In re Marcus C.
Filed 7/29/13 In re Marcus C. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MARCUS C., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
E.C.,
Defendant and Appellant.
D063568
(Super. Ct.
No. EJ3618)
APPEAL from findings and orders of
the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed.
Suzanne
Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
E.C. challenges findings and orders denying
Welfare and Institutions Code section 361.5, subdivision (b)(10).
juvenile court's finding that reunification is not in her child's best interests. We affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
E.C. is the
mother of four children. Her three
oldest children are not in her care.
This appeal concerns her youngest child, Marcus C., who is almost nine
years old. Marcus's presumed father is
Mark H. He has no other children.
E.C. has a
significant substance abuse history. In
a 2010 dependency case, she reported that she had used cocaine for the last 12
years, methamphetamine for 14 years and marijuana for 16 years. She supported herself through
prostitution. In 2008 and 2010, E.C. was
convicted on charges of felony narcotics possession. She was also convicted on charges of driving
under the influence in 2010.
In December
2002, E.C. tested positive for drugs shortly before she gave birth to C.P., her
third child. In May 2003, C.P. was
placed in foster care after the social services agency received a referral
alleging that E.C. was absent.
name="_ftnref2" title="">[2] In 2004, E.C.'s two oldest children were
adjudicated dependents of the juvenile court after E.C. left them with an
elderly relative without any provision for support. E.C.'s reunification case plan required
parenting classes, a substance abuse evaluation and recommended treatment, a
psychological evaluation and recommended treatment and random drug testing. E.C. did not successfully complete her
services. In 2006, the court terminated
reunification services and ordered a permanent plan of foster care for the two
oldest children.
In 2010,
Marcus, who was then five years old, was placed in
arrested for probation violations. The
probation department found several marijuana plants in her home. At the dispositional hearing, the juvenile
court placed Marcus with his father, Mark, with family maintenance
services. The court in that case did not
order the Agency to provide reunification services to E.C., who remained
incarcerated throughout Marcus's dependency proceedings. When the court dismissed jurisdiction, it
granted sole physical custody of Marcus to Mark, and ordered E.C.'s visitation
with Marcus to be supervised by a third party.
E.C. said
she relapsed on cocaine in 2006 or 2007.
She used cocaine every day until March or April of 2012, when she moved
to Mark's home, at his invitation, to care for Marcus on the condition that she
stop using cocaine.
Mark and
E.C. had an incident of domestic violence
in October 2012. Mark became angry
because E.C. was "chugging" a bottle of his brandy. He grabbed her by the neck, choked her, and
threw her against the wall. The court
issued a protective order. When Mark was
released from jail, he and E.C. decided to live together and work things
out.
In November
2012, the San Diego County Health and Human Services Agency (Agency) detained
Marcus in protective custody and filed a petition under section 300,
subdivision (b) alleging Marcus was at substantial risk of harm due to a recent
incident of domestic violence. After
arguing with E.C., Mark was arrested when he poured gasoline on himself, his
home and a police officer. At intake,
Mark's blood alcohol level was .204.
Mark pleaded guilty to assault with a deadly weapon on a police
officer. He was sentenced to 365 days in
custody with permission to serve his sentence in a residential substance abuse
treatment program, if available.
The social
worker reported that Marcus was an intelligent, social and outgoing child. He said his mother smoked marijuana because
she was addicted to drugs. His father
grew marijuana in their home for sale.
Marcus said he was "kinda" afraid when his parents got into a
fight. He heard his father threaten to
burn the house down. Marcus knew his
father had been arrested for choking his mother. He said he was "just kinda scared"
when he learned about the incident.
E.C. denied
she was using drugs. She said she had
reduced her alcohol use. Currently, she
drank two 40-ounce beers a day and smoked "a blunt [of marijuana] a
day." According to E.C., marijuana
was not a drug. Approximately every four
days, E.C. shared a gallon of vodka with friends. She liked to drink before Marcus returned
home from school to calm her nerves.
The
jurisdictional and dispositional hearing was held on January 22, 2013. The Agency recommended that the court offer or
provide reunification services to Mark and deny reunification services to
E.C. The court admitted the Agency's
reports in evidence
title="">[3] and
heard testimony from the social worker and E.C.
The social
worker testified that E.C.'s substance abuse had resulted in the removal of
Marcus's older siblings from E.C.'s custody.
E.C. was denied reunification services in Marcus's 2010 dependency case. She had been asked to attend substance abuse
treatment on at least four separate occasions specifically in: her dependency case for her two oldest
daughters; her dependency case for her third child; her first dependency case
for Marcus; and through probation for her drug-related criminal cases.
In this
case, the social worker offered voluntary services to E.C. and referred E.C. to
KIVA for inpatient substance abuse treatment.
E.C. met with the substance abuse specialist, who referred her to
inpatient residential treatment. E.C.
scheduled an intake with KIVA but did not keep the appointment. She was then referred to the Family
Recovery Center. The social worker scheduled three intake
appointments on E.C.'s behalf. E.C. did
not attend any of them. E.C. did not
return the social worker's telephone calls.
The social worker telephoned E.C. using another person's telephone. The social worker tried to arrange a meeting
with E.C. to arrange visitation and services.
E.C. became enraged and abruptly terminated the telephone call.
E.C.
visited Marcus once in the two months he was in foster care. The foster mother reported that E.C.
telephoned Marcus on occasion. During
many calls, E.C. sounded intoxicated. In
those calls, she slurred her words and had problems putting sentences
together.
E.C.
testified that she was incarcerated during Marcus's 2010 dependency
proceedings. While in custody, she
participated in Narcotics/Alcoholics Anonymous, GED and other classes. During the 2004 dependency proceedings, she
participated in a year-long residential substance abuse treatment program. Marcus was in her care at the program. When E.C. relapsed, she put herself back in
the treatment program, but did not complete it.
E.C. did not enter the KIVA program because she was offended by a
comment a person made to her at the intake appointment. She tried to attend intake for another
program but missed the appointment because she was late. E.C. said she still smoked marijuana every
now and then, but she did not drink or use crack cocaine, which was her
"drug of choice."
E.C. testified
that it took an hour to travel to see her son if she had a ride. It took even longer with public
transportation. Visits were scheduled
starting at 4:30 p.m., which was the time the return bus left. There was only one bus a day.
The
juvenile court sustained the section 300 petition and removed Marcus from the
custody of his parents. The court
ordered a plan of family reunification
services for Mark. The court stated
that the overriding issue for E.C. for the past eight years was her substance
abuse. The State of California, through
dependency proceedings and the criminal justice system, had made numerous
attempts to provide substance abuse treatment services to her. E.C. was not going to stop using drugs until
she wanted to stop using drugs. E.C. did
not need court-ordered reunification services to stop using drugs. The court said, "She can get herself
clean and maybe if she does it on her own, she will be able to do it where it's
going to work. The mom and dad appear
that they are going to stay together one way or the other. I guess my biggest fear is dad will be
successful, the case closes, and she moves back in, and these poor kids go
through this again and again."
The
juvenile court found that there was no clear and convincing evidence to show
that reunification with E.C. was in Marcus's best interests and denied services
to E.C. under section 361.5, subdivision (b)(10).
DISCUSSION
E.C.
contends the juvenile court erred when it bypassed family reunification
services to her under section 361.5, subdivisions (b)(10). She argues the court abused its discretion
when it determined it was not in Marcus's best interests to reunify with her.
A
Family reunification services play
a critical role in dependency proceedings.
(In re Alanna A. (2005)
135 Cal.App.4th 555, 563.) To deny
family reunification services to a mother or statutorily presumed father, the
court must find by clear and convincing evidence that the parent is described
by one or more of the provisions in section 361.5, subdivision (b). (§ 361.5, subd. (b)(1)-(15); see also 42
U.S.C. § 671(a)(15)(D).)
Under section 361.5, subdivision
(b)(10), reunification services need not be provided to a parent when the court
finds by clear and convincing evidence
(1) that the court previously ordered
termination of reunification services for the child's siblings or half siblings
(sibling) because the parent failed to reunify with the sibling; and (2) that the parent has not subsequently made a
reasonable effort to treat the problems that led to removal of the child's
sibling from that parent. (
Cal.App.4th 1388, 1393-1394.) However,
even if the parent is described by section 361.5, subdivision (b), the juvenile
court may order reunification services to a parent if it finds by clear and
convincing evidence that reunification is in the child's best interest. (§ 361.5, subd. (c).)
"To determine whether reunification is in the
child's best interest, the court considers the parent's current efforts,
fitness, and history; the seriousness of the problem that led to the
dependency; the strength of the parent-child and caretaker-child bonds; and the
child's need for stability and continuity." (In re
Allison J. (2010) 190 Cal.App.4th 1106, 1116.) A best interests finding requires a
likelihood that reunification services will succeed. The court must have some reasonable basis to
conclude that reunification is possible and will be safe for the child. (Ibid.)
We review an order denying
reunification services under section 361.5, subdivision (b) for substantial
evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) We resolve all conflicts in favor of the
prevailing party. Issues of fact and
credibility are questions for the trier of fact. The reviewing court may not
reweigh the evidence when assessing the sufficiency of the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th
71, 75.) The party challenging the ruling of the trial court has the
burden to show the evidence is insufficient to support the ruling. (In re
Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B
Meet Her Burden to Show That Reunification with Her Was in Marcus's Best
Interests
E.C.
implicitly concedes there is substantial evidence to support a finding under
section 361.5, subdivision (b)(10). Her
only contention on appeal is the juvenile court's finding that reunification
with her is not in Marcus's best interests is not supported by substantial
evidence. (§ 361.5, subd.
(c).) E.C. argues the record shows that
Marcus was very bonded to her and missed her, and she had been a good parent to
him. She acknowledges she did not
participate in the voluntary services that were offered to her when Marcus was
detained, but asserts the record shows that she was willing to participate in
court-ordered services. Finally, E.C. points
out that the juvenile court was very concerned that she and Mark would reunite
and Marcus would again be exposed to E.C.'s substance abuse. She argues the provision of reunification
services would address the court's concerns, reduce the possibility that Marcus
would be exposed to substance abuse and domestic violence, and encourage
relapse prevention, stability and proper parenting.
We are not
persuaded by E.C.'s argument. Under the
substantial evidence standard of review, this court does not reweigh the facts.
(In re Jasmine C., supra, 70 Cal.App.4th at p.
75.) The juvenile court reasonably
determined that reunification with E.C. was not in Marcus's best
interests. E.C. had a serious and
lengthy substance abuse problem. She was
not amenable to treatment. Marcus was
acutely aware of the incidents of domestic violence between his parents. He knew that his mother had a drinking
problem. Although the record shows that
Marcus loved his mother, he told his foster mother, "I'm so happy I'm
here, it's quiet, there's no drama," and added, "I've had a rough
[eight] years already." Marcus said
he wanted to live a "normal life."
He told the foster parents he loved them and asked them to adopt him if
he was unable to return home. Further, E.C.'s
assertion she was willing to participate in court-ordered reunification
services is belied by her lack of participation in voluntary services,
unwillingness to communicate and cooperate with the social worker, and lack of
consistent visitation with Marcus.
The juvenile court reasonably could
conclude that E.C. had not provided a safe, stable home to Marcus and was
unlikely to be able to do so, even if she was amenable to intensive substance
abuse treatment, which she was not.
Thus, there is substantial evidence to support the juvenile court's finding
that reunification
title="">[4]
was not in Marcus's best interests. (§ 361.5,
subd. (c).)
DISPOSITION
The
findings and orders are affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.
name="_ftn1" title="">[1] Unless otherwise specified, all
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] The record does not reflect the final
disposition in C.P.'s dependency case.
