Opinion
D059818 Super. Ct. No. SJ11689C
10-14-2011
In re ISAIAH R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TAMIKA B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Tamika B. appeals a juvenile court order denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(11). She contends the court erred by finding she had not made reasonable efforts to treat her drug abuse issues after she lost custody of her two older children, and it erred by basing the denial of services on a finding she had not made a reasonable attempt to treat her mental health issues. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Tamika tested positive for marijuana at the time of Isaiah's birth in January 2011 and admitted she smoked marijuana every day. She also said she had been diagnosed with bipolar disorder, was depressed and felt stressed. She said she was open to participating in services, but she did not want to take medication to treat her mental health issues and did not want to drug test or participate in traditional counseling services. She had been admitted to a psychiatric hospital twice in 2009 and has had numerous emergency room visits for mental health problems. She admitted using methamphetamine three days after Isaiah's birth.
Tamika had an extensive history with child protective services regarding her older children. They were removed from her care in 2006 and adopted in 2009. Substantiated referrals concerning them included allegations of neglect, the children filthy and drugs being sold out of the home; an allegation that Tamika had a party with gang members, a child was screaming in the apartment and Tamika attempted suicide; and an allegation the children were hit by a car when she left them unattended in an apartment complex.
The San Diego County Health and Human Services Agency (Agency) petitioned on Isaiah's behalf under section 300, subdivision (b), alleging Tamika abused marijuana and methamphetamine, her two older children were removed because of drug-related allegations and she had failed to reunify with them. She had been provided with a voluntary case services plan to deal with her drug use and mental health issues, but she had not complied. Isaiah was detained in foster care.
Tamika began inpatient substance abuse treatment at KIVA, where she participated in parenting classes, Narcotics Anonymous, life skills group meetings and anger management. She refused to take any medications. She appeared to have difficulty understanding the information presented in the programs she was attending. She could not say how substance abuse affected a baby, and she did not believe Isaiah's breathing problems could have been caused by her marijuana or tobacco use during her pregnancy. She did not remember what she had learned about how bipolar disorder affects parenting abilities. After Tamika had been in the KIVA program for three weeks, her counselor said she had not yet become stable, and she had angry outbursts with other clients and wanted to leave. The Agency recommended she not be offered reunification services because she had not treated her drug abuse and mental health issues since losing custody of her older children.
At the jurisdictional and dispositional hearing in May 2011, the court denied Tamika's counsel's motion for a nonsuit judgment. Tamika then presented documentary evidence showing her participation in services. At the close of the hearing, the court found the allegations of the petition to be true, declared Isaiah a dependent of the court, removed him from Tamika's custody and denied her services under section 361.5, subdivision (b)(11).
DISCUSSION
Tamika contends the court erred by denying her reunification services because substantial evidence did not support the finding she had not made reasonable efforts to treat the problems that led to her older children's removal from her care. She also argues the court could not consider her mental health issues because they were not a part of the petitions concerning the older children and therefore were not the basis of their removals in 2006.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
It is presumed in dependency cases that parents will receive reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95.) "Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5[,] subdivision (b)." (Ibid.) In In re Joshua M. (1998) 66 Cal.App.4th 458, 467, the court stated: "Notwithstanding the crucial role of reunification services when a child is removed from the home [citation], the Legislature, by enacting section 361.5, subdivision (b), has discerned ' . . . it may be fruitless to provide reunification services under certain circumstances.' "
Section 361.5, subdivision (b)(11), provides reunification services need not be provided to a parent when the court finds by clear and convincing evidence:
"That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ."
Substantial evidence supports the court's denial of services under section 361.5, subdivision (b)(11). Tamika has a long history of substance abuse. All three of her children were born testing positive for drugs and her parental rights to her two older children were terminated because she made little progress in treating the problems that led to their dependencies. Tamika acknowledged that she had been given opportunities to reunify with her older children, but she had not completed her treatment program.
When Isaiah was born positive for marijuana, Tamika admitted she used marijuana every day throughout her pregnancy. Three days later she tested positive for methamphetamine and admitted that before her pregnancy she had been using this drug. She has a long-standing addiction to drugs and by the time of the hearing, had only been in treatment for three and a half months. After this time in treatment, she was not able to articulate how her drug use had affected her children or how using drugs during her pregnancy would affect her child, and she denied that her smoking tobacco and marijuana could have caused Isaiah's breathing problems. Her inpatient treatment at KIVA after Isaiah's birth does not constitute a reasonable effort to treat the problems that led to termination of her parental rights to her older children.
As the juvenile court stated:
"[Tamika] doesn't get to wait until she has a new baby and that baby is taken into custody. She's had ample time in the last two and a half years to address these issues. . . . Less than four months of inpatient treatment at KIVA in this case, in this court's mind, based on the long-standing history, does not constitute reasonable efforts."
The court did not improperly consider Tamika's mental health problems in denying her services. Her mental health issues were directly related to her drug use. She said she did not take prescribed psychotropic medications because it was "the devil's drug" and she did not like how it made her feel. Instead, she used marijuana for her bipolar disorder, depression and anger, and to help her sleep and for appetite issues. Tamika had not participated in any treatment programs since she lost custody of her two older children in October 2008 until she entered KIVA after Isaiah's birth in January 2011. Substantial evidence supports the court's finding that she had not made reasonable efforts to treat the problems that led to removal of her two older children. The court did not err by denying her services.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR:
HALLER, Acting P. J.
AARON, J.