Opinion
B166554.
7-16-2003
NICOLE R., Petitioner, v. SUPERIOR COURT OF THE COUNTY OF SAN LUIS OBISPO, Respondent; SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
J. Barry Smith for Petitioner. No appearance for Respondent. James B. Lindholm, Jr., County Counsel, Patricia A. Stevens, Deputy County Counsel, for Real Party in Interest. Gerald T. Shea, District Attorney, Linda N. Luong, Deputy District Attorney, for Minor.
Nicole R. (mother) seeks extraordinary writ review of a juvenile court order denying reunification services for her daughter J.R. and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B.) She contends the evidence is insufficient to support the denial of services under section 361.5, subdivisions (b)(10), (11), and (13). We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
J.R. was born in May 2002. She was taken into protective custody on July 29, 2002, after mother was arrested for attempting to smuggle marijuana into the California Mens Colony, where J.R.s father was incarcerated. At the time of mothers arrest, a hypodermic needle was discovered inside her bra. She also admitted that she had recently used marijuana.
J.R.s father is not a party to this writ petition.
On July 31, 2002, the San Luis Obispo County Department of Social Services (the Department) filed a section 300 petition as to J.R., alleging failure to protect and no provision for support. ( § 300, subds. (b), (g).) The case plan required drug testing, and family maintenance services were provided.
J.R. is mothers sixth child. Mother resided in Los Angeles County at the time of her arrest. Her extensive history with the Los Angeles County Department of Children and Family Services (DCFS) dates back to 1992, when she gave birth to twins who tested positive for cocaine. The twins and their older sister, C., were detained in foster care. In 1993, another child, E., was detained after she was born testing positive for cocaine, opiates, PCP and Valium. The case plan adopted at that time required mother to submit to drug testing, but she was unable to provide clean tests over a sustained period of time. She also failed or refused to complete both the Long Beach Drug Rehabilitation Program and a drug program at the Tarzana Treatment Center. At the time the fifth child, P., was born in 1994, mother tested positive for drugs.
In 1996, mothers parental rights to the twins were terminated. The dependency petitions as to C. and E. were dismissed in 1997. Mother was arrested on drug-related charges in 1997 and 1998.
After the twins foster parents decided against adoption due to behavioral problems, efforts to find another adoptive home failed. Accordingly, visitation between
mother and the twins was resumed in 1999, and the twins were placed back in her care. By April 2000, however, there were reports that the children were being neglected. Mothers application to adopt the twins was denied, but a guardianship was established in August 2000.
At the time of mothers arrest on July 29, 2002, the twins and E. were also placed in protective custody. Fourteen-year-old C. had recently died during childbirth. C.s two-month-old daughter, who was in mothers care, was also taken into custody.
At the jurisdictional hearing on September 27, 2002, mother submitted and the allegations of the petition were sustained. On October 7, 2002, J.R. was placed in her prospective adoptive home. On January 23, 2003, the prospective adoptive mother petitioned to be recognized as J.R.s de facto parent.
After several continuances, the disposition hearing was held on April 11, 2003. The Department recommended that reunification services be denied on the grounds that: (1) mother had failed to comply with drug treatment programs mandated by her case plans on two prior occasions ( § 361.5, subd. (b)(13)); (2) reunification services were previously terminated for J.R.s half-siblings and mother had not made a reasonable effort to treat the problems that resulted in the removal of the half-siblings ( § 361.5, subd. (b)(10)); and (3) mothers rights over two of J.R.s half-siblings were previously terminated, and mother had made no effort to treat the problems that led to the half-siblings removal ( § 361.5, subd. (b)(11)). Counsel for J.R. joined in the Departments position. The Department reported that mother had failed to submit to drug testing and had provided no proof of participation in any of the services provided under the case plan. It was also reported that mother was evicted from her residence in February and had allowed unapproved relatives to care for her other children while she was in the hospital. Although mother had initially maintained regular visits with J.R., she did not see her in November and had only visited once since January.
J.R.s counsel submitted a letter joining in the Departments opposition to mothers petition for extraordinary writ relief.
The juvenile court denied reunification services on all three grounds asserted by the Department. This timely petition for a writ followed.
DISCUSSION
Section 361.5, Subdivision (b)(13)
Section 361.5, subdivision (b)(13) provides in pertinent part that reunification services may be denied when the court finds by clear and convincing evidence "that the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and . . . 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 concedes that she has a history of extensive abuse, and chronic use of drugs or alcohol, and that she failed to complete two drug treatment programs between October 1992 and February 1994. She contends, however, that the evidence is too remote to support a finding under subdivision (b)(13) because she successfully completed a drug program in 1995, and the evidence of her drug use since that time "is sorely lacking." We disagree.
Although mother apparently completed a drug treatment program in 1995, there is ample evidence in the record indicating that her drug problem has persisted. She was arrested on drug-related charges on two separate occasions in 1997 and 1998. The incident giving rise to this proceeding resulted in a felony conviction for conspiracy to possess a controlled substance. A syringe was found in her bra at the time of her arrest, and she admitted recent drug use. Under the circumstances, mothers contention that there is insufficient evidence to support the denial of services under section 361.5, subdivision (b)(13), is meritless.
Section 361.5, Subdivisions (b)(10), (11)
Mother also contends the evidence is insufficient to support the denial of reunification services under subdivisions (b)(10) and (11) of section 361.5. Services may be denied under those subdivisions where the court finds by clear and convincing evidence that reunification services or parental rights were previously terminated for a half-sibling of the minor, and the parent has not made a reasonable effort to treat the problems that resulted in the half-siblings removal. (Ibid.)
Mother does not dispute that her parental rights to the twins were terminated, but contends the evidence is insufficient to support a finding she has not made reasonable efforts to treat her drug problem. As we have already noted, however, the incident leading to J.R.s dependency demonstrates that mother has continued to engage in drug-related behavior. Contrary to mothers contention, the fact that the twins were subsequently returned to her under a guardianship does not undermine the clear and convincing evidence indicating that she has failed to make reasonable efforts to treat her drug problem. Sufficient evidence supports the decision to deny reunification services under subdivisions (b)(10) and (11) of section 361.5.
The petition for extraordinary relief is denied.
We concur: GILBERT, P.J., and YEGAN, J.