H.W., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES

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Court of Appeal, Fifth District, California.

H.W., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

F061105

-- January 27, 2011

Maribeth Arendt, for Petitioner.   No appearance for Respondent.   Gregory J. Oliver, County Counsel, and Sarah Carrillo, Deputy County Counsel, for Real Party in Interest.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 1 hearing as to his son, J.C., and daughter, J.W. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and T.C.,2 the mother of J.C. and J.W., have a long history of drug use and domestic violence.   As a result, child protective services have intervened twice within the past several years.   These dependency proceedings mark the second intervention.   The first occurred in June 2008 when police found a glass smoking pipe used for smoking methamphetamine in J.C.'s diaper bag.   T.C. admitted using marijuana for the prior seven years and methamphetamine on and off for the previous three years.   However, she denied that the glass pipe was hers.   She said petitioner “planted” it in the bag and contacted law enforcement to set her up.   She said he admitted doing this to coerce her into reconciling with him despite their violent relationship and the issuance of a restraining order.   Petitioner, then 35, also admitted using marijuana since age 18 and having a history of methamphetamine use.

As a result of the June 2008 incident, the juvenile court exercised its dependency jurisdiction over J.C., then under two years of age.   Over the course of the ensuing 18 months, petitioner and T.C. were provided reunification services, including participation in the Drug Dependency Court program (DDC).  During that time, T.C. gave birth to their daughter, J.W.

As part of the DDC, petitioner and T.C. participated in individual and group counseling sessions, domestic violence counseling, parenting classes, and weekly 12-step meetings.   In January 2010, they successfully completed the DDC and the court terminated its jurisdiction.

Following their completion of the DDC, petitioner and T.C. lived separately.   She lived with the children and petitioner lived with his mother.   In February 2010, petitioner was arrested for driving under the influence and tested positive for marijuana and methamphetamine.   In early March 2010, the Tuolumne County Department of Social Services (department) received a referral alleging T.C. neglected the children and admitted using methamphetamine and marijuana.   The department was unable to investigate the allegations because T.C. was uncooperative and fled the county with the children.   In late March 2010, the department received another referral alleging T.C. was using methamphetamine and barbiturates and sleeping while the children ran around.   In May 2010, petitioner obtained temporary custody of the children.   Consequently, the department did not investigate the matter.

In July 2010, petitioner moved in with T.C. and the children.   On August 20, 2010, police responded to the area of petitioner and T.C.'s apartment after receiving a report of a possible drug sale in progress.   They were directed to petitioner's apartment where he and T.C. were arguing.   T.C. said she and petitioner were arguing because she did not want to be with him anymore.   She had just returned home after being absent for five days and only wanted to take the children, then three-year-old J.C. and sixteen-month-old J.W. She said petitioner did not want her to leave and refused to let her take the children.   As the police officer was talking to T.C., she exhibited behavior consistent with drug use so he asked her when she last used methamphetamine.   She said she last used two and a half years prior and consented to a search of her apartment.   The police officer found a glass smoking pipe containing a usable amount of a substance he suspected was methamphetamine within reach of the children.   He also observed that the apartment was hazardous and in disarray.

Petitioner told the police officers he and T.C. had recently reconciled and he moved into the apartment with her and the children.   He said T.C. left him with the children five days prior and had just returned that day.   They argued when she returned because she told him she did not want to be with him anymore.   He said they used methamphetamine extensively in the past.   He denied any recent methamphetamine use and stated it had been at least a month since he last used.

T.C. said she feigned reconciliation so she could see her children.   She said petitioner was a constant user of methamphetamine and, in order to be with him, she had to use also.   She said she last used methamphetamine with him a day and a half before.

Petitioner and T.C. were arrested for child endangerment, possession of methamphetamine, possession of a controlled substance, possession of drug paraphernalia, and being under the influence of a controlled substance.   Petitioner was additionally charged with violation of a domestic violence restraining order and violation of probation.   They were drug tested at the police station and both tested positive for methamphetamine.   The children were taken into protective custody by the department and placed in foster care.

In September 2010, the juvenile court adjudged the children dependents and set the matter for disposition.   Meanwhile, petitioner and T.C.'s caseworker explored the feasibility of their reentry into the DDC by consulting the counselors who treated them during the prior juvenile dependency case.   Petitioner's counselor said petitioner wanted out of the program as soon as possible and was not interested in continuing services to support his sobriety.   T.C.'s counselor remembered T.C. saying she intended to continue in services after completing the program but did not.   The counselors opined that T.C.'s dependent traits and petitioner's intimidating and threatening behaviors made for an unhealthy relationship, which undermined their ability to maintain sobriety and safely parent their children.   Their respective counselors did not believe that petitioner and T.C. were appropriate for reentry into the program.   In light of the counselors' input and petitioner and T.C.'s extensive drug use history and resistance to treatment, the department recommended that the court deny reunification services for them at the dispositional hearing pursuant to section 361.5, subdivision (b)(13).

In October 2010, the juvenile court conducted a contested dispositional hearing on the department's recommendation to deny petitioner and T.C. reunification services.   T.C. testified that, after completing the DDC in January 2010, she remained drug-free until mid-July 2010.   However, she also testified that in March 2010, she was using marijuana and methamphetamine and tested positive for the drugs.   When reminded of her previous testimony, she then denied using the drugs in March and testified that she did not use again until July 2010.   She also testified that petitioner got custody of the children in May 2010 by wrongfully accusing her of taking drugs.   She subsequently reconciled with him so that she could see the children.

T.C. further testified that she first relapsed in July 2010.   At that time, she and petitioner were living together.   They lived together from July until they were arrested in August.   During that time, they used methamphetamine together and then stopped using it.   However, in the seven days before they were arrested, she said, they used methamphetamine on a regular basis.   She described those seven days as “horrifying crazy.”   She said she had not used drugs since her children were removed.

Petitioner's mother testified petitioner had lived with her since December 2009.   During that time, she believed petitioner was using drugs off and on.   She knew for certain that he was using marijuana.   She believed he had been clean and sober for over a month prior to the hearing.   She said he went to meetings and was helping her remodel her home.

Petitioner testified that the first time he used drugs after completing the DDC was in February 2010.   He went out with a friend from out of town and learned that his friend was dying of cancer.   He used drugs that night and the next day was arrested for driving under the influence.   He did not use methamphetamine again until a week or two before he and T.C. were arrested in August 2010.   He and T.C. used methamphetamine at her house.   He said he called his sponsor that day.   His sponsor picked him up and took him to a meeting.   On the night of his arrest, T.C. contacted him, stating she needed help.   He went to help her because she had the children.   He said he had been clean and sober since his arrest.   He testified he was taking a new medication for his Attention Deficit Hyperactivity Disorder (ADHD) and seeing a psychologist twice a week.   In addition, he had a sponsor and was attending meetings and working.

At the conclusion of the hearing, the juvenile court denied petitioner and T.C. reunification services as recommended and set a section 366.26 hearing for February 8, 2011.   This petition ensued.3

DISCUSSION

Denial of Reunification Services Pursuant to Section 361.5, Subdivision (b)(13)

Petitioner contends the juvenile court erred in denying him reunification services pursuant to section 361.5, subdivision (b)(13).   We disagree.

A. Applicability of Section 361.5, Subdivision (b)(13)

Though provision of reunification services is the norm in juvenile dependency cases, the Legislature has determined that, in some circumstances, it would be a “fruitless” effort.  (In re Levi U. (2000) 78 Cal.App.4th 191, 200.)   One such circumstance is described in section 361.5, subdivision (b)(13), which provides, in part, that reunification services need not be provided to a parent or guardian who “ ‘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.’ ”   An attempt to facilitate reunification in such a case may not only be fruitless, but does not serve and protect the child's best interest.  (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.)

We review an order denying reunification services for substantial evidence.   (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)   If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings.   We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence.   Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding.   The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Petitioner does not deny his use of drugs is extensive, abusive, and chronic.   Rather, he contends he did not resist treatment within the meaning of the statute;  he merely relapsed in February and August of 2010.   In support of his contention, he seeks to distinguish the facts of his case from those in Laura B. v. Superior Court (1998) 68 Cal.App.4th 776 (Laura B.), a case in which the court found appellant mother resisted treatment.4

In Laura B., a mother with an 18-year history of drug use gave birth to a child who tested positive for cocaine.  (Laura B., supra, 68 Cal.App.4th 776, 778.)   The mother had participated in numerous rehabilitation programs.   (Ibid.) She attended Alcoholics/ Narcotics Anonymous meetings until approximately a year before the child was born, but quit attending because she began using drugs again.  (Ibid.) She used cocaine at least twice a week during the first two months of her pregnancy.  (Ibid.) After she learned she was pregnant, she reduced her cocaine use to every other week.  (Ibid.) The juvenile court determined that her drug use constituted resistance to treatment and denied her reunification services.  (Id. at pp. 778-779.)

The Laura B. court distinguished the mother's drug use from a relapse, stating:

“A mother who regularly attends her program could experience a brief relapse during pregnancy but immediately resume treatment.   That type of behavior would not necessarily prove resistance.   But Laura did not just suffer a setback;  she did not just fall off the wagon on one or two occasions.   She stopped attending Narcotics Anonymous meetings and returned to consistent, habitual, semiweekly and then biweekly substance abuse.   Regular use of cocaine throughout pregnancy cannot be considered a simple relapse.   It is an abundantly clear demonstration of a determination to maintain a drug habit.   The trial court reasonably interpreted this as resistance to treatment.”   (Laura B., 68 Cal.App.4th at p. 780.)

The court further stated, “[The department] is required to show ․ that a parent has previously undergone or enrolled in substance abuse rehabilitation.   Then, during the three years prior to the petition being filed, the parent evidenced behavior that demonstrated resistance to that rehabilitation.   Such proof may come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety.”   (Laura B., 68 Cal.App.4th at p. 780.)

Petitioner contends, unlike the mother in Laura B., he merely “fell off the wagon” and relapsed on two occasions.   He further claims, he immediately returned to treatment by contacting his sponsor and attending meetings.   Therefore, he claims, under the holding of Laura B., his drug use did not constitute resistance under section 361.5, subdivision (b)(13).   Having reviewed the appellate record, as summarized above, we conclude differently.

Petitioner contends he relapsed twice, once in February 2010 and once in August 2010.   However, the evidence reflects that he used methamphetamine twice in August.   He used it the first time with T.C. one or two weeks before their arrest.   He used the second time shortly before their arrest.   Further, there is evidence he used drugs on a more regular basis.   His mother testified he was using marijuana and possibly other drugs intermittently until approximately a month or two before the dispositional hearing.

Further, there is no evidence that petitioner was participating in a recovery program or sought treatment after he relapsed.   He testified, in reference to his first drug use in August 2010, that he called his sponsor and attended a meeting.   However, there is no evidence that he did so after his arrests in February and August of 2010.   Rather, he was untruthful to the police about his drug use in August 2010.   From this evidence, it is reasonable to infer that petitioner was engaging in regular drug use that was brought to light only by his violation of the law.   In addition, petitioner was pursuing reconciliation with T.C., who he knew was using drugs, an act inconsistent with working a program of recovery.

Contrary to petitioner's assertion, the evidence reflects that he engaged in more than a few brief relapses.   Rather, his conduct suggests a resumption of drug use following a period of sobriety.   Thus, the juvenile court properly determined petitioner resisted treatment under the provisions of section 361.5, subdivision (b)(13).

B. Best Interests of the Children

Notwithstanding applicability of section 361.5, subdivision (b)(13), the juvenile court may order reunification services if it finds, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).)  The parent bears the burden of showing that reunification would serve the child's best interests.  (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)

Petitioner contends the juvenile court did not consider his children's best interests as evidenced by its failure to order a bonding study and consider their mental and emotional states with respect to termination of parental rights and their preferences for custody.   Petitioner misconstrues the evidence and the law.

First, it bears noting that termination of parental rights is a decision the juvenile court makes at the section 366.26 hearing, not at the dispositional hearing.   Additionally, even assuming J.C. and J.W. are old enough to express themselves with respect to the proceedings, such input is not germane at the dispositional hearing.   Further, it was never disputed that the children are bonded to their parents.   Consequently, there was no need for a bonding study.   Even if there were a need, it was incumbent upon petitioner to request one.   (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)   The juvenile court does not have a sua sponte duty to request a bonding study.  (Id. at pp. 1339-1340.)

Finally, petitioner offered no evidence, aside from the parent/child bond, that reunification would serve the children's best interests.   Therefore, he failed to satisfy his evidentiary burden.   Nevertheless, the record is not silent on the issue.   On the contrary, the juvenile court addressed the children's best interests, stating:

“[T]he [c]ourt believes that these two young children are entitled to have a stable living environment, safe environment.   It is pretty clear to the [c]ourt both [parents have a] history of extensive abuse and use of drugs.   They underwent significant[,] structured treatment, and not long after they graduated from [Drug Dependency] Court, they went back into the same-in my view, based on the evidence, the same type of drug lifestyle that caused the initial detention of the children.  [¶] The [c]ourt really finds that ․ it is in the best interest of the children that services not be offered․”

We conclude, based on the foregoing, that the juvenile court properly denied petitioner reunification services pursuant to section 361.5, subdivision (b)(13).   Consequently, we affirm its dispositional findings and orders, including its order setting a section 366.26 hearing.

On a final note, petitioner also contends he was not provided services to treat his ADHD in the prior dependency proceedings.   The orders and findings from the prior case, including the content and implementation of the reunification plan, are final and not subject to review.  (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.)   Therefore, we will not review them.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FOOTNOTE.  

1.  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.  FN2. T.C. also has a writ petition pending before this court in case No. F061107.

3.  FN3. Petitioner asks this court to stay the section 366.26 hearing pending our review.   We decline to do so.   A stay is only warranted in exceptional circumstances, which this case does not present.  (Cal. Rules of Court, rule 8.452(g).)

4.  FN4. Laura B. examined the meaning of “resistance to treatment” under section 361.5, subdivision (b)(12), the antecedent version of subdivision (b)(13) of section 361.5.  (Laura.  B., supra, 68 Cal.App.4th at pp. 780-781.)   Section 361.5 was amended, effective October 10, 2001, without substantive change, renumbering subdivision (b)(12) as (b)(13).  (Stats.2001, ch. 653, § 11.3, p. 4123.)   In 2002, section 361.5, subdivision (b)(13), was amended to replace “prior treatment” with “court-ordered treatment.”  (Stats.2002, ch. 918, § 7, p. 4512.)

THE COURT 1FN1. Before Cornell, Acting P.J., Dawson, J., and Poochigian, J.

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