Filed 2/9/18 In re A.L. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re A.L. et al., Persons Coming Under the Juvenile Court Law. H044833
(Santa Cruz County
Super. Ct. Nos. 17JU00139;
17JU00140)

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

A.L.,

Defendant and Appellant.

The Santa Cruz County Human Services Department (Department) filed juvenile dependency petitions on behalf of A.L. and S.L. (the children). The children’s mother, A.L. (mother), appeared late at the jurisdiction/disposition hearing, arriving after the parties had completed presentation of their evidence and while the juvenile court was ruling on the request of mother’s counsel to reopen the evidence to allow a social worker’s testimony. Mother was not permitted to testify. The court found the children to be within the juvenile court’s jurisdiction and declared them dependent children of the court. The court decided not to offer mother family reunification services pursuant to several statutory bypass provisions.
Mother appeals. (Welf. & Inst. Code, § 395, subd. (a)(1).) On appeal, mother asserts that the juvenile court abused its discretion when it denied the request of mother’s counsel for a continuance of the hearing based on mother’s absence and when it later denied her counsel’s request to reopen the evidence to allow mother’s testimony. Mother further argues that the court’s refusal to hear her testimony violated her due process right to be heard and present evidence and that the court misapplied the three reunification bypass provisions upon which it relied.
We find no error and affirm.
I
Procedural History
Juvenile dependency petitions were filed on behalf of each of the children on May 11, 2017. A.L. was then two years old, and S.L. was then three years old. Each petition alleged that the child came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling).
As to jurisdiction under section 300, subdivision (b)(1), both petitions alleged the following facts. Mother “abuses controlled substances that include but are not limited to methamphetamine and said abuse negatively impacts her ability to provide safe and appropriate care for her children, [S.L. and A.L.]. [Mother] has a long history of substance abuse and has been provided with multiple services to address her substance abuse issues.” Mother’s abuse of controlled substances, including while acting as the children’s primary caregiver, places the children “at substantial risk of serious physical harm.” The children’s father “is unable and/or unwilling to protect his children, [S.L. and A.L.], from the behavior of [mother].” Father’s “inability or unwillingness to protect his children from [mother’s] behavior, places [S.L. and A.L.] at substantial risk of serious physical harm.”
“On May 5, 2017, [father] located a spoon and cotton which is used to shoot heroin in the home [mother] shares with their children and [father] left the children in [mother’s] care.” “On May 8, 2017, while caring for her children, [mother] was in possession of a baggie with methamphetamine and a pipe and both fell out of her clothing as she walked.” “[M]ethamphetamine was found in the children’s bedroom and in the hallway.” “Needles were also found in two different areas in the home that were accessible to the children.” During that time, father was in the home with mother and the children. “[Father] failed to remove the children from the home until directed to do so by law enforcement.” Mother was “subsequently arrested on possession charges and children endangerment charges.”
Also on May 8, 2017, “the [children’s] home was found to be in a filthy and unsanitary condition.” “There were clothes everywhere, food and debris . . . appeared to have been in the home for a long time and the children’s drinking cups had old milk.”
As to jurisdiction under section 300, subdivision (j), both petitions alleged the following facts. The children’s sibling, J.J., “was abused and/or neglected as defined by the 300 Section of the Welfare and Institutions Code and there is a concern that [the children] will be abused and/or neglected in a similar manner.” Mother “was provided with court-ordered services from May 2009 until November 2011 due to her substance abuse.” J.J. was removed from mother’s care in October 2010. The services provided to mother “included, but were not limited to, Domestic Violence, Parenting Classes, Substance Abuse Services, Random Testing and General Counseling.” Mother “failed to reunify, her parental rights were terminated and the minor was subsequently adopted.”
The petition filed on behalf of A.L. additionally alleged the following facts as to jurisdiction under section 300, subdivision (j). S.L., A.L.’s sibling, “was abused and/or neglected as defined by the 300 Section of the Welfare and Institutions Code and there is a concern that [A.L.] will be abused and/or neglected in a similar manner.” “Due to their substance abuse, the [children’s] parents . . . were provided with 36 months of court ordered Family Maintenance Services that included but were not limited to Psychiatric Medication evaluation, General Counseling, Parenting Classes, Substance Abuse services and Substance Abuse testing.”
At the jurisdiction/disposition hearing on July 10, 2017, the juvenile court found all the petition’s allegations true. It determined that A.L. and S.L. were persons described by section 300, subdivisions (b) and (j).
Also on July 10, 2017, the juvenile court declared the children to be dependent children of the court. It ordered family reunification services for the children’s father. But the court decided that reunification services would not be provided to mother pursuant to several statutory bypass provisions, specifically subdivisions (b)(l0), (b)(11), and (b)(13) of section 361.5. It found that it was not in each child’s best interest to provide or offer reunification services to mother.
II
Discussion
A. Request for Continuance
1. Background
The jurisdiction/disposition hearing was calendared for 8:30 a.m. on July 10, 2017. Both parents were ordered to be personally present for that hearing.
On July 10, 2017, the dependency matters were called at 8:52 a.m. Mother was not present, and her counsel asked for a continuance on the ground that mother was “not present to assist [counsel] in her representation.” The Department’s counsel objected, stating that mother had been present for settlement conference and the setting of the hearing. The juvenile court found that mother’s absence was not “sufficient good cause” for a continuance.
2. Analysis
Section 352, subdivision (a), provides in part: “Upon request of counsel for the parent . . . , the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (See Cal. Rules of Court, rule 5.550(a)(1).) Section 352, subdivision (a), also states: “Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause.” (See rule 5.550(a)(2).)
Section 352, subdivision (b), provides in part: “Notwithstanding any other provision of law, if a minor has been removed from the parents’ . . . custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance.” (Italics added; see rule 5.550(a)(3).) “Continuances in juvenile dependency proceedings are disfavored, particularly when they infringe on maximum time limits under the Code. (§ 352, subds. (a), (b); In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)” (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) The moving party has the burden to demonstrate good cause for a requested continuance. (See Evid. Code, §§ 500, 550, subd. (b).)
“A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion. [Citation.]” (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187; cf. People v. Beames (2007) 40 Cal.4th 907, 920 [“The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]”].) “ ‘[“]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Under the abuse of discretion standard of review, a court’s ruling will not be disturbed unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (Id. at p. 318.)
Mother now asserts that the denial of her counsel’s request for a continuance of the jurisdiction/disposition hearing constituted an abuse of discretion because “[g]ood cause existed and the request was not contrary to the minors’ best interests.” She asserts that the court did not have to find “exceptional circumstances” to continue the dispositional hearing because the court could have continued the hearing “for up to five days without passing the 60 day deadline” imposed by section 352, subdivision (b).
On July 10, 2017, there was no showing that a continued disposition hearing could be heard within the 60-day deadline. On May 12, 2017, the juvenile court ordered the children detained and temporarily placed them under the Department’s care, custody, and control until further court order and without prejudice to the parents pending a contested detention hearing. (See §§ 319, 321; rule 5.674(e).) On May 15, 2017, after a contested detention hearing, the court ordered the children detained and temporarily placed them under the Department’s care and supervision until further court order. Calculated based on the court’s initial May 12, 2017 detention order, the final date of the 60-day period was July 11, 2017.
Mother argues that the juvenile court abused its discretion in finding that her failure to appear was not good cause for a continuance. Mother contends that she “had good cause for a continuance because she had not missed any previous court dates, and her testimony was necessary for presenting her case.”
Mother’s convenience could not alone constitute good cause. (§ 352, subd. (a).) Mother apparently did not inform her counsel of the reason she was running late, and her counsel was unable to articulate to the court any good reason for mother’s failure to timely appear. There was no showing of any exceptional circumstances justifying continuing the disposition hearing more “than 60 days after the hearing at which the [children were] ordered removed or detained.” (§ 352, subd. (b).) Mother has failed to demonstrate that the denial of the request for a continuance, which mother’s counsel made at the outset of the jurisdiction/disposition hearing, was arbitrary, capricious, or unreasonable. No abuse of discretion has been shown.
B. Request to Reopen the Matters for Further Evidence
1. Background
At the jurisdiction/disposition hearing on July 10, 2017, the Department’s counsel submitted on all the reports. Counsel for the children indicated that he had no independent evidence. Counsel for mother introduced some exhibits into evidence. When she finished, mother’s counsel told the court that she “was hoping [mother] would testify.” After obtaining permission to check the hallway for mother and apparently doing so, mother’s counsel informed the court that she had no further evidence. After being asked whether he had any evidence, father’s counsel indicated that he wished to call father to testify. The court permitted father to testify even though he had been approximately 40 minutes late to the hearing.
After father’s testimony, the court asked whether any of the parties had any further evidence. Father’s counsel said no. The Department’s counsel submitted the matter.
Mother’s counsel asked to reopen her evidence to call social worker Amy Lebichuck. When asked for an offer of proof, mother’s counsel indicated that the social worker would confirm that mother was currently participating in the New Life program. The Department’s counsel objected, stating that “the social workers are telling me that they have not contacted New Life recently, so they would not have any information to offer . . . .” The court indicated that it had information that as of June 20, mother was in New Life.
At that point in time, which the court noted was 9:25 a.m., the court stated on the record that mother was in the courtroom. Mother was approximately 55 minutes late to the hearing. The court impliedly denied the pending request of mother’s counsel to reopen the evidence to call the social worker, saying, “All right. So evidence has been closed at this point in time.”
Mother’s counsel then informed the court that mother was asking her to ask the court to reopen because mother wished to testify. The court again noted the time, and it indicated that the evidence had already been presented. The court stated that it did not see any good cause to reopen for further evidence.
2. Analysis
Evidence Code section 320 provides: “Except as otherwise provided by law, the court in its discretion shall regulate the order of proof.” The juvenile courts have the power to “provide for the orderly conduct of proceedings before it.” (Code Civ. Proc., § 128, subd. (a)(3).) Courts usually follow a standard order of proof. (Cf. generally, Code Civ. Proc., §§ 607, 631.7; Pen. Code, §§ 1093, 1094.)
“A request to reopen for further evidence is addressed to the discretion of the trial court whose determination is binding on appeal in the absence of palpable abuse. [Citations.]” (Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428 (Phillip B.); accord, In re Mary B. (2013) 218 Cal.App.4th 1474, 1481.) Ordinarily, a “denial of a motion to reopen will be upheld if the moving party fails to show diligence or that he had been misled by the other party. [Citations.]” (Phillip B., supra, 1 at p. 428; see Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1053 [refusal to reopen the evidence is not an abuse of discretion where failure to introduce evidence at the proper time was “neither inadvertent nor excusable”.)
“ ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham); see Cal. Const., art. VI, § 13)
Insofar as mother is contending that she arrived while evidence was still being presented, that claim is not accurate. In this case, the parties had completed their presentation of evidence, and mother’s counsel was in the midst of seeking permission to reopen her case for a social worker’s testimony when mother arrived in the courtroom. The court impliedly denied that request and closed the evidentiary portion of the hearing. Mother’s counsel then made a new request to reopen for mother’s testimony but offered no explanation for mother’s untimely arrival.
As mother indicates, in the criminal context it is settled that the reviewing court considers four factors in determining whether a court abused its discretion in ruling on a request to reopen the evidence: “ ‘ “(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.” ’ [Citation.]” (People v. Homick (2012) 55 Cal.4th 816, 881.)
Even if that framework applies to our review of the denial of a request to reopen the evidence at a jurisdiction/disposition hearing, no abuse of discretion has been shown. Because the request to reopen was made shortly after the presentation of the evidence was completed and before argument, the stage of the proceedings is one factor weighing in mother’s favor. Also, since court was the trier of fact, there is no risk that the new evidence would be accorded undue emphasis. The other two factors, however, weigh against mother. Mother’s testimony was not newly discovered evidence, and, in the absence of any justifiable excuse for her untimely arrival, the court could reasonably infer that her late appearance reflected a lack of diligence. Further, mother’s counsel did not make an offer of proof or otherwise place the nature of mother’s anticipated testimony on the record at the hearing, and, consequently, mother is unable to now show that it would have been significant.
People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring), which mother cites, is distinguishable. In that case, an appellate court found that a lower court had abused its discretion by revoking probation because the record did not show that the defendant willfully violated a probation condition by arriving 22 minutes late for her court appearance. Her tardiness was the result of last-minute “unforeseen circumstances” involving childcare arrangements that fell through due to no fault of Zaring. (Id. at pp. 367, 376, 379.) Under California law, there is “a general presumption that a violation of a probation condition must be willful.” (People v. Hall (2017) 2 Cal.5th 494, 501.) Zaring is not helpful here since we are not reviewing a revocation of probation.
In any event, unlike the record in Zaring, the record here does not reflect that mother was late due to last-minute unforeseen circumstances that were not her fault. It is silent on the reason mother was late. “ ‘All intendments and presumptions are indulged to support [an order] on matters as to which the record is silent, and error must be affirmatively shown. . . .’ [Citations.]” (Denham, supra, 2 Cal.3d at p. 564.) We cannot assume that mother had good reason for not showing up in time to testify.
There is no basis in the record before us to find that the juvenile court abused its discretion in failing to reopen the evidence for her testimony. Insofar as mother complains that the court did not give her an opportunity to justify her lateness, it was up to mother and her counsel to place that information on the record if it was favorable to her.
Mother asserts that the court’s refusal to reopen for her testimony was palpably unjust because father was permitted to testify despite arriving late while she was not. The parents were not similarly situated. Father arrived before father’s counsel was asked whether he had any evidence to present on father’s behalf, and father’s counsel then called father to testify. In contrast, mother arrived to the courtroom after all parties had completed their presentation of evidence (although mother’s counsel was attempting to reopen the evidence to call a social worker to testify).
Contrary to mother’s claim, the appellate record does not demonstrate that the juvenile court refused to hear mother’s testimony to punish her “for her late arrival.” In re Vanessa M. (2006) 138 Cal.App.4th 1121 (Vanessa M.), which mother cites, is distinguishable. In that case, the father timely appeared at the continued, contested jurisdiction hearing, but the juvenile court barred his further testimony because the father “had not provided proof of good cause as to why he appeared late at the [prior] hearing and had failed to appear at previous hearings.” (Id. at p. 1127.) The appellate court held that the court’s refusal to hear the father’s testimony deprived him of due process. (Id. at p. 1129.) In contrast, in this case, the juvenile court’s refusal to hear mother’s testimony was not an evidence sanction imposed on mother.
Mother now suggests that the juvenile court abused its discretion by failing to consider her constitutional due process rights to be heard and present testimony. Mother’s counsel did not assert that mother had a due process right to testify when asking the court to reopen for mother’s testimony. In any case, as we explain below, the court’s denial of the request to reopen did not deprive mother of due process.
Based on the record before us, we conclude that the juvenile court acted within its sound discretion in denying the request to reopen for mother’s testimony.
C. Court’s Refusal to Reopen Evidence Not Due Process Violation
Mother now contends that the court violated her due process rights under the Fifth and Fourteenth Amendments to the United States Constitution by disallowing her testimony at the jurisdiction/disposition hearing on July 10, 2017.
“Parents have a ‘fundamental liberty interest’ in the ‘care, custody, and management’ of their biological children. (Santosky v. Kramer (1982) 455 U.S. 745, 753; In re Lucero L. (2000) 22 Cal.4th 1227, 1247.)” (Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1045.) That liberty interest “does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” (Santosky v. Kramer, supra, 455 U.S. at p. 753.) That interest is protected by due process. (See Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 756-757 [“It is axiomatic that due process guarantees apply to dependency proceedings. [Citations.]”]; cf. Stanley v. Illinois (1972) 405 U.S. 645, 649 [as a matter of due process of law, an unmarried father was entitled to a hearing on his fitness as a parent before his children were taken from him after their mother died].)
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citations.]” (Mathews v. Eldridge (1976) 424 U.S. 319, 333, italics added; see In re Matthew P. (1999) 71 Cal.App.4th 841, 851 [“In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard”].) A parent’s right to due process in a dependency hearing generally includes the right to testify or present other evidence. (See In re Armando L. (2016) 1 Cal.App.5th 606, 620-621 [postdisposition review hearing]; see also rule 5.534(g)(1)(D).)
But “[w]hen a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent’s absence. (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162.)” (Vanessa M., supra, 138 Cal.App.4th at p. 1131.) “A parent’s failure to appear will not normally constitute the good cause necessary to justify a continuance (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187), because substantial importance is attached to ‘the child’s need for a prompt resolution of the matter’ (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2005 ed.) § 2.104[5], p. 2-169, citing § 352, subd. (a)). An unjustified failure to appear at a duly noticed hearing reflects a parent’s choice not to attend. (In re Gerald J., at p. 1187.) A court may properly treat this choice as a waiver of the right to be present at that hearing and of the benefits of being present.” (Id. at pp. 1131-1132; cf. Boddie v. Connecticut (1971) 401 U.S. 371, 378 [without violating due process, “[a] State, can . . . enter a default judgment against a defendant who, after adequate notice, fails to make a timely appearance [citation] or who, without justifiable excuse, violates a procedural rule requiring the production of evidence necessary for orderly adjudication [citation]”]; cf. also Rock v. Arkansas (1987) 483 U.S. 44, 55-56, fn. 11 [“Numerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant’s right to testify. [Citations.]”].)
Similar reasoning applies when a parent arrives at a disposition/jurisdiction hearing (of which the parent had adequate notice) after the completion of the presentation of evidence, without any justifiable excuse for his or her tardiness. A court may find that such an untimely arrival constituted an implicit waiver of any right to be present during presentation of the evidence or to testify as a matter of right.
We reject mother’s assertion that In re Nemis M. (1996) 50 Cal.App.4th 1344 (Nemis M.) is analogous to this case. In that case, “[t]he [juvenile] court proceeded by way of default against [the father] over his attorney’s objection” since the father, although “on the courthouse premises,” was not “present in the courtroom because he was emotionally upset.” (Id. at p. 1351.)
The appellate court in Nemis M. held that the juvenile court wrongfully entered a default against father. (Nemis M., supra, 50 Cal.App.4th at p. 1352.) It explained: “A parent who is ordered to appear in court and who willfully fails to appear is in contempt[,] not ‘in default.’ ‘Entry of default is not authorized where an answer is on file, even if the defendant fails to appear at the hearing. [Citations.]’ (In re Brian W. (1996) 48 Cal.App.4th 429, 433, fn. 3; see also § 213.) ‘The consequences of a parent’s failure to appear at a scheduled hearing . . . do not include the deprivation of the due process right to confront and cross examine witnesses.’ (In re Dolly D. (1995) 41 Cal.App.4th 440, 446.)” (Ibid.)
The juvenile court in this case did not enter a default against mother. Mother was represented at the jurisdiction/disposition hearing by counsel. The juvenile court did not prevent mother’s counsel from presenting evidence or cross-examining witnesses. Before mother arrived at the hearing, mother’s counsel presented evidence (a number of exhibits) on mother’s behalf and cross-examined father.
Mother could have testified in her own behalf had she timely appeared. After the court exercised its discretion not to reopen the evidence to allow mother to testify, mother’s counsel argued the merits on mother’s behalf. Under the circumstances, mother was afforded an opportunity to be heard and to present evidence, but she did not fully avail herself of it. The court’s refusal to reopen the evidence to allow mother to testify did not deprive her of due process of law.
D. Application of the Family Reunification Bypass Provisions
1. Contentions and Background
Mother contends that the juvenile court abused its discretion in applying three reunification bypass provisions. She argues that, with respect to the court’s reliance on section 361.5, subdivisions (b)(10) and (b)(11), the court improperly shifted the burden to her to show that she had made “a reasonable effort to treat the problems that led to removal of [the children’s] sibling or half sibling.” (§ 361.5, subds. (b)(10) & (b)(11).) Mother also contends that in applying section 361.5, subdivision (b)(13), the court erroneously imposed such “a ‘reasonable efforts’ requirement” and placed the burden of proof as to that requirement on her.
During the disposition portion of the hearing on July 10, 2017, the juvenile court stated: “[A]t this time, reunification services shall not be provided to [mother], as I find, by clear and convincing evidence, under Welfare and Institutions Code section 361.5(b)(10), (11) and (13), that this court has previously terminated reunification services for a sibling, and that would be [J.J.], because the parent failed to reunify after the sibling or half-sibling had been removed, and that the parent has not subsequently made reasonable efforts to treat the problem that led to the removal of the sibling or half-sibling of that child.” The court indicated that it had taken judicial notice of the dependency proceedings on behalf of J.J. in case No. DP002068, and it noted mother’s reunification services were discontinued and her parental rights were terminated in that case.
Specifically under section 361.5, subdivision (b)(13), the juvenile court found, based on clear and convincing evidence, that mother had “a chronic use of drugs,” that “she has resisted prior court-ordered treatment for this problem during the three-year period immediately prior to filing of this petition, and that she’s failed or refused to comply with a program of drug and alcohol treatment described in the case plan on at least two prior occasions, even though those programs were available and accessible.”
The court then stated: “I don’t find that [mother] has met her burden to show that she made reasonable efforts to overcome her problem, nor do I find that it’s in the children’s best interests to provide her with reunification services, despite years of effort to provide [mother] with services so that she can overcome her chronic and long-term substance abuse history. To this day, she’s denying that she has relapsed. [¶] And the Court, based upon the evidence that’s set forth concerning the May incident, I am very concerned that [mother’s] chronic use of drugs interferes with her ability to be a safe parent. I’m very concerned, given the fact that the Court doesn’t have confidence in the tests, given that she’s manipulated tests in the past. [¶] So, despite the fact that she claims she’s in a recovery program, the Court does not believe . . . that she’s made reasonable efforts to overcome her past substance abuse. [¶] So the Court orders that the Department not provide reunification services to [mother].”
2. Governing law
“While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their best interests [citations], the law’s first priority when dependency proceedings are commenced is to preserve family relationships, if possible. [Citation.] To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. [Citations.]” (In re K.C. (2011) 52 Cal.4th 231, 236.)
“Subdivision (a) of section 361.5 sets forth the general rule that a parent whose child has been removed in a dependency proceeding must be afforded reunification services.” (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 753 (Renee J.), superseded by statute on another point as stated in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1457.) But, under section 361.5, subdivision (b), “[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the [circumstances specified by the subdivision].”
The circumstances set forth by subdivision (b)(10) of section 361.5 are “[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) [of section 361.5] and that, according to the findings of the court, this 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 from that parent . . . .” The circumstances set forth by subdivision (b)(11) of section 361.5 are “[t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a) [of section 361.5], and that, according to the findings of the court, this 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 from the parent.” The circumstances set forth by subdivision (b)(13) of section 361.5 are “[t]hat the parent . . . of the child 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.”
Section 361.5, subdivision (c)(2), makes clear that “[t]he court shall not order reunification for a parent . . . described in paragraph . . . (10), (11), . . . [or] (13) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” In other words, “the juvenile court may still order reunification services if it finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c).)” (Renee J., supra, 26 Cal.4th at p. 750.)
3. Analysis
“[T]he party seeking bypass of reunification services under section 361.5, subdivision (b) has the burden of proving that reunification services need not be provided” (In re Angelique C. (2003) 113 Cal.App.4th 509, 521 (Angelique C.); see Evid. Code, § 500) by clear and convincing evidence. (§ 361.5, subd. (b).) But the parent opposing bypass of reunification services still has the burden of producing evidence as to any particular fact on which a finding against them would be required in the absence of further evidence. (See Evid. Code, § 550, subd. (a).) In addition, once the court makes a finding that a bypass provision specified in section 361.5, subdivision (c)(2), applies, the burden of proof shifts to the parent to affirmatively establish that nevertheless reunification would be in the best interest of the child. (See In re Z.G. (2016) 5 Cal.App.5th 705, 721; In re William B. (2008) 163 Cal.App.4th 1220, 1227; see also § 361.5, subd. (c)(2); Evid. Code, § 500.)
In evaluating whether the juvenile court erred in applying the bypass provisions, we begin with the principle of appellate review that an “order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) In addition, we consider Evidence Code section 664, which states the general presumption that “official duty has been regularly performed.” “In the absence of evidence to the contrary, we presume that the court ‘knows and applies the correct statutory and case law.’ [Citations.]” (People v. Thomas (2011) 52 Cal.4th 336, 361.) Likewise, we generally presume that the court applies the proper burden of proof in matters tried to it. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914.)
Here, the most reasonable inference from the court’s explication of its decision is not that it incorrectly shifted the burden of proof as to mother’s “reasonable efforts” in applying subdivisions (b)(10) and (b)(11) of section 361.5 or that it erroneously added a “reasonable efforts” requirement and placed the burden of proof as to such requirement on mother in applying subdivision (b)(13) of section 361.5. The most reasonable inference is that the court simply misspoke when it referenced all three bypass provisions in speaking about “reasonable efforts.” The court made separate findings under subdivision (b)(13) of section 361.5. When the court spoke of “burden” (“I don’t find that [mother] has met her burden to show that she made reasonable efforts to overcome her problem”), it did not say the burden of proof. We understand the court’s statement to mean that mother did not carry her burden of producing evidence to overcome the Department’s sufficient showing, under subdivisions (10) and (11) of section 361.5, that she had not made a reasonable effort to treat the problems that led to removal of J.J. (See Angelique C., supra, 113 Cal.App.4th at p. 521.) We also take its next comment (“nor do I find that it’s in the children’s best interests to provide her with reunification services”) as signaling that mother did not carry her burden of proving that reunification services would serve the children’s best interest despite the applicability of the bypass provisions. (See § 361.5, subd. (c)(2); Evid. Code, § 500.)
The record does not affirmatively show that the juvenile court misapplied subdivisions (b)(10), (b)(11), and (b)(13) of section 361.5 as contended by mother.
DISPOSITION
The July 10, 2017 disposition orders are affirmed.




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ELIA, Acting P. J.

WE CONCUR:



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PREMO, J.



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BAMATTRE-MANOUKIAN, J.











In re A.L., et al.; Santa Cruz County HSD v. A.L.
H044833