In re Andrew V.

Filed 10/5/06 In re Andrew V. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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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Sherri V. (appellant), the mother of Andrew V. (the minor), appeals from the juvenile court’s orders denying her reunification services. (Welf. & Inst. Code, §§ 360, 361.5, subd. (b), 395.)^[1] Appellant claims she was improperly denied reunification services. We shall affirm.

Facts and Procedural History

In April 2005, a dependency petition was filed by the Sacramento County Department of Health and Human Services (the Department) concerning the nine-month-old minor, alleging that appellant was unable to care for the minor due to her mental illness. According to the petition, appellant had been diagnosed with bipolar disorder and post-traumatic stress disorder, was “medication noncompliant“ and was exhibiting erratic behavior. The petition also alleged that appellant had three other children who were previously dependents of the juvenile court as a result of appellant’s mental health and substance abuse problems with whom she had failed to reunify. According to the detention report, appellant recently had completed six months of informal supervision, during which she abstained from drug use and “did very well,” but her behavior had become erratic in the preceding few days.

At the detention hearing, a letter from appellant’s doctor was submitted, explaining that appellant had been given the wrong medication by her pharmacy and had had an allergic reaction leading to her decompensation. The juvenile court ordered the minor released to appellant.

According to the jurisdictional report, appellant had been receiving services from various agencies for the preceding two years. Appellant had continued to comply with these services since the initiation of dependency proceedings and had “demonstrated great efforts in trying to rectify the event” leading to the filing of the petition.

However, in July 2005, and prior to the jurisdictional hearing, the minor was again detained when it was discovered that he had “extensive bruising of the buttocks [] consistent with inflicted trauma.” In addition, the social worker had received referrals reporting that appellant was abusing alcohol. Appellant admitted she had started drinking and that she was not taking her psychotropic medication. She also acknowledged she had received substance abuse treatment as part of her prior dependency cases. Records from previous dependency proceedings confirmed that appellant had been enrolled in substance abuse treatment at least as recently as January 2003.

A first amended petition was filed adding allegations based on these events. Based on appellant’s inability to refrain from substance abuse and her failure to reunify with other children, the social worker recommended that services not be offered to her.

After numerous continuances, the jurisdictional hearing went forward in December 2005, and the juvenile court sustained the petition with various amendments. Appellant testified in support of her request for reunification services. She alluded to problems she was having with the minor’s father, testifying that her most recent relapse occurred because she felt “hopeless” and was not receiving any help from the Department or the court. Appellant testified that she drank heavily during her relapse, which she indicated occurred over a three-week period. Appellant intimated she relapsed intentionally to get the minor removed in order “to save him,” presumably from the father. A significant portion of appellant’s testimony was aimed at disparaging the minor’s father, with assertions, for example, that he had falsely imprisoned her, had committed acts of “tortur[e],” was using alcohol and “crack” and had taken her money and identification to keep her from testing.

Appellant acknowledged she had experienced “issue[s]” with alcohol for 15 years but maintained she had been sober for five months and had not used illegal substances for two years. Appellant testified that, since the minor was removed, she had participated in several treatment programs and had been testing regularly, although she had left two inpatient programs without completing them. At the time of the hearing, appellant was in a “transitional living environment“ and was attending outpatient treatment. She acknowledged similar services had been offered to her in the past without success but she felt she was now older and stronger.

The juvenile court denied reunification services to appellant based on her history of substance abuse (§ 361.5, subd. (b)(13)) and her failure to reunify with other children (§ 361.5, subd. (b)(10)) but ordered services for the minor’s father.

Discussion

Appellant claims the trial court erred by denying her reunification services. We disagree.

The dependency scheme provides for the denial of reunification services to a parent under limited, well-delineated circumstances. (See § 361.5, subd. (b).) One such circumstance, described in section 361.5, subdivision (b)(13), is when the juvenile court finds by clear and convincing evidence “[t]hat the parent 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.” Resistance to treatment may be established by evidence that a parent has undergone court-ordered treatment at any time and, during the three years preceding the filing of the petition, the parent resumes substance abuse. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 (Laura B.); In re Levi U. (2000) 78 Cal.App.4th 191, 200.) Denial of services is reviewed for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

Appellant acknowledged she is an alcoholic, and records from prior dependency proceedings reflect she has struggled for many years with substance abuse. She also acknowledged she had participated in numerous treatment programs attendant to previous dependency proceedings. Court records from those proceedings reflect appellant was still in treatment as recently as January 2003. Yet, despite appellant’s multiple efforts at rehabilitation, she was unable to maintain sobriety and returned to alcohol abuse, resulting in the filing of the amended petition in the minor’s matter. Appellant’s return to alcohol abuse after being engaged in court-ordered substance abuse programs constitutes resistance to treatment and was a proper basis for the denial of reunification services.

Relying on Laura B., supra, 68 Cal.App.4th 776, appellant contends her “‘brief relapse’“ should not be considered resistance to treatment. However, unlike the hypothetical situation referred to in Laura B. of “fall[ing] off the wagon on one or two occasions” (id. at p. 780), by her own admission, appellant drank heavily for several weeks. The duration and extent of appellant’s use of alcohol during this period can be construed only as a resumption of substance abuse. Accordingly, the juvenile court properly concluded that appellant’s conduct manifested a resistance to treatment.

Appellant also suggests that, even if reunification services properly could be denied, the juvenile court abused its discretion by not ordering such services under section 361.5, subdivision (c). Contrary to appellant’s claim, section 361.5, subdivision (c), does not supply a basis for a grant of services to her. At the time of the dispositional hearing in the minor’s matter, this subdivision provided in relevant part: “The court may not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (2d par.)

“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.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) It is in this context that the juvenile court may consider whether, despite the application of a basis for denying reunification services, the minor’s best interest dictates that services be offered.

The purpose of imposing a “best interest of the child” standard “‘is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’” (In re Ethan N. (2004) 122 Cal.App.4th 55, 66 (Ethan N.).) One of the factors the juvenile court may consider when determining whether a child’s best interest will be served by pursuing reunification is “a parent’s current efforts and fitness as well as the parent’s history.” (Ibid.) Appellant had a 15-year history of substance abuse and, although she was making efforts to obtain treatment, she blamed others for her relapse and continued to exhibit difficulty in completing various programs.

“The gravity of the problem that led to the dependency also is relevant to the question of best interest.” (Ethan N., supra, 122 Cal.App.4th at p. 66.) Appellant had experienced repeated problems with substance abuse, mental illness and the physical abuse and neglect of her children for many years, and the minor was injured during appellant’s most recent relapse. Nor did the strength of the bond between appellant and the minor favor reunification. (See id. at p. 67.) The social worker assessed that the bond between appellant and the minor was weak.

That the minor, not quite one year old, appeared to have been physically abused during appellant’s return to alcohol abuse underscores the risks posed to the minor. And the evidence before the juvenile court raised little prospect for appellant’s successful reunification with the minor. The tradeoff for attempting reunification would be continued instability and uncertainty for the minor. Under these circumstances, the juvenile court did not err in finding a lack of clear and convincing evidence that reunification services would be in the minor’s best interest.

As we conclude the juvenile court properly denied appellant reunification services based on her history of substance abuse and resistance to treatment, it is unnecessary for us to address the other ground relied on by the juvenile court for denial of services.

Disposition

The juvenile court’s order is affirmed.

DAVIS , J.

We concur:

SIMS , Acting P.J.

HULL , J.

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^[1] Further undesignated section references are to the Welfare and Institutions Code.