Karen M. v. Superior Court
Filed 5/17/13
Karen M. v. Superior Court CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KAREN
M.,
Petitioner,
v.
THE SUPERIOR COURT OF
FRESNO COUNTY,
Respondent;
FRESNO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
F066868
(Super. Ct. No. 0082981-7)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Catarina M.
Benitez, for Petitioner.
No
appearance for Respondent.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Karen M. seeks extraordinary writ
review (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders
issued at a contested dispositional
hearing denying her reunification
services under Welfare and Institutions Code section 361.5, subdivision
(b)(10), (11) and (13)
name="_ftnref2" title="">[1] and setting a section 366.26 hearing as to her
seven-month-old daughter, N.B. Karen
contends there is insufficient evidence
to support the dispositional order denying her reunification services. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Karen is a
34-year-old woman with a long history of drug abuse and numerous criminal convictions. She has given birth to seven children,
including N.B., the subject of this petition.
None of the children are in her custody and the six eldest have been
adopted. Because Karen’s child welfare
history is germane, we begin our factual summary there.
In 1995, Karen’s first child, a
daughter, A., was removed at birth because of Karen’s drug use (cocaine and
marijuana). In 1997, Karen entered
residential drug treatment but was discharged after three days for using
cocaine. The juvenile court terminated
reunification services and in 1999, A. was adopted.
In December 2002, Karen gave birth
to a son, E., while she was incarcerated in state prison on a parole
violation. She was ordered to complete a
substance abuse assessment and submit to random drug testing. She was released from prison in March 2003
and within five days tested positive for marijuana. She was arrested in April 2003 and unable to
complete her services. The juvenile
court terminated her reunification services and E. was adopted.
Karen gave
birth to four more children between 2003 and 2009 and continued to use
drugs. Karen’s third child was removed
in 2003 while Karen was incarcerated, her fourth and fifth children were
removed in 2006 and 2008, respectively, because of her marijuana use, and her
sixth child, a daughter, B., was removed in 2009 because Karen was using and
selling cocaine. The juvenile court
denied Karen reunification services as to each child under two or more subparts
of section 361.5, subdivision (b)(10), (11) and (13) because of her ongoing
drug use and freed the children for adoption.
These dependency proceedings were
initiated in October 2012, approximately two weeks after Karen gave birth to
N.B. At the time, Karen was an inpatient
at the Spirit of Women substance abuse treatment facility as a condition of
probation. Social worker Kameka McGee
from the Fresno County Department of Social Services (department) told Karen
that if she left the Spirit of Women, the department would take N.B. into
protective custody.
On October 15, 2012, McGee and a Fresno police
officer met with the Director of the Spirit of Women, who stated that Karen was
being discharged from the program for violating the rules. One such violation occurred several days
before when Donald F., A.’s father, delivered some cigarettes for Karen during
a time when she was not allowed visitors.
Karen told
McGee that she wanted to leave Spirit of Women and move in with Donald. Apparently after realizing she could not
leave the program with N.B., Karen became upset and irrational. She was involuntarily committed to a
psychiatric facility and N.B. was taken into protective custody.
The
department filed a dependency petition
alleging that Karen’s history of untreated substance abuse resulted in the
abuse and neglect of N.B.’s siblings and that there was a substantial risk that
N.B. would suffer serious physical
harm or illness if left in Karen’s care.
The
juvenile court ordered N.B. detained pursuant to the petition and set a
jurisdictional/dispositional hearing (combined hearing) that was continued and
conducted as a contested hearing in February 2013.
Meanwhile,
on October 26, 2012, Karen entered residential
treatment at WestCare. According to
Mara O’Neill, Karen’s substance abuse counselor, Karen tested negative for
drugs upon her admission to WestCare and was fully compliant with the program
requirements.
In its
report for the combined hearing, the department informed the juvenile court
that Karen had weekly supervised visits with N.B. at WestCare. Karen was loving and affectionate with N.B.
and the department had no concerns with the quality of visits. The department, however, recommended that the
juvenile court deny Karen reunification services under section 361.5,
subdivision (b)(10), (11) and (13) based on her history of drug use and failure
to reunify with N.B.’s siblings. The
department also recommended that the juvenile court deny N.B.’s father
reunification services because he was incarcerated and the department did not
know when he would be released.
Mara
O’Neill testified Karen was a WestCare resident in December 2011 but was
terminated from the program. Karen
returned to WestCare in October 2012 on probation for drug possession. O’Neill testified Karen’s attitude toward
recovery had vastly improved since 2011.
She was making good progress and her drug screens were negative.
Karen
testified that she was using cocaine on a regular basis at the time B. was born
in 2009. After B.’s birth, she stopped
using cocaine on her own and had not used it or marijuana since. She denied she was mandated to complete drug
treatment as a condition of probation but admitted to being on probation. She said she entered Spirit of Women
voluntarily after hearing of the program from a friend. She said she wanted to leave Spirit of Women
because it did not provide her the structure she needed. She denied wanting to leave the program to
live with Donald.
Karen
further testified she completed seven months of drug treatment at
WestCare. She planned to complete
aftercare, continue mental health counseling, work, and attend school.
The juvenile court exercised its
and N.B.’s father reunification services as recommended.
DISCUSSION
Karen contends the juvenile court
erred in denying her reunification services under section 361.5, subdivision
(b)(10), (11) and (13).
name="_ftnref4" title="">[3] We conclude the juvenile court properly
denied Karen reunification services.
will receive reunification services.
[Citation.] Section 361.5,
subdivision (a) directs the juvenile court to order services whenever a
child is removed from the custody of his or her parent unless the case
is within the enumerated exceptions in section 361.5, subdivision (b). [Citation.] Section 361.5, subdivision (b) is a
legislative acknowledgement ‘that it may be fruitless to provide reunification
services under certain circumstances.’ [Citation.]†(Cheryl
P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96 (Cheryl P.).)
In this case, the juvenile court
found that three of the exceptions under section 361.5, subdivision (b) applied
to Karen: the exceptions enumerated as subparts (b)(10), (11) and (13). Karen contends there was insufficient
evidence to support a finding that any of them applied to her.
In order to deny a parent
reunification services under section 361.5, subdivision (b), the juvenile court
only needs to find sufficient evidence to support one of the subparts. (Randi
R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.) We will uphold the juvenile court’s
dispositional order denying reunification services if it is supported by
substantial evidence. (
We
conclude substantial evidence supports a denial of services under section
361.5, subdivision (b)(11) which allows the juvenile court to deny
reunification services to a parent whose parental rights over any
sibling or half sibling of the child were permanently severed and the “parent
has not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling or half sibling of that child from the parent.â€
Here, it is undisputed
Karen’s parental rights to N.B.’s siblings were terminated. Karen contends, however, that section 361.5,
subdivision (b)(11) does not apply to her because she subsequently made
reasonable efforts to address her drug abuse.
She points to her negative drug screen upon entering WestCare as
evidence she abstained from drug use and her full participation in the program
as evidence of her recovery efforts.
Karen ignores, however, other persuasive evidence of her ongoing drug
use. For example, she was a resident of
WestCare in December 2011, which would indicate she was struggling with drug
use then. In addition, she was convicted
of drug possession and tested positive for her probation officer not long
before she entered WestCare in late October of 2012. Thus, she was using drugs and was mandated to
complete drug treatment. She did not do
so voluntarily. Further, she was
attempting to leave Spirit of Women in mid-October 2012 when the department
intervened to protect N.B. On this
evidence, the juvenile court could find that Karen failed to make reasonable
efforts to treat her drug abuse.
Having concluded
substantial evidence supports the juvenile court’s order denying Karen
reunification services under subdivision (b)(11) of section 361.5, we need not
review the juvenile court’s denial of services under subdivision (b)(10) and
(b)(13).
The petition for extraordinary writ is denied. This opinion is final forthwith as to this
court.
*
name="_ftn1" title=""> Before Cornell, Acting P.J., Gomes, J., and Franson, J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
