Opinion
A150917
07-05-2017
MONICA S. et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1600930 & J1600931)
In this consolidated writ proceeding, Monica S. (mother) and Matthew M. (father) seek extraordinary relief from the juvenile court order bypassing both parents for reunification services and setting a permanency planning hearing for the couple's young sons, Eric M. (born January 2014) and Eli M. (born March 2012). Specifically, the parents argue that the juvenile court erred by denying them reunification services pursuant to subdivision (b)(13) of section 361.5 of the Welfare and Institutions Code (subdivision (b)(13)) based on their extensive histories of substance abuse. Finding denial of reunification services to be warranted under the circumstances of this case, we deny the petitions.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated. All rule references are to the California Rules of Court.
I. BACKGROUND
Eric and Eli, the two minors who are the subjects of these proceedings, came to the attention of the Contra Costa County Children and Family Services Bureau (the "Bureau") in January 2014 after Eric tested positive for methamphetamines at birth. Mother had also tested positive for methamphetamine at a prenatal visit several weeks earlier and was living at a residence known by law enforcement to be a " 'drug house.' " Petitions were filed with respect to both boys detailing these concerns. Thereafter, the Bureau's dispositional report described mother's ongoing problem with substance abuse. Specifically, mother reported a chaotic and abusive childhood, during which her own mother abused methamphetamine. Mother began using drugs herself at seventeen, became pregnant as a teenager, and never completed high school. She admitted that she had been "living a drug lifestyle which [had] taken over her life and alienated her from family." In addition, mother had recently been arrested on suspicion of shoplifting and was found in possession of a number of stolen items (including a credit card taken in a recent theft), methamphetamine, and related paraphernalia. Disposition with respect to this criminal matter was pending when the dependency petitions were filed. Mother immediately entered a residential treatment program.
Mother's older child, Christina S. (born January 2007), was in her father's care and was not involved in these dependency proceedings. A referral to the Bureau dated June 2010 stated that mother (then 19 years old) was not a part of Christina's life due to being homeless and using methamphetamine and other drugs.
At that time, mother and father had been together for at least three years in a relationship which was characterized by substance abuse, domestic violence, and criminal activity. Father reported that he also had problems in his childhood which led to his substance abuse. Moreover, he had a significant criminal history from 2003 through 2014, with convictions involving controlled substances, robbery, weapons offenses, property crimes, and domestic violence. In fact, a domestic violence restraining order had issued in August 2013 against father and remained in effect through August 2016, listing mother and Eli as the protected persons. Although incarcerated when the minors' dependency actions were initiated, father indicated a desire to get clean and sober and was looking for a residential drug treatment program not only in connection with the dependencies but as a requirement for his current criminal proceeding as well.
Although Mother and father have not married, father was granted presumed father status with respect to both boys in January 2014. The Bureau had previously received referrals regarding the family in 2012 and 2013, indicating that the parents were homeless and using methamphetamine and noting that, while Eli did not test positive for methamphetamine at birth, mother had tested positive for methamphetamine a month prior to his birth. Significant domestic violence was also reported. Both referrals were closed after the parents could not be located.
At the February 2014 dispositional hearing in this original dependency matter, mother and father were ordered to participate in reunification services, including residential drug treatment, parenting classes, and domestic violence programs. Mother remained in her program and father also entered residential treatment. Ultimately, mother successfully completed her service objectives, and dependency was dismissed in January 2015, with sole legal and physical custody of Eric and Eli granted to mother. Mother had also regained custody of her older daughter, Christina. Father remained in treatment, which he ultimately successfully completed.
Unfortunately, in August of 2015, the Bureau received a report that three-year-old Eli had fallen out of a two-story bedroom window while in the care of a neighbor, an individual who had an open case with the Bureau involving allegations of sexual abuse. Mother was counseled not to leave the children with the neighbor in the future. Then, a year later, in January 2016, the Bureau received a referral indicating that father had climbed into a crawlspace above the family's apartment, broken a water pipe by stepping on it, and caused the apartment to flood. The apartment was in bad condition, with garbage throughout, human feces on the floor, one shower full of mildewed clothing and the other full of chairs, a disabled smoke detector, no heat, holes in the wall, no food in the refrigerator, dirty dishes, spoiled food everywhere, and no bedding on the beds. The family was observed on security footage leaving the apartment at 4:00 am. When father later returned and, after being advised that the unit had been condemned, tried to force entry, the police were called and father was taken into custody on a restraining order violation. Father was reportedly high on methamphetamine at the time and talking rapidly. Upon investigation, mother admitted to leaving the children with father despite knowledge of his drug use. She agreed to participate in voluntary services, including substance abuse counseling, resources for housing, employment, and childcare. However, the referral was closed after mother failed to maintain contact with the social worker and her whereabouts became unknown.
During this same time frame, the Bureau received a referral regarding nine-year-old Christina who had not been seen by the reporting party for a number of days. According to the report, the minor had a "horrific" school attendance record for the current school year and mother had called attempting to remove Christina from school, but was not allowed to do so unless she was enrolled elsewhere.
Mother was subsequently arrested in April 2016 for possession of controlled substance paraphernalia and in August 2016 for appropriation of lost property. Father showed two arrests in February 2016, one for possession of methamphetamine and one for possession of burglary tools, receiving known stolen property, and evading/obstructing a police officer. Father later admitted that he was using drugs at the time of these arrests.
Thereafter, on October 4, 2016, mother was arrested for driving a stolen U-Haul van and possession of numerous stolen debit and gift cards, leading to her being charged with 24 counts of grand theft. Also in the van was a "machine" which mother believed was used to add to the dollar amounts on the cards. Mother claimed that she was unaware both that the van was stolen and that the gift and debit cards found in her possession were the result of criminal activity. According to mother, the van owner had given her the cards and requested that she make purchases for him. However, mother admitted that she had relapsed on methamphetamine for the last three months—smoking daily for at least two months—and she claimed that "her addiction was to blame for her bad choices." On October 11, 2016, dependency petitions were again filed with respect to Eric and Eli pursuant to subdivisions (b) and (g) of section 300, alleging that mother had a chronic substance abuse problem and was unable to provide care for the minors. Although a maternal aunt had initially taken care of the boys after mother's arrest several days earlier, the aunt indicated that she could no longer care for them, there were no other available relatives, and father was also incarcerated at the time.
The boys were formally detained in foster care at the detention hearing on October 12, 2016. On January 4, 2017, jurisdiction was established by the juvenile court pursuant to subdivision (b) of section 300 based on mother's history of substance abuse and inability to care for Eric and Eli, despite her engagement in prior substance abuse treatment. In its initial dispositional report dated February 8, 2016, the Bureau recommended that no reunification services be offered to father due to his chronic substance abuse, but recommended services for mother, largely, it appears, because it erroneously believed that it legally had no other choice since mother had reunified with her children in the past. Indeed, the Bureau reported being "guarded" in its recommendation to offer services to mother given her lack of engagement, noting that mother refused to drug test, claimed she did not have a drug problem, and was only willing to do outpatient services. Thereafter, in a subsequent memorandum to the court, the Bureau changed its recommendation, opining that mother should also be denied reunification services based on her history of chronic substance abuse. The Bureau stressed that, although mother was released from custody in November 2016, she had resisted engaging in services to address her drug problem, despite multiple referrals to inpatient treatment. She had also failed to appear in her criminal matter on January 30, 2017, and a bench warrant was issued.
Again, no petition was filed with respect to Christina, as she was reported to be in a legal guardianship with her paternal grandmother.
An amended petition had been filed in November 2016 adding allegations involving father's substance abuse and domestic violence, but this amended petition was withdrawn during the contested jurisdictional hearing on January 4.
Moreover, during his first dependency in 2014, two-year-old Eli had presented as developmentally on target—despite inconsistent well-child care, incomplete immunizations, and some speech problems—and Eric was described as "appear[ing] to be doing well overall." However, by the second dependency proceeding, the social worker noted that, while in the care of mother, the boys had "lived an unpredictable life with being left with multiple caregivers and living environments and having to witness domestic violence between [mother] and [father]." At that point, then four-year-old Eli was noted to babble, have repetitive speech, and sit and flap his hands. Although he had been referred to Audiology in April 2016, while in mother's care, mother had never followed up with the referral. Eli was also displaying some troubling behaviors, including using foul language; flinching if someone made sudden movements while he was being disciplined; biting, kicking, and punching during tantrums; and having difficulty communicating with others, as his speech was not coherent or relevant to the topic. There was concern that Eli's behaviors might be indicative of Pervasive Developmental Disorder (PDD) and the minor had been referred to the Regional Center to begin a developmental assessment. He was additionally referred to the Clinic for Autism Spectrum Disorder and ADHD Diagnostics (CAAD). Further, although three-year-old Eric was reported to be a happy child who loved to play, he had a hard time with routine, especially at night, and would cry if left alone in a room. He was also showing a developmental delay with his speech. Given Eli's difficult behaviors, the children had to be moved to separate foster homes.
At the conclusion of the contested dispositional hearing on March 15, 2017, the juvenile court found that both parents met the criteria for bypass of reunification pursuant to subdivision (b)(13) of section 361.5 by clear and convincing evidence. Indeed, the court opined: "So the [Bureau] has more than met its burden in terms of the applicability of 361.5(b)(13). I mean, it's beyond a reasonable doubt that that particular provision applies to these two parents. [¶] And in light of the lack of quality of life these children have had with their parents and the just relentless neglect and abuse that has occurred while these children have been living with these two parents, who are still entrenched in their criminality and substance abuse, I can't possibly find that it would be in the interest of these children to offer services. In fact, to the contrary, I think it would be highly detrimental to delay a sense of permanency and finding a safe, fit home so that these two little boys can start to get their needs met in some pretty basic ways." Based on these findings, the juvenile court adopted the Bureau's recommendation that no reunification services be provided to either parent and scheduled a permanency planning hearing for July 12, 2017. Mother and father both filed timely notices of their intent to file writ petitions, and the petitions themselves were filed in April 2017. (Rules 8.450(e), 8.452.)
II. BYPASS OF REUNIFICATION SERVICES
A. Reunification Bypass Under Subdivision (b)(13)
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to "the child and the child's mother and statutorily presumed father . . . ." (§ 361.5, subd. (a).) The purpose of reunification efforts is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, in certain statutorily enumerated situations, the Legislature has determined that such reunification efforts are likely to be fruitless and, thus, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Id.; see also Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, superseded by statute on another ground as stated in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1457.)
The statutory sections authorizing denial of reunification services are sometimes referred to as "bypass" provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.) Once the juvenile court makes a finding bypassing reunification, it " 'fast-tracks' " the dependent minor to permanency planning so that a permanent out-of-home placement can be developed. (In re Rebecca H. (1991) 227 Cal.App.3d 825, 838.) In the present case, the juvenile court denied reunification services to both parents based on the same bypass provision, subdivision (b)(13) of section 361.5. Pursuant to that subdivision, reunification services need not be provided if the court finds by clear and convincing evidence that "the parent or guardian of the child 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 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."
For purposes of subdivision (b)(13), "prior court-ordered treatment" includes treatment ordered as a condition of parole or probation. (See D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 204; In re Brian M. (2000) 82 Cal.App.4th 1398, 1402-1403.) Moreover, the prior substance abuse treatment need not have occurred within the three-year period immediately prior to the filing of the dependency petition at issue. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780 (Laura B.).) Rather, what is required during the relevant three-year timeframe is some type of resistance to prior court-ordered treatment. (Ibid.)
We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Under such circumstances, we do not make credibility determinations or reweigh the evidence. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) Rather, we "review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings," keeping in mind " 'the heightened burden of proof.' " (Ibid.; In re A.E. (2014) 228 Cal.App.4th 820, 826; In re I.R. (2014) 226 Cal.App.4th 201, 211.)
In the present case, both parents—who had long histories of substance abuse—were court-ordered to attend residential drug treatment as part of Eric and Eli's first dependency action and then resumed their drug lifestyle during the three-year period immediately prior to the filing of this current dependency proceeding. Thus, by its terms, the subdivision (b)(13) bypass provision appears clearly applicable to their situation. Mother and father, however, argue here that their conduct prior to the filing of the petitions in these matters was not really " 'resistance to treatment' " for purposes of subdivision (b)(13) of section 361.5. Mother, for instance, emphasizes that she successfully completed her prior court-ordered residential treatment program and was currently engaged in treatment while in jail. Thus, "she had not resisted treatment, nor failed or refused to comply with treatment—she had embraced treatment and successfully accomplished the objectives of the treatment plan." Similarly, father highlights his completion of an 11-month residential program and his recent return to, and engagement in, residential treatment in support of his conclusion that he "had not truly resisted substance treatment. He had stumbled a bit but had not truly resisted."
However, while proof of resistance to treatment "may come in the form of dropping out of programs" during the relevant timeframe, "it may also come in the form of resumption of regular drug use after a period of sobriety." (Laura B., supra, 68 Cal.App.4th at p. 780.) Thus, successful completion of the prior treatment program is not relevant, where the evidence shows a return to substance abuse. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [failure to maintain "any kind of long-term sobriety" despite completion of rehabilitation programs considered resistance to treatment]; see also In re Brooke C. (2005) 127 Cal.App.4th 377, 382 ["[r]esistance to prior treatment for chronic use of drugs may be shown where the parent has participated in a substance abuse treatment program but continues to abuse illicit drugs"].) Where, as here, despite successful completion of prior substance abuse treatment, a parent subsequently resumes his or her previous drug lifestyle, substantial evidence supports the conclusion that the parent has resisted treatment for purposes of subdivision (b)(13).
Nevertheless, citing Laura B., supra, 68 Cal.App.4th 776, mother also argues that her conduct in this case was a mere relapse and, as such, was insufficient to establish resistance to court-ordered treatment under the bypass statute. We agree with mother that the concepts of "relapse" and "resistance to treatment" are analytically distinct. (See id. at p. 780.) Moreover, we have no quarrel with her claim that relapse is often "an expected occurrence in the process of successful recovery from substance abuse." Neither of these facts, however, helps mother in this case. Rather, as the Laura B. court elaborated: "A mother who regularly attends her program could experience a brief relapse during pregnancy but immediately resume treatment. That type of behavior would not necessarily prove resistance. But Laura did not just suffer a setback; she did not just fall off the wagon on one or two occasions. She stopped attending Narcotics Anonymous meetings and returned to consistent, habitual, semiweekly and then biweekly substance abuse. Regular use of cocaine throughout pregnancy cannot be considered a simple relapse. It is an abundantly clear demonstration of a determination to maintain a drug habit. The trial court reasonably interpreted this as resistance to treatment." (Ibid.) Similarly, here mother did not briefly relapse and then immediately seek treatment. Rather, her conduct in these matters—most notably her daily use of methamphetamine over the course of months and her resort to criminal behaviors to fund that habit—can only reasonably be understood as a "clear demonstration of a determination to maintain a drug habit" sufficient to establish resistance to treatment under the statute.
In sum, substantial evidence more than supports the application of subdivision (b)(13) to both mother and father in this case, and thus bypass of reunification services for each parent was justified. B. Reunification Efforts Under Section 361 .5 , subdivision (c)
Pursuant to section 361.5, once the juvenile court determines that a parent is described by subdivision (b)(13) of that statute, it shall not order reunification services for the parent "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) In such a situation, it is the parent's burden to prove that the minor would benefit from the provision of court-ordered services. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) As stated above, at the March 2017 dispositional hearing in this case, the juvenile court expressly found that offering reunification services to either parent would not be in Eric and Eli's best interests. We review a juvenile court's best interests determination in this context for abuse of discretion. (William B.(2008) 163 Cal.App.4th 1220, 1229 (William B.) ["[a] juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c)"].)
" 'The concept of a child's best interest "is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult." ' " (William B., supra, 163 Cal.App.4th at p. 1227.) Nevertheless, precedent supplies certain relevant considerations when making a best interests determination. For instance, "[t]o determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity." (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116; see also William B., supra, 163 Cal.App.4th at p. 1228.) Further, with respect to stability and continuity, "[s]ubdivision (b)(13) of section 361.5 'reflect[s] a legislative determination that an attempt to facilitate reunification between a parent and child generally is not in the minor's best interests when the parent is shown to be a chronic abuser of drugs who has resisted prior treatment for drug abuse.' " (William B., supra, 163 Cal.App.4th at p. 1228.) This is because "[e]xperience tells us that such a parent has a high risk of reabuse." (Ibid.) Thus, under such circumstances, "at least part of the best interest analysis must be a finding that further reunification services have a likelihood of success. In other words, there must be some 'reasonable basis to conclude' that reunification is possible before services are offered to a parent who need not be provided them." (Id. at pp. 1228-1229; see also In re Jesse W. (2007) 157 Cal.App.4th 49, 66 [noting that a court in exercising its discretion on the issue of best interests of the child has the "ability to evaluate whether the parent will utilize . . . services and whether those services would ultimately inure to the benefit of the minor"].)
Here, mother asserts that the juvenile court's refusal to provide reunification was inconsistent with the best interests of Eric and Eli because she has a strong parent-child bond with her two sons; they have lived with her the majority of their young lives; and she has engaged in nurturing visitation with the boys throughout this dependency proceeding. However, even were we to credit all of these statements—at least some of which are subject to legitimate dispute—conspicuously absent from mother's argument is any " 'reasonable basis to conclude' " that further reunification services, if granted, would have a likelihood of success. (See William B., supra, 163 Cal.App.4th at pp. 1228-1229.) Indeed, to the contrary, the length of mother's substance abuse history, the extent to which she re-engaged in her drug lifestyle not long after the completion of treatment, and her sons' particular need for stability and continuity in light of their history of neglect all belie any such claim.
As for father, he asserts that he sincerely wants to be part of his sons' lives and that he is trying to change and "is changing." Thus, he claims, it would be in the children's best interests to offer him reunification services to see if he "can accomplish his goals." While father's most recent efforts are laudable, it is precisely this wait-and-see attitude, when confronted with a parental history of entrenched substance abuse, that the dependency law rejects. As the juvenile court ably summarized—"[T]hat's why this particular bypass provision has been enacted by our legislature, because they realize that although it may take a parent or an adult a long while to get their act together in terms of substance abuse, little children don't need to go along for that ride. In fact, it's incredibly harmful for little children to be subjected to that in and out and constant disruption." We can find no fault with the juvenile court's conclusion in this case that it is time for Eric and Eli get off the roller coaster that is, regrettably, their parents' lives.
III. DISPOSITION
The consolidated petitions are denied on their merits. (§ 366.26, subd. (l)(1)(C), (4)(B).) Because the permanency planning hearing in these matters is set for July 12, 2017, this opinion is final as to this court immediately. (Rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.