Elaine A. v. Super. Ct.

Filed 8/15/07 Elaine A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 relief. Robin Miller Sloan, Judge. Petition denied.

Law Offices of Alex Iglesias, Los Angeles Dependency Lawyers, Inc., Michelle L. Robel and Jason Steinberg, for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Associate County Counsel, for Real Party in Interest.

* * * * *

Elaine A. (mother) filed a petition for extraordinary relief, pursuant to California Rules of Court, rule 8.452, contending that the juvenile courts order denying her reunification services and setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing for her son, Ruben V. (Ruben), was an abuse of discretion because it is in Rubens best interest that she receive reunification services. In addition, mother argues that the juvenile court failed to properly consider Rubens sibling relationships. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has been involved in dependency court proceedings since 1998, when the Department of Children and Family Services (DCFS) detained her oldest five children, Rubens half-siblings, due to her substance abuse and neglect. The children were declared dependents, mother ultimately failed to reunify with them, and her parental rights were terminated. Prior to April 2006, DCFSs last involvement with mother had been to investigate two emergency room referrals in February 2004, in which DCFS found an allegation of physical abuse of Ruben to be unfounded, and allegations of neglect and sexual abuse to be inconclusive.

In April 2006, five-year-old Ruben and his youngest two half-brothers, Raymond, age two, and Richard, age one, came to DCFSs attention via an anonymous report that mother abused methamphetamine and alcohol and neglected and verbally abused the three children. Raymond and Richard were the alleged children of Eddie C., against whom mother had a domestic violence restraining order, but who often babysat the children at mothers hotel room. Rubens father was reportedly deceased.

Due to mothers history, DCFS offered family maintenance services. In late June 2006, mother signed a voluntary family maintenance agreement. The agreement required her to participate in counseling and parenting education. She failed to do so. In mid-August 2006, DCFS received another anonymous referral that alleged that the children continued to be victims of mothers neglect and abuse, that she persisted in abusing drugs and alcohol, and that mother and Eddie C. dealt drugs from mothers hotel room. Mother and three children were homeless by mid-September 2006. A welfare worker assisted mother in locating and arranging for temporary shelter, but resources were limited due to the family situation, three young children and mothers pregnancy.

In early October 2006, Eddie C. left Raymond and Richard in their paternal grandfathers care, without making a plan for them. After two weeks, the grandfather contacted DCFS. Prior to Eddie C. leaving Raymond and Richard with the grandparents, the grandparents took the children nightly, so they would not have to be on the street overnight with their parents.^[2] The grandfather did not know Eddie C.s whereabouts, and thought that mother and Ruben might be living in a shelter. Mother had not called or visited Raymond and Richard since Eddie C. had dropped them off. The familys DCFS social worker left several messages for mother on her cell phone and through her welfare worker, but received no response.

On October 19, 2006, DCFS sought a detention order from the dependency court on behalf of the three children. The juvenile court found a prima facie case for detaining Ruben and his half-brothers, and issued a protective custody warrant for Ruben and an arrest warrant for mother. The juvenile court ordered that Ruben and mother be immediately brought before it when they were found.

Rubens half-brothers were placed with their paternal grandparents. The grandparents stated that they were willing to assume long-term custody of their grandchildren, but could not take custody of a third child. After placement, Eddie C. contacted the boys twice weekly by telephone and visited twice. Mother continued to have no contact with her sons. DCFS persisted in its unsuccessful efforts to locate her.

Mother gave birth to her eighth child, Roberto, in December 2006. Because mother and Roberto tested positive for methamphetamine and mother was homeless, the hospital called DCFS on Robertos behalf. When contacted at the hospital, mother professed not to know Rubens whereabouts. The following week, Ruben was finally located when a paternal uncle informed DCFS that the child was in his care. Because no relative caretakers were identified who could take Ruben, he was placed in a foster home. During Rubens first six weeks in placement he reportedly hoarded food, shoplifted, destroyed property, and hurt animals.

In a late January 2007 interview, mother reported that she did not have a stable residence. She repeatedly and adamantly denied having a drug problem, but requested that the DCFS social worker locate a bed for her in an inpatient drug treatment facility. The social worker agreed to look into mothers history of drug use, and called her a few days later, agreeing that she needed inpatient drug treatment. The social workers subsequent messages on mothers cell phone went unanswered. On April 8, 2007, mother was arrested for possession of methamphetamine for sale.

On May 2, 2007, the juvenile court adjudicated a first amended petition and held a contested disposition hearing. The juvenile court received DCFSs detention, jurisdiction and disposition, and interim review reports into evidence. Mother appeared, but offered no evidence.

The juvenile court found that Ruben, Raymond, and Richard were children described by section 300, subdivision (b), and found that they were at risk of harm due to mothers failure to protect them, as evidenced by her current and 13-year history of substance abuse and her failure to reunify with her five oldest children.

During the dispositional phase of the hearing, mother and Rubens counsel argued that she should be provided with reunification services because she had been Rubens parent for six years, Ruben was part of a sibling group, and he had no one else.

The juvenile court declared Ruben and his two younger brothers court dependents, offered reunification services to Eddie C., denied services to mother,^[3]and set a section 366.26 hearing for Ruben. The juvenile court ordered DCFS to contact a parental aunt and uncle and maternal grandparents regarding the possibility of placing Ruben, and ordered DCFS to facilitate overnight visits for Ruben with his half-brothers.

DISCUSSION

Section 361.5, subdivision (b)(10) and (11) provide, insofar as is relevant, that reunification services need not be provided to a parent when the juvenile court finds by clear and convincing evidence that the juvenile court terminated reunification services or parental rights for any half-siblings of a child, and the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the half-siblings from the parents custody. Subdivision (b)(13) provides that the juvenile court need not provide reunification services if it finds that the 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 the child to the courts 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. ( 361.5, subd. (b)(13).)

Section 361.5, subdivision (c), provides that the court shall not order reunification services for a parent described in section 361.5, subdivision (b)(10)(11) and (13), unless it finds, by clear and convincing evidence, that reunification is in the best interest of the child.

We review an order denying reunification services under section 361.5. subdivision (b) for substantial evidence to support the ruling. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)

It is undisputed that mother failed to reunify with her five oldest children and that their dependencies were caused by her drug abuse. It is similarly undisputed that mother failed to engage in and complete a substance abuse program, and that she continued to abuse methamphetamine even after Ruben was ordered detained, as shown by Robertos positive drug screen two and a half months later.

Mother does not dispute that she is a parent described in section 361.5, subdivision (b)(10)(11) and (13). She contends, however, that she provided the juvenile court with clear and convincing evidence that it would be in Rubens best interests to provide her with services. There is no such evidence. The petition quotes argument at length, but argument is not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414.) The only evidence that mother cites shows that Ruben lived with her for six years before he was placed in foster care and no relatives have offered to make a home for him. This falls far short of a clear and convincing showing. Mother refused to engage in the counseling and parenting education she had agreed to as part of DCFSs family maintenance program in the spring and summer of 2006. During the six years Ruben was in his mothers care he was subjected to an environment of substance abuse, transience, and domestic violence. That Ruben hoarded food, destroyed property, and was cruel to animals when put in placement speaks volumes about the effect of mothers parenting during that six-year period.

Mothers second contention, that the juvenile court failed to consider sibling relationships, is refuted by the record. DCFS attempted to have Ruben placed with his half-brothers at their paternal grandparents home, but the grandparents could not accommodate an additional child. On multiple occasions mother failed to provide DCFS with contact information concerning any other relatives with whom Ruben could be placed. Moreover, the juvenile court ordered DCFS to investigate the maternal grandparents and paternal aunt and uncle for possible placement, and ordered DCFS to facilitate visits between Ruben and his half-brothers. There is literally nothing more that DCFS or the juvenile court could have done.

DISPOSITION

The petition is denied, and the order to show cause is discharged.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

BOREN

________________________, J.

CHAVEZ

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

^[2] It is unclear whether the grandparents took Ruben as well as Raymond and Richard.

^[3] It appears that the juvenile court denied services based on section 361.5, subdivision (b)(10), (11) and (13).