Filed 10/17/17 A.H. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| A.H.,
Petitioner,
v.
THE SUPERIOR COURT OF FRESNO COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
|
F075996
(Super. Ct. No. 07CECJ300302-5)
OPINION |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Leanne L. LeMon, Commissioner.
A.H., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
A.H. (mother), in propria persona, seeks extraordinary writ review of the juvenile court’s dispositional orders, denying her reunification services under Welfare and Institutions Code, section 361.5,[1] subdivisions (b)(10) and (11) and setting a section 366.26 hearing as to her now nine-month-old daughter Ava. Mother contends she completed or was participating in services and argues the court should have increased visitation. She seeks a writ directing the juvenile court to vacate its section 366.26 hearing and return Ava to her custody. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Two-month-old Ava was taken into protective custody in March 2017 by the Fresno County Department of Social Services (department) after mother was found caring for her while intoxicated. The police had received a call about mother staggering while pushing Ava in a stroller and appearing disoriented. An officer placed a protective hold on Ava (§ 300) and took mother into custody after she became aggressive and threatening. (§ 5150, subd. (a).) Mother disclosed that she drank a 24-ounce can of beer and a bottle of vodka.
Ava was not the first of mother’s children to be removed from her custody because of her alcohol abuse. In March 2008, the juvenile court removed mother’s three oldest children from her custody and provided her reunification services, including substance abuse treatment. However, she failed to comply. The juvenile court terminated her services in November 2008 and ordered the children into a permanent plan of legal guardianship. Mother subsequently gave birth to a son, Blaine, who was taken from her in August 2013 at the age of one month. Mother was abusing alcohol and hydrocodone and was seen incoherent and falling asleep while holding the baby. The court denied her services and in September 2014 terminated her parental rights.
In April 2017, the juvenile court ordered Ava detained pursuant to a dependency petition, ordered supervised visitation for mother and set a combined jurisdiction/ disposition hearing. The department placed Ava with a relative.
The department recommended the juvenile court adjudge Ava a dependent child and deny mother reunification services under section 361.5, subdivision (b)(10), (11) and (13) because of her untreated alcohol abuse and failure to reunify with Ava’s siblings. The department also recommended the court deny Ava’s father, J.H., reunification services on the same grounds if his whereabouts became known.[2]
Mother challenged the department’s recommendations and testified at a contested hearing in July 2017 that she pursued services on her own. In April 2017, she completed an online parenting class and entered intensive outpatient substance abuse treatment. She subsequently completed an anger management program and was participating in Alcoholics Anonymous (AA) meetings. Asked why the court should provide her services to reunify with Ava, she said she benefitted from them and Ava would benefit because she would be a better parent.
Mother further testified she was sober for four years, from 2008-2012, while she was trying to regain custody of her three older children. After that, she used alcohol “off and on” until Ava was removed from her on March 27, 2017, which she claimed as her sobriety date. During that time, she did not receive substance abuse or mental health treatment, attend domestic violence or anger management classes or participate in AA meetings.
H. Dion Rowe, a substance abuse counselor, testified mother was his client during the first phase of her treatment. She since transitioned to the less intensive second phase of the three-phase program. The third phase was aftercare, which lasted eight to twelve weeks. Rowe was aware of mother’s substance abuse history and observed positive changes in her behavior. She was open, honest and willing to change and coped “very well” with her emotions and feelings. She took a leadership role in his group and provided “very good feedback to other clients who were having problems.”
The juvenile court adjudged Ava a dependent child, ordered her removed from mother’s custody and denied mother reunification services under section 361.5, subdivision (b)(10) and (11). The court did not find sufficient evidence to deny her services under subdivision (b)(13). The court found the department exercised due diligence to locate J.H. but his whereabouts were unknown. The court denied him reunification services as recommended.
DISCUSSION
When the juvenile court removes a child from parental custody, it is required to order reunification services for the parent(s) unless any of the exceptional circumstances listed in section 361.5, subdivision (b) applies. (§ 361.5, subds. (a) & (b)(1)-(16).) The juvenile court denied mother reunification services under section 361.5, subdivision (b)(10) and (11), which authorizes the denial of services when it finds by clear and convincing evidence:
“(10) [t]hat the court ordered termination of reunification services for any siblings … of the child because the parent … failed to reunify with the sibling … after the 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 … of that child from that parent .…
“(11) [t]hat the parental rights of a parent over any 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 … of that child from the parent.…”
By enacting section 361.5, subdivision (b)(10) and (11), the Legislature intended to provide services only if they would facilitate the return of children to parental custody. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112.) When the court determines one of those provisions applies, the general rule favoring reunification is replaced with a legislative presumption that offering services would be “ ‘an unwise use of governmental resources.’ ” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) In other words, “ ‘the likelihood of reunification is so slim that scarce resources should not be expended on such cases.’ ” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Inherent in this subdivision is “ ‘a very real concern for the risk of recidivism by the parent despite reunification efforts.’ ” (Ibid.)
In evaluating whether a parent has made “a reasonable effort” to treat the problems that led to removal of the sibling, the court focuses on the extent of the parent’s efforts, before and after the department has intervened. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.)
We review an order denying reunification services for substantial evidence. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196.) In so doing, we draw all reasonable inferences in favor of the juvenile court’s order. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the court’s finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Mother does not argue that the juvenile court erred in denying her reunification services. Nor does she seek an order for services. Rather, she requests custody of Ava and an order vacating the section 366.26 hearing. As support for her request, she informs this court she maintains her sobriety, consistently attends AA meetings and identifies specific services she completed or is projected to complete in the near future.
Under the circumstances, there is no basis for vacating the section 366.26 hearing and returning Ava to mother’s custody. The juvenile court decided that returning Ava to mother’s custody was not an option because she failed to make reasonable efforts to treat her alcohol abuse after the termination of her reunification services as to her three older children and parental rights as to Blaine. Though mother initiated services on her own in April 2017, her efforts came too late to prevent Ava’s removal in March.
We conclude substantial evidence supports the juvenile court orders denying mother reunification services and setting the section 366.26 hearing and deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.
* Before Detjen, Acting P.J., Peña, J. and Smith, J.
[1] Statutory references are to the Welfare and Institutions Code.
[2] J.H. is the father of mother’s children and a party to the dependency proceedings. Like mother, he suffers from alcohol abuse and received reunification services for the three older children but failed to comply. The court also provided him services for Blaine but he was noncompliant.
