Filed 8/4/17 In re L.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re L.M., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

L.G. et al.,

Defendants and Appellants.
D071996


(Super. Ct. No. J519056C)

APPEALS from orders of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant L.G.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant David M.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Molk for Plaintiff and Respondent.
L.G. (Mother) and David M. (Father) separately appeal from the disposition hearing regarding their daughter L.M., who was born with drugs in her system due to Mother's illegal drug use during pregnancy. In her appeal, Mother challenges the juvenile court's denial of reunification services to her under Welfare and Institutions Code section 361.5, subdivision (b)(10), which permits the bypass of services based on a parent's failure to treat the problems that led to removal of a dependent child's sibling or half sibling. In his appeal, Father argues (1) the court abused its discretion in denying his request to continue the contested adjudication and disposition hearing and (2) substantial evidence does not support the court's finding that placing L.M. in his custody would be detrimental to her. We conclude the court did not err on any asserted ground and accordingly affirm.
FACTUAL AND PROCEDURAL BACKGROUND
L.M.'s Half Siblings
In bypassing reunification services to Mother, the court granted the San Diego County Health and Human Services Agency's (Agency) unopposed request for judicial notice of documents in the dependency case files of L.M.'s half siblings, Z.B. and A.H. We provide a brief background regarding L.M.'s half siblings.
In 2014 and 2015, respectively, the court took dependency jurisdiction over Z.B. and A.H. The Agency's petition on behalf of three-year-old Z.B., under section 300, subdivision (b), followed an incident where Mother was driving under the influence of alcohol and lost control of the vehicle while arguing with a boyfriend, which caused the vehicle to flip and entrap the occupants. Z.B. had not been restrained in a car seat. Subsequently, the Agency filed a supplemental petition on behalf of Z.B. after Mother was caught stealing vodka and abusing alcohol, and Z.B. routinely appeared dirty, unkempt, and hungry at preschool. The Agency's petition on behalf of eight-year-old A.H. was based on him suffering a variety of extreme behavioral and mental health conditions for which Mother "failed and refused to provide" care and treatment. (§ 300, subd. (b).) A.H. routinely appeared dirty, hungry, and without medication at school.
The juvenile court removed the children from parental custody and granted reunification services to Mother. The Agency reported Mother was uncooperative, noncompliant, and aggressive toward her substance abuse service providers. At a 12-month review hearing for both children in 2016, the court found Mother had made minimal progress toward alleviating or mitigating her protective issues and, accordingly, terminated her reunification services. In January 2017, the court granted custody of Z.B. and A.H. to legal guardians. Throughout her history with the Agency, Mother did not complete a substance abuse treatment program.
Father's Criminal History
We next briefly summarize some of Father's criminal history, drawn from evidence presented to the court at the time it denied his request for continuance and ordered L.M.'s removal.
In 1985, Father was arrested for vandalism, assault with a caustic chemical, and carrying a loaded firearm in a public place. Later that year, he was arrested for assault with a deadly weapon other than a firearm, carrying a loaded firearm in a public place, and carrying a concealed weapon in a vehicle.
In 1986, Father was arrested and convicted of vandalism (Pen. Code., § 594, subd. (b)(2)); he was ordered to serve 120 days in jail and remain on probation for three years. In 1993, he was again arrested on a vandalism charge and for taking a vehicle without the owner's consent.
In 1997, Father was arrested for forcible rape. In 1998, he was arrested for several counts of forcible rape and forcible oral copulation, convicted of one count of assault with intent to commit rape (Pen. Code, § 220), and sentenced to six years of prison. Due to his conviction, he became subject to a lifetime sex offender registration requirement (Pen. Code, § 290). In 2002, Father violated parole and was taken into custody. The next year, he again violated parole and was ordered to finish his remaining sentence in prison.
In 2010, Father was arrested for (1) failing to register as a sex offender and (2) his involvement in a domestic violence incident. According to his girlfriend's detailed statement in a police report, Father accused her of lying to him, became angry, pulled her by her hair into her bedroom, hit her buttocks three times with his belt, and forced her to have sex with him. Officers observed lacerations from the belt on her buttocks and a bruise on her left shoulder where Father had bitten her.
In 2012, Father was arrested for driving under the influence of alcohol.
In 2015 and 2016, Father was arrested several times, for failing to register as a sex offender, for domestic violence incidents, and for outstanding bench warrants. In one March 2015 police report, a different girlfriend described how Father had hit on her left thigh and knee with a belt three times after the couple had argued about their relationship. A passerby witnessed Father and the victim-girlfriend yelling at each other on the side of a road, and officers observed abrasions and bruising on the victim's leg. Officers discovered a knife in Father's rear pocket as he was being arrested. He was purposely disobedient as officers took him into custody, refusing several times to stand and walk even though he was capable of doing so.
L.M.'s Birth and Dependency Case Proceedings
In the 2015 or 2016 timeframe, Mother and Father began a dating relationship. She was unemployed, subsisted off government benefits, and suffered from depression, for which she took prescribed medication. She also smoked methamphetamine approximately once every six weeks and drank alcohol. Father was retired from the Navy, collected government benefits, and maintained a transient lifestyle, frequently moving from motel to motel depending on daily rates. He denied abusing drugs or alcohol. Mother and Father lived together for some period of time in the maternal great-uncle's house, but Father did not get along with Mother's great-uncle and decided to move out in April 2016.
Mother became aware she was pregnant when she was four months along. She admitted to knowingly using methamphetamine twice during her pregnancy and consuming alcohol several days before giving birth.
In late December 2016, Mother gave birth to L.M., who tested positive for amphetamines and methamphetamines due to Mother's drug use. L.M. experienced blood sugar issues and required treatment in the neonatal intensive care unit. Father claimed to be surprised by the drug test results, even though he knew Mother had failed to complete a drug treatment program as part of her child welfare cases and they had discussed "drug issues" before. Father would not provide the Agency with his home address, and through its investigation, the Agency obtained his criminal history.
The Agency filed a dependency petition on behalf of L.M. under section 300, subdivision (b), and L.M. was detained out of parental care. At the conclusion of the detention hearing, Mother called one of the Agency's social workers a "lying bitch" several times, necessitating an officer's intervention in the courtroom.
In the ensuing weeks and months, despite much external encouragement, Mother did not drug test or enter a drug treatment program. She claimed to lack transportation and have scheduling conflicts, although the Agency provided her with free public transportation and consistently reminded her to enroll in a program. On several occasions, Mother was rude to, or abruptly hung up on phone calls with, social workers. Father was frequently unresponsive to the Agency's requests and resisted disclosing his address. Father and Mother appeared at first to maintain an amicable relationship, but Father eventually reported they were no longer on speaking terms and he wanted separate visits with L.M.
The court set a jurisdiction and disposition hearing, but continued it twice to comply with noticing requirements under the Indian Child Welfare Act (ICWA). In the meantime, Father explained to the Agency that he was living in a variety of hotels and trying to acquire more stable, suitable housing so L.M. could live with him. When questioned by the Agency about his criminal history, Father provided starkly different accounts of the domestic violence incidents than the alleged victims. With respect to his prior felony conviction, he claimed his ex-wife had made "false allegations" against him. He also told the Agency he was a rehabilitated sex offender, yet could not substantiate or provide written documentation of completing relevant treatment programs.
In March 2017, the court held a contested adjudication and disposition hearing. The parties reported that just the day before, Father had allowed the Agency's social workers to see his hotel room where he proposed for L.M. to live with him until he could find an apartment. He said a prior eviction was making it difficult for him to obtain more permanent housing. In the Agency's opinion, the hotel room was suitable except it was missing necessary baby supplies, like a crib, stroller, car seat, and other items. Father stated he could obtain the supplies from the caregivers. Given the recent development, the Agency and Father requested a continuance of the adjudication and disposition hearing for two or three weeks so L.M. could transition from the caregivers' home to Father's home. The court denied the request, finding no good cause or exceptional circumstances for a continuance. The court explained its reasoning on the record, including that any delays in transitioning L.M. had been caused by Father, who had resisted the Agency's multiple requests for information, and he had had plenty of time to prepare for the hearing.
The court received into evidence the Agency's detention report, jurisdiction/disposition report, and three addendum reports; took judicial notice of documents in Z.B. and A.H.'s case files; and heard the parties' arguments. The court made a true finding on the Agency's petition and ordered L.M.'s removal from parental custody based on a substantial risk of danger to L.M.'s physical health, safety, or protection. The court denied reunification services to Mother and granted them to Father.
Both parents filed timely appeals.
DISCUSSION
I. The Court Did Not Err in Denying Reunification Services to Mother
Mother argues she should have been granted reunification services because she made a reasonable effort to treat the problems that led to removal of L.M.'s half siblings. We disagree.
"On removal of a child from parental custody, the juvenile court generally must order reunification services to assist the parent to rectify the problems that led to removal. [Citations.] 'This requirement implements the law's strong preference for maintaining the family relationship if at all possible.' " (In re Lana S. (2012) 207 Cal.App.4th 94, 106 (Lana S.).) However, section 361.5 authorizes the juvenile court to deny a parent reunification services if it finds, by clear and convincing evidence, that the court terminated reunification services for a sibling or half sibling because the parent failed to reunify with the sibling or half sibling after the child's removal and the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ." (§ 361.5, subd. (b)(10).)
In evaluating whether a parent made a reasonable effort to treat the problems that led to removal of the sibling or half sibling, the court focuses on the extent of the parent's efforts, not whether he or she has attained "a certain level of progress." (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99 (Cheryl P.).) "The 'reasonable effort to treat' standard 'is not synonymous with "cure." ' [Citation.] The statute provides a 'parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings.' [Citation.] To be reasonable, the parent's efforts must be more than 'lackadaisical or half-hearted.' " (Ibid.; K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393 (K.C.).)
The term " 'reasonable effort' " in section 361.5, subdivision (b)(10), does not "mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort[.]" (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).) The court may "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 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." (Ibid.) Thus, "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." (Id. at p. 915.)
We review an order denying reunification services for substantial evidence. (Cheryl P., supra, 139 Cal.App.4th at p. 96; R.T., supra, 202 Cal.App.4th at p. 914.) Our " 'power . . . begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' " (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)
Applying the foregoing legal principles, substantial evidence supports the order denying reunification services to Mother. The first element of subdivision (b)(10) of section 361.5 is satisfied, since it is undisputed the court terminated reunification services for L.M.'s half siblings because Mother failed to reunify with them. With respect to the second element, the record supports Mother did not make a reasonable effort to treat the problems that led to removal of L.M.'s half siblings. Mother's drug and alcohol abuse, which was ongoing for at least several years, led or contributed to the removal of each of her children. Her participation in a treatment program for L.M.'s half siblings could be aptly described as lackadaisical and half-hearted. (See K.C., supra, 182 Cal.App.4th at p. 1394.) She was more often late or absent to the program than in timely attendance, and she was combative with her service providers. More recently, she continued to merely pay lip service to treating her substance abuse issues. She did not show up to a scheduled intake appointment, did not show up to a rescheduled intake appointment, and would not voluntarily drug test for the Agency. Mother admits she experienced no success in treating her substance abuse problem. In totality, Mother did not make a reasonable effort to treat her substance abuse.
Mother additionally argues that providing her services would have been beneficial and served L.M.'s best interests, mostly because Father was likely to regain custody of L.M. and the family could possibly reunify. However, the undisputed evidence showed Father and Mother were separated, not living together, and no longer in a relationship. Moreover, on this record, given Mother's history and the extent of interactions between her and the Agency over several years, the court could reasonably conclude that providing further services to Mother would be an unwise use of governmental resources. She had a pattern of resisting and insulting her service providers and social workers. (See Lana S., supra, 207 Cal.App.4th at p. 109 [steadfast refusal to voluntarily drug test or participate in drug treatment indicates parent would not benefit or participate in court-ordered services].) The court did not err in denying her reunification services.
II. The Court Did Not Abuse Its Discretion in Denying Father's Request for a Continuance

Father argues the court abused its discretion in denying an unopposed request to continue the disposition hearing so L.M. could be transitioned to his home, which possibly would have prevented her removal. We conclude the court did not abuse its discretion.
"Continuances are discouraged in dependency cases. [Citation.] '[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary . . . .' (§ 352, subd. (a).) Absent 'exceptional circumstances,' if a child is detained the dispositional hearing must be completed within 60 days of the detention hearing. (§ 352, subd. (b).)" (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604-605.) "Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause." (§ 352, subd. (a).) We review the denial of a continuance for abuse of discretion. (In re Giovanni F., at p. 605.)
Here, the court reasonably concluded Father had not demonstrated good cause or exceptional circumstances for a continuance and a continuance was not in L.M.'s interest. Notably, the court had already twice continued the jurisdiction and disposition hearing to comply with ICWA notice requirements. Thus, Father had had ample time—more than normal under the statutory framework—to prepare for a contested hearing and to work with the Agency on transitioning L.M. to his home. The court found Father was the reason why any "transition" had not already been completed. In addition, counsel's agreement to a continuance, alone, did not constitute good cause for one. It does not appear to us that a two-week transition period would have obviated the need for a contested hearing given the Agency's and court's stated concerns regarding L.M.'s health and safety, discussed post. The court granted the Agency discretion to elevate Father's visits to unsupervised overnights, and therefore, L.M.'s transition to his home, if appropriate, could continue unimpeded. Father has not established an abuse of the court's discretion.
III. Substantial Evidence Supports the Court's Finding That Placing L.M. With Father Would Be Detrimental

Father argues the court erred in finding that placing L.M. with him would be detrimental under section 361.2, subdivision (a). We are not persuaded by his argument.
Section 361.2, subdivision (a) states: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." The juvenile court must make the detriment finding by clear and convincing evidence, which we review for substantial evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426; In re Liam L. (2015) 240 Cal.App.4th 1068, 1087.)
In this case, substantial evidence supports that placing L.M. with Father would have been detrimental to her. L.M. was only three months old at the time of removal, such that "the absence of adequate supervision and care [would] pose[] an inherent risk to [her] physical health and safety." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) L.M.'s placement with Father would require his round-the-clock vigilance, care, and sound judgment. However, Father had failed to protect L.M. and did not appreciate the danger to her from Mother's drug use. Moreover, given L.M.'s complete inability to protect herself from hazards, the court was properly concerned about Father's criminal history and propensity for violence. As described in relatively recent police reports, Father was habitually involved in volatile, violent dating relationships. His life was also extremely unstable—he moved every couple of days, was frequently incommunicado, and was periodically detained by police for various legal violations. At the time of the disposition hearing, Father had no supplies to safely care for an infant. The court's detriment finding is supported by substantial evidence.
DISPOSITION
The orders are affirmed.




MCCONNELL, P. J.

WE CONCUR:




BENKE, J.




HALLER, J.