In re I.S.
Filed 9/21/12 In re
I.S. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Shasta)
----
>
In re I.S. et al., Persons Coming Under the Juvenile Court Law. | |
SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.W., Defendant and Appellant. | C067818 (Super. Ct. Nos. 10JVSQ2733402, 10JVSQ2733502, 10JVSQ2785202, 11JVSQ2876801) |
C.W., mother of the minors, appeals from
the judgment of the juvenile court. (Welf. & Inst. Code, §§ 358, 360, 395
[undesignated statutory references that follow are to the Welfare and
Institutions Code].) Appellant contends
there was insufficient evidence to support the juvenile court’s order to bypass
her services and that the juvenile court abused its discretion in failing to
find that providing services would be in the best interests of the minors. She also argues that the exit orders for C.H.
and J.H., granting custody to the minors’ father, Jose H. was not in the
minors’ best interests. We affirm the
judgment.
Facts
and Proceedings
In March 2008, the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Shasta
County Health and Human Services Agency (the Agency) filed a petition to
remove A.W., age 7, D.S., age 3, and I.S., age 13 months, from parental custody
due to appellant’s drug issues. A.W. is
not a subject of this appeal.
Appellant was involved in sales and use of
methamphetamine and I.S. tested positive for methamphetamine. The Agency recommended services for
appellant.
An addendum report in July 2008 stated
appellant was pregnant with a fourth child and had recently tested positive for
methamphetamine. The court adopted a
reunification plan which included substance
abuse treatment, parenting classes, testing and visiting the minors.
In a review report in October 2008, the
Agency recommended extending services to appellant, who was participating in
her plan. Appellant had tested positive
for methamphetamine in September 2008.
An addendum in November 2008 stated appellant was not doing well in
parenting, having been dropped from her class.
Her recent methamphetamine use meant that her unborn child was exposed
to drugs. In December 2008, the court
ordered further services for appellant.
In January 2009, the Agency filed a
petition to detain week-old C.H., based on appellant’s positive drug tests in
September and December 2008. The court
denied detention and ordered that C.H. remain in appellant’s custody under the
supervision of the Agency. The
jurisdiction report for C.H. did not recommend voluntary services noting that
appellant denied her history of substance abuse. The jurisdiction/disposition report of March
2009 recommended an in-home dependency, noting that appellant had completed
outpatient treatment but that there had been a recent domestic violence
incident. C.H.’s father was participating
in services.
The 12-month review report for A.W., D.S.
and I.S. recommended extending appellant’s services to the 18-month limit based
on her participation and the family maintenance case for C.H. The court adopted the recommendation for family
maintenance for C.H., extended services for the three older children and gave
the Agency discretion to facilitate overnight visits with appellant for
them.
The 18-month report in August 2009 stated
the minors A.W., D.S. and I.S. were placed with appellant and the Agency
recommended continued supervision. By
October 2009, the court ordered the dependency terminated.
Eleven months later, in September 2010, the
Agency filed a petition to remove the four minors from appellant’s custody
after D.S., now five years old, took a bag of methamphetamine to school. Appellant did not drug test when requested to
do so and blamed the presence of methamphetamine in her home on a drug dealer
who planted it there. Appellant admitted
her past drug use but denied she had used drugs since September 2008. Appellant insisted she was set up by a drug
dealer but also accused C.H.’s father of planting drugs. At the initial hearing, the court released
C.H. to his father, who had completed his services.
The jurisdiction/disposition report of
October 2010 recommended foster care for A.W., D.S. and I.S. with services to
appellant. Appellant admitted using
methamphetamine from March to June 2010.
Appellant also had a positive test for amphetamines in September 2010
but the test results were questionable.
Appellant was pregnant with her fifth child. A psychological evaluation of appellant from
2008 predicted that she would be a difficult client due to her maladaptive
defenses and impulsivity and would need a minimum of a year of treatment.
In an addendum filed in January 2011, the
Agency changed the recommendation to denial of services for appellant and
A.W.’s father, services to D.S.’s and I.S.’s father, and full custody of C.H.
to Jose H. The addendum detailed appellant’s
extensive drug involvement and services provided to her from 2000 to 2010. That period was characterized by several
removals and returns of the minors, multiple services, periods of sobriety and
eventual relapses. When evaluated in
October 2010, appellant was unwilling to enter residential treatment,
preferring instead to participate in an intensive day treatment program. Appellant eventually entered residential
treatment in December 2010. A hair
strand test in October 2010 was positive for amphetamine and
methamphetamine.
Appellant gave birth to her fifth child,
J.H., in January 2011 and the Agency filed a petition to detain him. Appellant had claimed to be clean since June
2010, but the hair strand test in October 2010 demonstrated she had continued
to use drugs. Both appellant and J.H.
tested negative when he was born. The
initial report recommended the minor be detained. The court ordered J.H. detained and gave the
Agency discretion to place him with his father, Jose H.
Subsequent reports in February 2011 and
March 2011 recommended placing J.H. with Jose H., denying services to appellant
and dismissing the dependency. The
February report observed that accommodating visits during the week placed a
financial burden on the father but that he was able to take both C.H. and J.H.
to appellant’s treatment center for extended day visits on weekends. The March 2011 report stated appellant had
exposed J.H. to methamphetamine. The
report further stated that appellant admitted a history of drug use and sales
over 17 years, had completed a plan for the half-sibling, C.H., in 2009, but
relapsed in a few months, following a pattern predicted by the 2008
psychological evaluation. The father was
a nonoffending parent who had completed a service plan for C.H. and was
providing for J.H.
An addendum filed in March 2011 as to the
four older minors recommended bypassing appellant’s services pursuant to
section 361.5, subdivision (b)(13) because appellant relapsed into substantial
drug use within five months of treatment in the prior dependency. The report stated appellant was in a
residential treatment facility but there was concern about the professionalism
of the staff and appellant’s level of engagement in treatment. A recent psychological evaluation, which was
similar to the prior evaluation, stated it was unlikely appellant would take
responsibility for personal failures and would act on impulse. The evaluation concluded that appellant
required extensive treatment over years, however, individuals with personality
disorders, like appellant, often believed they did not need treatment and thus
treatment was ineffective. Visit logs
attached to the addendum indicated that C.H. was happy to see appellant at his
visits in November and December 2010. The
logs of J.H.’s visits showed that appellant was able to adequately care for him
in the supervised setting.
Appellant submitted to jurisdiction on the
petitions. As to C.H. and J.H.,
appellant argued the visit logs showed visits were positive for C.H. and
opposed the recommendation that visits be set at once a week, asking instead
for overnight visits. The court found
that joint custody was not appropriate due to appellant’s relapses and that it
was not prepared to move to overnight visits yet. The court sustained the petitions, placed the
minors in the sole legal and physical custody of the father, terminated the
dependencies and set visits at once a week.
At the hearing for D.S. and I.S., appellant
testified about the quality of her visits with them and the bond they
shared. Appellant now denied telling the
social worker she first relapsed in March 2010 and explained she relapsed in
June 2010 after using diet pills. Appellant
discussed her current treatment program for substance abuse and parenting and
how she was trying to apply what she learned.
While she did consider herself an addict, she did not think she was a
chronic drug user. An employee of
appellant’s treatment program testified that appellant was doing well
there. The social worker testified about
her concerns that appellant was minimizing her addiction and lacked the ability
to remain sober. The social worker
further testified that appellant was able to comply with treatment when
monitored but not otherwise and was concerned she would relapse again.
The court reviewed the circumstances of the
case, including appellant’s success in the earlier href="http://www.mcmillanlaw.com/">dependency proceeding and subsequent
relapse. The court explored the various
statements appellant made about the timing of her relapse, observing that she
lied to fit the facts she was confronted with and that the facts showed she was
using drugs from March to September of 2010.
The court also noted that appellant had resisted a referral to residential
treatment but was now engaged in treatment to “play the game.†The court found appellant had demonstrated no
benefit from services and her credibility was questionable. The court further found appellant had chronic
substance abuse issues and that section 361.5, subdivision (b)(13) did
apply. The court stated it could not
find that providing services would be in the minors’ best interests. The court sustained the petitions, denied
services to appellant and ordered services for the father of D.S. and I.S.
Discussion
I
Sufficiency of the Evidence to Bypass Services
Appellant contends there was insufficient
evidence to support bypassing services to her, characterizing her resumption of
drug use in 2010 as a brief relapse and arguing that she had not tested
positive since beginning residential treatment.
When the sufficiency of the evidence to
support a finding or order is challenged on appeal, even where the standard of
proof in the trial court is clear and convincing, the reviewing court must determine
if there is any substantial evidence--that is, evidence which is reasonable,
credible and of solid value--to support the conclusion of the trier of
fact. (In re Angelia P. (1981) 28
Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize
that all conflicts are to be resolved in favor of the prevailing party and that
issues of fact and credibility are questions for the trier of fact. (Jason L., at p. 1214; In re Steve
W. (1990) 217 Cal.App.3d 10, 16.)
The reviewing court may not reweigh the evidence when assessing the
sufficiency of the evidence. (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
When a child is removed from parental
custody, the juvenile court must order reunification services to assist the
parents in reuniting with the child. (§
361.5, subd. (a).) However, if any of
the circumstances set forth in section 361.5, subdivision (b) are established,
“the general rule favoring reunification is replaced by a legislative
assumption that offering [reunification] services would be an unwise use of
governmental resources.†(>In re Baby Boy H. (1998) 63 Cal.App.4th
470, 478; see also Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 744.)
Here, the Agency relied on section 361.5,
subdivision (b)(13) as the basis for seeking bypass of services. That subdivision provides, in relevant part,
that reunification services need not be provided when there is clear and
convincing evidence: “That the parent
. . . 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 . . . on at least two prior
occasions . . . .â€
Completion of drug treatment but failure to maintain any kind of
long-term sobriety constitutes resistance to treatment. (Karen
S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.)
Here, appellant admitted, and the evidence
showed, an extensive, abusive and chronic use of drugs. Appellant was involved in both use and sales
of drugs over many years. In the first
dependency, she had 18 months of services to address her substance abuse
problem and did reunify with the minors in October 2009. But, by March 2010, appellant had relapsed
into her old pattern of substance abuse.
The evidence showed she continued to use methamphetamine at least
through September of 2010. Although
appellant had entered a residential treatment facility and was currently
testing negative for drugs, the evidence amply supported the juvenile court’s
finding that appellant had resisted prior court ordered treatment by resuming
drug use within three years and that the bypass provisions of section 361.5,
subdivision (b)(13) applied. (In
re Angelia P., supra, 28 Cal.3d
at p. 924; In re Jason L., supra,
222 Cal.App.3d at p. 1214.)
II
The Minors’ Best Interests
Appellant asserts that, if the bypass
provision was operative, the juvenile court abused its discretion in failing to
apply section 361.5, subdivision (c) and order services in the minors’ best
interests.
Section 361.5, subdivision (c)
provides, in part: “The court shall not
order reunification for a parent . . . described in paragraph
. . . (13) . . . of subdivision (b) unless the court finds,
by clear and convincing evidence, that reunification is in the best interest of
the child.†A juvenile court has
broad discretion when determining whether further reunification name="SR;4668">services would be in the best interests of the child. (In re
Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court will reverse that
determination only if the juvenile court abuses its discretion. (Id. at pp. 523-524.) It is the parent’s burden to “affirmatively
show that reunification would be in the best interest†of the child. (In re
Ethan N. (2004) 122 Cal.App.4th 55, 66.)
Substance abuse problems are difficult to
overcome. Appellant has struggled with
substance abuse for many years with varying degrees of success. Her significant periods of sobriety occurred
when she was under the Agency’s supervision and, without that support, she soon
relapsed. The minors need stability and
consistency which cannot be achieved by pushing them through the revolving door
of removal and return multiple times.
To overcome the bypass provision, the
juvenile court must have some reason to believe that reunification is possible
before ordering services. Appellant
repeatedly lied about the circumstances of her relapse and blamed others for
the presence of methamphetamine in her home.
She minimized the seriousness of her problem and was initially resistant
to the very service which would provide the best chance for success, i.e.,
residential treatment. While appellant
was currently doing well in her program, she had shown no benefit from the
prior intensive services she was offered and there was no reason to believe
this time would be different. The
juvenile court did not abuse its discretion in concluding the minors’ best
interests would not be served by offering services to appellant.
III
Custody and Visitation
Appellant challenges the exit orders as to
C.H. and J.H. She argues that giving
sole custody to Jose H. and limiting her visitation was an abuse of
discretion. Appellant points to evidence
of Jose H.’s criminal history and anger management problems and relies on
reports of her positive visits with the minors to assert that overnight visits
were in the minors’ best interests.
The juvenile court may place a child with a
noncustodial parent unless it finds that such placement would be detrimental to
the minor’s well-being. (§ 361.2, subd.
(a).) If such a placement is made, the
court may order that the noncustodial parent become the legal and physical
custodian of the child, enter reasonable visitation orders for the other parent
and terminate jurisdiction over a dependent child. (§§ 361.2, subd. (b); 362.4; Cal. Rules of
Court, rule 5.700(a); In re Jennifer R.
(1993) 14 Cal.App.4th 704, 712.) The
order is to be filed in any domestic relations or paternity proceeding between
the parents or may form the basis for a new file in the superior court. (§§ 361.2, subd. (b); 361.4.) Subsequent modifications of custody or
visitation will be made in the superior court case. (§ 362.4.)
We review custody and visitation orders for abuse of discretion. (In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32; In re Stephanie M., supra,
7 Cal.4th at p. 318; Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 300-301.)
In the first dependency, both appellant and
Jose H. had issues which needed to be addressed in services. Jose H. completed his service plan and there
was no evidence that, at the time of the disposition hearing, he was anything
other than a father who was successfully parenting and supporting two young
children while working and maintaining their visitation with appellant. In contrast, appellant had not benefitted
from her earlier services, relapsed into drug use, was not credible when
testifying about her drug use and, although she was in treatment, continued to
minimize and excuse her substance abuse problems. The visit records show that, in the
structured setting of supervised visits, appellant did reasonably well in
meeting the needs of both C.H. and J.H. and that C.H. was generally happy to
see her. However, the court was not
required to hold the minors’ safety and stability hostage to appellant’s
inconsistent ability to remain clean and sober by permitting her to share
custody or to have overnight visits. The
current orders strike a balance between ensuring a safe and stable home for the
minors and permitting ongoing contact between them and appellant. The juvenile court did not abuse its
discretion in entering the exit orders.
clear=all >
Disposition
The judgment is
affirmed.
HULL , Acting P. J.
We concur:
BUTZ
, J.
MAURO , J.