Filed 7/24/17 Rachel M. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RACHEL M.,

Petitioner,

v.

THE SUPERIOR COURT OF TULARE COUNTY,

Respondent;

TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Real Party in Interest.




F075581

(Super. Ct. No. JJV059283C)


OPINION

THE COURT*
ORIGINAL PROCEEDING; petition for extraordinary writ review. Robert Anthony Fultz, Judge.
Rachel M., in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.

-ooOoo-
Rachel M. (mother) in propria persona seeks extraordinary writ relief from the juvenile court’s dispositional orders denying her reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(13) and setting a section 366.26 hearing to select a permanent plan of adoption as to her four-month-old son, J.M. (Cal. Rules of Court, rule 8.452.) Mother contends the evidence in her case does not support a denial of services under section 361.5, subdivision (b)(13), which applies when there is clear and convincing evidence that “the parent … of the child has a history of extensive, abusive and chronic use of drugs … and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition[.]” We deny the petition.
PROCEDURAL AND FACTUAL BACKGROUND
Newborn J.M. was taken into protective custody in March 2017 by the Tulare County Health and Human Services Agency (agency) after mother tested positive for methamphetamine during his delivery. Although J.M. did not test positive, mother admitted using methamphetamine during her pregnancy with him. The agency placed J.M. in foster care.
Mother had an approximate 18-year history of methamphetamine abuse, beginning at the age of 18. In 2000 and 2005, she gave birth to a daughter, Chanel, and son, Sebastian, respectively. Chanel and Sebastian were removed from mother’s custody in 2005 after mother and newborn Sebastian tested positive for methamphetamine. Mother completed reunification services, which included substance abuse treatment, and was reportedly sober and gainfully employed from 2005 to 2012. For two of those years, she was a drug counselor for Tulare County. Sometime in 2012, she relapsed and used methamphetamine regularly until J.M.’s birth. In June 2013, she was arrested on drug-related charges and sentenced to deferred entry of judgment, which she failed. She was ordered to participate in Recovery Court in October 2015, which was revoked the following December. At the time of J.M.’s birth, she had an active bench warrant and Chanel and Sebastian, ages 17 and 12, were being raised by Sebastian’s father.
The agency filed a dependency petition on J.M.’s behalf, alleging mother’s substance abuse placed him at a substantial risk of harm, the whereabouts of his alleged father, Michael, were unknown and mother’s neglect of Sebastian placed J.M. at risk of similar abuse. (§ 300, subds. (b)(1), (g) & (j).)
Mother appeared at the detention hearing and her attorney informed the juvenile court that she was enrolled in an outpatient substance abuse program and was on the waiting list for residential treatment at Mothering Heights, a six-month perinatal program. She requested more frequent visitation so she could bond with J.M.
The juvenile court ordered J.M. detained pursuant to the petition and increased mother’s visitation to three times a week for two hours under the agency’s supervision. The court also ordered the agency to refer mother for substance abuse and mental health evaluations, alcohol and drug testing, parenting classes, a cardio-pulmonary resuscitation (CPR)/first aid class and a drug exposed infant (DEI) class pending further proceedings.
By two and a half weeks, J.M. was exhibiting symptoms of intrautero drug exposure such as tremors, a high-pitched, shrill cry, excessive sneezing and diarrhea. He also startled easily, slept poorly and was not visually tracking, making eye contact or cooing. He was able to lift his head and turn it from side to side but his arms and legs were stiff and he was not able to move them easily.
On April 7, 2017, the juvenile court conducted the jurisdictional hearing. Mother waived her right to a hearing on the allegations and the court found the allegations true and adjudged J.M. a dependent child. Mother’s attorney informed the court that mother completed the DEI training, was admitted to a substance abuse program in Tulare County, was drug testing and visiting J.M. Her attorney also requested a contested dispositional hearing on the agency’s recommendation to deny mother reunification services under section 361.5, subdivision (b)(13). The court granted the request and set the contested hearing for April 28.
On April 10, 2017, mother entered Mothering Heights and was told she could remain in the program for 30 days if the juvenile court did not return J.M. to her custody. Afterward, she could transfer to another inpatient program or resume outpatient treatment.
On April 28, 2017, mother’s attorney presented a letter from mother and the negative results of a drug test dated April 24, 2017. He told the court mother was motivated to address her drug addiction and wanted to participate in reunification services. She was participating in alcohol and drug education classes, attended six Alcoholics/Narcotics Anonymous meetings each week, attended process groups, was drug testing and visiting J.M. three times a week. She had met with her probation officer and taken the necessary steps to resolve her bench warrant. In addition, the staff at Mothering Heights told her she could stay at the program for six months. She intended to complete the program and participate in aftercare even if the court denied her services.
In her letter, which the juvenile court read and considered, mother asked the court to place J.M. with her at Mothering Heights. She acknowledged her poor choices but was seeking recovery and planned to work in the recovery field after completing her program. She had developed a strong bond with J.M., her “little prince,” and believed he deserved to be with her.
The juvenile court denied mother reunification services as recommended. The court commended mother for her efforts and encouraged her to continue but pointed out that her substance abuse was long and well documented and she knowingly exposed J.M. to the dangers of her drug use. The court set a section 366.26 hearing for August 25, 2017.
DISCUSSION
Mother argues the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(13) in essence because she did not resist treatment. She points to evidence she completed reunification services in her prior dependency case, enrolled in outpatient treatment four days after J.M. was born, entered Mothering Heights on April 10, 2017, and was “compliant with all Child Welfare Services requirements, including D.E.I. class and [p]arenting classes.”
As we have stated, section 361.5, subdivision (b)(13) allows the juvenile court to deny a parent family reunification services based on, among other things, clear and convincing evidence that the parent has a history of extensive, abusive and chronic use of drugs and has resisted prior court-ordered treatment for such a problem during the three-year period prior to the filing of the petition before the court.
We review an order denying reunification services for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court’s order, and affirm the order even if there is substantial evidence supporting a contrary finding. The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Mother does not challenge evidence of her “extensive, abusive and chronic” use of methamphetamine. Nor does she deny that she relapsed in 2012 and used methamphetamine during the subsequent five years, including while she was pregnant with J.M. Rather, she believes her previous success in completing drug treatment and prompt efforts to recover following J.M.’s removal mitigate her circumstances. In fact, the reverse is true. Mother’s prior treatment actually justifies the juvenile court’s decision to deny her services and her subsequent efforts are not a consideration for purposes of applying the statute.
When a child is removed from parental custody, the juvenile court is required to order reunification services for the child and the child’s parents unless the court finds by clear and convincing evidence that the parent is described by any of the 17 exceptions set forth in section 361.5, subdivision (b). (§ 361.5, subds. (a) & (b)(1)-(17).) These exceptions to the general rule reflect a legislative determination that attempts to reunify may be futile under certain circumstances and may not serve a child’s interests. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) Thus, by including the circumstances described in subdivision (b)(13), the Legislature determined it may be futile to attempt reunification for a parent with a drug history like mother’s and who resisted drug treatment.
Case law has defined “resistance” to treatment and includes mother’s situation—i.e., completion of a court-ordered substance abuse treatment program and resumption of regular drug use during the three years prior to the petition being filed. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780 (Laura B.).)
Thus, the juvenile court properly denied mother reunification services under section 361.5, subdivision (b)(13) because of her prior completion of court-ordered treatment and subsequent resumption of drug use. The fact that she made efforts to reenter drug treatment after J.M.’s removal pertains to the period after the petition was filed and is therefore irrelevant.
Having found a basis for denying mother reunification services under the statute, the juvenile court had no choice but to deny mother reunification services and set a section 366.26 hearing to select a permanent plan for J.M. (§ 361.5, subd. (f).)
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.