In re C.S. CA1/2 ( 2013 )

Filed 10/28/13 In re C.S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re C.S., A Person Coming Under the
Juvenile Court Law.
ROSE W.,
Petitioner,
v.
THE SUPERIOR COURT OF CONTRA A139384
COSTA COUNTY,
(Contra Costa County
Petitioner; Super. Ct. No. J13-00509)
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICE BUREAU,
Real Party in Interest.
By this petition for an extraordinary writ (Cal. Rules of Court, rule 8.452)
petitioner Rose W., the mother of C.S., seeks to vacate the order of respondent Superior
Court of Contra Costa County setting a hearing to terminate her parental rights in
accordance with Welfare and Institutions code section 366.26. Petitioner‟s sole
contention is that the court‟s determination that reunification services would not be
provided to her is not supported by substantial evidence. We conclude this contention is
without merit, and deny the petition on its merits.
BACKGROUND
The record, viewed in conformity with In re Zeth S. (2003) 31 Cal.4th 396, shows
the following:
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C.S. was the subject of a petition filed by Real Party in Interest Contra Costa
County Children and Family Services Bureau (Bureau) in which petitioner was alleged to
have “a serious and chronic substance abuse problem that impairs her ability to
adequately care for and supervise the child,” which problem had already led to the
dependency of another child. (The same allegations were made against the presumed
father, who is not a party to this proceeding.) C.S. was less than a year old when she was
removed from petitioner‟s custody and detained. She was placed in foster care with her
siblings, who had already been adjudged dependent children.
Two weeks later, at the jurisdictional hearing conducted on May 13, 2013,
petitioner submitted on the petition. After taking judicial notice of the files of C.S.‟s
siblings, the court sustained all allegations of the petition.
The dispositional hearing was held on July 18 and 23, 2013, simultaneously with
the 18-month review of the siblings‟ dependencies. The court received in evidence the
disposition report prepared by the Bureau‟s caseworker. In that report, the caseworker
advised the court that C.S.‟s parents “began using substances at an early age so
consequently they have a long history of methamphetamine and other substance abuse,
both individually and together and have engaged in domestic violence . . . when they
were using.” In April (when C.S. was detained), the parents “relapsed after eighteen
months of [reunification] services” and tested positive for methamphetamine use.
The caseworker described petitioner as “a loving mother” who has “insight” into
her substance abuse problem However, petitioner had already completed three residential
treatment programs, was “unable to maintain sobriety,” and had “not sufficiently
addressed [her] serious and chronic substance abuse that places [her] children at risk.”
Although the parents “have been provided services for this problem since December 29,
2011, they have failed to reunify with [C.S.‟s] siblings and continue to use illicit drugs.”
For this reason, the caseworker recommended that “Family Reunification Services be
denied to the parents . . . pursuant to Welfare and Institutions Code 361.5(b)(10) so that a
permanent plan can be made for the child[ren].”
2
The court heard testimony from the parents and the caseworker. Much of that
testimony is not germane to the sole issue here, and thus need not be summarized. What
is relevant to that issue is that petitioner testified that a week earlier she began another
residential treatment program. Petitioner admitted that after she sent a letter to the court
in June asking for “more time . . . to prove to you that I‟m worthy of my beautiful
children,” she continued using drugs. The caseworker testified that petitioner was
“non-compliant” with the case plan to reunify with C.S.‟s siblings.
After hearing argument, and setting termination hearings for the siblings, the court
stated its decision as follows: “With respect to [C.S], I am also going to follow the
recommendation in this case, given what the siblings have been through and how long
they have waited and the fact that the parents, quite frankly in the Court‟s mind, are right
back to where they began, they‟ve made absolutely no progress along the way here . . .
absolutely no progress whatsoever. I find that it would be clearly detrimental to make
[C.S.] wait as her siblings waited. [¶] Rather, I think it most appropriate to set her matter
for a .26 hearing, to bypass services so that she too may find permanence in her life.”
REVIEW
“Typically, when a dependent child is removed from his or her parent‟s custody,
the juvenile court orders that services be provided to the family in order to facilitate its
reunification. (Welf. & Inst. Code, § 361.5, subd. (a); In re Baby Boy H. (1998)
63 Cal.App.4th 470, 478.) However, reunification services need not be offered under
certain circumstances specified by statute. (Renee J. v. Superior Court (2001) 26 Cal.4th
735, 739.) Reunification services need not be provided to a parent if the juvenile court
finds by clear and convincing evidence that (1) a juvenile court ordered termination of
reunification services for a sibling; (2) termination was ordered because that parent failed
to reunify with the sibling; (3) the sibling had been removed from that parent‟s custody
pursuant to section 361; and (4) that parent has not subsequently made a reasonable effort
to treat the problems that led to sibling‟s removal from that parent. (Welf. & Inst. Code,
§ 361.5, subd. (b)(10).)” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 194.)
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“ „The exception at issue here, section 361.5, subdivision (b)(10), recognizes the
problem of recidivism by the parent despite reunification efforts. Before this subdivision
applies, the parent must have had at least one chance to reunify with a different child
through the aid of governmental resources and fail to do so. Experience has shown that
with certain parents, as is the case here, the risk of recidivism is a very real concern.
Therefore, when another child of that same parent is adjudged a dependent child, it is not
unreasonable to assume reunification efforts will be unsuccessful. Further, the court may
still order reunification services be provided if the court finds, by clear and convincing
evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).)‟ ”
(Renee J. v. Superior Court, supra, 26 Cal.4th 735, 744-745, quoting In re Baby Boy H.,
supra, 63 Cal.App.4th 470, 478.)
The trial court‟s determination can be overturned only if it is not supported by
substantial evidence. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) “The issue
of the sufficiency of the evidence in dependency cases is governed by the same rules that
apply to all appeals. If, on the entire record, there is substantial evidence to support the
findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on
the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the
weight of the evidence. Rather, we draw all reasonable inferences in support of the
findings, view the record most favorably to the juvenile court‟s order, and affirm the
order even if other evidence supports a contrary conclusion. [Citation.] The appellant
has the burden of showing the finding or order is not supported by substantial evidence.
[Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Petitioner‟s argument is based on her testimony at the hearing, and an earlier
report by the caseworker. Petitioner asserts: “In the instant case, it is uncontroverted that
the mother made significant efforts to address the problem that led to removal of the two
older siblings . . . . Specifically, in a report signed by the caseworker, Simone Brooks, on
February 22, 2013, and entered into evidence, Ms. Brooks states that the mother has
successfully completed her ninety-day program, and is attending the Ujima Central
Mother‟s Outpatient Program five (5) days a week, as well as attending twelve-step
4
meetings. Ms. Brooks states that the mother has been testing clean/negative on a random
basis, is compliant with her case plan, and demonstrates a commitment to leading a sober
life.”
This reasoning is misplaced because Ms. Brooks had clearly changed her mind by
the time of the hearing five months after she wrote the cited report, when she testified
that petitioner was not in compliance with her case plan. Her recommendation to bypass
services and proceed to the termination hearing is entirely incompatible with a belief that
petitioner was making progress in conquering her substance abuse problem. That
recommendation was in the disposition report, which was admitted in evidence and thus
by itself constitutes substantial evidence. (Welf. & Inst. Code, §§ 358, subd. (b), 706;
In re T. C. (2009) 173 Cal.App.4th 837, 848.) What occurred in the five months after
February, most obviously the initiation of C.S.‟s dependency, furnished the court a
completely different opinion of petitioner‟s efforts, or lack thereof. Just one instance was
petitioner admitting that she was still using drugs in June. A parent‟s drug consumption
“cannot be considered a simple relapse; rather, it was a resumption of drug use
demonstrating resistance to treatment.” (In re William B. (2008) 163 Cal.App.4th 1220,
1230.) As for petitioner‟s credibility, the court clearly did not rate it highly, and that
estimation cannot be challenged here. (In re Megan S., supra, 104 Cal.App.4th 247,
251.)
After reviewing the record, we conclude there is more than ample substantial
evidence to support the court‟s determinations that petitioner had not made reasonable
efforts to treat the problems that led to her children‟s removal (Welf. & Inst. Code,
§ 361.5, subd. (b)(10)), that further reunification services would be just as unsuccessful
as the 18 months of services already provided, and that reunification was no longer in
C.S.‟s best interest. (Renee J. v. Superior Court, supra, 26 Cal.4th 735, 744-745.)
DISPOSITION
The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1).) This
decision is final as to this court forthwith. (Id., rule 8.490(b)(1).)
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Brick, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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