In re Dennis J.

Filed 10/4/06 In re Dennis J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis E. Wagner, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

INTRODUCTION

Appellant Dennis J., Sr. (appellant) asserts that the juvenile court abused its discretion because: (1) there was no substantial evidence to support the decision to deny him reunification services as he neither resisted nor refused drug treatment within the three years prior to the children’s removal; and (2) there was no evidence that providing him services would be detrimental to the children. Like respondent, we disagree on both points, and we will affirm.^[1]

FACTUAL AND PROCEDURAL HISTORY

On August 9, 2005, Sheriff’s Deputy Gaffney (Gaffney) found one of appellant’s three children, D’Andre (born August 1996), alone in the family’s abandoned former residence in San Bernardino; a second child, D.J. (born May 1998) was at a neighbor’s home down the street; the third child, Dennis Jr. (born August 1994) was found at the home of a friend. Department of Children’s Services (DCS or the Department) social worker, Cody Dawkins (Dawkins), responded to Gaffney’s call regarding the children. The three children said they had not seen appellant for at least two days and had been eating at neighbors’ homes. D’Andre had been bitten by the family pit bull and had a “thick scar” on his arm. The house, which had been “red tagged”^[2] by Code Enforcement, was filthy; the yard was littered with trash and furniture; the floor inside was littered with dirty clothing; drug paraphernalia with residue from heroin and amphetamines was in “plain view” in the master bedroom closet; and there was no food.

Three days later, on August 12, 2005, DCS filed a Welfare and Institutions Code^[3] section 300, subdivision (b) petition alleging that appellant and the children’s mother had left drug paraphernalia in plain view and accessible to the children (b-1); that D’Andre and D.J. had been left in “deplorable” conditions without food or any adult supervision for at least two days (b-2); that appellant and the mother had a history of substance abuse which impaired their ability to parent (b-3); that the house in which the children were left was in such poor condition that it was red tagged by Code Enforcement (b-4); that D’Andre had been bitten by the family pit bull and that appellant and the mother had failed to seek medical attention for him (b-5); that the whereabouts of appellant and the mother, and their ability to parent, were unknown (g-6); and that appellant and the mother had left the children without any provision for support (g-7).

The Department’s jurisdiction/disposition (J/D) report, filed September 2, 2005, recommended, pursuant to the provisions of section 361.5, subdivisions (b)(13) and (e)(1), that appellant and the mother be provided with no family reunification services.

The report documented appellant’s long history of drug abuse and failed attempts at rehabilitation. Like his wife, appellant had a 10-page criminal record. Between 1979 and 2005, he had been arrested 14 times for drug-related offenses; in addition, he had two felony “strikes,” related to drugs and attempted burglary. Appellant and the children’s mother had had at least five years of family reunification services, including referrals to several different substance abuse programs. Their children “ha[d] suffered extensive abuse at the hands of their parents” due to the ongoing substance abuse problems.

The current removal was the fourth since 1997. The children had been removed from appellant’s and the mother’s care by Nevada child protective services for drug-related abuse and neglect in 1997. The parents had not regained custody until 1999 when they completed a substance abuse program in San Diego.

The children were again removed in March 2000 after appellant and the mother abandoned them in a motel. At that time, appellant told the social worker that he had participated in numerous drug rehabilitation programs and did not want to go through another one. In April 2001 the children were returned to appellant on a family maintenance plan but were removed once more on December 14, 2001, after they were found in appellant’s van with three unrelated adult males and open containers of alcohol, folding knives, and crack cocaine. The child Dennis reported that one of the men in the van stuck him with a needle and that after that he felt “good.” All three children tested positive for cocaine. Appellant said he had no idea the children were in the van because he had been arrested and incarcerated on an outstanding warrant on November 30 for having failed to report to drug court. He had relapsed “several times” since the children had been returned to him. On June 6, 2002, the children were ordered into long-term foster care. They were returned to appellant and the mother in March 2004, because the parents were reportedly maintaining a sober lifestyle and had found housing. The case was dismissed in March 2005; the next removal occurred four months later.

On July 11, 2005, Dawkins had removed the three children from the home and placed them with their maternal grandmother, Florence Meadows (Meadows), in San Diego. At the time of that removal, appellant told the social worker that he had last “used” about two weeks earlier. After keeping the children for about two weeks, and despite having concerns about the parents’ condition and the condition of the home, Meadows had “dropped them back off” at their parents’ home.

The Department served notice of hearings regarding the August 5, 2005, petition at the home from which the children were removed, and at which appellant was apparently receiving his MediCal and food stamp benefits, but he missed both the detention and the first J/D hearings. On October 6, 2005, he appeared in court for the first time. The juvenile court ordered him to drug test, explaining that it would consider a failure to test as a “positive,” but there is no evidence in the record that appellant ever complied with the order. The court personally ordered appellant to return on October 14, the following week, but he failed to appear.

On December 29, 2005, appellant, who in the interim had been sentenced to two years in state prison, appeared in custody. The court modified allegation b-2 to indicate that the children had been left without “adequate” (rather than “any”) adult supervision and then found allegations b-1 through b-4 true. Disposition was set for contest.

Appellant authorized his attorney to proceed on his behalf at the contested hearing on January 5, 2006. Social Worker Dawkins testified that appellant told her he had been clean for three years before the present removal. Although the Department had not referred him to a substance abuse program since 2004, it had advised him to continue in an aftercare “AA” or “NA”^[4] program. However, appellant had not gone to AA or NA. Dawkins confirmed that appellant had failed to complete a drug court-supervised program in 2001 and had “relapsed” on several occasions after completing other programs. After the children were removed on August 5, 2005, appellant disappeared for two months; when he “resurfaced” in October he admitted that he had been using again. In the past, while appellant had never “refused to complete“ a program, he had failed in the sense that he had relapsed on several occasions. Appellant had attempted or initiated at least seven different drug treatment programs.

After the social worker’s testimony, counsel for the Department asked the court to deny reunification services pursuant to the provisions of section 361.5, subdivision (b)(13), because the parents had a history of chronic substance abuse and had resisted court-ordered treatment within the three years prior to the filing of the case which had brought the matter to the court’s attention. Counsel also argued that reunification services should be denied to appellant under subdivisions 361.5 subdivisions (a) and (e)(1), because appellant would be incarcerated for a period exceeding the statutory time limits and because the provision of services to appellant would be detrimental to the children. Although appellant had completed various programs, he had always gone back to drug use. In addition, appellant was now incarcerated under a two-year sentence. Though it might not normally be detrimental to offer services to the incarcerated parents of older children, the situation here was different. This was the fourth removal for these children, and repeated “yanking the kids back and forth” was detrimental.

Appellant’s counsel argued, “though it seems sort of amazing” her client did not meet the requirements for denial of services under section 361.5, subdivision (b)(13), because he had not been asked to participate in a program in the previous three years and therefore could not have “resisted” treatment. Moreover, counsel claimed, he had been “drug free” during those three years. Counsel further argued that her client might not have to stay in prison for his full two-year sentence and should not be denied services under subdivision (e)(1) of the statute because the children loved him and would like to reunify with him, so there could be no detriment to them from offering him services. Minor’s counsel argued that such services would in fact be detrimental. Her clients loved their parents but were tired of their lifestyle and did not want to return home without guarantees that the parents would remain drug free.

At the end of argument, the juvenile court confirmed that it had read the Department’s report of September 6, 2005, and, “It would be impossible for the Court to find that returning these children [would] be anything but a detriment to them. They’ve been put through an incredibly tough life.” The court found by clear and convincing evidence that the parents had willfully abandoned their children, that they had a history of extensive and chronic use of drugs and alcohol and that their use directly affected the children The court denied family reunification services under section 361.5, subdivisions (b)(13) and (e)(1).

DISCUSSION

A. Standard of Review and Section 361.5

“On appeal [of an order denying reunification services under the provisions of section 361.5] we review the record for substantial evidence.” (In re Brooke C. (2005) 127 Cal.App.4th 377, 382, citing In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) Substantial evidence is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could make the challenged findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924.)

Section 361.5, subdivision (b)(13) provides that reunification services need not be offered to a parent who “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.” The statute reflects “a legislative determination that an attempt to facilitate reunification between a parent and child generally is not in the minor’s best interests when the parent is shown to be a chronic abuser of drugs who has resisted prior treatment for drug abuse. [Citation.] In effect, the Legislature has recognized that, under those circumstances, ‘it may be fruitless to provide reunification services . . . .’ [Citation.]” (In re Levi U. (2000) 78 Cal.App.4th 191, 200.) When a parent continues to use illicit drugs, failing “to maintain any kind of long-term sobriety” despite having participated in a substance abuse treatment program, he has resisted treatment within the meaning of the statute. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.) The juvenile court may deny services under section 361.5, subdivision (b)(13) upon a showing of prior treatment plus a relapse during the three-year period immediately preceding the current removal. (In re Laura B. (1998) 68 Cal.App.4th 776, 779-780.)

Section 361.5, subdivision (e)(1) provides that reunification services need not be provided to an incarcerated parent where, by clear and convincing evidence, provision of services would be detrimental to the child. “In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the crime, and the degree of detriment to the child if services are not offered.” (In re J.N. (2006) 138 Cal.App.4th 450, 457.) Reunification services provided to an incarcerated parent are subject to the time limitations imposed by section 361.5, subdivision (a) (12 months for a child over the age of three). (Ibid.)

In this case, there was substantial evidence - reasonable, credible, and of solid value - to support the juvenile court’s decision to deny appellant reunification services pursuant to the provisions of section 361.5.

First, there was substantial evidence, in both the September 6, 2005, J/D report and in the social worker’s testimony, that appellant was resistant to treatment within the meaning of section 361.5, subdivision (b)(13). By his own admission, appellant was continuing to use illicit drugs. Despite having participated in at least seven drug treatment programs, he had failed to maintain any kind of long-term sobriety. At the time of the July 11, 2005, removal, one month before the removal that gave rise to the August 5 petition, appellant told the social worker that he had used two weeks earlier, which would have put his first admitted use to mid-June. Appellant did not show up in court until October 6, 2005, and later said that he had used two weeks before that date too.

Moreover, the “red-tagged” house where appellant abandoned his children was filthy; the yard was littered with trash and furniture; the floor was strewn with dirty clothes; there was drug paraphernalia with heroin and amphetamine residue on it in plain view and accessible to the children; there was no food. D’Andre had been bitten by the family pit bull and had a thick scar on his arm. Such conditions do not develop in a few days. It takes time for a house and yard to reach condemnation condition. It takes time for a thick scar to develop. The court had ample evidence that appellant had “relapsed” despite multiple rounds of treatment, and that the relapse had occurred within the immediately past three years. This record does not, as appellant claims, demonstrate the kind of mere “relapse” that may sometimes be a normal event in recovery from drug addiction. This record demonstrates resistance to treatment.

Second, the trial court also had substantial evidence that any provision of reunification services that might result in the return of the children to appellant after his release from prison would be “a detriment to them.” As discussed above, appellant’s repeated falls off the sobriety wagon caused unimaginably severe harm to young Dennis, to D’Andre, and to D.J. During appellant’s so-called “relapses” in the past, the children had been abandoned in motels; in a van with drugs, knives, alcohol, and adult male strangers who apparently injected them with cocaine. During his current “relapse” they had been left alone without even food in an uninhabitable house under deplorable conditions. As the trial court put it, “It would be impossible for the Court to find that returning these children [would] be anything but a detriment to them.”

Appellant claims in the concluding paragraph of his opening brief that his family was “instantly destroyed with no hope of reconciliation,” by the trial court’s “devastating” decision not to provide more reunification services. Appellant is only partly right. There may indeed be little hope of reconciliation for his family, but it was not “instantly” destroyed and it was not destroyed by the juvenile court’s decision. His family was destroyed over a period of many years and it was destroyed by appellant’s own devastating decisions to continue using illegal drugs.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] In his reply brief, Appellant urges us to ignore minors’ counsel’s letter brief, in which counsel agrees with respondent’s position, because, he says, minors’ counsel did not give us a separate delineation of each child’s opinion. We find minors’ brief adequate and reject appellant’s request.

^[2] Not safe for occupancy; all occupants must evacuate.

^[3] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

^[4] Alcoholics Anonymous and Narcotics Anonymous, respectively.