Melissa M. v. Superior Court

Filed 4/8/08 Melissa M. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Melissa M., in propria persona, for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter H. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

The sole issue raised in this writ petition is whether the juvenile court abused its discretion in denying petitioner services to reunify with H. On the facts of this case, we conclude that it did not.

Dependency proceedings were initiated in late July 2007, when petitioner, a 29-year-old mother of two, gave birth to her third child, H. Both H. and petitioner tested positive for methamphetamine and marijuana. H. was taken into protective custody at the hospital by the social services department (department). At the time, neither of petitioners two other children were living with her. Her then 12-year-old daughter L. was living with petitioners mother and petitioners 3-year-old son A., also born drug-exposed, was living with his father.

Petitioner was candid with the department about her drug use. She admitted using marijuana and methamphetamine on a regular basis for 14 years and to having been convicted twice of felony drug possession, which the record reflects occurred in 1998 and 2003. As a result of the 2003 conviction, petitioner was court-ordered to participate in drug treatment. She subsequently participated in four drug treatment programs but did not complete any of them. Her fourth unsuccessful attempt occurred at a residential drug treatment program in early 2007. Petitioner claimed she was so severely harassed by the other clients that she attempted suicide and was returned to prison. She stated that her depression triggered anxiety which triggered her need for drugs. She was being treated for depressive disorder by the parole psychiatrist and taking medication for it under the psychiatrists supervision.

On August 1, 2007, the department filed a dependency petition on H.s behalf alleging petitioners continuing drug use placed H. at serious risk of harm or neglect. The following day, petitioner enrolled in a random drug testing program. Four days later, petitioners parole officer placed her in a 6- to 15-month residential drug treatment program.

On August 2, 7, and 8, 2007, petitioner tested positive for marijuana and opiates, and on August 8, 17 and 20, 2007, she tested positive for marijuana. Thereafter, she continued to regularly take drug tests but tested negative.

After ordering H. detained pursuant to the petition, the court ordered the department to offer petitioner services. The court subsequently adjudged H. a dependent and set the matter for disposition. H. was placed in foster care.

The dispositional hearing was conducted in December 2007. In the months preceding the hearing, petitioner demonstrated her motivation to change her life and reunite with H. She completed a parenting program, participated in drug treatment and tested negative for drugs. In addition, she was responding well to therapy as evidenced by her decrease in depression and increase in self-care. However, in early October 2007, petitioner returned late from a day outing and was discharged from the drug treatment program for being under the influence of drugs. Nevertheless, petitioner promptly reentered drug treatment and recommitted herself to sobriety.

In addition, petitioner and H. were developing a strong bond during their weekly visitation. Petitioner participated fully in the curriculum and bonding activities provided and applied many positive parenting skills. During their visits, petitioner read and sang to H. and fed her. The interaction was always positive and petitioner displayed the ability to read H.s cues and respond appropriately. According to the childcare specialist who observed the visits, petitioner would be a wonderful mother if given the chance.

In its dispositional report, the department determined that petitioners extensive history of drug abuse and resistance to treatment warranted denial of reunification services under section 361.5, subdivision (b)(13).^[2] Nevertheless, the department concluded it would be in H.s best interest for the court to order family reunification services. The departments rationale was that petitioner had never before been offered family reunification services, petitioner was complying with the services made available to her, and she and H. had formed a bond. In addition, H.s presumed father was not interested in reunifying with H. and H.s foster parents were not willing to offer H. a permanent home.

Counsel for H. filed a statement of contested issues, objecting to the departments recommendation to offer petitioner reunification services. Citing petitioners extensive history of drug use, inability to maintain sobriety, failure to parent H.s siblings and H.s need for permanency, counsel argued the court should find services would not serve H.s best interest. Counsel also informed the court that H.s foster parents were willing to adopt her.

The question of whether H.s foster parents were willing to adopt her was discussed at the contested dispositional hearing where petitioners counsel joined county counsel in arguing for reunification services. Counsel for H. affirmed that the foster parents wanted to adopt H. if adoption were the permanent plan. County counsel stated he was not aware the foster parents wanted to adopt H. and he could not address whether that knowledge would have had impacted the departments recommendation. Following argument, the court continued the matter in progress and set a date for its ruling.

At the contested dispositional hearing, prior to the court issuing its decision, county counsel read a statement provided by the social worker into the record that petitioner felt overwhelmed and frustrated when H. cried during visits. County counsel also offered a mental health assessment of H. conducted subsequent to the previous hearing. The assessing therapist reported that H. was still jittery and easily stimulated as a result of her drug exposure and that she was sometimes fussy and cried during visits with petitioner. However, the therapist observed H. to have a positive reciprocal relationship with her foster mother who the therapist described as very attuned and responsive to H.s cues and signals.

In rendering its decision, the court acknowledged petitioners sincere desire to reunify with H. and the beginning of a mother/child bond. However, citing the arguments raised by H.s counsel, the juvenile court concluded reunification with petitioner would not be in H.s best interest. Accordingly, the juvenile court denied petitioner reunification services and set a hearing to implement a permanent plan. This petition ensued.

DISCUSSION

Petitioner does not deny the applicability of section 361.5, subdivision (b)(13) (subdivision (b)(13)). Rather she asserts that the juvenile court erred in finding reunification services would not serve H.s best interest.

Where subdivision (b)(13) applies, section 361.5, subdivision (c) prohibits the juvenile court from ordering reunification services unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.^[3] The court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accord with this discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Further, in determining whether reunification would serve a childs best interest, proper considerations include the gravity of the problem that led to the dependency, the parents current efforts and fitness as well as the parents history, the strength of relative bonds between the dependent child and both parent and caretakers, and the childs need for stability and continuity. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66-67.) As a reviewing court, we will not reverse a juvenile courts determination concerning a childs best interest absent a clear abuse of discretion. (In re Christopher H., supra, 50 Cal.App.4th at p. 1006.)

Sadly, in this case, petitioners history weighed so heavily in the balance that, despite her best efforts, she was unable to overcome a reasoned conclusion that she was destined to repeat her past. Her history of continuing and untreated drug use bode poorly for successful reunification with H., especially considering her relapse in October 2007, her emotional fragility, and her inability to parent her other two children. Petitioners motivation to reunify and the presence of a mother/child bond, though significant, are insufficient reasons under the circumstances, to give petitioner another chance to gain control of her life and attain sobriety when she has had so many chances to do so. We find no abuse of discretion in the juvenile courts decision.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Harris, J., and Kane, J.

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

^[2] Section 361.5, subdivision (b)(13) provides in relevant part: Reunification services need not be provided to a parent [ ] [who] has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought [the] child to the courts attention .

^[3] Section 361.5, subdivision (c) provides, in pertinent part: The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.