Mary M. v. Super. Ct.

Filed 8/28/07 Mary M. v. Super. Ct. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

ORIGINAL PROCEEDINGS in mandate. Robin Miller Sloan, Judge. Petition denied.

Law Offices of Alex Iglesias, Steven D. Shenfeld and Michelle Robel for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Real Party in Interest.

Childrens Law Center of Los Angeles and Kristen Balelo for Minor.

Petitioner Mary M. (mother) seeks extraordinary writ relief from the juvenile courts order denying reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26[1]as to her son, Gary B. We deny the requested relief.

FACTUAL AND PROCEDURAL SUMMARY

Mother has seven children: Jerry C., Marjorie C., Bradley M., Mark H., Leann H., Nicole B. and Gary B. Because this petition concerns only Gary B., we limit the facts accordingly.

In 1996, Jerry C., Bradley M. and Leann H. were detained by the Department of Children and Family Services (DCFS). Mothers friend physically abused Leann H. while in mothers custody, and it was determined that mother was using illegal drugs. Mother attended parenting and drug rehabilitation classes, then did not contact DCFS for three months. Mother failed to reunify with the children, and Jerry C. and Leann H. eventually were adopted. According to mother, Marjorie C. and Mark H. are living with their respective fathers as a result of family court rulings.

In 2004, Nicole B. and Gary B. were detained by DCFS when Gary B. was born with a positive toxicology for methamphetamine. Mother received reunification services, and after convincing the court that she had satisfactorily addressed her drug problem (which included the completion of a drug program), both children were returned to her care in early 2006.

In December 2006, someone notified DCFS that mother was using methamphetamines. Maternal grandmother informed DCFS that mother, Nicole B and Gary B. had been living with her for two or three weeks. She also stated that mother had been partying and would be away for a couple of days at a time, leaving the children with maternal grandmother. Mother tested positive for methamphetamine and amphetamine. She later admitted going on a five-day drug binge which ended only because she got caught. Mother testified that she had been raped in 2005 and that the binge was triggered by the rapist resurfacing in her life. The children were detained, and mother was provided monitored visitation and reunification services.

In February 2007, maternal grandmother was interviewed by DCFS. She stated that mother did not pay attention to the children, and warned that mother would say whatever mother believed DCFS wanted to hear. She also informed DCFS that mother had stolen $11,000 to $12,000 worth of jewelry from maternal grandmother. When confronted, mother claimed to have done maternal grandmother a favor by pawning the jewelry before the drug people could steal it.

On April 3, 2007, the court sustained an amended section 300 petition filed on behalf of Nicole B. and Gary B. At contested disposition hearings, mother admitted using drugs off and on for 10 to 11 years. She testified that she was attending personal and drug counseling sessions and had completed a parenting program. She also testified that she was testing for drugs and that all of the results had been negative. The court denied reunification services pursuant to section 361.5, subdivision (b)(10) and (11). The court set a permanency planning hearing for Gary B. under section 366.26 for September 19, 2007. This petition followed.[2]

DISCUSSION

I

Mother argues the court erred in denying reunification services as to Gary B. because the court did not make a requisite factual finding, and because substantial evidence does not support an implied finding.

Section 361.5, subdivision (b)(10) provides that reunification services may be denied if the court finds, by clear and convincing evidence, that it ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian 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. Subdivision (b)(11) similarly allows denial of reunification services when the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this 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 the parent.

A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.)

Mother does not dispute that the first prongs of section 361.5, subdivision (b)(10) and (11) have been satisfied (i.e., that she failed to reunify with Bradley M., and that her parental rights were terminated as to Jerry C. and Leann H). However, she challenges the determination as to the second prongs; she argues that because there is no express finding that she did not subsequently make a reasonable effort to treat her drug problem, her petition must be granted. She also argues the petition should be granted because there is no substantial evidence to support an implied finding.

Mother cites no authority for the proposition that the trial court was required to make an express finding that she had not made subsequent reasonable efforts to treat her drug problem. A recent Court of Appeal decision has raised considerable doubt as to the propriety of implying findings from an otherwise silent record to justify denial of those services, particularly when the Legislature has not only mandated findings by clear and convincing evidence before applying any section 361.5, subdivision (b), exception but also specifically repeated the requirement of court findings with respect to the no-reasonable-efforts prong of subdivision (b)(10). (In re Albert T., supra, 144 Cal.App.4th at p. 219.) However, that court then went on to hold that even if the trial court did implicitly make the relevant finding, it was not supported by substantial evidence. (Ibid.) The record here amply supports and justifies an implied finding. (See In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [While we agree that the better practice would have been for the trial court to have made a required determination on the record, we perceive no practical purpose which would be achieved by such a result. This is not a case . . . where the trial court expressly refused to make such a finding. Nor is it [a case] where a trial court could not have made such a determination on the record. Substantial evidence would amply have supported such a determination here.].)

Mother has a long history of illicit drug use, which, according to one DCFS report, spans 17 to 20 years. Mother admits she has been using drugs off and on for 10 to 11 years. In 1996, three of mothers children were detained because of physical abuse and mothers drug use. Mother attended a drug rehabilitation course. There is no evidence in the record that after the removal of these three children, mother made any subsequent effort to treat her drug problem until the first time Nicole B. and Gary B. were detained in 2004. She admits to not attending a drug program and to not having a drug support group or sponsor for seven or eight years.

In 2004, Gary B. was born with a positive toxicology for methamphetamine. Mother completed a drug program. Then in late 2006, mother tested positive for methamphetamine and amphetamine. At first she denied using drugs, but later blamed it on a previous sexual assault, an explanation the court did not find credible. At a disposition hearing, mother admitted that the reason she stopped using drugs was because she got caught. Her statement that drug people would have stolen maternal grandmothers jewelry if she had not further demonstrates the extent of her drug abuse. Mother began drug counseling sessions.

There is substantial evidence that mother did not make a reasonable effort to treat her drug problem subsequent to her failure to reunify with Bradley M. and the termination of her parental rights as to Jerry C. and Leann H. Mother made no effort to treat her drug problem for seven or eight years and then attended a drug program and drug counseling only when she was caught using drugs (the first time when Gary B. was born with methamphetamine in his system, and the second time when someone reported her drug use to DCFS). Mother did not self-report or ask for help in treating her drug problem. And during the period between the two programs, there is no evidence of other treatment. Her recent efforts are commendable, but in light of her long history of drug abuse, and the approximate decade that has passed since the removal of her other three children, her attendance of one drug program and one series of drug counseling sessions in response to DCFS involvement does not rise to the level of subsequent reasonable efforts.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] The order regarding Nicole B. is being separately appealed.