Opinion
C068211 Super. Ct. No. 11 JV SQ 28772-01
01-26-2012
In re S.L., a Person Coming Under the Juvenile Court Law. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. v. A., 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
V.A. (mother) appeals from the juvenile court's order denying reunification services as to the minor, S.L. (Welf. & Inst. Code, § 361.5, subd. (b)(10), (11) & (13).) She contends substantial evidence does not support the order under any statutory provision the court relied on. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 26, 2011, Shasta County Health and Human Services Agency (the agency) filed a section 300 petition as to S.L., a six-year-old male. The petition alleged:
1. Mother had a substance abuse problem that endangered the minor. She had a long drug-related criminal history. She also had a long history of juvenile dependency cases and referrals to children's services for medical neglect, general neglect, substance abuse, and physical abuse. On or about January 24, 2011, she was arrested for drug-related offenses and child endangerment. She admitted to recently using methamphetamine and selling drugs from her home. Large quantities of crystal methamphetamine and marijuana, along with paraphernalia for smoking methamphetamine and selling drugs, were found within the minor's reach in the room where he lived. There was minimal food in the home, and the minor, who had missed over 34 days of school, was hungry when placed in temporary custody. On the same date, mother's older child, A.B., was arrested after admitting to recent methamphetamine and marijuana abuse.
2. The alleged father, B.L., had substance abuse and anger control problems, with a criminal history of violent and drug-related offenses. He was on parole in Riverside County. During mother's prior dependency cases, he had resided with her and participated in substance abuse treatment.
B.L. was subsequently declared the minor's father (Fam. Code, § 7573) and offered reunification services. Because the issues on appeal do not involve him, we do not mention him further.
3. Mother had lost custody of other children due to her unresolved substance abuse, general neglect, and medical neglect issues. She tested positive for "methamphetamine and tricyclates [sic]" in July 2002 when her child M.T. was born; the child was detained. An additional petition was filed in October 2002 alleging general and medical neglect of mother's older children, A.B. and E.B. Mother's parental rights were terminated as to M.T. in May 2003. Mother reunified with A.B. and E.B., but continued to have neglect-related referrals to children's services.
The detention report alleged:
On the date of mother's arrest, a probation/parole search was conducted at the residence where mother lived with S.L., A.B. (age 17), and E.B. (age 19). S.L. was at home. A.B., a ward of the juvenile court under section 602, subdivision (a), was determined to be under the influence of marijuana and was detained for violating probation.
Mother admitted she had used methamphetamine two or three days earlier, but denied using it frequently. She said she sold it to support her family. According to her, she was moving to the House of Hope. She said she was willing to do whatever she needed to do to get the minor back.
Mother had had 11 referrals to children's services from January 1998 to May 2007, and two dependency cases. Up to July 2002 there were five referrals, predominantly for general neglect involving substandard living conditions and mother's transient lifestyle. On July 12, 2002, her children were removed from her care. She fled the county and gave birth to another child in San Joaquin County, who was put into protective custody there and eventually placed for adoption due to mother's continued drug use. However, after mother completed services (including parenting classes and drug and alcohol services) in Shasta County, her other children were returned to her on January 3, 2005.
The minor appeared very bonded to mother and wanted to get back to her as soon as possible.
The February 17, 2011 jurisdiction/disposition report recommended denying services to mother under section 361.5, subdivision (b)(10), (11), and (13) (hereafter section 361.5(b)(10), section 361.5(b)(11), and section 361.5(b)(13), respectively) on the following grounds: (1) Mother's reunification services and parental rights were terminated as to M.T., who tested positive for methamphetamine at birth (in 2002), after mother failed to complete the services that were offered; and (2) although mother completed services (including drug treatment) in the dependency case involving A.B. and E.B. and regained custody of them, her later relapse into illegal drug use showed that her services had not been successful.
Section 361.5(b)(10) provides: "[T]he court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 . . . and . . . , 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 of that child from that parent . . . ."
Section 361.5(b)(11) provides: "[T]he parental rights of a parent over any sibling or half sibling of the child had been permanently severed, . . . and . . . this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."
Section 361.5(b)(13) provides: "[T]he parent . . . of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior courtordered treatment for this problem during a threeyear period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
The February 2011 report stated: When he was detained, the minor, mother, and his two sisters shared a bedroom. Although mother had said she was moving to the House of Hope, as of February 10, 2011, she had not completed the application for the program. As of February 4, she could not provide a valid address, but was considering renting a travel trailer.
Mother, who was born in 1965, had had eight children, but only E.B., A.B., and the minor had lived with her for any significant time. She had lived mainly in motels.
When the dependency proceeding for E.B. and A.B. began in 2002, E.B., then aged 11, was reading at a first grade level, and both girls suffered from encopresis and significant dental decay. Even after reunifying with her daughters, mother failed to keep up their education; E.B. never completed high school, and A.B., now 17, had only three high school credits.
Since the minor was removed from mother's custody, he had become much more social than before and was doing quite well in school.
Although mother said she was attending the Right Road program, she insisted she had no drug problem. Unless her attitude changed, it was unlikely that her pattern of drug use would change.
An attached alcohol and other drug (AOD) assessment, prepared in early February 2011, stated that, according to mother, she completed outpatient drug treatment eight years ago, then stayed clean and sober until eight months ago (e.g., about June 2010) when she started "using and selling" drugs to support her family. She admitted drugs had caused problems in her life, but denied a current drug problem. The evaluator diagnosed amphetamine dependence and recommended long-term residential drug treatment and regular testing.
At the first jurisdictional hearing on March 1, 2011, mother requested a contested jurisdictional/dispositional hearing.
In an addendum report filed April 15, 2011, the agency continued to recommend denying services to mother.
According to the addendum report, mother missed a drug test in March, then took a makeup test which was "dilute"; the results of her latest test were pending. She had been attending Right Road Recovery Program since February 7, 2011, but did not attend any sessions in April.
The dependency proceeding involving A.B. and E.B. began in September 2002, two months after the birth and detention of M.T. When M.T. was detained, mother denied having a drug problem and could not explain M.T.'s positive drug test. Mother reported that A.B. and E.B. had been out of school since January 2002.
The minor enjoyed his foster placement and had become increasingly talkative and outgoing.
At the contested jurisdictional/dispositional hearing on April 22, 2011, mother testified as follows:
She completed drug treatment and parenting programs after losing custody of M.T. She was clean and sober when the minor was born in 2004, and stayed that way until about a year ago. She was "not really sure" what caused her to relapse; she "ha[d] lots of regrets" and wished she "could take it back."
Since this proceeding began, mother had gone to Right Road drug and alcohol classes three or four times a week. She had not attended in the first half of April because she was looking for another place to live. She was presently in a one-bedroom mobile home with one daughter, the mobile home's owner, and his daughter; she had called the House of Hope to see if they had any rooms yet.
Mother had been advised to attend Serenity, a 12-step program. She went to those classes, but did not know on what date she started; she believed it was in March. She had a sponsor there. She did not know which step she was on, or whether she had even started step one; no one had talked to her about that yet.
Mother had registered for parenting classes, but had had trouble finding transportation. She had signed up for a parenting class with Right Road.
On April 11 or 14, mother had turned in an application for a year-long program called Health Help; she was on a waiting list.
Mother had drug tested three or four times. She thought the results should be negative, but had not seen them. She failed to test on March 21, 2011, because she had no transportation; she believed she had told the social worker and had asked for a bus pass.
Mother had not used drugs since January 22, 2011, and did not know why she did it then; she took methamphetamine, which was her drug of choice. She did not have a drug problem now, although she did as of 2003. She did not know how to answer the question whether she had a drug problem in January 2011.
If given services, she would participate "a hundred percent."
Before hearing argument, the juvenile court stated its tentative view:
"[E]ven considering it in the best light, if I were to hear from mom that this was a one-time incident when she had some methamphetamine that she sold, and that was her only participation was that limited timeframe mentioned in the report, didn't happen before that, hasn't happened and won't happen again, even considering that, coupled with mom's testimony today, and having read and considered the reports, I don't think even that would be sufficient for me to order services to mom. [¶] . . . [I]t just seems that mom really hasn't taken an active role in re-addressing the issues again. Her relapse by the use of drugs and her inability to recognize that this is recurrent, that this is an issue again that has come up, it is a relapse, but yet she says she doesn't have a problem with it. That's of concern. The fact that she missed two weeks in April, a huge concern. She doesn't appear to be actually engaging again in those services. Doesn't recognize that she has a problem. Doesn't seem to be engaging in treatment to overcome those issues. With respect to the Serenity class, she doesn't seem to have any information, any quantifiable information that she can grasp as to where she is in that program, which is of concern that she isn't addressing the issues, that she hasn't overcome the issues which brought her before the dependency court in the past, which is a recurring drug issue."
Mother's counsel argued: (1) mother's completion of drug treatment programs and eight-year history of sobriety proved that section 361.5(b)(10) and (11) did not apply because she had made reasonable efforts to treat the problems that caused the removal of the minor's siblings from her custody; and (2) her long history of sobriety also proved she was not a "chronic" drug abuser within the meaning of section 361.5(b)(13).
The minor's counsel argued that section 361.5(b)(13) applied because mother had extensively and chronically abused methamphetamine since she was 26 years old. Counsel also asserted it had not been shown that services would be in the minor's best interest (§ 361.5, subd. (c)) despite the applicability of the bypass provisions.
County counsel concurred with minor's counsel, stressing mother's statement to the AOD assessor that she did not have a drug problem.
The court ruled: "Well, whether or not this particular case would fall within [section 361.5(b)(13)] is somewhat of a gray area, but the Court is very comfortable in finding that mom has not overcome the problems . . . which brought her to dependency court with respect to siblings, the [section 361.5(b)(10) and (11)] portions to denying services, nor has any evidence been presented that would demonstrate to the Court how it would be in the best interest of the child for the Court to provide services to [mother]. [¶] The Court does, nonetheless, believe that the provisions of [section 361.5(b)(13)] appl[y], but with respect to maintaining any kind of sobriety for a long term is really where the gray area lies. It is clear to this Court that mom has relapsed. The level of her relapse is really minimized by mom, and she doesn't seem to be engaged in overcoming that issue in order to reunify with this child. Of concern also is her participation in the sale of methamphetamine, in addition to the use. Her testimony regarding her current treatment, which she's extremely vague on, and missed a number of weeks with respect to that, and her inability or unwillingness to test. So those are all of a substantial concern to the Court with respect to these proceedings."
The court thereupon ordered the bypass of services to mother.
DISCUSSION
Mother contends we must reverse the juvenile court's order because the statutory criteria for denying services were not met under any of the provisions the juvenile court relied on. We disagree. The court properly denied services under section 361.5(b)(13).
A parent in a dependency proceeding is presumed to be entitled to reunification services. (§ 361.5, subd. (a).) To deny services, the juvenile court must find by clear and convincing evidence that a statutory ground for bypass exists. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.)
If the juvenile court properly denied services on any ground raised below, we need not consider whether other grounds relied on by the court are also supported. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76.) We review the court's ruling for abuse of discretion. (Ibid.; accord, In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)
Denial of services under section 361.5(b)(13), as relevant here, requires proof of two elements: (1) the parent "has a history of extensive, abusive, and chronic abuse of drugs"; and (2) the parent "has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention . . . ." (See fn. 3, ante.)
The argument of mother's trial counsel—that this provision requires proof of "continuous" substance abuse and can therefore be defeated by evidence of abstention for any period—is unsupported by the provision's plain terms or any case law.
Resistance to court-ordered treatment programs does not necessarily mean "opposition to treatment by direct action." (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 (Laura B. ), citing Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 (Randi R. ).) If a parent previously underwent substance abuse rehabilitation and then, "during the three years prior to the [section 300] petition being filed, . . . evidenced behavior that demonstrated resistance to that rehabilitation," resistance has been proved. (Laura B. , supra, 68 Cal.App.4th at p. 780.) "Such proof may come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety." (Ibid.) The prior treatment need not have occurred within the three years before the filing of the section 300 petition; only the resistance to treatment need have occurred within the three-year period. (Ibid.)
In Laura B. the mother had completed at least three substance abuse programs before the relevant three-year period; at the start of that period, she had continued to attend 12-step programs and to maintain sobriety. However, after that time she resumed consistent drug use. (Laura B. , supra, 68 Cal.App.4th at p. 780.) Although a single brief lapse might not have proved resistance to treatment, the resumption of regular drug use did so. (Ibid.; see also Randi R. , supra, 64 Cal.App.4th at p. 73 [relapses after completing two programs, four failed attempts at rehabilitation].)
Here, although mother was proven to have used methamphetamine on only one occasion in January 2011, the circumstances surrounding her arrest and the minor's detention gave rise to the inference that this was not a single isolated lapse. Substantial quantities of methamphetamine and marijuana were found in the bedroom mother shared with the minor and her other children, along with paraphernalia for smoking methamphetamine. Mother admitted selling methamphetamine, allegedly to support her family. The home contained little food, and the minor had missed over a month of school. These circumstances together pointed to a resumption of regular drug abuse that had gone on for some time before it was detected. Further, mother admitted in her AOD assessment that she had started using again in approximately June of 2010, eight months before the minor was detained. Finally, mother's subsequent repeated denial that she had a drug problem (first before she had even resumed treatment, then again after taking only a few weeks of classes with less than perfect attendance) and her lack of understanding as to why she had relapsed were evidence that the relapse, at least in psychological terms, had not concluded.
Because the juvenile court properly found that services could be denied under section 361.5(b)(13), we need not decide whether they could also properly have been denied under section 361.5(b)(10) or (11).
We note, however, that insofar as the juvenile court found these provisions were satisfied because mother had not "overcome" her drug problem, that finding was inconsistent with the provisions on their face (which require only "a reasonable effort to treat" the problem) and with case law. (§ 351.5(b)(10); see also Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
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Even where the juvenile court has found that statutory grounds exist to bypass services, the court may offer them if the parent shows that to do so would be in the minor's best interest. (§ 361.5, subd. (c).) Here, however, mother did not make any such showing, and the evidence suggests the contrary. As soon as the minor was placed in foster care, he resumed regular attendance at school and became ever more talkative and outgoing. The fact that he was bonded to mother, as most six-year-olds are to their biological parents, was not enough to prove that granting her services would be in his best interest.
DISPOSITION
The juvenile court's order denying services is affirmed.
BUTZ, J.
We concur:
HULL, Acting P. J.
MURRAY, J.