Billie S. v. Superior Court

Filed 5/15/06  Billie S. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            ORIGINAL PROCEEDINGS; petition for writ of mandate.  Deborah Daniel, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Petition denied.

            Tim L. Guhin for Petitioner.

            No appearance for Respondent.

            Ronald D. Reitz, County Counsel, and Julie J. Surber, Deputy County Counsel, for Real Party in Interest.

            Petitioner Billie S. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 38.1(a), regarding her son, A.S. (the child).  She argues that the juvenile court improperly relied upon Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (b)(11)^[1] in denying her reunification services, since it failed to make the required finding that she had not made a reasonable effort to treat the problems that led to the prior removal of the child's half sibling.  We deny mother's writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

            On August 30, 2005, a section 300 petition was filed on behalf of the child and his brother, A.R.^[2]  The child was nine months old at the time.  The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect), subdivision (g) (no provision for support), and subdivision (j) (abuse of sibling).  Specifically, the petition alleged that there was a substantial risk that the child would suffer serious physical harm, because on August 26, 2005, mother left the child with an acquaintance, Mike S., and did not return by the next day.  The petition also alleged that mother and the child's father (father)^[3] used illegal drugs, that mother was transient, and that she had previously failed to reunify with another child and had her parental rights terminated. 

            A detention hearing was held on August 31, 2005.  The court placed the child in the temporary custody of the Department of Children's Services (DCS) and detained him in foster care.  The court ordered mother to drug test within 24 hours.  The court also ordered DCS to provide services to reunify the child with mother, pending the development of a case plan.  Furthermore, the court ordered supervised visitation to be once per week. 

            Jurisdiction Report and Hearing

            The social worker prepared a jurisdiction report recommending that the child be declared a dependent of the court and that mother not be provided with reunification services.  The social worker reported that mother had four children--two of them were the subject of the current section 300 petition, one was removed by DCS in March 1993 and adopted by his paternal grandmother, and one lived with her father. 

            Mother drug tested on September 1, 2005, as ordered by the court, and tested positive for amphetamines and methamphetamine.  Mother had a history of heavy drug use; she began using illegal drugs at approximately age 14, when she herself was a dependent of the court. 

            The social worker noted that although mother expressed interest in visiting the child, she never called to arrange the visitation.  The social worker further noted that mother was given numerous drug and counseling program referrals. 

            An initial jurisdiction/disposition hearing was held on September 21, 2005.  Mother was ordered to drug test again, and the matter was continued.  Mother tested positive for amphetamines again. 

            The social worker filed an addendum report on November 30, 2005.  The social worker stated that mother denied having a history of drug use.  Mother explained that her two positive drug tests were due to the stress of having her children removed.  The social worker also reported that mother had had no contact with her from September 21, 2005, to November 28, 2005; she had not made any effort to contact DCS, and she had not visited the child once.  The social worker felt that mother did not recognize the impact that her drug usage had on her life and her ability to parent the child.  The social worker stated that mother was abused by her mother, stepfather, and foster parents, and opined that mother dealt with her trauma by using drugs.  However, mother minimized her drug usage and was unwilling to seek treatment. 

            On December 2, 2005, the social worker filed a Request for Judicial Notice, in support of the recommendation that no reunification services be rendered to mother pursuant to section 361.5, subdivision (b)(10) (family reunification services previously terminated) and subdivision (b)(11) (parental rights of sibling previously terminated).  The social worker asked the court to take judicial notice of the findings and orders pertaining to mother's son, C., who had previously been removed from her custody.  The documents showed that reunification services were provided to mother but were terminated, and that mother's parental rights were also terminated. 

            A contested jurisdiction hearing was held on December 7, 2005.  The court granted the Request for Judicial Notice.  Mother testified at the hearing that she left the child with Mike S. at 1:30 a.m., and she did not return until 2:30 p.m. because her car broke down.  She said she had no way of contacting him.  Mother also denied having a problem with illegal drug use and denied ever having used illegal drugs at all.  She said that she perhaps tested positive for amphetamines because she was taking antihistamines for her cold.  Mother further testified that she was not transient, and that she lived in a house on Chaparral.  When questioned about her son C., mother denied that she failed to reunify with him.  Instead, she said that she was 15 years old at that time, and â€