Tina G. v. Superior Court

Filed 9/28/07 Tina G. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Hideo Chino, Commissioner. Petition denied.

Tina G. seeks review of juvenile court orders denying family reunification services under Welfare and Institutions Code section 361.5, subdivision (b)^[1]and setting a hearing under section 366.26 to select and implement a permanency plan for her son, Antonio A.

FACTUAL AND PROCEDURAL BACKGROUND

Antonio was born in September 2006 to Tina G. and D.A.^[2] On March 23, 2007, Tina asked an acquaintance to care for Antonio for a few hours. When she did not return the next day, the acquaintance telephoned the San Diego Police Department. The acquaintance stated he did not know how to care for a baby or how to find Tina. Antonio was placed in protective custody. The San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b) alleging Antonio had suffered or was at substantial risk of suffering serious physical harm or illness because Tina had left him without adequate care and her whereabouts were unknown. Tina had a history of drug use and had lost custody of her other children.

Tina's parental rights to three of her children were terminated through dependency proceedings in 1993, 1995 and 1996.^[3] She did not reunify with a fourth child, M., who was placed in the custody of the child's father in 2005 or 2006. Tina was diagnosed with schizophrenia and bipolar disorder.

Tina had an extensive history of substance abuse and other criminal activity. She was convicted in 1994 and 1995 of felony drug offenses, including transportation and sale of narcotics, and in 1995, 1996, 2003 and 2004 on misdemeanor drug and drug-related offenses. Over a period of 15 years she was also convicted on charges of solicitation, prostitution, grand theft, vandalism, domestic violence, disorderly conduct and other misdemeanor offenses. In 1997, 1999 and 2001 Tina was imprisoned on drug convictions and drug-related parole violations. When she was convicted on drug charges in 2003, the court ordered her to participate in drug treatment as a condition of probation. Tina was subsequently arrested in 2004 and 2005 on drug and other charges. In 2006 Tina completed drug detoxification and treatment programs, a "Driving Under the Influence" program and parenting education classes, and received regular psychiatric care.

In February 2007 Tina was arrested on charges of domestic violence. Police reports indicate she had been drinking alcohol. In March Tina admitted using "alcohol and crack" over the three-day period she left Antonio. She agreed to a drug test and tested positive for cocaine and cannabinoids. In April during a visit with Antonio, Tina appeared to be under the influence of alcohol. The court referred Tina to the Substance Abuse Recovery Management Systems program (SARMS) for an evaluation. There is no indication in the record she complied with the referral order.

At the jurisdiction hearing on June 12, 2007, the court made a true finding on the section 300 petition. The Agency recommended the court place Antonio in foster care and provide six months of family reunification services to Tina. Tina submitted on the Agency's report. Minor's counsel contested the Agency's recommendations and requested the court deny reunification services to Tina and set a hearing to select and implement a permanency plan for Antonio under section 366.26.

The court removed Antonio from parental custody and placed him in foster care. The court found that Tina did not make reasonable efforts to resolve the issues that led to the removal of her children from her care and denied reunification services under section 361.5, subdivision (b)(7), (10), (11) and (13). The court set a section 366.26 hearing.

Tina petitions for review of the court's orders. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause and the Agency responded. The parties waived oral argument.

DISCUSSION

A

Tina contends she made reasonable efforts to overcome the problems that led to the removal of her children from her care. She argues the court abused its discretion when it did not order reunification services, and therefore erred when it set a section 366.26 hearing.

The Agency argues substantial evidence supports the court's findings under section 361.5, subdivision (b)(10), (11) and (13). With respect to section 361.5, subdivision (b)(7), the Agency states the appellate record does not contain any information about the dependency of Tina's daughter, M., and submits on this issue.

B

We affirm an order denying reunification services if the order is supported by substantial evidence. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) "In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]" (Ibid.; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) The party challenging the ruling of the trial court has the burden to show the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

C

Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the juvenile court must offer or provide services designed to reunify the family within the statutory time period. ( 361.5; 42 U.S.C.  629a (a)(7); see In re Alanna A., supra, 135 Cal.App.4th at pp. 563‑564.) There is no general exception to the provision of reunification services; the court must find by clear and convincing evidence that one or more of the enumerations described in section 361.5, subdivision (b) apply to a parent before it may deny reunification services to that parent. ( 361.5, subd. (b)(1)-(15); see also 42 U.S.C.  671 (a)(15)(D).)

The Legislature mandates that the juvenile court shall not order reunification services to a parent described by section 361.5, subdivision (b)(10) and (11), unless the court finds by clear and convincing evidence that reunification is in the best interest of the child. ( 361.5, subd. (b).) Thus, in the absence of a finding that reunification is in the child's best interest, the juvenile court must deny services to a parent when the court has ordered the termination of reunification services^[4]or has terminated the parental rights of the parent^[5]to any siblings or half-siblings of the child, and the "parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child . . . ." ( 361.5, subd. (b)(10), (11).)

Tina argues the court erred when it found that she did not make a reasonable effort to treat the problems that led to the removal of her children from her care. She contends her participation and completion of drug treatment and parenting education programs in 2006 constitute a reasonable effort to treat her problems. Tina acknowledges she relapsed in March 2007, but maintains she was not required to demonstrate perfect compliance with treatment.

Tina's contentions are without merit. The problems that led to the removal of Tina's children from her care include substance abuse, mental illness, criminal acts and physical abuse of a child. The record shows Tina received court-ordered drug treatment services through the criminal and juvenile courts over a period of more than 14 years, yet was unable to maintain her sobriety for any meaningful length of time. In addition, she did not consistently participate in mental health treatment or demonstrate she understood basic principles of child care.

Contrary to her claims, Tina's relapse in March 2007 was not an isolated incident, but part of her long-standing pattern of habitual drug use. In view of Tina's lengthy history of protracted substance abuse, we cannot conclude the court erred when it acknowledged Tina participated in drug treatment services in 2006, but found that she did not make a reasonable effort to treat the problems that led to the removal of her children from her care. From 1993 to 2006, despite losing her parental rights to three children, Tina did not make a reasonable effort to address her problems. Her actions in 2007 are also indicative of her indifference to treatment.

Tina was arrested in February 2007 for an incident of domestic violence. Police reports indicate she had been drinking alcohol. In March she "binged" on crack cocaine, marijuana and alcohol over a three-day period, spending approximately $100 on drugs while leaving six-month-old Antonio without appropriate care. The record supports the reasonable inference that Tina did not comply with the court's referral to SARMS. She did not cooperate with the social worker, who advised her to immediately participate in treatment and other services offered by the Agency. Thus, the record clearly shows that Tina did not make reasonable efforts to maintain her sobriety or seek substance abuse treatment.

In addition, we infer that Tina did not make a reasonable effort to maintain mental health treatment, and that her completion of parenting education classes was of no import. While at Agency offices in March 2007, Tina pulled her hair, rocked back and forth and laughed and talked to herself. Her behaviors prompted the Agency to seek police assistance. In April the foster mother reported Tina smelled of alcohol and handled seven-month-old Antonio roughly. She flicked Antonio's ears, lay on top of him and hit his knees to make him stand up. After the visit, the foster mother reported Antonio had bruises on his back and buttocks.

Although Tina participated in services in 2006, in view of her protracted history of substance abuse, mental illness and child abuse, the record shows Tina did not attempt to maintain her sobriety and mental health and did not take advantage of her opportunities to participate in SARMS and other services offered by the social worker. Tina's indifference to her problems from 1993 to 2005, and again in 2007, fully supports the trial court's finding, by clear and convincing evidence, that Tina did not make a reasonable effort to treat the problems that led to the removal of her children from her care. ( 361.5, subd. (b)(10), (11).)

D

Substantial evidence also supports the denial of reunification services under the two prongs of section 361.5, subdivision (b)(13). This enumeration of the subdivision directs the court to deny reunification services to a parent when that parent "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." (Ibid.) A trial court may find that a parent has resisted prior court-ordered treatment when the parent refuses to participate in a treatment program or when the parent attends a program but continues to abuse drugs or alcohol. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.)

Tina was ordered by the juvenile court to participate in drug treatment programs in June 1993. In 1994 and 1995 she was convicted on felony and misdemeanor drug possession charges and felony charges of transportation and sale of narcotics. In April 1996 she gave birth to a child who tested positive for amphetamine and/or methamphetamine. The juvenile court again ordered her to participate in a drug rehabilitation program.

In November 1996 Tina was arrested and convicted for possession of drug paraphernalia, and in 1997 was sentenced to two years in prison on probation violations and a conviction of grand theft from a person. In 1999 she was convicted of misdemeanor drug use and sent back to prison on parole violations. In 2000 Tina violated parole by driving under the influence. In March and October 2003, as a result of new drug offenses, the court ordered her to participate in drug treatment as a condition of probation. Tina was convicted in July and September 2004 on felony and misdemeanor drug and drug-related charges.

In July 2005 Tina gave birth to M. who was subsequently removed from her custody. She was arrested in August 2005 for possession of a narcotic controlled substance and drug paraphernalia. We infer the removal of M. from Tina's custody was drug-related. Although Tina completed an outpatient recovery program in October 2006 and attended AA and NA meetings from October 2006 to January 2007, by February she was drinking alcohol. In March Tina "went on a drug binge" and used crack cocaine, marijuana and alcohol.

There is more than substantial evidence to support the finding that Tina's use of drugs and alcohol is "extensive, abusive, and chronic." ( 361.5, subd. (b)(13).) Tina failed to comply with drug treatment ordered by the juvenile court on two or more occasions and resisted drug treatment during the three years immediately preceding the filing of the petition that led to Antonio's dependency. (Ibid.) In view of Tina's history of substance abuse and resistance to treatment, and the numerous treatment opportunities that have been offered or provided to her by the courts, the evidence clearly shows it would be fruitless to provide reunification services to Tina. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96; see In re Alanna A., supra, 135 Cal.App.4th at p. 566.)

E

Section 361.5, subdivision (b)(7) provides the court shall not order reunification services for a parent when that parent is not receiving reunification services for the dependant child's sibling or half-sibling pursuant to enumerations (3), (5) or (6) of section 361.5, subdivision (b), unless the court finds that reunification is in the child's best interest. ( 361.5, subd. (b).) Simply stated, these enumerations apply to dependent children who have been severely or repeatedly physically or sexually abused or who have siblings who were severely or repeatedly physically or sexually abused. ( 361.5, subd. (b)(3), (5) and (6).)

As county counsel correctly states, the appellate record does not contain any indication the court took judicial notice of the dependency case record of Antonio's sibling, M. The Agency's reports that were admitted into evidence contain minimal information about M.'s dependency. Although the trial court may have been fully cognizant of the circumstances of M.'s dependency case, the record before us does not contain any evidence to support findings that M. was removed from Tina's custody because of severe or repeated physical or sexual abuse and Tina was not receiving reunification services for M. (See Curtis F. v. Superior Court, supra, 80 Cal.App.4th at p. 474; Amber K. v. Superior Court, supra, 146 Cal.App.4th at p. 560.) However, in view of our conclusion that substantial evidence supports the trial court's denial of reunification services under section 361.5, subdivision (b)(10), (11) and (13), the error, if any, is harmless.

E

Substantial evidence supports the trial court's denial of reunification services under section 361.5, subdivision (b)(10), (11) and (13). The court did not err when it denied reunification services to Tina and set a hearing under section 366.26.

DISPOSITION

The petition is denied.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.

^[2] D.A. is not a party to this writ proceeding.

^[3] Tina had relinquished her parental rights to twins born in 1990.

^[4] Section 361.5, subdivision (b)(10).

^[5] Section 361.5, subdivision (b)(11).