Julie M. v. Sup. Ct.

Filed 9/28/06 Julie M. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. George L. Orndoff, Judge.

Judith A. Sanders, for Petitioner.

No appearance for Respondent.

Peter D. Moock, County Counsel, and Kyle Sand, Deputy County Counsel, for Real Party In Interest.

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Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to her son T. and daughter S. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner has a lengthy history of methamphetamine use and numerous drug-related criminal convictions. Her drug use has, on two occasions, necessitated juvenile court intervention. The first intervention occurred in January 2002 when petitioner and newborn T. tested positive for methamphetamine. T. was taken into protective custody by the Kings County Human Services Agency (agency) and petitioner was offered inpatient drug treatment. She successfully completed treatment and, after six months, T. was returned to her care under family maintenance. In February 2003, the juvenile court terminated its dependency jurisdiction.

The second juvenile court intervention occurred in April 2005 when petitioner was arrested for being under the influence of drugs, drug possession (methamphetamine, cocaine, and marijuana), possession of drug paraphernalia and child endangerment. The agency took then three-year-old T. and his 19-month-old sister S. into protective custody and filed a dependency petition on their behalf. The juvenile court ordered the children detained and, in June, sustained the petition and ordered petitioner to complete outpatient drug treatment, submit to random drug testing and participate in a 12-step program by attending three Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings each week. The children were placed together with a paternal aunt.

Over the next six months, petitioner made progress in completing her case plan requirements, most notably in outpatient drug treatment, which she promptly began in June. Petitioner also consistently produced negative drug screens but did not always call in to drug test and was not always able to produce a urine sample at the testing facility. She was least compliant with the court’s order she attend NA/AA meetings. Despite repeated reminders by her caseworker, petitioner only attended one meeting. She claimed she attended one meeting a week but that she lost her attendance card. She promised to provide proof of her attendance but failed to do so.

Despite petitioner’s progress, drugs were still an impediment for her. In November, she was arrested for possession of narcotics. She pled guilty to felony possession but claimed the methamphetamine found in her home belonged to a friend who was visiting her. In addition, petitioner’s husband (not the children’s father) was arrested in June and convicted of felony drug possession. He was released and ordered to participate in drug court as a condition of probation. Upon his release, he resumed living with petitioner.

In December, at the six-month review hearing, the court continued petitioner’s reunification services for another six months. The court also reduced the number of required meetings from three times to once weekly.

Petitioner’s compliance over the next six months mirrored her compliance of the first six months. She continued to progress in outpatient drug treatment and completed it in March 2006. However, according to her drug counselor, she made minimal progress and the director of the program expressed her concern that petitioner was still using drugs. Nevertheless, petitioner tested negative for drugs when she submitted to drug testing. From December 2005 through May 2006, she called in all but 4 of the 67 possible testing days. She was asked to drug test 32 times of which she failed to test 4 times and provided an inadequate sample 5 times. In addition, petitioner only attended 4 meetings during her 12 months of reunification, despite monthly reminders by her case worker. She claimed she attended the meetings but either left her attendance card at home or her husband had it.

In its 12-month review, the agency recommended the court terminate petitioner’s reunification services and consider a permanent plan of adoption for T. and S. with their paternal aunt. The agency’s concern was that petitioner was going through the motions of completing her case plan, but not making the necessary changes in her life and utilizing the support offered through meetings to avoid a relapse.

Petitioner challenged the agency’s recommendation and a contested 12-month review hearing was conducted on July 14, 2006. Petitioner testified that she had been clean and sober since September 2005. She explained she missed drug testing once because her truck broke down. In addition, her urine samples were rejected several times because the sample amount was insufficient and once because she stepped outside the testing facility not realizing her action invalidated the sample.

As to her failure to attend meetings, petitioner claimed her perception of the meetings as religious in nature and a childhood experience prevented her from benefiting from them. She testified that a preacher molested her when she was 11 years old. As a result, she found it difficult to turn her drug addiction over to a higher power as required in the 12-step program. On cross-examination, petitioner admitted that, after she completed inpatient drug treatment in 2002, she attended several meetings in 2003. She attended no meetings in 2004 and relapsed in 2005.

The caseworker acknowledged that the 12-step program required the adherent to “turn [his or her will and life] over to the care of God as [he or she] understands [God],” “believe that a [greater power could restore sanity],” and “admit to God, to [him or herself], and to another human being the exact nature of [his or her] wrongs.” However, the caseworker testified that the 12-step program did not claim to be a religious organization.

Following testimony, petitioner’s trial counsel argued that requiring petitioner to attend meetings violated her constitutional rights under the First Amendment. Counsel also argued there was insufficient evidence that she posed a risk of harm to the children and asked the court to continue services under a plan of family maintenance.

The court rejected counsel’s arguments, found petitioner was provided reasonable services but failed to regularly participate in and make substantive progress in her case plan. Accordingly, the court terminated petitioner’s reunification services and set a section 366.26 hearing for November 9, 2006. This petition ensued.

DISCUSSION

I. Petitioner was provided reasonable services.

Petitioner contends the juvenile court’s requirement that she attend NA/AA meetings, which are religious in content and orientation, without providing her an alternative means of meeting that requirement of her case plan, violated the establishment clause of the First Amendment and rendered the services offered her unreasonable. We disagree.

Attendance at NA/AA meetings was a condition of petitioner’s reunification plan from the inception and never once did she complain that she was offended by the content of the meetings or the orientation of the 12-step program. Nor can it be said that she was unfamiliar with the nature of NA/AA meetings prior to the instant dependency proceedings. She testified that she participated in meetings, though rarely, following her completion of inpatient drug treatment in 2002. Therefore, it could be argued she waived her right to challenge the reasonableness of that component of her case plan by her failure to object to it or request an alternative method of achieving the same goal. (In re Julie M. (1999) 69 Cal.App.4th 41, 47 [failure to challenge plan content constitutes waiver].)

Notwithstanding waiver, petitioner’s argument still lacks merit. The establishment clause guarantees that the “government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ [Citations.]” (Lee v. Weisman (1992) 505 U.S. 577, 587.)

A number of federal and state courts, which petitioner cites, have held that requiring a probationer or prisoner to attend AA or AA-based programs violates the establishment clause because of the programs’ religious content. (Warner v. Orange County Dept. of Probation (2d Cir. 1996) 115 F.3d 1068, 1076-1077; Kerr v. Farrey (7th Cir. 1996) 95 F.3d 472, 479-480; Griffin v. Coughlin (1996) 88 N.Y.2d 674, 691-692.) However, in those cases, the inmate or probationer objected to the religious nature of the treatment programs and their objections were ignored. (Warner v. Orange County Dept. of Probation, supra, 115 F.3d at p. 1070; Kerr v. Farrey, supra, 95 F.3d at p. 474; Griffin v. Coughlin, supra, 88 N.Y.2d at pp. 678-679.)

In this case, petitioner participated in 12 months of services without raising a constitutional violation with respect to the 12-step program and the NA/AA meetings. Had she done so, there is every reason to believe the court would have allowed her to participate in a program other than the 12-step program as long as it similarly targeted her drug abuse. (“[I]f a person had a good reason not to go to AA/NA, that would certainly be acceptable as long as they found some other alternative to deal with the alcohol/drug problem.”)

In light of petitioner’s failure to timely object to the requirement that she attend NA/AA meetings, we conclude she waived her right to raise it by writ petition. Alternatively, we conclude petitioner’s constitutional right to be free of government-sponsored religion was not violated because she could have requested an alternative to the 12-step program. In any case, we conclude petitioner was provided reasonable services.

II. The juvenile court properly found petitioner failed to regularly

participate in and make substantive progress in her reunification plan.

Petitioner argues she substantially complied with all aspects of her reunification plan except for attendance at meetings which she claims was unconstitutional. Therefore, she contends the juvenile court erred in finding she failed to regularly participate and make substantive progress in her court-ordered plan. We review the juvenile court’s findings and orders for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On review of the record as summarized above, we conclude substantial evidence supports the juvenile court’s finding.

As discussed above, petitioner’s refusal to attend meetings was unwarranted on constitutional grounds. Further, her attendance at 4 meetings in 12 months is confirmatory evidence that she failed to regularly participate in that aspect of her case plan. Her nonattendance also calls into question to what extent she progressed in drug treatment. While her sobriety is a major accomplishment, it is only as significant as the ability to sustain it. That ability comes from insight into the drug abuse and a support system in place to ward off relapse. Since petitioner refused to build that support by attending meetings, whether secular or religious, she ignored an important aspect of her rehabilitation program. Therefore, the juvenile court properly found she failed to regularly participate and make substantive progress in her court-ordered plan. This finding has significant implications because it constitutes prima facie evidence T. and S. would be at a substantial risk of detriment if returned to petitioner’s custody. (§ 366.21, subd. (f).) Therefore, it also justifies the court’s refusal to return the children to petitioner’s care.

III. The juvenile court properly terminated reunification services.

Petitioner argues there was a substantial probability the children would be returned to her care after another six months of services and therefore the juvenile court erred in terminating her services. We disagree. At this stage of the proceedings, in light of the reasonable services offered petitioner, the law required the court to act as it did unless petitioner could show a substantial probability T. and S. would be returned to her custody and safely maintained in the home within another six months. (§ 366.21, subd. (g)(1).) A substantial probability of return exists when the parent regularly visits the child, makes significant progress in resolving the problem requiring removal of the child, and demonstrates the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection and well-being. (Ibid.)

As we explained above, petitioner demonstrates the ability to achieve sobriety and participate in certain aspects of her case plan. However, she has yet to fully engage herself in a program of recovery by attending support meetings. Considering petitioner’s history of drug use and relapse, we can not fault the juvenile court for not finding a substantial probability of return. Accordingly, we find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.