Michael K. v. Super. Ct.

Filed 9/6/07 Michael K. v. Super. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Father, Michael K., and Mother, Dolly K., are the parents of T.K. In separate writ petitions, which we consider together in this opinion, they argue that there is insufficient evidence to support the juvenile courts conclusion that, by clear and convincing evidence, they fell within the provisions of Welfare and Institutions Code section 361.5, subdivision (b)(10), (b)(11), and (b)(13)^[1]and therefore, were not entitled to reunification services. We conclude that substantial evidence supports the trial courts order and deny the writ petition.

II. FACTUAL AND PROCEDURAL BACKGROUND

A juvenile dependency petition as to T.K. was filed on November 3, 2006, shortly after T.K. was born. The petition, which the court ruled made out a prima facie case under section 300, alleged that, at his birth, T.K. tested positive for amphetamine and methamphetamine. Father knew, or should have known of the mothers substance abuse and failed to protect the child. The petition also alleged that in August of 2004, T.K.s sibling was born with methamphetamine and marijuana in her system. The mother did not complete drug treatment between [that time] and the present, and thus her drug abuse issues have not been addressed. The father lives with the mother and should reasonably be expected to know her habits. The petition also alleged that mother and father have failed to benefit from services enough to adequately protect the child from substantial ri[s]k of suffering serious harm due to the mothers substance abuse. The mother and father were offered services following the detention of the childs siblings and half-siblings. One of the services was regarding Alcohol and Other Drug Services.

The petition also alleged that although Mother claimed to have had prenatal care while pregnant with T.K., the clinic she stated she had visited denied ever seeing Mother for prenatal care there. Furthermore, Mothers vague claim of having had such care in a different place could not be substantiated because Mother could not provide either the name of the doctor or clinic where such care had been given.

T.K. was born precipitously when Mother stepped out of the shower. Father delivered the child himself. A lack of prenatal care places children born precipitously at risk of many complications and even death.

The petition further alleged that in March 2006, Mother and Father lost their parental rights as to H.K., T.K.s sibling. The petition alleged that [t]here is a substantial risk that [T.K.] will be similarly abused or neglected because the parents have failed to adequately address the factors underlying their abuse of [H.K.], namely substance abuse and domestic violence. Further, In April 2006, the court found that Mother had abused or neglected [T.K.]s half-siblings [L.M. and T. M.] . . . There is substantial risk that [T.K.] will be similarly abused or neglected because the mother has failed to adequately address the factors underlying their abuse of [T.M.] and [L.M.], namely substance abuse. Finally, in January 2006, the juvenile court found that Mother abused or neglected [T.K.]s sibling, [L.K.] . . . . There is substantial risk that [T.K.] will be similarly abused or neglected because the mother and father have failed to adequately address the factors underlying their abuse of [L.K.], namely substance abuse.

In its Detention Report of November 6, 2006, the Department stated that Mother told a social worker that, while pregnant with T.K., she had attended prenatal appointments twice weekly or twice bi-weekly. Mother also stated that she had used methamphetamine for the last time three months before T.K. was born and did not know how drugs could have been in his system when he was born. She also told the social worker that she uses an inhaler that could cause her to test positive for amphetamine. In addition, Mother told a social worker that she smokes marijuana twice a day to treat an eating disorder, although she does not have a medical marijuana card authorizing her to do so.

Mother told the social worker that she had been participating in a parenting class for four weeks and had only missed two days of classes. Mother expressed a desire to return to drug treatment. Father informed the social worker that he was participating in an outpatient drug treatment program. Mother and Father stated that they live in a two bedroom apartment and have lived on the property where the apartment is located for seven months.

The social worker investigated the statements made by Mother and Father. The Mobile Medical Clinic could not verify that Mother had regular prenatal care while pregnant with T.K. Mother had been seen on July 12, and on August 16 for reasons unrelated to parental care. In fact, when Mother was asked by staff at the Mobile Medical Clinic where she was receiving prenatal care, Mother said she was receiving such care elsewhere, but that she could name neither the doctor nor the clinic where this was taking place. The medical assistant at the Mobile Medical Clinic stated that he has never heard of an inhaler causing a person to test positive for amphetamine and methamphetamine. The Healthy Moms Program had no chart for any contact with Mother. Father, according to a counselor at Hoopa Human services, was participating regularly in the Intensive Outpatient Program. Mother and Fathers landlord confirmed that they were renting a two bedroom apartment from him, and that for seven months before moving into the apartment, had lived on his property in a mobile camper.

The Department noted in its Detention Report that the mother has been offered services almost continuously since 2004 and has not engaged in AOD [alcohol and other drug] services up to this point. This is mothers fourth child removed by Child Welfare Services and she has none of her children living with her. The father lives with the mother in a small apartment and was not able to keep her from exposing their infant to methamphetamine and was also not able to ensure that mother obtained suitable prenatal care. The mother has an untreated drug problem and the infant will not be safe with her while she is not in treatment. It is highly unlikely that the father will be able to maintain supervision of the infant 100% of the time to protect him from the mother. Like Mother, Father has been offered services since 2004. [F]ather is participating in AOD treatment. . . .

In its Jurisdiction Report dated November 29, 2006, the Department also reported that T.K.s full siblings, H.K and L.K., had already become dependents of the court: H.K. in 2004 and L.K. in 2006. Mother and Father were offered reunification services as to each and failed to comply with their case plans. In early 2006, Mother and Fathers parental rights as to H.K. were terminated; at the time of this case, family reunification services as to L.K. had been terminated because of the parents inability to comply with their case plan.

The report also noted that the reason for removal of the . . . children has been drug use and abuse, domestic violence, homelessness and unaddressed mental health issues. Until recently [Father and Mother] have not participated in reunification services. Just before [T.K.]s birth, the family secured a two-bedroom apartment . . . breaking the cycle of homelessness that they have been under for some time. At this time, there is evidence that [Father] is participating in drug treatment through Hoopa Human Services . . . . Mother had also completed an assessment through Humboldt County Mental Health, although she declined further services through Mental Health and has not attended counseling at Mobile Medical since August.

On November 29, 2006, the court sustained the November 3, 2006 petition, found T.K. to be a child described by section 300, subdivisions (b) and (j) and set the matter for a dispositional hearing on December 13, 2006.

After a number of continuances of the dispositional hearing, the Department filed a Disposition Report on April 13, 2007. The report again noted that Mother has had ongoing problems with drug use, homelessness, mental health issues, and domestic violence. Mother also has developmental disabilities. Father has also had ongoing problems with drug use, homelessness, and domestic violence. These problems have also affected [Fathers] ability to safely parent his child. The Department recommended that T.K. remain with the foster family he had originally been placed with because of Mother and Fathers previous child welfare history and resistance of previous court ordered AOD treatment . . . .

The Department recommended that the court find that Mother and Father fall within three exceptions to the general rule that parents be provided with reunification services. First, the Department noted that, pursuant to section 361.5, subdivision (b)(10), the court had previously ordered termination of reunification services as to siblings or half-siblings of T.K., because of a failure to reunify and Mother and Father had not made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling . . . . Second, under section 361.5, subdivision (b)(11), parental rights as to a sibling or half-sibling had been permanently severed and the parents had not made a reasonable effort to treat the problems that led to removal. Third, under section 361.5, subdivision (b)(13), the parents have a history of extensive, abusive, or chronic use of drugs or alcohol and [have] resisted prior court-ordered treatment for this problem during a three year period immediately prior to the filing of the petition . . . or [have] 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 . . . .

The report noted that the parents had only recently begun to minimally participate in reunification services. The family had secured an apartment in Willow Creek, and there was evidence that Father was participating in drug treatment and Mother had completed a parenting class. Mother has completed a mental health assessment, although she declined further services and had not attended counseling for six months.

Mother had no prenatal care during T.K.s pregnancy, and she had no care in the past with her other children. She lied about this. Mother denied all drug use, as she had during the past, and Father and Mother both denied that Mother had used drugs except for a relapse about three months ago. Neither parent was able to understand that the type of drug and high level of the drug could not be attributed to anything other than the Mother ingesting it. The report stated that [i]t is noteworthy that neither parent is able to admit that [T.K.]s exposures to high levels of amphetamine are due to the Mothers use. This speaks to the parents continuing a pattern [of] denial that has lasted years. This also speaks directly to the parents inability to protect [T.K.] from drug use and abuse. This, along with past history and the Mothers only recently beginning AOD services and not currently addressing her mental health issues, puts [T.K.] at high risk of continued abuse or neglect if left in his parents[] care.

The Department, Mother and Father submitted the matter on the Dispositional report of December 11, 2006, an addenda of January 3, 2007 and February 13, 2007, and a CASA report. The juvenile court held that it had considered all the factors and although the parties are . . . attempting to resolve all the problems they have. . . . I dont think theyve done enough at this point. The court noted that parental rights of [H.K.] were terminated on February 16, 2006 and parental rights as to L.K. were terminated on September 25, 2006.

The court ruled that theres clear and convincing evidence before the Court that the Court has previously ordered termination of reunification services for [T.K.]s brother and sister because the parents failed to reunify with those siblings after they had been removed from the parents. And the parents had subsequently not made any reasonable effort to [address] the treatment problems that led to the removal of the siblings. The court ordered that reunification services not be provided.

This timely writ petition followed.

III. DISCUSSION

Mother and Father argue that there is insufficient evidence to support the juvenile courts conclusion that, by clear and convincing evidence, they fell within the provisions of section 361.5, subdivisions (b)(10), (b)(11) and (b)(13) and, therefore, were not entitled to reunification services. We disagree and, accordingly, deny the petition.. Generally, when a child is removed from his or her parents custody, the parent is entitled to reunification services. (361.5, subd. (a).) However, in a number of situations set out in section 361.5, subdivision (b), the court may bypass reunification services. These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; see also, Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)

Here, the juvenile court ordered bypass of reunification services pursuant to section 361.5, subdivisions (b)(10), (11) (13). Under the statute, [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 of half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the 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 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. [] . . . (13) That the parent or guardian of the child 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.

We review the juvenile courts order for substantial evidence. ( In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) Although the burden of proof is by clear and convincing evidence, we are required only to determine whether there is substantial evidence in the record to support the order. ( Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Under this standard of review, we must draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court. In addition, we review the record in the light most favorable to the courts determinations. Issues of fact and credibility are the province of the juvenile court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We review the evidence as to Mother and Father separately.

First, with regard to Mother, there is substantial evidence to support the juvenile courts finding that Mother was not entitled to reunification services pursuant to section 361.5, subdivisions (10) and (11).^[2] Mothers parental rights as to one of T.K.s siblings have been permanently severed and reunification services as to another have been terminated. The removal of both siblings was due to Mothers ongoing drug problems. Moreover, it is quite clear that the conditions that led to the removal of T.K.s siblings have not been addressed by Mother. As a result of Mothers chronically untreated drug problem, T.K. was born with drugs in his system. Further evidence of the distance Mother has yet to travel in addressing her drug problem is that Mother continues to deny that she used drugs during her pregnancy with T.K. with the exception of a single relapse three months prior to his birth despite the clear evidence of such use immediately prior to

T.K.s birth. The juvenile court did not err in concluding based on this evidence that Mother had not subsequently made a reasonable effort to treat the problems that led to the removal of her older children. Hence, the juvenile court properly determined that mother came within the provisions of section 361.5, subdivisions (b)(10) and (b)(11).

With regard to Father, Fathers parental rights as to one of T.K.s siblings have been permanently severed and reunification services as to another have been terminated. As with Mother, it is quite clear that the conditions that led to those results have not been addressed by Father. Although there is some evidence in the record to indicate that Father is attending to his own drug problems by participating in drug treatment, Father, like Mother continues to deny that Mother was using drugs during her pregnancy with T.K. Fathers inability to protect T.K. from Mother during her pregnancy indicates that Father has not made a reasonable effort to treat the problems that led to removal of T.K.s older siblings.

In sum, we conclude that substantial evidence supports the juvenile courts determination to bypass reunification services for mother.

IV. DISPOSITION

The petition for extraordinary relief is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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

^[2]Because the record contains substantial evidence to support the courts bypass of reunification services under section 361.5, subdivisions (10) and (11), we do not consider the substantial evidence in support of its finding under section 361.5, subdivision (13).