Opinion
A165578
06-02-2023
In re B.J., a Person Coming Under the Juvenile Court Law. v. N.C., Defendant and Appellant. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 6551DEP
BROWN, P. J.
N.C. (mother) appeals from the juvenile court's disposition order denying her reunification services with her daughter, B.J. (minor). Mother's appeal is moot, but we will exercise our discretion to decide it on the merits. We find no error in the juvenile court's decision to bypass reunification services based on Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (b)(11) (section 361.5(b)(10) and (11)) and will therefore affirm.
Subsequent statutory citations are to the Welfare and Institutions Code.
The parties are familiar with the factual and procedural history of the case, and this opinion does not warrant publication, so we need not recite the history here. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
I. Mootness
While this appeal was pending, the juvenile court granted mother's section 388 petition to change its disposition order by ordering reunification services and authorizing a trial home visit. The juvenile court subsequently terminated mother's reunification services at a 12-month review hearing. Because the juvenile court ordered reunification services for mother and then terminated them, it is impossible for this court to grant her any effective relief via a reversal of the bypass order. (In re D.P. (2023) 14 Cal.5th 266, 276 [case is moot if court cannot grant effective relief].) Mother's appeal is therefore moot.
However, our Supreme Court has pointed out that principles of fairness favor discretionary review of the merits of a dependency appeal that becomes moot due to a parent's laudable behavior. (In re D.P., supra, 14 Cal.5th at p. 286.) This principle applies here, since mother's laudable progress in drug treatment persuaded the juvenile court to change its order, thereby rendering this appeal moot. We will therefore exercise our discretion to examine the merits of mother's challenge to the juvenile court's bypass order.
II. Merits
Section 361.5(b)(10) and (11) allow a juvenile court to deny reunification services to a parent who previously failed to reunify with another child or whose parental rights to another child were terminated, so long as the parent was not a minor, dependent, or ward of the court at the time, if the court finds by clear and convincing evidence that the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling." (§ 361.5, subds. (b), (b)(10)(A) &(11)(A).) We review findings and orders applying bypass provisions such as these for substantial evidence, meaning we consider "whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011; Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121-1122.)
A. Reasonable efforts finding
Mother argues first that the juvenile court did not make a finding about whether she made a reasonable effort to treat the problems that led to the half-siblings' removal, and then contends, apparently in the alternative, that the juvenile court did not make the necessary finding by clear and convincing evidence. We disagree with both contentions.
The juvenile court's written findings and orders following the dispositional hearing are on pre-printed Judicial Council forms. Based on the boxes the juvenile court checked, its bypass findings state, "As provided in Welfare and Institutions Code section 361.5(b), by clear and convincing evidence . . . mother . . . is a person described [in] Welfare and Institutions Code section . . . 361.5(b)(10) [and] 361.5(b)(11) . . . and reunification services are . . . denied." This explicitly states mother met the criteria in section 361.5(b)(10) and (11) by clear and convincing evidence, and one of the criteria in the statute is that mother failed to make reasonable efforts to treat the problems that previously led to the removal of the minor's half-sibling. Given the presumption that a trial court properly followed established law, this written finding is sufficient. (Cf. In re Sade C. (1996) 13 Cal.4th 952, 994 ["An appealed-from judgment or order is presumed correct"]; In re Henry V. (2004) 119 Cal.App.4th 522, 530 [reversing finding where court did not check box indicating finding was by clear and convincing evidence and correct standard was not mentioned in social worker reports or at hearing].) Mother's arguments therefore fail.
To the extent the written findings and order suggest any uncertainty as to whether the juvenile court considered whether mother failed to make reasonable efforts to treat the problems from her prior dependency cases, the juvenile court's oral remarks at the hearing dispel it. The juvenile court noted that mother had not gotten off drugs and was still substantially addicted. The court also noted that the minor tested positive for marijuana, methamphetamine, opioids, and benzodiazepine and had withdrawal symptoms. The court remarked that this evidence showed that mother had not reined in her problem in any fashion and, in fact, her problem had gotten worse. The juvenile court found it unfortunate that mother's history had repeated itself because she had not made a concerted effort to get clean and sober. Finally, the juvenile court referred to the standard of proof when it concluded that, after considering the statute, "clearly" the bypass provision had been established. Given these remarks, we have no doubt that the juvenile court considered mother's efforts to treat her substance abuse and found those efforts were not reasonable under the correct standard of proof.
We address mother's argument regarding the benzodiazepine and opioids in section II.B, post.
B. Evidentiary Support for Reasonable Efforts Finding
Mother next argues the department did not supply substantial evidence to support the juvenile court's finding that her efforts were not reasonable by clear and convincing evidence. Her argument in this regard consists primarily of a recitation of her efforts after the minor's birth to treat her addictions, including four months of negative drug tests, and remarks favorable to her from the department's reports that were written when the department recommended granting reunification services. It is to mother's credit that she began making efforts to treat her addiction during this dependency case, efforts that she has continued after the disposition hearing and which evidently persuaded the juvenile court to change its bypass order and grant mother an unspecified amount of reunification services. But that does not mean the juvenile court lacked substantial evidence at the time of the disposition hearing to conclude mother's efforts had not been reasonable at that time.
We need not recite all the relevant history here, but the record contains ample evidence to support the juvenile court's finding. First and most obviously, at birth the minor tested positive for marijuana, methamphetamine, opioids, and benzodiazepine and exhibited withdrawal symptoms. Mother seeks to undermine the value of this evidence by arguing that medical records show she was given an opioid and a benzodiazepine during labor and delivery of the minor, explaining the positive test results for those drugs. She contends the juvenile court therefore erred in finding that her drug problem had gotten worse after the earlier dependencies, which involved only marijuana and methamphetamine.
One of the medical records mother cites was withdrawn and not admitted into evidence at the hearing, as she acknowledges. Mother may nonetheless be correct that the minor's positive test result for opiates and benzodiazepine does not demonstrate mother's substance use, since the minor's medical records suggest those two types of drugs were given to her or to the minor. Even so, this contention does not justify reversal. In addition to commenting that mother's substance abuse problem had worsened, the juvenile court remarked on the fact that mother had not "in any fashion" reined in her problem.
Mother's admitted continued use of methamphetamine and marijuana provide substantial evidentiary support for the juvenile court's finding that mother did not make reasonable efforts to get clean. The minor's symptoms of withdrawal from one or both of those drugs at birth demonstrates particularly that mother's continued use of methamphetamine and marijuana was significant and harmful to the minor.
Mother notes that the reasonableness of her efforts is not judged solely based on the level of success or progress she achieved. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 915.) This is true, but it underscores why the juvenile court's error in finding that mother's drug problem had worsened does not require reversal of the bypass order. The juvenile court's remarks concerning the "duration, extent and context" (id. at p. 914) of mother's efforts demonstrate it would have reached its finding even if mother's drug problem had merely remained the same. In response to questions from the juvenile court, mother admitted that she did nothing at all to address her drug issues during her pregnancy or the two years preceding the minor's birth. The juvenile court highlighted this evidence at the end of the hearing, noting that mother was addicted when she became pregnant and failed to realize that she needed to get clean. The court also noted that mother's history had repeated itself because she had failed to make a concerted effort to get clean and sober to avoid subjecting the minor to drug issues at birth.
After her last dependency case, mother had been convicted of or had probation violations involving numerous offenses apparently stemming from her substance addictions, including grand theft, domestic violence, vandalism, driving without a license, and numerous offenses of possession of controlled substances or unlawful paraphernalia. She was on mandatory supervision during this case after being sentenced for bringing drugs into the jail. Mother did try several times to engage in treatment as part of the disposition of her criminal cases and completed some of the programs. But mother herself said that most of the time she was in those programs to get out of jail, not to actually get clean and sober. Mother's use of methamphetamine and marijuana during her pregnancy, including one use mere days before the minor's birth, is consistent with her lack of seriousness while participating in those programs.
Mother claimed the treatment she had agreed to enter after the minor's detention was a genuine effort to turn her life around, motivated only in part by the need to stay clean and sober for the minor. But mother had started violating the program's rules against smoking on the campus, and she abruptly left the inpatient program for an outpatient program without consulting with the social worker and against the in-patient program's recommendations. Mother was living with R.J., the minor's father, and intended to raise the minor with him. Mother acknowledged that to maintain her sobriety she needed to avoid contact with friends or family who were using drugs. Yet father had tested positive for methamphetamine once and missed numerous other drug tests, all while denying using. Mother's failure to adhere to practices she acknowledged were important to her sobriety undermines her contention that she was making reasonable efforts to treat her addiction.
This evidence, in particular mother's admission in response to the court's questions that she had done nothing to try to get treatment during the two years preceding the minor's birth, provides ample support for the juvenile court's finding that mother's efforts to treat her substance problem were not reasonable. Contrary to mother's assertion, the juvenile court did not focus only on the period of mother's pregnancy, as demonstrated by its questions to mother and remarks at the end of the hearing about mother's efforts during the years preceding her pregnancy. Mother's history of goal-oriented and insincere participation in treatment as part of the disposition of her criminal cases also explains why the juvenile court did not place much weight on mother's four months of sobriety during the dependency.
C. Minor's Best Interests
In a final argument, mother asserts the juvenile court had no reason to find under section 361.5, subdivision (c)(2) that reunification with mother was not in the minor's best interests because it did not make the predicate finding that mother should be bypassed for services. Because we affirm the juvenile court's bypass finding, we reject this argument.
In sum, while we applaud mother's recent efforts to address her issues with substance abuse, we find no error in the court's decision to bypass her for reunification services under section 361.5(b)(10) and (11).
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: GOLDMAN, J. FINEMAN, J.[*]
[*]Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.