In re Christopher V.-G.

Filed 1/6/10 In re Christopher V.-G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Reversed.

Crystal H. appeals an order of the juvenile court denying her reunification services and setting a hearing under Welfare and Institutions Code section 366.26. She argues that the court erred by not ordering reunification services for her under section 361.5, subdivision (b)(10) because the evidence showed that she had made reasonable efforts to address the issues surrounding the dependency, and that reunification was in the best interests of Christopher, Luis and Bethany (together the minors.) We reverse the court's order.

INTRODUCTION

Crystal is the mother of six children. All of Crystal's children have been removed from her custody. After failing to reunify with three of her children, two of them entered into a permanent plan of guardianship, and the third child was reunited with his biological father.

This appeal addresses the dependency proceedings surrounding Crystal's remaining three children: Christopher, Luis and Bethany. Following the dependency proceedings in this case, the trial court declared all three minors dependents and ordered reunification services for the fathers of Christopher and Luis. The court denied reunification services for Crystal under section 361.5, subdivision (b)(10). Crystal seeks reversal of the court's order.

FACTUAL AND PROCEDURAL BACKGROUND

A. The 2000 dependency case

In July 2000, the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of then two-year-old Christopher, one-year-old Andrea and newborn Arthur. The petitions alleged that Crystal was not able to provide adequate care for the minors. She had tested positive for methamphetamines and her daughter, Andrea, had also tested positive for methamphetamines. The court offered Crystal reunification services, but she did not comply with her case plan. The court terminated services and in September 2001, the court selected a permanent plan of guardianship for the three children.

B. The 2002 dependency case

Crystal gave birth to Luis in March 2002. Crystal admitted to smoking methamphetamines during her pregnancy with Luis. The court took jurisdiction over Luis and placed him in a foster home. Crystal received reunification services for 18 months. Crystal complied with services and entered into a residential treatment program. Crystal progressed to unsupervised visits with Luis and eventually, Luis was placed in Crystal's custody for a 60-day trial visit. Crystal also started visiting Christopher, Arthur and Andrea.

In August 2003, Christopher's guardians reported that they were no longer willing to take care of Christopher. Crystal petitioned the court for modification and sought custody of Christopher. The court placed Luis and Christopher in Crystal's care, and ordered family maintenance services. Six months later, the Agency reported that the boys were doing well in Crystal's custody. Crystal was pregnant with her fifth child, but was receiving good medical care and had an extended support system in place. In March 2004, the court terminated its jurisdiction and granted Crystal sole custody of Christopher and Luis.

C. The 2006 dependency case

In January 2006, the Agency filed petitions on behalf of then eight-year-old Christopher, three-year-old Luis and one-year-old Ryan. The petitions alleged that Luis had arrived at school with bruises on his face, ears, back, chest and shoulders. The Agency asserted that Luis could have sustained these injuries only as a result of unreasonable or neglectful acts by a parent. Crystal denied physical abuse and reported that Luis had fallen down the stairs. Crystal admitted that she did not obtain immediate medical treatment for Luis. Luis's treating physicians reported that Luis's injuries were inconsistent with a fall. Christopher, Luis and Ryan were taken into protective custody.

Crystal participated in a psychological evaluation in September 2006. According to the assessment, Crystal denied that she had relapsed and claimed to have been sober since 2002. She had a sponsor and continued to participate in Narcotics Anonymous meetings. Crystal revealed that she began to abuse drugs when she was around the age of 14. She was 15 years old when she started using methamphetamines. She used methamphetamines intermittently for about seven years, and admitted that she had exposed both Andrea and Luis to methamphetamines when she was pregnant with them. Crystal had participated in an inpatient drug treatment program for about one year, and then in an aftercare program following her release from the program.

The evaluators diagnosed Crystal as suffering from a drug dependence, which was in full remission, and also from a depressive disorder. They recommended that she continue to participate in services and opined that Crystal would benefit from therapy, parenting classes and participation in Narcotics Anonymous meetings. The evaluators noted that Crystal had acknowledged to them that her behavior and her substance abuse problems had caused the children to suffer. However, she continued to deny having physically abused Luis. The evaluators believed that Crystal's unwillingness to recognize that she had abused Luis suggested that she might not understand that her behavior toward Luis was inappropriate, thereby placing him and his siblings at risk of future abuse.

In April 2006, the court declared Christopher and Luis dependents, placed them in foster care, and ordered Crystal to participate in services. Crystal cooperated with the Agency during the subsequent 12-month reunification period. She completed a drug treatment program and participated in therapy. The social workers arranged for in-home services for Crystal, and in April 2007, the court ordered that Christopher and Luis be returned to her for a 60-day trial visit.

The Agency submitted a 12-month review report recommending that Christopher and Luis be returned to Crystal's custody under family maintenance services. The social workers noted that Crystal had complied with the case plan, that she had visited the children regularly, and that she was motivated to reunify with them. The social workers reported that Christopher and Luis had some aggression issues. The boys' therapist reported that they missed Crystal and wanted to go home.

A May 2007 addendum report contained allegations that Crystal had hit Christopher, pulled his hair, and attempted to run him over with her car. Christopher denied the abuse, but told the social workers that Crystal was doing bad "stuff," smoking cigarettes and using drugs. With respect to the allegations that Crystal had attempted to run over Christopher with her car, witnesses at Christopher's school reported that Christopher tried to run away from home that morning after having a fight with Crystal, and that Crystal used her car to block him. Crystal denied that she was using drugs and claimed that she had been sober for almost five years.

At the 12-month review hearing, the court placed Christopher and Luis with Crystal and ordered six months of family maintenance services. Crystal remained compliant with her case plan and in November 2007, Christopher and Luis were placed in Crystal's custody. The Agency recommended terminating jurisdiction over the boys.

D. The 2007 dependency case

In November 2007, the Agency detained Christopher and Luis after police found methamphetamines in the family home and Crystal tested positive for methamphetamine use. Christopher and Luis submitted to drug tests at the time of their removal, and their tests were negative. Crystal and the boys had been renting a home that belonged to Crystal's boyfriend. The boyfriend was on parole for possession of methamphetamine. A high school friend of Crystal was also living in the home. The court placed the minors in out-of-home care and ordered reunification services for Crystal.

Over the next six months, Crystal remained compliant with her case plan. She tested negative for drug use and was living in a transitional home. During this time, Crystal gave birth to Bethany. By December 2008, Christopher and Luis had been returned to Crystal's care. Crystal completed her outpatient drug treatment program, tested negative on all drug tests, and participated in therapy. The court terminated jurisdiction over Christopher and Luis.

In March 2009, the Agency filed petitions on behalf of 11-year-old Christopher, six-year-old Luis and one-year-old Bethany. The petitions alleged that Crystal abused methamphetamines between January and March 2009. The petitions also alleged that Bethany had tested positive for methamphetamines and that the boys were at substantial risk of suffering similar harm.

According to the Agency's report, the police had secured a warrant to search Crystal's home. Upon arrival, the officers saw Crystal throwing away a container in which authorities later found more than three grams of methamphetamine. A scale and packaging material were also found. The police arrested Crystal and her brother. The children were present during the arrests. Christopher reported that his uncle had been living with the family for about two weeks.

Crystal admitted to having used methamphetamines on about five occasions since January 2009. She claimed that she had been under a lot of stress, and said that she had recently had an abortion. She acknowledged that police had found the drugs in her possession, and admitted that at the time of her arrest, she intended to use the drugs.

Social worker Stephanie Stevenson reviewed Crystal's case and recommended that services be denied. Crystal had graduated from multiple treatment programs in the last nine years, but had relapsed less than one month after the last dependency case had closed, showing that she had not benefitted from services in any significant manner.

Stevenson met with Christopher's father, Mr. V. Mr. V. wanted custody of Christopher. He asked that, in the meantime, Christopher be placed with a paternal aunt. Mr. V. started to visit and call Christopher on a regular basis. The social worker also met with Hector R., Luis' father. Hector was on probation and was required to drug test. He wanted to participate in services, and was willing to do whatever he could to obtain custody of Luis.

About one week before the jurisdiction and disposition hearing, Stevenson reported that Bethany's biological father, Rafael S., had recently been identified through a paternity test. Before the Agency identified Rafael as the biological father, Hector A. had been identified as Bethany's alleged father. Both Hector A. and Rafael were serving time in prison. Stevenson had not had the opportunity to meet with Rafael in prison.

According to the Agency's reports, the minors were in good physical health and did not suffer from developmental delays. Christopher reported that he was not happy in his foster placement. He wanted to live with his siblings and his mother. Christopher expressed his concerns that he would not be adopted and said that he did not want to be adopted by anyone. Luis reported feeling sad about Crystal's arrest. He did not understand why he could not live with his mother. He admitted that he missed Christopher and Crystal. He was happy in his foster placement, but wanted to go home to Crystal. Luis's teacher also reported that Luis missed his mother.

A paternal aunt expressed an interest in fostering the minors and possibly entering into a guardianship arrangement or adopting the minors. However, she had five children in her home and needed to discuss the matter further with her husband. Bethany had been placed with a maternal uncle. The maternal uncle stated that he was interested in adopting Bethany, but not the boys.

The court held a jurisdiction and disposition hearing at which social worker Stevenson and Crystal testified. Stevenson said that Crystal had shown a pattern of relapsing after treatment. Crystal had received services for about nine years and still had not reunified with three of her six children.

Crystal testified that she had remained sober from June 2002 through November 2007. In November 2007 she had a positive drug test after taking the drug "Adderall," an amphetamine pill. Crystal previously reported that she had taken the pill in order to lose weight. Crystal further testified that she completed a second drug treatment program in November 2008, and admitted she relapsed in January 2009. She entered a drug rehabilitation center, took classes at the center, and attended Narcotics Anonymous meetings three times a week.

After considering the evidence presented at trial, the court sustained the petitions, declared the minors dependent and placed them in out-of-home care. The court denied reunification services under section 361.5, subdivision (b)(10) for all three siblings. The court ordered reunification services for Christopher's father and for Luis's father, and scheduled a six-month review hearing. The court did not order or deny services for Bethany's alleged or biological fathers and instead, the court continued the hearing concerning Bethany to a later date. Crystal timely filed a notice of appeal.

DISCUSSION

I.

Denial of Reunification Services Pursuant to Section 361.5, Subdivision (b)(10)

Crystal contends that the evidence is insufficient to support the court's order denying her reunification services under section 361.5, subdivision (b)(10). She asserts that she made reasonable efforts to treat her substance abuse problem. She further asserts that the minors' best interests would be served by providing her with services. We conclude that although there is sufficient evidence to support the court's finding that Crystal had not made reasonable efforts to prevent the removal of the minors, declining to provide her services under the particular circumstances of this case would not serve the best interests of the minors.

A. Relevant law

Pursuant to section 361.5, subdivision (a), "[w]hen a child is removed from the custody of his parents, reunification services must be offered to the parents unless one of several statutory exceptions applies." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) However, the juvenile court need not provide a parent reunification services if it finds, by clear and convincing evidence, that any of the exceptions set forth in section 361.5, subdivision (b) apply. ( 361.5, subd. (b).) In Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, the California Supreme Court stated, " 'Once it is determined one of the situations outlined in [section 361.5,] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]' "

The provision at issue in this case, section 361.5, subdivision (b)(10), authorizes the denial of services based on a parent's previous failure to rehabilitate. Section 361.5, subdivision (b)(10) 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 . . . of the child because the parent or guardian failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent or guardian . . . 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 the removal of the sibling . . . ."

We affirm an order denying reunification services if there is substantial evidence to support the order. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) "In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]" (Ibid.; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) The party challenging the ruling of the trial court has the burden to that show the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B. Analysis

1. There is substantial evidence to support the trial court's denial of services under section 361.5, subdivision (b)(10)

Crystal concedes that the first prong of section 361.5, subdivision (b)(10) was establishedi.e., that the court had previously terminated reunification services for Christopher, Luis and Bethany's siblings after Crystal failed to reunify with the siblings. The remaining issue is whether there is sufficient evidence to support the court's finding that Crystal had not made a reasonable effort to treat the problems that led to the removal of the minors' siblings from her care, under the second prong of section 361.5, subdivision (b)(10).

The trial court denied reunification services for Crystal after finding, by clear and convincing evidence, that the exception under section 361.5, subdivision (b)(10) applied. Crystal argues that the court erred by denying her reunification services because the record shows that she made reasonable efforts to treat the substance abuse problem that led to the removal of the minors' siblings. Crystal points specifically to the fact that she participated in and completed drug treatment and parenting education programs. Crystal admits that she has a substance abuse problem, and acknowledges that she relapsed as recently as January 2009. However, she maintains that she understands the circumstances that triggered her relapse, that she intends to avoid those situations, and that she now has a safety plan in place.

While Crystal has participated in many services that have been offered to her during the past several years, despite the fact that she has had many opportunities to address her drug addiction, the record shows that she has not made reasonable efforts to conquer her drug problem. As noted, the minors' siblings were removed from Crystal's care due to her drug abuse and parental neglect. Since that time, Crystal has participated in three rounds of services and has completed two drug treatment programs, yet she continues to relapse. Crystal has abused drugs during at least three of her pregnancies. Her final relapse in January 2009 occurred one month after the conclusion of the minors' fifth dependency. In addition, Crystal's drug use resulted in a positive drug test for one year old Bethany. Crystal continues to struggle with the seriousness of her drug use and appears not to understand the risks associated with her lifestyle. There is sufficient evidence from which the court could conclude that Crystal had not made reasonable efforts to address her problems. There is thus substantial evidence to support the court's denial of services under section 361.5, subdivision (b)(10).

II.

A. Denying services to Crystal is not in the minors' best interests

Crystal argues that the court abused its discretion by denying her reunification services under section 361.5, subdivision (c) because reunification is in the minors' best interests.

1. Relevant Law and Standard of Review

Under section 361.5, subdivision (c), the juvenile court "shall not order reunification for a parent" described in, inter alia, section 361.5, subdivision (b)(10) "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." ( 361.5, subd. (c); In re Ethan N. (2004) 122 Cal.App.4th 55, 64 ["Once the juvenile court finds that one or more of these subparts of [section 361.5,] subdivision (b) applies, the court is prohibited from ordering reunification services unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child"].) "The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B., supra, 163 Cal.App.4th at p. 1227.)

Serving the best interests of the child is the fundamental goal of the juvenile dependency system, and underlies the three primary goals of child safety, family preservation, and timely permanency and stability. (Seiser & Kumli, California Juvenile Courts (2008)  2.11, p. 2-22.) "The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunityto develop into a stable, well-adjusted adult.' [Citation.]" (In re Ethan N., supra, 122 Cal.App.4th at p. 66.)

We review the juvenile court's refusal to order reunification services under section 361.5, subdivision (c) for an abuse of discretion. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6.; In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)

2. Reunification would be in the minors' best interests within the meaning of section 361.5, subdivision (c)

Despite the fact that Crystal has not made reasonable efforts to address her addiction, we conclude that the court abused its discretion by failing to provide services to Crystal because under the particular circumstances of this case, reunification would clearly be in the best interests of the minors. With regard to Christopher and Luis, the court ordered services for the biological fathers of Christopher and Luis after refusing to order services for Crystal. While these fathers pursue services, which may take anywhere from six to 18 months, the court cannot free the minors for adoption; permanency will thus necessarily be delayed. The boys will remain in out-of-home care and will continue visitation with their fathers until the court determines a permanent placement.

At the time the court denied services to Crystal, the Agency had not identified prospective adoptive homes for the minors. Christopher was 10 years old and Luis was seven years old. Because these boys are older children, placement of them will likely become increasingly difficult. None of the homes that the Agency was considering for placement has committed to taking all three children. While the minors' paternal aunt was considering entering into a guardianship of, or adopting, all three children, she has five children of her own and told social workers that she had not yet spoken with her husband about taking in the minors. As to Bethany, the minors' maternal uncle was interested in taking custody of her and was considering adoption, but did not want to adopt Christopher or Luis because the uncle believes that they have behavioral problems.

At oral argument, counsel for both the minors and Crystal emphasized the fact that neither of the boys shares a significant relationship with his father. The record demonstrates that both boys' fathers have criminal backgrounds and drug abuse problems. Despite these drug related problems, the court ordered services for the boys' fathers. Crystal, on the other hand, does have a significant relationship with the boys and has maintained her sobriety for a significant period of time in the past. Yet, the court denied Crystal services primarily because of her history of drug abuse.

The record demonstrates that the minors have a significant relationship with Crystal. Both Christopher and Luis have lived with Crystal for various periods of time throughout the proceedings. The boys struggle with the idea of adoption and with being separated from Crystal. Christopher reported that he was "sad" not to be living with Crystal, and that he wanted to go home. While in foster care, Christopher appeared to be sad and often kept to himself. Luis stated that he was happy at his foster home but that he missed his mother. He said that he wanted to go home to his mother. Both boys told their therapist that they wanted to go home and that they miss their mother. Although Bethany is younger than the boys, she also recognized Crystal and was happy to see her during visits. In addition, the siblings share a bond with each other. Christopher told social workers that he wants to live with his brother and sister. Luis reported that he misses Christopher.

With respect to Bethany, the Agency reported that both her biological father and her alleged father are serving time in prison. The Agency identified Rafael as Bethany's biological father on the eve of trial. Social worker Stevenson reported that she had yet to meet with Rafael to determine whether he should receive a case plan. As a result, the court has not yet determined whether to offer reunification services to either the biological father or the alleged father.^[1] Bethany's future at the conclusion of the trial remained uncertain. Thus, to have offered Crystal reunification services as to Bethany would not have delayed Bethany's permanency. Further, in the event that the court has since provided either or both of these men with reunification services, Bethany's situation remains similar to that of Christopher and Luis in that the court would not be able to free her for adoption while one or both of her fathers receives services.

Even if the court does not order services for Bethany's biological or alleged father, it is still in the best interests of Bethany to allow Crystal to participate in the additional months of services to provide the opportunity to reunify. Bethany lived with Crystal from birth until she was about 13 months of age. Crystal is the only parent and provider Bethany has ever known. Although Bethany is young and unable to articulate her desires, as her brothers have, the social worker reported that during a supervised visit that took place between the siblings and Crystal, Bethany recognized Crystal and was happy to see her. Further, Bethany's brothers lived with Bethany and Crystal for a period of time before the Agency filed a petition on Bethany's behalf. As noted earlier, Christopher articulated that he wants to live with Luis and Bethany. Luis told social workers that he missed Christopher when they were apart. The social worker also observed that visits between the siblings went well. These facts signify that the three siblings share a relationship. Allowing Bethany an opportunity to reunify with Crystal and with her brothers, under the particular circumstances of this case, is clearly in Bethany's best interests.

Minors' counsel advocates services for Crystal, pointing out that Crystal will continue to have visitation with the minors. At the very least, Crystal should be allowed to participate in services while services for the fathers are ongoing. Providing services to Crystal would not delay permanency for the minors, and would be in the best interests of the minors because it would ensure that Crystal is sober during visits and that she is maintaining a healthy lifestyle.

In summary, court has ordered services for the fathers of Christopher and Luis. These services will occur over a period of six to 18 months. The court has yet to decide whether to offer services to Bethany's biological and alleged fathers. During this period, the minors will not be free to be adopted. In view of the bonds between the minors and Crystal, the lack of prospective adoptive parents, and the fact that providing services to Crystal will not delay adoption for the minors, providing services to Crystal is clearly in the best interests of the minors since it will leave open the possibility that the minors might be returned to Crystal's custodythe only home that they have known.

DISPOSITION

The order is reversed.

AARON, J.

WE CONCUR:

NARES, Acting P.J.

McDONALD, J.

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^[1] The Agency represented that it had not had the opportunity to speak with Rafael in detail about the proceedings and requested additional time determine the nature of Rafael's relationship with Bethany, and whether that relationship would entitle Rafael to a case plan. The court continued the disposition hearing as to Bethany in order to provide the Agency with additional time to address the status of the biological father and the alleged father.