Mark C. v. Superior Court (San Diego County Health and Human Services Agency)

Full title: MARK C., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent…

Court: California Court of Appeals, Fourth District, First Division

Date published: Aug 25, 2009

No. D055259 (Cal. Ct. App. Aug. 25, 2009)

Opinion

MARK C., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. D055259 California Court of Appeal, Fourth District, First Division August 25, 2009

NOT TO BE PUBLISHED

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Michael J. Imhoff, Commissioner. San Diego County Super. Ct. No. NJ10791D. Petition denied.

McCONNELL, P. J.

Mark C. seeks writ review of orders denying reunification services and setting a Welfare and Institutions Code¹ section 366.26 hearing regarding his daughter, Briana C. We deny the petition.

1 Statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Mark was incarcerated at the time Briana first became a dependent child of the juvenile court in 2001. He was arrested again in late 2004 on charges involving his use of illicit drugs, and Briana again became a dependent child of the court. He was able to reunify with her at the close of her first two dependencies. However, he was arrested again in August 2008 for possessing drug paraphernalia, and the juvenile court again assumed jurisdiction over Briana. At the close of the dispositional hearing in the current case, the court noted Briana had been in the dependency system for four of the almost eight years of her life. It found Mark had a history of chronic drug abuse and had resisted treatment during the past three years. The court denied services, finding that providing services to Mark would not be in Briana's best interests, and it set a section 366.26 hearing. Mark petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Mark asserts the court erred by denying services. He argues he did not resist drug abuse treatment and providing services to him would be in Briana's best interests.

Section 361.5, subdivision (b)(13) provides reunification services need not be provided to a parent when the court finds by clear and convincing evidence:

"That the parent... 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."

Not succeeding in drug treatment during the years before the child is removed from parental custody is considered resisting drug treatment within the meaning of section 361.5, subdivision (b)(13). (In re Brooke C. (2005) 127 Cal.App.4th 377, 383; In re Levi U. (2000) 78 Cal.App.4th 191, 200.) Mark had been provided with drug abuse treatment services, but continued to use illicit drugs as shown by a positive test for methamphetamine in January 2009. Substantial evidence supports the court's denial of services.

DISPOSITION

The petition is denied.

WE CONCUR: HALLER, J., O'ROURKE, J.