Opinion
F076151
03-08-2018
In re K.B. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioners and Respondents, v. KRISTA B., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 14CEJ300351-1, 14CEJ300351-2, 14CEJ14300351-3)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
In August 2017, the juvenile court denied appellant Krista B. (mother) services to reunify with her then three-year-old daughter, K.B., two-year-old son, Charles B., and one-year-old daughter, Penny C., because of her "extensive, abusive, and chronic use of drugs" and resistance to prior court-ordered treatment. (Welf. & Inst. Code, § 361.5, subd. (b)(13).) Mother contends the court's denial of services order was error because substantial evidence does not support application of the statute and, alternatively, providing her reunification services served the children's best interests. We affirm.
All statutory references are to the Welfare and Institutions Code. --------
PROCEDURAL AND FACTUAL BACKGROUND
Mother has a history of drug abuse and domestic violence. In October 2014, the Fresno County Department of Social Services (department) was notified that mother, then pregnant and in her third trimester with Charles, was using methamphetamine and marijuana, and engaging in physical altercations with Shawn, her husband and the father of K.B. and Charles B. The reporting party stated she saw mother smoke methamphetamine from a pipe while K.B. was in the room and take K.B. with her into a restroom with an unknown male. The reporting party believed mother was prostituting to support her drug habit. Mother told a social worker she had been using marijuana since the age of 14, about six years, and considered herself a "chronic marijuana" user. The department allowed then one-year-old K.B. to remain in her custody with family maintenance services.
In December 2014, the department received a call that mother was under the influence of methamphetamine. She returned home after being gone for several days and became physically aggressive with her 17-year-old sister, who was holding then 13-month-old K.B. A social worker, accompanied by police officers, took the children into protective custody. Mother was provided reunification services, including drug treatment and domestic violence counseling, which she completed. She completed inpatient drug treatment in February 2016, and transitioned to aftercare, while residing in sober living housing. She completed all phases of substance abuse treatment in May and, in June, gave birth to Penny. She identified Matthew C. as Penny's father. In December 2016, she reunited with K.B. and Charles B., and the court terminated its jurisdiction over the case, and granted mother a restraining order against Shawn, effective until January 2018.
In January 2017, a month after the juvenile court closed mother's case, she contacted the police to report that Shawn struck her in the face, resulting in a black eye and swollen lip. He was homeless and had been living with her and the children for approximately one to two weeks. Mother was aware there was a restraining order but checked with law enforcement and was told there was nothing active on file. She thought Shawn had changed and thought he should be able to be involved with the children. The police arrested Shawn for violating probation and inflicting corporal injury on a spouse, but did not place a protective hold on the children. Mother entered the Marjorie Mason Center (the center) with the children, testing positive for marijuana during the intake.
In March 2017, the department was notified that mother left K.B. and Charles B. with their former foster parents, Mr. and Mrs. D., for several days but had not picked them up as arranged. The case manager from the center stated mother left the program on March 2nd and did not return. Mother did not participate in services at the center and used it as a place to sleep, leaving each day at 7:30 a.m. and returning around 8:00 p.m. Mother told a social worker she had been "running around" and that Penny was with her paternal grandmother. When mother failed to take Penny to the department office, the department obtained protective warrants for the children and placed them with Mr. and Mrs. D.
On March 24, 2017, mother met with a social worker and stated she was approximately five months pregnant. She had not received prenatal care and did not know who the father was. She said she had been using marijuana.
The juvenile court ordered the children detained pursuant to a third amended dependency petition, alleging mother and Shawn engaged in domestic violence, placing the children at risk of physical harm, and mother failed to provide them adequate care and supervision by leaving them for extended periods of time without appropriate arrangements. (§ 300, subds. (b) & (j).) In May 2017, the court found the section 300, subdivision (b) allegations true and set the matter for disposition.
The department recommended the juvenile court order reunification services for Matthew, who established his biological paternity to Penny, but deny mother and Shawn services under section 361.5, subdivision (b)(13) because of their extensive and unresolved substance abuse history. The department recommended the court also deny Shawn services under section 361.5, subdivision (b)(12), alleging he had been convicted of a violent felony.
Mother and Shawn testified at the contested dispositional hearing in July 2017. Mother testified she was participating in outpatient substance abuse treatment and parenting classes and was scheduled for a domestic violence assessment. She believed it was in the children's best interests to provide her reunification services because they were bonded to her and, as their mother, she knew what was best for them.
During argument, mother's attorney conceded an evidentiary basis for denying her reunification services under section 361.5, subdivision (b)(13), but asked the juvenile court to find that reunification services would serve the children's best interests.
The juvenile court issued its ruling in August 2017. The court denied mother reunification services as recommended, finding reunification would not serve the children's best interests. The court adopted the department's recommendation as to Matthew and ordered him to participate in services as to Penny, but rejected its recommendation as to Shawn, finding insufficient evidence, and ordered him to participate in services as well. The court ordered supervised visitation for mother.
DISCUSSION
Mother contends the juvenile court's order denying her reunification services was erroneous on two grounds. First, there was insufficient evidence she had a "history of extensive, abusive, and chronic" drug abuse and resisted court-ordered treatment. Instead, she argues the evidence established she used drugs for approximately three and a half years, beginning in October 2014, a far cry from the multidecade history generally considered extensive. Further, she argues there is no evidence she resisted drug treatment but instead suffered a "brief relapse." Secondly, assuming the statute applied, she contends there was sufficient evidence that providing her reunification services would serve the children's best interests. Therefore, the court's denial of services order was an abuse of discretion.
We conclude mother forfeited any argument that section 361.5, subdivision (b)(13) does not apply to her, and failed to show as a matter of law that her children's best interests would be served by offering her reunification services.
Whenever a child is removed from the custody of a parent, subdivision (a) of section 361.5 directs that the court "shall" offer the parent reunification services, unless it finds by clear and convincing evidence that one or more exceptions described in section 361.5, subdivision (b) applies. (In re Ethan N. (2004) 122 Cal.App.4th 55, 63-64 (Ethan N.).) The general rule of section 361.5, subdivision (a) reflects a "strong preference for maintaining the family relationship if at all possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) When, however, one or more of the exceptions applies, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Id. at p. 478.)
In its opening paragraph, section 361.5, subdivision (b) provides that reunification services "need not" be provided to a parent or guardian when the court finds that "any" of the exceptions or situations described in section 365.1, subdivision (b)(1) through (16) applies. (§ 361.5, subd. (b).) But, in most of these situations, the "need not" proviso is effectively overridden by a statutory presumption against offering the parent reunification services. (Id., subd. (c).) Specifically, when certain exceptions apply, including section 361.5, subdivision (b)(13), subdivision (c) prohibits the court from offering the parent reunification services, "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
The juvenile court here found that mother was a parent described in section 361.5, subdivision (b)(13). This exception applies when the parent seeking reunification services has a "history of extensive, abusive, and chronic use of drugs or alcohol" and, as relevant here, "has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought the child to the court ...." (§ 361.5, subd. (b)(13).)
Mother argues on appeal that section 361.5, subdivision (b)(13) does not apply to her, but she took a very different position in the juvenile court. Her trial attorney conceded the statute applied, informing the court:
"Mother testified that her last use was January 22nd, 2017 and she has been testing and believes her levels are dropping because she's no longer using. With that information it appears that (b)(13) does apply in this case which would then require the Court to make a finding of best interest in order to order mother reunification services for the children."
"In the absence of fraud, the admissions of an attorney in open court are binding upon the client." (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1649.) We conclude counsel's concession made in mother's presence eliminated from the case any issue regarding whether section 361.5, subdivision (b)(13) applied and forfeited, for purposes of appeal, any claim the juvenile court erred in applying it. (In re Rebekah R., supra, 27 Cal.App.4th at pp. 1649-1650.)
We also conclude the evidence does not compel a best interest finding in favor of mother as a matter of law. When, as here, the court finds that a parent is described in section 361.5, subdivision (b)(13), the parent has the burden of affirmatively demonstrating that reunification with the child—and therefore offering reunification services to the parent—would serve the child's best interest. (Ethan N., supra, 122 Cal.App.4th at p. 66.) When the party with the burden of proof appeals, contending the trier of fact erred in concluding that party failed to meet his or her burden, the question on appeal "becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
The juvenile court has broad discretion in determining whether the parent has met this burden and therefore whether to offer the parent reunification services under section 361.5, subdivision (c). (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court may not disturb the court's best interest finding determination absent a showing of an abuse of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no substantial evidence to uphold the findings. (Ethan N., supra, 122 Cal.App.4th at pp. 64-65.)
Mother argues the juvenile court should have ordered reunification services because the children were bonded to her, her voluntary participation in services weighed strongly in favor of it, and, as a practical matter, there was no reason not to since the children's fathers were provided services.
Mother's arguments, however, ignore the substantial evidence contained in the record indicating there was not clear and convincing evidence that reunification was in the children's best interests. For example, she does not mention that K.B. and Charles B. were removed from her twice in their short lives and exposed to her drug lifestyle, domestic violence, and homelessness. Nor does she address the fact that she forfeited the opportunity to participate in services at the center and maintain custody of her children, and instead opted to leave and place them in the care of others, or the fact that the juvenile court could view her recent efforts to achieve sobriety as positive but not compelling given her history. Simply put, mother does not explain why this evidence is insufficient to support the court's determination that there was not clear and convincing evidence that reunification was in the children's best interests. We conclude that it is sufficient, based on the record before us, and affirm.
DISPOSITION
The order is affirmed.