R.B. v. Superior Court
Filed 6/11/13 R.B. v. Superior Court CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
R.B. et al.,
Petitioners,
v.
THE
SUPERIOR COURT OF THE COUNTY OF HUMBOLDT,
Respondent;
HUMBOLDT COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES et al.,
Real Parties in Interest.
A138007
(Humboldt County
Super. Ct.
Nos. JV110165,
JV110166, JV120196)
Mother
seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) directed to the
juvenile court’s order terminating or denying
Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 366.26 hearing as to her three children, J.B., age 12, D.A., age four,
both of whom have special developmental needs, and R.A., age seven months.
Father also seeks an extraordinary writ directed to the juvenile court’s order
terminating or denying reunification services and setting a section 366.26
hearing as to D.A. and R.A. as to whom he is the presumed father. Both parents
contend there is no substantial evidence to support the trial court’s finding
that reasonable reunification services were provided as to the older siblings.
They also contend the court erred in consolidating the infant’s case with that
of her older siblings and continuing her dispositional hearing until after
reunification services had been terminated for the older children, thereby
allowing services to be bypassed under section 361.5, subdivision (b)(10).
Mother contends further that there is no substantial evidence to support the
court’s finding that the two older siblings should be treated as a sibling group
for the purpose of determining the applicable timeline for reunification. We
shall deny the petitions.
Factual and
Procedural History
On
November 22, 2011, the
County Department of Health and Human Services (the department) filed
non-detain petitions as to the older siblings, D.A. and J.B. Following
amendments in February 2012, the parents waived the right to contest the
petitions, and the court took jurisdiction over the two minors on February 16, 2012. The court
sustained allegations that “mother has been unable to maintain a safe and
sanitary home by failing to keep the home clean and by failing to change
[D.A.’s] soiled clothing in a timely manner.†The court also sustained
allegations that D.A. was present during a domestic violence incident during
which father struck mother causing her to be taken to the emergency room. The
court also sustained the allegation that mother has not met J.B.’s
developmental, medical and dental needs, including specifically encopresis, and
has not maintained voluntary family maintenance services provided by the
department to assist her with his
On
April 5, prior to the contested disposition hearing, the minors were detained
at the request of minors’ counsel. On April 9, the department filed
supplemental petitions requesting more restrictive placements for both
children. The petitions alleged that voluntary family maintenance services had
been provided for the parents beginning in March 2011 to assist the parents in
obtaining necessary medical and dental treatment for the children but that the
parents failed to follow through with the recommended treatment and scheduled
medical and dental appointments. On May 24, the parents submitted to
jurisdiction on the supplemental petition.
At the dispositional hearing on June 28, the court ordered reunification
services for both parents. A six-month
review hearing was set for December
27, 2012.
In
the meantime, in October 2012, a third sibling, R.A., was born. The department
almost immediately filed a section 300 petition and detained the child because
the mother tested positive for methamphetamines at the hospital. At the
detention hearing, father was elevated to presumed father status and both
parents submitted to detention. The jurisdictional hearing was set for November
2012, but continued at mother’s request to December 6.
On
December 5, the day before the jurisdiction hearing in R.A.’s case, the
department filed a report for the upcoming review hearing in the older
siblings’ case. The report recommended the continuation of reunification
services for both parents. On December 6, parents submitted to jurisdiction in
R.A.’s case. R.A.’s dispositional hearing was set for January 10, 2013.
On
December 10, the department filed an amended notice of review hearing for the
two older siblings, this time indicating that the department was requesting
termination of reunification services and the setting of a permanency planning
hearing. The parents objected to the recommendation and requested a contested
hearing, which was set for January 22,
2013.
On
January 8, the department submitted a disposition report in R.A.’s case. The
report states that parents have failed to engage in services provided in
connection with the older siblings and that a report has been submitted in
their case recommending the termination of reunification services. On that
basis, the social worker opines that the department “does not believe that it
is in the best interests of [R.A.] to order family reunification services for
her parents for the next six months, as the parents have had almost eighteen
months of services.†The department requested that R.A.’s case trail the older
siblings case. “If the parents are granted additional family reunification
services as to the older children, then [the department] will create findings
and orders and a case plan that complements that outcome. If the court
terminates family reunification services as to the mother and father, then [the
department] will provide the court with findings and orders and a case plan
that matches that outcome.â€
At
the hearing on January 10, counsel for parents objected to the continuance of
R.A.’s dispositional hearing and the department’s recommendation that her case
trail that of her older siblings. The court asked for further briefing and set
the contested disposition hearing for January 22.
On
January 15, the department filed a motion to consolidate the children’s cases.
The department also filed an addendum to the dispositional report in R.A.’s
case recommending that the court bypass services to the parents under section
361.5, subdivisions (b)(10) and (13).
On
January 22, the court granted the department’s motion to consolidate the
actions for purposes of holding a combined six-month review hearing in the
older siblings’ case and dispositional hearing in R.A.’s case. The contested
hearing was commenced on February 1. On February 21, after receiving
considerable documentary and testimonial evidence, the court terminated
services as to the older siblings, denied services as to the younger sibling
and set permanency planning hearings for all three children. Notice of the
setting of the section 366.26 hearing was mailed to parents the following day.
Both parents sought writ review of the order terminating reunification services
and setting the section 366.26 hearing.
Discussion
1. The
trial court did not err in terminating reunification services and setting a
section 366.26 hearing as to D.A.
When
a child is younger than three years old when removed from the parent’s physical
custody, reunification services are presumptively limited to six months.
(§ 361.5, subd. (a)(1)(B); Tonya M.
v. Superior Court (2007) 42 Cal.4th 836, 843.) “If the child was under
three years of age on the date of the initial removal . . . and the
court finds by clear and convincing evidence that the parent failed to participate
regularly and make substantive progress in a court-ordered treatment plan, the
court may schedule a hearing pursuant to Section 366.26 within 120 days. If,
however, the court finds there is a substantial probability that the child
. . . may be returned to his or her parent or legal guardian within
six months or that reasonable services have not been provided, the court shall
continue the case to the 12-month permanency hearing.†(§ 366.21, subd.
(e).) Here, the court found by clear and convincing evidence that reasonable
services have been provided to the parents, that parents did not comply with
their case plans and made no progress towards alleviating the causes
necessitating the children’s placement out of the home, and that there is no
likelihood the children would be returned to their custody within the following
six months.
Parents
challenge the sufficiency of the evidence in support of the court’s finding
that the department provided reasonable reunification services. In
“[determining] whether substantial evidence supports the trial court’s
[reasonable services] finding, [we review] the evidence in a light most
favorable to the prevailing party and [indulge] in all legitimate and
reasonable inferences to uphold the court’s ruling.†(Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)
“ ‘The standard is not whether the services provided were the best that
might be provided in an ideal world, but whether the services were reasonable
under the circumstances.’ †(Id.
at pp. 598–599.) “Services will be found reasonable if the Department has
‘identified the problems leading to the loss of custody, offered services
designed to remedy those problems, maintained reasonable contact with the
parents during the course of the service plan, and made reasonable efforts to
assist the parents in areas where compliance proved difficult.’ †(
962, 972.)
Based
on the allegations in the petitions, jurisdiction was originally established
and the children were later removed from their home because of, among other
things, domestic violence in the home and mother’s inability to provide
necessary medical and dental treatment for the children. In conjunction with
the case plan, the department provided referrals to numerous family services
providers, including Humboldt Family
Service Center,
Humboldt Domestic Violence Services, and Healthy Moms. The department also
referred parents to parenting classes and to facilities for drug and alcohol
evaluation and assessments. The department arranged weekly supervised visits
for parents and children and made monthly contact with parents to review
parents’ progress and discuss any challenges parents were facing in meeting the
case plan requirements. The department’s
six-month review report advises that both parents were “referred several times
to parenting, [alcohol or other drug] treatment and counseling but they have
rarely participated.†The report continues, “Pursuant to Welfare and
Institutions Code section 366.21 (g), the mother has regularly and
consistently visited the children. It should be noted that the visits remain
supervised [for parents] and they visit the children together. The parents have
been reported to be late to almost every visit. In addition, the quality of the
visits are not always positive and in fact are extremely upsetting and
detrimental to the children. The mother does not have appropriate parenting
skills and the toxic relationship between [father] and mother expands to
include [the children] during visits. The family dysfunction is apparent on the
visits and due to the mother’s inability to understand and meet the emotional
and physical needs of the children and her lack of compliance with any portion
of the reunification case plan the visits overtime have stagnated and remain
filled with the untreated negative family dynamic that was present at the
beginning of this case. [Father] has not regularly and consistently visited
[D.A.] The quality of the visits is poor. Father fails to engage with his child
or [J.B.] on visits. He has had several angry outbursts during visits against
mother and [J.B] and on one occasion father’s anger towards . . .
staff was so extreme and dangerous 911 was almost called. It is also reported
by [D.A.’s] foster mom and continues to be reported that [D.A.] suffers from
nightmares following every visit her father attends. The parents have no
understanding of how their toxic relationship negatively impacts the children.
. . . The parents have made no progress in their case plan requirements
and in fact the mother recently tested positive for methamphetamine at the
birth of the newborn sibling and mother and father tested positive for
methamphetamine on December 5, 2012 and missed tests on 4/18/12, 5/1/12,
5/10/12 and 12/19/12, which are considered as dirty tests. . . .The
mother has also continued to deny there is any domestic violence in the
relationship between her and [father]. The mother has been referred to Humboldt
Domestic Violence Services on several occasions but has not engaged in services.
The father has failed to engage in anger management or other individual
counseling. Based on the parents denial and absolute non-compliance with the
case plan there is no substantial probability the children would be returned to
the parents, who remain an intact couple, if the court were to extend services
to the one year date.†This evidence more than amply supports the trial court’s
findings.
Parents’
arguments to the contrary are not persuasive. Both parents argue that the
social worker’s involvement in the case was “very limited†and that he did not
maintain regular contact with them. Mother cites a page in the reporter’s
transcript of the review hearing at which she claims the social worker
testified that he spoke to her only twice about her case plan requirements. The
transcript, however, does not support mother’s characterization. The social
worker did not testify that he spoke with her only twice during the entire
reunification period, but rather that he spoke to her only twice between August
10, 2012, when he took over the case, and October 22, 2012, when R.A. was born.
This is largely consistent with his statement that he made monthly contact with
parents to review their progress and discuss any challenges they were
encountering. While he acknowledged that he was out of the office “on a workers
comp issue†between September 23 and October 31, he testified that someone else
acted as the social worker in the case in his absence. The fact that a section
300 petition was filed following R.A.’s birth in October confirms that someone
was supervising the case in his absence. Moreover, even if the department
missed one monthly contact while the assigned social worker was on leave, that
would not establish that the department’s supervision as a whole was
unsatisfactory.
Both
parents also challenge the sufficiency of the services provided regarding their
drug abuse. Mother faults the department for requesting she drug test on only
three occasions, “all toward the end of the review period.†The record reflects, however, that mother was
referred to substance abuse programs throughout the reunification period,
including drug testing in April and May of 2012. Moreover, the increased
testing reasonably corresponded with the positive drug test at the birth of the
youngest sibling.
Father
acknowledges that he was referred for an alcohol and drug abuse assessment in
May 2012 and claims that it was determined that he did not need any services.
The social worker testified that although there were no allegations in the
complaint regarding father’s drug use, he “[s]trongly encouraged [father] to
utilize the county [alcohol and other drug] services and asked at least on two
occasions about his attendance, and his response has been that he doesn’t use
drugs or alcohol.†Father argues that although he tested positive twice for
methamphetamine use, no nexus has been shown between his occasional drug use
and his ability to parent his child. Nothing in the record suggests, however,
that the court or social worked placed undue emphasis on father’s positive drug
tests. They are but part of his overall failure to engage in services.
Father
also makes much of the fact that in November 2012 he was required to pay,
perhaps mistakenly, for an assessment for a domestic violence class. The social
worker testified that beginning in March or April of 2012, father was referred
to anger management and individual counseling and that father was informed that
payment for the counseling would be made by the county. The social worker testified
that father did not engage in services until November 2012 when he attended an
assessment and in January, during the week of the review hearing, when he
attended his first group counseling session. Father states in his petition that
he was required to pay for the November 2012 assessment. The social worker did
not know why father was required to pay and agreed that the department should
have been billed. The fact that father may have mistakenly been required to pay
for the assessment, contrary to the department’s usual procedures, does not
establish that reasonable services were not provided. Nothing in the record
suggests that the cost of the program caused father’s failure to participate
sooner or more regularly.
Finally,
father argues that the social worker’s report, including its characterization
of the visits with the children, was not objective and that the social worker
“admitted that he included only negative evidence to support his pre-conceived
opinion of what the outcome should be.†The social worker in fact testified
that while there were some “good visits,†there were “so many entries that
illustrate parenting that appears to be detrimental . . . that on
this report what I did was list those incidents.†In any event, the social worker’s
opinion was subject to cross-examination and the court reasonably believed his
testimony that the overall quality of the visits was poor.
Accordingly,
we find no error in the termination of reunification services and setting of a
section 366.26 hearing for D.A.
2. The
trial court did not err in terminating reunification services and setting a
section 366.26 hearing as to J.B.
Mother
contends that substantial evidence
does not support the trial court’s finding that D.A and J.B. were part of a
sibling group within the meaning of section 361.5, subdivision (a)(1)(C) so
that her reunification with 12-year-old J.B. should be subject to the more
restrictive time limits applicable to his then three-year-old sister.
In deciding whether an older minor is part of a sibling group, the court must
consider the following factors: “(a) whether the children were removed from
parental care as a group; (b) the closeness and strength of the sibling bond;
(c) the siblings’ ages; (d) the appropriateness of maintaining the group
together; (e) the detriment to each child if sibling ties are not maintained;
(f) the likelihood of finding a permanent home for the group; (g) whether the
group is currently placed together in a preadoptive home or has a concurrent
plan goal of legal permanency in the home; (h) the wishes of each child whose
age and condition permits a meaningful response; and (i) the best interest of
each child in the group. Additionally, the court must specify the factual basis
for its finding that it is in each child's best interest to schedule a section
366.26 hearing for some or all of the members of the sibling group.†(
Rules of Court, rule 5.710(d).)
In
this case the court found that J.B. was part of a sibling group with D.A. and
R.A. The court explained, “I’ve analyzed all of the factors under rule 5.710(d)
and Welfare and Institutions Code section 366.21(e), and those are briefly
summarized as follows: [¶] First, I find that [J.B.] and [D.A.] were
removed as a group. They appeared to have a close bond to each other. They are
approximately eight years apart, which is at the upper end of where you might
find such a bond, but certainly within that range. [¶] I find that it is
appropriate to maintain the children together, if possible. They have not been
together as far as their placement more recently because of the special needs
for [D.A.] and [J.B] that require that they be in certain homes. I think that
there would be a detriment to the children if their sibling ties are not
maintained. They appear to be upset if they can’t see each other at visits.
[¶] As to the likelihood of finding a permanent home for the children as a
group, there is apparently a possible placement that’s currently under review.
They are not currently together and that’s a reference to their special needs
which appear to be significantly improving that would not allow them to be
together. [¶] It has been discussed that their wishes are unknown, but I’m
not sure that that’s really true because [J.B.] and [D.A.] certainly like being
together and they like their visits and they are upset if they can’t see each
other. So, I think their wishes are to be together. And as far as the best
interests, I think it is attempting to keep them together because they
certainly like being together.†The court’s finding is supported by the social
worker’s report, which states that “although the children are not currently
placed together, the department has provided regular sibling visitation for the
children and the siblings enjoy a very strong connection to each other†and the
report submitted by J.B.’s CASA, which indicates that J.B. is “very happy about
seeing his sister†at their weekly visits and that the siblings have “an
excellent time when they are together.â€
Mother
argues that although the children were removed together and at that time may
have had a significant bond, they have not been placed together since their
detention and the permanent plans recommended by the department, adoption for
D.A. and long term foster care for J.B., will necessary result in the severing
of their sibling ties. She argues that “if [J.B.] is not part of a sibling
group under three, then he continues to have a chance of permanency by
returning to his mother, whom he resided with for the first 10 years of his
life.†While the children’s future relationship is largely uncertain,
substantial evidence nonetheless supports the court’s finding that the
children’s current bond warrants treating them as a sibling group and at least
attempting to keep them together.
Moreover,
any potential error in this respect was harmless because substantial evidence
independently supported termination of services and setting of section 366.26
hearing for J.B. In In re Derrick S.
(2007) 156 Cal.App.4th 436, 450 the court, while emphasizing “the critical
importance of reunification services,†recognized nonetheless that “there are
some situations where a juvenile court may in the exercise of its discretion
terminate reunification services earlier than the applicable default period
. . . of 12 months.†The court explained that under the plain
language of sections 361.5, subdivision (a), and 366.21, subdivision (e), “the
juvenile court has the discretion to terminate the reunification services of a
parent at any time after it has ordered
them, depending on the circumstances presented†and that where the record
shows that “the likelihood of reunification is extremely low [and] a
continuation of the reunification period would waste scarce resources and delay
permanency for dependent minors,†the court may terminate services prior to the
12-month review. (156 Cal.App.4th at p. 447.)
In
this case, mother began receiving voluntary services as early as March 2011 and
formal services with the filing of the non-detained petition in November 2011.
Thus, by the time of the six-month review in January 2013, mother had been
receiving services for almost two years. Mother’s case plan with respect to J.B.
was identical to her plan for D.A. and as noted above, the court found that
reasonable services had been provided and that mother had completely failed to
engage in services. Under these circumstances, the court did not abuse its
discretion in terminating reunification services and setting a section 366.26
hearing for J.B.
3. The
trial court did not err in denying reunification services with respect to R.A.
and in setting a section 366.26 hearing.
The
court denied reunification services as to R.A., making findings under both
section 361.5, subdivisions (b)(10) and (b)(13). Mother does not challenge the
sufficiency of the evidence in support of the court’s bypass of services under
subdivision (b)(13) and on that basis alone her petition could be denied. Father,
however, correctly asserts that there is no substantial evidence to support the
court’s finding that he has “a history of extensive, abusive, and chronic use
of drugs or alcohol and [has] failed or refused to comply with a program of
drug or alcohol treatment described in a case plan . . . on at least
two prior occasions.†As noted above, no jurisdictional findings were sustained
regarding father’s drug use or abuse and there is no evidence that on two prior
occasions he failed to comply with a court-ordered program. Accordingly, we
must consider the parents’ argument that the court erred by continuing the
dispositional hearing in R.A.’s case until after reunification services had
been terminated for the older children, thereby allowing services to be bypassed
under section 361.5, subdivision (b)(10).
Under
section 352, subdivision (b), the court may continue a dispositional hearing
for a child who has been removed from his or her parents’ custody beyond the
60-day statutory time limit only upon a showing of exceptional circumstances.
name="_ftnref5" title="">[5]
The circumstances must be viewed in light of the minor’s best interest and substantial weight shall be
given “to a minor’s need for prompt resolution of his or her custody status,
the need to provide children with stable environments, and the damage to a
minor of prolonged temporary placements.†(§ 352, subd. (a).) The
trial court’s ruling on a request for a continuance is reviewed for an abuse of
discretion. (In re Ninfa S. (1998) 62
Cal.App.4th 808, 811.)
In
this case, whether viewed as the granting of the department’s motion to
consolidate or its request to trail, the result is the same. The court
continued R.A.’s disposition hearing for just under two weeks in order to
resolve issues in the older siblings’ case that potentially would have a
significant impact on the outcome of the dispositional hearing in R.A.’s case.
Relying
on a footnote in Riverside County Dept. of Public Social Services v.
Superior Court (1999) 71 Cal.App.4th 483, parents argue that a continuance under
such circumstances is an abuse of discretion as a matter of law. In
(b)(10) bypass provisions may be applied so long as the factual predicate,
i.e., the termination of parental rights or reunification services, occurs in
the first case before a disposition is made in the second case. (71 Cal.App.4th
at p. 491; see also Marlene M. v.
Superior Court (2000) 80 Cal.App.4th 1139, 1148.) In so ruling, the court
rejected the argument that such a rule would lead to procedural gamesmanship.
The court explained, “As a last note on this subject, we point out that even if
actions taken after the filing of a dependency petition affect a parent’s
status under subdivision (b)(10) of section 361.5, it is unlikely that [the
Department of Social Services] (or the comparable agency in any county) could
routinely use a ‘tactical’ termination of rights or selection of a permanent
plan as to a sibling of the subject minor to bring the statute into play. If a
minor is detained in custody, the jurisdictional hearing is required to be held
within 15 days of the filing of the petition. [Citation.] Continuances require
a showing of good cause. [Citation.] If the minor is found to be a dependent
child, the dispositional hearing is to be held within 30 days if denial of
services is an issue. [Citation.] Thus, if a parent insists upon prompt
proceedings, it is not likely that [the department] would be able to rush ahead
with a proceeding as to the other child which would bring subdivision (b)(10)
of section 361.5 into play, unless such
a proceeding were already in prospect.†(71 Cal.App.4th at p. 490, fns.
omitted.) The court added, “We also assume that a trial court would look
askance at any request by either side for either a continuance or an
advancement designed solely with section 361.5, subdivision (b)(10) in mind.â€
(71 Cal.App.4th at p. 490, fn. 15.) Contrary to parents’ argument, we do not
read footnote 15 as establishing a rule that a continuance should never be granted
when the circumstances implicate section 361.5, subdivision (b)(10). Rather,
the footnote indicates that courts should be cognizant of the impact of the
bypass provisions when deciding whether exceptional circumstances
support a request for a continuance.
In
this case, the trial court rejected any suggestion that the department acted in
bad faith when it requested the matter trail so that it could recommend
services be bypassed for R.A. after services were terminated for the older
siblings. Because the record before this court does not include a transcript of
the January 22 hearing, we do not have the benefit of the court’s explanation
for granting the department’s request. We do not believe, however, that under
the circumstances of this case, the short continuance granted to allow for
resolution of the older siblings’ case would constitute an abuse of discretion.
There is no evidence that services provided with respect to the older siblings
were cut short merely so that the bypass statute would apply to R.A. Rather,
the record establishes that the parents were offered nearly two years of formal
and informal services and made only minimal progress toward reunification.
Likewise, because R.A. was detained upon her birth and there was no likelihood
that she would be returned home at the dispositional hearing, the continuance
did not negatively impact her interest in timely placement. We need not rely on
this ground, however, as any potential error with respect to the short
continuance was harmless.
Section
361.5, subdivision (a)(2) authorizes the termination of court-ordered
reunification services prior to the six-month review hearing upon a showing
that changed circumstances or new evidence support application of a bypass
condition.
Had the court proceeded with the dispositional hearing on January 10 and
ordered services, it could have, and undoubtedly would have, terminated those
services 12 days later when the grounds for bypass under section 361.5,
subdivision (b)(10) were established. Accordingly, any error with regard to the
continuance was harmless.
name="_ftnref7" title="">[7]
Disposition
The
petition for an extraordinary writ is denied on the merits. (§ 366.26, subd.
(l); Cal. Rules of Court, rule 8.452(h).) The request for a stay is denied as
moot. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i),
8.490(b).)
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
All statutory references are to the Welfare and Institutions Code unless
otherwise noted.
Section 361.5, subdivision (b) provides in relevant part: “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 siblings or half siblings of the child because the parent or guardian
failed to reunify with the sibling or half sibling after the sibling or half
sibling had been removed from that parent or guardian pursuant to Section 361
and that parent or guardian is the same parent or guardian described in
subdivision (a) and that, according to the findings of the court, this parent
or guardian 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 that
parent or guardian. [¶] . . . [¶] (13) That the parent or
guardian 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, or has failed or
refused to comply with a program of drug or alcohol treatment described in the
case plan required by Section 358.1 on at least two prior occasions, even
though the programs identified were available and accessible.â€
