Filed 5/2/17 In re A.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.A., a Person Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
V.S.,
Defendant and Appellant.
D071422
(Super. Ct. No. EJ3698C)
APPEAL from a judgment of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
2
INTRODUCTION
V.S. (Mother) challenges the juvenile court's denial of reunification services
related to A.A. (Minor 1) based on the prior termination of reunification services for a
half sibling of Minor 1 and Mother's failure to make a reasonable effort to treat the
problems that led to removal of the half sibling. (Welf. & Inst. Code, § 361.5, subd.
(b)(10).)1 We conclude there was substantial evidence to support the court's finding
Mother did not make a reasonable effort to treat the problems that led to the removal of
Minor 1's half sibling. We further conclude the court did not abuse its discretion or
violate Mother's substantive due process rights by denying her reunification services but
granting services to Minor 1's biological father. We affirm the judgment.2
BACKGROUND
A
Minor 1 was born in 2010 to Mother and father A.A. (Father A.). A welfare check
was conducted in May 2011 after receiving a report Minor 1 played on a floor covered in
dog feces and trash, was frequently left alone, and Mother used drugs in front of the
child. Officers found no safety threats or concerns. By March 2012, the maternal
grandmother cared for Minor 1 because Father A. was incarcerated and Mother's
whereabouts were unknown. Maternal grandmother gave Minor 1 to Father A. in

1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 In dependency cases, an order entered following a contested adjudication and
disposition hearing under section 300 is as a final appealable judgment. (§ 395, subd.
(a)(1); In re Adam D. (2010) 183 Cal.App.4th 1250, 1261.)
3
September 2012 during an investigation about her household. Although the report was
determined to be unfounded, maternal grandmother left Minor 1 in the care of Father A.
Minor 1 was sent to live with a maternal aunt in another state in April 2013 after it was
reported Father A. left bruises on Minor 1 and made the child smoke cigarettes. Mother
was using drugs and was to turn herself in to law enforcement. The report was
inconclusive, but Mother signed a temporary guardianship agreement authorizing the
maternal aunt to care for Minor 1 out of state.
B
Mother had two other children with father K.R. (Father R.): Minor 2, born in
2013; and Minor 3, born in 2014. Both children became involved in dependency cases.
1
Minor 2 tested positive for amphetamines at birth in 2013. Mother and Father R.
reported using methamphetamine prior to the birth of Minor 2 and for the prior year and a
half or two years. Parental reunification services related to Minor 2 were terminated the
month before Minor 3 was born because the parents did not make progress on their case
plan. Minor 2 was placed under the guardianship of the child's paternal grandmother.3
2
San Diego County Health and Human Services Agency (Agency) received a
referral upon the birth of Minor 3, who was born while Mother was incarcerated in 2014.
Although Mother tested negative for drugs at Minor 3's birth, Mother admitted she used

3 The court took judicial notice of the findings and orders in Minor 2's dependency
case.
4
methamphetamine the month before Minor 3 was born. Mother and Father R.
successfully completed their dependency case with Minor 3 in June 2015. In September
2015, the Agency received a report Mother, who was living in a sober living facility with
Minor 3, left Minor 3 in a playpen all day, Mother vaped in an enclosed car with Minor 3,
and Mother refused to take Minor 3 to the doctor. There was a concern Mother stayed up
all night and may have relapsed on methamphetamine. The investigation found no
evidence Mother failed to provide adequate food, clothing, shelter, medical care, or
supervision of Minor 3 at the time.
C
Minor 1 was returned to Mother's care in July 2016 by agreement of maternal
aunt. On October 3, 2016, the Agency received a referral after Minor 1 reported, "My
mom is a robber." Minor 1 stated Mother and Father R. smashed car windows with a
hammer and stole money from the cars. Minor 1 said a silver car "kept going beep, beep,
beep when my mom hit it with the hammer." Mother took Minor 1 and Minor 3 along as
Mother and Father R. broke car windows. Minor 1 acted as a lookout as Minor 3 slept in
the backseat of their car.
The following day, October 4, 2016, police officers responded to Minor 1's
elementary school to investigate allegations of child abuse. The school could not contact
Mother for two hours after Minor 1 complained of an earache. When Mother arrived at
the school, she exhibited signs of being under the influence of a controlled substance.
One of the responding officers knew Mother as "a prolific thief and methamphetamine
5
user." The officer knew Mother and Father R. from prior investigations involving thefts
from vehicles, residences and commercial buildings.
Minor 1 reported the children were awakened late at night to go out with Mother
and Father R. Father R. broke car windows with a hammer. Mother looked into the cars
and then ran back to their car. She brought home money she took from the cars. Minor
1's job was to tell Mother it was "time to go," if someone came.
The officer who interviewed Mother believed she was under the influence of a
controlled substance. The officer stated he had known Mother for about two years and
had seen her in various levels of sobriety. Mother could not sit still and was anxious and
agitated. She looked tired and started falling asleep when she sat down or there were
pauses in conversations. Mother said she used methamphetamine over the weekend with
Father R. She did not want her car searched, which the officer found suspicious. She
denied knowing anything about Minor 1's allegations.
Mother was arrested for being under the influence of a controlled substance
(Health & Saf. Code, § 11550, subd. (a)) and for child abuse for driving Minor 3 to the
school under the influence (Pen. Code, § 273a, subd. (a)). During a search of Mother's
vehicle, a syringe with a white crystalline substance was discovered in a wallet on the
front passenger seat within reach of a child. Officers also found a lock picking set, a
window punch tool, a methamphetamine pipe, and pawn slips. A urine sample collected
on the day of Mother's arrest tested positive for methamphetamine/amphetamine.
A social worker found five-year-old Minor 1 to be very articulate. Minor 1
reported Father A. was in jail. When asked about Mother and the cars, Minor 1 said, "My
6
mommy told me not to tell anybody." Minor 1 stated they would go out late at night with
a hammer, which Mother and Father R. used to break car windows. Minor 1 said, "we
were robbing cars to get money." When the social worker asked why Minor 1 and Minor
3 did not stay home, Minor 1 said, "because we have an important job to do," telling
Mother if someone was coming.
Father R. denied allegations he and Mother burglarized cars. Father R. said,
Minor 1 was a liar and made up stories. Father R. denied knowing mother was using
drugs again, but when confronted with evidence of track marks on her arm and drug
paraphernalia found in her car, he said he should have known. Father R. said he wanted
Minor 3 returned to him, but was not willing to take Minor 1 saying, "let [Minor 1's]
family take care of [Minor 1]."
D
The Agency filed a juvenile dependency petition on October 6, 2016, alleging
Minor 1 is a child within the jurisdiction of the juvenile court pursuant to section 300,
subdivision (b)(1), because Mother was unable to provide care to Minor 1 based upon her
drug use and Minor 1's report of acting as a lookout when Mother burglarized vehicles.
The petition alleged Father A. was unable to protect or supervise the child due to his
incarceration. The court detained Minor 1 in out-of-home care and ordered services and
visitation as well as $25 per month calling cards while the parents were in custody.4

4 A separate petition was filed for Minor 3 concurrently with the petition related to
Minor 1. The court found the allegations in the Minor 3 petition true by clear and
convincing evidence, declared Minor 3 a dependent of the court, removed care of Minor
7
Minor 1 liked living out of state with maternal aunt. Minor 1 also liked staying
with the current caregiver, a paternal relative. The maternal aunt was "appalled" that
Minor 1 was back in protective custody and stated she would do anything she could to
obtain custody of Minor 1.
1
In an interview after the detention hearing, Mother said Minor 1 was not
"completely in the dark." She knew Minor 1 told a teacher Mother was a "robber." She
said Minor 1 had an imagination and knew more than a child should know. Mother
tested positive for methamphetamines/amphetamines when she was arrested. Thereafter,
she refused to drug test. In November 2016 the social worker reported Mother was not
cooperative with the Agency and had not engaged in services.
The Agency did not recommend reunification services for Mother based upon
section 361.5, subdivision (b)(10), because she failed to reunify with Minor 1's half
sibling, Minor 2, and had not subsequently made a reasonable effort to treat the problems
that led to the removal of the half sibling. The jurisdiction and disposition report noted
Minor 1 had only been in Mother's care for 13 months over Minor 1's life of five years.
After obtaining custody of Minor 1 in July 2016, she exposed Minor 1 to criminal activity
and drug use. Mother relapsed and was not addressing the original protective issues

3 from Mother and Father R., and placed Minor 3 in the home of the relative caring for
Minor 2. The court denied reunification services related to Minor 3 for Mother and Father
R. pursuant to section 361.5, subdivision (b)(10). Mother and Father R. did not pursue
petitions for writ of mandate to challenge the court's findings as to Minor 3.
8
present in Minor 2's dependency case as Minor 1 and Minor 3 came to the Agency's
attention with nearly identical protective issues.
After a court hearing in November 2016, Mother was arrested for driving while
addicted to the use of a drug. (Veh. Code, § 23152, subd. (c).) A hypodermic needle was
found under a seat in the car.
Mother did not stay in communication with the Agency, did not engage in
voluntary services, and did not drug test by the time of the contested adjudication and
disposition hearing on December 1, 2016. Mother stated she was having difficulty
getting into an inpatient program, but admitted she had not reported these difficulties to
the Agency. Mother reported she was accepted into an inpatient program the day before
the adjudication and disposition hearing, but did not provide verification.
2
Father A. was serving a two-year sentence when the petition was filed. The
Agency initially did not recommend reunification services for Father A. pursuant to
section 361.5, subdivision (e)(1), due to his incarceration and the Agency thought it
unlikely Father A. would be released prior to the reunification timeline.
After interviewing Father A., the Agency recommended reunification services for
Father A. Father A. lived with Minor 1 and Father A.'s mother (paternal grandmother) in
2013 after Father A. was released from jail. Father A. had a job and had begun the
process of getting custody of Minor 1 when Mother took Minor 1, under the pretext of
going to a restaurant, out of state to live with maternal aunt. Father A. did not see Minor
9
1 again until the child returned to live with Mother in 2016, but Father A. wrote to and
called Minor 1 regularly when the child was out of state.
Father A. argued with Mother to see Minor 1 when the child returned to her care.
Eventually, Mother dropped Minor 1 off to visit Father A. every day until Father A. was
arrested in August 2016. Father A. stated Mother had been given multiple chances and
he wanted the same opportunity to engage in services offered by the Agency.
E
At the contested adjudication and disposition hearing, the social worker testified
Mother was provided with referrals to assist with substance abuse, parenting, and
therapy. Mother did not provide written documentation or sign releases to allow the
social worker to verify if Mother had engaged in services. She did not agree to drug test
for the Agency. Minor 1 was comfortable living with a paternal relative. Minor 1 had
sibling visits with Minor 2 and Minor 3.
The court found by clear and convincing evidence the allegations in the petition
were true and declared Minor 1 a dependent of the court. Custody was removed from
Mother and Minor 1 was placed with a relative. The court found Minor 1's detailed
statements of involvement with Mother's criminal activity consistent with circumstantial
evidence. The court noted, "this is a five-year-old child who has given concrete, minute
details of being a [lookout]. And generally speaking, that seems to be something that a
five-year-old child just doesn't make up." The court ordered no reunification services for
Mother pursuant to section 361.5, subdivision (b)(10).
10
The court found Father A. was a noncustodial parent requesting custody. It found
it would be detrimental to place Minor 1 with Father A. But the court ordered
reunification services for Father A. and ordered him to comply with the case plan.
DISCUSSION
I
"Ordinarily, when a child is removed from parental custody, the juvenile court
must order services to facilitate the reunification of the family. (§ 361.5, subd. (a).)"
(R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).) Recognizing " ' "it may
be fruitless to provide reunification services under certain circumstances," ' " the
Legislature enumerated circumstances in section 361.5, subdivision (b) under which
reunification may be bypassed. (In re B.H. (2016) 243 Cal.App.4th 729, 736.) " ' "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." ' " (R.T., supra, at
p. 914.) We review an order denying reunification services for substantial evidence.
(Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (Cheryl P.).)
The bypass provision of section 361.5, subdivision (b)(10) has two requirements:
"(1) the parent previously failed to reunify with a sibling of the child; and (2) the parent
11
failed to make reasonable efforts to correct the problem that led to the sibling being
removed from the parent's custody." (Cheryl P., supra, 139 Cal.App.4th at p. 96.)5
The court here found Mother should not be provided with reunification services
based upon section 361.5, subdivision (b)(10). The court took judicial notice of the
findings and orders in Minor 2's dependency case, which satisfied the first requirement.
Mother contends there was no substantial evidence of the second requirement:
lack of reasonable effort to correct the problem that led to the removal of the sibling.
Mother contends her participation in services, including a drug rehabilitation program,
with regard to Minor 3 demonstrate she made reasonable efforts to correct the problem
that led to the removal of Minor 2 even though she subsequently relapsed. We are not
persuaded.
The reasonable effort requirement does not mean "any effort by a parent, even if
clearly genuine, to address the problems leading to removal will constitute a reasonable
effort and as such render these provisions inapplicable. It is certainly appropriate for the
juvenile court to consider the duration, extent and context of the parent's efforts, as well
as any other factors relating to the quality and quantity of those efforts, when evaluating

5 Section 361.5, subdivision (b)(10) provides in pertinent part: "Reunification
services need not be provided to a parent … described in this subdivision when the court
finds, by clear and convincing evidence, … [¶] … [¶] [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 … pursuant to Section 361 and that parent … is the same
parent … described in subdivision (a) and that, according to the findings of the court, 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."
12
the effort for reasonableness. And while the degree of progress is not the focus of the
inquiry, a parent's progress, or lack of progress, both in the short and long term, may be
considered to the extent it bears on the reasonableness of the effort made. [¶] Simply
stated, although success alone is not the sole measure of reasonableness, the measure of
success achieved is properly considered a factor in the juvenile court's determination of
whether an effort qualifies as reasonable." (R.T., supra, 202 Cal.App.4th at pp. 914–915,
italics omitted.)
In this case, the court found it disturbing Mother knew the Agency recommended
no reunification services from the inception of the case, yet she acted as though she did
not care. The court considered Mother's refusal to voluntarily submit to drug tests during
the pendency of the proceeding to be an indication she lacked insight into the problems
that resulted in removal of her children. The court found Mother was previously
involved in recovery and understood the steps required to maintain recovery. But
"whatever [she] learned just went out the window. There is no behavior to indicate that
[she] learned anything the previous two times around in the dependency court." The
court also looked at the history in Minor 1's five years of life and the fact Mother "got
herself back into the drug culture" almost immediately after Minor 1 was returned to her
care. The court's findings are supported by the record.
Although we do not diminish Mother's efforts to engage in services to reunify with
Minor 3 in 2015, the record does not indicate Mother made reasonable efforts to maintain
sobriety once she left court supervision to address the drug use that led to the removal of
Minor 2. Mother reported she successfully completed a drug rehabilitation program
13
through the drug court in 2014, but she had been using "meth on the weekends" shortly
after she regained custody of Minor 1. When asked why she did not seek help from her
sponsor when she relapsed, Mother stated she was not happy with her sponsor and put off
finding another sponsor. She stated, "I know I'm an addict." Mother arrived at Minor 1's
school two hours after the school called her about her sick child. She was under the
influence of drugs, with another child in the car. Mother minimized her condition in later
discussions saying she was not high, but was coming down. She also said Minor 1 was
lying about the vehicle burglaries. The police officer who responded had known Mother
for two years as a "prolific thief and methamphetamine user" and observed physical signs
she was under the influence.
When Minor 1 and Minor 3 were detained, the Agency recommended no services
be offered to Mother pursuant to section 361.5, subdivision (b)(10). However, Mother
refused to drug test during the pendency of this dependency case. She stated it was not a
priority. Following a hearing in this matter, Mother was arrested for a Vehicle Code
violation and a hypodermic needle was found in her car.
Two days before the disposition hearing, when the social worker asked Mother if
she had engaged in voluntary services since the children were detained, Mother said
"What's the point, you're not offering me services." Mother reported the day before the
disposition hearing, she had been accepted into an inpatient program, but did not provide
verification. Under these circumstances, there was substantial evidence to support the
court's finding Mother had not made reasonable efforts to treat the problem that led to the
removal of Minor 2 because she continued to engage in the same conduct. The court did
14
not err in denying her reunification services pursuant to section 361.5, subdivision
(b)(10).
II
Mother contends the court abused its discretion and violated her substantive due
process rights by denying reunification services to her but granting reunification services
to Father A. We do not agree.
"Substantive due process prohibits governmental interference with a person's
fundamental right to life, liberty or property by unreasonable or arbitrary legislation." (In
re Alanna A. (2005) 135 Cal.App.4th 555, 565–566.) The Legislature has recognized
"there are circumstances in which reunification with a particular parent is presumptively
contrary to the child's best interest. [Citations.] When those circumstances apply, the
bypass provisions of section 361.5 protect the child, promote the child's permanency and
stability, and help focus limited resources where they can best effect the goals of child
protection and family reunification. These provisions have a crucial role in meeting the
primary goals of dependency proceedings." (In re Adrianna P. (2008) 166 Cal.App.4th
44, 59.) Inherent in subdivision 361.5, subdivision (b) " 'appears to be a very real
concern for the risk of recidivism by the parent despite reunification efforts.' " (Cheryl
P., supra, 139 Cal.App.4th at p. 96.)
Mother here was given multiple opportunities to address her drug addiction issues
and to reunify with her children, yet she has squandered those opportunities and did not
take reasonable steps to address the issues that led to removal of her children in the past.
Instead, within a short time of regaining custody of Minor 1, she was using drugs and
15
involved her children in criminal activity. The court expressed concern about Minor 1's
unstable life to that point and the need to stabilize the child's situation.
The evidence showed Father A. stayed in contact with Minor 1 through letters and
phone calls during the time the child lived out of state and visited almost daily upon the
child's return to California. Despite Father A.'s own issues with incarceration, he
remained a constant figure in Minor 1's life. Father A. expressed a willingness and desire
to avail himself of reunification services and participated in development of a case plan.
He stated Mother "has been given multiple chances to reunify" and asked for the same
opportunity. The termination of services to Mother was rationally related to a legitimate
interest in focusing government resources on the one parent in Minor 1's life who has not
demonstrated recidivist behavior with respect to parenting and who appears committed to
reunifying with Minor 1. There was no abuse of discretion or denial of substantive due
process.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
DATO, J.