Gina A. v. Super.
Filed 5/10/13 Gina A. v. Super. Ct. CA1/2
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re DAVID
V., a Person Coming Under the Juvenile Court Law.
GINA A.
et al.,
Petitioners,
v.
THE SUPERIOR
COURT OF CONTRA
COSTA COUNTY,
Respondent;
CONTRA
COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU, et al.
Real Parties in Interest.
A137820
(Contra
Costa County
Super. Ct.
No. J11-01065)
David
V. became the subject of concern when it was reported that he was born with
methamphetamine in his system in July 2011.
Gina A. (Mother) also tested positive for methamphetamine at David’s
birth. David was detained in foster care
while Mother began making efforts to get sober, including
Mother relapsed with alcohol in June 2012.
Because of her relapse, her lack of insight into her addiction, and her
history of treatment and relapse, on January
30, 2013, a hearing under Welfare and Institutions Code
section 366.26
title="">[1] was scheduled for May 22, 2013.
Both
parents filed petitions for an extraordinary
writ under California Rules of Court, rule 8.452.
to order removal of David from her care because it had not been shown that returning
him to her would pose a substantial danger to his physical or emotional
wellbeing and that no reasonable alternative to removal existed. She further argues that the court erred in
ordering bypass of reunification services because there was no substantial
evidence that she had failed to make reasonable efforts to alleviate or
eliminate the conditions that led to termination of reunification services in
the dependency case of her older son, Michael A. Finally, she argues the court erred in
failing to order reunification services under section 361.5, subdivision (c),
because provision of reunification
services would have been in David’s best interests.
Father,
who was incarcerated at the time of the January 30 hearing, argues that his
rights under Penal Code section 2625 were violated when the hearing was
conducted without his presence due to the county’s failure to transport him to
court. He further contends the court
erred in setting a hearing under section 366.26 without first providing him
with visitation or reunification services.
We
find the parents’ petitions provide no grounds for writ relief and deny both
petitions.
In
addition to the exposure to drugs before birth, David was born a month
prematurely and suffered from respiratory distress syndrome. As a result he was initially monitored and
treated in the neonatal intensive care unit, where Mother visited him
regularly. A petition was filed by the
Contra Costa County Children and Family Services Bureau (Bureau) on July 22,
2011, alleging David had suffered or was at substantial risk of suffering
serious physical harm or
illness as a result of Mother’s inability to provide him with proper care
due to her substance abuse, and further alleging David’s half sibling had
been abused or neglected, and there was a substantial risk that David, too,
would be abused or neglected.
(§ 300, subds. (b) & (j).)
The petition specifically alleged Mother had a “chronic and seriousâ€
substance abuse problem “that spans over a 20 year history†and a history of
drug-related arrests and convictions.
further alleged David’s half sibling, Michael, had been born with
methamphetamine in his system in March 2000, had been removed from Mother’s
care, reunification services had been terminated, and Michael was then under
the guardianship of his maternal grandmother.
Mother
initially told the social worker she had been clean of drugs for “years†and
had a one-time slip at a party shortly before giving birth to David. In an interview on July 12, 2011, however,
Mother and Father “both acknowledged that they have a long history of abusing
drugs, incarceration, and arrest history.â€
They both said they were “too old for all the partying they still
involve themselves in and that they are ready to make life changes
. . . .†Father was
nevertheless arrested and jailed a few days later on charges of receiving
stolen property and burglary.
On
August 3, the Bureau recommended that David be allowed to go home with Mother,
with court ordered services. The court
disagreed and ordered David detained, with supervised visitation ordered for
both Mother and Father. The Bureau was given discretion to release
David to Mother after she had achieved 60 days clean, sober, and incident-free
in a residential treatment program.
Mother entered a 90-day residential program at the Rectory on August 4,
2011. David was released from the
hospital into foster care on August 23, 2011.
On
September 2, 2011, Mother pleaded no contest to an amended allegation under
section 300, subdivision (b), namely that David was “at risk of suffering
serious physical harm in that the mother has a serious substance abuse problem
that inhibits her ability to care for the child.†The allegation under subdivision (j) was
dismissed.
In
the disposition report, Mother’s criminal background was spelled out more
fully, including drug-related arrests and convictions spanning the period 1987
through 2011: possession of drug paraphernalia, vandalism, theft, burglary,
possession of controlled substances, forgery, carrying concealed weapons,
carrying a loaded firearm, battery, willful cruelty to a child, auto theft,
DUI, and parole violations. These
included an arrest for controlled substance possession on January 13, 2011
(i.e., while she was pregnant with David).
At
the disposition hearing on October 5, 2011, with Father present,
vacated and David was returned to Mother’s care while she remained in the
Rectory treatment facility. Family
maintenance services were ordered for Mother, so long as she refrained from
drug and alcohol use, completed an inpatient and outpatient drug treatment
program, attended 12-step meetings, randomly tested negative for drugs,
participated in parenting classes, and lived with David’s maternal grandmother
after completing her inpatient drug treatment program.
Father
was also declared David’s presumed father on October 5, 2011. Visitation with Father was found to be
detrimental to David due to his prematurity and compromised health, and no
visitation was ordered.
On
March 21, 2012, at a six-month review under section 364, Mother and David were
living with David’s maternal grandmother, and Mother was reported to have
successfully completed the residential portion of the drug treatment
program. Mother, however, was not in an
outpatient program, although she was attending AA and NA meetings. Family maintenance services were continued
for Mother, with a 12-month review hearing set for September 12, 2012. Even as of March, the social worker expressed
concern that Mother was not fully committed to recovery, and the court made
clear that in the event of a future relapse, the Bureau was encouraged to file
a supplemental petition.
On
July 19, 2012, the Bureau filed a supplemental petition (§ 387) alleging that
on or about June 14, 2012, Mother tested positive for alcohol. There had also been nine tests beginning in
April 2012 that were compromised because creatinine levels were too low to
provide reliable results, which could suggest Mother had intentionally diluted
the tests. Mother denied drinking
alcohol and said the positive test must have been the result of putting vanilla
extract in her coffee. She also claimed
to be ignorant that it was possible to dilute a drug test so as to make its
results invalid.
David
was again ordered detained on July 20, 2012.
The report prepared for that hearing indicated that the maternal grandmother
was willing and able to serve as a placement for David. However, not all residents of the
grandmother’s home had completed the paperwork necessary to have the home
approved. The social worker was somewhat
skeptical of placing David with the grandmother because on one home visit there
was a drunken relative (Mother’s brother) minding the children. David therefore was detained in two different
foster care homes from July 20, 2012, through the hearing on January 30, 2013.
On
August 31, 2012, Mother pleaded no contest to the supplemental petition, and
the court sustained it. Mother presented
documentary evidence showing she had
frequently attended 12-step meetings.
She had enrolled in an outpatient drug program on April 12, 2012 and
transitioned into a residential treatment program on August 27, 2012.
The
court set October 5, 2012, for a contested dispositional hearing, which was
continued to December 10, 2012. Although an order was issued to have Father transported
for the December 10 hearing, he was not transported because he was awaiting
sentencing, and Santa Rita Jail would not release him. The hearing was therefore continued to
January 16, 2013. On December 19, 2012,
it was again continued to January 30, 2013, because Father was scheduled to be
sentenced on January 17. County counsel
announced she would seek to go forward with the hearing on January 30, even if
Father were not present. An order was
issued to secure his transportation from jail for the January 30 hearing.
On
January 30, 2013, when Father again was not transported to the hearing,
Father’s counsel requested another continuance.
County counsel objected to a further continuance, arguing that because
the matter being adjudicated was a supplemental petition under section 387,
Father did not have an absolute right to be present. The court denied a continuance, and the
hearing went forward.
Mother
testified she entered the Rectory residential substance abuse recovery program
in August 2011 and completed the program in December 2011, which included a
voluntary one-month extension beyond the usual 90-day program. At three months of age, David was placed in
her care while she was in the residential program. She claimed she had clean test results from
December 2011 to April 2012, when she entered an aftercare program at Ujima
West in Richmond. Her social worker
testified, however, that she did not complete intake for drug testing until
March 13, 2012.
Mother
admitted relapsing with alcohol for the entire month of June 2012, while
David was in her care. She
testified that her relapse consisted of drinking wine occasionally―one to
“a couple†of glasses about once a week.
She did not use any illegal drugs during her relapse. She admitted she had previously lied in
explaining the positive test was due to adding vanilla extract to her
coffee. She had not admitted the vanilla
extract story was a lie until she appeared in court. She could not explain her relapse except to
say that she had become “complacent†and was probably just substituting one
substance for another. She testified that she was never “falling down drunk†as
a result of her relapse and was never unable to care for David during that
time. She stopped drinking when she
learned that David was again being detained.
Mother
denied deliberately diluting the invalid test results that were produced from
April to June 2012. She claimed she did not know about the
possibility of diluting test results until she was confronted with the invalid
test results in July 2012.
Mother
admitted she had been a substance abuser for “at least 16 years†, and
ultimately admitted she had used marijuana since age 12, alcohol since age 16,
and methamphetamines since she was 18.
She claimed, however, that her use of illegal substances had not been continuous
over the years.
In
late August 2012, after David was detained on the supplemental petition, Mother
transitioned from the Ujima West outpatient program to a residential program;
she was still in the residential program at the time of the January 30
hearing. She had participated
satisfactorily and was reported to be a “role model to other residents.†Mother also had undergone nine random drug
tests between August 30, 2012 and November 19, 2012, with negative
results. She anticipated graduating from
the program on February 24, 2013, but she planned to stay on longer. She testified and submitted documents
showing she had attended 12‑step meetings (NA and AA) regularly , and she
submitted a letter of support from the therapist at the residential drug
program. She also had secured
transitional housing in anticipation of graduating from the program. The housing program provided drug treatment
support and meetings, as well as parenting education classes.
Mother
acknowledged her previous involvement with the Bureau in relation to Michael’s
case. She admitted being an addict at
that time and losing custody of Michael, but she claimed this time it was
different because she had greater willingness to work on recovery and truly
wanted to begin living a different way of life.
The
court asked her which of the 12 steps she was currently working on, and she
replied that she was still on step one. She said it had taken her “a while†to
admit she was powerless over her addiction.
She also told the court that relapse is a part of recovery.
Mother
testified she had never missed any visits with David and they interacted well
together. David recognized her as Mommy
and became sad when their visits drew to an end. In fact, by all accounts,
Mother’s relationship with David was a good one and she interacted with him
appropriately. The social worker herself
observed that Mother was “loving and appropriate in play and conversation with
the child.â€
Father
wrote a letter to the court dated November 12, 2012, in which he expressed the
wish, after he completed his sentence, to have his family reunited.
Called
by Mother’s counsel, the social worker, Sonja Ritter, then testified,
expressing concern that Mother still did not have insight into her “triggersâ€
to drink or do drugs. Ritter felt that
Mother was simply “going through the motions†in recovery and found success in
drug treatment only while she was in a structured environment. She testified that Mother had not been able
to admit she has a substance abuse problem.
Ritter had never before the hearing heard Mother admit she had a drug
problem prior to her testifying in court.
Ritter admitted that the inconclusive drug tests performed in April to
June of 2012 had not been brought to Mother’s attention as they occurred.
At
the close of evidence, counsel for the Bureau argued against reunification
services for Mother because she had failed to make reasonable efforts to remedy
her substance abuse issues. County
counsel argued further that David was very young and needed permanency. Counsel urged the court to set a section
366.26 hearing.
Mother’s
counsel argued that David should not be removed because her relapse with
alcohol did not show David was at risk in her care. Counsel further argued she should be granted
reunification services because she had made reasonable efforts to address her
substance abuse issues. She argued
denial of reunification services on the basis of the brief period relapse with
alcohol was inappropriate in the absence of a showing that it adversely
affected her parenting ability. She also
argued that Mother had substantially complied with her case plan, and a parent
in her circumstances was not required to be an ideal parent.
Father’s
counsel supported Mother’s position on behalf of his client. Father’s attorney represented to the court
that it was Father’s wish for Mother to get into “real recoveryâ€â€•and
Father’s counsel suggested she had done so―and for her to receive custody
of David.
David’s
counsel called this a “borderline†case, praised Mother for her recent efforts
at sobriety, and stated she did not oppose reunification services for Mother
due to “the child’s bond with his mother.â€
The
court agreed this was a “fairly close case†in light of Mother’s most recent
recovery efforts. The court clarified,
however, that under section 361.5, subdivision (b)(10), it could consider
all of Mother’s efforts from the removal of Michael to the present time in
assessing her “reasonable efforts†to address her drug problem. The court noted that Mother’s recent efforts
at recovery had to be taken with a “pinch of salt†because parents in
dependency proceedings comply with their programs “pretty much at the point of
a gun†and simply “go through the motions for the most part.†The court noted its job was to “discern which
are the genuine cases and which are not.â€
The
court relied in part on Mother’s failure to admit she lied about her relapse up
until the hearing. Based on the lie
about the vanilla extract, the court found Mother’s explanation for the diluted
tests was also false, implicitly finding she intentionally avoided giving
legitimate tests during that time. And
while some people in recovery “never get past the first step,†the court warned
that time was “not a luxury that [David] has while his mother gets her life
together.†The court found that
returning David to Mother’s care would create a substantial danger to David’s
physical health (§ 361, subd. (c)(1)) and further found that Father was
incarcerated and had left David without provision (§ 361, subd. (c)(5)). It ordered family maintenance services to
Mother terminated, ordered reunification services to Mother bypassed under
section 361.5, subdivision (b)(10), and set the matter for a hearing under
section 366.26 on May 22, 2013.
Father’s
status was changed from presumed father to alleged natural father. The court found that providing reunification
services to Father would not benefit David and would be detrimental to him. The court ordered supervised visits for both
Mother and Father (after his release from custody).
Both
parents filed timely notices of intent to file a petition for extraordinary
writ pursuant to rule 8.450, followed by such petitions under rule 8.452.
of evidence of danger to David’s wellbeing
Substantial evidence of danger to David’s wellbeing
Before
ordering David removed from Mother’s custody, the trial court was required to
find, and found, by clear and convincing
evidence that there would be a substantial danger to David’s physical or
emotional wellbeing by not removing him and there were no other reasonable
means by which his physical health could be protected. (§ 361, subd. (c)(1);
522, 525, 528-529.) But, as Mother
concedes, the standard of review is whether there was substantial evidence to
support the court’s findings and orders.
(Kimberly
R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.)
we assess the presence or absence of substantial evidence with the clear and
convincing standard in mind. (
Alvin R. (2003) 108 Cal.App.4th 962, 971; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
There
was substantial evidence to support
the court’s finding. Mother had a long
history of drug abuse and had previously exhibited a pattern of entering
treatment, doing well while in a structured environment, and then relapsing
after she returned to living outside the treatment environment. She lost custody of Michael as a result of
that pattern. She continued to exhibit
the same pattern with David, having consumed methamphetamines during pregnancy.
Indeed,
in Michael’s dependency we see a familiar pattern. As with David, the Bureau had been involved
with Michael since his birth, when he tested positive for amphetamines.
received family maintenance services and the case was closed in October
2000. In May 2001, however, the Bureau
received information that Michael had ingested methamphetamines. Michael was removed from Mother’s care on May
19, 2001 (at age 14 months). He was
placed in foster care but returned to Mother on June 7, 2001. After Mother was arrested on June 26, 2001
again placed in foster care, with reunification services provided beginning
August 1, 2001. In May 2002, Michael was again placed with Mother, with family
maintenance services, but after she continued to relapse, he was again removed
from her care in April 2003 via section 387 petition. Reunification services were denied on August
6, 2003. In April 2007 Michael was
placed under the guardianship of his maternal grandmother.
In
December 2011, after David was detained, Mother did successfully complete
residential treatment, but once she left the program she delayed until March
13, 2012 to sign up for drug testing and until April 12 to sign up for an
outpatient program. She then produced a
series of invalid test results and finally tested positive for alcohol. She first denied she had consumed alcohol,
lying about how the positive test had come about.
She
then again entered residential treatment in August 2012 (after David was again
detained) and was doing well, but she continued to lie about her alcohol
relapse. Even at the hearing she seemed
to minimize her alcohol consumption during relapse. And although she attended 12-step meetings
regularly, she was still on the first step, which involves admitting one’s own
addiction. Thus, relapse was a distinct possibility for Mother.
We
are aware that a parent need not be perfect to regain custody of a detained
child. (David B. v. Superior Court (2004) 123 Cal.App.4th 768,
789-790.) But in the context of a
persistent, long-term addiction, relapse―especially without prompt
acknowledgment―is a significant factor supporting the juvenile court’s
rulings.
Mother
claims, however, that finding her likely to relapse would not be enough to find
David would be in danger in her care.
She argues there must be a proven link between the potential for relapse
and the danger posed to the child. But
in cases involving children of tender years, a finding of substance abuse is
prima facie evidence of the parent’s inability to provide regular care,
resulting in a substantial risk of physical harm. (In re
Drake M. (2012) 211 Cal.App.4th 754, 766-767.)
Because
her addiction previously led to numerous arrests and convictions, it is fair to
say Mother’s judgment is impaired when she uses drugs. Her drug problem is serious enough that
Michael was placed in a guardianship.
Indeed, the record shows that Michael had to be taken to the hospital at
14 months of age because he ingested methamphetamines. These facts tend to show that Mother’s active
drug use does affect her parenting skills, including that she was unable to
protect Michael from the accidental ingestion of a dangerous illegal substance.
And
despite her experiences with Michael, Mother took methamphetamines while she
was pregnant with David, which further supports an inference that her judgment
was impaired and that she was incapable of placing her child’s safety ahead of
her own addictive needs. Given the history of Mother’s drug-related neglect of
Michael, there was substantial evidence to support a finding that David’s well
being would be in danger if he were left in her care.
Cal.App.4th 1322 does not convince us the juvenile court erred. In that case the court held occasional use of
alcohol and marijuana during reunification does not necessarily bar a child’s
returning home where there is no evidence to connect the use of such substances
with the reasons for the child’s removal.
The children, ages seven and a half and three at the time of the
hearing, were taken from their mother’s custody because she left them alone in
a motel room while she went to work. (
lapse in judgment and substantially complied with the provisions of her case
plan. (Id. at pp. 1326, 1330.)
The relationship between the mother and the two children was warm and
parental. (Id. at p. 1327.) The mother’s only failing was that she
tested positive for alcohol in one random test, and twice tested positive for
marijuana. (Ibid.) It had never been
alleged or substantiated that the mother had a drug abuse problem: she was
never subjected to “clinical evaluation and was never diagnosed as having a
substance abuse problem.†(
The Court of Appeal found significant the lack of evidence that
substance or alcohol abuse was related to leaving the children at the motel. (
The court held the trial court’s finding was not supported by
substantial evidence. (Id. at
p. 1326.)
Our
case is dramatically different in that Mother had an extensive drug abuse
problem from early adolescence onward.
She first experimented with marijuana at age 12, was “an alcoholic†by
age 16, and began using methamphetamine at age 18. She was 43 years old at the time of the
hearing, meaning that her problem with drugs and alcohol had extended over a
period of approximately 30 years. A
positive alcohol test, with the attendant circumstances of lying and
minimizing, was a sufficient basis for concluding that the risk of harm to
David remained. The multiple invalid
tests submitted before the positive one added weight to the evidence supporting
the court’s findings and orders.
The
fact that David was involved with the Bureau as a newborn also distinguishes
our case from Jennifer A. and others
involving older children with well-established bonds to their parents. Not only is such a young child particularly
dependent upon a parent and especially vulnerable to lapses in parental care,
but the dependency system is designed to take such age differences into account,
for instance, in designating different periods of reunification depending on
the child’s age at detention. (§ 361.5,
subd. (a)(1)(A) & (a)(1)(B).) A
child so young, who has not yet developed a deep bond with his or her parent,
is more likely to be well-served by turning attention more quickly to
permanence as the goal.
Mother
also relies upon In re David M.
(2005) 134 Cal.App.4th 822, which is also a far different case involving the
dependency of two children, David M. and a younger brother A.M. True, there are some similarities between our
case and David M. in that the mother
in David M. tested positive at A.M.’s
birth for marijuana use within the past three weeks. (Id.
at pp. 825, 827.) However, there were
other factors that led the court in David
M. to conclude that jurisdiction had improperly been asserted over the
children. Foremost, mother and father
were raising an older child together (David M.) and provided him with a “clean,
tidy home,†and he was “healthy, well cared for, and loved.†(Id.
at p. 830.) An older half sibling
had been removed from the mother’s care but primarily due to her incarceration
at the time of his birth, with no ability to provide for him, and because of
mental health issues: she was “delusional, and . . . impaired due to
her long history of marijuana use.†(
M.’s and A.M.’s case, the record established only that the mother had a
marijuana problem in a “limited respect.â€
(Id. at p. 830.)
The
Court of Appeal was clearly disturbed that an updated investigation had not
been conducted after A.M. was born, which was some four years after the older
half sibling had been removed. (
825, 830-831.) Instead, the agency relied
on the investigation conducted for the older half sibling. (Id.
at p. 831.) In the meantime mother and
father, who met in a sober living home after the older half sibling had
been taken from mother, had by all appearances successfully parented David M.,
with a family support system that included attentive godparents, appropriate
medical care, and “ ‘a clean home and a supportive family.’ †(Id.
at pp. 826‑827.) Moreover,
the father in David M., while
apparently unable to work due to an anxiety disorder and depression, had not
been shown to be involved with any drugs and had not been shown to be impaired
by his mental health in caring for David.
(Id. at p. 827.)
The
Court of Appeal was also concerned about the social services agency’s rush to
judgment against the mother based on the earlier half sibling’s
dependency. According to the opinion,
the agency relied solely on the years-old investigation in recommending a
bypass of reunification services and asking that a hearing be set under section
366.26. (David M.,
mother was a lost cause, and simply gave up on her.†(Ibid.)
Our
case is different in that Mother had not successfully parented a sibling
between Michael’s dependency and David’s birth.
Indeed, she seemed to have learned nothing from the prior dependency,
testing positive once again for methamphetamines when David was born. We note the drug in question is a very
destructive one,
title="">[4] more serious than the
marijuana involved in David M., which
is the only drug mentioned in the opinion.
And the presence of the father in the home in David M. appears to be a distinguishing factor that was not present
in the case before us because of Father’s incarceration.
Finally,
in David M. the proof relating to the
prior dependency of the half sibling was limited to the sustained
jurisdictional petition; the agency “did not offer in evidence any other
portion of [the older half sibling’s] case file,†nor did it request
judicial notice of the rest of the case file.
(David M.,
“[w]hat services were offered, and what were the circumstances of mother’s
apparent failure to fulfill her case plan and reunify†with her older child. (
In the present case, the record of Michael’s dependency was put before
the court, including records of family maintenance efforts and the reasons for
Mother’s failure in the first dependency.
The record also shows that family maintenance services were offered to
Mother in the present case, but she was unable to remain sober when out of
residential treatment.
The
juvenile court could properly conclude that Mother had a serious drug abuse
problem that she had failed to come to grips with after many years. The fact that Mother was still on step one in
her 12-step work suggests she had not made significant progress in recovery
despite recent attempts. The court
specifically found Mother was just “going through the motions†of recovery
because she was in her programs, in effect, “at the point of a gun.†The finding of danger to David was supported
by substantial evidence.
Substantial evidence of lack of alternatives to removal
Mother
also contends there was no substantial evidence to support the court’s finding
that no alternative to removal existed.
Mother suggests long-term
residence in a structured environment providing drug treatment would have been
a reasonable alternative to removal.
As
we understand Mother’s testimony, she had arranged for transitional housing at
Shelter Inc., which would have been such a supportive environment. Mother testified that a case manager at
Shelter Inc. would have been assigned to continue helping her with the
transition for up to two years.
The
court could reasonably view that arrangement as an unsatisfactory
solution. It was not clear from Mother’s
testimony how long she and David could actually remain housed at Shelter Inc.
Mother had demonstrated by past example that once she was released from
residential treatment she tended to resist outpatient support and ultimately to
relapse. A parent cannot expect to
reside in a drug treatment environment for the rest of her child-rearing life. The court’s finding on lack of reasonable
alternatives was supported by substantial evidence.
of evidence of Mother’s failure to make reasonable efforts to alleviate risk
under section 361.5, subdivision (b)(10)
Mother
also argues the court erred in ordering a bypass of reunification services
because there was insufficient evidence that she failed to make “reasonable
efforts†to alleviate the conditions that led to the removal of Michael from
her care. The juvenile court found by
clear and convincing evidence that the exemption of reunification services found in section
361.5, subdivision (b)(10) applied and therefore denied reunification services
to Mother. That section provides in
substance that, if a parent has had another sibling or half sibling of the
child removed from his or her care, and if he or she failed to reunify with the
sibling so that reunification services were terminated, then the court may
bypass reunification services for the child before it if the 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 or guardian.â€
The
statute is less than artfully worded. (See fn. 5, ante.) But the courts have
concluded that a two-prong analysis is called for: (1) were reunification
services terminated as to a sibling? and (2) has the parent subsequently failed
to make reasonable efforts to treat the problems that led to the removal of the
sibling? (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (
four-part analysis].) We review the
juvenile court’s order for substantial evidence. (Cheryl
P., supra, 139 Cal.App.4th at p.
96.)
Mother
concedes that Michael was previously removed from her care and reunification
services were terminated. The same
problem that led to the dependency of Michael (i.e., Mother’s substance abuse)
also led the court to detain and remove David from Mother’s care.
Mother
emphasizes that the Bureau failed to prove the second prong of the
test―that she has not made reasonable efforts to remedy the problem. She insists the analysis must focus on her
efforts, not the success or failure of the efforts. (R.T.
v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.); K.C. v. Superior Court
(2010) 182 Cal.App.4th 1388, 1393; Cheryl
P., supra, 139 Cal.App.4th at
p. 99; Renee J. v. Superior Court
(2002) 96 Cal.App.4th 1450, 1464.)
Progress (or lack thereof), however, may undeniably be considered: “It
is certainly appropriate for the juvenile court to consider the
parent’s efforts, as well as any other factors relating to the
when evaluating the effort for reasonableness. And while the degree of progress
is not the focus of the inquiry, a parent’s progress, or lack of progress, both
in the short and long term, may be considered to the extent it bears on the
supra, at pp. 914‑915.)
The
court found Mother had made “little progress†in achieving sobriety. Considering the length of time Mother has had
a drug abuse problem and the earlier dependency of Michael, that finding was
supported by substantial evidence. She
initially showed inconsistent willingness to face up to the fact, let alone the
severity, of her addiction. Early in
David’s dependency proceedings Mother claimed she had been “drug free for 21
years†and her positive drug test at David’s delivery “was a result of
breathing in smoke while socializing with others who were indulging in
methamphetamine use.â€
It
is true that Mother voluntarily went into a residential treatment facility
shortly after David was detained. She
also went into residential rehab after David was detained on the supplemental
section 387 petition in July 2012. She
attended 12-step meetings faithfully, having documented attendance in at least
139 meetings over the course of approximately five months. In addition to
submitting evidence of her attendance at 12‑step meetings, Mother
submitted reports from her programs attesting to her progress in recovery, as
well as certificates of achievement in recovery.
The
question arises, however, on what time period we are to focus when we consider
whether Mother has “subsequently†made reasonable efforts. Cheryl
P., supra, 139 Cal.App.4th at
page 98, construed the term “subsequently†to “refer[] to reasonable efforts
made since the removal of the
sibling.†(Italics added.) The statute could also be read as applying to
efforts made during the period following the termination of reunification services in the prior dependency. (See
In re Harmony B. (2005)
125 Cal.App.4th 831, 842-843.)
Either way, the statute clearly must be construed as calling for a
consideration of not merely Mother’s efforts to alleviate her drug problem
did during the period between Michael’s dependency and David’s birth. (§ 361.5,
subd. (b)(10).) In this case that is a
lengthy period (eight years from termination of reunification services with
Michael) with no evidence of efforts by Mother to address her addiction except
those prescribed for her during dependency proceedings. (Cf. In
re Harmony B., supra, at pp.
842-843.)
Although
Mother entered programs as required by the Bureau during both dependency
proceedings, she showed no meaningful efforts to maintain sobriety of her own
volition once she was in an unsupervised environment. It may be inferred she made little effort
after her reunification services with Michael had been terminated because she
exposed David to methamphetamines before his birth. Thus, even when she was pregnant, we see no
effort by Mother to stop using drugs.
And Mother herself testified she had been in treatment programs just
three times: once during Michael’s dependency and twice during David’s.
In
the current dependency, Mother was slow to register for required outpatient
treatment and drug testing after leaving the Rectory residential program. She turned in a string of suspiciously
inconclusive tests, followed by a positive test for alcohol. There is reason to suspect she was drinking
more than she acknowledged in court, when she finally abandoned the “vanilla
extract in my coffee†story and admitted she had relapsed with alcohol. The social worker concluded that Mother
lacked insight into her addiction and could not identify what “trigger[ed]†her
to relapse. The court noted that after
more than a year of 12-step meetings, Mother was still on the first
step―acknowledging that she is an addict and is powerless over drugs and
alcohol. We also consider whether Mother
voluntarily checked herself into rehab at any time that was not preceded by
detention of one of her children. Based
on the record we see no such self-motivated efforts at rehabilitation.
The
foregoing facts constitute substantial evidence that Mother’s efforts to
alleviate the problem that led to Michael’s removal had not been
“reasonable.†Given the timeframe
available to her for improvement, Mother’s progress had been minimal and
spotty. She continued to relapse when
not actively involved in a residential treatment program. And she went into residential treatment only
when loss of a child appeared imminent.
In Mother’s case, what constitutes “reasonable†efforts may justly be
affected to some extent by the outcome of those efforts. (R.T.,
supra, 202 Cal.App.4th
services was supported by substantial evidence.
ordering reunification services was in David’s best interests under
section 361.5, subdivision (c)
Mother’s
final claim is that the court erred in denying reunification services because
reunification was in David’s best interests within the meaning of section
361.5, subdivision (c). As Mother points
out, section 361.5, subdivision (b)(10) does not invariably require denial of
reunification services, but to say (as she does) that it merely authorizes such
denial is a bit misleading. Subdivision
(c) specifically provides that the court “shall not order reunification for a
parent or guardian described in paragraph . . . (10) . . .
of subdivision (b) unless the court finds, by clear and convincing evidence,
that reunification is in the best interest of the child.†This provision is a burden-shifting one. “Thus, ‘ “[o]nce it is determined one of
the situations outlined in subdivision (b) applies, the general rule favoring
reunification is replaced by a legislative assumption that offering services
would be an unwise use of governmental resources. [Citation.]†’ (
Cal.4th 735, 744.) The burden is on the
parent to change that assumption and show that reunification would serve the
best interests of the child.†(In re
William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).)
“A
juvenile court has broad discretion when determining whether further
reunification services would be in the best interests of the child under Welf.
& Inst. Code, § 361.5, subdivision (c).
[Citation.] An appellate court
will reverse that determination only if the juvenile court abuses its
discretion.†(William B., supra, 163 Cal.App.4th at p. 1229; accord,
Mother
asserts there was no explicit finding by the court that it would not be in
David’s best interest to have reunification services provided. Mother asks us to consider such a finding
implied in the record. But since the
burden is on the parent to establish the exception provided in section 361.5,
subdivision (c), it is the parent’s burden to request such a finding if the
parent deems that subdivision applicable.
The Bureau points to the lack of a finding as demonstrating Mother’s
failure to raise the issue below, and her consequent waiver of it. (In re
Anthony P. (1995) 39 Cal.App.4th 635, 641.) We agree with the Bureau that the issue has
been forfeited.
But
even if we were to address the issue on the merits, we would find no abuse of
discretion. It is true that David and
Mother had a close relationship, and David’s counsel did not oppose
reunification efforts. However, the
closeness of the relationship alone is no reason to conclude that the provision
of reunification services would be in the child’s best interest. (William
B., supra, 163 Cal.App.4th at p.
1229.) “The best interests of the child
are not served by merely postponing his chance for stability and continuity and
subjecting him to another failed placement with the parent.†(Ibid.)
Rather,
the “juvenile court should consider ‘a parent’s current efforts and fitness as
well as the parent’s history’; ‘[t]he gravity of the problem that led to the
dependency’; the strength of the bonds between the child and the parent and
between the child and the caretaker; and ‘the child’s need for stability and
continuity.’ †(
55, 66–67.) In addition, “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.
(Renee J. v. Superior Court
(2002) 96 Cal.App.4th 1450, 1464.)â€
(William B.,
Considering
all of the foregoing factors, we find no abuse of discretion in the court’s
denial of reunification services. David
was 18 months old at the time of the contested hearing. He had spent virtually his whole life in the
dependency system. His need for
stability and continuity was profound and pressing.
Mother’s
history with drugs has been reviewed.
There can be no serious argument that her problem was not grave. Substance abuse is notoriously difficult for
a parent to overcome, even when faced with the loss of her children. (See In
re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.) Mother’s history demonstrated such a
difficulty. She had been involved in
substance abuse since she was 12 years old.
She lost custody of one son due to methamphetamine abuse. As in William
B., she “then repeatedly failed to overcome her drug addiction despite
years of reunification services and effort on her part. Any significant periods
of sobriety were achieved only while under SSA’s supervision. When that support
was no longer available, the mother quickly relapsed.†(William
B., supra, 163 Cal.App.4th at p.
1228.) Because of the protracted nature
of Mother’s problem, her history of failed treatment with Michael, and her
relapse without self‑reporting during the current dependency, the court
was justified in concluding that reunification efforts would not likely be
successful and that it was time to start focusing on stability and permanency
for David.
to transport Father to hearing
Father contends
the court erred in conducting the hearing on January 30, 2013 in his absence
and over his attorney’s objection. He
relies principally on Penal Code section 2625, which provides in pertinent
part, as follows:
“(d) . . .[N]o
petition to adjudge the child of a prisoner a dependent child of the court
pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of
Section 300 of the Welfare and Institutions Code may be adjudicated without the
physical presence of the prisoner or the prisoner’s attorney,
unless the court has before it a knowing waiver of the right of physical
presence signed by the prisoner or an affidavit signed by the warden,
superintendent, or other person in charge of the institution, or his or her
designated representative stating that the prisoner has, by express statement
or action, indicated an intent not to appear at the proceeding. [¶] (e) In any other action or proceeding in which a prisoner’s parental or marital rights are subject to adjudication, an order for the prisoner’s
temporary removal from the institution and for the prisoner’s production before
the court may be made by the superior
court of the county in which the action or proceeding is pending, or by a judge
thereof. . . .†(Italics
added.)
Father
further argues that rule 5.530(f)(2) and (f)(4) make the prisoner’s presence
mandatory at “any jurisdictional hearing held under section 355 or
dispositional hearing held under section 358 or 361, and any permanency
planning hearing held under section 366.26 in which termination of parental
rights is at issue.â€
name="_ftnref7" title="">[7] Rule 5.530(f)(2) requires that a removal
order be issued in such circumstances, and rule 5.530(f)(4) provides that “No
hearing described in (2) may be held without the physical presence of the
incarcerated parent and the parent’s attorney.â€
The
Bureau argued in the juvenile court that, since a supplemental petition to
remove a child to foster care under section 387 constitutes a modification of a
preexisting order adjudicating the child a dependent child, it is not one in
which the prisoner’s presence is specifically guaranteed under rule 5.530 and
Penal Code section 2625. The Bureau does
not reassert that argument in this court, and we need not resolve the issue
because we find other reasons to reject Father’s argument that the order of
January 30, 2013 must be set aside.
First,
Father complains not only about his absence at the hearing on January 30, 2013,
but also about his absence at prior hearings. He was, however, represented by
counsel at those hearings.
name="_ftnref8" title="">[8] He has not produced a record of those
proceedings from which we may discern whether his counsel objected to
proceeding in his absence. Moreover, we note that he did not appeal from any
orders prior to January 30, 2013, and has therefore waived any claim they were
held in violation of the aforesaid authorities. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1152.)
Fundamentally,
there are competing interests at stake, specifically the child’s interest in
prompt adjudication of his custody status.
Those interests are articulated by a statutory requirement under section
352 that continuances in child dependency proceedings be granted sparingly and
be justified on the record. Most
pertinent to this case is subdivision (b) of section 352, which provides: “Notwithstanding any other provision of law,
if a minor has been removed from the parents’ or guardians’ custody, no
continuance shall be granted that would result in the dispositional hearing,
held pursuant to Section 361, being completed longer than 60 days after the
hearing at which the minor was ordered removed or detained, unless the court
finds that there are exceptional circumstances requiring such a
continuance. . . .
continuances that would cause the hearing pursuant to Section 361 to be
completed more than six months after the hearing pursuant to Section 319.†(Italics added.)
Cal.App.4th 502, 513 held that when section 352 comes into conflict with
Penal Code section 2562, the restriction on continuances governs. In that case, as in the one before us, the
minors’ father was incarcerated during dependency proceedings. (
allow him to be transported to the hearing, despite a court order to transport
him. (Ibid.) Several continuances were granted to attempt
to have the father present for a joint jurisdictional and dispositional
hearing. As the six-month mark from the
date of detention approached, the court continued to grant continuances to try
to allow the father to be present. (
the matter beyond the six‑month period established by section 352,
subdivision (b). (Id. at p. 509.) The
Court of Appeal held this was a correct ruling.
(Id. at pp. 511-513.)
In
addition, as the Bureau points out, any failure to comply with Penal Code
section 2625 is subject to harmless error analysis. (In re
Jesusa V., supra, 32 Cal.4th at
pp. 624-625.) Assuming without
deciding that an error occurred here, we would not find it prejudicial
employing the test of People v. Watson
(1956) 46 Cal.2d 818, 836. (
David himself, and he acknowledged as much.
His attorney was present at the hearing to assert his position that
David should be returned to Mother and to cross-examine Mother and the social
worker on Father’s behalf. In addition,
Father had written a three-page letter expressing his desire to reunify with
David and his intention to turn his life around, which was attached to the
social worker’s report. In that sense
Father was allowed to “testify†without cross-examination. Thus, any unfairness resulting from his
physical absence was minimized by the procedures employed.
Yet,
given Father’s current incarceration, uncertain release date (he appeared to be
under a four-year sentence), past history of arrests and convictions, and
persistent long‑term substance abuse issues, there is no reasonable
likelihood that an outcome more favorable to him would have resulted from the
hearing even if Father had been physically present. As the social worker noted, even after Father
is eventually released from jail he would need to find a lawful job and housing
before he could take custody of David, and he would also require drug
intervention to address his substance abuse problem. David needs permanency sooner than Father
would be able to provide it, even if he could overcome his several
challenges. And Father’s presence would
not have changed Mother’s testimony, which did not result in the court’s
returning David to her. We conceive of
nothing Father could have contributed at the hearing that would have changed
the outcome. We therefore find any error
in proceeding with the hearing was harmless.
to provide Father with visitation and reunification services
Father
contends a section 366.26 hearing cannot be set because he was never provided
with visitation or other reunification services to strengthen his family bonds
with David. The sad fact is that Father
has been incarcerated for virtually all of David’s life. Since his incarceration, Father has not had
visitation with David, except perhaps during one or two court sessions in which
both Father and David were present. In
November 2012, Father reported to the social worker that he had been sentenced
to four years in prison, and in light of presentence credits, he expected to
remain incarcerated for approximately 15 more months. At that time David had already been under the
court’s jurisdiction for approximately 16 months.
Father
was declared a presumed father on October 5, 2011. Ordinarily, an incarcerated presumed father
is entitled to reunification services, including visitation. (§ 361.5, subds. (a) & (e);
449.) Section 361.5, subdivision (e)(1),
provides an exception where the court finds by clear and convincing evidence
that visitation would be detrimental to the child. “In determining detriment, the court shall
consider the age of the child, the degree of parent-child bonding, the length
of the sentence, the length and nature of the treatment, the nature of the
crime or illness, the degree of detriment to the child if services are not
offered and, for children 10 years of age or older, the child’s attitude toward
the implementation of family reunification services, the likelihood of the
parent’s discharge from incarceration, institutionalization, or detention
within the reunification time limitations described in subdivision (a), and any
other appropriate factors.†(
At
the hearing on January 30, 2013, Father’s status was changed from presumed
father to “alleged natural father.†An
alleged parent is not entitled to reunification services (§ 361.5, subd. (a);
provide Father with such services at the hearing on January 30, 2013. The Bureau recommended that no reunification
services be provided for Father, and he was denied visitation while he was
incarcerated based on his criminal history, his uncertain release date, and his
substance abuse issues. We note,
however, that the court did order supervised visits between Father and David
after Father is released from custody.
Father
now claims he was improperly denied visitation and other (unspecified)
reunification services throughout the dependency period. However, even accepting the original
designation of Father as a presumed father, the denial of visitation was not
erroneous. Earlier in the dependency proceedings Father was denied visitation
because of David’s premature birth and fragile health. Thus, Father’s incarceration, though
undoubtedly a factor, was not the only reason for denying visitation. In any case, these earlier denials of
visitation cannot be challenged in this writ proceeding because none of the
orders prior to January 30, 2013, was appealed.
(In re Meranda P., supra,
56 Cal.App.4th at pp. 1151-1152.)
With
respect to the orders of January 30, 2013, again, the issue was forfeited by
Father’s counsel’s failure to object to the visitation order and to argue in
favor of reunification services or visitation at the hearing. (In re
S.B. (2004) 32 Cal.4th 1287, 1293; In
re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; In re Anthony P., supra,
39 Cal.App.4th at pp. 641-642.)
But
even if we were to reach the merits, we would find no error. There was substantial evidence to support the
court’s finding by clear and convincing evidence that providing reunification
services for Father would be detrimental to David. (§ 361.5, subd. (e)(1).) Father had admitted an intractable drug
problem extending over a period of 25 years.
He had a lengthy criminal record and was incarcerated and would probably
remain incarcerated for at least a year after the January 30 hearing, long
after the statutory time limit for reunification. David had not developed an emotional bond with
Father, and he had already been placed in several foster homes. David was too young to visit with his father
by telephone. And to order personal visits, thereby bringing yet another
unfamiliar adult into his life, especially in a jail setting, could be more
confusing than beneficial to the child.
Finally, if reunification services had been ordered, the unavoidable
delay in achieving permanency for David could easily be seen as substantially
outweighing any benefit that might be derived from providing visitation with
Father. Thus, ordering reunification
services could reasonably be seen as detrimental to David.
It
is true that visitation may be ordered under section 361.5, subdivision (f),
even if reunification services have been denied for an incarcerated parent:
“The court may continue to permit the parent to visit the child unless it finds
that visitation would be detrimental to the child.†(See In
re J.N. (2006) 138 Cal.App.4th 450, 457.)
That language has been construed, however, as vesting the court with
complete discretion to grant or deny visitation unless it finds that visitation would be detrimental to the child,
in which case it must deny
visitation. (Id. at pp. 457‑459.) A
finding of detriment is not required to deny visitation, and the court’s ruling
is reviewed only for abuse of discretion.
(Id. at p. 459.)
Father relies on
1463 (Precious J.), where this court
held that an incarcerated mother was entitled to have visitation with her
dependent child, and the social services agency’s failure to facilitate such
visits precluded termination of parental rights. (Id. at pp. 1476-1480.)
Father correctly points out that visitation may not be denied based
solely on the fact that the parent is incarcerated. (In re
Jonathan M. (1997) 53 Cal.App.4th 1234, 1237-1238; In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.) But the issue in Precious J. was not whether visitation should have been
ordered―it had been―but rather whether the social services agency
had complied with the order to provide such reasonable services. (Precious
J., supra, at pp. 1477-1478.)
958 (Calvin P.) is similar. There, the mother was incarcerated because an
older child, who had been removed from her custody and placed with the father,
had died in her care, resulting in an involuntary manslaughter conviction. (
issue were ages 12 and seven. (Id. at
p. 960.) Thus, there was a preexisting establi
| Description | David V. became the subject of concern when it was reported that he was born with methamphetamine in his system in July 2011. Gina A. (Mother) also tested positive for methamphetamine at David’s birth. David was detained in foster care while Mother began making efforts to get sober, including residential treatment. Though she regained custody temporarily, Mother relapsed with alcohol in June 2012. Because of her relapse, her lack of insight into her addiction, and her history of treatment and relapse, on January 30, 2013, a hearing under Welfare and Institutions Code section 366.26[1] was scheduled for May 22, 2013. |
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