W.E. v. Super. Ct.

Filed 2/5/09 W.E. v. Super. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition denied.

W.E. seeks writ review of juvenile court orders denying reunification services regarding her daughter, Ashley E., and setting a hearing under Welfare and Institutions Code section 366.26.[1] W. argues that the court erred in denying her reunification services. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2008, police officers arrested W. after she was seen naked in the front yard of her home spraying herself with a water hose and running in and out of traffic. When the police arrested W., she exhibited signs of delirium and swung a wooden stick at the officers. It was later determined that W. was under the influence of methamphetamines at the time.

The San Diego County Health and Human Services Agency (Agency) petitioned on behalf of seven-year-old Ashley under section 300, subdivisions (b) and (g), alleging that Ashley was at risk of substantial harm because of W.'s drug use. Ashley had been the subject of two previous dependency proceedings. W.'s substance abuse and addiction was a factor in both proceedings.

W. acknowledged that she had relapsed on drugs one month before her arrest. She admitted that during that month, she had used drugs about two or three times a week, while her children were present in the home. Ashley confirmed W.'s relapse and told social workers that W. drank two or three beers each day, and that W. started acting "weird" about a month before her arrest.

W. admitted that she started abusing drugs when she was 13 years old. She stated that she had been clean for the past two years, with one relapse involving alcohol in October 2007. In July 2008, she used her rent money to buy methamphetamines and started abusing drugs again. The social worker reported that Ashley had been a dependent from December 6, 2002 through December 21, 2004, and again from February 4, 2006 through April 30, 2008, due to W.'s drug use and addiction. W. also had a lengthy history with child protective services. The social worker believed that despite having received extensive services in the past, W. continued to demonstrate an inability to use coping skills to remain free from drugs. She also did not show an ability to adequately protect Ashley.

The court held a detention hearing and found the allegations of the petition to be true. The court declared Ashley a dependent child and placed her in out-of-home care.

At a jurisdiction and disposition hearing, the court heard testimony from social worker Stephanie Bailey and received in evidence an Indian expert declaration from Phillip Powers.[2] Bailey recommended that reunification services not be offered to W. Bailey acknowledged that there is an attachment between Ashley and W. However, Bailey believed that W.'s drug use placed Ashley at risk of harm. Further, Ashley's behaviors have been negatively impacted as a result of W.'s recent relapse.

In his declaration, Powers represented that even if W. were to receive additional services and complete them, she could still relapse and cause harm to Ashley in the future. He found W.'s situation to be a "very extremely high risk case . . . ."

After hearing testimony and reviewing the reports submitted by the Agency, the court denied services to W. under section 361.5, subdivision (b)(13) and set a section 366.26 selection and implementation hearing.

W. petitions for review of the court's order. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded, and the parties waived oral argument.

DISCUSSION

I

The Court Had Sufficient Evidence to Deny Reunification Services

Under Section 361.5 (b)(13)

W asserts that the court erred by denying her reunification services under section 361.5, subdivision (b)(13).

An order denying services is reviewed to determine whether there is substantial evidence in the record to support it. (In re James C. (2002) 104 Cal.App.4th 470, 484.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Section 361.5, subdivision (b)(13) provides that services need not be provided when the court finds by clear and convincing evidence that a 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 court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."

A trial court may find that a parent has resisted prior court-ordered treatment when the parent refuses to participate in a treatment program or when the parent attends a program but continues to abuse drugs or alcohol. (See Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) "The parents also can passively resist by participating in treatment but nonetheless continuing to abuse drugs and alcohol, thus demonstrating an inability to use skills and behaviors taught in the program to maintain a sober life." (Ibid.) As a result of resisting treatment, the parent has demonstrated that reunification services "would be a fruitless attempt to protect the child because the parent's past failure to benefit from treatment indicates that future treatment also would fail to change the parent's destructive behavior." (Ibid.)

Ashley has been the subject of lengthy dependency proceedings on two prior occasions because of W's drug abuse. During the first dependency, W. participated in services for about two years before reunifying with Ashley. W. suffered a relapse, and Ashley became a dependent for the second time. After another two years of services, W. reunified with Ashley in April 2008. About two months later in June 2008, W. relapsed again, and the police arrested her for being under the influence in July 2008. W. admitted to abusing methamphetamines about two or three times a week in the month before her arrest, and failing to seek assistance. More than five years after the first dependency and after many years of participating in services, W.'s repeated relapses and ongoing drug abuse demonstrate her resistance to treatment. Under these circumstances, it was not unreasonable for the court to find that she has resisted prior court-ordered treatment for her drug problem within the meaning of section 361.5, subdivision (b)(13). There was substantial evidence to support denying services under section 361.5, subdivision (b)(13).

II

The Court Did Not Abuse Its Discretion in Determining That It Was Not in Ashley's Best Interests to Provide Services to W.

W. contends that even if the evidence was sufficient to support denying her services, the court erred because providing services was in Ashley's best interests.

Section 361.5, subdivision (c) provides that a court shall not order reunification services for a parent described in subdivision (b)(13) unless it finds by clear and convincing evidence that reunification services are in the child's best interests. A reviewing court will not disturb a court's ruling in a dependency proceeding " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary[ or] capricious . . . determination [citations]." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

W. has not shown that the court abused its discretion in denying her services. She did not present any evidence to show that it would be in Ashley's best interests to offer W. services again, and thereby delay providing permanency for Ashley. W. admitted that she used methamphetamines only two months after she reunified with Ashley. Her relapse in July 2008 resulted in her arrest and Ashley's detention. Further, the social worker noted that Ashley's behaviors had been negatively impacted after W.'s latest relapse. The social worker believed that a further escalation of negative behaviors could be expected if Ashley were subjected to another round of dependency proceedings. The court did not abuse its discretion in not finding that despite the findings under section 361.5, subdivision (b)(13) it would be in Ashley's best interests to offer services.

DISPOSITION

The petition is denied.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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

[2] Ashley is a registered member of the Bad River Band of Lake Superior Chippewa Indians.