IN RE: M.M. et al.

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

IN RE: M.M. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CORINNA R., Defendant and Appellant.

F062126

Decided: October 26, 2011

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Appellant is the mother of seven-year-old M.M., two-year-old C.J., and one-year-old C.M., the subjects of this appeal.   Following a contested dispositional hearing in March 2011, the juvenile court denied appellant reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10), (11) and (13).1  On appeal from the court's denial order, appellant contends the court erred in applying the statute.   Alternatively, she contends the court erred in not exercising its discretion to provide reunification services.   We will affirm the judgment.

STATEMENT OF THE CASE AND FACTS

Appellant has a long history of methamphetamine use and domestic violence.   She also has a history of child welfare intervention.   In 2002, appellant's two sons, Joseph and Gregory, were taken into protective custody after then two-year-old Joseph was severely beaten by his father while in his father's care.   The juvenile court adjudged the boys dependents pursuant to section 300, subdivisions (a) (severe physical abuse) and (b) (failure to protect) based solely on the conduct of their father.   However, during the course of the dependency proceedings, appellant admitted to using drugs.   As a result, the court provided her reunification services, including drug treatment.   However, she did not comply.   After five failed attempts at drug treatment, she moved to Chicago believing her chances for recovery were better there.   While in Chicago, she gave birth to her oldest daughter, M.M. In 2003, appellant returned to Fresno to attend the review hearing as to Joseph and Gregory.   The court terminated her reunification services and ultimately her parental rights.   In 2004, Joseph and Gregory were adopted.

From 2008 to April 2010, appellant gave birth to three daughters:  J.A. (2008), C.J. (2009) and C.M. (2010).  In February 2009, the Fresno County Department of Social Services (department) received a report that appellant tested positive for opiates while at the hospital to deliver C.J. Appellant denied abusing drugs and explained that she had tooth pain which she self-treated by applying Tylenol with codeine directly to her tooth.   She said she told her doctor that she was doing this.   At the time, C.J.'s father, Lorenzo, was living in the home.

In February 2010, the police arrested Lorenzo for beating appellant, then six months pregnant with his daughter C.M., with his fists and a metal baseball bat and threatening her with a knife.   In May 2010, appellant gave birth to C.M. and reportedly tested positive for Vicodin.   The department received information that appellant was using methamphetamine and leaving the children in the care of their maternal and paternal grandparents.   She also reportedly threatened to kill the children.

In July 2010, the department received reports that appellant was neglecting her daughters and that she and Lorenzo were using drugs.   One of the reporters alleged that Lorenzo was living with appellant and the children in violation of a restraining order and that he beat appellant but left before the police arrived.   The department substantiated these allegations but did not detain the children because appellant made a plan of care for the children with relatives.   The plan was that the children would live with their grandparents who would pursue temporary legal guardianship while appellant completed a substance abuse treatment program.

However, appellant did not comply with her care plan.   She did not enter substance abuse treatment and continued to use drugs.   In addition, she continued contact with Lorenzo despite the restraining order.   In mid-September 2010, Lorenzo and appellant were together and she had a two-inch bruise.   M.M. stated that she observed appellant and Lorenzo hitting each other and yelling at each other and that it scared her.

These dependency proceedings were initiated in late September 2010 when the children's maternal grandmother was cleaning appellant's apartment while appellant was in jail.   The grandmother found pictures and writings suggesting that Lorenzo may have sexually molested M.M. At the time, Lorenzo was with the two youngest girls at his mother's home.   M.M. was interviewed by the police but did not disclose any molestation.

The department took the children into protective custody out of concern that the grandparents could not protect them from appellant and Lorenzo.   The department filed an original dependency petition on the children's behalf, naming Lorenzo as the father of J.A., C.J. and C.M. and indicating that the whereabouts of the father of M.M. was unknown.

In October 2010, the juvenile court ordered the children detained.   The court ordered supervised visitation for appellant and parenting, substance abuse, and domestic violence services for Lorenzo.   The children were placed in foster care.

In January 2011, the juvenile court sustained an amended petition following mediation and adjudged the children dependents pursuant to section 300, subdivision (b).  By this time, J.A.'s biological father had been identified as a man named Ricardo.   The court also granted appellant's request for a contested dispositional hearing to adjudicate the department's recommendation to deny appellant reunification services pursuant to section 361.5, subdivision (b)(10), (11) and (13).   As to the children's fathers, the department recommended that the court offer services to Lorenzo and Sergio, M.M.'s father, but deny services for Ricardo.

In March 2011, the juvenile court conducted the contested dispositional hearing.   Appellant was the only witness.   She testified that she sought out and was funding her own services;  a 52–week domestic violence program, a parenting class, and weekly one-on-one mental health counseling.   She investigated inpatient substance abuse treatment but concluded that it would conflict with her other programs so she decided to participate in outpatient treatment which was scheduled to begin later in the month.   In addition, she began attending Alcoholics/Narcotics Anonymous (AA/NA) meetings at the beginning of March and attended as many as she could.

Appellant further testified that crystal methamphetamine was her drug of choice and that she last used the drug on September 12, 2010, and had used it for the previous two months.   She said she used methamphetamine a couple of times in the years after her sons were taken into protective custody.   She said she was able to maintain sobriety for a few years at a time, the longest period being three years.

Appellant explained the circumstances surrounding her positive test for opiates when C.J. was born.   She said she went to the dentist for pain but, because she was pregnant, the dentist could not take an X-ray of her so the dentist gave her a prescription for Tylenol with codeine.

Appellant testified that she and the children visited once a week for two hours.   During that time, they played games and watched movies.   She said the children were attached to her and vied for her attention.   She testified that she raised the children since birth with the exception of M.M. whom appellant placed with Sergio temporarily when M.M. was 11 months old because appellant was “messing up.”   Sergio cared for M.M. for approximately five months and then left her one day with appellant and did not return.

On cross-examination, appellant clarified that her five failed attempts at substance abuse treatment consisted of four outpatient and one inpatient treatment programs.   She said she did not attend AA/NA meetings sooner because it did not occur to her.   She also clarified that she left M.M. with Sergio in 2005 because she was using drugs.   She said in 2008 she began a three-year period of sobriety.   She testified that she had a prescription for the Vicodin that caused her to test positive for opiates when C.M. was born.   She said she fell very hard on her face three or four months prior and chipped her front teeth and injured her lip.   She was prescribed Vicodin for pain.   She testified that she was trying to get the restraining order against Lorenzo lifted so that his participation in services would not interfere with her participation.   She said she and Lorenzo had contact when necessary for the dependency proceedings, but denied that they were a couple.

Appellant also testified on cross-examination that since her sons were adopted, she had not sought out any assistance for her drug addiction or domestic violence.   She said she began the domestic violence program in October 2010 and had completed 16 sessions.   She could not explain why she waited to begin the program.   However, she explained that her delay in beginning the parenting program was because there was a waiting list.   She testified she had learned to monitor and take responsibility for her behavior and protect herself from domestic violence.   She also said she was subject to random drug testing at the women's shelter where she lived and had not tested positive for drugs.   She said she waited six months to get into outpatient drug treatment because she did not have the money to pay for it.   She also testified that she was employed at an apartment complex.

At the conclusion of the hearing, the juvenile court ordered the children removed from parental custody and denied appellant reunification services as recommended.   The court also denied Ricardo reunification services and set a section 366.26 hearing as to J.A.2 The court ordered reunification services for Sergio as to M.M. and for Lorenzo as to C.J. and C.M. and set a six-month review hearing.

In issuing its ruling as to appellant, the juvenile court found that she did not make reasonable efforts to treat her drug use and that her efforts to seek out and participate in services came on the eve of the hearing.   The court also found that providing appellant services would not be in the children's best interests given her substantial history of substance abuse, failure to benefit from services, and her “extremely poor” prognosis for reunification.   This appeal ensued.

DISCUSSION

I. Denial of Reunification Services under Section 361.5, Subdivision (b)

Appellant contends the juvenile court erred in denying her reunification services under subparts (10), (11) and (13) of section 361.5, subdivision (b) (section 361.5(b)) because they do not apply to her.   We disagree.

The juvenile court is required to order family reunification services whenever a child is removed from parental custody unless the court finds by clear and convincing evidence that one of 15 exceptions set forth as subparts in section 361.5(b) applies.   If the court finds any one of the subparts applicable, the assumption in favor of providing services is overcome by a policy determination that provision of services may be futile.  (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)

In this case, the juvenile court found a factual basis for denying appellant reunification services under section 361.5(b)(10), (11) and (13).   Since section 361.5(b)(10) and (11) share an element which is dispositive to appellant's argument, we will address them together.

A. Section 361.5(b)(10) and (11)

Section 361.5(b)(10) and (11) provide in relevant part:

“(b) Reunification services need not be provided to a parent ․ described in this subdivision when the court finds, by clear and convincing evidence, ․ [¶] ․ [¶]

“(10) [t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent ․ failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent ․ and ․ 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 that parent․

“(11) [t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and 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․”

Appellant does not dispute that section 361.5(b)(10) and (11) apply to her insofar as the juvenile court terminated her reunification services for and parental rights to Joseph and Gregory.   Rather, she contends the juvenile court erred in finding that she failed to make reasonable efforts to treat the problems that led to the removal of her children.   To that end, she specifies three grounds for error:  (1) Joseph and Gregory were not removed from her for the same reason her daughters were removed;  (2) section 361.5(b)(10) and (11) does not require that the efforts to treat the problems occur between the time services and/or parental rights are terminated and a subsequent child is removed;  and (3) she made reasonable efforts to treat the problems that led to the removal of her children.

Appellant's reasonable efforts argument fails on all three grounds.   First, even though Joseph and Gregory were initially detained because of their father's conduct, they were removed from appellant's custody because of her drug abuse and domestic violence, the same reasons that necessitated the removal of her daughters.   Further, the timeframe to which the reasonable efforts provision applies has been determined to be that period following the failure to reunify with a child and the removal of a subsequent child.   (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744–745 (Renee J.).)   As one court explained, “The inclusion of the ‘no-reasonable effort’ clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.”  (In re Harmony B. (2005) 125 Cal.App.4th 831, 842;  italics added.)   To read the statute as appellant urges would ignore the problem the statute recognizes (i.e., recidivism despite reunification efforts) and a cycle of failed efforts at governmental expense.   (Renee J., supra, 26 Cal.4th at pp. 744–745.)

Finally, substantial evidence supports the juvenile court's finding that appellant failed to make reasonable efforts to treat her drug abuse and domestic violence subsequent to the termination of her reunification services as to Joseph and Gregory.   Appellant testified that she continued to use methamphetamine on a regular basis until 2008 when she entered into a three-year period of sobriety.   In 2010, appellant was reportedly using methamphetamine and engaging in domestic violence with Lorenzo.   As a result, she was forced to place her daughters with their grandparents so that she could participate in drug treatment.   It was her failure to initiate drug treatment that, in part, led to the removal of her daughters.

We conclude, on this evidence, the juvenile court properly applied the provisions of section 361.5(b)(10), including the reasonable efforts clause, in denying appellant reunification services under that statute.   Having so concluded, we need not review the court's order denying petitioner reunification services under section 361.5(b)(11).  (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)   Nevertheless, we would affirm it as well based on the same reasoning.   Appellant's ongoing drug use and domestic violence subsequent to the termination of her parental rights as to Joseph and Gregory support the court's finding she did not make subsequent reasonable efforts to treat the problems necessitating their removal under section 361.5(b)(11).

B. Section 361.5(b)(13)

Having concluded the juvenile court properly applied the provisions of section 361.5(b)(10) to appellant's circumstances, we need not alternatively review its denial of reunification services pursuant to section 361.5(b)(13) for error.   Nevertheless, for the sake of argument, even if appellant is correct and the juvenile court erred in finding she failed to make subsequent reasonable efforts under section 361.5(b)(10) and (11), we would nevertheless affirm its denial of reunification services under section 361.5(b)(13).

Under section 361.5(b)(13), the juvenile court need not provide reunification services when it finds, by clear and convincing evidence:

“(13) [t]hat the parent ․ 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.”

Thus, two prongs must be found by clear and convincing evidence to deny a parent reunification services under section 361.5(b)(13).   First, the parent must have “a history of extensive, abusive, and chronic use of drugs or alcohol.”   Second, the parent either (1) “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 (2) “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.”

Appellant concedes that her substance abuse history is chronic and extensive.   She also concedes that she previously failed to comply with court-ordered substance abuse treatment.   She argues, however, that the element of resisting court-ordered treatment was not satisfied because, though she resisted treatment by relapsing on September 12, 2010, she was not under court order to participate in treatment and she only resisted court-ordered treatment on one occasion in 2003 because there was only one occasion (i.e., one case plan) that required her to participate in treatment.   Appellant offers no authority for her position, and we see no basis for it.

Section 361.5(b)(13) does not require a showing that the parent resisted court-ordered treatment continuously for three years or that the court-ordered treatment be in place for three years;  rather, it requires a showing that the parent “resisted the treatment within the three years immediately preceding the filing of the current petition․”  (In re William B. (2008) 163 Cal.App.4th 1220, 1230, italics added.)   Nor does it require that the parent fail or refuse to comply with two different case plans.   Rather, it requires that the parent fail or refuse to comply with treatment in a case plan “on at least two prior occasions.” (§ 361.5(b)(13).)   Here, appellant testified to five failed attempts at substance abuse treatment in 2003 and subsequent ongoing drug use.   For all these reasons, the court did not err by denying reunification services pursuant to section 361.5(b)(13).

II. Best Interest

Appellant contends notwithstanding the applicability of section 361.5(b)(10), (11) and (13), the juvenile court should have provided her reunification services in the best interests of the children.   It is true that a parent subject to section 361.5(b) may still obtain reunification services if the parent proves that those services would be in the child's best interests.  Section 361.5, subdivision (c), provides, in part:  “The court shall not order reunification for a parent ․ described in paragraph ․ (10), (11), ․ (13) ․ of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.”   It is the parent's burden to demonstrate that reunification services would be in the child's best interests.  (See In re Ethan N. (2004) 122 Cal.App.4th 55, 65.)

Here, appellant points to her participation in services and deep bond with the children.   She observes that M.M., in particular, is very attached to her and asserts that, in M.M.'s case, it may even be detrimental not to provide reunification services.   She acknowledges her failures but claims she has changed and matured and wants nothing more than to be with her children.   She also argues that providing her services would not delay permanency for the children in light of the fact that Lorenzo is receiving services.

In dependency proceedings, the juvenile court's primary concern is the best interests of the child.  (In re Kieshia E. (1993) 6 Cal.4th 68, 84.)   Though appellant cites evidence favoring reunification, the court must take a broader view.   Appellant's children had endured many years of chaos and violence and her newfound commitment to change did not alter that reality.   Nor were her recent efforts a significant indicator of success in light of her history.   In finding that reunification services would not serve the children's best interests, the juvenile court characterized appellant's prognosis as “extremely poor.”

In this case, we cannot say that the juvenile court abused its discretion in determining that it would not be in the child's best interests to provide appellant reunification services.  (See In re William B., supra, 163 Cal.App.4th at p. 1229[“[a] juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c)” and “[a]n appellate court will reverse that determination only if the juvenile court abuses its discretion”].)

DISPOSITION

The juvenile court order is affirmed.

FOOTNOTES

FOOTNOTE.  

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

FN2. Appellant challenged the juvenile court's setting of the section 366.26 hearing as to J.A. by writ petition.  (Cal. Rules of Court, rule 8.452.)   This court dismissed the petition as facially inadequate in an unpublished opinion (F062129) filed in June 2011..  FN2. Appellant challenged the juvenile court's setting of the section 366.26 hearing as to J.A. by writ petition.  (Cal. Rules of Court, rule 8.452.)   This court dismissed the petition as facially inadequate in an unpublished opinion (F062129) filed in June 2011.