Liza A. v. Superior Court

Filed 7/16/07 Liza A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane A. Cardoza, Judge.

Liza A., 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 8.450-8.452) to vacate the dispositional 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 R. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner is the mother of five children, including R. She is also a polydrug user (marijuana and cocaine) with a significant history of child neglect and domestic violence. In April 2003, the juvenile court assumed dependency jurisdiction over petitioners two oldest children, then 21 months and 7 months old, after finding the 7-month-olds father seriously injured the child and petitioner reasonably should have known the children were at risk of harm but failed to act.^[2]The juvenile court denied petitioner reunification services ( 361.5, subds. (5) & (6)) and terminated her parental rights as to both children in March 2004.

In April 2004 and August 2005, petitioners third and fourth children, respectively, were removed from her custody after they tested positive for cocaine at birth. After adjudging them dependents, the court denied petitioner reunification services and, by March 2006, had terminated her parental rights as to them also. Ultimately, all four children were placed for adoption.

The instant dependency proceedings were initiated in October 2006 after petitioner and newborn R. tested positive for marijuana. R. was taken into protective custody at the hospital and placed with her four half-siblings. Petitioner identified R.L.,^[3] then an inmate in county jail, as R.s alleged father.

The juvenile court detained R. and ordered the social services department (department) to refer petitioner for a parenting course, substance abuse, domestic violence and mental health evaluations and random drug testing. At the jurisdictional hearing, the court sustained allegations petitioners drug use resulted in the termination of her parental rights as to her other four children and that her ongoing drug use placed R. at risk of similar harm. ( 300, subds. (b) & (j).) The court set a dispositional hearing for January 2007.

Meanwhile, petitioner lost no time in taking advantage of the services offered. Within five days of R.s removal, she completed a substance abuse evaluation. Initially, the evaluator recommended residential drug treatment based on the extensiveness of her drug use but agreed to let her participate in intensive outpatient drug treatment with one condition. If petitioner tested positive for drugs, she would be required to participate in residential drug treatment. By the end of October, petitioner was participating in outpatient treatment and in November, she began weekly individual therapy.

In its dispositional report, the department recommended the court deny petitioner reunification services under section 361.5, subdivision (b)(11) because she continued to use drugs after her parental rights as to her other children were terminated. The department also recommended the court deny R.L. reunification services because, as R.s alleged father, he was not entitled to them under section 361.5, subdivision (a). Petitioner challenged the departments recommendation and the dispositional hearing originally set for January 2007 was contested, continued several times and conducted in April 2007.

By the time of the hearing, petitioner had successfully completed outpatient drug treatment and had a sponsor. She was attending weekly Narcotics Anonymous and Alcoholics Anonymous meetings and was consistently testing negative on random drug screens with one exception. She was called to drug test on a Sunday in mid-November and arrived by bus after the testing facility closed at noon. Her failure to drug test was considered a presumptive positive result.

Further, not only had petitioner taken full advantage of her chance at recovery but she also demonstrated her desire to take control of her life, become a better parent and build a future for herself. She moved in with her father who provided a needed support system. She participated in weekly therapy to address anxiety and intrusive memories of childhood sexual abuse. She enrolled in domestic violence classes, which she expected to complete within the month, and severed her relationship with R.L. She completed her parenting class and regularly visited R. She also enrolled in college with the hope of becoming an alcohol and substance abuse counselor.

At the contested hearing, petitioners drug counselor testified petitioner had a very good chance of maintaining her sobriety based on her express desire to remain clean and sober. Petitioners therapist testified petitioner consistently participated in therapy since November. She rated petitioner 10 on a 10-point scale for participation and stated petitioner was straight-forward, open and highly motivated to change.

Petitioners case worker testified that visitation between petitioner and R. was always appropriate and R. responded well to petitioner, indicating that a bond existed between them. However, despite an apparent bond and petitioners successful completion of services, the case manager continued to recommend denial of services based on petitioners child welfare history.

Petitioner testified she planned to continue in her recovery and in therapy. She also stated she fed, diapered and played with R. during visitation and R. smiled and laughed when she saw her.

Following testimony, county counsel acknowledged petitioners progress but expressed concern, given her lengthy drug use and choice to participate in intensive outpatient drug treatment rather than the recommended residential treatment. Minors counsel argued petitioner had not demonstrated prolonged sobriety and reminded the court petitioners parental rights to R.s siblings had been severed. Counsel for petitioner argued reunification would serve R.s best interest because petitioner demonstrated a lifestyle change and established a bond with R.

At the conclusion of the hearing, the court denied petitioner and R.L. reunification services as recommended by the department. With respect to petitioner, the court concluded her prognosis for reunification was poor, citing her extensive use of multiple drugs, her loss of parental rights, her choice not to enter residential drug treatment, her presumptive positive drug test and her history of domestic violence. The court also set a section 366.26 hearing to consider a permanent plan for R. This petition ensued.

DISCUSSION

Petitioner argues the court erred in denying her reunification services under section 361.5, subdivision (b)(11) when, by all accounts, she either completed or was participating in all services offered and demonstrated a commitment to changing her lifestyle. We disagree that the court erred. Section 361.5, subdivision (b)(11) (the statute) empowers the court to deny services when it finds by clear and convincing evidence the parental rights of a parent over any sibling or half-sibling of the child were permanently severed and the parent did not subsequently make a reasonable effort to treat the problems that led to removal of the sibling or half-sibling.

Petitioners argument, distilled to its essence, is that her efforts subsequent to R.s removal weighed in favor of the court finding she made reasonable efforts to address her drug abuse and domestic violence and therefore warranted granting her an opportunity to reunify. Such an argument ignores, however, the language of the statute and the facts presented here. The statute requires the parent, after losing his or her parental rights over the sibling or half-sibling, to make reasonable efforts to treat the problem that led to the sibling or half-siblings removal.

In this case, petitioners third and fourth children were removed from her custody because of her cocaine use and her parental rights as to them were terminated in March 2006. Nevertheless, she continued to use drugs as evidenced by R.s positive toxicology for marijuana the following October. Consequently, we conclude the court did not err in finding under the statute petitioner did not make reasonable efforts to address her drug problem subsequent to the loss of her parental rights.

That said, we recognize, as did the juvenile court, petitioner made considerable progress in addressing her drug problem after the department removed R. from her custody. However, petitioners delay brought her squarely within the provisions of the statute and supported the courts denial of services.

Even so, a juvenile court may order reunification services for a parent described under the statute if the parent can persuade the court services would serve the childs best interest. ( 361.5, subd. (c).) At trial, petitioner attempted unsuccessfully to persuade the court through evidence that she completed her services and developed a loving bond with R. On appeal, she stops short of arguing the court erred in not finding services would be in R.s best interest. Consequently, we will not address the issue and, based on the foregoing, will deny the petition.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

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

^[2] These children were the subjects of a consolidated appeal (F045551 & F045555) over which this court, on its own motion, takes judicial notice. (Evid. Code,  452.)

^[3] R.L. also filed a writ petition from these dependency proceedings in case No. F052749.