In re Jayden M. ( 2023 )

Filed 7/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JAYDEN M., a Person B321967
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20LJJP00040D)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOHANNA R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Ser, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
******
When a child is removed from a parent in a juvenile
dependency case, the court is required to order reunification
services for the parent unless one of several statutory exceptions
allowing for “bypass” applies. (Welf. & Inst. Code, § 361.5, subds.
(a) & (b).)1 As pertinent here, a juvenile court may bypass
reunification services when (1) a juvenile court has previously
terminated reunification or parental rights over a sibling or half
sibling to the child in the current case, and (2) the parent has not
subsequently made a “reasonable effort” to treat the problems
that led to that previous termination of services or parental
rights. (Id., subds. (b)(10)(A) & (b)(11)(A).) But what is the
appropriate starting point in time from which to gauge the
reasonableness of the parent’s effort? Is a court only to look to
the parent’s effort since the filing of the instant case, or may it
look to the parent’s effort (or lack thereof) since the sibling or half
sibling was initially removed from the parent in the prior case
where reunification services or parental rights were terminated?
We hold that it is the latter. Applying this rule, the juvenile
court properly examined the mother’s minimal effort to address
her drug addiction in the 20 years since a half sibling was
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
removed from her custody and reunification services were also
terminated (rather than focusing solely on the mother’s less
inconsistent effort in the four months since this case was filed).
We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Mother struggles with drug addiction since
2001, and loses custody of several of her children
Johanna R. (mother) has seven children by several different
fathers: Cynthia R. (born 1997), Damion R. (born 2001), Brianna
R. (born 2003), Francisco R. (born 2004), Gael V. (birthdate
unknown), Emma R. (born 2020), and—the child at issue in this
case—Jayden M. (born 2021).
Prior to Jayden’s birth, the juvenile court had exerted
dependency jurisdiction over all but one of Jayden’s six half
siblings.2
Since the 2001 juvenile dependency case involving then-
infant Damion, mother’s drug use has been the underlying cause
of the juvenile court’s exertion of dependency jurisdiction over her
children. Specifically, Damion was born with cocaine in his
bloodstream in 2001; both mother and Brianna tested positive for
cocaine when Brianna was born in 2003; and both mother and
Emma tested positive for illegal narcotics when Emma was born
in 2020—Emma, for amphetamine, and mother, for both
amphetamine and opiates.
None of these cases ended with mother reuniting with the
child. The juvenile court in Damion’s case granted mother
2 Gael was the subject of an investigation, but was
apparently released to his father’s care before any juvenile
dependency petition was filed.
3
reunification services, but ultimately terminated those services
as well as mother’s parental rights over Damion. The juvenile
court in Brianna’s case terminated its jurisdiction by placing
Brianna back in mother’s custody, but three weeks later, mother
“gave [Brianna] back” to the caregiver who had custody of
Brianna during the years that case was open. The juvenile court
in Emma’s case also exerted dependency jurisdiction over then-
16-year-old Francisco, but bypassed reunification services for
both children and eventually terminated mother’s parental rights
over Emma (Francisco was placed in a legal guardianship). As of
2023, mother did not have custody over any of her children.3
During the two decades between 2001 and 2021, mother
admitted to long periods of repeated use of illegal narcotics, and
made only sporadic effort to address her drug addiction. Mother
attended a drug rehabilitation program in 2003 as well as
attended Narcotics Anonymous meetings and a class at an
outpatient treatment center in 2020, but repeatedly relapsed into
drug use and failed to comply with juvenile court orders to
undergo drug treatment and participate in drug testing.
B. Jayden is born
In late 2020, mother became pregnant by Ramon F.
(father), a 17-year-old working as a security guard for the liquor
store mother regularly frequented. While pregnant, mother
continued to use amphetamines, methamphetamines, and heroin.
3 Cynthia remained a dependent until she reached the age of
21 in 2018. Brianna’s caregiver continued to care for Brianna
since 2005 and was granted custody of Brianna in 2012; as of
2023, that caregiver was also caring for Emma and Jayden. Gael
was apparently released to his father’s care. And, as noted
above, maternal grandmother became Francisco’s legal guardian
in 2021.
4
Mother gave social workers various reasons for why she relapsed
into drug use while pregnant and claimed that she was taking
Suboxone to help her stay off heroin, but both she and Jayden
had opiates in their blood at the time of Jayden’s birth in
November 2021 and testing of Jayden’s umbilical cord indicated
he had also been exposed to morphine and amphetamines in
utero. Jayden began suffering from withdrawal symptoms and
was taken to the Neonatal Intensive Care Unit, where he
remained for five weeks. Father was incarcerated in a juvenile
detention center at the time Jayden was born and not released
until Jayden was four months old.
II. Procedural Background
A. A petition is filed to declare Jayden a dependent
On November 19, 2021, the Los Angeles County
Department of Children and Family Services (the Department)
filed a petition asking the juvenile court to exert jurisdiction over
Jayden on two grounds: (1) mother’s drug use “endangere[d]”
Jayden’s “physical health and safety” and “place[d]” him “at
serious risk of serious physical harm and damage,” as evidenced
by his positive toxicology screen at birth and mother’s “extensive
history” of drug abuse, which “render[ed]” her “incapable of
providing regular care and supervision” (rendering jurisdiction
appropriate under subdivision (b) of section 300); and (2) five of
Jayden’s older half siblings were or had been dependents of the
juvenile court due to mother’s substance abuse (rendering
jurisdiction appropriate under subdivision (j) of section 300).4
4 The petition also alleged that jurisdiction was proper under
subdivision (b) of section 300 due to father’s abuse of marijuana,
and jurisdiction was sustained on this basis, but father has not
appealed.
5
The petition further noted that the Department “may seek” an
order that no reunification services be provided, under
subdivision (b) of section 361.5.
B. Mother makes intermittent effort to address her
drug problem
In mid-December 2021, mother applied to participate in an
outpatient drug treatment program. When applying, mother
admitted to using heroin “about 15 days out of the last 30 days,”
and a drug test on December 20, 2021 confirmed heroin use.
Mother began the three-month outpatient program in late
December 2021. For the first two months, mother’s participation
was unsatisfactory. In January, mother’s treatment counselor
reported that mother was “not complying with the program”
during its first two weeks; mother had arrived late for group
sessions and would leave at the halfway mark; and mother had
not started her drug testing. In February, mother was not
participating appropriately in group sessions and was instead
just “going through the motions,” was not following the program’s
rules, was “exhausting” the counselors with a barrage of
“excuses” and finger-pointing, and was endangering or
distracting other attendees; mother was on the verge of being
dropped from the program—or, at a minimum, denied permission
to proceed to “phase two” of the program—because the counselors
had “exhausted all their efforts” in trying to get mother to attend
group sessions, follow the rules, and “keep the group a safe
environment for the other attendees.” The treatment center
ultimately allowed mother to continue to phase two because that
phase involved fewer and shorter sessions, so mother would place
less of a burden on the staff. In “the last few weeks” of the
program in March, mother’s “attendance and participation”
6
improved dramatically and she “ma[de] great strides in staying
committed to long term recovery.” Mother completed the
program on April 4, 2022, with all negative drug tests from mid-
January 2022 until her date of completion.
Mother had also attended six parenting classes by that
time.
C. Jurisdictional hearing
On April 1, 2022, the juvenile court held the jurisdictional
hearing, where it sustained all allegations against mother in the
Department’s petition.
D. Dispositional hearing
On May 2, 2022, the juvenile court held the dispositional
hearing.
The court removed Jayden from mother’s custody and also
bypassed reunification services under subdivisions (b)(10) and
(b)(11) of section 361.5.5 More specifically, the court found by
clear and convincing evidence that bypass was proper under
these provisions because (1) mother’s reunification services or
parental rights for Jayden’s older half siblings had been
terminated, and (2) mother’s most recent four months of effort to
address her drug addiction—while “commend[able]”—did not
eliminate the court’s “concern[s]” in light of her 20-year history of
drug abuse problems and prior dependency cases. The court also
found that bypassing those services was in Jayden’s best interest.
5 The Department had also argued that bypass was
appropriate under subsection (b)(13) of section 361.5, but the
record is conflicting as to whether the court bypassed
reunification services under that provision. Because we conclude
that bypass was appropriate under subsections (b)(10) and
(b)(11), we need not decide whether bypass would have also been
proper under subsection (b)(13) of section 361.5.
7
Because the court was granting father six months of reunification
services, however, the court told mother that if she showed
“consistent consecutive clean tests” and “consistent visitation” by
the next court date, such efforts “would be a good indicator” of
mother’s commitment to her sobriety, and thus may warrant
revisiting its order bypassing reunification services under section
388.
E. Appeal
Mother filed this timely appeal.
DISCUSSION
Mother’s chief argument on appeal is that the juvenile
court’s order bypassing reunification services was not supported
by the record.6
6 Mother also argues that the juvenile court erred by not
making “specific finding[s]” regarding “why [her] efforts to treat”
her drug addiction “were not reasonable,” although in her reply
brief she asserts that she was merely noting the lack of
explanation rather than seeking reversal on that basis. In any
event, this argument lacks merit because specific findings are not
required absent a statute so requiring (Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1273; cf. Yamada Brothers v.
Agricultural Labor Relations Bd. (1979) 99 Cal.App.3d 112, 123
[when statute “mandates a specific finding,” “failure to make
such a finding renders” the decision “fatally defective”]; In re J.S.
(2011) 196 Cal.App.4th 1069, 1078 [same]), and subdivision (b) of
section 361.5 does not so require (accord, In re Jasmine C. (1999)
70 Cal.App.4th 71, 76-77 [upholding juvenile court’s bypass of
reunification services even though it did not make specific
findings that reunification would be detrimental to the minor]).
Indeed, this subdivision’s silence on this issue is both deafening
and dispositive when contrasted with other subdivisions and
statutes explicitly requiring juvenile courts to make specific
findings to support other rulings in dependency proceedings.
8
A juvenile court is generally required to order reunification
services for a parent “whenever a child is removed” from that
parent’s custody. (§ 361.5, subd. (a); In re Baby Boy H. (1998) 63
Cal.App.4th 470, 474 (Baby Boy H.); Cheryl P. v. Superior Court
(2006) 139 Cal.App.4th 87, 95-96 (Cheryl P.).) Our Legislature
has, in certain statutorily enumerated situations, nevertheless
granted juvenile courts discretion to decide whether reunification
services are “in the best interest of the child.” (§ 361.5, subds. (b)
& (c)(2); In re A.E. (2019) 38 Cal.App.5th 1124, 1141.) These
provisions are known as the “‘“bypass” provisions.’” (In re G.L.
(2014) 222 Cal.App.4th 1153, 1163 (G.L.).) Consonant with the
general presumption in favor of mandatory reunification services,
the bypass provisions are “narrow in scope” and reach situations
where “‘the likelihood of reunification’” is “‘so slim’” due to a
parent’s past failures that “expend[ing]” the Department’s
“‘scarce’” resources on reunification services is likely to be
“fruitless,” or when “attempts to facilitate reunification” would
otherwise not “serve and protect the child’s interest.” (Baby Boy
H., at pp. 474, 478; Cheryl P., at p. 96; In re Lana S. (2012) 207
Cal.App.4th 94, 107 (Lana S.); In re I.A. (2019) 40 Cal.App.5th
19, 23 (I.A.); In re Gabriel K. (2012) 203 Cal.App.4th 188, 196
(Gabriel K.); Randi R. v. Superior Court (1998) 64 Cal.App.4th
(See, e.g., §§ 361.5, subd. (k) [requiring the court to specify the
“factual findings used to determine that the provision of
reunification services” to the parent “would not benefit the child”
in the case of “severe sexual abuse”]; 361, subd. (e) [requiring the
court to “state the facts on which the decision to remove the
minor is based”]; 366.26, subd. (c)(1)(D) [if making a
determination that the “termination of parental rights would be
detrimental,” the court “shall state its reasons” “on the record”];
In re A.L. (2022) 73 Cal.App.5th 1131, 1156 [same].)
9
67, 70 (Randi R.); Deborah S. v. Superior Court (1996) 43
Cal.App.4th 741, 750 (Deborah S.).) By making the grant of
reunification services discretionary in these situations, the
bypass provisions aim to “focus reunification efforts” and
resources on the cases “most likely to succeed” with reunification.
(In re Joshua M. (1998) 66 Cal.App.4th 458, 471.)
This case involves two bypass provisions. The first is
subdivision (b)(10) of section 361.5, which provides that
“[r]eunification services need not be provided to a parent” if the
juvenile “court finds, by clear and convincing evidence,” that (1)
“the parent . . . failed to reunify with [a] sibling or half sibling” of
the child now at issue and the juvenile court in the prior
dependency case “ordered termination of reunification services,”
and (2) the parent “has not subsequently made a reasonable
effort to treat the problems that led to removal of the sibling or
half sibling . . . from that parent.” (§ 361.5, subd. (b)(10)(A).) The
second is subdivision (b)(11) of section 361.5, which provides that
“[r]eunification services need not be provided to a parent” if the
juvenile court “finds, by clear and convincing evidence,” that (1)
the parent’s “parental rights . . . over any sibling or half sibling”
of the child now at issue “ha[ve] been permanently severed,” and
(2) the parent “has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling or half
sibling . . . from the parent.” (Id., subd. (b)(11)(A).)7
7 Under either provision, the order terminating reunification
services or parental rights over the sibling or half sibling need
not be “final”; entry of that order by the juvenile court is enough,
even if the order still is subject to attack on appeal. (In re T.G.
(2015) 242 Cal.App.4th 976, 987-988.)
10
When read as a whole, section 361.5 erects a two-step,
burden-shifting procedure for bypassing reunification services
under subdivisions (b)(10) and (b)(11).
In the first step, the Department bears the burden of
proving by clear and convincing evidence that (1) the juvenile
court had ordered termination of reunification services (under
subdivision (b)(10)) or had severed parental rights (under
subdivision (b)(11)) in a prior case involving a sibling or half
sibling of the child in the current case;8 (2) the “problem[] that
led to the removal” of the sibling or half sibling is the same
problem at issue in the current case, insofar as the problem
involves the same “theme” even if it is not identical; and (3) the
parent has “not subsequently made a reasonable effort to treat
th[at] problem[].” (§ 361.5, subds. (b)(10)(A) & (b)(11)(A); I.A.,
supra, 40 Cal.App.5th at pp. 23-24; In re Albert T. (2006) 144
Cal.App.4th 207, 217; Cheryl P., supra, 139 Cal.App.4th at p. 96;
Lana S., supra, 207 Cal.App.4th at p. 108 [“recurrent theme”
sufficient]; cf. In re D.H. (2014) 230 Cal.App.4th 807, 815-816
8 Although the text of these provisions specifies that the
prior case involve a sibling or half sibling of the child in the
current case, some—but not all—appellate courts have held that
they also reach prior cases involving the same child as the one in
the current case. (Compare I.A., supra, 40 Cal.App.5th at pp. 26-
27 [bypass provision applies when same child is subject of
successive dependency cases involving same parent and same
problem] and Gabriel K., supra, 203 Cal.App.4th at p. 196 [same]
with J.A. v. Superior Court (2013) 214 Cal.App.4th 279, 284
[bypass provision requires involvement of a sibling or half sibling;
does not apply when same child involved in successive cases] and
In re B.L. (2012) 204 Cal.App.4th 1111, 1115-1116 [same].)
Because the prior cases here involve Jayden’s half siblings, we
need not weigh in on this split.
11
[“problem” not “same” when one case involved substance abuse
and another involved “unsafe and unhealthy [living]
conditions”].)
In the second step, which presupposes the Department has
carried its initial burden, the burden shifts to the parent to prove
that it is in the child’s best interest for the juvenile court to
exercise its discretion to provide reunification services in this
case. (I.A., supra, 40 Cal.App.5th at p. 24; Lana S., supra, 207
Cal.App.4th at p. 109.) In exercising this discretion, the court
may consider a variety of factors relevant to the child’s best
interest, including (1) the parent’s “‘“current efforts and fitness,”’”
(2) the parent’s “‘“history,”’” (3) the “‘“gravity of the problem”’”
that led to the assertion of dependency, (4) the “‘strength of the
bonds’” between the child and the parent and between the child
and the current caregiver, and (5) the “‘“child’s need for stability
and continuity.”’” (G.L., supra, 222 Cal.App.4th at p. 1164.) One
factor that is essential—and hence necessary—to the assessment
of a child’s best interest is whether there is “‘some “reasonable
basis to conclude”’” that reunification is possible; if it is not,
offering reunification services that are destined to fail is not in
the child’s best interest. (Ibid.)
We review a juvenile court’s determination that the
Department has carried its initial burden in the first step for
substantial evidence. (In re J.J. (2022) 81 Cal.App.5th 447, 455;
In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840 (Harmony
B.).) In so doing, we ask whether there is sufficient evidence in
the record that is reasonable, credible and of solid value—when
viewed in the light most favorable to the juvenile court’s
determination—for a reasonable trier of fact to conclude that the
Department carried its burden by clear and convincing evidence.
12
(Harmony B., at pp. 839-840; G.L., supra, 222 Cal.App.4th at p.
1164; In re V.L. (2020) 54 Cal.App.5th 147, 154-155; see
generally, Conservatorship of O.B. (2020) 9 Cal.5th 989, 1004-
1005.) We review a juvenile court’s assessment of what is in the
child’s best interest for an abuse of discretion. (Baby Boy H.,
supra, 63 Cal.App.4th at p. 474.)
Mother does not dispute that the juvenile court had
previously terminated reunification services and parental rights
over several of Jayden’s half siblings or that those prior cases
involved the same problem—namely, mother’s drug addiction—
that underlies Jayden’s dependency proceeding. Because mother
also does not contest the juvenile court’s analysis of what is in
Jayden’s best interest, the propriety of the juvenile court’s order
bypassing reunification services in this case turns on whether the
court’s finding that mother did not make a reasonable effort to
address her drug addiction is supported by substantial evidence.
Mother insists that she “made significant and very reasonable
efforts to treat her substance abuse problem,” and for support
points solely to the efforts she made in the four months since the
Department filed its petition in this case. This appeal therefore
presents two questions. The first is legal—namely, should a
juvenile court in assessing a parent’s reasonable efforts under
subdivisions (b)(10) and (b)(11) of section 361.5 focus solely on the
time since the current case was filed? Because this question is
one of statutory interpretation, our review is de novo. (In re
Brianna S. (2021) 60 Cal.App.5th 303, 311 (Brianna S.); In re
Esperanza C. (2008) 165 Cal.App.4th 1042, 1059.) The second is
factual—namely, was the juvenile court’s finding of no reasonable
effort supported by substantial evidence?
13
I. How Far Back May a Juvenile Court Look in
Assessing Whether a Parent Has Made a “Reasonable
Effort” to Solve the Problem?
We hold that, in assessing whether a parent made a
reasonable effort to address a problem from a prior dependency
case involving the current child’s sibling or half sibling and where
reunification services or parental rights were terminated under
subdivisions (b)(10) or (b)(11) of section 361.5, the juvenile court
should consider the entire time span between, at the one end, the
earliest time a sibling or half sibling was removed from the
parent’s custody due to that problem and, at the other end, the
dispositional hearing in the current case. This holding rests on
three grounds.
First, this holding is dictated by the plain text of
subdivisions (b)(10) and (b)(11) of section 361.5, and the plain
text of a statute is typically dispositive. (See Brianna S., supra,
60 Cal.App.5th at p. 313; Day v. City of Fontana (2001) 25
Cal.4th 268, 272 [“the plain meaning of the language governs”].)
Both subdivisions specify that the court is to assess whether the
parent has “subsequently made a reasonable effort to treat the
problems that led to removal of the sibling or half sibling.” (§
361.5, subds. (b)(10)(A) & (b)(11)(A), italics added.) The italicized
language unambiguously establishes that the reasonableness of
the parent’s effort is to be measured from the point at which the
first sibling or half sibling is removed for the same reasons that
underlie the current case.9
9 Because there are two decades between Damion’s removal
from mother’s custody in 2001 due to her drug abuse and
Jayden’s dispositional hearing in 2022, this case does not present
the question of what a juvenile court should do when there is no
14
Second, this holding is consistent with a uniform wall of
precedent. Every published decision we have found evaluates the
reasonableness of a parent’s effort going back to the time of the
removal of the first sibling or half sibling; none has limited a
juvenile court’s inquiry to the period following the filing of the
petition in the current case. (E.g., Harmony B., supra, 125
Cal.App.4th at p. 842 [court should consider the parent’s efforts
“toward correcting the underlying problems” “in the meantime”
between the prior and current cases]; Cheryl P., supra, 139
Cal.App.4th at p. 97 [same]; Jennifer S. v. Superior Court (2017)
15 Cal.App.5th 1113, 1117-1118, 1123-1124 (Jennifer S.)
[considering parent’s entire history between the initial removal of
the older siblings in 2006 and the subsequent removal of the
younger sibling in 2017]; Renee J. v. Superior Court (2002) 96
Cal.App.4th 1450, 1464 (Renee J.) [court could have “focused on
the fact that [mother] had made significant changes in her
lifestyle since the removal of her other children”]; R.T. v. Superior
Court (2012) 202 Cal.App.4th 908, 915 (R.T.) [considering events
“in . . . totality” between the termination of parental rights over
older sibling in 2006 and younger sibling’s second removal in
gap in time between the termination of the reunification services
or parental rights over the sibling or half sibling, and the
dispositional hearing in the current case. The appellate courts
are divided over how to proceed where there is no time gap.
(Compare Harmony B., supra, 125 Cal.App.4th at pp. 842-843
[court may consider events occurring only after termination in
sibling or half sibling’s case, such that there will be no
opportunity for the parent to make “reasonable efforts”] with
Cheryl P., supra, 139 Cal.App.4th at p. 98-99 [court should
consider parent’s “reasonable efforts made since the removal of
the sibling”], italics added.)
15
2011]; Gabriel K., supra, 203 Cal.App.4th at pp. 196-197
[considering events between minor’s first removal in 2007 and
the subsequent removal of him and his younger sibling in 2011].)
Third, this holding is consistent with the public policy
animating the bypass provisions. As alluded to above, the bypass
provisions seek to balance two competing policies: On the one
hand, the bypass provisions grant a juvenile court the discretion
to bypass services as a means of reserving a social service
agency’s finite resources for those cases where reunification is
likely rather than “fruitless” (Cheryl P., supra, 139 Cal.App.4th
at p. 96; I.A., supra, 40 Cal.App.5th at p. 23; Gabriel K., supra,
203 Cal.App.4th at p. 196; Baby Boy H., supra, 63 Cal.App.4th at
p. 478; Randi R., supra, 64 Cal.App.4th at p. 70; Deborah S.,
supra, 43 Cal.App.4th at p. 750), and thus as a means of avoiding
the “tragedy” of “delay[ing] permanency for [a] dependent child”
in such circumstances (Jennifer S., supra, 15 Cal.App.5th at p.
1127); on the other hand, the provisions seek not to be too “harsh”
by making this discretion available only if the parent has made
no reasonable effort to address the problem at issue (Harmony B.,
supra, 125 Cal.App.4th at p. 842). The bypass provisions try to
walk that line by granting parents who have made a reasonable
effort a further opportunity to reunify, while denying parents
who have “failed to address” longstanding problems yet “another
opportunity to do so.” (Id. at p. 843; Randi R., at p. 73.) The best
way to walk this line and calibrate this balance of competing
policies is to allow courts to look at the parent’s full relevant
history. This broader focus in one way gives a parent’s efforts in
the current case short shrift, but the dependency law framework
already provides a parent with the opportunity to bolster the
current efforts: If those efforts are commendable but too short-
16
term at the time of the dispositional hearing for the juvenile
court to conclude they are “reasonable” when viewed through the
prism of the total relevant time period, the parent can always
seek to modify the bypass order and obtain an order granting
reunification services by filing a petition under section 388. (§
388, subd. (a)(1); In re L.S. (2014) 230 Cal.App.4th 1183, 1194.)
II. Substantial Evidence Supports Bypass
When, as we have concluded is proper, mother’s effort to
treat her drug addiction is viewed starting from the time of
Damion’s removal from her custody in 2001 due to that addiction
through the dispositional hearing for Jayden in 2022, substantial
evidence supports the juvenile court’s finding that her effort was
not “reasonable.”
A “reasonable effort to treat” a problem means just that.10
The question is not whether the parent has “‘“cure[d]”’” or
“‘abolished’” the problem (Cheryl P., supra, 139 Cal.App.4th at p.
97; Renee J., supra, 96 Cal.App.4th at p. 1464; K.C. v. Superior
Court (2010) 182 Cal.App.4th 1388, 1393 (K.C.)), or whether the
parent has “attained” a “‘certain level of progress’” (R.T., supra,
202 Cal.App.4th at p. 914). Instead, the focus is on the parent’s
10 Renee J. seemed to articulate a different test, which is more
difficult to meet, when it suggested that bypass is inappropriate
unless the Department shows that “further efforts [by the parent]
to deal with the problem would” be “‘fruitless’” and admitted that
this would be a “pretty high standard.” (Renee J., supra, 96
Cal.App.4th at p. 1464.) We agree with Cheryl P. that the bypass
provisions “do[] not impose a ‘fruitless’ standard” (Cheryl P.,
supra, 139 Cal.App.4th at p. 97) and reject Renee J. to the extent
that it adopted “fruitless” as the standard for the parent’s efforts
(rather than merely articulating the policy underpinning that
standard).
17
effort. It is not enough to show “any” effort, even a genuine one.
(Ibid.) “[L]ackadaisical or half-hearted efforts” will also not do.
(Cheryl P., at p. 99; K.C., at p. 1393.) Instead, the effort must be
reasonable, and reasonableness is assessed by looking to (1) the
duration of the parent’s effort, (2) the “extent and context” of the
parent’s effort, and (3) other factors related to the “quality and
quantity of those efforts.” (R.T., at p. 914, italics omitted.) The
parent’s progress, or lack thereof, “both in the short and long
term”—while not dispositive—is nevertheless relevant “to the
extent it bears on the reasonableness of the effort made.” (Ibid.)
It is undisputed that mother made some effort to address
her longstanding drug abuse problem, at least after the petition
involving Jayden was filed: She completed a drug treatment
program, attended six parenting classes, and “tested negative for
all substances” from mid-January through the beginning of April
2022. But substantial evidence supports the juvenile court’s
finding that this effort was not reasonable against the backdrop
of her entire drug history dating back to the removal of Damion
from her custody in 2001. As a threshold matter, mother’s effort
since the filing of this case—while a commendable start—was not
wholehearted: Mother struggled to attend her drug treatment
sessions consistently and to participate fully, so much so that the
treatment center considered discharging her from the program
multiple times for being disruptive to the other participants;
mother’s “attendance and participation” was “[a]bove
[s]atisfactory” only “in the last few weeks” of the program; and
she only started “making great strides in staying committed to
long term recovery and being compliant with all her
requirements” in those final few weeks. More significantly,
however, mother’s four months of uneven effort is a drop in the
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bucket when viewed in the larger context of a 20-year history of
serious and consistent drug abuse. Against this backdrop, the
juvenile court had ample grounds to find that mother’s recent
effort to treat her drug addiction was not “reasonable.” (See, e.g.,
Jennifer S., supra, 15 Cal.App.5th at p. 1124 [in the context of a
“long-term substance abuse issue” lasting for “years,” father’s
“minimal efforts” in substance abuse treatment “mere weeks”
before a hearing were “not a reasonable effort to treat th[e]
problem for purposes of a section 361.5, subdivision (b)(10)
bypass”]; R.T., supra, 202 Cal.App.4th at p. 915 [upholding
bypass under subsections (b)(10) and (b)(11) because there was
“no evidence in the record that mother, in the month or two of
services” provided after second removal, “had engaged in th[e]
services in any meaningful way”]; Randi R., supra, 64
Cal.App.4th at p. 73 [upholding bypass and stating that child’s
future “should not be sacrificed” to give a parent “another chance
to try to get and stay sober”].) The juvenile court’s finding is
further supported by evidence that mother has repeatedly
relapsed after treatment and/or periods of sobriety in the past.
This finding is consistent with the conventional wisdom and
practical reality that short and recent periods of sobriety are
often not enough to counter a longstanding pattern of use and
relapse. (See, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415,
423-424 [200 days insufficient to convince juvenile court that a
relapse would not occur]; In re Amber M. (2002) 103 Cal.App.4th
681, 686-687 [relapse following 300 days of sobriety].) Thus,
substantial evidence supports the juvenile court’s finding that the
effort underlying mother’s brief period of sobriety after decades of
drug abuse is not “reasonable.”
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Mother resists this conclusion, minimizing her drug use
and urging us to accept her proffered reasons for her minimal
effort to combat her addiction: She attributes her February 2021
relapse to her father’s death (even though she also attributed her
relapse before Emma’s birth in 2020 to her father’s death),
brushes aside her relapse only two weeks before Jayden’s birth by
saying that she “attempted, albeit unsuccessfully, to enroll” in
treatment, and downplays the extent to which she failed to fully
engage with the treatment program by saying merely that she
“struggled at times.” In doing so, mother asks us to ignore the
governing standard of review and reevaluate the evidence in the
light most favorable to her, which we may not do. (In re R.T.
(2017) 3 Cal.5th 622, 633 [we “‘review the record in the light most
favorable to the court’s determinations’” and leave “‘issues of fact
and credibility’” to the trial court]); G.L., supra, 222 Cal.App.4th
at p. 1164 [we “presume ‘in favor of the order, consider[] the
evidence in the light most favorable’” to the order, and “‘resolv[e]
all conflicts in support of the order’”].)
20
DISPOSITION
The juvenile court’s order is affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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