From Casetext: Smarter Legal Research

In re H.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 5, 2012
A131537 (Cal. Ct. App. Jan. 5, 2012)

Opinion

A131537

01-05-2012

In re H.S., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. P. S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. J40513)

In this dependency proceeding, appellant P.S. appeals the juvenile court's jurisdictional and dispositional orders regarding her son H.S., including the order denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(10), (11), and (13). We affirm.

These provisions state that a parent may be bypassed for reunification services if a court had previously terminated services because the parent failed to reunify with the minor's sibling or half-sibling (§ 361.5, subd. (b)(10)), or if the parent's parental rights had previously been terminated as to a sibling or half-sibling (§ 361.5, subd. (b)(11)), and parent has not subsequently made a reasonable effort to treat the problems leading to termination, or if the parent has a chronic substance abuse problem (§ 361.5, subd. (b)(13)), and has resisted treatment. All further statutory references are to the Welfare and Institutions Code except as otherwise indicated.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

H.S. was born approximately four weeks premature in November 2010. At birth, he had respiratory difficulties and was placed on oxygen. The medical records indicate that he was a "newborn affected by maternal poly substance abuse during pregnancy," though he showed no signs of withdrawal other than poor feeding. He was placed in protective custody the day after his birth.

On November 30, 2010, the juvenile court ordered H.S. detained.

On December 1, 2010, the Solano County Department of Health and Social Services (Department) filed a first amended dependency petition. The petition alleges that appellant has a history of substance abuse, including use of marijuana and methamphetamines, and that her drug use interferes with her ability to provide adequate care, support, and supervision for her son. She allegedly had failed to obtain prenatal care for H.S., had previously given birth to a child who tested positive for methamphetamine exposure, and had admitted to using methamphetamine while she was pregnant with two of her other children. She also admitted to using controlled substances as late as two weeks prior to H.S.'s birth. She reportedly had refused to complete substance abuse treatment programs in the past.

The Department filed its jurisdiction/disposition report on January 18, 2011. The Department alleged that H.S. was at "substantial risk of serious harm or illness" within the meaning of subdivisions (b) and (j) of section 300, and the report recommended that appellant be bypassed for reunification services under section 361.5, subdivision (b)(10), (11), and (13). The report states that appellant was provided voluntary family maintenance services for three older children beginning in November 2008, but that her case was closed in March 2009 due to her refusal to comply with the recommended services. Appellant did enter into an outpatient substance abuse treatment program, but attended only nine sessions and tested positive for illicit substances on multiple occasions. After her discharge from that program, she was referred to a different outpatient program, but did not comply with the intake process. Subsequently, a dependency was declared as to all three minors. Jurisdiction was dismissed as to two of the children, who were placed with their fathers.

The report recommends that H.S.'s father, T.S., be provided with family reunification services. T.S. is not a party to this appeal.

As to the third child, M.S., appellant was offered family reunification services but refused to participate. In May 2009, following a contested six-month review hearing, the juvenile court terminated family reunification services. Appellant did not attend the hearing. Her parental rights as to M.S. were terminated in September 2010 and the child was placed with a maternal aunt and uncle who were planning to adopt her.

A search of appellant's criminal history revealed prior arrests for petty theft, use and possession of controlled substances, and battery. Additionally, she tested positive for methamphetamine and marijuana when admitted to the hospital for H.S.'s birth, though H.S. tested negative for all drugs. The report further alleges that appellant was unsuccessful in completing previously arranged substance abuse treatment. She refused further referrals, and was resistant to efforts to assist her and her family. The report recommends that reunification services not be provided due to her failure to address her ongoing problems, and states that offering her services would not be in H.S.'s best interest due to his immediate need for stability and appellant's failure to demonstrate her willingness to address the identified areas of concern.

The report reflects that appellant told the Department's social worker she believed all prior allegations made against her concerning child abuse and neglect were false and never proven. She denied that her use of substances has interfered with her parenting, though she admitted to using drugs during her pregnancies. She stated that over the last several months, she attended 12-step meetings between six to eight times a month and denied the need for formal substance abuse treatment.

On February 14, 2011, a contested jurisdictional/dispositional hearing was held. Based on its review of the Department's report and the testimony of a Department social worker, the juvenile court concluded H.S. came within section 300, subdivisions (b) and (j). He was continued in foster care in a non-relative placement. The court reduced appellant's visitation with H.S. from two to one time a week. The court also declined to order reunification services for appellant. This appeal followed.

DISCUSSION

I. Jurisdictional Findings

Appellant claims substantial evidence does not support the finding of jurisdiction because the Department failed to show specifically how H.S. was or would be harmed. We disagree.

Section 300, subdivision (b), provides that a child comes within the jurisdiction of the juvenile court when a preponderance of the evidence shows that, at the time of the jurisdictional hearing, there exists (1) neglectful conduct by the parent in one of the enumerated forms, (2) serious physical harm or illness or the substantial risk of such harm or illness, and (3) a causal connection between the parent's conduct and the harm or risk of harm. (See, e.g., In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Here, the amended petition alleged under section 300, subdivision (b), that appellant "has a history of substance abuse which impairs her judgment and ability to provide adequate care, support and supervision for [H.S.]." Under section 300, subdivision (j), jurisdiction is found if the minor's sibling has been abused or neglected and there is a substantial risk that the child will also suffer abuse or neglect. We apply the substantial evidence standard of review to a juvenile court's jurisdictional and dispositional findings. (In re David M. (2005) 134 Cal.App.4th 822, 825, 828.)

As appellant admits, the Department's report showed that H.S. was born approximately four weeks premature. While his infant maternal drug screen was negative for all substances, he showed signs of drug exposure in that he suffered from respiratory distress at birth and exhibited poor feeding reflexes. Further, appellant admitted to using marijuana and methamphetamine during her pregnancy, as well as during the pregnancies of her other children. She also tested positive for both substances at the time of admission to the hospital for delivery of H.S. Thus, the evidence supports a finding that appellant exposed H.S. to hazardous substances during gestation and that the parental neglect was likely to continue. In our view, this constitutes more than sufficient evidence to support a finding under section 300, subdivision (b).

Appellant also claims substantial evidence does not support a jurisdictional finding against her under section 300, subdivision (j). She concedes the allegations regarding the earlier findings as to H.S.'s half-siblings were contained in the Department's report, but claims there "was no evidence to show the factual basis for those jurisdictional findings." However, the pattern of abuse and neglect exhibited towards H.S.'s half-siblings is well-documented in the report. For example, we note the Department reported M.S. had also been born premature, and had tested positive for methamphetamine. Substantial evidence thus supports the conclusion that M.S. had been harmed and that there was a substantial risk H.S. would also suffer harm due to appellant's substance abuse.

II. Denial of Reunification Services

Ordinarily, "[f]amily reunification services play a '[critical] role' in dependency proceedings." (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the court must provide services designed to reunify the family within the statutory time period. (§ 361.5, subd. (a); see In re Alanna A., supra, at pp. 563-564.) "Limited exceptions to this general rule—termed reunification bypass provisions—are listed in section 361.5, subdivision (b). [Citations.] Once it is determined that one of these bypass provisions applies, ' "the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources." ' [Citations.]" (Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 485.) At the disposition hearing, before it may deny reunification services to a parent, the court must find by clear and convincing evidence that one or more of the subparts described in section 361.5, subdivision (b) apply. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845-846.) On appeal, we determine whether such findings and orders are supported by substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

Section 361.5, subdivision (b)(10) provides that a court need not make reunification services available to a parent when it finds that the 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 . . . [and] this parent . . . has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half sibling of that child from that parent." Under section 361.5, subdivision (b)(11), services may also be withheld if the parental rights of that parent have been terminated and the same lack of reasonable effort is shown. Here, it is undisputed that reunification services were terminated as to appellant with regard to M.S. in May 2009, and that her parental rights to that child were terminated in September 2010.

As we have already noted, the jurisdiction/disposition report states that appellant refused to participate in substance abuse treatment services during the earlier dependency proceeding. Further, Bonnie Mencher, a Department social worker, testified that she had "clearly tried to explain to [appellant] why child welfare services and juvenile court [are] involved and what she needed to do. She continues to deny that her substance abuse is a problem and completely denies that it's negatively impacted her relationship with her kids and doesn't see the need for child welfare involvement." According to the report, when asked what prevented her from successfully completing a prior treatment program, appellant stated that she had "issues with a counselor there," had "continued to test positive for substances," and " 'just dropped out for no-show.' " She had also claimed that the services were never explained to her and after her children were removed from her care she did not see the point in pursuing the matter. The only opposing evidence was her self-reporting that she was attending six to eight 12-step program meetings per month. This is inadequate to establish that she had made reasonable efforts to address her problem. Substantial evidence thus supports the court's finding that appellant was not making reasonable efforts to address the same problem that led to termination of her parental rights as to M.S., namely, her substance abuse.

Section 361.5, subdivision (b)(13), provides that reunification services may be bypassed if the parent "has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . ." As noted above, the instant petition was filed in December 2010. Within the prior three years, appellant had been ordered to obtain treatment in connection with M.S.'s dependency, but had refused to complete the program. The Department's report also reflects that appellant had a 20-year history of substance abuse. As noted, she also had a history of resisting treatment for her problem and offered little evidence that she was likely to change.

Appellant claims there is no evidence in the record that the juvenile court ordered her to participate in a substance abuse program during the proceedings involving M.S. It is undisputed, however, that she refused to comply with her reunification plan. We would be surprised if substance abuse treatment was not included in the plan. Regardless, bypass is appropriate under section 361.5, subdivision (b)(10) and (11).
--------

Appellant argues that notwithstanding the denial of reunification services, the juvenile court should have ordered services under section 361.5, subdivision (c) because they would be in H.S.'s best interests. "Section 361.5, subdivision (c) prohibits the court from ordering reunification for a parent who, like [appellant]," falls within one of the enumerated exceptions of subdivision (b), " 'unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.' " (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123.)

Here, appellant not only was not entitled to reunification services, the record does not contain any evidence that reunification would be in the best interests of H.S. The burden of affirmatively demonstrating that reunification is in the best interests of the child is upon the parent. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) Appellant offered no compelling evidence in this regard. In particular, the fact that H.S.'s father was granted reunification services does not support the conclusion that appellant should be granted them as well. Given her history of substance abuse and her failure to address those issues, it was not in the best interests of H.S. to further prolong the dependency process to provide reunification services to her.

III. Visitation

Appellant claims the juvenile court abused its discretion in restricting her visitation with H.S. We disagree.

The juvenile court ordered appellant's visits to occur once a week, supervised, and not in the presence of T.S. While it appears appellant's visits with H.S. were not problematic, the record establishes that the Department could not accommodate two separate one-hour visits for each parent for a total of four visits with the baby a week. Visitation was essential to the reunification efforts between T.S. and H.S. The court reasonably allocated limited resources to focus on the reunification efforts with T.S., while allowing appellant reasonable weekly visits with the child even though she was not offered reunification services.

IV. Relative Placement

Finally, appellant complains that the Department failed to exercise due diligence in its efforts to locate appropriate relatives for H.S.'s placement. She claims both her and H.S.'s interests have been harmed by the non-relative placement. Because she did not challenge the temporary placement pursuant to section 309 during the course of the juvenile court proceedings, we find she has waived this issue on appeal. (See In re Richard K. (1994) 25 Cal.App.4th 580, 587-590.)

DISPOSTION

The jurisdictional and dispositional orders are affirmed.

________________________

Dondero, J.

We concur:

________________________

Marchiano, P.J.

________________________

Banke, J.


Summaries of

In re H.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 5, 2012
A131537 (Cal. Ct. App. Jan. 5, 2012)
Case details for

In re H.S.

Case Details

Full title:In re H.S., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Jan 5, 2012

Citations

A131537 (Cal. Ct. App. Jan. 5, 2012)

Citing Cases

In re H.S.

We have already summarized the underlying facts surrounding this dependency proceeding in a prior opinion in…

In re H.S.

STATEMENT OF FACTS AND PROCEDURAL HISTORY Our recitation of the facts up to the point of the dispositional…