuana and crank." Upon his discharge from the Army in 1996, he began using methamphetamine.
After spending six years in prison, Father "went into substance abuse treatment at CenterPoint in San Rafael. He did 90 days there but then relapsed on Christmas Eve of 2003 and went back to prison for 1 year. Upon release he went to Turning Point residential treatment in Santa Rosa. He reports he had 2 years of sobriety and was doing quite well. During this time he went to Santa Rosa [Junior College] and got an AA in substance abuse counselling. After another relapse and return to prison he was released and went to Henry Ohlohaff House residential rehab in Novato. [Father] reports he was again doing well and had a job with GM for about 9 months until another relapse in 2006. He returned to prison and during this time he was introduced to heroin[], which became his drug of choice. At this point the VA got involved in [Father's] recovery and re-entry. He went into the Homeless Veterans Rehabilitation Program at the Palo Alto VA. He did very well in the program and even worked for the VA in the compensated work therapy program. He had 1 year of sobriety before relapsing. He got off parole in 2009 but was again arrested in 2010 for residential burglary. He went back to prison and paroled out in 2012. Since 2012 he continues to have problems with absconding violations and not fulfilling the requirements of parole. [Father] reports he continued to use heroin[] daily up until about 3 months ago."
Court-ordered drug treatment includes treatment ordered as a condition of probation or parole. (D.B., supra, 171 Cal.App.4th at pp. 203-204.) At least some of Father's drug treatment was court-ordered because the minutes from a Sonoma County criminal case against Father in 2012 indicate he was granted conditional probation and ordered to accept referral to a drug treatment program.
Numerous cases have held that resistance to court-ordered treatment may be shown by evidence the parent participated in treatment but then later, and within three years prior to the filing of the petition, returned to substance abuse. (See, e.g., In re Brooke C. (2005) 127 Cal.App.4th 377, 382-383; In re Brian M. (2000) 82 Cal.App.4th 1398, 1402-1403; Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1008; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 (Laura B.); Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 (Randi R.).) Although experiencing a brief relapse and immediately resuming treatment does not constitute resistance, evidence of resistance "may also come in the form of resumption of regular drug use after a period of sobriety." (Laura B., at p. 780.)
Assuming without deciding that the incident involving the two Vicodin pills was a mere relapse, there was substantial evidence Father resisted court-ordered treatment within three years of the filing of the dependency petition because Father used heroin regularly from January or February 2016 "until he was arrested on theft and fraud charges on August 12, 2016."
Father argues that cases like Laura B. and Randi R. are distinguishable because, in those cases, "the parent had already received reunification services through a prior dependency case," which demonstrated the futility of providing further services. As Father himself acknowledges, though, "the provision of prior dependency services is not a requirement" for ordering a bypass of reunification services under section 361.5, subdivision (b)(13).
Father suggests the juvenile court should have considered whether there was "a substantial probability" Minor could be returned to Father within six months, and, by the time of the dispositional hearing, Father had completed seven months of drug treatment. However, as the Department points out, Father relies on the standard that applies at a section 366.21, subdivision (e) six-month pre-permanency review hearing, and it is "inapplicable at Disposition." What counted at Father's dispositional hearing was whether there was a history of extensive drug abuse, and whether Father had "resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . ." (§ 361.5, subd. (b)(13).)
Here, the juvenile court applied the correct standard. The juvenile court was sympathetic to Father's situation, but it could not ignore Father's "severe history," and his inability to overcome his drug problem "after 30 years of various attempts, different programs." The record indicates Father has a tendency to resume regular drug use after participation in treatment programs, including his most recent resumption of heroin use in 2016, after Minor was born. This evidence supports the juvenile court's decision to bypass reunification services for Father.
II.
The Juvenile Court Did Not Abuse Its Discretion in Determining Reunification Services
for Father Would Not Be in the Best Interest of Minor
Father argues that, even if there is substantial evidence he was resistant to court-ordered treatment, the juvenile court should have ordered reunification services pursuant to section 361.5, subdivision (c), because his "current efforts" to overcome his substance abuse history are significant, there is a bond between Father and Minor, and reunification services are likely to be successful. We are not persuaded.
A. Governing Law and Standard of Review
If section 361.5, subdivision (b)(13) applies, "[t]he court shall not order reunification for a parent . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) It is the parent's burden to "affirmatively show that reunification would be in the best interest" of the child. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) "The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.' " (Ibid.) The factors to consider include "a parent's current efforts and fitness as well as the parent's history," "[t]he gravity of the problem that led to the dependency," the relative strength of the bonds between parent and child and between the child and his caretakers, and "the child's need for stability and continuity." (Id. at pp. 66-67.)
A juvenile court has broad discretion in determining whether reunification services would be in a child's best interest. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court will reverse only if the juvenile court abuses its discretion. (Id. at pp. 523-524.) " 'The appropriate test for abuse of discretion is whether the [juvenile] court exceeded the bounds of reason. When 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 [juvenile] court.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
B. No Abuse of Discretion
We cannot conclude it was unreasonable for the juvenile court to find Father did not meet his burden under section 361.5, subdivision (c). The juvenile court noted that Father's current efforts were good, but it could not ignore Father's "severe history" of drug abuse, and his tendency to relapse when in less structured environments. "Substance abuse is notoriously difficult for a parent to overcome, even when faced with the loss of . . . children." (In re William B. (2008) 163 Cal.App.4th 1220, 1228.) Father's history demonstrates this difficulty, and it was reasonable for the juvenile court to take Father's history into account.
Furthermore, it was reasonable for the juvenile court to conclude the bond between Father and Minor was not a strong one. Although the juvenile court did not hold it against Father that he missed some visits due to the logistics of getting to them, the juvenile court noted Minor was only two years old, Father had been in jail for six months, and Father admitted to regular heroin use after Minor was born. The court properly emphasized the importance of getting Minor into "a permanent stable environment." (In re Ethan N., supra, 122 Cal.App.4th at p. 67 [child's need for stability and continuity is "[o]f paramount concern"].) Even considering the evidence of Father's renewed efforts at sobriety, the juvenile court did not abuse its discretion in determining it would not be in Minor's best interest to provide reunification services to Father.
DISPOSITION
Father's petition seeking extraordinary relief from the juvenile court's September 14, 2017 order is denied on the merits. This decision is final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.