In re A.H.

Filed 1/29/07 In re A.H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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D.H. (appellant), the mother of A.H. (the minor), appeals from juvenile court orders terminating her parental rights. (Welf. & Inst. Code, 366.26, 395; further section references are to this code.) She raises no issues relating to the proceedings in which her parental rights were terminated. Instead, she reargues issues previously raised in a petition for writ relief pursuant to California Rules of Court, rule 8.452. (See Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501.) We shall affirm the orders.

FACTS

In November 2005, the Department of Health and Human Services filed a dependency petition to remove the newborn minor from appellants custody. The petition alleged that the minor tested positive for cocaine at birth and that appellant admitted she used drugs in the first trimester of the pregnancy. The petition further alleged that the minors twin half-siblings also tested positive for cocaine at birth in February 2004, that they and a third half-sibling were removed from appellants custody, that appellants reunification services were terminated, and that adoption proceedings for the half-siblings were pending.

Appellant had previously failed both informal supervision and court-ordered treatment. When questioned after the minors birth, appellant insisted that she had not been using illicit drugs since May 2005 and had been living in transitional housing since September 2005 after completing a residential drug treatment program. Because the minor tested positive for cocaine, appellant was discharged from her transitional housing and was returned to inpatient treatment. It was unclear whether appellant was testing while in transitional housing; however, her last test in May 2005, upon admission to the inpatient program, was positive.

The report for the jurisdictional and dispositional hearings stated that after her initial interviews, appellant contacted the social worker and admitted she met the minors father the day before the minor was born and got high. She said that she decided to be truthful after returning to the residential drug treatment program because there were many issues she failed to address the first time around and she wanted to be honest this time. She acknowledged that she was offered services in the half-siblings case but did not engage in them because she was more interested in getting high. She admitted that she failed to reunify with the half-siblings, who were being adopted by the maternal grandmother. According to the report, appellants substance abuse counselor was optimistic that appellant would complete treatment again despite her relapse and initial unwillingness to admit actual drug use. Appellant told the social worker about her lengthy history of polysubstance abuse. The social worker concluded services were unlikely to be effective in eliminating the risk to the minor due to appellants history of substance abuse, her failure to utilize the services offered to her, and her recent use of cocaine.

The social workers report also reviewed the evidence in support of denying services to appellant pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13). It stated petitions were filed in April 2004 as to the three half-siblings, alleging serious and chronic substance abuse by appellant and stating that two of the half-siblings tested positive for cocaine at birth. At that time, the juvenile court ordered appellant to participate in services, including residential drug abuse treatment, to reunify with the half-siblings. The court subsequently found that appellant failed to participate and make progress in the plan; consequently, the court terminated services. In April 2005, the court terminated appellants parental rights as to the half-siblings. The report further stated that, while appellant made some effort thereafter to rehabilitate, she used cocaine while pregnant with the minor, who tested positive for cocaine at birth. The report expressed the view that appellant had resisted prior court-ordered treatment within three years of the date of filing of the current petition because she was referred in 2004 to inpatient treatment, testing and 12-step programs but failed to participate in the services or maintain sobriety. The report concluded that it was not in the minors best interests pursuant to section 361.5, subdivision (c) to offer services to appellant based upon the following factors: Although appellant consistently visited the minor, there did not appear to be a significant bond between them; appellant relapsed while in transitional living, indicating she continued to have difficulty with drug addiction; and appellant had a poor prognosis for success since she failed to participate in services before and it was unlikely similar services would be effective now.

An addendum report in December 2005, stated that appellant was readmitted to residential drug treatment on November 9, 2005, for 30 days. Subsequently, the counselor reauthorized appellant for a full 90 days in residential treatment and counseled her about remaining there for the extended time in order to address previously unidentified issues that led to her relapse. The social worker also counseled appellant that remaining in the program for 90 days would show commitment to recovery. Nevertheless, appellant left after 30 days and returned to the transitional program where she continued to test negative for drugs.

At the hearing on January 4, 2006, the social worker testified that appellant eventually disclosed her single drug use. According to the social worker, appellants drug use while pregnant and her evasiveness about her drug use prior to the minors birth indicated appellants resistance to treatment. The social worker further testified appellant entered treatment on her own after termination of parental rights in the half-siblings case; however, the social worker believed it was not in the minors best interests to provide services to appellant because appellant has a pattern of continued drug use and denial. Acknowledging appellant was compliant with treatment at that time, the social worker opined that appellants actions show her lack of dedication to full participation in treatment. In the social workers view, appellant had not had significant time to bond with minor, who has never been in her care.

Appellant testified she used cocaine before the minor was born because she was depressed about her ability to deal with a baby. Noting that she had a sponsor in a 12-step program and wanted to stay clean, appellant believed that she had learned to live without using drugs. When asked about the 90-day residential treatment offer, she testified it was only a suggestion and she felt she needed to show she could maintain sobriety with less supervision. Appellant testified she was not compliant with the prior services because she failed to go to a residential program and only attended an outpatient program for about two months. Appellant admitted that in her first trimester of pregnancy, she used drugs frequently up until the time that she entered the residential treatment program.

There were offers of proof that program counselors would testify that appellant was doing well and making progress in the program and that leaving residential treatment early did not jeopardize her recovery.

The juvenile court denied services on all three grounds and scheduled a selection and implementation hearing. At that hearing, the court terminated appellants parental rights.

DISCUSSION

I

Appellants argument on appeal is limited to the contentions raised in her prior petition for writ relief from the order setting the section 366.26 hearing. Subsequent appellate review of findings subsumed in an order setting a section 366.26 hearing is dependent upon an antecedent petition for writ review of those findings having been summarily denied . . . . (Joyce G. v. Superior Court, supra, 38 Cal.App.4th at p. 1513; 366.26, subd. (l).) Appellant did file a writ petition raising issues identical to those now being argued on appeal. The petition was summarily denied on the merits. (See D[.]H. v. Superior Court (Feb. 23, 2006, C051699) [nonpub. order].) When the denial is summary, the petitioner retains his or her appellate remedy ( 366.26, subd. (l)(1)(C)) but is limited to the same issue on the same record ( 366.26, subd. (l)(1)(B)) and thus is destined on appeal to receive the same result. (Joyce G. v. Superior Court, supra, 38 Cal.App.4th at p. 1514.)

II

Appellant contends the juvenile court erred in denying her services pursuant to section 361.5, subdivisions (b)(10) and (b)(11) because the evidence showed she had made reasonable efforts to treat the problems which led to the removal of the minors half-siblings. She further claims the evidence did not support the courts finding that section 361.5, subdivision (b)(13) was applicable. This is so, she argues, because she relapsed only once while in the transitional living program. Since services could be denied to appellant under any of these subdivisions, it is sufficient on review if any one of them was properly found to apply by the juvenile court. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72; In re Jasmine C. (1999) 70 Cal.App.4th 71, 76, 77.)

Section 361.5, subdivision (b)(13) states that services may be denied to a parent when the court finds, by clear and convincing evidence [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 courts 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.

Here, appellant admitted a history of extensive polysubstance abuse. And she testified she failed to participate in residential treatment and left outpatient treatment in the prior case, which was within three years of the filing of the petition in this case. Additionally, despite termination of her parental rights as to the half-siblings, appellant continued frequent use of drugs during the first trimester of her pregnancy with this minor. After appellant decided to enter and complete residential treatment and was able to move to transitional living, she again decided to get high knowing that she was near the end of her pregnancy and that, as with her twins, the drugs would be transmitted to the minor. Following the minors detention, appellant reentered treatment, stating she recognized there were many issues she had not yet dealt with. However, when offered additional time to work on these issues in a residential treatment setting, she chose to try to prove she could maintain sobriety in a less structured setting without having fully resolved her problems, placing herself in a position identical to that which led to her last relapse. These facts are ample evidence of appellants resistance to treatment within the meaning of the statute. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.)

Because the juvenile courts decision to deny services pursuant to section 361.5, subdivision (b)(13) was supported by substantial evidence (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214), we need not address the remaining reasons for denial of services.

III

Appellant claims that it was in the minors best interest that reunification services be provided, and the juvenile court erred by failing to so find.

The court shall not order reunification for a parent or guardian described in paragraph . . . (10), (11) [or] (13) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. ( 361.5, subd. (c).)

The evidence before the juvenile court presented a pattern of appellants failure time and again to come to grips with the severity of her substance abuse problem and to maintain any significant period of sobriety. The minor was an infant and had never been in appellants care so that, even with regular visits, any bond between them was minimal at best. While appellant appears to be beginning to take steps to address her addiction and, as her counselors believe, may eventually be successful in recovery, the minor is not required to wait in the limbo of foster care until appellant does so. The interests of the minor are in a safe, stable and secure home now. The juvenile court properly concluded that it was not in the minors best interests to provide services to appellant.

DISPOSITION

The orders of the juvenile court are affirmed.

SCOTLAND, P.J.

We concur:

DAVIS , J.

RAYE , J.

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