Opinion
E081130
06-23-2023
J.R., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Office of the Juvenile Defense Panel and Johanna Mares, for Petitioner. Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. No. DPRI2300031 Dorothy McLaughlin, Judge. Denied.
Office of the Juvenile Defense Panel and Johanna Mares, for Petitioner.
No appearance for Respondent.
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Real Party in Interest.
OPINION
McKINSTER J.
The juvenile court denied petitioner, J.R. (mother), reunification services as to B.B. and M.B. (minors), pursuant to the bypass provision of Welfare and Institutions Code section 361.5, subdivision (b)(10) (reunification services previously terminated as to another child), and set the section 366.26 hearing. Mother contends insufficient evidence supports the order. We deny the petition.
All further statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 26, 2021, personnel from respondent, Riverside County Department of Public Social Services (the department), received a report of allegations of emotional abuse and domestic violence with respect to minors' five older siblings (the children). Mother acknowledged domestic violence and obtained a restraining order protecting herself and the children from father. However, father later returned to the home.
Father is not a party to the petition.
On September 21, 2021, personnel from the department received a second referral. On August 26, 2021, officers had arrested father for domestic violence against mother. Father had twice hit mother in the face. Mother was uncooperative with the investigation. Father denied knowledge of the restraining order. Mother acknowledged she had not served father with the restraining order.
On September 15, 2021, officers had pulled father over with one of the children in the car; the officers arrested father; a firearm was found next to the child in the vehicle. Mother subsequently gave birth to minors. Department personnel took the children into protective custody.
As part of mother's service plan, she had agreed to drug testing; however, mother had failed to test for three months. The court subsequently removed the children.
On January 19, 2023, mother called the social worker and reported father had struck her in the face. Officers subsequently arrested father for corporal injury to a spouse. Mother admitted using methamphetamine two years earlier. Mother tested negative for illicit substances. On January 20, 2023, the social worker took minors into protective custody pursuant to a warrant.
The jurisdiction and disposition report reflects that mother tested positive for amphetamines on January 20, 2023.
On January 24, 2023, department personnel filed a section 300 petition as to minors alleging that mother had an open case regarding drug use and domestic violence as to the children (b-1), mother had a history of domestic violence (b-2), and mother had a history of abusing controlled substances (b-3). The next day the court detained minors.
In the jurisdiction and disposition report filed February 10, 2023, the social worker recommended the court deny reunification services pursuant to the bypass provisions of section 361.5, subdivisions (b)(10) and (b)(13) (parent has history of extensive, abusive, chronic use of drugs). On February 2, 2023, the court terminated mother's reunification services as to the children.
At the disposition hearing, counsel for the department removed the recommendation that the juvenile court deny mother's reunification services pursuant to section 361.5, subdivision (b)(13).
Mother had recently completed a case plan with services pertaining to issues of "domestic violence, anger management, parenting, individual counseling, couples counseling, and substance abuse prevention. Although the mother . . . [has] successfully completed these services, it is evident the [mother] failed to truly benefit from the mentioned services as [she] . . . engage[d] in a domestic violence incident within three hours after meeting with the Department regarding concerns for domestic violence and substance abuse."
Mother had a criminal history which included a conviction for infliction of corporal injury in October 2019. Mother admitted she had recently failed to drug test, that she had a history of abusing controlled substances, that she and father had a history of domestic violence, and that they had recently engaged in domestic violence. Father confirmed that mother had a history of abusing controlled substances, that he and mother had a history of engaging in domestic violence, and that they had recently engaged in domestic violence. The paternal grandmother "stated the parents lived with her on three different occasions, but due to the domestic violence she asked them to leave the home." She said that parents had been fighting ever since they were together. Mother agreed to participate in a case plan to include drug treatment, random testing, and domestic violence counseling.
In an addendum report filed March 8, 2023, the social worker reported that on February 8, 2023, mother self-enrolled in a residential substance abuse treatment program. On February 16, 2023, mother left the "program due to the facility being filthy and that she was not allowed to seek employment." On February 24, 2023, mother enrolled in a substance abuse treatment program and later tested negative for all controlled substances. The social worker referred mother to domestic violence counseling on January 31, 2023; as of the date of the report, mother had yet to enroll.
At the hearing on March 13, 2023, mother submitted on the petition based on the social worker's reports. The court found the allegations as to mother true, sustained the petition, and took jurisdiction of minors. The court bifurcated the matter for disposition, setting the contested disposition hearing for April 12, 2023.
In an addendum report filed April 7, 2023, the social worker noted that mother had filed a request for a domestic violence restraining order against father on February 14, 2023; the court temporarily granted the request. Mother failed to show for the hearing for a permanent order, and the court dissolved the temporary restraining order. Mother began her enrollment in domestic violence counseling and was scheduled to complete her intake on April 11, 2023.
Mother failed to show for substance abuse counseling on 11 occasions during the reporting period. Mother twice tested negative for controlled substances but failed to show for three tests.
At the contested disposition hearing on April 12, 2023, mother's counsel argued that, as the victim of domestic violence, she had called law enforcement, no longer lived with father, obtained a temporary restraining order, and filed for divorce. Mother's counsel asserted a restraining order was now in effect through March 7, 2026. Mother was testing negative for controlled substances and had missed tests and classes only because she had been evicted and had been participating in classes.
The court confirmed the existence of a criminal protective order, not a restraining order, issued by a court on March 7, 2023, and expiring on March 7, 2026: "I would note that in trying to locate this, the courtroom assistant was looking up some family law cases. And apparently there's two separate family law cases that may have involved restraining orders, but those restraining orders didn't go forward. I think people didn't show up to the hearings for whatever reason."
Counsel for the department argued that mother had received over a year of services as to the children with respect to allegations of domestic violence. Nonetheless, mother continued her relationship with father resulting in further incidents of domestic violence. Mother had not even completed intake for her domestic violence services in this case. Mother had tested positive for methamphetamine in January 2023, failed to show for testing, and failed to show for counseling. Minors' counsel joined the department counsel's arguments and asserted that mother had not benefited from services.
The court found minors dependents of the court and removed them from mother's custody. The court denied mother reunification services, finding by clear and convincing evidence that mother was a person described in section 361.5, subdivision (b)(10), and that reunification services were not in the best interest of minors. The court set the matter for a hearing pursuant to section 366.26.
II. DISCUSSION
Mother contends insufficient evidence supports the juvenile court's order denying her reunification services pursuant to section 361.5, subdivision (b)(10). We disagree.
"Section 361.5, subdivision (b), states that '[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . and that parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling ....'" (In re B.H. (2016) 243 Cal.App.4th 729, 735-736 (B.H.).)" 'When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be" 'an unwise use of governmental resources.'" [Citation.]' [Citation.]" (Id. at p. 736.)
"Section 361.5, subdivision (b)(10), contemplates a two-prong inquiry: (1) whether the parent previously failed to reunify with the child's sibling or half sibling; and (2) whether the parent 'subsequently made a reasonable effort to treat the problems that led to [the] removal of the sibling or half sibling.' [Citation.]" (B.H., supra, 243 Cal.App.4th at p. 736.)
Mother did not contest the first prong below, and she does not argue its inapplicability on appeal. Mother's argument focuses on the second prong, that insufficient evidence supports the juvenile court's finding that she did not make reasonable efforts to treat the problems that led to the removal of the children.
" 'We do not read the "reasonable effort" language in the bypass provisions to mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable.' [Citation.]" (In re D.H. (2014) 230 Cal.App.4th 807, 816.)
"Despite the applicability of subdivision (b)(10) . . . of section 361.5, the court retains authority to order services if it finds by clear and convincing evidence they would be in the children's best interests. [Citation.] In making its determination, the court may consider the 'failure of the parent to respond to previous services.' [Citation.]" (In re Lana S. (2012) 207 Cal.App.4th 94, 109.) The parent "has the burden of proving her children would benefit from the provision of court-ordered services. [Citation.]" (Ibid.)
" 'The standard of review of a dispositional order on appeal is the substantial evidence test, "bearing in mind the heightened burden of proof."' [Citations.]" (In re Madison S. (2017) 15 Cal.App.5th 308, 325.) "[O]nly one valid ground is necessary to support a juvenile court's decision to bypass a parent for reunification services ...." (Id. at p. 324.)
"In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.' [Citations.]" (In re Caden C. (2021) 11 Cal.5th 614, 640.)
Here, the reason for the court's termination of mother's reunification services as to the children was mother's continuing abuse of controlled substances and placement of herself and the children at risk of domestic violence. With respect to mother's use of controlled substances, mother tested positive for marijuana in October 2020 when giving birth to one of the children. She had previously tested positive for amphetamines during a prenatal visit. As part of mother's service plan, she had agreed to drug testing; however, mother had failed to test for three months.
Mother admitted to past use and abuse of controlled substances. Father confirmed that mother had a history of abusing controlled substances.
With respect to issue of domestic violence, mother had a criminal history which included a conviction for infliction of corporal injury in October 2019. On August 26, 2021, department personnel received a report of allegations of domestic violence. Mother acknowledged domestic violence and obtained a restraining order protecting herself and the children from father. However, mother later allowed father to return to the home.
On August 26, 2021, officers arrested father for domestic violence against mother. Father had twice hit mother in the face. Mother was uncooperative with the investigation. Mother acknowledged she had not served father with the restraining order. On January 19, 2023, mother called the social worker and reported father had again struck her in the face. Officers subsequently arrested father for corporal injury to a spouse.
Mother admitted she and father had a history of domestic violence and had recently engaged in domestic violence. Father confirmed that he and mother had a history of engaging in domestic violence, and that they had recently engaged in domestic violence. The paternal grandmother "stated the parents lived with her on three different occasions, but due to the domestic violence she asked them to leave the home." She said that parents had been fighting ever since they were together.
Yet, even after over a year of services directed at ameliorating these issues, the juvenile court terminated mother's reunification services as to the children because mother failed to make sufficient efforts to address the problems. And, the court's later finding that mother had failed to make subsequent, reasonable efforts to ameliorate the problems finds ample support in the record.
Mother agreed to participate in a new case plan to include drug treatment, random testing, and domestic violence counseling. Mother enrolled in a residential substance abuse treatment program but left after just a week. Mother enrolled in a substance abuse treatment program but failed to show for counseling on 11 occasions. Although mother apparently tested negative for controlled substances on three occasions, she failed to show for three tests and tested positive on one occasion. Thus, substantial evidence supports the court's implicit finding that mother had failed to make reasonable efforts to treat her drug abuse issues.
With respect to the domestic violence issues, the social worker had referred mother to domestic violence counseling on January 31, 2023. Yet, by the time of the disposition hearing more than two months later, mother had yet to complete enrollment. Moreover, although mother had filed for and obtained a temporary restraining order against father, she failed to show for the hearing on a permanent restraining order; the court then dissolved the temporarily restraining order. Thus, substantial evidence supported the court's implicit finding that mother had failed to make reasonable efforts to treat the domestic violence issues. Therefore, substantial evidence supports the juvenile court's order denying mother reunification services.
III. DISPOSITION
The petition for extraordinary writ is denied.
We concur: RAMIREZ P. J. RAPHAEL J.