Opinion
F057685.
7-13-2009
L.H., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Robert D. Chase for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
Not to be Published in the Official Reports
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J. and Gomes, J.
Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her sons R.M. and J.M. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is the mother of eight children, including R.M. and J.M. None of her children are in her custody. She also has a long history of drug use, which includes heroin, cocaine and methamphetamine. Four of her children, including R.M. and J.M., were born under the influence of drugs. Since 1990, petitioner has been involved with numerous inpatient and outpatient treatment programs, some of which she completed.
R.M. and J.M. have been dependents under the jurisdiction of the juvenile court on three separate occasions. The first petition was filed in May 2004 by the Stanislaus County Community Services Agency (agency). At the time, R.M. was 23 months old and petitioner was pregnant with J.M. Petitioner admitted using heroin daily and stealing to support her habit. She reported 13 months of sobriety, most of which was contemporaneous with residential treatment, but stated she relapsed shortly after leaving treatment. In April 2004, petitioner was admitted to Stanislaus Recovery Center but discharged three weeks later for inappropriate contact with a male resident. That same month, she contacted West Modesto Regional Center for outpatient services. In August 2004, petitioner gave birth to J.M. who was declared a dependent of the court and placed with petitioner at a clean and sober facility. R.M. was placed with petitioner in late 2005 and, by August 2006, dependency proceedings as to both children had been terminated.
Seven months later, in March 2007, the agency received a referral J.M. suffered a serious burn on his arm. Petitioner admitted relapsing and stated she was overwhelmed with caring for the children. Petitioner was initially provided voluntary family maintenance services but repeatedly tested positive for drugs. As a consequence, the children were placed in voluntary foster care while petitioner participated in residential treatment. After petitioner completed residential treatment, she moved into a sober living facility. However, she told the agency staff she could only care for J.M. As a result, in November 2007, the agency filed a dependency petition on the childrens behalf seeking detention of R.M. only. In January 2008, the juvenile court declared the children dependents and granted petitioner reunification services. J.M. was placed with petitioner and R.M. was placed in foster care. While at the sober living facility, petitioner completed 301 days of drug treatment. Both J.M. and R.M. were receiving medication for Attention Deficit Hyperactivity Disorder (ADHD) and petitioner was taking classes for dealing with behaviorally challenged children. In November 2008, dependency proceedings were dismissed.
Three months later, in February 2009, the agency received a referral that petitioner was seen injecting heroin. Petitioner initially denied relapsing but subsequently admitted using methamphetamine three days straight. The children were detained and placed in foster care and the agency filed a petition on their behalf.
In its report for the detention hearing, the agency stated petitioner attended and, in some cases, completed every inpatient and outpatient treatment program in the area. !(CT 899)! One program refused to admit her in 2007, stating she was too comfortable with their program. Nevertheless, the agency referred petitioner to West Modesto Regional Services.
The juvenile court ordered the children detained and set a combined contested jurisdictional/dispositional hearing, which it conducted in May 2009. At issue was whether to deny petitioner reunification services under section 361.5, subdivision (b)(13) based on her extensive and chronic history of drug abuse and resistance to treatment.
Petitioner testified she relapsed because she was overwhelmed, in part, with single parenthood. She admitted she arranged in advance to have someone take care of the boys during the three days she relapsed. Petitioner also testified she was on a methadone maintenance program for heroin addiction and planned to wean herself off of methadone, which she had successfully done in the past.
The childrens mental health clinician testified she had been working with R.M. and J.M. since November 2007. She testified both boys have ADHD and expressive language delay. In addition, R.M. is developmentally delayed and suffered trauma from abuse and neglect. She expressed concern petitioners recovery would be short-lived and that, as the children grew older and their behavior more challenging, they would be harder to place. Consequently, she did not believe it would be in the childrens best interest to offer petitioner reunification services.
Petitioners addiction specialist testified petitioners prognosis was good if she continued her level of participation. However, she was unaware petitioner planned to discontinue methadone or that she changed methadone programs to obtain a higher dose.
Following testimony, petitioners attorney argued petitioner is not resistant to treatment. Rather, she "embraces it" as evidenced by her immediate return to treatment following a brief relapse.
The juvenile court disagreed and found petitioner was resistant to treatment under section 361.5, subdivision (b)(13). In addition, the court found it would not be in the childrens best interests to offer petitioner reunification services. Consequently, the court denied petitioner reunification services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Though provision of reunification services is the norm in juvenile dependency cases, the Legislature has determined that, in some circumstances, it would be a "fruitless" effort. (In re Rebecca H. (1991) 227 Cal.App.3d 825, 837.) One such circumstance is described in section 361.5, subdivision (b)(13), which provides, in part, that reunification services need not be provided to a parent or guardian who "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 courts attention." An attempt to facilitate reunification in such a case may not only be fruitless but does not serve and protect the childs best interest. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.)
Petitioner does not deny her use of drugs is extensive, abusive and chronic. Rather, she contends she did not resist treatment but "embraces" it. Further, she argues, she did not resist treatment within the meaning of the statute because she experienced a very short (three days) relapse and immediately recommitted to treatment.
On review, we determine whether the juvenile courts findings are supported by substantial evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) We conclude, based on our review of the appellate record as summarized above, the juvenile court properly denied petitioner reunification services pursuant to section 361.5, subdivision (b)(13) (subdivision (b)(13)).
The contours of "resistance to treatment" have been defined in a series of appellate court cases over the last decade. One of the first of those, Randi R. v. Superior Court (1998) 64 Cal.App.4th 67 (Randi R.), dispels petitioners notion that resistance requires conduct evincing opposition to treatment. In Randi R., appellant mother argued the word "`resist should be narrowly defined to encompass only conduct which constitutes `"an opposition by direct action or quasi forcible means." [Citation.]" (Id. at p. 73.) The court disagreed and concluded applying such a narrow definition of "resist" would yield absurd results, allowing parents to merely go through the motions of rehabilitation just to resume custody of their children. (Ibid.) Thus, according to Randi R., the fact that petitioner does not actively resist treatment by opposing it does not mean she has not resisted treatment.
Further, there is case authority that a parent can passively resist treatment by participating in it but continuing to abuse drugs. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010 (Karen S.).) In Karen S., the appellate court concluded a parent who continues to use drugs under those circumstances demonstrates an inability or unwillingness to apply the skills and behaviors taught in drug treatment for the purpose of maintaining sobriety. (Ibid.) "[T]he parent has demonstrated that reunification services would be a fruitless attempt to protect the child because the parents past failure to benefit from treatment indicates that future treatment also would fail to change the parents destructive behavior." (Ibid.)
Petitioner exemplifies the kind of parent described in Karen S. who passively resists treatment. She participated in many drug treatment programs, some for extended periods of time, and yet she resumed drug use each time. For whatever reason, petitioner repeatedly failed to apply the skills she learned in drug treatment to achieve sobriety. By her failure to break her pattern, petitioner demonstrated that any further attempts at reunification would be fruitless.
Further, contrary to petitioners assertion, the evidence reflects she engaged in more than a brief relapse. Rather, her conduct suggests a deliberate choice to resume drug use. Most notably, she arranged care for the children so she could use methamphetamine and then denied using it when confronted. Prior to that, she changed methadone treatment programs in order to obtain a higher dose of methadone. It seems likely, under the circumstances, petitioner would have continued using drugs had she not been referred to the agency. This behavior is not a brief relapse but the beginning of a repetitive cycle of drug use demonstrating resistance to treatment. Thus, the juvenile courts decision to deny reunification services under section 361.5, subdivision (b)(13), is supported. We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.