Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Commissioner. Super. Ct. No. 04CEJ300207-1
Judith Sanders, for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Levy, Acting P. J., Gomes, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter L.W. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
The main issue in this case is whether there was sufficient evidence concerning petitioner’s drug use to support the juvenile court’s order denying her reunification services as to L.W. In 2002, 22-year-old petitioner gave birth to L.W. who was drug-exposed. Four months later, petitioner took L.W. to the emergency room to be evaluated for sexual molestation. At the time, petitioner was under the influence of phencyclidine (PCP) and admitted to prior use of controlled substances. L.W.’s medical examination was negative for sexual molestation, petitioner was admonished about her drug use and it was determined that petitioner was meeting L.W.’s needs. Consequently, no further action was taken.
In September 2004, petitioner was found lying face down in the street high on drugs. Two-year-old L.W. was in her stroller in a gutter. The juvenile court adjudged L.W. a dependent based on petitioner’s drug use and, in November 2004, petitioner, then pregnant, entered court-ordered residential drug treatment. In October 2004, prior to her admission for treatment, petitioner tested positive for PCP multiple times. She also tested positive for marijuana and Vicodin.
In March 2005, petitioner completed the residential phase of the drug treatment program. Approximately, two weeks later, she gave birth prematurely to twin boys, D. V. and L.V., and was hospitalized shortly thereafter for pneumonia. L.V. died within two months of his birth.
Petitioner did not complete the aftercare portion of the residential drug treatment program nor did she submit to random drug testing. Nevertheless, petitioner spot tested negative twice in July 2005 and tested negative beginning in late July through September 2005.
In August 2005, petitioner completed a second substance abuse evaluation. She admitted using hallucinogens for two years and alcohol for one year. She claimed to have been drug-free since September 2004 and did not believe she needed further drug or alcohol treatment. The assessor questioned petitioner’s truthfulness about her drug use given her positive test for PCP in October 2004 and her failure to drug test several times in July 2005. Consequently, the assessor recommended petitioner complete the aftercare phase of her residential drug treatment.
In October 2005, petitioner entered the aftercare program, which she completed in April 2006. She regularly tested negative for drugs from October 2005 through January 2006 with an occasional missed test. In February 2006, L.W. was returned to petitioner’s custody under family maintenance. Around that same time, petitioner began to miss as many drug tests as she took. In late March 2006, petitioner tested positive for opiates but then repeated her pattern of testing negative (April through May 2006) and then periodically missing tests (late May through July 2006). In August 2006, the juvenile court terminated dependency and awarded petitioner sole legal and physical custody of L.W.
In the spring and summer of 2007, police were called out to petitioner’s home several times to investigate allegations petitioner was physically abusing D.V. Although the allegations were not substantiated, the police reported that petitioner was using PCP and acting irrationally. In addition, her home was dirty and she and the children were sleeping in her car. In July 2007, petitioner left the children at the child welfare office but quickly reclaimed them. She stated the children wanted to kill themselves.
The instant dependency proceedings were initiated in August 2007, when petitioner was arrested for being in possession and under the influence of PCP. Four-year-old L.W. and two-year-old D.V. were found alone at home in an unsanitary environment. The social services department (department) took the children into protective custody and filed a dependency petition on their behalf which the juvenile court sustained. The children were placed with their maternal grandmother.
In August 2007, petitioner completed another court-ordered substance abuse assessment. She reported that she first used PCP in 2000 at the age of 20 and used it regularly thereafter with the exception of a 27-month period of abstinence which ended when she relapsed several days before her arrest. Although petitioner admitted smoking PCP several days before her arrest, she denied that the PCP found in her car was hers. The assessor found petitioner’s reported use of PCP inconsistent with the circumstances of her arrest and concluded, as had the assessor in 2005, that petitioner was not being candid about her drug use.
In light of petitioner’s history of PCP use and relapse, the department recommended the court order L.W. removed from her custody and deny petitioner reunification services under section 361.5, subdivision (b)(13). The department also recommended the court offer reunification services to D.V.’s father.
The dispositional hearing was convened in October 2007, continued and conducted as a contested hearing over several sessions in December 2007. Petitioner argued there was insufficient evidence, as required by section 361.5, subdivision (b)(13) that she had a history of extensive, abusive, and chronic use of drugs or alcohol. To that end, she offered the testimony of the caseworker who could not refute petitioner’s attorney’s statement that there were no positive tests after October 2004 until dependency was dismissed in August of 2006 and that there was no information that petitioner used PCP from September 2006 through August 2007.
Petitioner also testified and, contrary to her statement to the drug assessor, stated that she first used PCP at the age of 22 and a half or 23. She also stated that she only used PCP “off and on.” She denied using PCP or any other drug from the time L.W. was removed in 2004 until dependency was dismissed in August 2006. She denied any further drug use until late June or July 2007 when she relapsed. She stated she continued to participate in and benefit from court-ordered services. She also claimed the children loved her and were bonded to her.
Following testimony and argument, the court issued its findings and orders but not before commenting on the evidence. The court concluded that petitioner’s drug use was more extensive than that to which she testified and that her PCP use in July and August 2007 was not an isolated incident given the condition of the home when the children were removed. The court also concluded that the children’s need for stability was extreme and that continued efforts at reunification would not serve their best interest. Consequently, the court denied petitioner reunification services as to both children pursuant to section 361.5, subdivision (b)(13) and set a section 366.26 hearing to implement a permanent plan for L.W. The court did not set a hearing to implement a permanent plan for D.V. but instead ordered the department to provide reunification services for D.V. and his father.
Petitioner challenged the juvenile court’s order denying her reunification services and setting the section 366.26 hearing as to L.W. by writ petition. Petitioner challenged the juvenile court’s orders as to D.V. by filing a notice of appeal. The appeal is currently pending before this court (F054699).
DISCUSSION
Petitioner argues substantial evidence does not support the juvenile court’s order denying her reunification services under section 361.5, subdivision (b)(13) (subdivision (b)(13)), the applicable provisions of which provide: “Reunification services need not be provided to a parent [¶ ]… [¶ ] [who] has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition that brought [the child] to the court’s attention .…” Petitioner claims the evidence demonstrates that she only used PCP for four years between 2000 and 2004 and then again for a short period upon her relapse in July 2007. That relatively short duration, she argues, is in sharp contrast to the lengthy histories of drug use found to be chronic and extensive in the many cases she cites. The problem with those cases is that none of them analyzed the “extensive, abusive and chronic use” element of subdivision (b)(13).
In re Brooke C. (2005) 127 Cal.App.4th 377, 381 (Brooke C.) [15 years of drug use] ; In re Brian M. (2000) 82 Cal.App.4th 1398, 1400 (Brian M.) [15 years of drug abuse]; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 (Randi R.) [29 years of alcohol abuse and 16 years of drug abuse]; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 778 (Laura B.) [18 years of drug abuse]; Karen H. v. Superior Court (2001) 91 Cal.App.4th 501, 503 (Karen H.) [10 years of substance abuse]; In re Levi U. (2000) 78 Cal.App.4th 191, 194 (Levi U.) [10 years of substance abuse]; and Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1018 (Letitia V.) [at least 8 years of substance abuse].
Brooke C., supra, 127 Cal.App.4th at p. 383; Brian M., supra, 82 Cal.App.4th at pp. 1401-1403; Randi R., supra, 64 Cal.App.4th at p. 73; Laura B., supra, 68 Cal.App.4th at pp. 779-781; Karen H., supra, 91 Cal.App.4th at pp. 504-505; Levi U., supra, 78 Cal.App.4th at pp. 200-201 and Letitia V., supra, 81 Cal.App.4th 1009, 1016.
Further, the evidence supports a conclusion that petitioner’s PCP use was chronic and extensive beyond what she is willing to admit. Even assuming all the drug tests petitioner missed following the birth of her twins in March 2005 would have resulted in negative results, the fact remains that she tested positive for opiates in March 2006. Additionally, the police were reporting petitioner’s PCP use in the spring and summer of 2007 and petitioner’s bizarre behavior supports that claim. She was acting irrationally, her house was dirty and she and the children were sleeping in the car. It was during this same timeframe that petitioner dropped the children off at the child welfare office claiming they wanted to kill themselves. One could reasonably infer from this evidence that petitioner had returned to using PCP, her drug of choice, and that her world was spinning out of control with her children in tow. In that petitioner’s PCP use, albeit stemmed by periods of sobriety, spanned from at least 2000 through the removal of the children in August 2007, it is both chronic and extensive.
Further, we reject petitioner’s claim that her relapse was isolated and that it does not constitute resistance under the statute. To that end, for the reasons already stated, we concur with the juvenile court that petitioner and the children’s circumstances in August 2007 reflected more than just a brief relapse. In addition, it is well settled that resistance to treatment may occur, as did here, through resumption of regular drug use after a period of sobriety. (Laura B., supra, 68 Cal.App.4that p. 780.)
Finally, we find no abuse of discretion in the juvenile court’s determination that reunification would not be in the children’s best interest. (§ 361.5, subd. (c).) Petitioner’s many opportunities to attain sobriety and the children’s extreme need for stability strongly support the juvenile court’s decision not to attempt reunification. We find no error on this record.
Notwithstanding an affirmative finding under subdivision (b)(13), the juvenile court may exercise its discretion and order reunification services under section 361.5, subdivision (c) if it determines reunification services would serve the child's best interest.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.