Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. 24125A
RIVERA, J.
L. F. (Mother) seeks extraordinary review of an order setting a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). (Cal. Rules of Court, rule 8.452.) We deny the petition on the merits.
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A. The Petition
Marin County Department of Health and Human Services (the department) filed a petition pursuant to section 300 on June 11, 2007, alleging that I. F. fell within the jurisdiction of the juvenile court. Pursuant to section 300, subdivision (b), the petition alleged that F. F. (Father) was unable to care for I. F., and Mother’s chronic substance abuse impaired her ability to care for I. F. According to the petition, Father had reported to a social worker with the Contra Costa County Child Protective Services that he had seen Mother “ ‘doing speed’ ” at a friend’s house on June 5, 2007. Mother had refused to submit to a drug test after the report, and she had not complied with a voluntary family maintenance case plan. The petition also alleged pursuant to section 300, subdivision (j) that I. F.’s older brother had been neglected and that Mother and Father had not made significant progress toward addressing the issues that had brought the family to the attention of Contra Costa County Children and Family Services.
Father is not a party to this petition. We will recite the facts regarding Father only to the extent they are necessary for an understanding and resolution of Mother’s petition.
On the court’s own motion, we take judicial notice of the record in a prior appeal arising from the same underlying case, In re I. F. (Oct. 5, 2007, No. A118749).
B. Detention Proceedings
I. F. was briefly detained, and was returned to Mother’s custody on June 8, 2007. The social worker who returned him reported that the home was clean at the time. According to the detention report, this was the first legal proceeding for I. F., although Mother and Father’s parental rights to his older brother had been terminated after they had received two years of services. At the time I. F. was detained, Mother had criminal charges pending for child endangerment/neglect and possession of methamphetamines, marijuana, and hypodermic syringes as a result of an arrest in January 2007, when she was found driving with methamphetamine, marijuana, a “roach clip,” and several hypodermic needles—two with blood on them—in her purse. A bottle of prescription medicines was under I. F.’s car seat. The car had a strong foul odor, and garbage and other property were piled high in the vehicle. I. F. was in the car. He was soaked with urine and was not wearing a diaper.
After her January 2007 arrest, Mother had been offered a voluntary family maintenance plan, which required her to obtain a restraining order against Father and to participate in random drug testing. Mother did not comply with the plan. On one occasion, in April 2007, Mother was asked to test for drugs, but she called four hours later saying she had lost her identification and could not take the test unless the social worker went with her. In addition, I. F. had attended preschool only sporadically, and his language development appeared delayed. Mother had also failed to meet the requirements of her family maintenance plan that she address her health issues, seek out a therapist, and follow up with services to protect herself against abusive relationships with men.
According to the detention report, after Father reported that he had seen Mother using drugs in June 2007, Mother denied having taken drugs and contended that Father had “trick[ed] her” in order to take I. F. Mother had told the social worker many times that she was afraid of Father. However, although her voluntary case plan had required her to seek a protective order against Father, she had not done so. When the social worker asked Mother why she allowed Father to be with I. F., Mother became angry and said that she did not trust Marin County Child Protective Services and no longer wanted services from the department. When the social worker asked her to take a drug test, Mother said, “ ‘I will not go and test because you fucked me. You take kids [from] good homes and you are sick, sick, and sick. I no longer believe in the system, and will go drug test and you can take the results and stick them up your arse,’ ” and hung up the telephone. Mother later stated that she would submit to a test, the results of which were pending at the time of the detention report.
As of the time of the dispositional hearing in September 2007, the department had still not received the test results. A social worker testified that she asked the laboratory about the results, and was told the sample Mother provided had not been tested because Mother did not submit the necessary paperwork with the sample.
At a detention hearing on June 12, 2007, the juvenile court received into evidence four photographs that Father testified he had taken of Mother at her home on June 9, 2007, the day after I. F. was returned to Mother, which he stated showed Mother sleeping on a sofa with her back to the camera. He testified that I. F. was in the home at the time, in a bedroom. Hypodermic needles and syringes were visible in the photographs. A social worker testified that she was concerned about I. F. having access to Mother’s drug paraphernalia, particularly because Mother was HIV positive.
The juvenile court ordered I. F. detained, and found that it would be contrary to his welfare to return him to his parents and that reasonable efforts had been made to eliminate the need for removal.
C. Jurisdictional Proceedings
A report filed on June 25, 2007, for a jurisdictional hearing recommended that the court take jurisdiction of I. F. The report stated that Mother currently had charges pending for possession of marijuana, controlled substances, and hypodermic needles, and willful cruelty to a child, arising out of the January 2007 arrest. According to the report, Mother had told the social worker that the pictures admitted into evidence at the detention hearing were “ ‘not true, and you bought into [Father’s] manipulations.’ ” The report also noted that Father had reported that on June 5, 2007, he had seen Mother doing “ ‘speed,’ ” and that he had then taken the child to Contra Costa Child Protective Services.
The charges were later dismissed, apparently because the Marin County District Attorney’s Office was concerned that the case would be difficult to prove, since Father, who had an extensive criminal history, would be one of the primary witnesses.
The report’s statements regarding the June 5, 2007, incident were excluded from evidence at the jurisdictional hearing, apparently because Father did not testify about the incident at the detention hearing and he did not attend the jurisdictional hearing. However, because Father had testified about the pictures at the detention hearing, the court admitted evidence of the pictures at the jurisdictional hearing on the ground Father was unavailable as a witness. (Evid. Code, §§ 240, 1291.)
The department filed an amended dependency petition on July 3, 2007, which added an allegation that Mother was unable to keep drug paraphernalia away from I. F. due to chronic substance abuse. In an addendum to the jurisdictional report, the department recommended that reunification services be bypassed pursuant to section 361.5, subdivision (b)(10) and (13).
The jurisdictional hearing took place in September 2007. Testimony at the hearing indicated that a social worker who visited Mother in April 2007, Caroline Ngumi, found I. F. looking well and no signs of drug use in the home. On the occasion that Mother did not take a drug test and told Ngumi she was unable to do so because she did not have her identification with her, she left a message asking a social worker to come to the testing center to help her test; however, Ngumi did not receive the message until the following day. When another social worker returned I. F. to Mother on June 8, 2007, after he was taken from her as a result of Father’s statement that she had been using speed, the home was clean, Mother’s behavior was appropriate, and the worker had no concerns about safety or drug use in the home. Ngumi was concerned about I. F., however, based on Mother’s failure to comply with the voluntary case plan and I. F.’s sporadic attendance at preschool. Furthermore, Ngumi believed that the pictures Father had shown her on June 12 made it clear that I. F. was at risk.
However, the social worker had made an unannounced visit to the home on the previous day; no one answered the door, although she could hear someone moving around inside, and she smelled what she believed might be marijuana coming from the home. She later determined that I. F. had been at home on that day.
Ponta Ghofrani, the social worker who worked with Mother to prepare the voluntary case plan, testified that when she first tried to meet with Mother at her home, Mother would not let her inside. Ghofrani went to Mother’s house at the end of January 2007, and found it was appropriate for a child to live in, with no drugs or paraphernalia visible.
A friend of Mother’s, Sandra S., testified that she had known Mother for five years. Sandra S., who was pursuing a graduate degree in psychology and who had stayed with Mother during July and August of 2005, testified that she had observed Mother with I. F. and that she had never seen Mother abusing I. F. in any way, that Mother was a loving parent and had a close relationship with I. F., and that Mother was not using drugs. Sandra S. believed Father had planted the drugs and paraphernalia found in Mother’s car in January 2007 and that Father was “a menace to society and a scam artist.” Sandra S. had heard Father tell Mother that if she did not let him use her address as a parole address, he would “ruin her life, plant drugs in her vehicle, do whatever he had to do to take the baby from her, [and] keep her housing from her.” Mother fed I. F. well, allowed him to watch only educational programs on television, rode bikes with him, and took him to the beach. According to Sandra S., Mother’s life ran smoothly when Father was in custody, but “drama” took place when Father was around. Sandra S. had not seen Mother since April or May of 2007.
The juvenile court admitted this testimony to the extent it was relevant to the origin of the needles in the photographs Father had taken.
The juvenile court sustained an allegation that there was a substantial risk that I. F. would suffer harm by Mother’s inability to provide regular care for him due to chronic substance abuse, an allegation that I. F.’s brother had been neglected and there was a substantial risk that I. F. would also be neglected and that Mother and Father had not made significant progress toward addressing the issues leading to the brother’s dependency, and an allegation that Father was unable to provide adequate food, clothing, and shelter.
D. Dispositional Proceedings
A disposition report filed in September 2007 recommended that the court bypass family reunification services with regard to both Mother and Father pursuant to section 361.5, subdivision (b)(10), because a permanent plan had been ordered for a sibling and the parents had not made reasonable efforts to treat the problems leading to the removal, and subdivision (b)(13), because the parents had a history of chronic abuse of drugs and had resisted or failed to comply with treatment.
The September 2007 disposition report detailed the history of the dependency proceeding of J. F., I. F.’s older brother, which had taken place in Contra Costa County. J. F. was removed from Mother’s home in about May 2003. The section 300 petition alleged that Mother had refused medical treatment for the child, that Mother and Father had engaged in domestic violence in front of J. F. and had injured him during a fight, that both parents had substance abuse problems that impaired their ability to care for J. F., and that Father’s whereabouts were unknown. J. F. was returned to Mother on condition that she successfully complete a residential treatment program. However, in August 2003, Mother was discharged from the program she entered for failure to comply with its rules, and J. F. was detained. She was later discharged from another program for failure to obey its rules and refused to enter a third. In December 2003, child protective services recommended termination of family reunification services. On January 27, 2004, the juvenile court terminated reunification services as to both parents and scheduled a .26 hearing. However, Mother filed a petition pursuant to section 388 on the ground that she had enrolled in and successfully completed 90 days of a residential treatment program. The section 388 petition was granted in April 2004, J. F. was returned to Mother, and the court ordered an additional six months of reunification services. Family maintenance services were ordered for Mother in October 2004 and May 2005. By June 2005, however, both parents stated they wanted to give up J. F. for adoption, and he was placed in foster care. The parents signed the relinquishment documents in July 2005. A .26 hearing took place in November 2005, at which Mother and Father indicated they wanted to relinquish J. F. J. F.’s adoption was finalized in February 2006.
In support of its conclusion that Mother had not made reasonable efforts to treat the problems that led to the removal of J. F., the report noted that in December 2006, Marin County Child Protective Services received a referral regarding I. F. According to the reporter, Father had been released from jail and had been seen visiting Mother’s home, and Mother’s stability had “ ‘gone downhill.’ ” Mother had made statements such as “ ‘Big Brother is watching,’ ” and “ ‘all of the rich people are going to be beamed to another planet and the poor are going to remain and die when the asteroids hit the planet.’ ” A social worker investigated and offered Mother a voluntary case plan. Mother refused services, including help in obtaining a restraining order against Father. Mother had allowed Father to be put on her apartment lease, and although she had reported that Father was threatening her life, Mother said she did not seek a restraining order because she was afraid of him. After her January 2007 arrest for possession of drugs and paraphernalia and willful cruelty to I. F., Mother signed a voluntary case plan. The plan included therapy, domestic violence services, including obtaining a restraining order, attending appointments to address her illness, ensuring that I. F.’s health and educational needs were met, and random drug testing. Although Mother indicated on more than one occasion that she was working on obtaining a restraining order, she had not obtained one. A social worker heard from staff at I. F.’s preschool in April 2007 that Mother was not bringing him to preschool consistently. I. F.’s teacher told a social worker that she was concerned about I. F.’s behavior at school. When there was too much noise, I. F. would go in a corner, hold his head, and start rocking himself. The teacher had seen the Mother yelling around I. F. and telling him that Father was out to kill her. The school had offered counseling services for Mother and speech therapy for I. F., but Mother had refused. A social worker visited Mother in April 2007 and spoke with her about using the speech therapy services. Mother said she was not willing to take I. F. for an assessment. She also said she had not gone for a therapy appointment at the family service agency, that she was not following up on her medications, and that she had not sought a restraining order against Father.
In April 2007, Father spoke with a program manager at the department and told her Mother was “actively ‘using’ and not taking care of I. F.” On May 7, 2007, a social worker asked Mother to take a drug test during the next 24 hours. Mother left a message the following day saying she could not be tested because she had no paperwork or identification. The social worker did not receive the message until May 9, and could not reach Mother by telephone.
The detention report had indicated that what appears to be the same incident had occurred in April 2007.
As we have discussed, I. F. was detained in June 2007. A social worker tried to meet with Mother after a visit with I. F. on July 23, 2007. Mother refused to remain in the office and left the building. The social worker followed Mother to the parking lot and “pleaded with her to stop and discuss the case and available services.” Mother was agitated, and yelled and cursed at the social worker. She said she would not accept the services the department offered, and said she intended to go to court and “ ‘tell off the judge.’ ” Three days later, the social worker again spoke with Mother about the need to use the substance abuse treatment, substance abuse testing, and counseling services in order to have a chance to reunify with I. F. Mother told the social worker she did not trust the system and “ ‘doesn’t have to tell anything’ ” and accused the social worker of trying to sell I. F. on the Internet. On August 3, 2007, the social worker met with Mother and her attorney, and again offered support services, including a request to undergo a random drug test. Mother became agitated and said she would not work with the department even if it meant permanently losing her son. After the meeting, Mother left a message saying she might get a drug test from her own doctor. However, she refused to sign a release that would allow the worker to speak with her physician to see if Mother had taken the test. She frequently said the department was a terrorist organization, and said she would spend her life “ ‘trying to take it down,’ ” and “ ‘making sure [they] all got fired.’ ”
At the time of the disposition report, Mother and Father were separated. Mother had said she was afraid of Father and believed he would harm her. However, despite repeated advice by social workers, physicians, parole and probation officers, and others, Mother had not obtained a protective order against Father. She was not taking the medications recommended for her life-threatening illness.
Mother’s doctor later testified that Mother’s viral loads were low and her T-cell count was almost always within the normal range, and that she did not need medications at the time.
Mother was allowed two supervised visits with I. F. a week. She had successfully attended 12 of the 21 scheduled visits, and on August 20, 2007, had repeatedly stated during her visit that she might not come back again and that it might be the last time she would see I. F. However, her behavior during visits was otherwise appropriate; she would bring art supplies and engage in age-appropriate activities during the visit. I. F. was happy to see his mother and would at times be unhappy when the visits ended. Mother had not visited I. F. since August 20.
At the disposition hearing, a social worker testified that there had been additional visits and that as of September 21, Mother had attended 16 out of 26 scheduled visits since June.
In light of the parents’ extensive history of substance abuse, criminal behavior, and domestic violence, and their unwillingness to accept services, the department recommended bypassing reunification services and setting a .26 hearing.
At the dispositional hearing, Kristin Shore, a social worker who had tried to arrange services with Mother, testified that from her first meeting with Mother in mid-July 2007, Mother had told her she was not interested in services and that she would not speak with Shore about services. Shore testified that I. F.’s brother J. F. had been removed from his home in 2003 because of domestic violence between Mother and Father, chronic substance abuse on the part of both parents, and Father’s serious health issues. J. F. had been adopted in March 2006, and according to Shore, since that time Mother had not made a significant effort to treat the problems that had led to the removal. Mother was offered a voluntary case plan after a referral in December 2006 indicating that since Father had been released from jail three months earlier, he had been seen coming and going on Mother’s property and that Mother’s stability had deteriorated, but she had refused the plan. When Mother was stopped with drugs and paraphernalia in the car in January 2007, she had just been with Father, who had called the police. Shore concluded that Mother and Father were still involved in a contentious relationship and that Mother was involved with drugs. After the January arrest, Mother was offered another voluntary plan, which she agreed to sign, but she did not participate in it fully. In the past eight weeks, Mother had continued to refuse services such as counseling, drug testing, and a substance abuse evaluation, and had failed to obtain a restraining order despite offers of assistance.
Transcripts of the testimony given by Sandra S. and Mother’s doctor at the jurisdictional hearing were admitted into evidence at the dispositional hearing.
Jeannie Damazio, who had supervised several visits between Mother and I. F., testified that Mother’s behavior was generally appropriate during the visits. She would usually bring art supplies, and would spend most of the visit helping I. F. do art projects and talking with him about the art and about what he was doing at his foster home. She also on occasion showed him how to pronounce words accurately. At the end of the visits, Mother would sometimes make negative comments to Damazio about the department, but the comments were not directed toward I. F. On at least three occasions, I. F. asked about Mother coming with him at the end of a visit.
Mother testified at the dispositional hearing. However, after she had testified on two court dates, the juvenile court ordered her to submit immediately to a urine test for drugs, stating, “I believe that there is sufficient basis in the quality of your testimony — [¶] . . . [¶] — to believe that you are impaired by some substance you’ve ingested.” The court ordered the results to be produced on the next court date, and told Mother that if she did not take the test the court would infer she was under the influence. Mother said she had her identification and the paperwork with her, that she had a vehicle, and that she would go to the testing site right away and could be back within an hour. At the next court date, however, Shore testified that Mother had not taken her drug test until more than four hours after the last hearing had ended. The testing center was an approximately 15-minute drive from the courthouse. The test results did not indicate an abnormal temperature or any other problem with the urine sample Mother provided. However, at the testing center, the people undergoing the test were not observed while urinating and although their pockets had to be emptied, their clothing was not searched before they went to the restroom to produce the sample. After Shore gave this testimony, Mother indicated she did not wish to continue testifying, and the juvenile court struck all the testimony Mother had given.
The juvenile court noted that Mother was familiar with the drug testing process but had nevertheless neglected to bring the necessary materials to the testing center on two occasions, and that she had waited approximately four hours to go to the testing center after the court’s recent order and “what she did in the interim is anybody’s guess.” Noting that on another occasion Mother had submitted another person’s urine to be tested, the court raised the possibility that she had done so again after the court order, secreting a urine sample close to her body to keep it warm. The court also stated that the relationship between Mother and Father had not changed, noting that they were still “waging a war” over the child and were still in regular contact with each other, and that Mother had not obtained a protective order against Father. Mother had refused to participate in services and had shown hostility toward the dependency proceedings. Moreover, the court had had to admonish Mother on several occasions that her “boisterous conduct” was disrupting witnesses, and her behavior on the witness stand, according to the court, “was bizarre to say the least and did strongly suggest at least to the Court . . . there was something cognitively impairing her,” whether drugs, or an emotional, psychological, or psychiatric condition. The court concluded that Mother’s actions in avoiding her drug tests and being found with drugs in her possession indicated she had not addressed the drug-related issues that had led to the removal of J. F. and the ultimate termination of her parental rights.
The court was apparently referring to an incident during 2003, when Mother was initially denied entrance into a residential program because she tested positive for methamphetamine. She said she had used someone else’s urine sample because she feared testing positive for marijuana she had smoked three weeks earlier.
Accordingly, the court found that Mother and Father had a history of domestic violence; that Mother had a history of substance abuse that impaired her ability to care for both I. F. and J. F.; that Father could not care for I. F. due to a serious medical condition; and that Father’s substance abuse history impaired his ability to parent I. F. By clear and convincing evidence the court found that I. F. must be removed from the custody of his parents and that no other reasonable means existed to protect his physical health; and that reunification services should be denied and the matter set for a .26 hearing. The court found that Contra Costa County had ordered termination of reunification services for J. F. because the parents had failed to reunify with him, and that neither parent had since then made a reasonable effort to treat the problems that led to J. F.’s removal. The court also found that both parents had a history of extensive chronic drug abuse and had resisted prior court-ordered treatment during the three years before the filing of the petition as to I. F. and had failed and refused to comply with available treatment programs on at least two occasions. The court suspended the parents’ rights to make educational decisions for I. F. and appointed the foster parents to do so.
II. DISCUSSION
A. Evidence of Substantial Risk of Harm
Mother challenges the sufficiency of the evidence that I. F. was at substantial risk of harm under section 300, subdivisions (b) and (j). We review such a challenge for substantial evidence. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.) Under this standard, “ ‘this court will view the juvenile court record in the light most favorable to that court’s order. . . . We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. . . . Issues of fact and credibility are matters for the trial court alone; we may decide only “ ‘ “whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” . . .’ ” ’ ” (Ibid.)
Section 300, subdivision (b) provides that the juvenile court may adjudge as a dependent a child who “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” Subdivision (j) authorizes the court to assume jurisdiction of a child where “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”
Such evidence exists here. Mother contends that Father’s hearsay statements were the only basis for the allegations of continued drug use, and that the statements should not have been admitted into evidence at the jurisdictional hearing. Mother’s premise is incorrect. Apart from Father’s statements, there was sufficient evidence from which the juvenile court could have concluded that Mother was unable to care for I. F. adequately as a result of continued substance abuse. (§ 300, subd. (b).) In January 2007, Mother was found driving a car, with hypodermic needles—some bloody—methamphetamine, marijuana, and a roach clip in her purse. I. F. was in the back seat, not properly restrained, and soaked in urine. Garbage was piled high in the car, which emitted a strong stench. Mother did not bring the required paperwork when asked to submit to a random drug test in April 2007, and she initially refused to test on June 6, 2007. She failed to bring I. F. to preschool regularly, and despite advice and offers of assistance had not obtained the restraining order against Father required by her voluntary case plan. Moreover, after I. F. was detained, Mother had refused to speak with the social worker. The evidence is sufficient to support the findings under section 300, subdivision (b).
The evidence also supports the allegations under section 300, subdivision (j). The 2003 petition regarding I. F.’s brother J. F. contained allegations under section 300, subdivision (b); according to the petition, Mother and Father engaged in domestic violence in front of J. F., and both parents had substance abuse problems. Mother received reunification and family maintenance services, but their parental rights were ultimately terminated after she and Father indicated they wanted to relinquish J. F. Based on the evidence of Mother’s continued drug abuse and the continuing stormy relationship between Mother and Father, the court could reasonably conclude I. F.’s sibling had been abused or neglected pursuant to subdivision (b) and that there was a substantial risk that I. F. would also be abused or neglected.
Moreover, we reject Mother’s contention that the juvenile court should not have considered the evidence that Father had taken pictures of Mother asleep on a sofa with hypodermic needles nearby. Before the jurisdictional hearing, Mother submitted objections to the statements in the jurisdiction report regarding this incident pursuant to section 355, subdivision (c)(1), which provides: “If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: [¶] (A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay. . . .” (Italics added.) Here, as we have discussed, there was evidence aside from the hearsay Mother challenges to support the jurisdictional findings; accordingly, there is no conflict with section 355’s provision that under certain circumstances hearsay evidence “shall not be sufficient by itself” to support such findings.
In the circumstances, we need not consider whether Father was unavailable as a witness at the jurisdictional hearing for purposes of the former testimony exception to the rule against hearsay. (Evid. Code, §§ 240, 1291.)
B. Evidence to Support Removal from Mother’s Physical Custody
Mother contends the evidence did not support the juvenile court’s finding by clear and convincing evidence that I. F. must be removed from his parents’ custody and that there were no other reasonable means to protect his physical health. (§ 361, subd. (c)(1).) This finding is supported by the evidence we have discussed, including Mother’s arrest in January 2007 and the drugs and paraphernalia in her car at the time; her failure to submit to random drug tests; and her continuing hostile and agitated behavior toward social workers and refusal to participate in services. Furthermore, the juvenile court had the opportunity to view Mother’s demeanor during the hearing, including during her testimony, and concluded that something—whether drugs or some other condition—was impairing her. We reject Mother’s challenge to this finding.
C. Denial of Reunification Services
Mother challenges the juvenile court’s decision to bypass reunification services. Section 361.5, subdivision (b) provides that reunification services need not be provided to the parent or guardian of a child who has been removed from custody if the court finds by clear and convincing evidence any of several facts, including: “(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, 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. [¶] . . . [¶] (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.”
Mother does not deny that J. F. was removed from her custody, that reunification services were terminated, and that the court ultimately terminated her parental rights to him. She argues, however, that she does not fall within section 361.5, subdivision (b)(10) because although services were terminated, J. F. was later returned to her after she successfully completed a treatment program.
We reject this contention. The juvenile court properly found that reunification services had been terminated as to J. F. Despite Mother’s later temporary reunification with him, she fell within the terms of section 361.5, subdivision (b)(10). We also reject her contention that there is no evidence that she had not subsequently made a reasonable effort to overcome the problems that had led to the removal of J. F. As we have discussed, the juvenile court could reasonably conclude that Mother continued to abuse drugs and that the abuse impaired her ability to care for her child.
In any case, we also reject Mother’s contention that the juvenile court abused its discretion in concluding she fell within the provisions of section 361.5, subdivision (b)(13). “This provision creates two bases for denying services: either (1) where the parent with a significant substance abuse problem has resisted treatment of that problem during the three years prior to the filing of the petition; or (2) where the parent has twice previously been provided and failed or refused to take advantage of available rehabilitation services while under the supervision of the juvenile court. The first provision does not require proof that the prior treatment occur during the three-year period; it requires proof that the resistance to such treatment occur.” (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780.) Thus, in order to show resistance to prior court-ordered treatment, it is sufficient to show that the parent has previously undergone or enrolled in substance abuse rehabilitation and, in the three years prior to the petition being filed, has shown resistance to that rehabilitation. That proof can come in the form of resumption of regular drug use after a period of sobriety. (Id. at p. 780.) As we have discussed, there was evidence that Mother had resumed her drug use: she was found with methamphetamines, marijuana, and paraphernalia in her possession in January 2007, and she was unable to take random drug tests twice because she did not bring the required paperwork with her. Moreover, Mother’s “bizarre” demeanor during her testimony suggested to the juvenile court that she had taken “some substance” and led the court to order her to submit immediately to a drug test; nevertheless, she did not take her test for more than four hours—enough time, as the juvenile court noted, for her to obtain someone else’s urine to submit in place of her own.
Our conclusion that any one of the findings under section 361.5, subdivision (b) was supported by the evidence would be sufficient for us to uphold the denial of reunification services. (See Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)
There is also evidence that Mother had at least twice failed court-ordered drug treatment programs. An order during J. F.’s dependency proceedings provided that J. F. could return to Mother’s care when she entered an approved residential treatment facility. Mother entered one program in July 2003, but was discharged for failing to comply with its rules. A reunification plan subsequently ordered Mother to complete a residential treatment program. Mother entered another program in December 2003, but was discharged three days later for violating the rules. She then refused to enter another residential program that was offered to her. Although Mother later successfully completed a residential treatment program, the evidence supports the juvenile court’s finding that she had at least twice failed or refused to comply with an available and accessible drug treatment program.
Accordingly, Mother’s contention that evidence does not support the juvenile court’s decision to deny reunification services fails.
D. Limitation on Educational Decisions
Mother contends the juvenile court should not have suspended her right to make educational decisions for I. F. Under section 361, subdivision (a): “In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. Any limitation on the right of the parent or guardian to make educational decisions for the child shall be specifically addressed in the court order. The limitations may not exceed those necessary to protect the child. . . .”
Mother argues in her petition that the juvenile court’s decision does not meet the standards of section 319, subdivision (g)(1). By its terms, that provision applies to initial hearings on the petition, or any time thereafter up until the minor is adjudged a dependent child. It does not apply to decisions made after the jurisdictional order.
We see no abuse of discretion in the juvenile court’s ruling. (See Taylor M. v. Superior Court (2003) 106 Cal.App.4th 97, 108 [juvenile court exercises discretion in determining whether parent’s control should be limited].) Not only was there evidence of Mother’s continued drug use, she had taken I. F. to preschool only sporadically in the spring of 2007, and she had repeatedly expressed her unwillingness to cooperate with the department after the dependency proceedings began. The court could reasonably suspend Mother’s right to make educational decisions.
E. Request for Rehearing
Finally, Mother points out that she requested rehearing, and contends the juvenile court failed to act on her request in a timely manner and as a result it should be deemed granted. Section 252 provides in pertinent part: “If an application for rehearing is not granted, denied, or extended within 20 days following the date of its receipt, it shall be deemed granted. However, the court, for good cause, may extend the period beyond 20 days, but not in any event beyond 45 days, following the date of receipt of the application . . . .”
Similarly, California Rules of Court, rule 5.542(c) provides in pertinent part: “If the application [for rehearing] is not denied with 20 calendar days following the date of receipt of the application, or within 45 calendar days if the court for good cause extends the time, the application must be deemed granted.”
On October 19, 2007, Mother applied for rehearing of the jurisdictional and dispositional findings and orders. On October 30, 2007, the juvenile court made the following order: “Mother filed an application for rehearing pursuant to Welfare and Institutions Code Section 252 on 10/19/07. In order to rule on this request, the court requires the full transcript of the proceedings. The court orders that these transcripts be prepared and submitted to the court by 11/08/07. The 20th court day following the filing of Mother’s application is 11/19/07. The court will endeavor to have a ruling by that time.” The court dismissed the application on November 13, 2007. Although the October 30, 2007, order did not use the word “extend,” we conclude its meaning was clear enough that it effectively extended the time for the court to act on the application for rehearing. As a result, the court denied the application within the statutory period.
Mother states erroneously in her argument that she applied for rehearing on October 31, 2007, although in her recital of the facts, she gives the correct date.
III. DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452; In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b)(3).) The request for a stay of the February 5, 2008, hearing is denied.
We concur: REARDON, Acting P. J., SEPULVEDA, J.