In re Eric L. CA4/1

Filed 5/14/21 In re Eric L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ERIC L., a Person Coming
Under the Juvenile Court Law.
D078594
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J515067C)
Plaintiff and Respondent,
v.
T.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.
T.R. (Mother) appeals from the dispositional hearing regarding her son,
Eric L., where the juvenile court did not order reunification services for her.
Mother claims the court failed to make sufficient findings to support a bypass
of reunification services based on her failure to reunite with Eric’s half
siblings in a previous dependency proceeding. (Welf. & Inst. Code, § 361.5,
subd. (b)(10) & (11).)1 Mother further claims the court failed to determine
whether it was in Eric’s best interests to offer her reunification services. We
affirm the denial of reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
Mother, currently aged 42, has a long history of drug and alcohol abuse.
She has also suffered from various mental illnesses, including bipolar
disorder and posttraumatic stress disorder (PTSD), since she was a teenager.
In 2006, one of Eric’s half siblings (I.R.) became a dependent of the
juvenile court and was removed from Mother’s custody. Three-year-old I.R.
had been found wandering by himself outside a hotel, dirty and improperly
dressed, while Mother was “passed out” in a hotel room from illicit drug use.
The San Diego County Health and Human Services Agency (Agency) offered
Mother reunification services, including substance abuse treatment and
mental health services. Later in 2006, Mother gave birth to another child
(S.G.) while she was incarcerated for drug-related offenses. The infant
became a juvenile dependent in 2007. Mother failed to make substantial
progress in services and stopped contacting the Agency by August 2007. Her
parental rights to the half siblings were terminated in 2008.
In July 2010, Mother gave birth to Eric. For the first year or two of
Eric’s life, Mother and/or Eric’s father (Father) cared for the child.
1 Unspecified statutory references are to the Welfare and Institutions
Code.
2
Thereafter, the parents relapsed on drugs and became homeless. Eric lived
in the home of his maternal grandfather until he was 10 years old,
principally cared for by his grandfather. In 2019 and on, the grandfather’s
wife also lived in the home and helped care for Eric.
In 2020,2 the Agency received several referrals relating to Eric. Mother
was reportedly homeless, using drugs, and neglecting to care for him. At the
same time, the aging grandfather and his wife were struggling to discipline
Eric, who was exhibiting behavioral issues.
In October, Eric’s grandfather decided he could no longer care for Eric.
The grandfather could not identify any other suitable caregiver, and he
welcomed the Agency’s involvement in placing Eric elsewhere. The
grandfather only had a phone number for Mother and advised that she was
“not present in Eric’s life.” The grandfather also reported that he had been
responsible for Eric’s care for over ten years, confirmed by Eric himself, who
stated, “ ‘I have lived with my grandfather my whole life basically.’ ” The
Agency was unable to locate Mother or Father and, accordingly, took Eric
into protective custody.
In mid-October, the Agency filed a petition on Eric’s behalf, alleging he
was at substantial risk of serious physical harm due to his parent’s willful or
negligent failure to provide him with the necessities of life. (§ 300, subd.
(b)(1).) The juvenile court made a prima facie finding on the petition and
detained Eric in out-of-home care.
Subsequently, the Agency made contact with Mother, who reported she
was living in a hotel at the time with her boyfriend. Mother said Eric could
stay with her at the hotel and that she was trying to find stable housing. She
denied using any drugs but failed to show for a drug test.
2 Further unspecified date references are to 2020.
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The jurisdictional and dispositional hearing scheduled in early
November was continued and then set for contest. The Agency’s
jurisdiction/disposition report recommended that Mother “not be offered
reunification services based on [section] 361.5(b)(10) and (11).”
Approaching the mid-November timeframe, Mother experienced
decompensating mental health and a mental health crisis; she suffered
depression, suicidal thoughts, stress, extreme tearfulness, racked thoughts,
and irritability. She had several violent fights with her boyfriend while she
was intoxicated on drugs; Mother tried to strangle her boyfriend and, on a
separate occasion, bit his thumb. For a few weeks, she had been smoking
methamphetamine (a “ ‘[d]ime worth’ ” every three to four days). For the past
30 days, she had been using marijuana and alcohol every day, typically more
than two “blunts” and more than a “fifth” of alcohol each day. On November
17, she drank one-half pint of vodka, one-half pint of another liquor, and two
“tall cans” of presumably beer. Mother’s boyfriend “kicked her out” of their
hotel.
Mother checked herself into a mental health crisis center, where she
was diagnosed with several mental disorders and substance dependency
conditions. For years, she had not been taking medication for her bipolar
disorder, and she believed her symptoms had gotten worse. After a few days
at the crisis center, Mother discharged herself early, against medical advice
and without meeting her treatment goals. According to medical records,
Mother had suffered significant traumatic events in her lifetime; had a
history of suicide attempts, including an overdose with pills in March; had
fallen out of a moving car in August while under the influence of
phencyclidine (PCP); and had a history of self-injurious behavior and
attacking others who triggered her PTSD.
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In early December, the Agency filed a notice of request for compulsory
judicial notice of matters within the half siblings’ dependency case files,
including true findings made on the half siblings’ petitions, provision of
reunification services to Mother, termination of services, and termination of
parental rights.
By February 2021, Mother had not drug tested despite multiple Agency
requests, and she did not have housing. Mother told her social worker she
did not have any money or a place to stay. According to the maternal
grandfather, Mother was “ ‘not going to do anything’ ” to care for Eric. The
grandfather recalled times when Mother had not followed through, or, she
would appear to be “ ‘clean[ing] up’ ” her act, but then her situation would
deteriorate. Mother continued to deny she had substance use issues,
repeating the common refrain, “ ‘What do I need treatment for, I don’t do
substances.’ ”
In the Agency’s assessment, it would not be appropriate to provide
reunification services to Mother. The Agency pointed to her failed
reunification with two other children and her continuing “pattern” of conduct,
including substance abuse, untreated mental health conditions, inability to
provide a stable home environment, and inaction toward addressing the
protective issues. Since his detention, Eric had no in-person contact and little
phone contact with Mother, and he was doing fine in foster care.
At the contested adjudication and disposition hearing in February
2021, the juvenile court received the Agency’s reports in evidence and took
judicial notice of the petitions, findings, and orders in the half siblings’ case
files. Additionally, the court heard testimony from Eric and Mother.
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All parties stipulated that, if called to testify, Eric would state, “I would
like my mother to have the opportunity to get better so I can live with her
when it is safe.”
Through her testimony, Mother indicated that she and Eric moved in
with the grandfather in 2017, the grandfather got married in 2019, Mother
did not get along with her stepmother, and thus, Mother moved out while
leaving Eric in grandfather’s home and care. Mother confirmed she was still
homeless, suffered from bipolar disorder and PTSD, and that she had a
“nervous breakdown” in November. She had not yet started any individual
therapy. Mother admitted she last used methamphetamine in November and
had not drug tested for the Agency. Mother stated that she did not need to
attend a substance abuse program because the November drug use was a
“one-time thing” and she already knew how to stay clean.
Counsel presented their closing arguments, with Mother’s counsel
requesting an order of reunification services for Mother based on her
reasonable efforts to treat her problems.
The Agency’s counsel argued in detail why Mother’s efforts to treat her
problems were not reasonable, including that the same problems resulting in
the half siblings’ removal recurred despite the Agency’s prior offer of services,
Mother recently left her treatment at the crisis center and had not reengaged
in services, and she had not submitted to drug testing. The Agency’s counsel
stated, “[Mother] has demonstrated an unwillingness to address her
underlying issues.” The Agency’s counsel further addressed why granting
reunification services to Mother was not in Eric’s best interests, highlighting
her failure to visit him, her lack of cooperation with the Agency, and her
admitted opposition to completing a substance abuse program. Counsel
concluded, “So the Agency does not believe getting into a program after
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admitting to using drugs and then removing yourself from the program is
making reasonable efforts to address the issue that led to the [half siblings’]
removal.”
After considering the evidence and arguments of counsel, the juvenile
court found the petition’s allegations true by clear and convincing evidence,
determined there were no reasonable means to protect Eric without removal
from parental care, placed him in foster care, and ordered reunification
services for Father only, bypassing services for Mother under section 361.5,
subdivision (b)(10) and (11).
DISCUSSION
It is presumed in dependency cases that parents will receive
reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th
87, 95.) Nonetheless, subdivision (b) of section 361.5 “sets forth certain
exceptions—also called reunification bypass provisions—to this ‘general
mandate of providing reunification services.’ ” (In re Allison J. (2010) 190
Cal.App.4th 1106, 1112.) “When the court determines a bypass provision
applies, the general rule favoring reunification is replaced with a legislative
presumption that reunification services would be ‘ “an unwise use of
governmental resources.” ’ ” (Ibid.)
Subdivision (b)(10) and (11) of section 361.5 allow the court to bypass
reunification services if the court finds by clear and convincing evidence that
(1) the parent had previously failed to reunify with a sibling or half sibling, or
parental rights for a sibling or half sibling had been permanently severed;
and (2) the parent has not made a reasonable effort to treat the problems
leading to the removal of the sibling or half sibling. In assessing a parent’s
efforts to treat the problem(s) that led to the removal of a child’s sibling or
half sibling, the juvenile court may consider the duration, extent, and context
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of the parent’s efforts, any other factors relating to the quality and quantity
of those efforts, and the degree of progress. (R.T. v. Superior Court (2012)
202 Cal.App.4th 908, 914 (R.T.).)
“An order denying reunification services is reviewed for substantial
evidence.” (R.T., supra, 202 Cal.App.4th at p. 914.)
On appeal, Mother challenges the adequacy of the juvenile court’s
findings, claiming the court “did not order the termination of reunification
services to Mother under [section] 361.5, subdivisions (b)(10) and (11),” and
did not determine whether Mother made reasonable efforts to treat her
problems. We conclude the court’s findings were sufficient on this record.
After closing arguments at the contested dispositional hearing, the
juvenile court credited the Agency’s addendum report, expressly referencing
Mother’s fragile mental state, increased drug and alcohol usage, medication
noncompliance, “ ‘not following up on outpatient provided care,’ ” and
underlying mental health conditions. The court remarked that the Agency
had painted a “colorful picture of the family dynamic,” and “coupled with the
testimony during this court proceeding,” gave “credence to the words that are
in the addendum report.”
Then, regarding reunification services, the court explicitly stated as
follows in pertinent part:
“As to the recommendations and moving forward, the
Agency has asked this court to bypass Mother’s services
based on Welfare and Institutions Code section 361.5(b)(10)
and (11) based on the termination of services and parental
rights for two older siblings for noncompliance with
services.
“The court certainly did look through the documents
that were presented in that regard in the notice of request
for compulsorily [sic] judicial notice of the sibling’s file . . . .
[W]hat I do gather from that is that Mother was laboring in
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2007 . . . in the same conditions she is laboring under in
2020.
“Therefore, this court will adopt the recommendations
set forth in the addendum report dated November 30th
making each recommendation an order of the court.”
Moments later, when discussing the Agency’s written recommendations, the
court confirmed, “It is the Agency’s position that reunification services be
terminated for Mother, correct, or bypassed, correct?” The Agency’s counsel
replied, “Yes. But granted as to Father.” The court proceeded to note that it
was making a correction to the template wording in the Agency’s
recommendation number 14, which related to informing “the parents” about
the need to participate in court-ordered services within a specified timeframe.
The court crossed out the word “parents” and wrote in, “Father.” Similarly,
the court’s written order reflects the provision of reunification services to “the
father.”
Based on our review of the record, the juvenile court adopted the
Agency’s position in full and bypassed Mother’s reunification services under
subdivision (b)(10) and (11) of section 361.5. The court took judicial notice of
the half siblings’ case files. The half siblings’ petitions were based in part on
Mother’s struggles with substance abuse, mental illness, and inability to
provide regular care. The court found she was “laboring under” these same
conditions as to Eric. Moreover, the court’s modification of certain wording—
striking out “parents” and writing “Father” instead—undoubtedly affirms the
court’s intent to bypass services as to Mother. Likewise, the written order
directs the Agency to provide services to Father (and not Mother).
The court did not appear to make an explicit finding as to the
reasonableness of Mother’s efforts to treat the problems that led to the
removal of the half siblings. However, the court clearly heard and considered
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the issue, which was argued by all parties. As we have noted, the court
unequivocally adopted the Agency’s position to bypass services under
subdivision (b)(10) and (11) of section 361.5, observing that Mother’s
conditions had not changed since Eric’s half siblings were removed from her
care. Accordingly, the court impliedly found that Mother did not make a
reasonable effort to treat the problems leading to removal of the half siblings.
(See In re Y.M. (2012) 207 Cal.App.4th 892, 918-919 [implying finding where
“ample evidence supports the finding” and “[t]he result is obvious from the
record”]; see also In re Lana S. (2012) 207 Cal.App.4th 94, 107-108 (Lana S.)
[reviewing implied finding of no reasonable efforts for substantial evidence].)
Substantial evidence supports that Mother had not made reasonable
efforts to treat the problems that led to the half siblings’ removal. She
continued to struggle with drug and alcohol abuse, mental illness,
homelessness, and an inability to provide stable care. Mother had years to
treat these problems, yet when the Agency received a referral regarding Eric
in October, she was not caring for him and could not be located. Mother was
homeless and unemployed. Soon thereafter, she experienced drug- and
alcohol-fueled fights with her boyfriend, suffered a mental health breakdown,
and was “kicked out” of the hotel where she was staying. She did not
complete a one- or two-week-long treatment program, left the program
without medication, and failed to follow up on her treatment plan. Further,
Mother did not visit with Eric in person and failed to drug test. She denied
needing any substance abuse treatment. The maternal grandfather, who
arguably had the most insight into Mother’s abilities, plainly stated that she
was “ ‘not going to do anything’ ” to provide or care for Eric. The record
amply supports that any efforts made by Mother to treat her problems were
not reasonable.
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Where, as here, a bypass provision applies, a court may not order
reunification services unless the parent establishes by clear and convincing
evidence that services would be in the child’s best interests. (§ 361.5, subd.
(c)(2).) “ ‘The burden is on the parent to . . . show that reunification would
serve the best interests of the child.’ [Citation.] The best interests
determination encompasses a consideration of the parent’s current efforts,
fitness and history; the seriousness of the problem that led to the
dependency; the strength of the parent-child and caretaker-child bonds; and
the child’s need for stability and continuity. [Citations.] A best interests
finding also requires a likelihood that reunification services will succeed.
[Citation.] ‘In other words, there must be some “reasonable basis to
conclude” that reunification is possible before services are offered to a parent
who need not be provided them.’ ” (In re A.G. (2012) 207 Cal.App.4th 276,
281.)
A parent’s failure to respond to previous services is “among the factors
indicating that reunification services are unlikely to be successful.” (§ 361.5,
subd. (c)(4).) We review the court’s section 361.5, subdivision (c)
determination for abuse of discretion. (Lana S., supra, 207 Cal.App.4th at
p. 109.)
Here, again, the juvenile court implicitly found it was not in Eric’s best
interests to provide Mother reunification services. The issue was argued by
counsel, and the court entirely adopted the Agency’s position. On this record,
the denial of reunification services to Mother was not an abuse of discretion.
In terminating her services as to Eric’s half siblings, the court at the time
found that the “extent of progress made toward alleviating or mitigating the
causes necessitating placement by [Mother] has been NONE.” She was
periodically absent from Eric’s life and did not visit him in person after he
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was detained. Eric did not rely on Mother to care for him despite hoping that
she would “get better.” Her struggles with substance abuse, mental illness,
homelessness, and unemployment, were ongoing. Mother failed to complete
her most recent treatment program, and she did not drug test even once for
the Agency. Indeed, Mother acknowledges on appeal that she “[a]rguably . . .
was not willing to do services.” The record does not support a finding that
reunification services would be likely to succeed.
Mother’s primary argument for receiving services is that Father
received services and there would be no delay in permanency for Eric. This
argument, however, focuses on Mother’s interest in reunification, not Eric’s
best interests. Notably, Eric’s guardian ad litem (minor’s counsel), who is
under a duty to advocate for the child’s best interests, opposed reunification
services for Mother. Similarly, Eric’s grandfather lamented that Mother was
unreliable and “does not follow through.” The record thoroughly supports a
finding that she was unlikely to successfully utilize reunification services,
and thus those services would not ultimately inure to Eric’s benefit. (See In
re Jesse W. (2007) 157 Cal.App.4th 49, 66 [“[T]he court’s focus was properly
on the futility of providing services . . . to a parent who has had no interest in
reunifying, regardless of how the other parent is situated.”].)
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DISPOSITION
The order is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
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