Filed 8/7/17 Scott a. v. Superior Court CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


SCOTT A.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G054996

(Super. Ct. No. 17DP0007)

O P I N I O N

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Petition denied.
Law Office of Patricia Smeets Rossmeisl; Donna P. Chirco for Petitioner Scott A.
No appearance for Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputies County Counsel, for Real Party in Interest Orange County Social Services Agency.
No appearance for the Minor.
* * *
F.A. was born in February 2015. In August, his parents Scott A. and Amber C., were married. But by March of 2016, F.A.’s parents had separated and F.A. was living with his mother. In early 2017, while at a fast food restaurant, Amber began “acting very strange” – including exhibiting “erratic and paranoid-like behavior” and saying someone was following her and trying to kill her. The incident led to social workers filing a dependency petition on behalf of F.A. two days later. Scott was in jail at the time,
Neither Amber nor Scott contested the detention or jurisdictional stages of the new dependency case. The dispositional hearing, held in May 2017, was another matter. Social workers recommended that no reunification services be offered to either Amber or Scott. The reason as to Scott was an alcohol abuse problem that social workers thought brought him within the reunification services bypass provisions of Welfare and Institutions Code section 361.5, subdivision (b)(13). That statute focuses on a parent’s resistance to prior court-ordered drug or alcohol treatment programs. The trial court found that Scott did, indeed, fall within the purview of the subdivision (b)(13) bypass provisions, and set a section 366.26 permanency planning hearing for F.A. for September 2017. Scott objected, and in late June Scott filed this proceeding seeking a writ of mandate to overturn the judge’s order.
Scott presents two arguments: He never was the subject of a prior court-ordered treatment for his alcohol problem and even if he was, he certainly didn’t “resist” that treatment in the three years prior to the January 2017 filing of the dependency petition.
The argument hinges on these facts: In January 2006, Scott pled guilty to driving with blood alcohol over .08 percent and in late July 2006 Scott was given three years’ informal probation which entailed a number of terms and conditions, including “Attend and complete 9 month Level 2 First Offender Alcohol Program.” Scott specifically accepted that term, as well as the others. However, the case summary of the .08 conviction says that on September 16, 2008 (italics added), the “9 months First Offender Alcohol Program” was vacated. Scott’s petition draws the conclusion that he never was really ordered into a “court-ordered” rehabilitation program based on the vacating of the First Offender Program order.
The argument fails because there’s more to the story. As the Social Services Agency notes, by August of 2007, Scott had been arraigned on a probation violation. On August 30 of that year, the court found Scott in violation of his probation, but nevertheless ordered “All terms and conditions of probation” to “remain the same.” The August 30, 2007 order thus meant the continued need to attend and complete the Level 2 First Offender program.
However, in mid-September 2007, about two weeks after the court had ordered compliance with the terms and conditions of the original July 2006 probation order, a notice of termination was filed regarding Scott’s attendance in the “National Traffic Safety Institute Level 2 First Offender Alcohol Program.” Two weeks later, in late September 2007, Scott’s probation was formally revoked based on that notice of termination.
In November 2007, a probation violation warrant was issued for Scott, with bail set at $10,000. The hearing on that violation took place in June 2008. Remarkably though, at the June hearing Scott was found not to be “in violation of probation” and was thus “reinstated into his 9 month Level 2 First Offender Alcohol Program at National Safety Institute in Santa Ana.”
But on August 5, 2008, Scott was back in court on another probation violation, having been arrested on August 2 for vandalism and vehicle theft. This time he was found in violation of his probation. Accordingly, the court terminated his probation and vacated the order he attend the “First Offender Alcohol Program” imposed back in late July 2006.
This history hardly paints a picture of a court ordering Scott into an alcohol treatment program, then changing its mind about the idea some two years later. The evidence, rather, shows Scott was (1) ordered into an alcohol treatment program for the period July 2006 through August 2007, then was (2) kicked out of the program (most likely for nonattendance) from September 2007 through June 2008, but then (3) was lucky enough to have his probation, with the concomitant order to attend and complete an alcohol treatment program, reinstated in June of 2008, and yet (4) still finally managed to fumble away the chance for probation by committing more serious crimes.
We are required, in this proceeding, to “draw all reasonable inferences from the evidence in favor of the trial court’s order.” (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1105.) The reasonable inferences from these facts are that that Scott was ordered into a court-ordered alcohol treatment program and never completed it. That supports the court’s order.
A few more points should be noted. Even if Scott had completed the Alcohol Level 2 program, it is clear he has failed to maintain any sort of “long-term sobriety.” (See Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 [“Thus while she had technically completed rehabilitation programs, her failure to maintain any kind of long-term sobriety must be considered resistance to treatment.”].) Scott was arrested for open container violations five times as recently as 2016, and another two times even more recently in January 2017.
By the same token, it makes no difference that Scott’s court-ordered treatment was ordered in July 2006, long before the petition concerning A.F. was filed in January 2017. This court has specifically held the resistance must occur within three years of the petition, as distinct from the treatment occurring within three years of the petition. (See Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779-780.) The history outlined above demonstrates a long-term continued and continuing resistance to court-ordered sobriety. Further, the “court-ordered treatment” does not have to be in connection with a juvenile dependency case. Subdivision (b)(13) applies to “unrelated criminal matters” (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 203-204, fn. 3; see In re E.G. (2016) 247 Cal.App.4th 1417, 1427-1428) such as a conviction for driving with over .08 blood alcohol.
Accordingly, the petition for writ of mandate is DENIED.




BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.