Stacy S. v. Super. Ct.

Filed 9/10/08 Stacy S. v. Super. Ct. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Daniel Zeke Zeidler, Judge. Petition denied.

Law Offices of Timothy Martella, Los Angeles Dependency Lawyers, Inc., Eliot Lee Grossman and Jana Naruse, for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Real Party in Interest.

__________________

Stacy S. (mother) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court denying her family reunification services with her daughter, Siarra S., and setting the underlying dependency proceeding for a hearing pursuant to Welfare and Institutions Code section 366.25.^[1]We deny the petition.

FACTS AND PROCEDURAL HISTORY

Siarra is mothers 10th child. Mother has a 10-year history of drug abuse. She had lost custody of her remaining children either through voluntary relinquishment or because the juvenile court terminated her parental rights.

After giving birth to Siarra, mother was interviewed at the hospital by an individual who was assigned to talk with mother because she was informed that mother had 30 pregnancies and 10 births.^[2] During the interview, mother stated that she did not have custody of any of her children. Although she had been homeless in the past, she was currently living with her boyfriend Juan P. (Mr. P.)^[3] Mother had prenatal care beginning in November 2007 and had tested clean for drugs at that time. She was not tested in the hospital because they had no reason to test her.

On April 9, 2008, the Los Angeles County Department of Children and Family Services (DCFS) conducted an emergency Team Decision Making (TDM), which mother attended with Siarra. Mother stated that since leaving the hospital two days prior, she had broken up with Mr. P. and was staying with friends. However, she had to move out of her residence and might move back in with Mr. P. Mother did not have access to a telephone but gave DCFS Mr. P.s phone number. Mother did not have a job and previously had collected recycled items for money. She stated she had been clean for one year from [m]ethamphetamine and [m]arijuana. She had attended a drug program in the past but did not have proof of it.

The TDM team decided to detain Siarra. DCFS requested that mother submit to on-demand drug testing and mother said she would do so later in the day. (Mother did so, and the test was negative.)

DCFS filed a section 300 petition on April 14, 2008. The juvenile court ordered Siarra detained on that date.

On May 8, 2008, mother enrolled in the Via Avanta Residential Long Term Treatment Program for substance abuse at the Didi Hirsch Community Mental Health Center in Pacoima. In a letter to DCFS dated May 13, 2008, a program counselor confirmed mothers enrollment and stated that all residents were randomly urinalysis drug tested.

A contested adjudication/disposition hearing was held on May 14, 2008. The court first addressed Antonios case, and terminated mothers parental rights as to him. As to Siarra, the court admitted mothers stipulated testimony that she was still enrolled in the program at the Didi Hirsch Center. Mothers counsel argued for dismissal of the petition based on a lack of evidence that mother was currently using drugs. Mother had prenatal care, Siarra was born healthy, and mother had recently tested negative for drugs. Counsel for Siarra and DCFS urged the court to sustain the petition based on mothers 10-year history of drug abuse.

The court sustained the petition as amended to conform to proof. The sustained petition thus read:

b-1 [] The child Siarra [S.s] mother, Stacy M. [S.], has a 10-year history of substance abuse, has failed to complete programs previously and continues to lead an unstable lifestyle, which renders the mother incapable of providing regular care and supervision for the child. . . .  The childs siblings . . . received permanent placement due to the mothers substance abuse. The mothers failure to formally and definitively resolve her substance abuse and the mothers unstable lifestyle endanger the childs physical and[/or] emotional health, safety and well being, creat[ing] a detrimental home environment and [placing] the child at risk of physical and emotional harm and damage.

The court then proceeded to the disposition portion of the hearing. In its report prepared for the disposition hearing, DCFS recommended that mother not receive family reunification services due to her 10-year history of abuse and relapse and the fact that the juvenile court had terminated her parental rights to (at that time) four of her children. Counsel for Siarra also requested that mother not receive reunification services because she had not made reasonable efforts to treat the problems that led to the removal of Siarras siblings. Counsel noted that mother had entered and left several rehabilitation programs, and although mother completed one program nine years before, she still had not been able to stay sober.

The court denied mother reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11).^[4]

DISCUSSION

1. Jurisdictional findings.

Mother first contends the courts order sustaining the petition must be set aside for lack of evidence. We review the courts jurisdictional findings under the substantial evidence standard. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence is evidence that is reasonable, credible and of solid value that would allow a reasonable trier of fact to reach the same conclusion as the juvenile court.
(In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support the courts order, contradicted or not, we must affirm the dependency courts decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

Mother contends there was no evidence she was presently using drugs, and there was no risk of harm to Siarra from what the court characterized as mothers unstable lifestyle. Mother suggests the court punished her for being poor, having been deserted by her babys father during pregnancy, and having broken up with a subsequent boyfriend who, apparently, was not meeting her needs.

Mothers characterization of her situation is simplistic and ignores significant factors that, taken together, would present a risk of serious physical or emotional harm to Siarra. The evidence before the court was that mother had a long history of drug abuse, and her failure to overcome those problems led to her losing parental rights to five of her children. Although mother enrolled in a residential drug treatment program after Siarras birth, at the suggestion of the DCFS social worker, she had been in the program only a few weeks at the time the court sustained the petition. Viewed in the context of mothers long history, her brief period of sobriety was not sufficient to demonstrate that she could maintain a sober lifestyle. Mother had no stable home, no job, and a demonstrated inability to parent any child, let alone a newborn. This evidence supports the courts finding that Siarra would be at risk of physical and emotional harm and damage if released to mother.

2.Failure to offer reunification services.

The juvenile court denied mother reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). Those sections provide that reunification services need not be provided to a parent or guardian if the court finds, by clear and convincing evidence, that the court ordered termination of reunification services for any siblings or half siblings of the child and the parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the other children. The inclusion of the no-reasonable effort clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems. (In re Albert T. (2006) 144 Cal.App.4th 207, 218, citing In re Harmony B. (2005) 125 Cal.App.4th 831, 842.) In Albert T., which mother cites here, the court reversed a juvenile court order in which the court found mother had not made reasonable efforts to conquer the problems that led to her failure to reunify with another child. In fact, the mother had completed several
court-ordered and department-supervised programs specifically addressing the problems that led to the removal of Alberts sibling. (In re Albert T., at p. 220.) That is not the situation here.

The juvenile court in this case amended the petition to state that mother had failed to formally and definitively resolve her substance abuse. Mother opines that the juvenile court in this case appeared to be under the misapprehension that a parent must effect a 100% cure of the problem which resulted in previous removal of a sibling in order to demonstrate that he or she exercised reasonable efforts to treat the problem. Mother cites Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, for the proposition that the reasonable effort to treat standard found in the statute is not synonymous with cure. The mere fact that [the parent] had not entirely abolished her drug problem would not preclude the court from determining that she had made reasonable efforts to treat it. (Id. at p. 1464.)

Mother has mischaracterized the courts intentions. The court had to evaluate whether mother, who had previously been unsuccessful in overcoming her substance abuse problem despite having been given reunification services, had reached a point in her life where she would benefit from such services. The court had to assess the situation in view of mothers history of brief periods of sobriety followed by relapses. Given that history, mothers announcement that she had stopped using drugs on her own was not sufficient. The court was entitled to require a more formal attempt at resolutionnot a cure, but a more formal program and a demonstrated track record that would persuade the court that mother would be able to prevent another relapse. Mothers recent effort at sobriety, while laudable, did not rise to a level sufficient to entitle her to additional reunification services.

DISPOSITION

The petition for extraordinary writ is denied. Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, P. J.

BOREN

We concur:

_________________________, J. _________________________, J.

DOI TODD ASHMANN-GERST

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

^[2] Mothers medical records indicate that she reported 11 miscarriages, one stillbirth, and two elective abortions. Mother surrendered one child at Northridge Hospital under the Safe Haven program. The juvenile court terminated mothers parental rights to four of her children on June 2, 2005. A fifth child, two-year-old Antonio G., was a dependent child of the juvenile court at the time of Siarras detention. The court terminated mothers parental rights to Antonio on May 14, 2008.

^[3] Juan P. is not Sierras father. Mother stated that Siarras father was James S., whom she left because he was abusive. Mother did not know the address of James S.

^[4] Section 361.5, subdivision (b), provides in pertinent part: (b) Reunification services need not be provided to a parent or guardian described in this subdivision 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 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.
(11) That 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.