Filed 12/20/18 S.T. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDING; petition for extraordinary writ review. Donald I. Segerstrom, Jr., Judge.

Dana R. Gross for Petitioner.

No appearance for Respondent.

Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

INTRODUCTION

On May 29, 2018, petitions were filed on behalf of Matthew M. (age 11) and Isabella M. (age 9) pursuant to Welfare and Institutions Code section 300[1] by Tuolumne County Child Welfare Services (child welfare services) alleging the children were at risk of harm due to S.T.’s (mother) addiction to methamphetamine.[2] The children were detained. At the jurisdiction hearing on August 15, 2018, the juvenile court found true allegations that both children suffered substantial risk of physical harm due to their mother’s addiction to methamphetamine. At the conclusion of a disposition hearing on October 12, 2018, the juvenile court found the bypass provisions of section 361.5, subdivision (b)(13) applicable, denied mother reunification services, and set the matter for a permanency planning hearing on February 5, 2019.

Mother seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the juvenile court’s orders at the disposition hearing, including the order setting the case for a permanency planning hearing pursuant to section 366.26. We affirm the orders of the juvenile court and deny the petition.

FACTS AND PROCEEDINGS

Detention and Jurisdiction

In December 2015, petitions were sustained alleging that mother and G.M. were using methamphetamine and neglecting both children. At the conclusion of a disposition hearing on December 29. 2015, mother was granted reunification services including parenting education, mental health services with counseling, substance abuse testing and outpatient treatment, and a 12-step program. Mother was also to maintain sobriety. Mother received 24 months of services including dependency drug court. On October 31, 2017, the dependency action was terminated and mother gained custody of both children.[3]

By mid-February 2018, less than four months later, child welfare services had received two separate reports of child neglect, including one from Isabella’s school indicating she had not bathed in quite some time and was wearing dirty clothes. The second report indicated the children were hungry, barefoot and dirty, and mother appeared to be “tweeked-out.”

In late April 2018,[4] child welfare services received a referral that mother and G.M. were abusing illegal substances and there was no food in the home. The police were called to investigate a report of domestic violence between mother and G.M. The following day, a social worker met with Matthew and Isabella. Matthew told the social worker that police were called to his home because his mother had been screaming, which she does every morning. Matthew described verbal but no physical fighting between mother and G.M. and said Isabella sleeps with him in his room or on the couch because she is afraid to sleep alone.

Isabella reported that her mother screamed, but explained it happened about five times a month. Isabella was afraid her father was going to hurt mother. During the previous dependency case, G.M. reported that when they are sober, he and G.M. work well together but incidents of domestic violence occur when they are using illegal drugs. In late May, social workers made an unannounced visit to mother’s home. Matthew answered the door and explained he and his sister were not in school because they missed the bus. Mother told the children it was her birthday and they should spend time together. A social worker later confirmed that the children had been recently missing school or were tardy. After the social workers confronted mother with the allegations of drug use and domestic violence and suggested she drug test, mother became increasingly agitated, ultimately slamming the door on the social workers. During a subsequent meeting between mother and social workers, mother would not talk with them further and her neighbor yelled and cursed at the social workers to leave.

Social workers filed dependency petitions for each child and obtained a protective custody warrant for the children on May 29, but were unsuccessful in locating them. Police officers executed the warrant on June 4. The petitions alleged the children suffered or were at substantial risk of serious physical harm or illness due to mother’s inability to protect them due to her ongoing domestic violence and methamphetamine abuse.

Mother initially refused to test for illegal drugs, became ambivalent about testing, and then said she wanted to consult her attorney. A neighbor reported that although she liked the family, their fighting was triggering bad memories of domestic violence the neighbor had suffered. The social worker documented all of the services mother had received between 2009 and 2010 and during the recently dismissed dependency case. Mother tested positive for methamphetamine and marijuana in a toxicology test taken on June 7. At the detention hearing on June 7, mother submitted the case based on the social worker’s reports and the petitions. The juvenile court detained the children and set the matter for a jurisdiction hearing.

Mother told the social worker that she wanted to remain drug free and reunify with her children. Mother also told the social worker that she “faked” her last case but had a sponsor this time. Law enforcement had to intervene on June 15, after mother and G.M. got into a verbal altercation and he broke a window in their home. Mother obtained an emergency protective order against him the same day.

The social worker’s jurisdiction hearing report stated that during a visit of mother’s home on June 15, mother answered the door disheveled. Mother reported that G.M. had not entered rehabilitation and was still actively using drugs. Mother called the police after she had an argument with G.M. the day before. When asked to state her safety plan should G.M. return to the home, mother replied she would seek physical safety at a neighbor’s home and call the police. Mother said she had reached out to her positive support system and was attending Narcotics Anonymous (NA) meetings. She was also searching for employment. Mother had attended 11 support meetings between June 8 and June 17. Mother was positive she could remain sober if she continued attending meetings and reaching out to her positive support system. Mother had positive supervised visits with the children and it was clear the children had strong bonds with her.

The social worker noted both mother and G.M. had exposed the children to their substance abuse and domestic violence. The social worker was concerned that the children remained in substantial danger to their physical health and well-being if they remained in mother’s care. Drug tests collected from mother on July 17 and July 31 showed she had consumed alcohol.

In an addendum to the jurisdiction report, child welfare services requested that the court keep the children in foster care pending the disposition hearing and take judicial notice of the most recently dismissed dependency case. At the jurisdiction hearing on August 14 and 15, mother and G.M. submitted the matter on the social worker’s report. The juvenile court found the allegations in the petitions true as to both children.

Disposition Hearing

Child welfare services filed a disposition report recommending that no services be offered to mother pursuant to the bypass provision of section 361.5, subdivision (b)(13) due to mother’s chronic history of substance abuse. Mother also had a chronic history of domestic violence. The social worker reported that at the jurisdiction hearing, mother made inconsistent statements concerning when she used methamphetamine after her prior dependency case was terminated. Mother initially stated she started using methamphetamine after the children were placed into protective custody, but then said she first used the drug a few days before the children were detained. The social worker met with mother on August 10 and she denied consuming any alcohol even though she tested positive twice for the metabolites of alcohol. The social worker advised mother it was important that she not consume alcohol and demonstrate her sobriety from all substances.

The foster parent told the social worker that Matthew was very protective of the family and recently told Isabella not to say anything or it will get back to child welfare services. The foster parent expressed concern as to the children’s struggles with reading. She had also just taught Isabella how to tie her shoes because Isabella had not learned how to do this.

Mother’s drug tests between June 11 and August 21 were negative for methamphetamine. Mother participated in four supervised visits per week for two hours a visit. Mother provided snacks and provides affection to both children. On one occasion, Matthew was punching and kicking a couch, yelling he wanted to hit something. Mother successfully redirected him.

Child welfare services was concerned that despite having been continually connected with community resources, mother had been unable to successfully utilize the services provided to her. Provided services included programming for Women, Infants and Children (WIC), public health home nursing, parenting education, Calfresh, section 8, CalWORKs, Center for Non-Violent Community Shelter, Social Security Income, residential substance abuse treatment, outpatient substance abuse treatment, and oversight by the juvenile dependency court and child welfare services. These services, which took place over a combined 40 months, were intended to strengthen the family, develop safety, and avoid separating the family. Mother was inconsistent in her testimony and accounts about when she relapsed in using methamphetamine.

The disposition hearing took place on September 28 and October 12. Social worker Cassandra La Fon testified that beginning in January, child welfare services began receiving referrals for mother and G.M. Mother refused drug testing. Mother previously had told Le Fon that she and G.M. engaged in domestic violence when they were using illegal drugs. Child welfare services tried very hard to get mother and G.M. to voluntarily accept additional services in order to avoid going to court and having the bypass provisions applied. The family, however, was not working with child welfare services.

As of August 28, mother had tested negative for methamphetamine 25 times but tested positive for alcohol twice. Before the dependency petitions were filed, social workers contacted mother in January and February and she refused drug testing about 10 times. La Fon explained that when they received the first referral, it had been soon after the last case had ended. Social workers made visits to try to get the family connected with CFT (Child Focus Team meeting) on a voluntary basis so an action would not have to be initiated in court and bypass could be avoided. Mother had previously received drug court services and domestic violence services voluntarily. The goal was to get mother engaged in whatever way they could. During July and August, mother was not regularly attending substance abuse classes provided by the behavioral health agency.

Mother’s visits with the children went well and La Fon acknowledged that mother loves and is bonded with her children. Matthew did not disclose any domestic violence. Isabella, however, disclosed there had been domestic violence in the home. La Fon said that mother was inaccurate in her accounts of whether she used alcohol and denied using it even after positive test results. La Fon corroborated information in social workers’ reports that mother faked the services she received in the prior dependency case. La Fon explained this showed mother lacked insight into her use of illegal drugs and failed to take responsibility for her actions.

La Fon acknowledged mother’s visits with the children went well and that shortly after this dependency action was filed, mother graduated from high school. Mother also encouraged her children to participate in school, although both children had a number of absences at the end of the school year as this case began. Mother helped the children with homework, referred herself to twice weekly substance abuse groups at behavioral health, referred herself to AA and NA meetings, and found herself a new sponsor. Mother also never missed a court date or a visit with the children.

Mother submitted a letter from M.J. stating that mother takes full responsibility for her actions. La Fon disagreed with this statement because mother has difficulty being honest and accepting help with services. Also, mother refused to cooperate with child welfare services until after the children had been detained. Only after the jurisdiction hearing did mother more fully engage. La Fon was further concerned that mother does not have the ability to meaningfully utilize reunification services because she has received them for so long.

Mother testified that she was now working at her first job. Mother said her focus now is different than during her last dependency case because she is working on herself and on doing the right thing. Mother was willing to do whatever it takes to protect the children from G.M. or any other man who might show up and start problems. If G.M. did show up to her home, she would not let him inside. Mother said that G.M. had never hurt her. Mother admitted she relapsed but explained her attitude toward drug use had changed. Mother said she realized it was a more serious thing. When asked how she would make sure she did not relapse again, mother replied she would reach out to women who support her including her sponsor. She had not done this in the past. Mother was untruthful when she said she had a sponsor during the prior dependency case.

Mother said that except for testing positive for alcohol consumption a couple of times, she was testing clean for methamphetamine and had stopped using it. Mother explained she drank because her kids and G.M. were gone, and she had nothing left. She stopped drinking because she realized she could not work on herself and her recovery if she kept drinking. Mother attends three or four 12-step programs a week. Her favorite meeting is the women’s meeting. Mother said she did not take drug tests for child welfare services prior to the filing of this dependency case because she did not believe she had to do so. Now, however, mother takes drug tests whenever she is asked. Mother stated she was not faking her current program.

On cross-examination, mother conceded that G.M. had been criminally charged with domestic violence after hitting her with a rake. Mother believed domestic violence was physical violence. Mother denied Isabella’s observation that G.M. hit mother in the arm after the close of the previous dependency case. Mother admitted that in the last dependency case she received a full range of services except for domestic violence services. During her individual counseling in the prior case, mother did not discuss domestic violence. Mother said she had continued going to 12-step meetings after the previous dependency case was dismissed.

The minors did not testify. The minors’ counsel, Mr. Albright, met and spoke with them for about 30 minutes a month and a half before the hearing and again four days before the hearing. Albright said that Isabella is shy and mostly listened. Albright explained that both children love mother and know she loves them. Isabella does not say much when her brother is there; he takes the lead. Isabella recognized she has more stability in her foster care placement and gets to do more activities. Albright noted Isabella loves school and goes to Girl Scouts. She sees these activities as being impacted by her living circumstances. Albright emphasized Isabella loves her mother but was “more amenable to a different living situation going forward.”

Albright told Matthew he would convey the children’s opinions even though counsel disagreed with them. Albright described both children as very smart and exceptional with the chance to be accomplished adults. Albright was concerned that both children were prepubescent, would be exposed to adults and other children who use drugs, drink alcohol, and engage in sexual activity, and would be at risk if unsupervised. Albright felt strongly that if the children were returned to mother’s care, things would turn out badly for them. Mother’s counsel did not object to Albright’s statements.

Albright clarified that he was being delicate in stating Isabella’s desire, which was to stay with her foster family. Mother’s counsel asked the court to disregard this statement because Isabella did not testify. The court found the statement admissible because Isabella was only 10 years old and was represented by Albright.

The juvenile court took the matter under submission and on October 12, took judicial notice of the prior family maintenance and dependency cases. The court found child welfare services had shown mother resisted court-ordered treatment. The court recounted its detailed discussions with mother in the previous dependency case about what would happen if she resumed using drugs and allowed G.M. back into her life. At that time, the court thought mother had done a terrific job reunifying with her children on her own. The court explained that the case was now about whether the court can trust mother with her children and whether she can keep them safe.

The court observed that a few months after the previous case was terminated, G.M. moved back into the home and there was domestic violence, which both mother and G.M. admitted occurred when they were using illegal drugs. Mother resumed using drugs. Mother was combative with social workers and refused to voluntarily drug test; the court inferred that mother was aware her test would be positive for drug use. The court found by clear and convincing evidence that both mother and G.M. were using drugs and that the bypass provision of section 361.5, subdivision (b)(13) applied to both of them. The court noted the burden of proof was on mother to show that reunification would be in the best interests of the children. The court noted the relevant factors in making this determination included the likelihood of successful reunification, mother’s current efforts and fitness, her history, the gravity of the problem leading to the dependency, the strength of the bond between the children and the parent, and the children’s need for stability.

The court found the children need stability but that their lives had been in upheaval since 2008, having been removed from the home twice by child welfare services. The court noted and was concerned that Matthew had become parentified. The court found a very strong bond between the children and mother. The gravity of the problem leading to the dependency, however, was substance abuse coupled with domestic violence. The court found this to be extremely grave with serious psychological consequences for development of a child’s brain. Both mother and G.M. had a longstanding history of persistent substance abuse that was almost intractable. The court acknowledged that mother said she would do whatever it took to reunify with her children, but between February and June when the children were removed, mother did not accept and was resistant to the efforts of child welfare services to get help on a voluntary basis. The court found there was not a substantial likelihood of mother successfully reunifying with the children and set the case for a permanency planning hearing.

JUVENILE COURT’S EXERCISE OF DISCRETION

Mother contends the juvenile court abused its discretion in finding the bypass provision of subdivision (b)(13) of section 361.5 applicable to her because she argues she was not resistant to treatment, describing her condition as a mere relapse. Mother further contends the court erred in not finding reunification in the children’s best interests. (§ 361.5, subd. (c)(2).)[5] Finally, mother argues that the juvenile court improperly considered the unsworn testimony of the minor’s counsel concerning their wishes. We reject these contentions.

Relapse and Resistance to Treatment

Though provision of reunification services is the norm in juvenile dependency cases, the Legislature has determined that, in some circumstances, it would be a “fruitless” effort. (In re Levi U. (2000) 78 Cal.App.4th 191, 200 (Levi U.).) Section 361.5, subdivision (b)(13)[6] 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. An attempt to facilitate reunification in such a case may not only be fruitless, but does not serve and protect the child’s best interest. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382 (Brooke C.).)

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 deny her prior extensive, abusive, and chronic use of methamphetamine. She admits she had a relapse in June of this year. Mother, however, characterizes what happened as a simple relapse rather than resistance to treatment. Among the cases mother cites and which we find instructive is Laura B. v. Superior Court (1998) 68 Cal.App.4th 776 (Laura B.).[7]

In Laura B., a mother with an 18-year history of drug use gave birth to a child who tested positive for cocaine. (Laura B., supra, 68 Cal.App.4th at p. 778.) The mother had participated in numerous rehabilitation programs. She attended Alcoholics/Narcotics Anonymous meetings until approximately a year before the child was born, but quit attending because she began using drugs again. She used cocaine at least twice a week during the first two months of her pregnancy. After she learned she was pregnant, she reduced her cocaine use to every other week. (Ibid.) The juvenile court determined that her drug use constituted resistance to treatment and denied her reunification services. (Id. at pp. 778-779.)

The Laura B. court distinguished the mother’s drug use from a relapse, finding that a parent who regularly attends a program could experience a brief relapse but immediately resume treatment. Such behavior would not necessarily show resistance to treatment. The mother in Laura B., however, did not suffer a mere setback or fall off the wagon once or twice; she stopped attending Narcotics Anonymous meetings. She also returned to habitual, semiweekly and then biweekly substance abuse. The mother demonstrated a clear determination to maintain her drug habit. The juvenile court reasonably interpreted such behavior as resistance to treatment. (Laura B., supra, 68 Cal.App.4th at p. 780.)

The Laura B. court further found that the department or social services agency is required to show that a parent has previously undergone or enrolled in substance abuse rehabilitation and during the three years prior to the petition being filed, the parent evidenced behavior that demonstrated resistance to that rehabilitation. Proof of such conduct may come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety even though there is no proof the parent attended any formal rehabilitation program during the three years prior to the child’s birth. (Laura B., supra, 68 Cal.App.4th at p. 780.)

Here, mother had recently finished a series of programs, including drug rehabilitation, in the prior dependency case. When child welfare services was referred in February of this year to investigate reports of domestic violence, mother was resistant to additional voluntary services which included drug testing. Social workers attempted unsuccessfully for months to get mother reconnected with services without filing a new dependency action. During this interval, domestic violence continued between mother and G.M. Both admitted that domestic violence went hand and hand with drug abuse, with methamphetamine as their illegal drug of choice. The juvenile court drew the reasonable inference that mother’s resistance to taking further drug tests was due to her continuing use of illegal drugs. When mother finally submitted to a drug test on June 7 under a court order, she tested positive for methamphetamine.

Continuing drug abuse despite participation in drug treatment programs constitutes resistance. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1008-1011.) Completion of drug treatment programming but failing to maintain any long-term sobriety is also resistance to treatment. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 (Randi R.).) Mother’s situation is little different from the parents in numerous published cases who were denied reunification services due to long histories of drug use and addiction.[8] During the dependency process, mother tested positive for consuming alcohol.

Best Interests of the Children

Turning to the exception to implementation of a bypass provision, the juvenile court has broad discretion when determining whether further reunification services would be in the child’s best interest under section 361.5, subdivision (c). (In re William B. (2008) 163 Cal.App.4th 1220, 1229 (William B.).) In In re Ethan N. (2004) 122 Cal.App.4th 55 (Ethan N.), our court reviewed several factors relevant to the determination of a child’s best interest vis-à-vis reunification. These include the parent’s current efforts and fitness as well as the parent’s history, the gravity of the problem requiring juvenile court intervention, the strength of the parent/child bond, and the child’s need for stability and continuity. (Id. at pp. 66-67.) “A best interest finding requires a likelihood reunification services will succeed; in other words, ‘some “reasonable basis to conclude” that reunification is possible....’ ” (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.)

We will reverse the juvenile court’s determination only if it has abused its discretion. (William B., supra, 163 Cal.App.4th at p. 1229; see also In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.) Because mother had the burden of proof, we must affirm unless there was “indisputable evidence [in her favor]—evidence no reasonable trier of fact could have rejected ....” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

Unlike the juvenile courts in Ethan N. and William B., the juvenile court here carefully analyzed each of the factors relevant to whether it was in the children’s best interests for mother to receive reunification services. The court gave weight to the undeniable love and bond between mother and her children, but found that the other factors outweighed this consideration. In doing so, the court did not abuse its discretion and considered fairly whether to grant mother reunification services.

Statements of Minors’ Counsel

Mother argues that Mr. Albright’s comments about the children’s wishes were improperly admitted by the court as unsworn testimony because neither child testified. Mother further argues that Isabella’s statements were particularly unreliable because they were inconsistent. We disagree.

None of Albright’s initial statements about the children’s wishes were objected to by mother’s counsel. Counsel did object to Albright’s concluding statement to the court that Isabella wished to remain with her foster parents. There was nothing inconsistent concerning how Albright presented Isabella’s wishes other than the fact that he initially understated her wishes and clarified them later with more detail. It appeared that Matthew wished to reunify with mother.

The key thing Albright conveyed to the court, however, was that both children loved and were bonded with mother. This was important information affecting the court’s analysis of the factors it had to weigh in determining whether to grant mother reunification services notwithstanding the bypass statute. The loving parent-child bond was favorable to mother and the court noted there was no question that mother was bonded with and loved her children and this love was reciprocated. To the extent that Albright’s representation of Isabella’s desire to stay with her foster family was unsworn testimony, it did not affect how the court made its final ruling. Any error in admitting this statement, therefore, was not prejudicial.

PROPOSED DISPOSITION

The orders of the juvenile court are affirmed and mother’s petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.