Opinion
D076168
12-11-2019
In re D.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.J., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J517275C) APPEAL from an order of the Superior Court of San Diego County, Edlene McKenzie, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
A.J. (Mother) appeals from an order denying her reunification services for her daughter, D.C., based on her failure to reunite with D.C.'s siblings in a previous dependency proceeding. (Welf. & Inst. Code, § 361. 5, subd. (b)(10) & (11).) Mother contends it was in D.C.'s best interest to offer her reunification services because D.C.'s father (Father) received services, the couple remained in a relationship, and providing her with services would not delay permanence for D.C. We affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, D.C.'s two half siblings became dependents of the juvenile court. The San Diego County Health and Human Services Agency (Agency) offered Mother six months of services, including substance abuse treatment, drug testing, and individual therapy, however, Mother failed to participate and show substantial progress. Mother failed to reunify with and lost parental rights to one of D.C.'s half siblings in 2016. D.C.'s other half sibling remains a dependent in a group home due to aggressive behavior.
During her pregnancy with D.C., Mother did not receive prenatal care and used methamphetamine and marijuana. Father also had a history of drug use and admitted recent methamphetamine use. Neither had completed a drug treatment program and both were homeless. Both also had a history of drug-related arrests. Mother's longest sobriety period was approximately six months. Mother stated her diagnoses were bipolar disorder, schizoaffective disorder, and anxiety disorder.
Mother tested positive for marijuana at D.C.'s birth. There are no meconium drug test results in the record and hospital personnel reported that the parents hid meconium diapers. The labor and delivery nurse stated that D.C. did not show signs of withdrawal. Nurses reported that the parents walked the halls together, leaving D.C. alone in her room.
"Meconium is '[t]he greenish material which is in the intestine of the fetus. It consists of the secretions of the intestine and stomach, bile, etc., and it constitutes the first stools of the newborn infant.' " (In re S.K. (2018) 22 Cal.App.5th 29, 32, fn. 2.)
In April 2019, the Agency filed a section 300 petition on D.C.'s behalf alleging she was at risk because the parents' substance abuse rendered them unable to provide adequate care for the child. The juvenile court ordered D.C. detained in out-of-home care.
All undesignated date references are to 2019. --------
In May, D.C. was moved to the approved home of the paternal great-aunt. At the contested adjudication and disposition hearing in July, the juvenile court received the Agency's reports in evidence and took judicial notice of the findings and orders in the sibling's files. The juvenile court found the petition's allegations true by clear and convincing evidence, determined there were no reasonable means to protect D.C. without removal from parental care, placed her in relative care, and ordered reunification services for the Father only, bypassing services for Mother under section 361.5, subdivision (b)(10) and (11). When making this order the court encouraged Mother to "demonstrate on your own that you are committed to recovery and you're committed to demonstrating sobriety and stability and continuing with your parenting class on your own." It informed her that it was "not closing the door to the possibility of you coming back and asking for those services to be offered to you if you demonstrate for a couple of months you're going to participate in those services."
DISCUSSION
It is presumed in dependency cases that parents will receive reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95 (Cheryl P.).) Nonetheless, subdivision (b) of section 361.5 "sets forth certain exceptions—also called reunification bypass provisions—to this 'general mandate of providing reunification services.' " (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112.) "When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be ' "an unwise use of governmental resources." ' " (Ibid.)
Subdivision (b)(10) and (11) of section 361.5 allow the court to bypass reunification services if the court finds by clear and convincing evidence that (1) the parent had previously failed to reunify with a sibling or half sibling, or parental rights for a sibling or half sibling had been permanently severed; and (2) the parent has not made a reasonable effort to treat the problems leading to the removal of the sibling or half sibling. In assessing a parent's efforts to treat the problem(s) that led to the removal of a child's sibling or half sibling, the juvenile court considers the duration, extent, and context of the parent's effort, any other factors relating to the quality and quantity of those efforts, and the degree of progress. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.)
We review the court's determination whether a bypass provision applies for substantial evidence. (Cheryl P., supra, 139 Cal.App.4th at p. 96.) Here, Mother does not challenge that a bypass provision applies. Rather, it is undisputed that she failed to reunify with and lost parental rights to one of D.C.'s older half siblings.
Mother also does not dispute that substantial evidence supports the juvenile court's determination she had not "made a reasonable effort to treat the problems that led to the removal of the . . . half sibling." (§ 361.5, subd. (b)(10) & (11).) The court took judicial notice of the half siblings' case files. The half siblings' petitions were based in part on Mother's ongoing struggle with mental illness and substance abuse. Despite being offered seven months of reunification services, the juvenile court found the extent of Mother's progress toward mitigating or alleviating the reason for out-of-home placement of D.C.'s half siblings had been "none."
Where, as here, a bypass provision applies, a court may not order reunification services unless the parent establishes by clear and convincing evidence that services would be in the child's best interests. (§ 361.5, subd. (c).) We review the court's section 361.5, subdivision (c) determination for abuse of discretion. (In re Lana S. (2012) 207 Cal.App.4th 94, 109.) " 'The burden is on the parent to . . . show that reunification would serve the best interests of the child.' [Citation.] The best interests determination encompasses a consideration of the parent's current efforts, fitness and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. [Citations.] A best interests finding also requires a likelihood that reunification services will succeed. [Citation.] 'In other words, there must be some "reasonable basis to conclude" that reunification is possible before services are offered to a parent who need not be provided them.' " (In re A.G. (2012) 207 Cal.App.4th 276, 281.)
Here, by the time of the jurisdiction and disposition report in May, a month after D.C.'s removal, Mother had yet to meet with a substance abuse specialist, missed two drug tests, missed two supervised visits, and claimed she did not need any substance abuse or mental health treatment. Mother received referrals to three facilities for services, but failed to contact the facilities and the referrals were closed. During a supervised visit with D.C. in June, the caregiver terminated the visit because Mother was under the influence, confrontational, yelling, and refused to leave. In June, Mother also failed to appear for a drug test. As of the July report, Mother was living on the streets in a tent. She reported attending Narcotics Anonymous meetings, but also admitted that " 'a week ago' " she had used " 'both weed and "the white stuff." ' "
This evidence shows no effort by Mother to address the drug problem that led to the dependency and shows a likelihood that reunification services would not succeed. Moreover, because D.C. has not been in Mother's care for the entirety of her young life, it is unlikely that D.C. developed any bond with Mother. There is simply no basis for concluding the juvenile court abused its discretion when it found granting reunification services to Mother would not serve D.C.'s best interests.
Mother's primary argument to provide her services is that Father received services, she remains in a relationship with Father, and failing to provide concurrent services to both parents greatly reduces the possibility of successful family reunification. This argument, however, focuses on Mother's interest in reunification, not D.C.'s best interests. The court could properly find, on this record, that Mother was unlikely to successfully utilize reunification services, and thus those services would not ultimately inure to D.C.'s benefit. (See In re Jesse W. (2007) 157 Cal.App.4th 49, 66 ["[T]he court's focus was properly on the futility of providing services . . . to a parent who has had no interest in reunifying, regardless of how the other parent is situated."].)
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.