N.O. v. Superior Court

Filed 12/5/08 N.O. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; petition for extraordinary writ. Wilfred J. Schneider, Jr., Judge. Petition denied.

Harold Gun Lai, Jr., for Petitioner.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

No appearance for Respondent.

Petitioner N.O. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile courts order denying him reunification services as to his child, M. (the child) and setting a Welfare and Institutions Code^[1]section 366.26 hearing. He argues that the court erred in denying him reunification services under section 361.5, subdivision (b)(10), since he has made a reasonable effort to treat the problems that led to the removal of the childs sibling. We deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 2008, the San Bernardino County Department of Childrens Services (the department) filed a petition on behalf of the child, who was seven years old at the time. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Essentially, the petition alleged that: 1) the childs mother (mother)^[2]left the child at home alone for one or more nights without an adequate safety plan for the childs care and protection; 2)  mother did not provide adequate shelter and provisions for the child; 3) mother had a lifestyle plagued with criminal activity and substance abuse; 4) father knew or reasonably should have known he was placing the child at substantial risk for abuse and neglect when he left her in mothers care; and 5) father left the child with no means of shelter, support or care. The petition also alleged that the childs siblings, R., L., C. (sometimes nicknamed T.), and E., were removed from the custody of mother and father (the parents) from 1991 to 1998 due to drug abuse, neglect, and physical abuse. Reunification services and parental rights were terminated as to E. after the parents failed to complete their case plans.

In the detention report, the social worker reported that the child came to the departments attention on May 23, 2008. Mother had given birth to a baby who tested positive for methamphetamine. When interviewed at the hospital, mother told the social worker that the department had removed four of her children from her care and that she now had the child in her care. The social worker went to mothers home address to find the child. The child said she had been home alone from 3:00 p.m. to 12:00 a.m. the previous night, and then again in the morning. When the social worker asked the child to unlock the security gate, the child said she was locked in the house. The social worker called the police and fire department to help open the door. The home was in a deplorable condition.

The social worker later interviewed father, who was an alleged father. He lived with some friends, not with mother and the child. At first, he said he had last seen the child two or three days ago but later recanted and said, Well[,] maybe it has been a while. When the social worker informed him that the child had been left alone, he replied that he had told mother not to do that again. He indicated there had been previous incidences when his daughter was left alone for one or more days.

The social worker conducted a further investigation and learned that four children had been removed from the custody of mother and father.

The detention hearing was held on May 29, 2008. The court detained the child in confidential foster care.

Jurisdiction/disposition Report and Hearing

The social worker filed a jurisdiction/disposition report recommending that no reunification services be provided to father, as he was an alleged father not entitled to services. In addition, the social worker recommended that reunification services not be provided pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13). The report indicated that father was renting a room in a house but he was planning on moving back to a sober living home. Father stated that he was born with drugs and alcohol in his system and that he began using drugs in junior high or high school. Father said he went to the Veterans Affairs (V.A.) Hospital five or six years ago for drug and alcohol treatment. He now works there full time as a housekeeper. Father stated that it felt good to be clean. However, he also admitted he is currently using drugs once in awhile and on the weekends. Father said he currently uses alcohol and speed and has been smoking marijuana.

The social worker also attached reports from the prior dependency cases for the childs siblings. A report dated April 21, 1994, indicated that section 300 petitions were sustained for R. and T. on September 2, 1992, and on May 4, 1993, for L. The parents were ordered on September 2, 1992, and again on May 4, 1993, to participate in reunification services, which included the following requirements: 1) participate in an alcohol/drug abuse program approved by the department and demonstrate abstinence from alcohol/drugs for a period of six months prior to reunification; 2) obtain periodic drug testing; and 3) refrain from inappropriate use of alcohol and/or other intoxicants during visitation. According to the report, neither mother nor father had completed a drug rehabilitation program despite their stated intentions to do so. In July 1993, father asked for help to get in a residential drug treatment program and was referred to Victory Outreach. However, on March 14, 1994, he told the social worker he did not want to go to a residential treatment program. Father also failed to submit to regular drug testing, despite repeated instruction to do so. At the hearing held on December 2, 1994, reunification services as to R., T., and L. were terminated. The court eventually ordered legal guardianship for all three of them.

A section 300 petition was filed for E. on March 25, 1996, alleging that father suffered from a substance abuse problem that interfered with his ability to parent, and that he had his last three children removed from his custody because of his substance abuse and severe neglect of the children. Fathers case plan again included the requirements that he participate in an alcohol/drug abuse program and demonstrate abstinence from alcohol and drugs for a period of six months prior to reunification, obtain periodic drug testing, and refrain from the inappropriate use of controlled substances during visitation. At the six-month hearing for E. on October 30, 1996, the court found that father had not participated in his services; it then terminated reunification services and set a section 366.26 hearing. The court terminated the parental rights of both father and mother as to E. on August 11, 1997.

The jurisdiction and disposition hearing in the instant case was held on June 19, 2008, but was continued. A contested jurisdiction hearing was held on August 28, 2008. Father was called to testify. He testified that he was present at the childs birth, was listed on her birth certificate, and that he had held her out as his daughter since birth. He further testified that he used to have a drug problem, that he went to the program at the V.A. Hospital for one year and eight months, five or six years ago. He said he still currently goes to the program there. The department agreed to strike the reference to R. and L. in the petition. The court then found the allegations in the petition true and confirmed the dispositional hearing.

A contested dispositional hearing was held on September 2, 2008. The department stipulated that father was a presumed father but still recommended that no reunification services be provided to him, based on the termination of services with the childs sibling, E. Father testified again. He testified that his other children were removed from him because he did not finish his case plan. He stated that when the child was two years old in 2002, he and mother separated and he entered a drug program at the V.A. Hospital on his own. The program lasted for a year and eight months, and then he followed up for six months. Father continued to go to the hospital for Alcoholics Anonymous (AA) meetings and other groups. He thought the program helped him a lot. On cross-examination, father testified that he was currently under treatment at the V.A. Hospital. He had admitted himself there three weeks prior to the disposition hearing. When asked about his last enrollment in the drug program prior to three weeks ago, father could not provide a clear answer. He said, Well, its almost like I was in treatment all the time. I work there, and I get to see the supervisors that I went there with. He saw the doctors every day. When asked why he re-enrolled, he said he felt weak and very angry.

Father testified that he recalled telling the social worker he still used marijuana, but said he no longer used it. He said the last time he used it was when the child was removed from him, but then he said the last time he used it was when he had to undergo the paternity testing. (The record shows that the court ordered paternity testing on July 17, 2008. ) Father also admitted he used speed maybe three or four months, or possibly one year, prior to the hearing. Although he could not recall exactly the last time, he confirmed that it was some time after he completed the drug treatment at the V.A. Hospital.

The court found that: 1) a court ordered termination of reunification services for siblings of the child because father failed to reunify with them after they had been removed from father pursuant to section 361, and that father had not subsequently made a reasonable effort to treat the problems that led to the removal ( 361.5, subd. (b)(10)); 2) fathers parental rights as to the childs sibling, E., had been permanently severed, and father had not subsequently made a reasonable effort to treat the problems that led to the removal ( 361.5, subd. (b)(11)); and 3) father has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during the three-year period immediately prior to the filing of the current petition, or has failed or refused to comply with a program of drug and alcohol treatment required by the family case plan on at least two prior occasions, even though the programs identified were available and accessible. ( 361.5, subd. (b)(13).) Thus, the court declared the child a dependent of the court, denied father reunification services, and set a section 366.26 hearing.

ANALYSIS

The Court Properly Denied Reunification Services and

Set a Section 366.26 Hearing

Fathers sole contention on appeal is that the court erred in finding that he had not made reasonable efforts to treat the problems that led to the termination of his prior reunification services with regard to the childs siblings, and thus, erroneously denied him services under section 361.5, subdivision (b)(10). Father contends that beginning in 2002, he made efforts to treat the problems that led to the removal of the childs siblings in the mid-1990s by completing one year and eight months of treatment with the V.A. drug program and by attending followup counseling thereafter. He further asserts that the V.A. program helped him recognize and deal with problems that led to his drug use and that it helped him obtain employment at the V.A. Hospital. Finally, he argues that the V.A. treatment helped him by the fact that he recognized his recent relapse [and] he sought further treatment through the VA. We conclude that the court properly denied father reunification services.

A. Standard of Review

In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.] (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)

B. The Evidence Was Sufficient

Subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services may be bypassed altogether. These bypass provisions represent the Legislatures recognition that it may be fruitless to provide reunification services under certain circumstances. [Citation.] (Francisco G., supra, 91 Cal.App.4th at p. 597.) Specifically, [r]eunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence, any of the following: [] . . . [] (10) That the court 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, 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. ( 361.5, subd. (b)(10).)

Here, the evidence showed that a section 300 petition was filed regarding the childs sibling, E., on March 25, 1996. It alleged that father suffered from a substance abuse problem that interfered with his ability to parent, and that he had his last three children removed from his custody because of his substance abuse and severe neglect of the children. Fathers case plan included the requirements that he participate in an alcohol/drug abuse program and demonstrate abstinence from alcohol and drugs for a period of six months prior to reunification, obtain periodic drug testing, and refrain from the inappropriate use of controlled substances during visitation. At the six-month hearing, the court found that father had not participated in his reunification services and terminated them.

Moreover, the evidence clearly demonstrated that father had not subsequently made a reasonable effort to treat the problems that led to E.s removal. Despite having his children removed from his custody in 1992, 1993, and 1996, father still refused to seek treatment for his substance abuse issues. It was not until 2002 that father entered a drug treatment program at the V.A. Hospital. He participated in the program for a year and eight months, followed by six months of aftercare. Despite this treatment, father still uses drugs. He admitted to the social worker that he currently uses speed, marijuana and alcohol once in awhile and on the weekends. Although, at the disposition hearing in the instant case, father said he no longer used marijuana, he admitted that he used marijuana within the four months prior to the hearing and that he used speed at least within a year of the hearing. Significantly, father also testified that he is currently under drug treatment at the V.A. Hospital and that he had admitted himself there three weeks prior to the disposition hearing. By fathers own admission, he still needs treatment for his drug use. By the evidence of his relapse, the record establishes that father failed to make a reasonable effort to treat the problems that led to the removal of the child. (See In re Jasmine C. (1999) 70 Cal.App.4th 71, 74-76.)

In view of the evidence, the juvenile court could easily conclude that father had not made a reasonable effort to treat the problems that led to removal of the childs sibling and that it was not in the best interests of the child to provide father with reunification services.

2. Father Has a History of Extensive, Abusive, and Chronic Drug Use

The court also denied reunification services under section 361.5, subdivision (b)(13), although father ignores this fact in his writ petition. That section provides that reunification services need not be provided if the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has failed or refused to comply with a program of drug or alcohol treatment on at least two prior occasions. ( 361.5, subd. (b)(13).)

The court here found true the allegation that father has a long history of substance abuse. Father told the social worker that he was born with drugs and alcohol in his system and that he started to use drugs in junior high or high school. He admitted to the social worker that he still uses drugs and alcohol, and he testified that he is currently under drug treatment at the V.A. Hospital. Furthermore, the evidence shows that father failed to participate in two court ordered drug treatment programs during the dependency proceedings of R., T., and L., and again during the proceedings for E.

The court needed only to find clear and convincing evidence of one of the provisions of section 361.5, subdivision (b) in order to deny father reunification services. We conclude there was sufficient evidence to support the courts order denying services to father.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.

^[2] Mother is not a party to this appeal.