Opinion
E073209
09-18-2019
K.B., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Harold Gun Lai, Jr., for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J280598) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Erin K. Alexander, Judge. Petition denied. Harold Gun Lai, Jr., for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel, for Real Party in Interest.
I
INTRODUCTION
K.B. (Mother) has a history with child protective services due to a chronic addiction to methamphetamine. Prior to the current case, Mother lost custody of her five older children. In the present matter, the juvenile court denied Mother reunification services pursuant to the bypass provisions of Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (b)(11) (hereafter section 361.5(b)(10) and (b)(11)), and set a section 366.26 hearing for Mother's youngest daughter, D.K. Mother has filed a petition seeking extraordinary writ review of the juvenile court's order denying her reunification services. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) She argues that the court erred in denying her reunification services pursuant to section 361.5(b)(10) and (b)(11) and that reunification services were in D.K.'s best interest. We find that substantial evidence supports the juvenile court's orders and deny the petition.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
D.K.'s father, D.K. (Father), is not a party to this appeal. --------
II
FACTUAL AND PROCEDURAL BACKGROUND
D.K. is one of Mother's six children. Due to Mother's history of abusing methamphetamine and her failure to remain sober, drug test regularly, and participate and complete the reunification services offered to her, she lost custody of her five older children. In 2007, a relative obtained legal guardianship of Mother's two eldest children, F.B. and A.B. In September 2013, Mother's parental rights were terminated as to D.K.'s sibling J.W., and J.W.'s adoption was finalized in December 2014. J.W. was born with significant heart problems, including pulmonary atresia, tricuspid valve hypoplasia, coronary stenosis and interruption, and large coronary sinusoids. In May 2015, Mother's parental rights were terminated as to D.K.'s sibling, C.W., and C.W.'s adoption was finalized in November 2015. In April 2014, Mother's parental rights were terminated as to D.K.'s sibling, H.W., and H.W.'s adoption was finalized in October 2018.
Mother also has a lengthy criminal history, beginning in 2007 when she was charged with murder, and subsequently convicted as an accessory. She also has several burglary convictions, numerous drug-related convictions, and a vehicle theft conviction. Furthermore, at the time of D.K.'s detention, Mother had a $5,000 warrant out for her arrest for "[d]angerous" drugs issued on August 29, 2018.
D.K., who was one month old, came to the attention of the San Bernardino County Children and Family Services (CFS) on March 4, 2019, due to allegations of severe and general neglect. An officer, who was investigating an attempted murder allegation against Father, reported that when he went to Mother's home to make contact with Father, the smell in the home was so bad he could not remain inside. The officer also noted that Mother and D.K. were also living in the home and that the conditions of the home were unhealthy and deplorable.
When CFS went to the home to investigate, neither Mother nor D.K. were home. The social worker eventually contacted Mother on the phone. Mother claimed that she was on her way to Sacramento and that she was leaving to "'get away from everything.'" Mother also stated that she could not speak with the social worker because D.K. was asleep and hung up the phone. For weeks thereafter, CFS was unable to locate Mother or D.K., and Mother made great efforts to avoid contact with CFS and law enforcement. CFS texted Mother's phone, left voicemail messages, left business cards, sent her letters, went to her last known addresses, and contacted the maternal and paternal relatives, to no avail. One relative reported that Mother was a "'hooker'" at Waterman Park.
On April 8, 2019, the maternal grandmother reported that Mother dropped D.K. off in Rialto, California, with "soon to be" alleged godparents of D.K. for them to assume guardianship of D.K. The alleged godparents stated that Mother had dropped D.K. off with them on March 6, 2019, while Mother took care of her "'legal issues'" and that Mother had asked them to be D.K.'s temporary guardians. On April 10, 2019, the alleged godparents reported that Mother picked up D.K. the prior night and went to stay at a cousin's home. Mother's efforts to avoid CFS and law enforcement led CFS to obtain a detention warrant for D.K. on April 10, 2018. As of April 15, 2019, CFS had been unable to locate either Mother or D.K.
On April 12, 2019, CFS filed a petition on behalf of D.K. pursuant to section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling).
At the April 15, 2019 detention hearing, neither D.K. nor the parents were present. Father was incarcerated for attempted murder and refused to be transported to the hearing, stating "It's not my problem." The juvenile court formally detained D.K. from parental custody and ordered Mother to drug test.
CFS made 18 calls to various phone numbers for Mother in an attempt to locate her. Nine addresses for her were also researched and letters were sent to those nine last known addresses to notice Mother of the upcoming hearing. Numerous other attempts were made to locate Mother using multiple other search methods to no avail.
Mother was eventually located and appeared at the scheduled May 6, 2019 jurisdictional/dispositional hearing. The court ordered Mother to provide the location of D.K. in order for CFS to detain D.K. Mother was also ordered to appear the next day for a continued jurisdictional/dispositional hearing.
On May 7, 2019, CFS informed the court that D.K. was finally in their custody. D.K. was placed in the paternal grandparents' home. Mother requested the matter be set for a contested jurisdictional/dispositional hearing, and the hearing was continued to July 17, 2019. Mother was ordered to drug test on July 5, 2019, but she failed to test, indicating a positive result.
The contested jurisdictional/dispositional hearing was held on July 17, 2019. CFS recommended that Mother receive no reunification services due to her long history of failing to reunify with her other five children and due to her chronic substance abuse and criminal history. Specifically, CFS noted Mother was previously offered ample resources and opportunities to improve her life and provide for the safety of her other children, and yet failed to resolve the issues that led to the removal of her children. Minor's counsel agreed with CFS's recommendations and asked the court to find the bypass provisions applied to Mother.
Mother's counsel argued that Mother was making efforts to treat her substance abuse by participating in a 12-step program through Narcotics Anonymous (NA) and attending NA meetings four to five times a week, and requested the court provide Mother with reunification services. In support of the request, Mother testified and also provided two character letters and a rental agreement from Arizona. The only drug test entered into evidence was a "no show" by Mother on July 5, 2019, in which Mother admitted to knowing she was ordered to drug test. In her testimony, Mother admitted to using drugs as recently as August 2018, during her pregnancy with D.K., but noted D.K.'s tests for drugs were negative at birth. She acknowledged that even when going to NA meetings prior to when D.K. was born, it was hard for her to get clean. Mother presented no sign-in proof of attending NA meetings or clean drug tests. She also admitted that she did not drug test at NA meetings, explaining her sponsor, who resided in Arizona, normally tested her once a month but that she had not drug tested in the last two months. Mother acknowledged that she was not currently attending any substance abuse treatment program and believed she did not need a drug program because attending NA and having a sponsor was sufficient. She noted that the last substance abuse treatment program she participated in was in 2011. Mother also admitted to not attending any other classes or programs in furtherance of reunification services. In addition, she admitted she was arrested in February 2018 and September 2016 for possession of methamphetamine, and that methamphetamine was her drug of choice. She acknowledged that the warrant for her arrest was issued and open, and that she had not taken care of it and was "working on it still."
Following argument, the juvenile found true the allegations in the petition and declared D.K. a dependent of the court. The court denied reunification services to Mother pursuant to section 361.5(b)(10) and (b)(11) and set a section 366.26 hearing. The court explained that given her "lengthy history," in "order to fully resolve those issues and the risk, Mom's going to need to be able to show a lengthy period of stability and sobriety." The court also noted "Mom's indicated previous completions of treatment programs and then relapses and going back to her addiction," "re-engaging fully in the addictions." The court was also concerned that Mother was present during the court proceedings since May 2019, and aware of the proceedings since March 2019, and yet she had failed to drug test, failed to start a treatment program, failed to cooperate with CFS, and actively hid D.K.
On July 17, 2018, Mother filed a notice of intent to file a writ petition.
III
DISCUSSION
Mother argues the juvenile court erred in bypassing her reunification services pursuant to section 361.5(b)(10) and (b)(11) because she was making reasonable efforts to treat her substance abuse problem by attending NA meetings, she had been participating in a 12-step program for over a year, and ordering reunification services was in D.K.'s best interest. We disagree.
Section 361.5, subdivision (a), generally mandates that reunification services are to be provided whenever a child is removed from the parent's custody. However, subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services may be bypassed. "These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances. [Citation.]" (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) It is also the "intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) The bypass finding must be made "by clear and convincing evidence." (§ 361.5, subd. (b).)
We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Under such circumstances, we do not make credibility determinations or reweigh the evidence. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) Rather, we "review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings." (Ibid.)
In this case, the juvenile court ordered that reunification services were not to be provided to Mother pursuant to section 361.5(b)(10) and (b)(11). "[O]nly one valid ground is necessary to support a juvenile court's decision to bypass a parent for reunification services." (In re Madison S. (2017) 15 Cal.App.5th 308, 324; accord, Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121 (Jennifer S.).) We will focus on section 361.5(b)(11), under which reunification services need not be provided if the court finds by clear and convincing evidence that (1) "the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, . . . and that, [(2)] 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." (§ 361.5, subd. (b)(11); see K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393 (K.C.).) This statute "recognizes the problem of recidivism by the parent despite reunification efforts." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
With respect to the second prong of the section 361.5, subdivision (b)(11) requirements for bypass, "[t]he 'reasonable effort to treat' standard 'is not synonymous with "cure."'" (K.C., supra, 182 Cal.App.4th at p. 1393.) "To be reasonable, the parent's efforts must be more than 'lackadaisical or half-hearted.'" (Ibid.) Instead, it "focuses on the extent of a parent's efforts, not whether he or she has attained 'a certain level of progress.'" (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.) However, "[w]e 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." (Ibid.)
Where a bypass provision applies, a court may not order reunification services unless the parent establishes by clear and convincing evidence services would be in the child's best interest. (§ 361.5, subd. (c).) We review the court's section 361.5, subdivision (c) determination for abuse of discretion. (In re Lana S. (2012) 207 Cal.App.4th 94, 109.)
Here, substantial evidence supports the denial of reunification services for Mother pursuant to section 361.5(b)(11). There is no dispute that Mother's parental rights were terminated as to three of her other children. In addition, her claim that she made substantial efforts to treat the problems that led to the removal of the children lacks merit. (See K.C., supra, 182 Cal.App.4th at pp. 1393-1394.)
In September 2013, Mother's parental rights were terminated as to D.K.'s sibling J.W. J.W. was born with significant heart problems. In April 2014, Mother's parental rights were terminated as to D.K.'s sibling H.W. And in May 2015, Mother's parental rights were terminated as to D.K.'s sibling C.W. H.W.'s adoption was finalized in October 2018, about six months before D.K. was ordered removed from Mother's custody in April 2019, and actually removed in May 2019. Mother admitted to using methamphetamine while she was pregnant with D.K. By all accounts, Mother is a chronic methamphetamine user who has failed to take advantage of services to maintain her sobriety. By the time of the July 17, 2019 contested jurisdictional/dispositional hearing, Mother had made minimal efforts to treat her 13-plus year methamphetamine addiction. She claimed that she was attending NA meetings four to five times a week, that she was participating in a 12-step program for approximately a year, and that she had a NA sponsor. However, she failed to substantiate her claims by providing proof of attendance or drug tests showing she was testing clean and had stopped using methamphetamine. She also failed to attend her July 2019 drug test. She had not entered a substance abuse treatment program since 2011 and believed she did not need a drug program. The juvenile court's decision to bypass reunification services for Mother pursuant to section 361.5(b)(11) was thus sufficiently supported by the evidence. (See Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1124; K.C., supra, 182 Cal.App.4th at p. 1394.)
We also reject Mother's claim that providing reunification services was in D.K.'s best interest. (Jennifer S., supra, 15 Cal.App.5th at p. 1125.) There is no evidence in the record to support such a claim. On the contrary, the record shows that it was not in D.K.'s best interest to provide Mother with reunification services. Mother fled with D.K., who was one month old at the time, dropped her off at D.K.'s alleged godparents' home for them to obtain temporary guardianship of D.K., and avoided contact with CFS and law enforcement for about two months. Moreover, Mother had not sufficiently maintained sobriety nor did she acknowledge she needed to participate in a substance abuse treatment program.
In view of the record, including evidence of Mother's continued drug use after her parental rights were terminated as to D.K.'s siblings, ample evidence supports the juvenile court's determination that Mother had not made a reasonable effort to treat the problems that led to the siblings' removal. (Jennifer S., supra, 15 Cal.App.5th at p. 1124 ["juvenile court could reasonably infer a continuing problem"].) Accordingly, the juvenile court properly denied reunification services to Mother pursuant to section 361.5(b)(11).
IV
DISPOSITION
Mother's petition for extraordinary writ is denied on the merits.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: RAPHAEL
J. MENETREZ
J.