J.L. v. Superior
Court
Filed 1/31/14
J.L. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
J.L.,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et
al.,
Real Parties in Interest.
G049202
(Super. Ct. No. DP023997)
O P I N I O N
Original
proceedings; petition for a writ of
mandate/prohibition to challenge an order of the
C. Servino, Judge. Petition denied.
Frank
Ospino, Public Defender, Dave Dziejowski, Assistant Public Defender, Scott K.
Kawamoto and Dennis M. Nolan, Deputy Public Defenders, for Petitioner.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for
Real Party in Interest.
Law
Offices of Harold LaFlamme and Linda O’Neil for Minor.
Jessica
Nerney for A.L.
* * *
J.L.
(Mother) seeks review of the juvenile court’s order bypassing family reunification services and scheduling a permanency planning hearing for
her son, J.L. (Welf. & Inst. Code, § 366.26,
subd. (c),
name="_ftnref1" title="">[1] (hereafter the section 366.26
hearing.) The juvenile court denied
Mother reunification services because she had a history
of chronic use of drugs and alcohol and resisted prior court-ordered
abuse problem. (§ 361.5, subd.
(b)(13).) Substantial evidence
supports the decision to bypass reunification services, and we deny Mother’s
petition for an extraordinary writ.
FACTS
AND PROCEDURE
Mother
has an extensive alcohol and substance abuse history dating back to at least
1995. She admits she is a binge drinker.
She has had numerous drug related
arrests and convictions, and many assault, battery, and
convictions.
Mother
had five children with her estranged husband, A.L. There were several child abuse reports
involving those children. Mother had
received voluntary services for about seven months in 2009, but her
participation was limited. She refused
to participate in individual counseling and did not attend family
counseling. Mother’s five older children
were placed in the custody of their father by the family court and on December 9, 2010, he obtained a three-year domestic violence restraining order
against her. The domestic violence
restraining order included the family court’s order that “Mother must attend [a]
parenting program with [a] drug component.
Mother must mail proof of enrollment and completion to this department.†Subsequent to that order, Mother had a 2012
arrest for being drunk in public and was ordered by the criminal court to
attend Alcoholics Anonymous (AA).
J.L.
was born in July 2012, and his father’s identity was unknown. Mother rented a room in a house in Anaheim where she
and J.L. lived with other tenants. On July 15, 2013, one-year-old J.L. was taken into protective custody by the Orange
County Social Services Agency (SSA) after being left home alone while Mother
was out drinking and using illegal substances.
The maternal grandmother telephoned Mother in the late afternoon the day
before and Mother sounded intoxicated.
Mother later called the maternal aunt and said J.L. was being watched by
a friend who might have left the home.
The
maternal grandmother called the police after finding J.L. alone in the room
Mother was renting. Mother arrived about
20 minutes after the maternal grandmother.
She gave police “different explanations of care arrangements she made
for the child, however after police spoke with the individuals, they did not
corroborate [M]other’s statements.â€
Eventually,
Mother told police she was too drunk to remember who she left J.L. with, or
what had happened the night before. Garden Grove police
had arrested her the night before for being under the influence of a controlled
substance and released her in the morning.
The police officers observed Mother still appeared to be under the
influence and did not feel comfortable leaving the child in her care. The bedroom she shared with J.L. was not
clean. There were clothes and food on
the floor and empty beer containers in the trash can. The officer found a baby
bottle filled with sour milk. The
officer made a fresh bottle for J.L., but Mother refused to give it to him and
instead poured it out on the floor.
The
maternal grandmother reported Mother had a history of alcoholism and drug
use. She reported Mother typically did
not provide adequate care for the child, not feeding him and leaving him for
days with friends. The maternal
grandmother stated Mother often became violent when she drinks alcohol. The maternal grandmother said she had
initiated the court process to obtain legal guardianship of J.L., but did not
follow through because Mother threatened to kill the child if she did so. The maternal grandmother had an active
restraining order against Mother.
Mother’s
estranged husband, A.L., explained to social workers he was with Mother on July
14, 2013, when she left J.L. alone, and she was arrested for shoplifting
diapers and detergent. A.L. thought
someone named “Miguel†was J.L.’s father and had assumed the child was with his
father at the time. A.L. reported Mother
is an alcoholic and she also used methamphetamine. A.L. said Mother had a history of leaving her
children without making proper arrangements, which was why he now had full
custody of their five children and Mother had no contact with them. Mother had once left J.L. in A.L.’s care for
four days without providing any food, clothing, or diapers for the baby. A.L. was very concerned about J.L.’s safety
because “‘he’s filthy’†and Mother does not adequately care for him. He felt Mother was “‘an excellent mother when
she’s sober,’†and thought services could help “‘get her life together.’â€
Mother
told social workers she had prior arrests for drinking alcohol in public. Mother admitted that as a result of a 2012
arrest for being drunk in public, she was ordered by the criminal court to
attend AA meetings. Mother said she drank
“‘a 40 oz’†in the room before leaving on the night of July 14, 2013,
and someone named “Juan†was supposed to be watching J.L. She claimed A.L. had taken her to buy more
alcohol when she was arrested. Mother
admitted “she binges†when she drinks.
J.L.
was initially placed with the maternal grandmother, but he was moved to a
foster home on July 17, 2013. SSA filed a petition alleging jurisdiction
under section 300, subdivision (b) [failure to protect]. At the detention hearing, the juvenile court
detained A.L. It ordered SSA to begin
reunification services “as soon as possible,†ordered random drug and alcohol testing,
including secured alcohol monitoring devices for Mother, and gave Mother a
minimum of six hours weekly monitored visitation.
In its
first jurisdiction and disposition report, the SSA social worker requested
additional time to investigate whether section 361.5, subdivision (b)(13),
applied to Mother due to her unresolved substance abuse problem. J.L.’s caregiver reported Mother brought an
unidentified man with her to the July 23 visit with J.L., but the caregiver
would not permit him to attend. During
the visit Mother was very “rough†with J.L., and when the caregiver told her
not to pull at the child, Mother became upset.
Mother “did not appear to focus on her visit.†A social worker who monitored the visit
reported “unusual activity†was going on during the visit. Mother was “sweating
profusely†and appeared “distracted and not focused on the child.†The social worker confirmed Mother was rough
in her handling of J.L. Mother declined
a visit on July 25.
Mother
was provided with referrals to the Health Care Agency (HCA) Perinatal Program, Medtox
drug testing, self-help meetings (AA, NA), and parenting programs. She was instructed to keep the social workers
updated on her progress, and for the past month she had done so. She began twice weekly drug testing on July 29, 2013.
Mother
met with the social worker on July 25, 2013, and explained she
was currently unemployed and renting a room in a house, but did not know the
address. She reported she only used
alcohol, and denied using drugs. Mother
wanted reunification services.
On July 26, 2013, the caregiver reported Mother again brought an unidentified man to
her visit with J.L. The man refused to
provide his name to the social worker, and when the social worker instructed
Mother to make sure her friend did not show up again on visits, Mother stated, “‘You
tell him, I already told him and he doesn’t listen to me.’†On July 29, Mother brought two of her older
children to the visits with J.L., and the social worker again had to remind her
she could not bring anyone to visits without permission. On another visit, Mother brought the maternal
grandmother without getting the social worker’s permission.
On August 1, 2013, Mother was unable to void for a drug test. The social worker later contacted Mother to
give her information concerning the Secure Continuous Remote Alcohol
Monitoring program. When Mother said she
did not want the information, the social worker explained it had been ordered
by the court and that it would benefit Mother to have it. Mother was not happy about it.
In its September 5, 2013, jurisdictional and dispositional report, SSA recommended no
reunification services be provided to Mother. Although Mother had one negative Medtox test
in early August, she missed five drug tests, was no longer actively
participating in HCA or STARR Programs, was not making daily calls to the
social worker, could not verify her attendance at AA or NA meetings, and was
going to be discharged from her perinatal program for non-compliance.
The
social worker reported services could be denied under section 361.5,
subdivision (b)(15), due to Mother’s “willful abduct[ion]†of J.L.’s
siblings. The maternal grandmother had
been caring for Mother’s five older children.
The maternal grandmother reported that on August 25, 2013, Mother showed up drunk at her home and said she was taking the
children to the movies. She started yelling at the maternal
grandmother for removing a television from one of the children’s bedrooms. She accused the maternal grandmother of
bringing strange men around to molest the girls. The maternal grandmother had a handyman
working at the house at the time. Mother
attacked the handyman and then took off with two of the girls. The maternal grandmother called the police,
but Mother was gone before they arrived.
J.L.’s caretaker said she talked to Mother on August 26, and Mother “sounded
‘nervous, like out of it.’†Mother was
arrested on August 27. Her older
daughter had not yet returned to the maternal grandmother’s home and a
protective custody warrant was issued for the child.
In the September 5, 2013, report, the SSA social worker noted, “In regards to [Mother’s]
alcohol abuse history: [She] has never
been on formal probation and/or ordered to participate in the Prop 36
Program. [She] has also never been
ordered by the [c]ourt to participate in a drug and alcohol treatment program
until last month, when [J.L.] was brought into protective custody.†However, “[Mother] has an unresolved substance
abuse problem evidenced by her recent arrest, which seriously impairs her
ability to supervise, protect, or care for [J.L.]â€
Dispositional Hearings
At the
jurisdictional hearing on September 16, 2013, Mother
submitted on the social worker’s reports.
The court found the allegations of the petition to be true by a
preponderance of the evidence. Minor’s
counsel argued section 361.5, subdivision (b)(13), applied to Mother, and
Mother should be denied reunification services based upon the 2010 family court
order that “required Mother to do drug treatment.†County Counsel
observed that “we had alleged there was a potential [section 361.5,
subdivision] (b)(13) bypass . . . .†A dispositional hearing was set for October 21, 2013.
On October 21, 2013, the social worker reported J.L. was doing well in his
placement. Mother contacted the social
worker when she was released from custody on September 25, saying she wanted to
reinstate visitation. The social worker
asked Mother if she intended to resume participating in services, and Mother
stated she would call Medtox that day and would go to HCA the next day. The next day, at a visit with J.L., Mother
told the social worker she had lost the Medtox number and could not recall her
assigned color. On September 30, Mother
told the social worker she was considering entering an inpatient program,
although she was concerned about the effect of a 30-day lockdown on her
upcoming court date. On October 5,
Mother called the social worker to ask what services she was supposed to be
doing.
At the
dispositional hearing on October 21, 2013, the juvenile court
took judicial notice of the domestic violence restraining order issued on December 9, 2010, in Orange County Superior Court case No. 05D003219. The domestic violence restraining order
awarded physical and legal custody of Mother’s five older children to their
father, A.L., and allowed visits with Mother every other weekend. It ordered, “Mother must attend [a] parenting
program with [a] drug component. Mother
must mail proof of enrollment and completion to this department.â€
At the
dispositional hearing, Mother’s counsel argued the family court domestic
violence restraining order was insufficient to establish prior “court-ordered
treatment†for her alcohol and substance abuse problem for purposes of allowing
the court to bypass services under section 361.5, subdivision (b)(13). Additionally Mother’s counsel argued there was
insufficient evidence Mother had resisted treatment. The juvenile court removed custody from
Mother, and found by clear and convincing evidence section 361.5,
subdivision (b)(13), applied and reunification services need not be
provided to Mother. It scheduled a
section 366.26 hearing for February 18, 2014.
DISCUSSION
Mother
contends there is insufficient evidence to support bypassing reunification
services under section 361.5, subdivision (b)(13). She argues there is no evidence she was ever ordered
by a court to obtain substance abuse treatment and there is insufficient evidence
she resisted any such treatment in the past three years. We disagree.
When a
juvenile court’s decision to bypass reunification is challenged, we apply the
substantial evidence rule. (
377, 382.) “We review the record in the light most favorable to the trial court’s
order to determine whether there is substantial evidence from which a
reasonable trier of fact could make the necessary findings based on the clear
and convincing evidence standard.
[Citation.]†(
Cal.App.4th 684, 694, italics omitted.) “Clear
and convincing evidence requires a high probability, such that the evidence is
so clear as to leave no substantial doubt.â€
(In re Luke M. (2003) 107
Cal.App.4th 1412, 1426.)
“There
is a presumption in dependency cases that parents will receive reunification
services. [Citation.] Section 361.5, subdivision (a) directs the
juvenile court to order services whenever
a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section
361.5, subdivision (b). [Citation.] Section 361.5, subdivision (b) is a
legislative acknowledgement ‘that it may be fruitless to provide reunification
services under certain circumstances.’
[Citation.]†(
Cal.App.4th 87, 95-96.)
Here,
the juvenile court denied reunification services to Mother based on section
361.5, subdivision (b)(13), which allows for bypass if two requirements are
met. The first requirement is a finding,
by clear and convincing evidence, that the parent has “a history of extensive,
abusive, and chronic use of drugs or alcohol.â€
(Ibid.) Mother does not challenge the juvenile court’s
finding she has such a history. And the
substantial evidence in the record of her alcohol and substance abuse; her
drug-related arrests and convictions; her assault, battery, and domestic
violence arrests and convictions; and her loss of custody of her five older
children support that finding.
The
second requirement is a finding, by clear and convincing evidence, that the
parent “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 [s]ection
358.1 on at least two prior occasions, even though the programs identified were
available and accessible.†(§ 361.5,
subd. (b)(13).)
Prior
to 2003, the first prong of subdivision (b)(13), did not specify that
reunification could be denied for resisting only court-ordered drug or alcohol
treatment. Thus, a parent who continued
or resumed substance abuse use after having voluntarily
undertaken such treatment could be denied reunification services. (See Karen
H. v. Superior Court (2001) 91 Cal.App.4th 501, 504-505.) However, the statute was amended in 2002,
adding the phrase “court-ordered.â€
(Stats. 2002, ch. 918 (AB 1694), § 7); 73A Pt. 1 West’s Ann. Welf.
& Inst. Code (1998 ed.) foll. § 361.5, p. 147.) This was done specifically to clarify that “in
order to completely forgo reunification services due to a parent’s failure to
complete past drug treatment, the previous drug treatment must have been
ordered by the court, not entered into voluntarily.†(Sen. Com. on Health & Human Services, Aug. 28, 2002, pp. 1-2, Analysis of Assem. Bill 1694.)
Mother
contends there is no evidence the court previously ordered her to engage in a
drug or alcohol treatment program. She
contends the family court’s order made as part of the 2010 domestic violence restraining
order obtained by A.L., that Mother must “attend [a] parenting program
added), does not constitute a court order for substance abuse “treatment.†She argues there was nothing in the family
court order from which the juvenile court could infer the family court intended
to “rehabilitate Mother or
order suggesting the family court even thought Mother was “a parent in need of
substance abuse rehabilitation.†She
argues the fact the family court awarded her unmonitored visits with her
children every other weekend suggests it did not believe Mother had a substance
abuse problem.
We
reject Mother’s contention. Section
361.5, subdivision (b)(13), does not narrowly define what constitutes “court-ordered
treatment†for purposes of applying the services bypass as Mother suggests. The only requirement is the treatment must be
court-ordered, as opposed to voluntary.
The family court ordered Mother to complete a parenting program with a
drug component. The only logical reason
for the family court to have made such an order was because it concluded Mother
had a substance abuse problem that prevented her from effective parenting and
contributed to the violence that lead to issuance of the three-year restraining
order against her. Moreover, it was not
a mere suggestion by the family court—she was directly ordered to provide proof
to the family court that she enrolled in and completed the program. Additionally, that was not the only time a
court ordered Mother to obtain substance abuse treatment. Mother admitted that as a result of a 2012
arrest for public intoxication, she was court-ordered to attend AA
meetings. In short, substantial evidence
supports the juvenile court’s conclusion Mother had been ordered by a court to
obtain treatment for her drug and alcohol problems.
Mother
also contends there is insufficient evidence she resisted
court-ordered substance abuse treatment in the three years before
the current petition was filed. Her
argument is this regard is somewhat confusing.
Mother does not suggest she effectively participated in treatment. Proof of resisting prior court-ordered treatment
may come in the form of refusing to enroll in a program, dropping out of a program,
or resumption of regular substance abuse even after completing a program and a
period of sobriety. (See
1398, 1403; Karen S. v. Superior Court
(1999) 69 Cal.App.4th 1006, 1010.) There
is nothing in the record indicating whether Mother ever complied with the
family court order that she complete a parenting program with a drug
component. Rather Mother’s argument
seems to be about timing, i.e., that in argument below, minor’s counsel and SSA
referred to conduct that occurred before
the family court order was made in December 2010 and after the petition was
filed. Thus, Mother contends, her resistance
to court-ordered treatment was not within the prior three years.
Substantial
evidence supports the juvenile court’s finding Mother “resisted prior
court-ordered treatment for [her alcohol and substance abuse] problem during a
three-year period immediately prior to the filing of the
petition . . . .â€
(§ 361.5, subd. (b)(13).)
The family court order was made in December 2010. The maternal grandmother and A.L. both
reported Mother continued to use alcohol and drugs. In 2012, she was arrested for possession of a
controlled substance and being under the influence of a controlled
substance. She admitted a 2012
conviction for public intoxication. She
admitted she continued to binge drink.
With regard to the events that lead to J.L. being taken into protective
custody in July 2013, Mother admitted drinking a “40 oz[,]†and leaving her
one-year old baby behind while she went out drinking. She could not recall having made any
arrangements for the child’s safety while she was gone. She was arrested that night for being under
the influence of a controlled substance.
Substantial evidence supports the conclusion that despite having been
court-ordered to complete a parenting program with a drug component, and having
been court-ordered to participate in AA, Mother continued to abuse alcohol and
drugs. The juvenile court could reasonably
conclude Mother’s behavior was not an isolated “slip up.†She continued to demonstrate resistance to
juvenile court ordered treatment after the petition was filed. In August 2013, she missed numerous drug
tests and quit actively participating in services. She showed up intoxicated at the maternal
grandmother’s home, assaulted the handyman who was working there, and absconded
with two of her daughters. She could not
provide any proof she was attending AA meetings, and ceased regular contact
with her social worker. Substantial
evidence supports the juvenile court’s decision to bypass reunification
services based upon section 361.5, subdivision (b)(13).
DISPOSITION
The
writ petition is denied.
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM, J.
THOMPSON, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
