In re K.T. CA5 ( 2021 )

Filed 9/1/21 In re K.T. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re K.T. et al., Persons Coming Under the
Juvenile Court Law.
MERCED COUNTY HUMAN SERVICES F082323
AGENCY,
(Super. Ct. Nos. 20JP-00085A,
Plaintiff and Respondent, 20JP-00085C)
v.
OPINION
K.B.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Brian L.
McCabe, Judge.
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
K.B. (mother) has five children: K.T. (born August 2011), twins K.P.T. and B.T.
(born April 2017), I.B. (born March 2019), and N.B. (born April 2020).1 Mother lost her
parental rights to the twins in August 2019 in North Carolina due to substance abuse and
domestic violence issues. K.T., I.B., and N.B. were subsequently removed from mother’s
care in July 2020 in Merced County. As it relates here, the juvenile court denied her
reunification services as to all three children under Welfare and Institutions Code section
361.5, subdivision (b)(11) 2 on the basis that mother failed to correct the problems that
led to the twins’ removal.
Mother appeals the juvenile court’s order bypassing her for reunification services
under section to 361.5, subdivision (b)(11), as to her children, K.T. and N.B.3 We
dismiss the appeal as to K.T., but address mother’s appeal as it relates to N.B.4 Mother
contends (1) substantial evidence did not support the bypass of reunification services
under section 361.5, subdivision (b)(11), and (2) the juvenile court abused its discretion
when it failed to order reunification services under to section 361.5, subdivision (c). We
disagree and affirm the juvenile court’s order.
1 K.T., the twins, I.B., and N.B. have different fathers.
2 All statutory references are to the Welfare and Institutions Code unless otherwise
noted.
3 Mother’s appeal of the juvenile court’s order denying her reunification services as
to I.B. is a separate case before this court (K.B. v. Superior Court of Merced County (May
11, 2021, F082325) [nonpub. opn.]).
4 On July 13, 2021, the agency filed a motion to dismiss the appeal as moot on the
basis that dependency of K.T. was dismissed on May 10, 2021, and as to N.B. on June
29, 2021. As only the termination of dependency as to K.T. is final at this time, we
dismiss the appeal as to that child only. We take judicial notice of the minute orders of
the Merced County Superior Court case No. 20JP-00085-A, dated May 10, 2021, and in
case No. 20JP-00085-C, dated June 29, 2021.
2.
FACTUAL AND PROCEDURAL SUMMARY
Removal
On July 10, 2020, mother and Fortune Johnson5 were seen arguing in a van in the
parking lot of a Merced County Human Services Agency (agency) office. One-year-old
I.B. and two-month-old N.B. were also in the van. A social worker met with the family
to assess the children’s safety.
Johnson reported that all four of them lived in the van. Johnson was not the
children’s father, but wanted to help them in light of mother’s substance abuse and
domestic violence problems. He stated mother had been smoking crack cocaine in the
van all night in the children’s presence and “ ‘became a terror and started screaming that
[he] stole her dope.’ ” In response to his attempts to calm her, she cracked his windshield
with a hammer, broke his cell phone, and “took [the] hammer to the front passenger
seat.” Johnson said mother would smoke crack cocaine in the van with the windows
rolled up with the children inside. Johnson also reported that three days earlier, he and
mother were arguing over his not wanting to take care of the children. As a result,
mother tossed N.B. from the middle of the van to the front of the van where Johnson was
sitting. Fortunately, he caught N.B. and the child suffered no injury. Additionally,
according to Johnson, they had a 14-day hotel voucher, but were kicked out of the hotel
because of mother’s erratic behavior when her drug supply ran out. Lastly, Johnson
reported there was a history of domestic violence with mother, showing the social worker
a scar on his forehead that he received after mother struck him on the head with a cup.
The social worker then contacted mother lying in the van holding two-month-old
N.B. in her arms. Mother appeared lethargic, slow to respond, and seemed to be under
the influence of a substance. Mother claimed she had not slept the night before and was
5 Though mother and Johnson possessed a marriage license, it had never been
registered, so the validity of the marriage is questioned.
3.
unable to hold a conversation with the social worker. At one point, mother began feeding
N.B. spoiled milk from an unwashed bottle. Both children had severe diaper rashes. In
addition to her lethargy, N.B. would not open her eyes, and her stomach was swollen.
The van was extremely dirty and cluttered. There were cigarette butts, ash, and
tobacco all over the carpet and seats. Although there were car seats for the children, there
was no place to secure them. There were four jars of marijuana in an unlocked box and
other tools within the children’s reach. No food or formula could be found in the van
except for half a gallon of warm, spoiled milk as mother stated she was feeding N.B.
whole milk because she was getting her used to it. Mother purchased food as needed
because she had nowhere to store it. The van smelled of sulfur, dirt, marijuana and
cigarette smoke, rotting food and diapers. Despite the July heat, the van was not
equipped with any working air conditioner or fan.
Mother was arrested for assault on a child resulting in great bodily harm or death.
According to the arresting deputy, she appeared to be high on an illegal substance.
Mother admitted smoking crack cocaine with the children inside the van. Both Johnson
and mother reported a history of domestic violence in their relationship. I.B. and N.B.
were medically cleared and placed in protective custody. K.T., then eight years old, was
living with his paternal grandmother at the time of this incident. The agency left K.T.
under his grandmother’s care.
Section 300 Petition
On July 14, 2020, the agency filed a dependency petition, alleging mother and the
children’s fathers had failed to provide adequate food, clothing, and shelter for the
children and that mother’s substance abuse and domestic violence placed the children at
risk of suffering serious physical harm or illness. (§ 300, subds. (b) and (g).) The
petition further alleged that mother abused or neglected the children’s half siblings, the
4.
twins, placing the children currently in her custody at a substantial risk of similar abuse
and neglect. (§ 300, subd. (j).)
Detention Hearing
On July 15, 2020, the juvenile court held the detention hearing. Mother appeared
while in custody. She denied all allegations, but submitted as to detention. The court
found the children within the provisions of section 300, subdivisions (b), (g), and (j), and
set a combined jurisdictional/dispositional hearing for August 5, 2020. This hearing was
continued several times until January 26, 2021.
Jurisdiction/Disposition Reports and Hearing
The jurisdictional report recommended the juvenile court take jurisdiction over
K.T., I.B., and N.B. under section 300, subdivisions (b), (g), and (j). The report detailed
mother’s dependency history in California and North Carolina as follows:
In August 2011, K.T. tested positive for marijuana at birth.
In August 2012, social services received an allegation of neglect for K.T. The
referral stated mother smoked crack cocaine while K.T. was in her care and that she left
for extended periods of time to use crack cocaine without making proper arrangements
for his care. K.T. was removed from mother’s care and placed with his biological father.
Mother enrolled in parenting classes and entered an in-patient rehabilitation program.
In April 2017, mother’s twins tested positive for crack cocaine at birth.
Additionally, there was a substantiated allegation of domestic violence between mother
and the twins’ father. Mother agreed to participate in services.
In June 2017, social services received an allegation of neglect regarding the twins.
In addition, there were domestic violence and substance abuse concerns. Mother failed to
engage in services, which led to the termination of her parental rights in August 2019.
In April 2020, mother tested positive for marijuana and crack cocaine at N.B.’s
birth. Mother admitted using marijuana four times a week and crack cocaine two days
5.
prior to giving birth. A voluntary family maintenance case was opened, and she agreed
to enroll in a drug treatment program and submit to drug testing, which she complied
with.
K.T. was interviewed for the purpose of the jurisdiction report. He reported that
his mother had always smoked cigarettes and marijuana. However, she started
“ ‘drinking daily and smoking cocaine’ ” when she met Johnson. He knew about his
mother’s cocaine use because his grandmother told him, but he personally observed his
mother smoke marijuana and drink alcohol. He said his mother drank two or three beers
daily and would become “mean” and argue with Johnson. Mother and Johnson would
argue “ ‘all the time.’ ”
Mother was interviewed over the telephone while in custody. The social worker
reviewed the petition with her. Although mother admitted using crack cocaine in the
past, she denied ever doing so in the presence of the children. Mother claimed confusion
as to why she was arrested, charged, or in custody. She disagreed with the charges and
asserted she was “ ‘not guilty.’ ” Mother reported she had used cocaine, marijuana, and
alcohol in the past but did not believe her children had been affected by her drug use,
except for the twins whom she had already lost custody. She claimed sobriety from
2012-2017, while incarcerated, but started using again upon her release.
On November 3, 2020, the agency filed its disposition report recommending
mother be bypassed for reunification services pursuant to section 361.5, subdivision
(b)(11), and recommended striking the section 300, subdivision (g) allegation as mother
was no longer incarcerated. Mother reported that she would benefit from any services the
agency could offer because she did not “ ‘want to fall into old habits.’ ” When asked
what services he thought his mother would benefit from, K.T. stated, “ ‘Get rid of
[Johnson], buy a house. If she [took] a class, she would stop drinking 24/7.’ ”
6.
Attached to the disposition report was a copy of the North Carolina order
terminating mother’s parental rights to her twins. The order stated, “[t]he conditions
which led to the juveniles coming into custody include but are not limited to the domestic
violence between the parents in the presence of the juvenile; the parents’ violation of
their safety plan; the parents’ consumption of alcohol in presence of the juveniles; and the
parents’ substance abuse issues.” The order further noted that although mother was
offered services, she failed to correct the conditions that led to the twins’ removal.
Mother consistently tested positive for alcohol, marijuana, and crack cocaine from April
to July 2018.
At the jurisdictional/dispositional hearing on January 12, 2021, the agency
modified its previous recommendation to provide K.T.’s and N.B.’s fathers family
maintenance services and instead recommended that both children be returned to their
respective fathers’ care. Mother’s counsel requested a continuance in light of the
agency’s new recommendation and the court continued the hearing to January 14, 2021.
On January 13, 2021, the agency filed an addendum report. The report contained
the additional information that on November 4, 2020, mother left the residential program
Hope for Women, after she informed the house manager that she had broken the house
rules by using drugs and alcohol. A few weeks later, mother called the Child Welfare
Emergency hotline to report that K.T. (who had been previously removed from her
custody) was in her care and was in bad health. Deputy Ross of the Merced County
Sheriff’s Department met with mother and conducted a welfare check. Deputy Ross
reported that when she asked mother where K.T. was, mother pointed to her backpack
and began talking to it. Mother told the backpack to tell Deputy Ross what “the lady”
did. She asked the backpack not to be shy. She told Deputy Ross that K.T. could not
walk because “the lady sat on his legs.” One week later, mother submitted to a drug test.
7.
Her urine drug test was negative for drugs, but she refused to submit to a hair follicle test
because she did not want to cut her hair.
The juvenile court reset the contested jurisdictional/dispositional hearing for
January 26, 2021, and allowed the agency to place K.T. and N.B. with their fathers.
Contested Jurisdictional/Dispositional Hearing
At the contested jurisdictional/dispositional hearing mother submitted as to
jurisdiction, but contested the dispositional recommendation to bypass her for
reunification services.
Mother’s Testimony
Mother testified that she and K.T. moved to Laramie, Wyoming in October 2018,
to live with her sister and treat her drug problem. She was pregnant with I.B. and
dependency proceedings regarding her twins were ongoing in North Carolina. In August
2019, her parental rights were terminated as to her twins. Mother stated she was not
using drugs at the time and remained sober while living in Laramie. She maintained her
sobriety by going to church and attending parenting classes. She went to classes for five
months, until she gave birth to I.B. in March 2019. She also attended Narcotics
Anonymous meetings when she was able to, but did not go regularly due to the meetings
being held 25 minutes away from Laramie. Mother left Laramie approximately at the
end of July 2019, and moved to Stockton, California, to K.T.’s paternal grandmother’s
house. While living in Stockton, she became pregnant with N.B. and met Johnson.
In June 2020, mother moved to Merced with Johnson as K.T.’s grandmother was
moving to North Carolina. Mother took I.B. and N.B. with her, but K.T. stayed with his
grandmother. Initially, mother’s relationship with Johnson was good, but then “things
turned sour.” Johnson would run off with her money and disappear for days at a time.
Mother suspected he was using drugs. While in Merced, mother stayed at Johnson’s
niece’s house, but Johnson was not allowed to stay there because “they had bad history.”
8.
Mother stated she and Johnson argued a lot and he would throw things, but he never
struck her with anything. She denied breaking his windshield claiming it was Johnson
who broke it.
Mother recounted the incidents leading up to the children’s removal. She stated
that the night before the removal, she was at Johnson’s niece’s house while Johnson
stayed in the van in front of the house. She and Johnson began arguing because she
thought he had stolen her money. She claimed she spent the night inside the house and
the next morning she and the children got in the van with Johnson and went to the park.
When they got there, she began arguing with Johnson again. They left the park when he
became angry and went to a gas station to buy snacks for I.B. Mother asked the gas
station clerk to call the police because Johnson would not take her back to his niece’s
house. The police responded and performed a wellness check on the children and told
Johnson to take mother back to his niece’s house. However, he drove to the agency
instead where they continued arguing. Mother denied using crack cocaine the night
before the children’s removal. She said the last time she used crack cocaine was days
before N.B.’s birth, but admitted she had been consuming alcohol and smoking
marijuana. She denied smoking around the children or that there was physical violence
between her and Johnson.
Mother testified she pled guilty to child endangerment in exchange for probation
and was released on August 24, 2020. The day after her release, she was admitted to
Hope for Women. Mother began taking parenting classes on September 1, 2020. She
completed a 12-week ACE Overcomers parenting course and an eight-week Positive
Discipline parenting course. Mother stated she signed up for the classes on her own
initiative. She recognized that she had been a neglectful parent and said she learned
useful parenting skills in class. She also enrolled in online classes to pursue a bachelor’s
degree in business. On January 14, 2020, she started another parenting class called
9.
Nurturing Parenting. She was also scheduled to start a parenting course called Caring for
Children Who Have Experienced Trauma.
At the time of the contested hearing, mother was living in a transitional home
through Valley Crisis Center. She was scheduled to start a “ ‘truck driver plus forklift
certificate’ ” trade program and was enrolled in an alcohol or drug program. She
completed her drug and alcohol assessment in December 2020 and signed up for the
program in January 2021. Mother stated that none of the classes she enrolled in were
based on referrals from the agency. She said she was drug tested weekly through her
alcohol or drug classes and had tested negative every time.
Mother stated that if the court ordered reunification services, she would
participate. She believed reunification services would be beneficial to her and the
children. She said, “I’ll get a chance to—to get this right this time. I didn’t try with my
twins. Well, I began trying, but I gave up. I was just a terrible person at the time. And
I’m ready and willing and committed to changing for my children’s sake.”
On cross-examination, mother reiterated that the last time she used crack cocaine
was a few days before N.B.’s birth in April 2020, and the last time she used marijuana
and consumed alcohol was the day before the children’s removal in July 2020. Prior to
that, she had not used crack cocaine since approximately July 2017. She began using
crack cocaine when she was 21 years old. Mother stated she enrolled in the “alcohol or
drug program” because she was afraid of relapsing. She recognized that she used drugs
to cope with her problems. Additionally, she said she enrolled in domestic violence
classes after she read the agency’s report, stating that she had not addressed any of her
issues and because she wanted to know why she was getting into relationships that were
based on domestic violence. She acknowledged all of her relationships had domestic
violence, whether it was “punching, kicking, slapping, hitting[,] or arguing.”
10.
Regarding the twins, mother testified they were removed because she constantly
argued with their father and because they were born with crack cocaine in their system.
Deputy county counsel asked mother why she had consistently tested positive for
alcohol and illegal substances in April, May, and June of 2018. According to mother, she
said she was clean, but had used someone else’s urine for testing. She claimed she
needed to test positive in order to stay in the drug and counseling program she was in.
Ultimately, she left the program because it “wasn’t working for [her].” In July 2018, she
was scheduled to begin an in-patient treatment program, but decided not to go once she
realized she was pregnant with I.B.
Mother was required to complete 52 weeks of parenting classes as part of her
probation terms. Initially, she denied that the parenting classes she was enrolled in were
part of her probation terms, but ultimately agreed that they were. Counsel highlighted
that mother pled guilty on August 24, 2020, and started parenting classes on September 1,
2020.
When asked whether she was aware that the agency received information by the
Hope for Woman house manager that she broke the house rules by using drugs and
alcohol she said, “Yes. And I had to say that in order to get out of the program and not
feel—it was a lie.” According to mother, she wanted to get out of the program because
Hope for Women would not allow her to take her children there. She wanted to try to get
into a program where she could have her children with her. In regards to the hair follicle
test she refused in November 2020, she said she refused the test due to not knowing how
it worked and did not want to cut her hair as it took her hair a long time to grow.
Additionally, she said she called child protective services on November 16, 2020, when
K.T. said he was afraid of his foster parents. She denied speaking to her backpack,
claiming she was actually speaking to K.T. through her bluetooth earpiece.
11.
Social Worker’s Testimony
Social worker Veronica De La Cruz testified she was aware of K.T.’s complaint
regarding the foster parents and the children were removed from the foster parent’s home
out of an abundance of caution. There was an ongoing investigation related to the
incident.
Argument
Mother’s counsel argued that mother had been making reasonable efforts to
address the issues that caused the twins’ removal. He noted that after she was released
from jail, she immediately enrolled in classes and was able to articulate what she learned.
He argued it was in the children’s best interest to remain together. Minor’s counsel
concurred, arguing mother was taking responsibility and trying to improve her life. She
agreed it would be in the children’s best interest to provide mother reunification services.
Fathers’ counsels were also in agreement to provide mother with reunification services.
County counsel argued that mother’s efforts to treat her problems were not reasonable
and she was minimizing her drug use. She recommended bypassing mother for
reunification services.
Juvenile Court’s Findings
The juvenile court found that mother’s testimony was “littered with
inconsistencies” and did not find her testimony credible. It stated as follows:
“This case has, to say it mildly, a number of contradictions
throughout, and the Court took note and picked up on a variety of those
contradictions.
“Mother contends that the only two times that she’s used cocaine
was a few days before the birth of the youngest child in this case, and the
prior time before that was back in the North Carolina case, which I believe
it was back in 2017.
“Yet, the reports that I’ve taken judicial notice of indicate that not
only did Mr. Johnson, but mother herself admitted to authorities that she
12.
used crack cocaine. So there’s an issue with acknowledgement on that
issue alone, but it doesn’t stop there.
“There’s a plethora of issues and cases that simply don’t fit together.
And the Court looks for consistency because that’s how it judges the
credibility of a witness. Credibility is important because it’s trying to
ascertain the intent of the party and its efforts, which are critical in this
case.
“And as [mother’s counsel] quite aptly noted, reasonable efforts is
the key in this case. It centers around that. That is the central issue. [¶ ] …
[¶ ]
“The Court notes that the testimony regarding other substance abuse
issues in this case, including the twins, was problematic. [¶ ] … [¶ ]
“The fact that mother admits that she’s used someone else’s urine in
the—for the sole purpose to defraud another court is very concerning as
well. That’s enormous by itself. But it doesn’t stop there. And the list
keeps going on.
“As the Court went through this, I looked at the detention report.
(b)(5) deals with substance abuse, (b)(6) substance abuse, (b)( 7) domestic
violence. That’s the detention petition. The detention report itself on page
three, where Mr. Johnson admitted that they were doing crack cocaine the
night before, that mother had used the hammer against the vehicle and
smashed the window. He didn’t. He said she did.
“Deputy Ross there indicated mother admitted use, of doing crack
cocaine and with the kids and in the van, and that was from 11:00 p.m. to
5:00 a.m. from July 9th to July 10th, 2020. Mother, in her testimony today,
denies that it happened. Others got it wrong. Page five of that same report,
where mother admits domestic violence involving Mr. Johnson on multiple
occasions.
“And the reason I bring those up, for hopefully the apparent reason,
is both substance abuse and domestic violence are the issues that led to the
removal of the twins. [¶ ] So that’s what the Court has to look at it, and
look at the reasonableness of efforts to address those issues that were in the
North Carolina case.
“It looks to the disposition report filed November 3rd, 2020. Page
15, where it reiterates Mr. Johnson’s contention regarding the use of both of
13.
them using cocaine, mother’s domestic violence, that mother, when on
drugs, acts erratically. That was the word, erratically. And there was
various instances that were discussed throughout these reports of erratic
behavior by mother. [¶ ] … [¶ ]
“All of this taken together in the totality of this, the stream and the
common denominator here is mother has a persistent problem that
continues to be a problem. And then the question then begs itself, ‘Well,
are the efforts that she is proffering to the Court addressing this issue, are
those reasonable even though she has those issues?’ [¶] … [¶]
“Mother indicates that she did all of these activities addressing her
problems because those were her desire because she was scared of
relapsing, if I recall her testimony correctly, and she wanted to figure out
how to resolve them.
“Yet, the class that she took, she enrolled in that after she pled. And
that class fulfills a term and condition of her Felony Probation. It’s one
thing to say, ‘I voluntarily did something and I’m doing this because I’m
addressing the issue,’ it’s another because, ‘well, oh, I also have to do this
in a criminal case.’ And that’s present in this case. That class was enrolled
in after the plea, and that plea required a 52-week program, recalling
mother’s testimony.
“So when the Court looks at the totality of this and the testimony of
mother, first, it’s having a difficult time and finds that mother’s testimony
is not credible. [¶] … [¶]
“The Court in this case finds that there is clear and convincing
evidence that mother did not make reasonable efforts. I don’t find them
reasonable under the totality of the circumstances, and given her testimony
that is littered with inconsistencies throughout it. And it’s a shame.”
Accordingly, the juvenile court sustained the section 300, subdivisions (b) and (j)
allegations and dismissed the section 300, subdivision (g) allegation. The juvenile court
bypassed mother for reunification services and, as to K.T. and N.B., ordered family
maintenance services for their fathers and set a family maintenance review hearing for
June 14, 2021.
On February 1, 2021, mother filed a notice of appeal.
14.
DISCUSSION
I. Bypass of Reunification Services
Mother contends the juvenile court erred in bypassing her reunification services
pursuant to section 361.5, subdivision (b)(11), on the basis that she had not made
reasonable efforts to treat the problems that led to the removal of the children’s half
siblings, the twins. Specifically, she argues that there was no evidence establishing the
reasons that led to the removal of the twins and that, even if there was, there was
insufficient evidence to find that she had not made reasonable efforts to treat those
problems. We disagree.
A. Section 361.5, Subdivision (b)(11)
“As a general rule, when a child is removed from parental custody under the
dependency laws, the juvenile court is required to provide reunification services to ‘the
child and the child’s mother and statutorily presumed father.’ ” (Jennifer S. v. Superior
Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer S.), citing § 361.5, subd. (a).)
However, reunification services need not be provided when the court finds by clear and
convincing evidence “[t]hat the parental rights of a parent over any sibling or half sibling
of the child [have] been permanently severed … 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.” (§ 361.5, subd.
(b)(11).)
“In order to meet the burden to establish, by clear and convincing evidence, a lack
of reasonable efforts in this regard, child welfare workers must focus on the facts
underlying the previous dependency action and its resolution, as well as on any efforts
made by the parent since the sibling removal.” (Jennifer S., supra, 15 Cal.App.5th at p.
1126.) Moreover, “[t]he ‘reasonable effort to treat’ standard ‘is not synonymous with
“cure.” ’ ” (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393 (K.C.).) “A
15.
‘parent who has worked toward correcting his or her problems [has] an opportunity to
have that fact taken into consideration in subsequent proceedings.’ ” (Ibid.) “To be
reasonable, the parent’s efforts must be more than ‘lackadaisical or half-hearted.’ ”
(Ibid.) “Moreover, not every ‘effort by a parent, even if clearly genuine, to address the
problems leading to removal will constitute a reasonable effort and as such render these
provisions inapplicable. It is certainly appropriate for the juvenile court to consider
the duration, extent and context of the parent’s efforts, as well as any other factors
relating to the quality and quantity of those efforts, when evaluating the effort for
reasonableness. And while the degree of progress is not the focus of the inquiry, a
parent’s progress, or lack of progress, both in the short and long term, may be considered
to the extent it bears on the reasonableness of the effort made.’ ” (Jennifer S., supra, 15
Cal.App.5th at p. 1121.)
“A court reviews an order denying reunification services under section 361.5,
subdivision (b) for substantial evidence.” (Cheryl P. v. Superior Court (2006) 139
Cal.App.4th 87, 96 (Cheryl P.).) Substantial evidence exists when the evidence is
“reasonable in nature, credible, and of solid value,” so that “a reasonable mind would
accept [it] as adequate to support [the] conclusion.” (In re J.K. (2009) 174 Cal.App.4th
1426, 1433.) Under this standard of review, we consider the record as a whole, in the
light most favorable to the juvenile court’s findings and conclusions. (In re Tania S.
(1992) 5 Cal.App.4th 728, 733-734.) “[W]e do not make credibility determinations or
reweigh the evidence.” (Jennifer S., supra, 15 Cal.App.5th at p. 1122.)
B. Analysis
Mother contends there was no competent evidence establishing what the problems
were that led to the removal of her twins. The record reflects mother’s twins were
removed due to substance abuse and domestic violence issues. The North Carolina order
terminating mother’s parental rights as to her twins was attached to the agency’s
16.
disposition report. The order stated the twins were removed due to mother’s substance
abuse and domestic violence issues. The juvenile court took judicial notice of both the
disposition report and the findings contained in the North Carolina order under Evidence
Code section 452, subdivision (d). Under Evidence Code section 452, subdivision (d), a
court may take judicial notice of “[r]ecords of … any court of record of the United States
or of any state of the United States.” Moreover, “[a] social study prepared by the
petitioning agency, and hearsay evidence contained in it, is admissible and constitutes
competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be
based, to the extent allowed by subdivisions (c) and (d).” (§ 355, subd. (b).)
Additionally, mother provided statements to the investigating social workers and the
arresting deputy confirming that her parental rights to her twins were terminated due to
her substance abuse and domestic violence problems. She also testified at the contested
jurisdictional/dispositional hearing that the twins were removed because they were born
with crack cocaine in their system and because she constantly argued with their father.
Accordingly, we find there was sufficient evidence establishing that mother’s twins were
removed due to her substance abuse and domestic violence problems.
Next, we consider whether there was sufficient evidence to support the bypass of
reunification services for mother under section 361.5, subdivision (c)(11). Mother
correctly notes that “[t]he ‘reasonable effort to treat’ standard ‘is not synonymous with
“cure.” ’ ” (K.C., supra, 182 Cal.App.4th at p. 1393.) However, as previously noted, the
juvenile court may consider the “duration, extent and context of the parent’s efforts, as
well as any other factors relating to the quality and quantity of those efforts, when
evaluating the effort for reasonableness.” (Jennifer S., supra, 15 Cal.App.5th at p. 1121.)
In the present case, mother’s parental rights to her twins were terminated in August 2019
and N.B. was removed from mother’s care in July 2020. Thus, mother had 11 months to
address the problems that led to the twins’ removal. (Id. at p. 1126 [“child welfare
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workers must focus on the facts underlying the previous dependency action and its
resolution, as well as on any efforts made by the parent since the sibling removal”].)
At the time of N.B.’s removal, mother and Johnson reported a history of domestic
violence in their relationship. Johnson reported that the night before the children’s
removal, mother broke his cell phone and the van’s windshield with a hammer in I.B. and
N.B.’s presence after she accused him of stealing her “ ‘dope.’ ” Mother admitted she
smoked crack cocaine in the van in the children’s presence. Days earlier, they were
kicked out of a hotel because mother ran out of drugs and began acting erratically.
Additionally, a few months prior to the removal, mother tested positive for crack cocaine
and marijuana at N.B.’s birth. K.T. reported that ever since mother met Johnson she
drank every day and became “mean” and argued with Johnson.
Mother did not begin making an effort to treat her substance abuse and domestic
violence problems until after N.B. was removed. After she was released from jail, she
was immediately admitted to Hope for Women, but it was short-lived. Less than three
months later, mother relapsed and left the program. A few weeks later, she was acting
erratically again, speaking to a backpack and contending it was K.T. She also refused to
submit to a hair follicle test because she did not want to cut her hair, claiming it took her
hair a long time to grow. Although, mother enrolled in parenting classes in September
2020, she admitted the classes were a part of her probation terms in her criminal case for
child endangerment. Given mother’s continued substance abuse and domestic violence
after the removal of her twins, the juvenile court properly concluded that mother’s efforts
to treat the problems requiring the twins’ removal were not reasonable.
II. Section 361.5, Subdivision (c)(2)
Lastly, mother contends the juvenile court abused its discretion when it failed to
order reunification services under section 361.5, subdivision (c)(2). We disagree.
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Once the juvenile court determines that a parent falls under section 361.5,
subdivision (b)(11), it shall not order reunification services for that parent “unless the
court finds, by clear and convincing evidence, that reunification is in the best interest of
the child.” (§ 361.5, subd. (c)(2).) “The concept of a child’s best interest ‘is an elusive
guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to
develop into a stable, well-adjusted adult.’ ” (In re Ethan N. (2004) 122 Cal.App.4th
55).) “[P]recedent supplies certain relevant considerations when making a best interests
determination. For instance, ‘[t]o determine whether reunification is in the child’s best
interest, the court considers the parent’s current efforts, fitness, and history; the
seriousness of the problem that led to the dependency; the strength of the parent-child and
caretaker-child bonds; and the child’s need for stability and continuity.’ ” (Jennifer S.,
supra, 15 Cal.App.5th at p. 1124.) “It is the parent’s burden to prove that the minor
would benefit from the provision of court-ordered services.” (Ibid.) We review a
juvenile court’s best interest determination for abuse of discretion. (In re William B.
(2008) 163 Cal.App.4th 1220, 1229 (William B.).)
In this case, mother has been using crack cocaine since she was 21 years old. K.T.
and the twins tested positive for drugs at birth, and mother also admitted to using drugs
the week of N.B.’s birth. Mother has been offered services multiple times and has
repeatedly failed to overcome her substance abuse and domestic violence issues. She has
a history of using drugs in front of her children and has subjected her children to years of
domestic violence. Mother argues that the quality of parent-child love and relationships
shown during visitation support that reunification is in the children’s best interests;
however, “[t]he [children’s] bonds with the mother cannot be the sole basis for a best
interest finding.” (William B., supra, 163 Cal.App.4th at p. 1229.) Given mother’s long
history of substance abuse, her inability to stay away from relationships involving
domestic violence, N.B.’s young age, and her need for stability, we fail to find the
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juvenile court abused its discretion when it failed to order reunification services under
section 361.5, subdivision (c)(2).
DISPOSITION
The juvenile court’s order is affirmed.
SMITH, J.
WE CONCUR:
HILL, P.J.
DETJEN, J.
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