In re M.S.

Filed 10/12/06 In re M.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Fresno County. Jane Cardoza, Judge.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Plaintiff and Respondent.

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Lydia C. (mother) appeals from dispositional orders that denied her reunification services because (1) she failed to reunify with her three older children and subsequently failed to make reasonable efforts to address the problems that led to their removal, and (2) she had a history of drug abuse and resistance to prior treatment.^[1] We will affirm the court’s dispositional orders.

FACTUAL AND PROCEDURAL BACKGROUND

Sisters M. S., age 4, and A. S., age 3 (collectively the girls), were removed from the custody of mother and Alex S., who is their presumed father, in October 2005 after their parents were arrested when police attempted to serve a warrant on Alex for a probation violation. The police sent dogs into the home after Alex refused to come out. During a search of the home, police found a used syringe on the lid of a clothing hamper in the girls’ bedroom, as well as an old cut down aluminum soda can used to smoke methamphetamine near the girls’ bedroom door. Police also found marijuana in the house. Alex was arrested for violating probation and drug possession, while mother was arrested for harboring a wanted person and child endangerment.

Mother has an extensive history with Child Protective Services which began in 1992. In August 2000, mother’s older children, then 12-year-old A. C., 7-year-old P. C. and 4-year-old S. C., were removed from her care due to her abuse of PCP, domestic violence between mother and Alex, and mother’s lack of stable housing, after police found the children unsupervised and sleeping in a stolen car. Mother was arrested and charged with three counts of felony child endangerment. In December 2000, mother was ordered to participate in the following services: parenting classes, substance abuse evaluation and any recommended treatment, random narcotics testing, mental health assessment and any recommended treatment, and a domestic violence evaluation and any recommended treatment. Reunification services were terminated in March 2003 after she failed to comply with court orders. The following month, 15-year-old A. C. died during an altercation with another foster care resident. In January 2004, the court ordered a permanent plan of guardianship for P. C. and S. C., who ultimately were placed in guardianship with their maternal aunt.

The Fresno County Department of Children and Family Services (Department) took the girls into protective custody and filed a petition that alleged their parents failed to provide them adequate care, supervision and protection by exposing them to domestic violence and continuing to use controlled substances despite having received extensive court-ordered and voluntary maintenance services, including substance abuse treatment, and the girls were at substantial risk of suffering neglect by mother in that she had neglected the girls’ older siblings due to her substance abuse and domestic violence. (Welf. & Inst. Code, § 300, subds. (b) & (j).)^[2]

At the December 2005 jurisdictional hearing, the Department agreed to amend the petition, and the parents submitted on the amended petition and jurisdictional report. The court found the following amended allegations true: (1) mother failed to provide adequate care, supervision and protection for the girls by exposing them to an unsafe environment of ongoing domestic violence between herself and Alex; (2) mother has a history of substance abuse that negatively affects her ability to provide regular care, supervision and protection for the girls, as shown by her continued use of controlled substances while caring for the girls despite having extensive court-ordered and voluntary family maintenance services, including substance abuse treatment, and exposing the girls to ongoing domestic violence and drug activity, as drugs and drug paraphernalia were found in the home, accessible to the girls; (3) Alex failed to provide adequate care, supervision and protection for the girls by exposing them to an unsafe environment of ongoing domestic violence between himself and mother; (4) Alex has a history of substance abuse that negatively affects his ability to provide regular care, supervision and protection for the girls, as shown by his continued use of controlled substances while caring for the girls despite having extensive voluntary family maintenance services, including substance abuse treatment, and exposing the girls to ongoing domestic violence; and (5) the girls were at substantial risk of suffering neglect by mother, in that mother neglected the girls’ siblings, who were removed from mother’s custody, made dependents of the juvenile court, and who mother failed to reunify with, due to her substance abuse and domestic violence.

The contested dispositional hearing was held in February 2006. The dispositional report, prepared on January 17, 2006, listed mother’s prior child welfare history, including the dependency proceedings involving her older children. The report stated that in August 2004, a referral was received that mother sounded incoherent and had two children in her care. Child Protective Services (CPS) responded to the referral, and mother admitted to last using PCP four weeks before. Mother wanted to participate in a substance abuse program. The Department accepted her for Voluntary Family Maintenance (VFM) services. In September 2004, a referral was received that the police took mother and the girls to the Marjaree Mason Center due to domestic violence between mother and Alex. Mother admitted using PCP three days before. Mother left the shelter and returned home. VFM services were continued after mother and Alex agreed to participate in substance abuse treatment, domestic violence and anger management. In June 2005, a referral was received that Alex had beaten mother and he was arrested. Mother never followed through with VFM services. Within two weeks, the parents were back together, and although they wanted community resources, they decided to participate without CPS involvement. Consequently, the VFM case was closed.

Following the girls’ detention, mother participated in a substance abuse evaluation. Mother admitted she began smoking PCP 13 years ago and drinking alcohol ten years ago, but said she stopped drinking alcohol in December 2003. Mother stated PCP was her drug of choice and she overdosed on it in 1991. Mother told the evaluator she participated in the Third Floor substance abuse program twice. She also participated in the PATHS substance abuse program, but dropped out because her boyfriend gave her a hard time about going. The evaluator stated mother did not believe she has a problem with drugs or alcohol, but thought she could use treatment, and needing treatment appears to be what mother thinks she needs to say to avoid more serious problems. The evaluator recommended mother participate in an intensive outpatient substance abuse program. After her release from jail in November 2005, mother participated in random drug testing; she tested negative six times and failed to test once.

On January 4, 2006, mother began participating in PATHS, an intensive outpatient substance abuse program. Although the Department referred mother to a parenting class and domestic violence assessment as of the date of the report, mother had not yet participated in either. It was noted in the report that when mother accepted VFM services in August 2004, she said she had completed a substance abuse treatment program at West Care in August 2003 and was thinking about going back there. While participating in VFM services, mother participated in the PATHS program from September 29, 2004 to April 27, 2005, when she was discharged due to relapse and attendance problems. In June 2005, mother agreed to enter the inpatient substance abuse program at Spirit of Women with her children, but she did not do so and instead stated she no longer wanted to participate in VFM services.

Mother was visiting the girls one hour per week on a regular basis. The social worker noted the girls appeared excited to see her and would hug her upon coming into the room, but mother appeared to be a little distant when she saw the girls and would sit at a table for awhile before actively engaging them in play. The social worker further noted that A. exhibited “acting out behaviors“ during the visits, such as calling mother by her given name, hitting her, pushing M. off mother’s lap, yelling and throwing toys. When A. engaged in such behavior, mother ignored it and exhibited no parenting skills. On one occasion, A. hit the social worker aid who was supervising the visit; mother ignored the aid’s suggestion to send A. to time-out and continued to allow A. to do whatever she wanted. The social worker stated the girls did not have any problems transitioning from mother back to the foster mother, and did not cry or cling to mother when the foster mother picked them up at the end of the visits. The social worker found it difficult to determine from observations of these visits how significant the bond was between mother and the girls.

In its dispositional report, the Department recommended that mother not be offered reunification services on two grounds: (1) her failure to reunify with her older children and to address the problems that led to their removal (§ 361.5, subd. (b)(10)), and (2) her chronic drug use and resistance to treatment (§ 361.5, subd. (b)(13)). The Department concluded it was not in the girls’ best interest to provide mother family reunification services because (1) the girls did not appear to have a significant bond with mother; (2) the prognosis for successful reunification was poor, since mother failed to benefit from both family reunification and VFM services, reunification services were terminated for her older children, and despite having participated in three substance abuse treatment programs in the past three years, mother continued to use PCP; and (3) there was at least one appropriate permanent plan in place, since the Department was evaluating two maternal aunts who were willing to provide a permanent plan for the girls for relative placement.

The Department submitted on the dispositional report and attachments, which the court admitted into evidence. No other evidence was presented. Mother’s attorney argued that as of the hearing date, mother was in a different situation, as she currently was participating in parenting and drug programs, submitting random drug tests three times a week which were all negative, and attending the other programs to which she had been assigned. The attorney reported mother was doing well in the programs and also was attending City College. The attorney argued mother was seriously trying to reunify with the girls and stated mother wanted a second chance to reunify with them, although she did not reunify with the older children.

Following argument, the juvenile court ordered the girls removed from the custody of both parents, placed them in foster care, and adjudged them to be dependents of the court. The court ordered reunification services for Alex, but ordered that no reunification services be provided for mother pursuant to section 361.5, subdivision (b)(10) and section 361.5, subdivision (b)(13). This appeal followed.

DISCUSSION

Denial of Reunification Services

Mother argues the juvenile court erred in denying her reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(13), which provide in relevant part: “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: (10) That the court ordered termination of reunification services for any half-siblings of the child because the parent failed to reunify with the half-sibling after the half-sibling had been removed from that parent pursuant to Section 361 and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the half-sibling of that child from that parent[.] (13) That 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 court’s attention,”

We first address denial of reunification services under section 361.5, subdivision (b)(10), which has two prongs or requirements: “(1) the parent previously failed to reunify with a [half-]sibling of the child; and (2) the parent failed to make reasonable efforts to correct the problem that led to the [half-]sibling being removed from the parent’s custody. In enacting section 361.5, subdivision (b)(10), ‘the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended on such cases.’ [Citation.] ‘Inherent in this subdivision appears to be a very real concern for the risk of recidivism by the parent despite reunification efforts.’ [Citation.] A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. [Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

Mother, conceding that the statute’s first prong (previous failure to reunify with other children) is present, focuses her argument on the statute’s second prong. She contends the record does not support the trial court’s finding she had not made reasonable efforts to cure the problems that resulted in the prior removal of her other children. In particular, she asserts the juvenile court ignored the efforts she made subsequent to removal of the older children, including her being admitted twice to the Third Floor program, participating in the PATHS program, completing the West Care program, returning to the PATHS program from September 2004 to April 2005, and that by the time of the dispositional hearing, she was participating in more programs and doing exceptionally well, and attending college. Mother’s arguments are not persuasive.

Our review of the trial court’s orders requires us to consider the historical circumstances as well as the current situation. (Shawn S. v. Superior Court (1998) 67 Cal.App.4th 1424, 1430, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The purpose of the statute is to give a parent who has worked toward correcting her problems an opportunity to have that fact taken into consideration in a subsequent proceeding; its purpose is not to create further delay by allowing a parent, who up to that point has failed to address her problems, another opportunity to do so. (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.)

The record shows that the girls’ half-siblings were removed from mother’s care due to her substance abuse, domestic violence, and lack of stable housing. To address those issues, mother was ordered to participate in parenting classes, obtain evaluations for substance abuse, domestic violence and mental health, and participate in any recommended treatment, and submit to random narcotics testing. Mother failed to comply with these services and therefore they were terminated in March 2003. Although mother completed the West Care program in August 2003, after services were terminated, she continued to use PCP. Mother then entered VFM and agreed to participate in substance abuse and domestic violence programs, but she was unable to complete the PATHS program due to relapse and failure to attend. By June 2005, she continued to expose the girls to domestic violence, had not followed through with VFM services, and although she initially agreed to enter the Spirit of Women program, she did not do so, and instead requested the VFM case be closed, stating she would participate in services without CPS involvement. Mother, however, never did so. Instead, she continued to subject the girls to domestic violence and allowed them to be in an environment where drugs and drug paraphernalia were accessible to them. Based on this evidence, the court reasonably could conclude that although mother made some efforts to address her substance abuse problem, those efforts were only half-hearted ones. Moreover, mother apparently made no efforts to correct the domestic violence problem - while she did go to a woman’s shelter, she promptly left the shelter and returned home, where the domestic violence continued.

Mother points to her trial counsel’s assertion that by the time of the dispositional hearing, she had begun participating in services and started attending community college, and contends this shows she was making reasonable efforts to correct the problems that led to removal of her older children. These statements, made during closing argument, are not evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.) The only evidence of mother’s progress was contained in the dispositional report, which stated that mother had participated in a substance abuse evaluation, started a substance abuse program, submitted to random drug testing, but she had not yet participated in a parenting class or domestic violence assessment. Even if we assume mother was participating at the level counsel claimed she was, mother ignores that she participated in these services only after the Department took the girls into protective custody. Moreover, mother continued to deny she had a substance abuse problem, the very problem that was cited in the earlier dependency petition. As the substance abuse evaluator pointed out, mother appeared to only admit her problem to the extent necessary to get her children back.

Measured against mother’s history, her reliance on the fact that she began to participate in services once jurisdiction was found in this case is an insufficient reason for us to overturn the trial court’s orders. In reviewing a trial court’s order to deny reunification services, our power begins and ends with a determination as to whether there is substantial evidence to support the order. We must resolve all evidentiary conflicts in favor of that order and draw all reasonable inferences in its support. Where more than one reasonable inference can be inferred from the facts, we are without power to substitute our opinion for that of the trial court. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) Given that standard of review, we find that the juvenile court reasonably could conclude that mother had not made a reasonable effort to treat the problems that led to the prior removal of her other children. Consequently, substantial evidence supports the juvenile court’s determination to deny her reunification services pursuant to section 361.5, subdivision (b)(10).

Since there is sufficient evidence to support denial of reunification services under section 361.5, subdivision (b)(10), we need not decide whether substantial evidence also supports denial under subdivision (b)(13).^[3]

Best Interest of the Child

Mother argues the juvenile court abused its discretion in failing to find that providing her reunification services would be in the girls’ best interests. Having properly found a basis for denying reunification services under section 361.5, subdivision (b)(10), the juvenile court was prohibited from ordering reunification services unless the court also found by clear and convincing evidence that reunification was in the girls’ best interests. (§ 361.5, subd. (c).) We review the court’s best interests determination for abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)

Mother had the burden of proof on the issue of best interest. (Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 59.) Mother failed to meet this burden at the dispositional hearing. She offered no evidence on the issue. While mother asserts the girls are bonded to her, the dispositional report shows to the contrary - that while mother had custody of the girls from birth, they had little difficulty separating from her during visits and easily transitioned from her to the foster mother. Although mother claims this is because the foster mother was a maternal aunt, the record does not bear this out. Instead, the record shows the girls were placed together in licensed foster care and two maternal aunts were being considered for relative placement. Thus, the foster mother was not a relative, but presumably a stranger to the girls, to whom the girls adjusted easily.

Mother contends that since the court ordered reunification services for Alex, the ultimate disposition of the case would not have been delayed had mother also been ordered services. We do not reverse, however, simply because there is some evidence which favors an appellant’s position. It is our task to determine whether the court abused it discretion by ignoring clear and convincing evidence the girls’ best interests would be served by providing mother reunification services. Such is not the case here. Mother’s relationship with the girls must be viewed in light of the undisputed evidence that mother has a history of substance abuse and domestic violence, and although she lost custody of her older children due to these problems and entered numerous treatment programs, she continued to expose the girls to both substance abuse and domestic violence. While mother had entered yet another treatment program after jurisdiction was taken in this case, the juvenile court reasonably could have been concerned that mother’s circumstances had not changed to the extent that she would complete this program successfully, especially in light of the substance abuse evaluator’s conclusion that mother continued to deny her problem and said only what was necessary to reunite with the girls. Therefore, it was not unreasonable to assume reunification efforts would be unsuccessful.

In sum, in light of mother’s history and the girls’ need for stability and permanency, we conclude the court did not abuse its discretion in finding reunification services were not in the girls’ best interests.

DISPOSITION

The juvenile court’s dispositional orders are affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Levy, J.

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^[1] Although mother was denied reunification services, they were ordered for the children’s father, Alex S.

^[2] All further statutory references are to the Welfare and Institutions Code.

^[3] With respect to the denial of services under subdivision (b)(13), while not argued by mother, we note the evidence does not appear to establish the treatment mother failed to complete was court-ordered. In the prior dependency proceeding, the court ordered mother to participate in a substance evaluation and any recommended treatment, but no evidence was offered as to what, if any, treatment mother ultimately was ordered to complete. At the dispositional hearing, the court denied the Department’s request to take judicial notice of records from the prior dependency case, which the Department stated showed mother was twice referred to the Spirit of Women program during that case and she failed to complete the program both times. While there is evidence mother participated in, and failed, other programs, no evidence was presented as to whether those were court-ordered. Given that substantial evidence supports the court’s decision to deny reunification services under section 361.5, subdivision (b)(10), we need not resolve this issue.