J.T. v. Superior Court

Filed 11/20/09 J.T. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

J. T. (Mother) challenges an order of the Alameda County Superior Court, Juvenile Division, made at the conclusion of the dispositional hearing, in which the court set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for the minor H. T. Mother challenges the juvenile courts denial of reunification services, and objects to certain evidentiary rulings. As discussed below, we conclude there was no prejudicial error and deny Mothers petition on the merits.[2]

Background

On June 25, 2009, the countys Social Services Agency (Agency) initiated this proceeding on behalf of the minor (a male born June 2009). The Agency sought to establish dependency jurisdiction over the minor chiefly under section 300, subdivision (b), alleging that Mother had a history of methamphetamine abuse problems that remain unresolved. The petition also alleged as to Mother: that she had a history of mental health issues, in that she had been diagnosed as suffering from Bipolar II Disorder, but had not been compliant in taking medications prescribed to treat this disorder, and had not followed through with regular psychiatric services; that Mother had a history of relationships with men who physically and emotionally abused her, that she had a history of unstable housing, was currently homeless, and lacked the social supports necessary either to address her substance abuse, mental health issues, and domestic violence issues, or to meet the minors special medical needs. Finally, the petition alleged Mother had failed to reunify with three older siblings of the minor, who had been removed from her custody in November 2007 and as to whom her reunification services had been terminated in December 2008. The petition included an additional allegation as to the father under section 300, subdivision (g).

At the conclusion of the detention hearing, on June 29, 2009, the juvenile court ordered the minors removal from Mothers physical custody, and directed that Mother continue to have liberal visitations with the minor at the hospital. [3]

In its report prepared for the jurisdictional/dispositional hearing, the Agency recommended that the juvenile court sustain the jurisdictional allegations and deny Mother reunification services under section 361.5, subdivisions (b)(10) and (b)(13). The Agency also recommended findings denying services to three alleged fathers unless one established a legal basis for services. (See 361.5, subd. (a).) At the conclusion of the contested jurisdictional/dispositional hearing, on August 11, 2009, the court sustained the jurisdictional allegations under section 300, subdivisions (b) and (g), continued the minor in out-of-home custody, ordered that reunification services to Mother be denied, and directed no services to the alleged fathers. Accordingly, the court proceeded immediately to set the matter for a hearing under section 366.26 hearing. Mothers petition followed. ( 366.26, subd. (l).)

Discussion

I. Denial of Reunification Services

A. Denial of services under section 361.5, subdivision (b)(13)

Mother contends the juvenile court erred in finding, by clear and convincing evidence, that she should be denied reunification services under section 361.5, subdivision (b)(13). In her view the evidence was not sufficient to show she continued to be a chronic abuser of drugs, or that she had been unwilling to comply with a program of drug treatment.

Subdivision (b)(13) of section 361.5 states, in pertinent part, that [r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, . . . []. . . [] (13) [t]hat the parent . . . 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 courts attention . . . .

In reviewing the juvenile courts finding that Mother came within the exception for services set out in subdivision (b)(13) we determine whether it is supported by substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) That is, we determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could have made the challenged finding. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) Under this standard we view the evidence in a light most favorable to the juvenile courts ruling, indulging all legitimate and reasonable inferences in its favor. (See In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

At the jurisdictional/dispositional hearing, the juvenile court admitted the Agency report prepared for that hearing, a supplemental report that included the results of a drug test, and the report prepared earlier for the detention hearing. These included a number of police reports as exhibits.

The detention report noted Mother, then 29 years of age, had stated she had been using methamphetamine since she was 16 years of age. She said she managed to stop when pregnant with the minors older siblings, but eventually started using again.

A police report dated November 1, 2007, detailed an incident in Pittsburg, Contra Costa County, at the home of Mother, her husband, and the minors three older siblings. An officer found a glass pipe that had evidently been used to smoke illegal drugs. Mother admitted to the officer the pipe was hers, and stated she was smoking methamphetamine every day and had been using the drug for some nine years.

On that same date, November 1, 2007, the Contra Costa Social Services Agency took the three siblings into protective custody. A minute order of the Contra Costa County Juvenile Court, attached to the jurisdictional/dispositional report, indicated that the Agency filed a petition to establish the siblings as dependents of the court four days later, on November 5, 2007.

The Agencys detention report related an interview with a Contra Costa County social worker who had been assigned to the siblings dependency proceeding. This worker stated that Mother had completed a 90-day residential treatment program for substance abuse at Wollum House. Mother later stated she graduated from this treatment program on May 9, 2008.

A police report dated August 2, 2008, described an incident of domestic violence in Antioch, Contra Costa County. Mother, the victim, told an officer she had been in a relationship with S. D., the perpetrator, since December 2007, after meeting him at a drug rehabilitation center. Mother stated she and S. D. still use methamphetamine on a regular basis and were currently homeless. When not staying with friends they lived in her car. A police report dated October 26, 2008, set out another incident of domestic violence between S. D. and Mother, at which time Mother admitted she and S. D. had been smoking crank and drinking alcohol. The report also noted that S. D. had a history not only of domestic violence but also narcotic related arrests.

The Agency reported that Mother left the courtroom during the detention hearing on June 29, 2009, and went to stay with a friend. Three days later, on July 2, Mother was arrested in Antioch on an outstanding bench warrant, while in the company of S. D. Relatives reported that Mother and S. D. had been drunk and high at the time of this arrest.

The Agencys assigned case worker reported that she was in contact with Mother some two weeks later, on July 16, 2009, at which time she referred Mother to Options Recovery to test for drug use, and to obtain guidance and support as to her substance abuse and other issues. The Agencys supplemental report showed that Mother did provide a drug test sample the following day, and this sample tested positive for amphetamine use. The case worker testified at the hearing that Mother participated in services offered by Options Recovery for maybe a week before leaving the program.

The foregoing evidence provides abundant support for the finding that Mother has a history of extensive, abusive, and chronic use of drugs . . . . ( 361.5, subd. (b)(13).) It establishes that Mother graduated from a 90-day substance abuse treatment program in Contra Costa County on May 9, 2008, and also shows the Contra Costa County social services agency had removed the minors siblings from her custody on November 1, 2007, and had initiated a dependency proceeding as to them several days later. Given that the Contra Costa agency worker reported Mothers completion of the program in the context of relating the facts of the siblings dependency proceeding, it is reasonable to infer this was a prior court-ordered treatment . . . program for purposes of subdivision (b)(13) of section 361.5.

Resistance to court-ordered treatment may be shown when a parent has participated in such treatment but continues to abuse illicit drugs under circumstances indicating that the abuse is more than a brief relapse. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382, 383; see also In re William B. (2008) 163 Cal.App.4th 1220, 1230.) In our view the evidence summarized above supports the finding that Mother resisted prior court-ordered treatment of her chronic substance abuse problem. We conclude substantial evidence supports the juvenile courts finding that Mother was a person described by section 361.5, subdivision (b)(13).[4]

B. Exception to denial of services under section 361.5, subdivision (c)

When the juvenile court finds that any one of several enumerated subparts of section 361.5, subdivision (b), applies including subdivision (b)(13) the court shall not order reunification services for the parent to whom it applies unless it finds, by clear and convincing evidence, that reunification is in the best interest of the child. ( 361.5, subd. (c).) The burden is on the parent, as the party seeking reunification services notwithstanding section 361.5, subdivision (b), to show affirmatively that reunification is in the childs best interest. (Cal. Rules of Court, rule 5.695(f)(10); see In re Ethan N. (2004) 122 Cal.App.4th 55, 66 (Ethan N.).)

Here Mothers counsel called the Agencys assigned case worker as a witness, and sought to elicit, among other things, that Mother had spent over 40 days at the hospital with the minor, at that time two months of age. The case worker disputed this estimate, and eventually provided her own estimate that Mother had spent some 25 days at the hospital. During closing argument, Mothers counsel urged that this testimony showed that reunification was in the minors best interest, because Mother wouldnt [have been] spending day after day after day in the hospital, sleeping in the hospital around the clock with the child if [there] werent a strong mother/child bond.

Mother now suggests the juvenile court erred in failing to find, by clear and convincing evidence, that reunification was in the minors best interests based on the mother-child bond she forged when she visited extensively with the minor at the hospital.

The juvenile court, in rejecting the closing argument by Mothers counsel, implicitly determined that reunification was not in the minors best interest. We review that determination for abuse of discretion. (Ethan N., supra, 122 Cal.App.4th 55, 6465.) In determining whether reunification is in the best interest of a child, it may be appropriate to consider the parents current efforts and fitness as well as his or her history. (Id. at p. 66.) The ultimate goal in considering a childs best interest is to maximize his or her opportunity to develop into a stable, well-adjusted adult. (Ibid.)

Here Mother essentially relies on evidence that she spent some 25 days at the hospital visiting with the minor. There was also testimony, however, elicited by the juvenile court, to the effect that Mother had more recently not attempted visitation with the minor during a 12-day period preceding the final hearing date, when the minor was briefly discharged from the hospital and in foster care. Further, we have summarized above evidence relating to Mothers longstanding history of substance abuse, and her continuing substance abuse as recent as the positive drug test of July 17, 2009. The summarized evidence also shows that, whereas the minor is medically fragile, Mother had been homeless during the entire proceeding, and persisted in a relationship with S. B., who was not only physically abusive but had contributed to Mothers continuing drug abuse. We conclude there was substantial support for the courts implied finding that reunification was not in the minors best interest, and hence no abuse of discretion.

II. Evidentiary Objections

When counsel for the Agency examined the Agencys assigned case worker, he asked her whether it was her testimony that [Mother] actually did not take advantage of the services that [the case worker had] coordinated? Mothers counsel objected to the question as leading, but the juvenile court overruled the objection, and the case worker answered Yes. Counsel for the Agency then asked, in effect, whether that was her testimony because Mother did not believe she ha[d] mental health issues. Mothers counsel again objected on the ground the question was leading, but the court again overruled the objection. The case worker in this instance replied I dont remember.

Mother claims the juvenile court erred in overruling her objections, and urges the errors were not harmless because the questions pertained to essential elements of whether reunification services should be granted or denied.

The Agency concedes that the questions were leading, but argues they were nevertheless permissible because Mothers counsel called the case worker to testify and hence counsel for the Agency posed the questions on cross-examination. It is clear, however, that Mothers counsel called the case worker as an adverse witness, and that it was his examination that was in the nature of cross-examination. (Evid. Code,  776, subds. (a), (d)(2).) Because the case worker was an employee of the Agency, counsel for the Agency could examine her only as if under redirect examination. (Evid. Code, 776, subds. (b)(2), (d)(2).) As the Agency concedes, a leading question may not be asked on redirect examination. (See Evid. Code, 767, subd. (a)(1).)

We view these evidentiary rulings as harmless error, however. The case workers affirmative answer to the first question was mere recapitulation of other evidence. Specifically, the case worker had reported that Mother had not utilize[d] the resources for treatment programs and shelters offered to her by the [case worker]. Subsequently she testified that Mother engaged in services at Options Recovery for maybe a week before leaving the program. As for the second question, the case worker responded only that she d[id]nt remember. We cannot say that it is reasonably probable that Mother would have enjoyed a more favorable result in the absence of these errors. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Disposition

The request for stay is denied and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.

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[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] The Agency report prepared for the detention hearing noted the minor had been hospitalized at Childrens Hospital in Oakland since birth. He was considered medically fragile due to complex congenital heart disease and other health problems.

[4] Because we affirm the denial of reunification services under section 361.5, subdivision (b)(13), and because Mother has not challenged the juvenile courts alternate basis for denial, we deem it unnecessary to consider whether that alternate finding, under subdivision (b)(10) of section 361.5, is supported by substantial evidence.