Opinion
C088239
09-30-2019
In re M.D. et al., Persons Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A. D., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKJDVP20180000261)
Appellant A. D., mother of the minors, appeals from the juvenile court's dispositional order denying her reunification services. (Welf. & Inst. Code, §§ 361.5, 395.) She contends the juvenile court erred in finding she had failed to make reasonable efforts to treat the problems which led to the removal of the minors' half siblings and that reunification services were not in the minors' best interests. We affirm.
Further references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
The minors' half sibling, A. I., was declared a dependent of the court and removed from mother's custody in 1994 as a result of mother's inability to care for him due to her substance abuse and mental health issues. Mother did not participate in her case plan and, in 1997, the minor was adopted.
The minors' half sibling, J. M., was declared a dependent of the court and removed from mother's custody in 1999 -- again, as a result of mother's inability to care for him due to her substance abuse and mental health issues. Mother was provided with reunification services, including substance abuse treatment, but did not participate or reunify with J. M. J. M. was adopted in 2002.
In 2001, while J. M.'s case was in progress, the minors' half sibling, C. T., was born. C. T. tested positive for cocaine at birth, was declared a dependent of the court and removed from mother's custody. Mother was provided with reunification services, including substance abuse treatment. C. T. was adopted in 2002, when J. M. was adopted.
On February 26, 2018, minor F. D. (then age seven) reported that mother was arrested after stabbing minor M. D. (then age 10). The San Joaquin County Human Services Agency (Agency) investigated and discovered that M. D. had not been stabbed or injured, but discovered that the minors had witnessed mother's violent outburst against the father while mother was intoxicated. It was reported there had been several instances of domestic violence between the parents in which the minors were present and attempted to intervene. Father reported that mother drank alcohol daily and, although she took her mental health medication when reminded, he did not believe she took the medication regularly. Mother claimed she received daily doses of methadone but had been "clean" for 16 years. She claimed her recent positive test for morphine, heroin and codeine was false. She also stated she has been diagnosed with bipolar disorder. She stated that she has been prescribed Abilify but, when she has not taken it for three months, she becomes "grumpy and moody."
In March 2018, a safety plan was created in which mother agreed to leave the home if an argument started with father, take her psychotropic medication, not consume alcohol, have supervised contact with the minors, meet with a mental health therapist, and participate in the family team meeting. Mother also agreed to participate in a substance abuse program, comply with mental health assessments, and maintain medication compliance.
On June 5, 2018, mother called the social worker, screaming and crying and claiming father was "raping the children," that she had woken up to find she was tied up, she tested "dirty" because someone drugged her, and there was poop smeared on the wall. Mother sounded intoxicated and incoherent. Mother became increasingly agitated and hung up on the social worker. Also on June 5, 2018, police officers were called to the home after mother threated to kill M. D. The following day, mother called the social worker to apologize for having a "mental moment."
At the June 28, 2018, family team meeting, it was reported that mother was continuing to use methamphetamine and alcohol and continuing to have violent outbursts. Mother appeared tired and "not mentally present" at the meeting. Her eyes were half open and it appeared as if her head was wavering around. Mother claimed she had been sick with pneumonia and had been sleeping for the past five days. Father agreed that mother appeared intoxicated. As the meeting continued, mother became upset and began yelling about being declared the "bad guy." Mother had to be calmed repeatedly after bouts of emotional instability, crying, yelling, and uncontrollable anger. Prior to the conclusion of the meeting, and in the presence of the minors, mother again became angry, yelled that she did not care if the minors were taken away, and stormed out. Security and the police escorted mother from building. The safety plan was modified to allow the minors to stay with their adult half sibling, who agreed not to permit mother access to the minors pending court intervention.
On July 9, 2018, the Agency filed a section 300 petition on behalf of minors M. D. and F. D. based on parents' ongoing domestic violence, mother's mental health issues, and mother's substance abuse. The petition also alleged that the minors' three half siblings had previously been declared dependents, mother had been offered reunification services, failed to engage in her case plans, failed to reunify with the half siblings, and had her parental rights terminated.
At the July 10, 2018, detention hearing, the court ordered the minors detained and granted the Agency discretion to arrange supervised visits between the minors, father, and mother. Mother did not appear for the jurisdiction hearing. Father reported that mother had come to the courthouse with him but chose to remain outside to "drink a beer" instead of attending the hearing. Counsel confirmed that mother had been in the courthouse earlier. The court found the allegations of the petition true and set the matter for disposition hearing.
The social worker's disposition report reflected mother's inconsistent attendance at the supervised visits, having missed three out of 10 scheduled visits. Further visitation was suspended after September 24, 2018, when the social worker was informed that mother was found passed out on the front lawn of the home where the minors reside. The police were called and mother was escorted from the property. It was later reported that F. D. had become upset, believing mother was deceased when she was found passed out on the lawn. M. D. informed the social worker that she does not want to visit with mother and she had not attended any of the supervised visits.
Mother had also been inconsistent in parenting classes and was continuing with her transient lifestyle. She had been difficult to work with, became agitated easily, and consistently had angry outbursts about the court process and father. The social worker informed the court that mother routinely left "drunk" phone messages on the social worker's office phone. The Agency recommended mother be bypassed for services under section 361.5, subdivision (b)(10), (b)(11), and (b)(13).
At the October 11, 2018, disposition hearing, mother reported she was in the Family Ties substance abuse recovery program. The court advised mother that the Agency was not offering her services but she could help demonstrate her efforts by remaining in the Family Ties program. The matter was continued for a contested hearing.
At the October 30, 2018, contested dispositional hearing, the Agency advised the court that mother had entered the Family Ties substance abuse program on September 27, 2018, but left on October 11, 2018. The Agency reported that mother had then entered the Recovery House substance abuse program on October 19, 2018, but was asked to leave on October 28, 2018, because of her disruptive behavior. The court then heard testimony from Steven Ryan (drug court compliance officer) and mother.
Ryan testified that he had assessed mother for residential treatment and referred her to Family Ties residential treatment facility but after 13 days, mother became upset and chose to walk away. Ryan testified mother explained her departure from Family Ties occurred because she was not allowed to use the phone to contact the Social Security Office regarding the possible loss of her benefits. Mother was instructed to attend support meetings and she tested negative for drugs on October 15 and October 19, 2018. On October 19, 2018, mother was referred to and entered Recovery House substance treatment program. Mother left the program on October 28, 2018, after becoming upset about a confrontation with another client. Mother tested negative for drugs on October 29, 2018. Her last positive test was September 27, 2018, in which she tested positive for methamphetamine. Mother had not provided any records to prove her attendance at support meetings.
Mother testified that she did not participate in the case plan for half sibling A. I., and could not remember if she participated in the case plan for half sibling J. M., which included substance abuse treatment, but claimed she did complete the case plan for half sibling C.T. She stated she agreed to sign over parental rights for C. T. because the adoptive family was wealthy. Mother testified she left the Family Ties facility because she was "about to be kicked off of Social Security." She testified she left Recovery House after another client hit her and she threatened the client and told staff they had better keep the client away from her. Mother said the Recovery House staff "picked [the client] over me" but mother was willing to go back to the program. Mother testified she learned a lot from her time in the programs, such as how to cope and tools about anger.
Mother also said she recently found records showing her attendance at support meetings, although she did not bring the records with her to court. She stated the last time she used methamphetamine was September 24 or 25, 2018 -- right before she went to Family Ties. She had used marijuana and alcohol within the last 40 days. She has a current prescription from her mental health physician for benzodiazepines, which she has been directed to take one or two times a day, as needed. She did not tell Ryan about her prescription prior to the recovery programs because she did not intend to take the benzodiazepines while in recovery. She took herself off of them. She did not take any benzodiazepines until she was terminated from Recovery House.
The court found that it was domestic violence, mother's substance abuse, and mother's mental health issues that had given rise to the current proceedings, and that mother had failed to make reasonable efforts to treat these problems since the removal and severance of parental rights to the minors' half siblings. The court stated that mother's recent drug and alcohol use, coupled with her failure to remain in either of the two recent drug programs reflected a spotty commitment by mother and demonstrated that there had been no significant change in her behavior. The court further commented that it was not convinced that reunification services would be in the minors' best interests and bypassed mother for services. The court allowed discretion for supervised visits with the minors, if the minors wished to visit, as long as mother showed proof that she was participating in mental health treatment, entered a substance abuse program, and demonstrated sobriety. Reunification services were provided to father.
We note that it appears to be a practice in San Joaquin County to "split" jurisdiction and/or disposition hearings, as it did here, where it held a disposition hearing "as to mother" separately from the disposition hearing "as to father." This procedure is unauthorized.
Jurisdiction is taken over the child, not over or "as to" the parent(s). (See §§ 300; 355, subd. (a) [at jurisdiction hearing, court considers whether minor is a person described by section 300 and considers evidence "relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court"].) " '[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent. [Citation.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.' " (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) Likewise, disposition is made of the child. (See §§ 355, subd. (a); 358 [proper disposition is made "of the child"]; see also § 355.1.) For this reason, there is only one simultaneous adjudication of jurisdiction, and one simultaneous disposition. These orders are childcentric, not parentcentric and cannot be "split" as to each parent.
DISCUSSION
Mother contends the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(10) and (11), on the basis that she had not made reasonable efforts to treat the problems which led to the removal and severance of parental rights to the minors' half siblings and that services were in the minors' best interests. We find no error in the denial of reunification services.
Section 361.5, subdivision (b) allows the juvenile court to deny reunification services if it finds clear and convincing evidence that one of several enumerated conditions exists. To apply subdivision (b)(10), the court must find that the parent previously failed to reunify with a sibling of the child. To apply subdivision (b)(11), the court must find that the parent's parental rights to a sibling of the child have been terminated. Neither provision applies if the parent has made "a reasonable effort to treat the problems that led to removal of the sibling or half sibling." (Subd. (b)(10), (11).) Thus, in order to deny reunification under subdivision (b), the court must find that the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the child or termination of parental rights. (E.g., Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) We review a juvenile court's denial of reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)
Further references to subdivision (b) are to section 361.5.
Mother complains that not enough evidence was presented to establish the details of the problems that led to the removal of the half siblings, about the precise reunification plans she was provided, and about the extent of her progress in those plans. The record, however, reflects that previously and separately, half siblings J. M. and A. I. were adjudicated dependents and removed from mother's custody and subsequently placed for adoption as a result of mother's inability to care for them due to substance abuse and mental health issues. Mother was provided reunification services in both cases, including substance abuse services, but did not participate in the court-ordered programs. The record also reflects that half sibling C. T. was adjudicated a dependent as a result of testing positive for cocaine at birth and exhibiting symptoms of drug exposure. Mother was said to have a history at that time of drug abuse, domestic violence, and child abuse. Mother's case plan in that case included drug abuse treatment and mental health services. Although mother disputes that she did not engage in the case plan, she failed to reunify with the minor and he, too, was adopted.
Accordingly, there was sufficient information about the prior dependency proceedings for the juvenile court to find that the problems that led to the removal of the half siblings were, in fact, the same problems which led to the removal of the minors -- substance abuse and mental health issues, that mother was provided services, and that in at least two of the cases, she did not engage in the plans and, subsequently had her parental rights terminated.
On the other hand, there was no evidence mother made any efforts, subsequent to the adoption of J. M. and C. T. in 2002 and prior to the institution of these proceedings, to address her substance abuse problem. There was, however, substantial evidence that, since the termination of her parental rights as to the minors' half siblings in 2002, mother has continued to abuse drugs and alcohol, continued to engage in domestic violence, and failed to obtain mental health stability. There had been several referrals reporting domestic violence, drug and alcohol abuse, and mother's refusal to seek professional help. M. D. reported, and mother admitted, that mother drank alcohol. Although mother claimed she "only drink[s] three to four times a month," father reported that mother drank alcohol daily and did not consistently take her mental health medication.
Moreover, even since the removal of the minors in this case, mother's efforts have been lacking. As the juvenile court noted, mother tested positive for drugs only a month before the disposition hearing and had been continuing to abuse alcohol, as evidenced by her passing out on the lawn of the minors' current caretaker. She also failed to remain in either of two substance abuse treatment programs for longer than 13 days, pending disposition, and independently (without the recommendation, or even knowledge, of her physician) stopped taking her mental health medication. This information was properly considered by the court, as cases have uniformly considered a parent's progress in a current matter when assessing whether that parent has made reasonable efforts to treat the problems leading to removal of and severance of parental rights to her other children in prior dependency matters. (See, e.g., In re Lana S. (2012) 207 Cal.App.4th 94, 108-109 [current substance abuse issues could be considered in assessing whether § 361.5, subd. (b) applies].)
In sum, there was more than sufficient evidence to support the court's finding that subdivision (b) applies.
Mother also argues that, even if bypass of services was otherwise supported by the evidence, reunification services should have nonetheless been ordered as being in the minors' best interests. She contends the juvenile court abused its discretion when it failed to order reunification services pursuant to section 361.5, subdivision (c).
Section 361.5, subdivision (c)(2), states, in relevant part: "The court shall not order reunification for a parent or guardian described in paragraph . . . (10) [or] (11) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." The parent has the burden of showing that reunification would be in the child's best interest. (See In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) A juvenile court's order denying services under section 361.5, subdivision (c) is reviewed for abuse of discretion. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)
Mother claims reunification services were in the children's best interest because she had raised the minors, who were seven and 10 years old, without juvenile court involvement and there was evidence to suggest the majority of those years had been good. She further advocates that it is reasonable to suspect that mother, who had been abused as a child, "simply broke when her mother died."
However, despite mother's claim that most of the family's years together were good, M. D. described mother as "mental" and both she and F. D. stated they did not feel safe with her. M. D. reported that mother becomes mean and says "weird random stuff" when she drinks alcohol. M. D. said mother had a history of hitting herself and then lying and claiming father had hit her. Father said he and mother fought two to three times a week.
M. D. has expressly stated she does not want to visit mother. F. D. has conditioned his desire for visits on mother's sobriety, which mother has not established she can maintain. And while mother emphasizes that there has not been previous juvenile court involvement with these minors, there have been several referrals. These referrals include allegations of domestic violence, mother's alcohol abuse problems, and mother's refusal to seek professional help.
M. D. told the social worker that mother was "better" five years ago (when she was five years old). Since that time, mother had punched her in the face and bloodied her nose. M. D. also told the social worker that, in 2015, mother had kicked F. D. in the stomach when he would not get into the car. M. D. said she does not know what happened to mother but wished she was nice again. Contrary to mother's argument, this is not a description of a "relatively healthy and happy" family life.
The juvenile court could find that mother did not meet her heightened burden of proof that reunification services were in the minors' best interests. Denial of reunification services was not arbitrary, capricious, or patently absurd. There was no abuse of discretion. (In re Angelique C., supra, 113 Cal.App.4th at p. 523; In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.)
DISPOSITION
The judgment (dispositional orders) of the juvenile court is affirmed.
Because we affirm the juvenile court's orders denying reunification services to mother, we need not address mother's conditional argument that, should we reverse, the juvenile court should be directed to make new detriment findings before denying mother visitation. --------
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Mauro, J.