In re E.M. CA1/5 ( 2020 )

Filed 12/15/20 In re E.M. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re E.M., a Person Coming Under
the Juvenile Court Law.
C.H. A161081
Petitioner,
v.
(Contra Costa County
THE SUPERIOR COURT OF
Super. Ct. No. J20-00332)
CONTRA COSTA COUNTY,
Respondent,
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
After testing positive for methamphetamines and amphetamines
at birth, E.M. (the child) was removed from C.H. (mother). Mother
challenges the juvenile court’s order denying her family reunification
services and setting a permanency planning hearing. (See Welf. & Inst.
Code, § 361.5, subd. (b); id., § 366.26.)1 Because we conclude mother’s
challenge lacks merit, we deny her writ petition.
Undesignated statutory references are to the Welfare and
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Institutions Code.
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BACKGROUND
A.
Generally, when a child is removed from a parent’s custody, the
juvenile court must order the provision of services to facilitate family
reunification. (See § 361.5, subd. (a)(1); D.F. v. Superior Court (2015)
242 Cal.App.4th 664, 669 (D.F.).) However, in certain circumstances,
family reunification services may be fruitless. (See § 361.5, subd. (b);
D.F., supra, 242 Cal.App.4th at p. 669.) As relevant here, section 361.5,
subdivision (b)(10), provides that reunification services need not be
provided if, in the case of a sibling, the court previously terminated
reunification services because the parent failed to reunify with the
sibling, and the court finds that the parent “has not subsequently made
a reasonable effort to treat the problems that led to removal of the
sibling.” Under section 361.5, subdivision (b)(11), reunification services
need not be provided if the parental rights of the parent with respect to
a sibling have been terminated, and the court finds that “this parent
has not subsequently made a reasonable effort to treat the problems
that led to removal of the sibling.” Finally, reunification services are
unnecessary under section 361.5, subdivision (b)(13), if the court finds
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 . . . on at least
two prior occasions, even though the programs identified were available
and accessible.” To conclude that any of these exceptions are
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applicable, the court must make its findings by clear and convincing
evidence. (§ 361.5, subd. (b).)
B.
In May 2020, the Contra Costa County Children & Family
Services Bureau filed a juvenile dependency petition alleging that
mother’s long-standing substance abuse placed the child at risk of
serious harm and neglect (§ 300, subd. (b)(1)). The petition also alleged
that there was a substantial risk that the child would be abused or
neglected because in a dependency case involving the child’s siblings,
mother failed to comply with her court-ordered case plan to address her
substance abuse, and the court terminated reunification services as to
the siblings in December 2019 (§ 300, subd. (j)).
At a hearing in October 2020, after sustaining the petition, the
juvenile court denied mother reunification services based on her failure
to reunify in the siblings’ case (§ 361.5, subd. (b)(10)), the termination
of parental rights in the siblings’ case (§ 361.5, subd. (b)(11)), and her
history of substance abuse (§ 361.5, subd. (b)(13)). The court set a
permanency planning hearing under section 366.26 for January 21,
2021.
DISCUSSION
Reviewing its findings for substantial evidence (see D.F., supra,
242 Cal.App.4th at p. 669), we find no error in the juvenile court’s
denial of reunification services.
As an initial matter, mother does not dispute the applicability of
section 361.5, subdivision (b)(13). She acknowledges that she has a
history of drug addiction spanning approximately 15 years, and that
she dropped out of a drug treatment program in 2019. Mother failed to
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comply with a court-ordered substance abuse treatment plan in the
siblings’ case.
Further, with respect to section 361.5, subdivision (b)(10), mother
does not dispute that the court previously terminated reunification
services in the siblings’ case. Mother and one sibling tested positive for
methamphetamines at the sibling’s birth in April 2019, and before that
mother tested positive for methamphetamines, amphetamines, and
marijuana during prenatal drug tests. The court terminated services in
December 2019 because mother failed to comply with the case plan.
Mother asserts that the court erred in concluding that she failed
to make reasonable efforts to address the problems that led to the
removal of the child’s siblings from her care. However, substantial
evidence supports the court’s conclusion. After the court terminated
services in December 2019, and while she was pregnant with the child,
mother tested positive for amphetamines, cannabinoid, and/or cocaine
on five separate occasions from March through May 2020, including the
day she was admitted to the hospital to give birth to the child. As
noted, the child tested positive for methamphetamines and
amphetamines at birth. Mother failed to attend 11 drug testing
appointments from June through September 2020. In July 2020,
mother admitted that she was still using marijuana. Although mother
subsequently began participating in an outpatient substance abuse
treatment program, her participation was inconsistent.
Mother argues that in determining whether she made reasonable
efforts, the court should consider that services for the siblings were
terminated less than a year before the disposition hearing in this case.
However, ten months is sufficient to make some reasonable efforts, and
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mother submitted no evidence and points to no efforts she believes
should be considered reasonable given the time frame.
Instead, mother argues that because she has “a lot of insight into
the issues that have led to the problems in her life,” the court should
exercise discretion to provide reunification services. Without
minimizing the importance of such insight, section 361.5, subdivision
(b)(10) requires more than insight. It requires that the parent “ma[k]e
a reasonable effort.” (See § 361.5, subd. (b)(10).) The juvenile court
correctly concluded pursuant to section 361.5, subdivision (b)(10), that
mother has failed to do so here.2
Moreover, once section 361.5, subdivisions (b)(10) and (b)(13)
apply, the court lacks discretion to order reunification services unless
“the court finds, by clear and convincing evidence, that reunification is
in the best interest of the child.” (§ 361.5, subd. (c)(2).) Mother failed
even to argue, let alone establish, that reunification is in the best
interest of the child.
Even had she preserved the argument, there is no question
mother would have been unable to meet this standard. Mother did have
successful supervised visits with the child, and the juvenile court found
that she “has demonstrated some real maturity” by “putting [the
child’s] interests first,” in that she was “careful not to bond with [the
child] too much” given the likelihood that reunification services would
be denied. Even so, mother had an unstable living situation, missed
four of her weekly visits with the child reportedly due to health issues,
2 Because we conclude the trial court properly denied
reunification services pursuant to section 361.5, subdivisions (b)(10)
and (b)(13), we need not resolve mother’s challenge to the trial court’s
findings under section 361.5, subdivision (b)(11).
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repeatedly failed to return the social worker’s telephone calls, and
missed the child and family team meeting. Despite acknowledging her
need for individual therapy to address the childhood trauma she
experienced and receiving repeated referrals for such therapy, by
September 2020 she still had not enrolled in therapy. She also refused
domestic violence services despite reporting that she feared the child’s
alleged father. Moreover, as her counsel acknowledged at the hearing,
and as detailed above, mother continued to struggle with “significant
substance abuse issues.”
DISPOSITION
Mother’s petition for an extraordinary writ and request for a stay
of the January 21, 2021 hearing are denied. This opinion is final in this
court on filing. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
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_________________________
Burns, J.
WE CONCUR:
_________________________
Simons, Acting P.J.
_________________________
Needham, J.
(A161081)
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