Lydia U. v. Sup. Ct.

Filed 8/3/06 Lydia U. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Lydia U., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

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

STATEMENT OF THE CASE AND FACTS

Petitioner has a 17-year history of heroin use, which resulted in the removal of her three sons in separate dependency proceedings initiated in 1995 and 1998. She failed to reunify with her sons and they were placed for adoption.

In addition, petitioner pled guilty to possession of heroin in 1998. She was sentenced to probation and ordered to complete inpatient drug treatment. After less than a month in the program, she was remanded to prison to serve a three-year sentence.

Over the next three years, petitioner was in and out of prison for violating parole. While in prison, she was given additional opportunities for drug treatment but only completed one, a six-month residential drug treatment program from which she graduated in September 2002.

Meanwhile, in March 2001, A. was born and placed with her biological father, Anthony, and paternal grandmother. In April 2005, Anthony died suddenly, leaving A. in the care of her paternal grandmother. Petitioner joined them in the home upon her release from custody in May 2005.

The instant dependency proceedings were initiated in November 2005, after petitioner was arrested for being under the influence of heroin. The Fresno County Department of Children and Family Services (department) took then four-year-old A. into protective custody and filed a dependency petition on her behalf. The juvenile court ordered A. detained and, on May 2, 2006, conducted a contested dispositional hearing on the department's recommendation to deny petitioner reunification services pursuant to section 361.5, subdivision (b)(10) (termination of reunification services), (b)(11) (severance of parental rights) and (b)(13) (chronic drug use and resistance to treatment).

Petitioner argued at the hearing that the court should grant her services because she made reasonable efforts to treat her drug problem and that services would be in A.'s best interest. She testified that she entered a year-long residential drug treatment program in January 2006. She expected to complete the residential phase of the program in July 2006 and the outpatient treatment phase in January 2007. She believed her recovery would be successful this time because she was finally getting the psychological counseling that she needed all along. She also stated that A. was strongly bonded to her and that denying her (petitioner) reunification services would deprive A. of her only living parent and exacerbate the emotional trauma A. experienced by Anthony's sudden death.

After argument, the court concluded petitioner's circumstances warranted denial of reunification services under section 361.5, subdivision (b)(10), (b)(11) and (b)(13). The court also found that services would not be in A.'s best interest and set a section 366.26 hearing for September 8, 2006. This petition ensued.

DISCUSSION

Petitioner claims the juvenile court erred in not crediting her efforts to change her life situation and asks this court to give her another chance at reunification. In essence she asks this court to reweigh the evidence and rule in her favor. However, as a reviewing court, it is not our role to reexamine the evidence. (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.) Rather, we determine whether substantial evidence supports the juvenile court's findings and orders based on the evidence before it. (Ibid.) In this case, we conclude that it does.

Dependency law generally mandates that the juvenile court order reunification services for the parent of a child adjudged a dependent of the court. (§ 361.5, subd. (a).) However, the law also recognizes that, in some cases, it is futile to provide services. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137.) Consequently, the Legislature set forth 15 exceptions to the general mandate, any one of which, if applicable, justifies a denial of services. (§ 361.5, subd. (b).)

In this case, the juvenile court found three of the exceptions apply: subdivision (b)(10) which pertains to a parent who failed to reunify with any siblings or half-siblings of the child and subsequently failed to make a reasonable effort to treat the problems that led to the removal of the sibling or half-sibling (subsequent reasonable efforts); subdivision (b)(11) which pertains to a parent whose parental rights over the sibling or half-sibling were severed and the parent failed to make subsequent reasonable efforts; and subdivision (b)(13) which pertains to a parent who has an extensive history of abusive, and chronic drug use for which she resisted treatment during a three-year period immediately prior to the filing of the dependency petition or failed or refused to comply with a drug treatment program on at least two prior occasions.

Petitioner argues that her circumstances do not fully satisfy the provisions of subdivision (b)(10) and (b)(11) because she made subsequent reasonable efforts to address her drug use by admitting herself for drug treatment in January 2006. Her argument ignores, however, the many relapses and failed drug treatment from the time she failed to reunify with her sons in 1995 and 1998 until A. was removed from her custody in 2005. Viewing the totality of petitioner's efforts during the relevant timeframe, we concur with the juvenile court that her efforts to resolve her heroin abuse were not reasonable. Even if, for the sake of argument, we agreed with petitioner, we would still affirm the court's denial of services under subdivision (b)(13), not only because petitioner does not challenge it but also because the evidence supports it.

Alternatively, petitioner argues that, notwithstanding the applicability of subdivision (b)(10), (b)(11) and (b)(13), reunification with petitioner would serve A.'s best interest in light of Anthony's death. (§ 361.5, subd. (c).) While we recognize, as did the juvenile court, the implications of separating a child from her sole parent, we concur A.'s best interest would be better served by a stable parent in a permanent situation than a biological parent struggling with drug addiction. 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 Harris, Acting P.J., Gomes, J., and Dawson, J.

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