Opinion
E082583
12-05-2024
In re J.S., a Person Coming Under the Juvenile Court Law. v. T.J., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Law Offices of Joanne Willis Newton and Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INJ2000353 Elizabeth Tucker, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Offices of Joanne Willis Newton and Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Samara Silverman, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
T.J. (Mother) and J.M. (Father) are the parents of J.S. The Riverside County Department of Public Social Services (DPSS) filed a petition on behalf of J.S. pursuant to Welfare and Institutions Code section 300 et seq., alleging Mother's failure to protect J.S. from domestic violence in the home, as well as Mother's inability to protect or supervise as the result of substance abuse involving alcohol consumption and methamphetamine use. The jurisdictional and dispositional report also alleged that Mother's parental rights had previously been terminated with respect to J.S.'s half siblings in a prior dependency case as the result of Mother's substance abuse.
Father is not a party to this appeal.
Undesignated statutory references are to the Welfare and Institutions Code.
On November 7, 2023, the juvenile court held a contested jurisdictional and dispositional hearing; sustained the jurisdictional allegations as to Mother; formally ordered J.S. removed from Mother's custody; and denied Mother reunification services pursuant to section 361.5, subdivision (b)(10). Mother appeals from the dispositional order, arguing that the juvenile court's jurisdictional findings, order of removal, and findings in support of denying reunification services are not supported by substantial evidence. Additionally, Mother argues for the first time on appeal that the juvenile court abused its discretion by not granting reunification services pursuant to section 361.5, subdivision (c), notwithstanding a finding that Mother was not entitled to reunification services as a matter of right under section 361.5, subdivision (b). We conclude that substantial evidence in the record supports the juvenile court's jurisdictional and dispositional findings, and that Mother has forfeited her argument regarding the exercise of discretion under section 361.5, subdivision (c) by failing to raise the issue in the proceedings below; and we affirm the juvenile court's dispositional order.
Because Mother's appeal challenges only the sufficiency of the evidence with respect to the jurisdictional and dispositional findings related to her, we summarize only the facts and evidence relevant to this issue and omit the allegations and evidence related to Father.
A. Original Petition
In July 2023, DPSS received a referral regarding J.S. after law enforcement officers responded to a reported incident of domestic violence between Mother and Father. On August 24, 2023, DPSS filed an initial petition on behalf of J.S. pursuant to section 300 et seq. With respect to Mother, the petition alleged her inability to protect, supervise, or provide for J.S. as the result of ongoing domestic violence between Mother and Father, and Mother's relapse with substance abuse involving alcohol consumption.
B. Initial Report
DPSS filed an initial out of custody report concurrently with its initial petition. The report detailed that Mother's parental rights had previously been terminated with respect to J.S.'s half siblings in a prior dependency case as the result of Mother's substance abuse involving alcohol. Additionally, the report disclosed that a prior dependency petition had been filed on behalf of J.S. after J.S. tested positive for methamphetamines at the time of birth, but that petition had been dismissed in February 2022 after Mother made progress with reunification services. With respect to the current dependency petition, DPSS received a referral after law enforcement officers were called to respond to a domestic violence incident on July 10, 2023; Mother reported to officers that Father had physically shoved her while she was holding J.S. during the incident; and Mother told officers that Father had physically assaulted her on at least four prior occasions.
In an interview with social workers on July 13, 2023, Mother recanted the accusations she made against Father, claiming that the July incident was an "accident"; that she had been "dramatic and exaggerated" in her account to law enforcement officers; and that there had never been any prior acts of physical violence committed by Father. During the interview, social workers observed circular bruises on Mother's arm, right eye, and leg, but Mother vaguely explained those injuries as the result of "bumping into things."
When asked about the issues in her prior dependency cases, Mother stated that she had maintained an ongoing relationship with her substance abuse sponsor over the past two years, claimed to have remained sober with the exception of a brief relapse where she consumed alcohol in response to the July incident involving law enforcement, and denied consumption of any methamphetamine. Despite these assertions, Mother declined to submit to any form of drug testing at the time of the interview. Mother also declined to participate in any voluntary services, expressing the belief that they were not necessary. However, she also indicated she was willing to attend counseling with Father because she was fearful of having to parent on her own.
Social workers also interviewed Father on July 17, 2023. Father contradicted Mother's account of the alleged domestic violence incident, claiming that Mother initiated an argument after consuming alcohol and becoming aggressive. He also contradicted Mother's claims regarding alcohol consumption, instead stating that Mother would consume alcohol two to three times per month. Finally, a social worker contacted Mother's substance abuse sponsor, who indicated she had not heard from Mother for more than a year until Mother contacted her on July 16. During this communication, Mother disclosed that she had recently consumed two beers and had cravings for methamphetamine but denied acting on those cravings.
Based upon this information, DPSS recommended that the juvenile court sustain the allegations of the dependency petition, that parents be permitted to retain custody of J.S., and that services be provided for Mother and Father during this time period.
C. Initial Hearing
On September 12, 2023, the juvenile court held a detention hearing. At the time of hearing, appointed counsel for J.S. argued that J.S. should be removed, despite the recommendation from DPSS that she remain in parental custody. In response, Mother argued that removal was not necessary because she was already taking steps to address her substance abuse issue, representing that she was set to begin a substance abuse treatment program the day after the hearing and now willing to take a hair follicle drug test. Given Mother's representation, the juvenile court ordered that Mother submit to a hair follicle test immediately and declined to order J.S. removed from parental custody "with the condition that [Mother] actually start the substance abuse program tomorrow."
D. Jurisdiction and Dispositional Report
On October 13, 2023, DPSS filed a jurisdictional and dispositional report. DPSS detailed that the drug test Mother took after the detention hearing returned positive for methamphetamine and amphetamine. When social workers confronted Mother about the positive drug test, Mother initially continued to deny using any substances; then stated she used methamphetamine approximately six months prior in May 2023; and finally "broke down and confirmed she used 'a couple times, maybe three times'" after DPSS began its most recent involvement. Mother further admitted that she initially declined to drug test because she knew it would return positive and sought to hide that fact from DPSS. As a result, DPSS detained J.S. pursuant to a probable cause warrant, and filed a first amended petition, adding a jurisdictional allegation based upon substance abuse involving methamphetamine use.
In an interview with social workers in October 2023, Mother continued to deny any domestic violence ever occurred in the home and claimed she lied to law enforcement officers regarding the July incident. However, Mother did admit generally that she "failed" J.S. by exposing J.S. to "arguments." Mother admitted that she had lost custody of J.S.'s half siblings and failed to reunify as the result of substance abuse involving alcohol and admitted she had resumed alcohol consumption after completing a substance abuse program in 2021, but she expressed the belief that alcohol consumption "never affected me or my behavior, so I don't think it's an issue." Mother conceded that she received intensive substance abuse treatment involving her addiction to methamphetamine during her last dependency case involving J.S., asserted her view that she had been successful in remaining sober, and could not identify why she experienced her most recent relapses. Despite claiming that her relationship with Father caused her to relapse into substance abuse, Mother expressed the belief that her ability to communicate with Father as part of their co-parent relationship was a family strength.
In a second interview with Father, Father reported to a social worker that Mother had relapsed into alcohol consumption as early as December 2022, but he stated that Mother only consumed alcohol "occasionally." However, Father did note that when Mother consumed alcohol, he had to refrain from doing so in order to care for J.S.
Based upon this additional evidence, DPSS recommended that the juvenile court sustain the allegations of the amended petition pursuant to section 300, formally remove J.S. from parental custody pursuant to section 361, and deny reunification services to Mother pursuant to section 361.5.
E. Addendum Report
On November 2, 2023, DPSS filed an addendum to its jurisdictional and dispositional report. DPSS noted that, at the time of detention, social workers discovered a three-inch cut on J.S.'s groin area, as well as a two-inch cut on J.S.'s forehead. Mother attributed the three-inch cut to the use of an incorrectly sized diaper but could not offer an explanation as to what caused the cut to J.S.'s head. The report also confirmed that Mother started a substance abuse treatment program on October 26, had consistently participated in the program, and had consistently tested negative for drugs as part of the program.
F. Hearing and Order
On November 7, 2023, the juvenile court held a contested jurisdictional and dispositional hearing. At the time of hearing, Mother did not testify and did not present any additional evidence beyond that already set forth in DPSS's reports. The juvenile court sustained the allegations of the dependency petition; ordered that J.S. be formally removed from Mother's custody; and denied reunification services to Mother pursuant to section 361.5, subdivision (b)(10). Mother appeals from the jurisdictional and dispositional order.
III. DISCUSSION
A. Jurisdictional Findings
The first argument raised on appeal by Mother is that the juvenile court's jurisdictional findings specific to Mother are not supported by substantial evidence. We exercise our discretion to review the merits of this claim but conclude that substantial evidence supports the juvenile court's jurisdictional findings as to Mother.
1. The Jurisdictional Findings are Justiciable
Initially, we briefly address DPSS's argument that the jurisdictional findings are not justiciable because Mother has not challenged the sustained findings specific to Father. DPSS is correct that, "[i]n dependency matters, as a general rule, '" 'as long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate'" '. . . [and] '[b]ecause the juvenile court assumes jurisdiction of the child, not the parents, jurisdiction may exist based on the conduct of one parent only.'" (In re B.H. (2024) 2024 104 Cal.App.5th 469, 480; In re D.P. (2023) 14 Cal.5th 266, 283-284.) However, reviewing courts have broad discretion to review the merits of a challenge to jurisdictional findings (In re D.P., at pp. 285-287), and review of jurisdictional findings can be appropriate where "[r]eversal of jurisdictional findings against [one parent] would 'call into question the validity' of [subsequent] orders, so review 'can grant [the parent] effective relief.'" (In re B.H., at pp. 481-482.)
In this case, the jurisdictional finding that Mother is unable to adequately protect J.S. from domestic violence involving Father clearly has the potential to impact future visitation and custody orders between the parents. Further, reversal of the jurisdictional findings related to Mother's ongoing substance abuse would "call into question" the juvenile court's order denying Mother reunification services, since such order was based upon Mother's failure to make reasonable efforts to address the substance abuse issues that led to termination of Mother's parental rights with respect to J.S.'s half siblings. Thus, we believe this is an appropriate case to exercise our discretion to reach the merits of Mother's challenge.
2. General Legal Principles and Standard of Review
"Dependency jurisdiction may be assumed over a child and her parent under section 300 if the child has suffered or is at substantial risk of suffering serious physical harm or illness as a result of the parent's failure or inability to adequately supervise or protect the child." (In re M.D. (2023) 93 Cal.App.5th 836, 848.) "Thus, to obtain a jurisdictional determination under section 300, subdivision (b)(1), an agency must 'prove three elements: (1) the parent's or guardian's neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re S.F. (2023) 91 Cal.App.5th 696, 712; In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)
While the elements are often framed with reference to a parent's "neglectful conduct," we recognize that the focus of the inquiry is not necessarily on whether the parent is "at fault" or "blameworthy" for causing the risk of harm. (In re R.T. (2017) 3 Cal.5th 622, 632-633.) Instead, the focus is on a parent's inability to protect the child from a serious risk of harm, regardless of whether the parent may be considered the cause of the risk. (Id. at pp. 634-635.)
"A court 'need not wait until a child is seriously abused or injured to assume jurisdiction ....'" (In re S.F., supra, 91 Cal.App.5th at p. 712; In re M.D., supra, 93 Cal.App.5th at p. 848.) Instead," '[t]he relevant inquiry under section 300, subdivision (b)(1), is whether circumstances at the time of the jurisdictional hearing 'subject the minor to the defined risk of harm.'" (In re M.D., supra, at p. 848.) In making this assessment, the juvenile court "may consider past events when determining whether a child presently needs its protection," but "past conduct standing alone does not establish a substantial risk of harm." (Id. at pp. 848-849; In re S.F., at pp. 712-713.)
"' "We review the jurisdictional findings for substantial evidence.... We consider the entire record, drawing all reasonable inferences in support of the juvenile court's findings and affirming the order even if other evidence supports a different finding.... We do not consider the credibility of witnesses or reweigh the evidence." . . . "The parent has the burden on appeal of showing there is insufficient evidence to support the juvenile court's order." '" (In re M.D., supra, 93 Cal.App.5th at p. 851.)
In this case, the juvenile court sustained three, different jurisdictional findings as to Mother: (1) that Mother was unable to protect J.S. from domestic violence committed by Father; (2) that Mother was unable to protect J.S. due to Mother's ongoing substance abuse issues involving alcohol; and (3) that Mother was unable to provide or supervise J.S. due to ongoing substance abuse issues involving illicit drugs. As we explain, we find substantial evidence in support of each finding.
3. The Domestic Violence Finding Is Supported by Substantial Evidence
With respect to the allegations involving domestic violence, the jurisdictional and dispositional report detailed that Mother called law enforcement in July 2023; reported that Father physically pushed her while she was holding J.S. during an argument; and further reported that Mother told investigating officers that Father had engaged in physical acts of aggression on multiple occasions during the course of their relationship. Father admitted in an interview with a social worker that there was an argument that resulted in some form of physical contact but characterized the contact as a "nudge." A social worker observed bruising on Mother,, and Mother admitted to a social worker that she "failed" J.S. by "exposing her to 'arguments.'" This was substantial evidence upon which the juvenile court could rely to conclude that the relationship between Mother and Father involved acts of domestic violence in the presence of J.S., representing a substantial risk of harm. (In re R.C. (2012) 210 Cal.App.4th 930, 941-942 [A child's "[e]xposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b)."]; In re L.O. (2021) 67 Cal.App.5th 227, 239 ["[A] juvenile court may invoke jurisdiction under section 300, subdivision (b), even if a child has emerged physically unscathed from an instance of domestic violence."].)
We are unpersuaded by Mother's argument that, by the time of the jurisdictional hearing, there was no longer a risk of harm to J.S. because Father was no longer living in the home. It is true that a risk of harm must exist at the time of the jurisdictional hearing to justify a jurisdictional finding. (In re D.L., supra, 22 Cal.App.5th at p. 1146.) However, the record shows that, even after Father stopped living in the home: Mother permitted Father to visit J.S. weekly in the home; Mother expressed the possibility that her relationship with Father might continue with counseling; Mother and Father maintained a "co-parent" relationship; and Mother continued to insist that there had never been any domestic violence concerns in her interactions with Father. Thus, while Father was not presently living in the home at the time of the jurisdictional hearing, the juvenile court could reasonably conclude that Mother still presented an inability to appreciate the risk of domestic violence and, as a result, an inability to protect J.S. from potential domestic violence that might occur in Mother's ongoing interactions with Father.
We conclude that the jurisdictional finding that J.S. faced a substantial risk of harm as the result of Mother's inability to protect J.S. from exposure to domestic violence is supported by substantial evidence and reversal of this finding is not warranted.
4. The Substance Abuse Findings Are Supported by Substantial Evidence
With respect to the allegations that Mother suffered from substance abuse involving both alcohol and illicit drugs, DPSS's reports detailed that Mother had previously had parental rights terminated with respect to J.S.'s half siblings as the result of substance abuse involving alcohol, and a prior dependency proceeding was initiated on behalf of J.S. as the result of substance abuse involving methamphetamine. More importantly, Father reported to social workers that Mother had relapsed with alcohol use less than one year after termination of the prior dependency proceeding involving J.S.,and that the incident prompting DPSS involvement in the present case was actually instigated by Mother after she consumed alcohol and became aggressive in J.S.'s presence. Finally, Mother admitted using methamphetamine on multiple occasions even after DPSS became involved in the present proceeding, and further admitted that she actively sought to hide her methamphetamine use from social workers. This was substantial evidence upon which the juvenile court could rely to conclude that Mother struggled with substance abuse involving consumption of alcohol and methamphetamine.
The prior dependency proceedings involving J.S. were terminated in February 2022, and Father stated to a social worker that Mother relapsed with alcohol consumption in December 2022.
Mother argues that there was no evidence that her use of drugs or alcohol presented a risk of harm to J.S. We disagree. It is true that evidence of substance abuse alone does not amount to prima facie evidence that a parent is unable to protect, supervise, or provide resulting in a substantial risk of harm to a child. (See In re N.R. (2023) 15 Cal.5th 520, 557-560.) However, the evidence in this case does not show that Mother's substance abuse was isolated from J.S. such that there was no risk of harm.
It was uncontested that Mother's use of methamphetamine had already placed J.S.'s health directly at risk in the past because she used methamphetamine while pregnant with J.S. At the time DPSS became involved in the present case, J.S. was only two years of age and Mother subsequently admitted to using methamphetamine on multiple occasions even after DPSS's involvement. Based upon this evidence, the juvenile court could reasonably conclude that Mother had displayed a willingness to prioritize her methamphetamine use over J.S.'s health and, to the extent the juvenile court concluded that Mother had relapsed, it could reasonably conclude that Mother would do so in the future.
Additionally, Father specifically recounted that the domestic violence incident triggering the most recent dependency proceeding was instigated by Mother after she consumed alcohol and became aggressive while J.S. was present. And Father further commented to social workers that Mother could not care for J.S. when consuming alcohol. This was also substantial evidence to show that Mother's consumption of alcohol presented a risk of harm to J.S. Thus, we conclude that the jurisdictional findings that J.S. faced a substantial risk of harm as the result of Mother's inability to protect, supervise, or provide due to substance abuse involving alcohol consumption and methamphetamine use is supported by substantial evidence and reversal of these findings is not warranted.
Father specifically told a social worker that when Mother consumed alcohol, he would need to refrain from drinking so that someone could care for J.S.
B. Dispositional Orders
Mother also challenges the dispositional order removing J.S. from her custody as well as the order denying Mother reunification services as unsupported by substantial evidence. We disagree.
1. General Legal Principles and Standard of Review
"After a juvenile court exercises jurisdiction over a child pursuant to section 300, it must determine the appropriate disposition for that child." (In re M.D., supra, 93 Cal.App.5th at p. 856.) Generally, "[t]he juvenile court has broad discretion in crafting a disposition pursuant to a child's best interest" (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179), and a reviewing court "cannot reverse the juvenile court's determination, reflected in the dispositional order, of what would best serve the child's interest, absent an abuse of discretion" (In re Ethan N. (2004) 122 Cal.App.4th 55, 64-65; In re A.E. (2019) 38 Cal.App.5th 1124, 1140-1141 [juvenile court's decisions regarding provisions of reunification services in dispositional order are generally subject to review for abuse of discretion]). However, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; In re Miguel R. (2024) 100 Cal.App.5th 152, 165.)
2. Dispositional Order of Removal
With respect to removal of a dependent child from parental custody, the juvenile court's discretion is limited by statute. Specifically, the juvenile court may only remove a dependent child from the physical custody of a parent if it finds by clear and convincing evidence that one of the circumstances listed in section 361, subdivision (c) exists. (§ 361, subd. (c) ["A dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed ...."].) Thus, because the juvenile court's discretion with respect to removal of a child is specifically limited by statute, we review this aspect of the juvenile court's dispositional order to determine if substantial evidence supports the finding that one of the statutory bases for removal exists. (In re M.D., supra, 93 Cal.App.5th at p. 857.)
In this case, the only statutorily defined circumstances relevant to this case are where "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1); In re L.O., supra, 67 Cal.App.5th at p. 244.)
On appeal, Mother argues simply that the juvenile court's order of removal must be reversed because there was insufficient evidence to support the juvenile court's underlying jurisdictional findings. However, since we have already concluded that substantial evidence in the record supports each of the juvenile court's jurisdictional findings, Mother's argument that the dispositional order of removal must be reversed for lack of evidence to support a jurisdictional finding necessarily fails.
To the extent Mother suggests that the evidence to support the jurisdictional finding might be insufficient under the higher clear and convincing standard of proof applicable to an order of removal, we find this argument unpersuasive. While "an appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard", this means that we review the record to determine whether it contains "substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) In doing so, we continue to "view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 1011-1012)
While" 'the precise meaning of "clear and convincing proof" does not lend itself readily to definition,'" it is well accepted that the standard is something "less than what is required by the standard of proof beyond a reasonable doubt." (Conservatorship of O.B., supra, 9 Cal.5th at p. 998; People v. Ramirez (2022) 14 Cal.5th 176, 189.) Thus, the clear and convincing standard of proof does not require that the evidence be uncontradicted or that the totality of the evidence weigh in favor of finding a contradicted fact, since it is well accepted that even under the higher beyond a reasonable doubt standard," 'unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.'" (People v. Ghobrial(2018) 5 Cal.5th 250, 281.)
Here, Mother reported to law enforcement officers that there had been multiple incidents of domestic violence involving Father prior to the July 2023 incident which prompted the involvement of DPSS. Further, Mother reported that the most recent incident involved an act of physical violence in the presence of J.S. As California authorities have recognized, evidence of a pattern of ongoing domestic violence, at least some of which the dependent minor heard or saw, is sufficient to support a finding that a dependent minor is at substantial risk of harm in support of removal. (See In re V.L., (2020) 54 Cal.App.5th 147, 156; In re T.V. (2013) 217 Cal.App.4th 126, 136-137.)
Additionally, the record shows that once DPSS became involved, Mother expressed the view that her arguments with Father were "normal," that her coparent relationship with Father was a strength, and that there was no concern for J.S.'s wellbeing with respect to domestic violence in the home. Likewise, even after DPSS became involved, Mother repeatedly asserted that her consumption of alcohol and methamphetamine did not present a risk to J.S. Even after the juvenile court expressly admonished Mother that she needed to enroll and participate in a substance abuse program at the detention hearing, Mother continued to express to social workers that she did not believe she had a substance abuse problem. Based upon this evidence, the juvenile court could reasonably infer that at the time of the dispositional hearing, there were no reasonable means short of removal to protect J.S. from an ongoing risk of harm. (In re V.L., supra, 54 Cal.App.5th at p. 156 ["A parent's denial of domestic violence increases the risk of it recurring."]; In re K.B. (2021) 59 Cal.App.5th 593, 604, overruled on other grounds in In re N.R. (2023) 15 Cal.5th 520, 560, fn. 18 ["A court is entitled to infer past conduct will continue where the parent denies there is a problem"]; In re M.D., supra, 93 Cal.App.5th at pp. 858-859 [even where some services might be available to address immediate risks, juvenile court may conclude there are no reasonable means by which a child can be protected without removal where parent maintained a "lack of insight into his parenting responsibilities"].)
Specifically, in an interview conducted after the initial detention hearing, Mother stated that she did not believe she had an alcohol issue and "alcohol never affected me or my behavior, so I don't think it's an issue." Mother also continued to express the belief that she had been successful in remaining sober from methamphetamine use.
In our view, the evidence in the record was sufficient to permit the juvenile court to conclude with a high degree of probability that, at least at the time of the dispositional hearing, there remained a substantial danger to the physical health, safety, protection, or physical or emotional well-being of J.S. and there were no reasonable means by which to protect J.S. without removal. Where substantial evidence in the record supports the juvenile court's finding on this point, reversal is not warranted.
3. Dispositional Order Denying Reunification Services
Like the order of removal, the juvenile court's discretion to deny reunification services to a biological mother is statutory limited. Generally, under section 361.5, subdivision (a), "[r]eunification services must be provided to the mother and statutorily presumed father of children who have been removed from their parents' custody, unless a statutory exception applies." (In re A.E., supra, 38 Cal.App.5th at p. 1141; In re T.R. (2023) 87 Cal.App.5th 1140, 1148; § 361.5, subd. (a).) However, reunification "need not be provided to a parent" if the juvenile court finds by clear and convincing evidence any of the statutorily enumerated circumstances set forth in section 361.5, subdivision (b) (In re A.E., supra, at p. 1141; § 361.5, subd. (b)), which are sometimes referred to as "bypass" provisions (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845846). Thus, because the juvenile court's discretion to bypass reunification services to a biological mother is statutorily limited, we review this aspect of the juvenile court's dispositional order to determine if substantial evidence supports the finding that one of the statutory bypass provisions applies. (In re A.E., supra, at pp. 1140-1141; In re S.B. (2013) 222 Cal.App.4th 612, 623.)
In this case, the juvenile court relied upon the bypass provision set forth in section 361.5, subdivision (b)(10) to deny reunification services to Mother. Section 361.5, subdivision (b)(10) provides that reunification services need not be provided to a parent if the court finds by clear and convincing evidence: "That the court ordered termination of reunification services for any . . . half sibling of the child because the parent . . . failed to reunify with the . . . half sibling after the . . . half sibling had been removed from that parent . . . and . . . this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the . . . half sibling of [the] child ...." (§ 361.5, subd. (b)(10).) Where the juvenile court determines that this subdivision applies, the juvenile court is statutorily prohibited from ordering reunification services unless it also makes a countervailing factual finding, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c)(2).) The department bears the burden of proving the threshold issue of whether a bypass provision applies, while the parent bears the burden of proof on the issue to establish the countervailing fact that reunification would be in the best interests of the child. (In re T.R., supra, 87 Cal.App.5th at p. 1148; In re Jayden M. (2023) 93 Cal.App.5th 1261, 1272-1273.)
Here, it was undisputed that J.S.'s half siblings were removed from Mother's custody in a prior dependency proceeding, Mother was unable to reunify with the halfsiblings, and Mother's parental rights as to the half-siblings were terminated. It was further undisputed that the problems leading to removal in that case involved substance abuse. Thus, the only argument advanced by Mother on appeal is that there is no substantial evidence to support the conclusion that Mother had "not subsequently made a reasonable effort to treat the problems that led to the removal" of the half-siblings. We disagree.
First, the record in this case shows that Mother had a persistent history of struggles with substance abuse starting in at least 2013, and resulting in at least two relapses following termination of her parental rights as to J.S.'s half siblings. And it is a "conventional wisdom and practical reality that short and recent periods of sobriety are often not enough to counter a long-standing pattern of use and relapse" and as a result, the juvenile court may find that a "brief period of sobriety" after years of abuse is not sufficiently reasonable to avoid bypass under section 361.5, subdivision (b)(10). (In re Jayden M., supra, 93 Cal.App.5th at p. 1277.)
Specifically, Mother relapsed sometime prior to the birth of J.S., as J.S. tested positive for methamphetamine at the time of birth. Mother also admitted that after termination of the original dependency involving J.S., she again relapsed used methamphetamine sometime in May 2023, as well as resumed alcohol consumption.
Second, the record shows that even after DPSS became involved following the July 2023 domestic violence incident, Mother expressed the view that her consumption of alcohol and use of methamphetamine did not represent a risk to J.S. In fact, the record suggests she affirmatively misrepresented her use of alcohol and methamphetamine to her prior substance abuse sponsor and social workers until confronted with a positive drug test. And the failure to acknowledge a problem can support a finding that a parent has not made sufficient reasonable efforts to overcome prior issues leading to removal of a child because "[o]ne cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196-197.)
Specifically, Mother reported to her sponsor on July 16, 2023 that she had cravings for methamphetamine, but had not acted on it; only to later admit to social workers that she had actually used methamphetamine in May 2023. Mother also initially reported that her first relapse into alcohol consumption was following the domestic violence incident of July 2023, but she later admitted to social workers that she had actually continued to consume alcohol socially after completion of her substance abuse program in 2021.
Finally, the record shows that Mother failed to take any steps to address her substance abuse problem until after J.S. was formally removed from her custody by way of a warrant. This is significant in that Mother had already appeared at an initial hearing on September 12, 2023, represented to the juvenile court that she would be starting a substance abuse program the following day, and was specifically advised by the juvenile court that it would leave J.S. in Mother's custody on the condition that she immediately begin her substance abuse program. However, Mother failed to enroll in any substance abuse program until October 26-after social workers discovered that Mother had continued to use methamphetamine while J.S. had been left in her care, and detained J.S. pursuant to a warrant. Failure to make "any effort to address . . . substance abuse issues after [a] minor [i]s returned to [a parent], until minor was once again removed and bypass was recommended" can support a finding that the parent failed to make reasonable efforts to address the problem. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 915; Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121-1122 [juvenile court may conclude that a parent has not made sufficiently reasonable efforts to address the problem where no efforts were made until after the birth and detention of the parent's most recent child].)
Thus, the record contains substantial evidence upon which the juvenile court could rely to conclude that Mother had failed to make reasonable efforts to address the problems that led to removal of J.S.'s half siblings from her custody in a prior dependency proceeding. Given this conclusion, Mother has not shown that reversal of the dispositional order denying her reunification services is warranted on this basis.
4. Best Interest Exception to Bypass Provisions
Finally, Mother contends that even if substantial evidence in the record supports a finding that the bypass provisions of section 361.5, subdivision (b)(10) apply in this case, the juvenile court should have granted reunification services pursuant to section 361.5, subdivision (c) as in the best interests of the children. We conclude that this argument has been forfeited for failure to raise the issue below.
At oral argument, Mother requested permission to file supplemental briefing on the issue of forfeiture, arguing that no party raised forfeiture in their appellate briefs. However, "[a] fundamental tenet of our system of justice is the well-established principle that a party's failure to assert error or otherwise preserve an issue at trial ordinarily will result in forfeiture of an appeal of that issue." (People v. McKinnon (2011) 52 Cal.4th 610, 636.) Thus, whether an issue has been preserved for appellate review is a threshold question that is fairly included within any issues that an appellant seeks to raise on appeal, and a party is not entitled to supplemental briefing simply because the issue has not actually been briefed. (People v. Alice (2007) 41 Cal.4th 668, 677.) We, therefore, deny the request to submit supplemental briefing on the issue of forfeiture.
"In dependency proceedings, as elsewhere, a litigant forfeits an appellate argument by failing to raise it before the trial court." (In re D.P. (2023) 92 Cal.App.5th 1282, 1292-1293; In re S.B. (2004) 32 Cal.4th 1287, 1293.) The forfeiture rule has been directly applied to dispositional orders bypassing reunification services. (In re T.G. (2015) 242 Cal.App.4th 976, 984; D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1034.)
Section 361.5, subdivision (c)(2) permits the juvenile court to order reunification services despite the application of the bypass provision in section 361.5, subdivision (b)(10), if the juvenile court finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c)(2).) However, a parent bears the burden of proof to show that the best interests of the child warrant application of this provision (In re T.R., supra, 87 Cal.App.5th at p. 1148; In re Jayden M., supra, 93 Cal.App.5th at pp. 1272-1273), and the juvenile court is not required to make any findings related to this subdivision if it is not asked to consider its application (R.T. v. Superior Court, supra, 202 Cal.App.4th at p. 913, fn. 3).
The record in this case shows that the only argument advanced by Mother at the time of the contested dispositional hearing was that the bypass provision of section 361.5, subdivision (b)(10) did not apply. Mother did not request that the juvenile court exercise its discretion to grant reunification services under section 361.5, subdivision (c)(2); did not present any evidence to show that the reunification might have been in the best interest of J.S. notwithstanding the application of a bypass provision; and did not request the juvenile court make any findings under this statutory provision. Even after the juvenile court announced its findings at the time of hearing, Mother repeated her objection to the findings in support of the bypass provision, but made no request that the juvenile court make any additional findings under section 361.5, subdivision (c). Consequently, the juvenile court never reached the issue and made no findings under this subdivision. Under the circumstances, we must conclude that the argument has been forfeited on appeal.
We acknowledge that the minute order contains a brief, ambiguous statement that "Reunification services are denied as reunification services are not in the best interest of [J.S.]." However, "[w]here there is a conflict between the juvenile court's statements in the reporter's transcript and the recitals in the clerk's transcript, we presume the reporter's transcript is the more accurate." (In re A.C. (2011) 197 Cal.App.4th 796, 799800.) This is particularly true where, as here, Mother did not raise or argue the issue at the time of the hearing, and the juvenile court made no reference to the issue when announcing its ruling at the hearing.
Nor does this case present a circumstance in which we should exercise our discretion to reach the merits of the issue. The determination of whether reunification services should be offered despite the application of a statutory bypass provision is a matter within the juvenile court's discretion based upon weighing numerous factors. (See In re Jayden M., supra, 93 Cal.App.5th at pp. 1272-1273.) Review of this aspect of a juvenile court's dispositional order requires a reviewing court to evaluate whether the juvenile court's factual findings related to each factor are supported by substantial evidence (see In re A.E., supra, 38 Cal.App.5th at pp. 1140-1145), and whether the juvenile court's weighing of those factors in reaching its ultimate determination was arbitrary and capricious (In re G.L. (2014) 222 Cal.App.4th 1153, 1166-1167 [weighing competing evidence]). This court cannot undertake such an analysis where the juvenile court was never asked to make any factual findings related to the matter and never asked to exercise its discretion in the first instance.
IV. DISPOSITION
The orders are affirmed.
We concur: CODRINGTON Acting P. J. RAPHAEL J.