Opinion
E067109
02-22-2017
L.V. et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Karl Fuller for Petitioner L.V. Charles A. Casey for Petitioner A.V. No appearance for Respondent. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWJ002926) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Timothy F. Freer, Judge. Petition denied. Karl Fuller for Petitioner L.V. Charles A. Casey for Petitioner A.V. No appearance for Respondent. No appearance for Real Party in Interest.
The juvenile court denied petitioners, L.V. (Mother) and A.V.'s (Father) (collectively Parents), reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11). Mother petitions contending that insufficient evidence supported the court's true finding on the allegation that she continued to abuse controlled substances. Both Parents argue insufficient evidence supported the court's denial of reunification services. We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL HISTORY
Personnel from Real Party in Interest, Riverside County Department of Public Social Services (Department), received a referral soon after the birth of Minor (born in April 2016) indicating Mother and Minor had both tested positive for amphetamines at the time of Minor's birth. The social worker interviewed Mother on April 27, 2016. Mother reported taking Sudafed for the flu. She said the nurse told her the Sudafed would result in a positive test for amphetamines. Mother denied using any controlled substances during her pregnancy. She disclosed having a history of abusing methamphetamine, which led to the removal and adoption of four of her prior children. Mother's fifth child had been adopted through a private agency.
Mother reported that Father was residing in the home with her; Father had a history of abusing methamphetamine, although he did not currently use drugs. Mother said one of Father's children had been removed and adopted. Mother later said she had not used drugs for two years. She reported that her drug of choice was methamphetamine and that she had not participated in any programs to assist in her sobriety, though she used Xanax to help get off methamphetamine. Mother, then 31 years of age, started using methamphetamine when she was 16 and had never undergone drug treatment.
Mother had a Department history which included six prior interventions; two of which involved Mother's methamphetamine use; one in which two of Mother's children had been temporarily removed; and one in which four of Mother's children had been removed and adopted. Father reported beginning use of heroin in his 20's, which he quit in 2014. Father had a prior Department intervention due to Father's methamphetamine use which resulted in the removal and adoption of one of his children. Both Parents had been provided services in their previous cases, which included substance abuse programs which they did not complete. Father had a criminal history, including convictions for assault, battery on a spouse, and possession of controlled substances.
Father was 41 years old at the time of the proceedings below.
Department personnel filed a first amended "[r]eactivated" juvenile dependency petition alleging Mother had an extensive history of and continued abuse of controlled substances (b-1), Father had an extensive history of and continued abuse of controlled substances (b-2), Parents had a case history with the Department with similar allegations and failed to reunify with Minor's older siblings who were adopted (b-3), and Father had a criminal history, which included a conviction for battery of Mother (b-4). Parents failed to appear at the detention hearing on May 3, 2016, when the court detained Minor. The court ordered services, including substance abuse treatment and drug testing.
In the jurisdiction and disposition report filed on May 19, 2016, the social worker recommended Parents receive reunification services. The social worker recommended intermediate services to include hair follicle drug tests and substance abuse treatment for Parents. Mother refused to provide urine samples on two separate occasions. On May 9, 2016, the social worker referred Mother to a saliva drug test, but she could not produce enough saliva for testing. The social worker again referred Mother for testing on May 10 and 11, 2016, but she could not produce enough saliva again on those occasions; she was then referred for a urine sample, but did not go.
The social worker referred Father to drug test on May 11, 2016, but he did not show. The social worker noted that Parents "failed to drug test on two other occasions." Parents eventually drug tested on May 23, 2016; the results were negative. Parents reported a desire to take hair follicle drug tests to demonstrate a drug-free lifestyle going back years. Mother now reported being drug free for 10 years. The social worker issued referrals for both Parents for substance abuse treatment; Parents had yet to register. On May 24, 2016, the court ordered hair follicle drug tests for Parents.
In an addendum report filed on June 15, 2016, the social worker recommended the court deny both Parents reunification services pursuant to sections 361.5, subdivision (b)(10) and (b)(11) based upon their nonparticipation in services. The social worker additionally recommended the court deny reunification services to Father pursuant to section 361.5, subdivision (b)(12). Parents had still yet to contact the agency to which they were referred for the substance abuse treatment program. On June 7, 2016, the social worker referred Parents for hair follicle drug testing; Parents failed to report for testing. On June 20, 2016, the court ordered the Department to provide an additional referral for Parents to undergo hair follicle drug testing. On July 18, 2016, the court continued the matter in order to obtain results from Parents' purported hair follicle drug tests.
Each referral expired after seven days if Parents failed to show.
Parents were reporting that they had submitted hair follicle samples to the referred agency.
In the addendum report filed on July 29, 2016, the social worker noted that she had made referrals for Parents to undergo hair follicle drug testing on June 6 and 30, 2016; Parents had failed to show. On July 18, 2016, the social worker called the referral agencies and was informed no samples from Parents had been received. On July 22, 2016, Mother reported that Parents had provided a hair sample on July 15, 2016, 16 days subsequent to the second referral. Mother agreed to provide receipts verifying Parents' provision of hair follicles to the agency. Mother never provided such receipts.
The social worker scheduled an appointment for Parents to meet with her at her office on July 25, 2016, to initial and sign referrals to another testifying facility. Parents did not show and failed to call to reschedule. On July 26, 2016, the social worker called Mother and left a message regarding the need to schedule a referral; Mother never returned the call. On July 14, 2014, the social worker received a letter from a substance abuse program requesting a referral for Father as he had enrolled in the program. The social worker issued the referral for both Parents that day. However, the Parents afterward informed her they had changed their minds and wanted to attend a different program.
At a hearing on August 10, 2016, Parents' counsel reported that Parents informed him they had shown for hair follicle testing on July 15, 2016, but did not have any documentation to support the contention. Mother testified that she and Father tested on July 15, 2016, at the agency to which they were referred. Mother did not provide identification when testing. Mother did not receive a receipt for providing the hair sample. She denied telling the social worker she could provide such a receipt.
Father's counsel requested a continuance to verify whether Parents had tested. The Department and Minor's counsel objected, arguing that testing centers do not take samples from individuals without an active referral and identification. The court continued the matter to allow Parents to provide evidence that they had tested.
In an addendum report filed on August 17, 2016, the social worker noted she had received an e-mail on August 15, 2016 from the agency to which Parents had received the hair follicle drug testing referral; personnel at the agency revealed they had no record of Parents coming in for testing. The social worker again referred Parents to drug treatment on August 8, 2016; Mother scheduled and cancelled several intake appointments. Father had scheduled an intake appointment for August 19, 2016.
At a hearing on August 22, 2016, the court ordered the proof of service filed for a subpoena duces tecum issued by Parents' counsel to the testing agency requesting that it provide all documentation of Parents' testing and that the custodian of records appear at the hearing scheduled for that date. The court continued the matter for further investigation and ordered the custodian of records for the agency to appear at the next hearing on September 1, 2016.
No one from the agency appeared at the hearing.
In an addendum report filed on August 29, 2016, the social worker noted that she encouraged Parents to complete a hair follicle drug test, but neither had done so. On August 19, 2016, personnel at a substance abuse treatment facility determined that Parents did not meet the medical criteria necessary for treatment due to the lack of positive drug tests within the last six months.
Of course, Mother had a positive drug test only four months earlier.
No one from the drug testing agency appeared at the hearing on September 1, 2016. The court continued the matter to October 26, 2016, ordering that a copy of the minute order be sent to the agency.
In the addendum report filed on October 20, 2016, the social worker noted that she had referred Parents to the agency for a hair follicle drug test again on September 6, 2016. Mother signed for the letter on September 9, 2016. Parents failed to show for testing and the referral was closed on September 13, 2016. The social worker unsuccessfully made six subsequent attempts to contact Parents that month.
On October 6, 2016, the social worker spoke to Mother about the previous referral. Mother said her attorney told her not to test and to request another testing location. On the same date, the social worker referred Parents to another site for hair follicle and urine tests. Father submitted a urine sample on October 7, 2016. On October 10, 2016, the social worker received a message from Mother that she had tried to test, but was unable to do so because she did not have identification. On October 13, 2016, the social worker found that neither Parent had submitted a hair follicle test. Mother again reported that she could not show for testing due to transportation issues and a lack of identification.
On October 15, 2016, the social worker received the results of Father's urine test; he tested positive for amphetamines and methamphetamine; his sample was also found to be diluted. On October 17, 2016, the social worker referred Mother for another urine test; Mother showed and the results were pending.
No results of this test are contained in the record and no further mention is made of the test even by Mother's counsel at the jurisdictional and dispositional hearing.
The Parents failed to attend the jurisdictional and dispositional hearing held on October 26, 2016. The court noted that no custodian of record from the testing agency had shown either. Mother's counsel successfully moved for introduction of Mother's medical records during the period she was pregnant with Minor; the records reflected that Mother tested negatively for drugs on February 11, 2016.
The court found mother's previous testimony "incredulous, unreasonable, simply lacking any basis of truthfulness . . . ." "[I]t's clear to the Court that [M]other was fabricating her testimony, and that was the pattern that the court noticed." The court found the allegations in the petition true, sustained the petition, declared Minor a ward of the court, removed Minor from Parents' custody, denied Parents reunification services pursuant to section 361.5, subdivision (b)(10) and (11), and set the section 366.26 hearing.
II. DISCUSSION
A. Sufficiency of the Evidence to Support the b-1 Allegation
Mother contends insufficient evidence supports the allegation that she continued to abuse drugs because her use of Sudafed may have explained her positive results for amphetamines at Minor's birth and that the Department failed to show any subsequent positive drug test. We disagree.
"In considering a claim of insufficient evidence to support a jurisdictional finding, we review the evidence most favorably to the court's order—drawing every reasonable inference and resolving all conflicts in favor of the prevailing party—to determine if it is supported by substantial evidence. [Citation.] If it is, we affirm the order even if other evidence supports a contrary conclusion. [Citation.] [¶] We note that in dependency proceedings, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. [Citations.] On appeal, the parent has the burden of showing there is insufficient evidence to support the order. [Citation.]" (In re N.M. (2011) 197 Cal.App.4th 159, 168.)
"It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] 'Issues of fact and credibility are questions for the trial court.' [Citations.] It is not an appellate court's function, in short, to redetermine the facts. [Citation.]" (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)
"'Burden of proof' means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.) "Unlike the burden of proof, the burden of producing evidence may shift between plaintiff and defendant throughout the trial. [Citations.] Initially, the burden of producing evidence as to a particular fact rests on the party with the burden of proof as to that fact. [Citations.] If that party fails to produce sufficient evidence to make a prima facie case, it risks nonsuit or other unfavorable determination. [Citations.] But once that party produces evidence sufficient to make its prima facie case, the burden of producing evidence shifts to the other party to refute the prima facie case. [Citations.] Even though the burden of producing evidence shifts to the other party, that party need not offer evidence in reply, but failure to do so risks an adverse verdict. [Citation.]" (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1667-1668; accord, In re C.B. (2010) 190 Cal.App.4th 102, 133; see also Cal. Law Rev. Com. com., 29B pt. 1B West's Ann. Evid. Code (2011 ed.) foll. § 550, pp. 407-408.)
Here, the evidence of Mother's and Minor's positive tests for amphetamines at Minor's birth met the Department's burden of proof and production on the issue of jurisdiction. Amphetamine is the primary active metabolite or molecule which results from the breakdown of methamphetamine in the human body. (See People v. Torres (2009) 173 Cal.App.4th 977, 983; People v. Youn (2014) 229 Cal.App.4th 571, 575.) Thus, sufficient evidence supported the court's true finding on the b-1 allegation.
If Mother believed the amphetamines in her and Minor's systems were the result of her taking Sudafed, Mother had the burden of producing evidence to prove this. Mother could have produced expert testimony or requested a quantitative analysis of her urine sample in order to prove the amphetamine metabolites were the result of Sudafed. Indeed, Mother could simply have participated in the hair follicle test which she requested and to which she was referred on multiple occasions. However, Mother repeatedly failed to show up for or participate in the tests. Further, as the court found, Mother lied about showing up for a hair follicle test. The court made a factual finding that Mother's avoidance of testing created a rationale inference that she had something to hide, particularly with her long history of methamphetamine abuse. Thus, Mother failed to produce evidence in her favor after the burden had shifted to her. Sufficient evidence supported the court's true finding on the b-1 allegation. B. Sufficiency of the Evidence to Deny Reunification Services
Parents contend insufficient evidence supports the court's denial of reunification services because the Department failed to adduce sufficient evidence of Parents' continuing abuse of drugs. Parents do not dispute the first prong of the analysis, i.e., they do not dispute that they had failed to reunify with Minor's previous siblings or that their parental rights had been terminated with respect to Minor's siblings for drug-related issues. However, they maintain that insufficient evidence established that they failed to make reasonable efforts to treat the drug abuse issues which led to the removal of Minor's siblings. We disagree.
"'Ordinarily, when a child is removed from parental custody, the juvenile court must order services to facilitate the reunification of the family. [Citation.] "'Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.] Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.'" [Citation.] An order denying reunification services is reviewed for substantial evidence. [Citation.]' [Citation.]" (D.F. v. Superior Court (2015) 242 Cal.App.4th 664, 669.)
"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.' (§ 361.5, subd. (b)(10).)" (In re B.H. (2016) 243 Cal.App.4th 729, 737.) "Section 361.5, subdivision (b)(11) provides: 'Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, 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.'" (D.F. v. Superior Court, supra, 242 Cal.App.4th at pp. 669-670.)
"'The reasonable effort requirement focuses on the extent of a parent's efforts, not whether he or she has attained "a certain level of progress." [Citation.] "To be reasonable, the parent's efforts must be more than 'lackadaisical or half-hearted.'" [Citation.] However, "[t]he 'reasonable effort to treat' standard 'is not synonymous with "cure."'" [Citation.] [¶] 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.' [Citation.]" (D.F. v. Superior Court, supra, 242 Cal.App.4th at p. 672.) "The exceptions are subject to a clear and convincing standard of proof. [Citations.]" (In re Lana S. (2012) 207 Cal.App.4th 94, 106.)
"An order denying reunification services is reviewed for substantial evidence. [Citation.]" (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 [§ 361.5, subd. (b)(11)]; In re D.H. (2014) 230 Cal.App.4th 807, 815 [§ 361.5, subd. (b)(10), (11)]; contra, In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165 [applying the abuse of discretion standard of review to the bypass provisions of § 361.5, subd. (b)]; In re Lana S., supra, 207 Cal.App.4th at p. 109 [same].) Once the applicability of section 361.5, subdivision (b)(10) and/or (11) has been made, the parent has the burden of proving by clear and convincing evidence that it would be in the best interest of the child to provide reunification services regardless. (In re Lana S., supra, at p. 109.)
Here, Mother had her parental rights terminated as to four of Minor's five siblings due, at least in part, to her abuse of methamphetamine. Mother variously reported not taking methamphetamine for the duration of her pregnancy with Minor, for the past two years, and the past 10 years. In and of itself, Mother's self-reporting about the duration of her sobriety was inconsistent and, as the court found, Mother's credibility was severely wanting.
Mother reported that she had begun using methamphetamine at the age of 16, 15 years earlier, and had never even participated in any program to assist in sobriety even though she had been offered such services during a previous dependency proceeding. Mother and Minor tested positive for amphetamine at Minor's birth. Mother repeatedly failed to show for drug testing in the instant case even when she requested it herself. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217; In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 [failure to participate in "voluntary" drug tests may be considered as evidence of a positive test at the jurisdictional hearing].) Indeed, Mother never even enrolled in substance abuse services offered by the Department in the instant case. Although Mother tested clean once during the instant proceedings, there is simply no evidence in this record that Mother ever attempted to remain clean for any significant amount of time or even attempted to utilize help in achieving lasting sobriety.
With respect to Father, Mother reported that he had a history of abusing methamphetamine. Father had his parental rights terminated as to one of Minor's siblings due, in part, to drug abuse. Father had also been provided with referrals to a substance abuse treatment program during a previous dependency proceeding which he failed to complete. Father had a criminal history which included a conviction for possession of controlled substances. He reported using heroin in his 20's, up until 2014. Like Mother, Father repeatedly failed to show for drug testing in the instant case even when he requested it himself. Likewise, although Father enrolled in substance abuse services offered by the Department in the instant case, there is no evidence he actually participated in them. In fact, Father tested positive for methamphetamine and amphetamines once during the proceedings below. Although Father tested clean once during the instant proceedings, there is simply no evidence in this record that Father ever attempted to remain clean for any significant amount of time or even attempted to utilize help in achieving sobriety.
Father contends the court denied him reunification services pursuant to section 361.5, subdivision (b)(13). However, the Department never recommended, let alone did the court deny, reunification services to Father pursuant to section 361.5, subdivision (b)(13). The Department did recommend Father's reunification services be denied pursuant to section 361.5, subdivision (b)(12), in addition to subdivision (b)(10) and (b)(11); however, the court expressly declined to make a finding denying Father reunification services pursuant to section 361.5, subdivision (b)(12).
Father was born in 1974.
III. DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.