B.S. v. Super. Ct. CA5 ( 2013 )

Filed 12/18/13 B.S. v. Super. Ct. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
B.S.,
F068130
Petitioner,
(Super. Ct. No. 13CEJ30095)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Mary Dolas,
Commissioner.
Heather Ann Von Hagen, for Petitioner.
No appearance for Respondent.
Kevin Briggs, County Counsel, William G. Smith, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
* Before Levy, Acting P.J., Gomes, J. and Kane, J.
B.S. (father) seeks extraordinary writ relief (Cal. Rules of Court, rules 8.450-
8.452) from the juvenile court’s dispositional orders denying him reunification services
under Welfare and Institutions Code section 361.5, subdivision (b)(13)1 and setting a
section 366.26 hearing as to his four-year-old son, Brandon. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In April 2013, the Fresno County Department of Social Services (department)
removed then three-year-old Brandon from the custody of his mother after she was
arrested on various charges, including possession of a controlled substance and child
endangerment. Brandon was placed in foster care.
Father, then incarcerated, was identified as Brandon’s alleged father. Father was
facing charges for a postrelease community supervision violation stemming from an
arrest for possession of marijuana, driving under the influence and being under the
influence of a controlled substance.
The juvenile court adjudged Brandon a dependent child and set the dispositional
hearing for June 2013. The department recommended the juvenile court deny mother
reunification services under section 361.5, subdivision (b)(13) because of her chronic
substance abuse and father because, as an alleged father, he was not entitled to them.
(§ 361.5, subd. (a).)
In June 2013, father appeared in custody at the dispositional hearing and asked the
juvenile court to order paternity testing for him and to place Brandon with relatives. The
juvenile court granted his request for paternity testing and continued the hearing. At the
continued hearing, the juvenile court elevated father’s paternity status to presumed father,
ordered the department to assess him for placement and continued the matter.
In an addendum report, the department recommended the juvenile court deny
father reunification services under section 361.5, subdivision (b)(13) based on his drug-
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated
2
related arrests and convictions. Specifically, the department cited a 2003 conviction for
possession of a controlled substance. Father was ordered, as a condition of his probation,
to participate in a drug treatment program. According to father’s probation officer, he
was referred to Tower Recovery Center in December 2003, but did not complete the
program because he was arrested in late January 2004 for violating probation. In
addition, father was convicted of felony possession of controlled substances in 2011, and
sentenced to two years in prison. In January 2013, he was arrested for possession of
marijuana for sale, being under the influence of a controlled substance and driving under
the influence, and was facing a possible three-year prison sentence if convicted.
In August 2013, the juvenile court set a contested dispositional hearing and
ordered father and mother to appear.
In October 2013, the juvenile court convened the contested dispositional hearing.
Neither father nor mother appeared. Father’s attorney told the juvenile court father
refused to be transported from the county jail. Counsel presented their cases by
argument, after which the juvenile court denied father and mother reunification services
as recommended and set a section 366.26 hearing. This petition ensued.2
DISCUSSION
The juvenile court can deny a parent reunification services under section 361.5,
subdivision (b)(13) (the statute) if it finds by clear and convincing evidence that the
parent “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 ....”
We review the juvenile court’s denial of reunification services under the statute for
substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)
2 Mother did not file a writ petition.
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That is, we determine whether there is reasonable, credible evidence of solid value such
that a reasonable trier of fact could have made the challenged finding. (In re Brian M.
(2000) 82 Cal.App.4th 1398, 1401.) Under this standard, we view the evidence in a light
most favorable to the juvenile court’s ruling, indulging all legitimate and reasonable
inferences in its favor. (See In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Father contends the statute does not apply to him because there is no direct
evidence he used drugs and his drug-related arrests are insufficient to prove drug use. He
further contends there is no evidence he resisted treatment.
We conclude the juvenile court could reasonably infer from the evidence father’s
drug use was extensive and chronic and that he resisted treatment within the meaning of
the statute. Father was convicted in 2003, for felony possession of a controlled substance
and required to complete court-ordered drug treatment as a result. From that, the juvenile
court could infer that father was using drugs in 2003. The juvenile court could also infer
that his drug use was extensive and chronic because eight years later in 2011, he was
convicted of possessing a controlled substance and in 2013 he was arrested for being
under the influence.
Moreover, the juvenile court could reasonably infer father resisted drug treatment.
Resistance to treatment can be manifest in a variety of ways, including undergoing or
enrolling in drug treatment and then resuming drug use within three years prior to the
filing of the petition. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.)
Father argues there is no evidence he actually entered a drug treatment program in
2003. We disagree. The department reported the circumstances of father’s drug
treatment referral in specific terms. He was referred to Tower Recovery Center in
December 2003, but did not “complete” it because he was arrested in late January 2004.
From that the juvenile court could reasonably infer that father was participating in
treatment when he was arrested.
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Based on the foregoing, we conclude substantial evidence supports the juvenile
court’s order denying father reunification services under the statute.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.
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