Filed 1/8/18 L.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


L.C.,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G055528

(Super. Ct. Nos. 16DP0132 &
16DP0132A)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Petition denied.
Juvenile Defenders and Lawrence A. Aufill for Petitioner.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Parties in Interest Orange County Social Services Agency.
Law Office of Harold La Flamme and Linda O’Neil for Real Party in Interest B.M.
* * *
INTRODUCTION
B.M. (the minor), then seven years of age, was taken into protective custody when his mother, L.C. (mother) was arrested for driving under the influence of alcohol (DUI); the minor was in the car with mother at the time. After 19 months of apparent sobriety, mother suffered a serious relapse and a supplemental petition under Welfare and Institutions Code section 387 was filed. (All further statutory references are to the Welfare and Institutions Code.) Based on the Orange County Social Services Agency’s (SSA) recommendation, the juvenile court terminated services and set a permanency hearing. Mother timely filed a petition for a writ of mandate. Both SSA and the minor oppose mother’s petition.
Section 361.5, subdivision (a)(3)(A) sets an absolute maximum for reunification services of 18 months after detention: “[C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian.” (Italics added.) California Rules of Court, rule 5.565(f) addresses supplemental petitions under section 387, and provides that additional services may only be provided “within whatever time remains before the expiration of the maximum 18-month period.” (Italics added.)
Given the statutory bar on reunification services for longer than 18 months and the standard of review, we must deny the petition for a writ of mandate. Substantial evidence supports the juvenile’s court’s finding, by clear and convincing evidence, that leaving the minor, now nine years of age, in mother’s custody would create a substantial danger to the minor’s physical health, safety, protection, or physical or emotional well-being, and that there was no other reasonable means to protect him.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
1. Detention, Jurisdiction and Disposition Hearings
In August 2015, mother backed her car into the entrance kiosk at a campsite. Mother’s blood alcohol content was 0.3 percent; the minor was in the car at the time. A dependency petition was filed in Ventura County, pursuant to section 300, subdivisions (b) and (g). In addition to the allegations regarding her arrest for DUI, the petition alleged mother had a history of substance abuse; father had a history of substance abuse; mother had been arrested and was currently incarcerated; and mother was unable to make appropriate arrangements for the care and support of the minor. The Ventura County Juvenile Court detained the minor. The minor was placed in the care and custody of the maternal grandparents.
Mother acknowledged she is an alcoholic, and recognized drinking is no longer a reasonable lifestyle choice. She stated she hit “rock bottom” when the minor was removed from her care. Mother had several other DUI arrests before August 2015, including one other incident when the minor was in the car.
Mother submitted on the allegations of the petition; the juvenile court found the petition true and declared the minor a dependent of the Ventura County Juvenile Court. Following a disposition hearing, the juvenile court in Ventura County found, by clear and convincing evidence, that there was a substantial danger to the minor’s physical health, safety, or emotional well-being if the minor were to be returned to mother’s care and custody. The case was ultimately transferred to the Orange County Juvenile Court after mother moved to Fullerton. Following the transfer, the minor was declared a dependent of the Orange County Juvenile Court.
In April 2016, the Orange County Social Services Agency (SSA) reported that mother was residing at an in-patient sober living program. SSA recommended that mother participate in a parenting education program; a counseling program to address stress, alcohol abuse, and relationships; an outpatient substance and alcohol abuse program; and a 12-step program. SSA recommended that mother have twice weekly supervised visitation with the minor.
At the six-month review hearing, SSA reported that mother had completed a parenting class; was regularly participating in individual counseling; was attending 12 step meetings five times per week; was attending a substance abuse program; and had tested clean on all random drug tests. Mother’s cooperation with her case plan was rated “substantial.” At SSA’s recommendation, the six-month review hearing was continued to allow a 60-day trial visit between mother and the minor.
The minor told the social worker that things were “good,” he was happy to be home, and he did not have any concerns about living with mother. Mother was attending AA meetings three times a week, and would soon be completing her DUI class, after which she would be able to again obtain an unrestricted driver’s license. At the continued six-month review hearing, the juvenile court returned the minor to mother’s care and custody and ordered six months of family maintenance services.
Before the next six-month review hearing, SSA recommended terminating dependency proceedings with an exit order. Its report noted that mother had maintained her own residence and was able to parent and provide for the minor’s safety and well-being. All random drug tests were negative, and SSA recommended that mother’s drug testing requirement be reduced from weekly to upon suspicion. Mother completed the substance abuse program. Because the minor’s counsel did not agree to SSA’s recommendation to terminate the proceedings, the matter was set for a contested hearing.
2. Relapse and Section 387 Supplemental Petition
About a month later, in March 2017, the social worker went to the family home for a monthly compliance visit. The social worker observed that mother’s eyes were red, her breath smelled of alcohol, and the home was in general disarray. Mother self-reported that she had consumed alcohol the previous night, and on another occasion about two and a half weeks earlier. The social worker found a mostly full bottle of vodka in a kitchen cabinet, and saw a box of 30 beers in the living room. Mother told the social worker she had consumed five beers and a couple of vodka cocktails between 10:00 p.m. and 3:00 or 4:00 a.m. the previous evening. Mother agreed to a drug test that day, which showed mother’s blood alcohol content was 0.175 percent.
SSA immediately filed a section 387 supplemental petition alleging mother continued to have unresolved substance abuse problems. At a detention hearing, the minor was removed from mother’s care; mother was allowed liberal monitored visitation, and random drug testing was again authorized.
SSA initially recommended that the section 387 petition be sustained and family reunification services be offered. SSA changed its recommendation to no family reunification services because mother had already received more than 18 months of court-ordered services. (§ 361.5, subd. (a)(3)(A).) Mother submitted on the section 387 petition, and the juvenile court found the petition true by a preponderance of the evidence. A contested disposition hearing was set.
From immediately after her March 2017 relapse until the disposition hearing began (early March through late August 2017), mother had no positive drug tests, and was 100 percent compliant in testing. Mother admitted “she made a mistake, but she feels she now has the tools to abstain from alcohol.” Mother talked to the minor daily and visited with him four times a week.
3. Section 387 Evidentiary Hearing
At the contested evidentiary hearing on the section 387 petition, the social worker testified that mother’s use of alcohol was the only issue preventing return of the minor to mother’s custody. The social worker was concerned that mother would relapse again, and was unaware of any additional services that could be provided; mother had failed to use the safety plan and support system in place when she relapsed while the minor was in her care. The social worker changed her recommendation for further services to a recommendation that services be terminated due to the Welfare and Institutions Code’s time limit on services. The social worker reported that minor loves mother and wants to return home.
The social worker also testified mother had a history of excessive drinking, sometimes resulting in DUIs, followed by participation in treatment programs, a period of sobriety, and relapse. This pattern of behavior caused the social worker to be concerned that mother would again relapse. The social worker was also concerned that mother had not acknowledged the minor was at risk in her care when she was under the influence of alcohol. While mother was currently working at staying sober by working with the AA program, and her visits with the minor were motivating her to stay sober, these things were also true before her most recent relapse.
Mother’s current 12-step sponsor was also the manager of a sober living home where mother had lived. The sponsor believed mother would be able to avoid relapse by attending AA meetings, maintaining daily contact with her sponsor, working the “Big Book,” and beginning every day with prayer and meditation. The sponsor conceded, however, that mother had been doing those things before her most recent relapse. Although the sponsor did not believe mother was currently at risk of relapsing in the future, she did not anticipate mother’s most recent relapse.
Mother’s coworker, who is also a recovering alcoholic, testified that since her relapse, mother “gets the [12-step] program now.” The coworker admitted that mother had not reached out to her before mother’s most recent relapse. The coworker had not seen mother’s relapse coming, and believed mother was still “working the program” before it happened.
Mother’s arrest leading to the current dependency case was her fourth DUI arrest. The minor was in the car with her on one of those occasions. She participated in substance abuse classes after the first three DUIs. Mother did not, however, admit she had a problem with alcohol until the current case was initiated in August 2015.
Before her 2017 relapse, mother did not have a 12-step sponsor, and had significantly reduced the number of AA meetings she was attending. Mother did not tell the social worker about drinking in February 2017, and did not seek help from or through AA at that time. Mother also did not tell the social worker the truth about not going to AA meetings. “I told the social worker that I was going to meetings. I didn’t—I wasn’t fully— didn’t fully disclose to him that, hey, I’m not doing my six every week any more. I’m only doing two or three. But it got to a point where I just went to one maybe, so I wasn’t honest with him about that.”
Mother testified the trigger for her March 2017 relapse “was that I was at home. It was there. Because I wasn’t—because I didn’t have A.A. on my mind. I didn’t have any strong connections to the program for the last couple months before that, so I forgot—my mind told me it will be okay if you just drink this once. [The minor] was already in bed. Everyone—there was another couple there, and then another girlfriend there that—none of them I really knew that well. They were people I had met once or twice before and the night just turned—it changed as to what I planned it to be into a totally different party than I was planning on having.”
To prevent another relapse, mother testified, “I do have a commitment at a 6:00 A.M. meeting in Fullerton at the Alano Club. I am a chip person on Fridays and I go to four or five meetings a week, all 6:00 A.M. When I relapsed, I had people coming over to my house that evening to watch a fight on T.V. and this last fight . . . . Maybe people know about it. . . . I went to a friend’s house that’s from my meetings that has
20-plus years, to watch it over there this time instead of being on my own at my house, and I choose to hang out with all of those people and I don’t hang out with people that drink at all. I also read my Big Book and I . . . say my prayers and meditation every day. I call my sponsor every single day and I see her either on a Monday or Tuesday every week for a couple of hours.” Mother testified that if she was ever tempted to use alcohol in the future, she would call her sponsor who lives close by and would probably come over immediately to help her.
After the evidentiary hearing, the juvenile court found that conditions still existed which would justify the initial assumption of jurisdiction under section 300 (§ 364, subd. (c)); that reasonable efforts were made to prevent the need to remove the minor from mother’s custody (§ 361, subd. (d)); and that vesting custody with mother would be detrimental to the minor (§ 361, subd. (c)(1)). The court also found further services need not be provided to mother. (§ 361.5, subd. (3)(a).) The court set a permanency planning hearing, pursuant to section 366.26. Mother timely filed a notice of intent to file a petition for a writ of mandate to review the juvenile court’s order. (Cal. Rules of Court, rule 8.450.)
DISCUSSION
A section 387 petition seeking to place a dependent child in a more restrictive placement must allege facts that the previous disposition order was ineffective. (In re F.S. (2016) 243 Cal.App.4th 799, 808.) The social services agency must demonstrate by clear and convincing evidence that removal is the appropriate disposition. (See, e.g., Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1111-1113.)
Children who have already been declared dependents of the juvenile court “‘shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being and there are no “reasonable means” by which the child can be protected without removal.’” (In re Henry V. (2004) 119 Cal.App.4th 522, 528 (Henry V.).) The court must “make a determination as to whether reasonable efforts were made to prevent or eliminate the need for removal of the minor.” (§ 361, subd. (d).) The court must also consider the amount of services already provided, and services cannot be provided in excess of the 18 month maximum. (Cal. Rules of Court, rule 5.565(f).)
The appellate court reviews the record to determine whether the juvenile court’s order is supported by substantial evidence and draws all reasonable inferences from the evidence to support the court’s findings and orders. (In re Javier G. (2006) 137 Cal.App.4th 453, 462-463; Henry V., supra, 119 Cal.App.4th at p. 529 [substantial evidence test applies to determine the existence of the clear and convincing standard of proof].)
Mother argues that the minor should be returned to her care and custody, under supervision; both SSA and the minor oppose mother’s request. Mother contends that her seven months of sobriety since her relapse, during which she has actively participated in attending AA meetings, communicating with her sponsor and other members of her support system, praying, and meditating ensure she will not relapse again. Other witnesses testified mother now hates alcohol and is not at risk of relapsing. Mother also contends that the minor “was not abused or neglected” when she relapsed in February and March 2017.
The problem with mother’s argument, which the juvenile court recognized, is that there is little difference between mother’s current status and where she was earlier in the dependency process. After the minor was initially removed from mother’s care, mother attended AA meetings and spoke with her sponsor regularly. She completed a substance abuse program and a parenting class and attended counseling sessions. And still, she convinced herself that “it will be okay if you just drink this once.” (By that point, however, she had already had a drink “just once” several weeks earlier.)
Mother appears to be in a pattern of drinking heavily, completing substance abuse programs, staying sober for a period of time, and then drinking heavily again. While mother now contends that she finally understands and can address her problems, there is nothing in her history supporting this contention.
Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, on which mother relies, is distinguishable. In that case, Blaine was born in June 2003 with amphetamine in his system and was immediately taken into protective custody. (Id. at p. 498.) Blaine’s mother, Rita, completed a residential drug treatment program and consistently tested clean through November 2004. At the time of the 12-month review hearing, SSA recommended that Blaine be placed with Rita for a 60-day trial visit. (Id. at p. 500.) While the review hearing was ongoing, Rita ingested a Tylenol with codeine, without realizing what it was, to relieve a headache. (Id. at p. 501.) She immediately informed the drug testing facility, her AA sponsor, and her social worker. (Ibid.) The juvenile court ordered reunification services terminated and scheduled a permanency planning hearing. (Id. at p. 503.)
The appellate court noted, “the sole issue to be determined here is still whether Rita’s failed drug test, viewed in the context of this case, constituted substantial evidence that returning Blaine to her custody would ‘create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.’” (Rita L. v. Superior Court, supra, 128 Cal.App.4th at p. 505, italics added.) The appellate court concluded that all drug relapses are not created equal, and that Rita’s relapse was not earth-shattering. “She did not, for example, decide to go out partying with a bunch of drug-using friends as a ‘last hurrah’ before resuming full-time custody. She also did not, upon recognizing she would have a dirty drug test, use that as an excuse to provide a really dirty test—or worse, to do that and then skip the testing entirely. [¶] Instead, she slept off her headache and then resumed her life—going to work, reporting her mistake, and then drug testing the next day. Even assuming Blaine had been in her custody during that period, we cannot see how her ability to care for him would have been impaired by the conduct.” (Id. at pp. 505-506.) The appellate court also concluded that the single dirty test did not support a finding that Rita would not be able to safely care for Blaine. “[W]e can’t see how it bodes especially ill for her future. This incident is significant only if it is viewed as a likely first step in Rita’s backslide into more serious drug use. And while such a progression is always possible, there is little (if any) indication that was happening here. Rita did not ignore or minimize the danger. She made no effort to argue (as some might) that her ingestion of a single prescription pain killer was insignificant. Instead, she discussed the incident with her AA sponsor, the drug testing personnel, and her social worker. Rita was, in other words, quite proactive in addressing the lapse.” (Id. at p. 506.)
Here, by contrast, mother did not unknowingly ingest a single prescription pain pill while the minor was not in her custody. Rather, she drank significant amounts of alcohol on at least two occasions after reducing her participation in her 12-step program, and deciding she wanted to fit in with her friends and be normal by drinking with them. Mother had also gone through multiple substance abuse programs and participated in AA, only to again relapse. And unlike Rita, mother continued to minimize her relapse and blame others for it.
We also reject mother’s contention that her relapse did not cause any harm to the minor. Mother has attempted to minimize the effects of her alcoholism on the minor. Mother believed that she was “pretty good at hiding” her drinking from the minor and claimed she only drank at night while he was sleeping. Mother acknowledged, however, that her physical and mental state the mornings after she was drinking would “maybe affect him.” The minor, however, reported to SSA that, at the time of the August 2015 incident, it was “typical” for mother to drink a half a bottle of wine and six or seven beers. The minor also reported, in March 2017, that mother’s boyfriend would have one or two drinks, which was not “as much as mom.” Mother’s drinking made the minor “scared”; when she drank “she [could] get kind of mean and stuff.”
Mother cites David B. v. Superior Court (2004) 123 Cal.App.4th 768 for the proposition that “there are times when we have to take a step back and make sure that we are not losing sight of our mandate. We are looking for passing grades here, not straight A’s.” (Id. at p. 790.) Mother also cites that case to support her contention that the standard for establishing detriment is “a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.” (Id. at p. 789.) Those comments of the appellate court arose in the context of its conclusion that a parent’s lack of instinctive knowledge about child raising, which led him to ask many seemingly insignificant questions of the social worker and foster parents, did not establish the child would be at a substantial risk of harm if placed in the parent’s care and custody. (Id. at pp. 790-791.) In the present case, mother is not achieving passing grades, and her relapse into alcohol abuse is not simply “less than ideal.”

DISPOSITION
The petition for a writ of mandate is denied.



FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.