Christy C. v. Super. Ct. CA1/4 ( 2014 )

Filed 1/22/14 Christy C. v. Super. Ct. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CHRISTY C. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF MARIN A140037
COUNTY,
(Marin County Super. Ct.
Respondent; Nos. JV25777A & JV25778A)
MARIN COUNTY HEALTH & HUMAN
SERVICES DEPARTMENT et al.,
Real Parties in Interest.
In this consolidated writ proceeding, C.C. (mother) and T.S. (father) seek
extraordinary relief from the juvenile court order bypassing reunification services for
both parents and setting a permanency planning hearing for the couple’s twin children,
T.S. and T.S., Jr. (now age 18 months). Specifically, the parents argue that the juvenile
court erred by denying them reunification services pursuant to subdivision (b)(13) of
section 361.5 of the Welfare and Institutions Code1 based on their extensive histories of
substance abuse. We deny the consolidated petition.
1
All statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
1
I. BACKGROUND
Petitions in these juvenile dependency proceedings were filed by the Marin
County Department of Health and Human Services (the “Department”) on May 6, 2013,
after the police discovered the 10-month old minors, T.S. and T.S., Jr., in a hotel room
with their parents and two unrelated adults.2 Both parents were believed to be under the
influence of a controlled central nervous system stimulant, although father claimed not to
have used methamphetamine for the last four days and mother only admitted to taking
four “Norco” pills (a narcotic pain reliever). As a result of this police intervention, both
parents were arrested on charges of being under the influence of a controlled substance,
possession of paraphernalia used for unlawful injecting or smoking, and child
endangerment. In addition, father was charged with violation of probation.
Unfortunately, this arrest was not the beginning of the story with respect to these parents’
issues with substance abuse, child welfare intervention and the criminal justice system.
Rather, it was merely the latest chapter in a long and tragic history marked by chronic
drug and alcohol dependency, multiple arrests, and the repeated failure to provide a safe
and stable environment for their many children, all despite the almost constant
availability and provision of services.
By mother’s own report, she began experimenting with drugs and alcohol when
she was 12 years old. She spent her middle school years with an aunt in South
Carolina—who the family thought might better be able to control her—before returning
to California for high school. Mother dropped out of high school, however, when she
became pregnant with her first child, Marcos A., who was born in April 1998. Despite
the fact that Marcos’s father, Juan A., was “mentally abusive” to her and spent time with
other women, mother lived with him for several years. In February 2000, when Marcos
was not yet two, she left the toddler with a babysitter and disappeared. Mother called
nine days later, admitted to having been on a cocaine binge, and completed a three-day
2
Mother and father are not married, but father was granted presumed father status at the
May 9, 2013, detention hearing in these matters.
2
detox program. During this timeframe, she signed legal custody of Marcos over to Juan,
indicating that she needed to get into treatment.
In February 2001, mother gave birth to her second child with Juan, Tito A. She
then moved back to South Carolina where she became involved with a different man and
gave birth to her third child, Justice M. in 2002. According to mother, when she tried to
leave South Carolina, Justice’s father would not allow her to take the boy. She therefore
left Justice in his father’s care. In the end, mother’s aunt agreed to take guardianship
over the minor.
Upon her return to California, mother renewed her relationship with Juan A.,
giving birth to her fourth child, Christopher, in February 2004. While she was pregnant
with Christopher, mother entered the Center Point residential treatment program. She
reported completing six months of inpatient treatment and two months of outpatient
treatment before she was asked to leave the program for driving without a license.
Mother claims that she stayed with Juan A. during this period because he threatened to
kill her, pulled guns on her, and told her that—if she tried to leave—he would take the
children to Mexico. Eventually, Juan A. was deported to Mexico, where he is reportedly
incarcerated on murder charges.
Leaving Marcos, Tito, and Christopher in the care of their maternal grandmother,
mother then traveled back to South Carolina, hoping to reunite with Justice and his father
and find housing so that her whole family could live together. Unfortunately, things did
not go as planned. Instead, mother relapsed and was arrested in South Carolina on
September 15, 2005, for drug possession. On March 2, 2006, charges were again filed
against mother in South Carolina, this time for loitering to engage in drug activity. In
addition, mother met Ronald Y. and became pregnant with her fifth child, Jasmine.
Regrettably, mother used drugs and did not receive prenatal care while pregnant and, as a
result, Jasmine Y. was born medically fragile in July 2006, with mother testing positive
for cocaine and marijuana and the baby testing positive for cocaine. Of great concern
was the fact that, when Jasmine was born, mother reportedly waited over two hours
before contacting emergency services. Jasmine was placed in foster care and mother
3
received a six-month jail sentence for criminal child neglect. Ultimately, after mother
entered, but failed to complete, a treatment program, her parental rights were terminated
and Jasmine was adopted.
Mother was again arrested in South Carolina for drug possession in January 2007.
James T. helped mother financially and assisted her with her criminal charges. Soon, she
became pregnant again, this time with Jada T., her sixth child. Mother was incarcerated
for a probation violation when she gave birth to Jada in September 2007. Thus, Jada
lived with mother’s aunt for the first three months of her life until mother was released
from jail. Thereafter, mother and Jada spent one or two nights a week with James T. at
the motel where he was staying. Mother stated that they did not spend more time with
James because he was dealing drugs. Instead, mother became involved with David Y.
and conceived her seventh child, N. C. Initially, mother knew little about David, but later
she learned that he had served 20 years on a murder charge.
While she was pregnant with N., mother returned to Marin County and entered a
residential treatment program at Marin Services for Women (MSW). She completed the
program in June 2008 and gave birth to N. in December 2008. Mother reported that she
was able to stay clean and sober for approximately 11 months during this time frame, her
longest period of sobriety since she was 14 years old. While sober, she cared for Marcos,
Tito, Christopher, Jada, and N.
Then, on April 9, 2009, the Department received a referral indicating that mother
was using drugs again and that her ten-year old son, Marcos, had pulled a knife on
someone in an attempt to get all of the “strange” people that his mother had invited into
the house to leave. There were concerns that drug addicts and “ ‘crack heads’ ” were
coming in and out of the home where mother’s two baby girls resided and that mother
might not be able to protect her children due to her own drug use. On May 13, 2009,
while the Department’s investigation was pending, mother was taken by paramedics to
the Novato Community Hospital after she was found wandering the streets, agitated and
confused. Mother admitted that she has been on a two-day methamphetamine binge, and
she tested positive for methamphetamines, cocaine, and marijuana.
4
On that same date, the police received information that mother’s three youngest
children had been left without adequate supervision. Apparently, Marcos and Tito were
staying with paternal relatives. Mother claimed she had hired a male acquaintance to
watch Christopher, Jada, and N., but when Marcos stopped home to get some clothes
before school, the man left the children in the boy’s care. When the authorities arrived,
one-year old Jada was wearing an older brother’s dirty shirt and a diaper wet with urine.
Upon changing Jada’s diaper, the social worker discovered two nickel-sized sores above
her vaginal area. Four-month old N. also had a full diaper and was found face down on a
couch with part of her head wedged between the couch’s back and the seat cushions.
When mother arrived at the Department late the next day, she was under the influence of
a controlled substance and had many open sores on both of her upper arms. Mother later
told a social worker that she had relapsed about a month previously and that her drugs of
choice were crack cocaine, marijuana, alcohol, and methamphetamine.
As a result of mother’s relapse, arrangements were made to place Marcos, Tito,
and Christopher in guardianship with a paternal aunt. Juvenile dependency petitions
were filed with respect to Jada and N., alleging inadequate supervision of the minors due
to mother’s substance abuse. Thereafter, mother briefly entered residential treatment at
Center Point from June 29 to July 4, 2009, but left against the recommendation of her
treatment team after having a disagreement with treatment staff. Mother then entered the
MSW residential treatment program on July 30, 2009, and— after successfully
completing three months of inpatient treatment—Jada and N. were returned to her care.
Although mother agreed not to take the girls away from MSW and not to leave the
program against the advice of her treatment team, she did both less than a month later on
November 11, 2009, after being told that she needed to clean her room. As a
consequence, Jada, and N. were re-detained on a supplemental petition filed pursuant to
section 387.
Shortly after the supplemental petition was filed, however, mother made
arrangements to live with her mother until she was able to secure her own housing and
Jada and N. were returned to her care for a second time. Mother then re-entered Center
5
Point in January 2010 for six months of residential treatment. At her intake medical
exam, she discovered that she was pregnant with her eighth child, Ta. S. Ta. was born in
July 2010 and is a daughter of T.S., the father in these proceedings. Because she now
had three children in her care, mother was not eligible for transitional housing through
Center Point when she completed her six months of residential treatment. Instead, she
was referred to a 28-week Continuing Care Group with weekly meetings. Mother
attended briefly, but then reported dissatisfaction with the meetings because they
included men as well as women. She was therefore referred by the Department to
intensive individual therapy. By early 2011, however, the therapist indicated that she
would be “ ‘permanently terminating’ ” mother’s treatment because she consistently
missed her appointments without notice. In addition, although court-ordered through her
family maintenance plan to drug test, mother became non-compliant with drug testing
starting in October 2010, when she began either missing appointments or providing
diluted samples.
During this time period, mother was living with father and her children at the
Homeward Bound Emergency Family Shelter. Unfortunately, her volatile relationship
with father caused the family to be passed over for several more permanent housing
opportunities, and mother eventually had to move back in with the maternal grandmother
after using up her allotted time at the temporary shelter without finding a more stable
housing solution.
Then, on February 11, 2011, mother arranged to have a teenaged niece of father
watch her three children at a hotel. The maternal grandmother was having company and
did not want the minors in her home, and mother and father planned to go to a friend’s
house. After arguing with father while driving, father asked mother to get out of the car.
Once father went into the friend’s house, mother took the car and drove to San Francisco.
Her whereabouts were unknown until February 18 when she called her mother to retrieve
her. Father reported that she had abandoned her children, stolen his car, and gone “on a
drug run.” Mother admitted to the social worker that she could not recall where she had
been for at least three of the days that she was missing. As a result of this incident, N.
6
and Jada were detained and placed in foster care. Ta. was placed with her paternal
grandmother. Ultimately, parental rights were terminated, and Ta.’s paternal
grandmother adopted all three girls.3
In March 2011, the police found mother to have drug paraphernalia on her person
on two separate occasions. That same month, the paternal grandmother reported that
mother appeared for a visit with Ta. while under the influence of drugs. Although mother
had the opportunity to enter a number of residential treatment programs during this time
period (Center Point in April 2011, East Bay Community Center in May 2011, MSW in
October 2011, and La Casa Ujima in December 2011), she did not do so. Instead, mother
tested positive for cannabinoid in July 2011 and for amphetamines and marijuana in
August and December 2011. Moreover, her attempts at outpatient treatment were
hampered by repeated incarcerations on May 26, 2011, June 7, 2011, August 3, 2011, and
November 17, 2011.
In addition, throughout this period, mother and father continued to engage in
domestic violence. Indeed, from December 2010 through July 2011, law enforcement
officers had to intervene in incidents of domestic violence between the parents on at least
twelve different occasions. In August 2011, a three-year stay away order was put in
place against mother, and she was ordered to complete a year of family violence court. In
November 2011, mother was reportedly arrested after appearing at a church service that
father was attending with the paternal grandmother and the children and fighting with
father.
In February 2012, mother again attempted residential treatment, this time at
Walden House. She remained in residential treatment through the birth of the twins in
3
According to the record, mother's parental rights to N. and Jada were terminated on
March 14, 2013,when they were adopted by Ta.'s paternal grandmother. The record,
however, additionally states that “less than a year later” in September 2012 Ta. was also
adopted by the paternal grandmother after termination of parental rights. Obviously, one
of these dates is incorrect. From our review of the record it seems more likely that these
adoptions took place in 2012. However, for our purposes, what is important is the fact
that parental rights were terminated in all three cases.
7
July 2012 and reportedly successfully completed the inpatient program in December
2012. According to mother, her treatment team recommended transitional housing, but
she chose instead to go to a Sober Living Environment (SLE) on Treasure Island with
father.
Then, less than three months after she completed residential treatment, mother
failed to appear at a court hearing and there were concerns that she had relapsed. These
concerns turned out to be well-founded as on March 25, 2013, mother’s probation officer
reported that mother had been remanded into custody after appearing under the influence
at a court hearing. Mother entered residential treatment at La Casa Ujima the next day,
taking the minors with her. However, several days later, on April 1, 2013, mother was
asked to leave the program due to her cussing and threatening behavior toward staff.
Arrangements were made for mother to transfer with the minors to the Love a Child
Homeless Recovery shelter where she could participate in an outpatient program.
Mother, unfortunately, was unable to maintain in treatment. On April 4, 2013, she left
overnight with the minors without informing anyone of her whereabouts. When she
returned to the Love a Child program the next day, she tested positive for
methamphetamine and marijuana and then left the program permanently with father and
the twins.
A paternal aunt located the family three days later living in a broken down van.
According to her report, both parents had relapsed, the twins were not dressed
appropriately for the weather, and the parents did not have the clothing, food, or diapers
necessary to care for the minors. The aunt indicated that she was going to seek
temporary guardianship of the children because she was worried about their safety.
Subsequently, on May 6, 2013, as stated above, dependency petitions were filed with
respect to T.S. and T.S., Jr. after mother was arrested for being under the influence of a
controlled substance.
Though admittedly less extensive by comparison, father’s history with the
criminal justice system, substance abuse, and the Department cannot be minimized. Prior
to the April 2013 arrest that formed the basis of these proceedings, father had numerous
8
convictions—from the time that he was 18 years old—for crimes including grand theft
from a person, assault by force likely to produce great bodily injury, false imprisonment,
taking a vehicle without owner consent, felony battery with serious bodily injury, petty
theft, and driving without a license. Based on these convictions, he had been charged
with parole violations on at least 17 separate occasions and had been in and out of the
California Youth Authority, prison, and jail repeatedly for 15 years.
With respect to substance abuse, father stated in April 2011 (during Ta.’s
dependency proceeding), that he had previously attended the Center Point residential
treatment program for approximately five months. According to father, he entered the
program voluntarily after he was released from prison, but failed to complete the full six
months because he was kicked out for refusing to report rule breakers. Father also spent
two months in residential treatment at Turning Point from September to November 2009
as a condition of probation. He reports being kicked out of this program after being
caught in the bathroom having sex with mother. As a result, he was required to serve the
remainder of his jail sentence.
Thereafter, in July 2010, father was convicted for possession of a controlled
substance. In December 2010, the Department received a referral expressing concern that
father was using drugs. Further, as stated above, during the time period from December
2010 through July 2011, law enforcement officers had to intervene in incidents of
domestic violence between the parents at least twelve times. During one such altercation
in March 2011, mother reportedly yelled at father: “ ‘I’ll give you your pipe if you give
me my cell phone.’ ” A police report described the pipe as a “ ‘glass smoking pipe with
round bowl.’ ”
In addition, as discussed above, father’s fourth daughter, Ta. S. (born in July
2010), was adopted by her paternal grandmother after mother and father failed to reunify
with her. Ta.’s dependency action was filed on March 29, 2011, after father violated an
agreed-upon safety plan whereby Ta. would be cared for by her paternal grandmother and
father would not allow unsupervised contact by mother. In connection with this
dependency proceeding, father was ordered to participate in domestic violence
9
counseling, drug testing, substance abuse treatment, and parenting education. However,
father never followed through with completing the intake process for drug testing and
never provided any samples. Moreover, although he attended five weeks of a year-long
domestic violence group in May and June 2011, he thereafter ceased to participate.
Further, in August 2011, Ta.’s early intervention specialist reported that father showed up
“high” to visit the minor. Father was reportedly swaying, his eyes looked strange, and he
was holding Ta. so loosely that the specialist was concerned the minor might fall. In
December 2011, a relative reported that father was not safe to watch mother’s daughter,
N. C., due to his substance abuse issues. That same month, the social worker received a
report that father had vandalized the home where mother was staying, throwing rocks
through the window. Then, on December 21, 2011, father was incarcerated in the Marin
County jail on charges of assault, malicious mischief, vandalism, and fighting in a public
place. When the social worker visited father in jail in early 2012, he stated that the
assault charge was from a prior incident and that he was incarcerated because he got into
a fight “with a friend” at Marin General. Father denied vandalizing the home where
mother was staying and indicated that he would like to be released into residential
treatment. On February 29, 2012, father was convicted of felony battery.
Father began residential drug and alcohol treatment at Walden House in July 2012.
Mother was also admitted to Walden House during that time and gave birth to her twins,
T.S. and T.S., Jr. that same month. In March of 2013, father left Walden House and
moved with mother and the twins to a SLE on Treasure Island. According to father’s
probation officer, father’s case plan was to do a treatment program and remain sober.
Although father told his probation officer that he had completed the program at Walden
House, he never provided any proof that he had done so.
In a conversation with a social worker on March 26, 2013, father admitted that,
prior to getting sober, he used methamphetamines, alcohol, and weed. He claimed that he
had been clean at that point for over a year, from the time he was jailed in December
2011. However, the Department received a report in March 2013 that the parents had
recently appeared at the office of a former therapist stating that they were in crisis. The
10
couple were yelling at each other in front of the twins and could not be redirected.
Mother accused father of using alcohol and methamphetamine on the weekends. Father
accused mother of binging on drugs and leaving the children with an unknown party
while she prostituted herself. In addition, father’s probation officer reported that he
tested positive for methamphetamines on March 15, 2013. By April 2013, father had left
the SLE. Then, as set forth above, father was arrested with mother on April 27, 2013, for
being under the influence of a controlled substance, the twins were taken into protective
custody, and these dependency proceedings followed.
As a final matter, we note that father has a total of six children, none of whom
remain in his care. His first two daughters—Tay. S. (born in 2001) and Tav. S. (born in
2002)—reside with their respective mothers. A. A. is father’s third daughter (born in
2005) and lives with her maternal grandparents under a probate guardianship. As
previously discussed, father’s fourth daughter, Ta. (born in 2010), was adopted by her
paternal grandmother after mother and father failed to reunify. The twins that are the
subject of these proceedings (born in 2012) are father’s fifth and sixth children and
currently reside in foster care.
The twins were formally detained by the juvenile court at detention hearings on
May 8 and 9, 2013. Thereafter, a first amended petition was filed with respect to both
minors on June 12, 2013, and—after further revisions were made in open court—both
parents submitted to jurisdiction on July 8, 2013. On that same date, the juvenile court,
after appropriate inquiry and noticing, also determined that the Indian Child Welfare Act
(ICWA) did not apply to the proceedings. On July 12, 2013, a second amended petition
was filed memorializing the additional changes to the petition made at the jurisdictional
hearing.
In its dispositional report filed with the court on August 6 and 12, 2013, the
Department recommended that no reunification services be offered to either parent based
on their chronic substance abuse issues and resistance to treatment. At the contested
dispositional hearing on September 25, 2013, the social worker elaborated as follows
with respect to mother: “[I]t’s a history of attempting and failing to stay sober, regardless
11
of how long she stays in the program or whether she’s been successful with completing
the program. The result is a return to the drug use.” The social worker attributed this
repeated relapse to the fact that mother “has not been able to take the skills that she gains
in treatment and apply them to her life outside of treatment,” and opined that there are
“no supportive services that the Department could offer which would assist her in leading
a life that would be safe for her children.” With respect to father, the social worker
reported that his focus always seemed to be his relationship with mother rather than his
sobriety. She also noted his resistance to accepting available services and his continued
substance abuse issues, all of which operated to the detriment of his children. Neither
parent put on any evidence that reunification efforts would be in the best interests of the
children. (§ 361.5, subd. (c) [the juvenile court shall not order reunification services for a
parent described by subdivision (b)(13) “unless the court finds, by clear and convincing
evidence, that reunification is in the best interest of the child”].)
At the conclusion of the dispositional hearing on October 7, 2013, the juvenile
court found that both parents met the criteria for bypass of reunification pursuant to
subdivision (b)(13) of section 361.5 by clear and convincing evidence. With respect to
resistance to treatment, the court specifically opined: “The Court finds the pattern of
ongoing behavior developed over these past several years, including difficulties of
maintaining shelter for themselves as parents or themselves and their children, the
presence of verbal and physical domestic violence between the parents and its impact on .
. . their lives and the lives of their twins, the termination of each parent’s respective
parental rights regarding four of the children, the respective parents commencing and/or
completing various substance abuse treatment programs, yet remained unable to
effectively use the treatment tools outside of a program to achieve long-term sobriety and
remain free of drugs and alcohol, the resumption of substance abuse following treatment
programs demonstrates resistance to treatment.” Based on these findings, the juvenile
court adopted the Department’s recommendation that no reunification services be
provided and scheduled a permanency planning hearing for February 3, 2014. Mother
and father both filed timely notices of their intent to file writ petitions, and the petitions
12
themselves were filed on November 13, 2013. (Cal. Rules of Court, rules 8.450(e),
8.452.4)
II. BYPASS OF REUNIFICATION SERVICES
A. Statutory Framework and Standard of Review
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 . . . .” (§ 361.5, subd. (a).)
The purpose of reunification efforts is to “eliminate the conditions leading to loss of
custody and facilitate reunification of parent and child. This furthers the goal of
preservation of family, whenever possible.” (In re Baby Boy H. (1998) 63 Cal. App. 4th
470, 478 (Baby Boy H.).) However, in certain statutorily enumerated situations, the
Legislature has determined that such reunification efforts are likely to be fruitless and,
thus, “the general rule favoring reunification is replaced by a legislative assumption that
offering services would be an unwise use of governmental resources.” (Id.; see also
Renee J. v. Superior Court (2001) 26 Cal. 4th 735, 744, superseded by statute on another
ground as stated in Renee J. v. Superior Court (2002) 96 Cal. App. 4th 1450, 1457.)
The statutory sections authorizing denial of reunification services are sometimes
referred to as “bypass” provisions. (Melissa R. v. Superior Court (2012) 207 Cal. App. 4th
816, 821.) In the present case, the juvenile court denied reunification services to both
parents based on one such bypass provision, subdivision (b)(13) of section 361.5.
Pursuant to that subdivision, reunification services need not be provided if the court finds
by clear and convincing evidence that “the parent or guardian 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
4
All further rule references are to the California Rules of Court.
13
were available and accessible.” Once the juvenile court makes a finding bypassing
reunification, it “ ‘fast-tracks’ ” the dependent minor to permanency planning so that a
permanent out-of-home placement can be developed. (In re Rebecca H. (1991) 227
Cal. App. 3d 825, 838.)
We review an order denying reunification services under subdivision (b) of section
361.5 for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal. App. 4th 87,
96.) Under such circumstances, we do not make credibility determinations or reweigh
the evidence. (A.A. v. Superior Court (2012) 209 Cal. App. 4th 237, 242.) Rather, we
“review the entire record in the light most favorable to the trial court's findings to
determine if there is substantial evidence in the record to support those findings.” (Ibid.)
B. Substantial Evidence
Father argues that there is no substantial evidence supporting the juvenile court’s
finding under either prong of the analysis required by subdivision (b)(13) of section
361.5. Specifically, he asserts that the evidence was insufficient to support the necessary
finding that he had a “history of extensive, abusive, and chronic use of drugs or alcohol.”
In addition, he contends that the evidence does not support either a finding that he has
resisted prior court-ordered treatment during a three-year period immediately prior to the
filing of the petition, or a finding that he has failed or refused to comply with a program
of drug or alcohol treatment described in a section 358.1 case plan on at least two prior
occasions. We disagree.
The record reflects that, as early as 2009, father was ordered to attend the Turning
Point residential treatment program as a condition of probation. After two months, he
was terminated from the program for failing to follow program rules and was therefore
forced to serve the remainder of his jail sentence. Indeed, although the record does not
contain the actual dates, father also voluntarily attended five months of a six-month
residential treatment program at some point prior to participating in Turning Point. He
was also asked to leave this program before completion for failure to follow the rules.
Thus, it is clear that father has had issues with substance abuse for a significant period of
time.
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Further, despite these early attempts at treatment, father was arrested on a drug
offense in July 2010. In addition, the record contains evidence that he continued to use
drugs from December 2010 through December 2011. In fact, by his own admission,
father used methamphetamines, alcohol, and weed prior to his incarceration in December
2011. This continued drug usage is particularly troubling as, during this same time
period, he was involved in an active reunification plan with his daughter Ta. which was
designed to address his substance abuse issues. Due to his resistance to this court-
ordered treatment, his parental rights to Ta. were ultimately terminated.
Finally, father entered the Walden House residential treatment program in July
2012 as a condition of probation. Although father told his probation officer that he had
completed the program at Walden House, he never provided any proof that he had done
so. Tellingly, he resumed his drug usage immediately after leaving the program in March
2013, testing positive for methamphetamines on March 15 and suffering an arrest on
April 27, 2013, for, among other things, being under the influence and unlawful
possession of drug paraphernalia.
Although the social worker in this case admitted that she did not know the full
extent of father’s substance abuse history, we believe that the information of which she
was aware constitutes substantial evidence of father’s “extensive, abusive, and chronic
use of drugs or alcohol.” (See § 361.5, subd. (b)(13).) Moreover, we agree with the
juvenile court that father’s pattern of behavior in the several years prior to the filing of
the petitions in these matters—including his resumption of drug use following treatment,
the ongoing domestic violence between the parents, his difficulties maintaining shelter,
the termination of his parental rights with respect to Ta., and his inability to use treatment
tools outside of a program to achieve long-term sobriety—represents more than simple
relapse. Rather, it constitutes resistance to court-ordered treatment sufficient to support
bypass of reunification pursuant to subdivision (b)(13). (See In re Brooke C. (2005) 127
Cal. App. 4th 377, 382 [“[r]esistance to prior treatment for chronic use of drugs may be
shown where the parent has participated in a substance abuse treatment program but
continues to abuse illicit drugs”]; Randi R. v. Superior Court (1998) 64 Cal. App. 4th 67,
15
73 [failure to maintain “any kind of long-term sobriety” despite completion of
rehabilitation programs considered resistance to treatment] (Randi R.).)5 Thus, with
respect to father, bypass of reunification was proper.6
With respect to mother, the evidence supporting bypass of reunification in these
cases is overwhelming. By mother’s own admission, her history with drugs and alcohol
began when she was 12 years old. In 2000, mother had her first reported stay in detox
after a nine-day cocaine binge. In approximately 2004, mother completed six months of
residential treatment and two months of outpatient treatment at Center Point before being
asked to leave for a rule infraction. However, despite this drug treatment, between 2005
and 2007 mother was arrested three times on drug-related charges and gave birth to
Jasmine Y., who tested positive for drugs at birth. Ultimately, after mother entered, but
failed to complete, a treatment program, her parental rights were terminated and Jasmine
was adopted.
In 2008, mother successfully completed a residential treatment program through
MSW. However, by 2009, mother was again using drugs and was taken to the hospital
after she was found wandering the streets, agitated and confused. While being treated,
mother admitted that she had been on a two-day methamphetamine binge. Later that
5
For purposes of section 361.5 subdivision (b)(13), father was “court-ordered” to
substance abuse treatment on at least three separate occasions. First, in 2011, father was
ordered by the juvenile court to participate in appropriate substance abuse treatment in
connection with Ta.’s dependency proceedings. Second, father was ordered to Walden
House in July 2012 as a condition of probation. (See In re Brian M. (2000) 82
Cal. App. 4th 1398, 1402-1403 [failure to attend drug treatment required as a condition of
probation constitutes resistance to treatment]. Third, father was ordered to Turning Point
in 2009 as a condition of probation. The fact that this prior treatment did not occur
during the three years prior to the filing of the petitions in these matters is not fatal under
the statute, as only the resistance to treatment (through relapse or otherwise) must occur
during the three-year period. (See Laura B. v. Superior Court (1998) 68 Cal. App. 4th
776, 780.)
6
Since we conclude that substantial evidence supports bypass in this case based on
father’s resistance to prior court-ordered treatment, we need not reach his argument that
he has not been ordered to comply with a program of drug and alcohol treatment under a
section 358.1 case plan on at least two previous occasions.
16
year, mother attempted but failed to complete two separate residential treatment
programs, leaving both against the advice of treatment staff. In early 2010, mother did
successfully complete six months of residential treatment. By October of 2010, however,
she was non-compliant with court-ordered drug testing. And, in February 2011, she went
on a seven day “drug run,” an incident which led to the detention of two of her children
(N. and Jada), and ultimately to the termination of her parental rights with respect to both
girls.
Mother tested positive for drugs three times in 2011, was incarcerated four times,
appeared at a visit with Ta. while under the influence, and was cited twice by the police
for having drug paraphernalia on her person. Despite having the opportunity to enter at
least four different residential treatment programs during this time period, she failed to do
so. In addition, she engaged in repeated incidents of domestic violence with father.
Mother then successfully completed a residential treatment program at Walden
House, where she resided from February through December 2012. By March 2013,
however, she was again using drugs, appearing under the influence at a court hearing and
testing positive for methamphetamine and marijuana. Mother attempted two separate
drug treatment programs, but was unable to maintain in treatment. Then, in the incident
that formed the basis for these dependency proceedings, mother was arrested on April 27,
2013, for being under the influence and for unlawful possession of drug paraphernalia.
Mother’s social worker opined that mother’s substance abuse problem was “intractable”
and that there were “no supportive services that the Department could offer which would
assist her in leading a life that would be safe for her children.”
In sum, a vast amount of evidence supports the juvenile court’s conclusion that
mother’s use of drugs and alcohol has been “extensive, abusive, and chronic.” (See
§ 361.5, subd. (b)(13).) Moreover, as with father, mother’s pattern of behavior over the
three years prior to the filing of the petitions in these matters—her resumption of drug
use following treatment; the ongoing domestic violence between the parents; her
difficulties maintaining shelter; the termination of her parental rights with respect to Jada,
Naya, and Ta.; and her inability to use treatment tools outside of a program to achieve
17
long-term sobriety—clearly amounts to resistance to prior court-ordered treatment for
purposes of subdivision (b)(13).7 (See In re Brooke C., supra, 127 Cal.App.4th at p. 382;
Randi R., supra, 64 Cal.App.4th at p. 73.) Under such circumstances, bypass of mother’s
reunification services was warranted.8
Finally, we also find meritless mother’s argument that her due process rights were
somehow violated by the juvenile court’s dispositional findings in these cases. The
statutory structure permitting the bypass of reunification services under certain specified
circumstances is constitutional. (Baby Boy H., supra, 63 Cal. App. 4th 470, 475-478.) To
the extent mother argues that her due process rights were violated because the evidence
did not meet the required clear and convincing standard of proof, she is simply restating
the insufficiency of the evidence claim that we have previously rejected.
Nor do we find compelling her allegation that the dispositional report relied upon
by the juvenile court was so biased and unreliable that its admission evinced a lack of due
process. Contrary to mother’s assertion, there is no indication in the record that the social
worker acted unprofessionally or was somehow biased against her. Rather, the
dispositional report prepared by the social worker in these matters provided an exhaustive
history of mother’s long-term and intractable issues with substance abuse, including
7
Mother was court-ordered to stay free from illegal drugs, drug test, and attend aftercare
substance abuse treatment in connection with a family maintenance plan adopted in July
2010 in dependency proceedings for her daughters Jada and Naya. In a family
reunification plan ordered with respect to Jada and N. in February 2011, mother was
again ordered to participate in drug testing and substance abuse treatment. In addition,
mother was ordered to engage in substance abuse treatment in connection with Ta.’s
dependency proceeding filed in March 2011.
8
We note in passing that it appears both mother and father also meet the criteria for
bypass pursuant to subdivisions (b)(10) and (b)(11) of section 361.5 due to their
reunification services and parental rights being terminated with respect to Ta. Mother’s
reunification services and parental rights were also terminated with respect to Jada and
Naya. Given the record before us and the findings of the juvenile court with respect to
the parents’ resistance to treatment, it cannot seriously be argued that either parent has
made a “reasonable effort to treat the problems” that led to the removal of Jada, Naya,
and Ta. (See § 361.5, subds. (b)(10) & (b)(11).)
18
documentation of her periods of treatment and sobriety.9 The report also chronicled the
circumstances leading to her loss of custody of all eight of her previous children, both
within and outside of the child welfare system. Although it is true that the report did not
describe in detail mother’s most current attempt at residential treatment, this was due—
not to bias—but to the timing of the report’s preparation. The report did mention that
mother entered residential treatment on June 25, 2013, and that weekly visitation with the
twins took place at the program up to the time the report was issued. Under such
circumstances, we believe that the requirements for preparation of the dispositional
report were satisfied. (§ 358.1; Rule 5.690(a).) Moreover, the social worker was cross-
examined at length, and evidence of mother’s current efforts was presented at the
dispositional hearing through live testimony and other documentary submissions and was
therefore available to the juvenile court for consideration. There was no constitutional
error.
III. DISPOSITION
The consolidated petition is denied on the merits. (§ 366.26, subds. (l)(1)(C),
(l)(4)(B).) Because the permanency planning hearing in these matters is set for
February 3, 2014, this opinion is final as to this court immediately. (Rules 8.452(i),
8.490(b)(2)(A).)
9
Indeed, although mother argues otherwise, the dispositional report did indicate in
several places that she entered and successfully completed residential treatment in 2012,
and that the twins were born while she was engaged in this treatment program.
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_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
HUMES, J.
20