In re Summer B. CA1/5

Filed 2/25/22 In re Summer B. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re Summer B., a Person Coming
Under the Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT, A161209
Plaintiff and Respondent,
v. (Sonoma County
SHAWNA M., Super. Ct. No. DEP4972)
Defendant and Appellant.
This is an appeal from the juvenile court’s jurisdiction and disposition
orders in a dependency matter involving defendant, Shawna M. (mother), and
her daughter Summer B. (minor).1 Mother contends the court’s decision to
bypass her for reunification services pursuant to Welfare and Institutions
Code2 section 361.5, subdivision (b)(13) was not supported by substantial
evidence. She further contends the court abused its discretion in finding
1 Minor’s father, John B. (father), is not a party to this appeal.
Unless otherwise stated, all statutory citations herein are to the
2
Welfare and Institutions Code.
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reunification would not be in minor’s best interests. We disagree with
mother and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Initial Dependency Proceedings (September 2016).
In September 2016, when minor was seven years old, the Sonoma
County Human Services Department (department) filed a juvenile
dependency petition pursuant to section 300, subdivisions (a) and (j),
alleging, among other things, that father physically abused minor by
spanking and hitting her with a belt and that minor’s older half sibling was
previously the subject of other dependency proceedings.3
According to the jurisdiction/disposition report filed in October 2016,
mother and father were never married. The pair remained together until
minor was three years old, at which time mother and minor moved out.
Father cared for minor on weekends and whenever mother was arrested.
Eventually, father took over as minor’s primary caregiver, and he has had
full custody since 2015.
Minor was diagnosed with an adjustment disorder. She had frequent
tantrums and violent outbursts. While placed in an emergency foster home,
minor attempted to stab staff members with pencils and bit three staff
members during one four-hour episode.
Mother had an extensive history of substance abuse-related arrests;
convictions, including DUI convictions in 2013 and 2016; and probation
violations. She was incarcerated when the section 300 petition was filed and
had not had significant involvement in minor’s life for at least two years.
3 The separate dependency proceedings that involved mother’s older
daughter began in 2004. Mother’s reunification services in that case were
terminated in 2005. And in August 2006, the juvenile court awarded the
child’s father sole legal and physical custody and the case was dismissed.
2
Minor said she missed mother but she “ ‘[did not] want to talk about her.’ ”
The social worker reported that mother shoplifted, smoked marijuana, and
consumed alcohol during visits with minor and “would need to demonstrate a
significant period of sobriety outside of a treatment program” before the
department would consider placement with her.
At the time of the department’s addendum report dated October 17,
2016, mother was under court order to participate in an inpatient treatment
program and was waiting for an available bed. The probation department
deemed mother a high risk to reoffend. Following the October 19, 2016
hearing, the court found based on clear and convincing evidence that mother
should be bypassed for reunification services and that reunification would not
be in minor’s best interests.
In 2017, minor was returned to father’s care with family maintenance,
and on March 7, 2018, the juvenile court granted father full custody and
dismissed the proceedings. Mother, who had not visited minor during the
duration of the case, was bypassed for services.
II. Present Dependency Proceedings (May 2020).
The operative amended petition was filed on July 2, 2020, pursuant to
section 300, subdivisions (b)(1), (c), and (j), and followed the original petition
filed on May 27, 2020. The primary allegations were that mother was unable
to provide care and support for minor due to mother’s “chronic and extensive
substance abuse problem spanning approximately 25 years”; neither parent
was capable of providing appropriate care for minor, who had serious mental,
emotional and behavioral issues; and minor’s half sibling was previously the
subject of dependency proceedings and failed to reunify with mother.
According to the department, minor’s mental, emotional and behavioral
problems had worsened since the 2016 dependency. In addition to her
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adjustment disorder diagnosis, minor had been diagnosed with posttraumatic
stress disorder (PTSD), attention-deficit/hyperactivity disorder, and
disruptive mood regulation disorder. The Santa Rosa Police Department
(police department) received about 45 calls for service regarding minor
between March 2015 and May 2020. Since 2018, minor had also been placed
on at least 15 psychiatric holds. After one particular incident in which father
grabbed minor and pinned her down in a hotel parking lot during one of her
violent outbursts, minor was taken into protective custody by the police
department. The department concluded that minor required intensive
mental health treatment and services beyond what father was capable of
providing in the home. Moreover, mother’s “unpredictable and unreliable
relationship with [minor] exacerbates and triggers [minor’s] mental and
emotional trauma . . . .”
The department filed a jurisdiction/disposition report on June 16, 2020.
The social worker recommended that mother, who was presumed homeless
and transient, be bypassed for services. The department made countless
attempts to contact mother, but she either did not respond or waited several
days to respond. Mother refused to answer the department’s questions
without an attorney present and did not want visitation with minor, whom
she had not called or visited since minor came under the department’s care in
May 2020.
The report also contained a lengthy list of mother’s arrests, convictions
and probation violations, which began in the 1990’s and mostly involved
DUI’s, driving with a suspended license and disorderly conduct. In May
2018, mother was arrested three separate times and was later convicted of
possession of a controlled substance, ingesting marijuana in public and
obstructing a peace officer.
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In a June 2020 interview, minor stated she would not discuss mother or
father. Minor, living in a foster home, experienced repeated extreme
outbursts that involved attempts to run away, property destruction, hurting
herself and others, and suicidal and homicidal ideations. She was placed on a
psychiatric hold after reporting that she saw an “ ‘invisible man’ ” with red
eyes staring at her. Minor’s psychologist suspected mother was a “huge
triggered [sic]” for minor and was a contributing factor to each of her
hospitalizations. Minor’s psychiatrist reported that minor had been through
significant trauma and that mother was a significant PTSD trigger for minor.
She was unsure whether minor’s visual hallucinations were “ ‘true psychosis
hallucinations, or just a PTSD reaction to trauma.’ ”
The department recommended denying mother reunification services
based on her significant, unaddressed substance abuse issues; criminal
history; and past failures to comply with court-ordered drug treatment.
Noting mother was homeless, had little involvement in minor’s life, and was
a likely trigger of her mental health problems, the social worker opined minor
would not benefit from having mother “continue to pop in and out of her
life . . . .”
At the October 2, 2020 jurisdiction/disposition hearing, mother and the
social worker testified. The social worker discussed many of the issues raised
in the report, such as minor’s mental health issues. In addition, the social
worker testified that while mother claimed to be working with the
department to obtain services, she refused to provide a signed release of
information to confirm this or any other proof of her participation. Mother
also expressed an interest in starting drug testing but refused to sign a
document releasing her results. Mother had not told the department about
any recent attendance at a substance abuse program. However, the
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department had received a letter from Abode Services stating that as of
August 25, 2020, mother was “ ‘making progress toward housing.’ ”
Mother testified she had been homeless and living in a tent since 2017
but was scheduled to move into an apartment the following week. Mother did
not have a visitation schedule with minor in part due to her homelessness.
Mother intended to participate in a drunk driving program but had not
completed the intake process. She enrolled in Alternatives for Better Living
“three weeks ago” and “just started getting . . . classes . . . .” She completed
the intake process with Parents Can but did not hear back from the program.
She had also been working with a mental health counselor since October
2019.
Mother confirmed a 2018 conviction for methamphetamine possession.
She last used methamphetamine “two weeks ago” and last consumed alcohol
“two days ago.” Between her 2018 conviction and recent enrollment in
Alternatives for Better Living, mother had done nothing to address her
substance abuse issues. She also acknowledged that in 2018 she violated the
terms of her probation following an embezzlement conviction. One such term
was not possessing controlled substances or associated paraphernalia. Her
probation was set to end in September 2021.
On October 5, 2020, the juvenile court issued its jurisdiction/disposition
order. The court sustained the amended petition and removed minor from
parents’ custody. The court ordered services for father but bypassed mother
pursuant to section 361.5, subdivision (b)(13) after finding clear and
convincing evidence of her “continued and chronic substance abuse” and that
reunification would not be in minor’s best interests. The court ordered that
mother could receive services through minor’s case plan. This appeal
followed.
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DISCUSSION
Mother contends: (1) substantial evidence does not support the juvenile
court’s finding under section 361.5, subdivision (b)(13) that she resisted
treatment during the three-year period (May 27, 2017, to May 27, 2020) that
immediately preceded the filing of the original petition; and (2) the court
abused its discretion in finding reunification would not be in minor’s best
interests.
I. Legal Framework.
“Generally, the juvenile court is required to provide reunification
services to a child and the child’s parents when a child is removed from
parental custody under the dependency laws.” (In re I.A. (2019) 40
Cal.App.5th 19, 23.) Services may be bypassed under certain circumstances
when “ ‘reunification efforts are likely to be “fruitless” [citation].’ ” (Ibid.)
Relevant here, such efforts are deemed fruitless “when the [juvenile] court
finds, by clear and convincing evidence,” that the parent 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 [a dependency] case plan . . . on at least two
prior occasions, even though the programs identified were available and
accessible.” (§ 361.5, subd. (b)(13).)4 Where this provision applies, the court
cannot order reunification services for the parent unless it finds by clear and
4Section 361.5, subdivision (b)(13) was amended effective January 1,
2022. (Stats. 2021, ch. 201, § 1; Stats. 2021, ch. 585, § 2.5 [ch. 585 prevails].)
We apply the version of the statute in effect at that time of the court’s
October 5, 2020 ruling.
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convincing evidence that “reunification is in the best interest of the child.”
(§ 361.5, subd. (c)(2).)
Thus, where section 361.5, subdivision (b)(13) applies, “ ‘ “the general
rule favoring reunification is replaced by a legislative assumption that
offering services would be an unwise use of governmental resources.” ’ ” (In
re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).) Moreover, the
parent bears the burden to prove reunification services would be in the best
interests of the child. (Ibid.)
A juvenile court has broad discretion to determine under section 361.5,
subdivision (c)(2) whether reunification services would be in the best
interests of the child. “ ‘ “An appellate court will reverse that determination
only if the juvenile court abuses its discretion.” ’ [Citations.] If the juvenile
court’s finding that further services would be in the [child’s] best interest is
not supported by substantial evidence, then the order for such services
constitutes an abuse of discretion.” (In re A.E. (2019) 38 Cal.App.5th 1124,
1140–1141.)
In reviewing a finding that a fact has been proved by clear and
convincing evidence, the question on appeal is whether the record as a whole
contains substantial evidence from which a reasonable fact finder could have
found it highly probable the fact was true. (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1009.) In making this determination, we make all presumptions
in favor of the lower court’s order, considering the evidence in the light most
favorable to the prevailing party and resolving conflicts in support of the
order. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164.)
II. Substantial evidence supports the juvenile court’s section 361.5,
subdivision (b)(13) findings.
“For [section 361.5, subdivision (b)(13)] to apply, two conditions must be
satisfied. The first condition is that the parent has an extensive history of
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drug or alcohol abuse. The second condition may be satisfied in either of two
ways. Either the parent must have ‘resisted’ a prior court-ordered treatment,
one time, within the previous three years. Or the parent must have failed or
refused to comply with a drug treatment program described in a case plan,
two times, at any time in the past.” (In re B.E. (2020) 46 Cal.App.5th 932,
938 (B.E.).) Resistance for purposes of this provision means not passive
resistance but “a parent’s demonstrated unwillingness to change.” (Id. at p.
942.) Both statutory conditions are met in this case.
Mother concedes the first condition is met because she has an extensive
history of substance abuse. She disputes the second condition, arguing there
is no substantial evidence demonstrating that she actively resisted treatment
during the three-year period before the petition was initially filed, from May
2017 to May 2020. Mother’s argument fails, as substantial evidence proves
that she actively resisted a court-ordered treatment program during the
relevant three-year period and/or failed or refused to comply with a drug
treatment program described in a case plan at least two times in the past.
The following record is relevant.
Mother first received reunification services involving drug and alcohol
treatment in the 2004 dependency proceedings involving minor’s older half
sibling. These services were terminated in September 2005 after mother
twice tested positive for drugs and alcohol at the treatment program, and the
father was awarded custody.
When the first dependency petition involving minor was filed in 2016,
mother was incarcerated and under a court order to participate in a drug
treatment program as part of her criminal case. Mother was also ordered, at
the family maintenance review hearing on September 21, 2017, to voluntarily
drug test with the probation department in Napa. This followed mother’s
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admissions on August 31, 2016, that her marijuana use was ongoing and that
she violated the terms of her probation by refusing to test. Based on her
substance abuse issues and active resistance to court-ordered treatment or
failure to comply with a treatment program described in a case plan, mother
was bypassed for services under the same provision invoked here, to wit,
subdivision 361.5, subdivision (b)(13).
In the present proceedings, the department’s June 18, 2020 report
stated that mother would need to show a significant period of sobriety
(among other things) to be considered for placement. Rather than attempt to
meet these criteria, mother remained largely uncommunicative and
uncooperative with the department. She refused to answer the social
worker’s questions without her attorney present, failed to submit mandatory
information disclosure forms (including the release form for drug test
results), and failed to return most of the social worker’s e-mails and phone
calls in a timely manner. On June 12, 2020, mother told the department she
was not interested in visits or phone calls with minor. The department also
reported mother had not visited or called minor since the petition was filed on
May 23, 2020. Around this time, in May 2018, mother was arrested three
times and ultimately convicted of possession of a controlled substance,
ingesting marijuana in public and obstructing a peace officer. Shortly
thereafter, she was found in violation of her probation in another criminal
case.
At the October 2020 disposition hearing, mother testified that she
recently enrolled in the Alternatives for Better Living program but
acknowledged using alcohol within the past two days and using
methamphetamine within the past two weeks.
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Thus, notwithstanding mother’s recent effort to seek treatment through
Alternatives for Better Living and Parents Can, the record as a whole
provides substantial evidence that she twice failed or refused to comply with
drug treatment programs described in the case plans adopted in her
children’s dependencies, or actively resisted court-ordered treatment between
May 2017 and May 2020. (See D.B. v. Superior Court (2009) 171 Cal.App.4th
197, 204 [“There is no meaningful distinction between treatment ordered as a
condition of probation and treatment ordered as a condition of parole for
purposes of determining whether a parent’s failure to comply signifies a
substance abuse problem so intractable that the provision of reunification
services would be a waste of time. In both situations, the parent faces
incarceration as a consequence and has ample incentive to comply with the
treatment condition imposed”]; B.E., supra, 46 Cal.App.5th at p. 938.)
Accordingly, the court’s finding that mother is a person as described in
section 361.5, subdivision (b)(13) stands.
III. The court did not abuse its discretion in finding reunification
would not be in minor’s best interests.
Finally, we conclude the court did not abuse its discretion in finding
that reunification with mother would not be in minor’s best interests.
Relevant factors for making this determination include the parent’s history,
his or her current efforts and fitness, the gravity of the problem that led to
the dependency, the parent and child’s bond, and the child’s need for stability
and continuity. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66–67;
William B., supra, 163 Cal.App.4th at p. 1228.) In this case, none of these
factors weighs in favor of mother. Not only does mother’s history
demonstrate decades of alcohol and drug abuse and involvement in criminal
activity, but also her current efforts and fitness demonstrate she has done
little to actually achieve sobriety or to address the problems that led to both
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of her children’s dependencies. At the disposition hearing, mother
acknowledged she did nothing to address her substance abuse between her
2018 conviction for possession of a controlled substance and her enrollment in
Alternatives for Better Living, just a few weeks before the disposition
hearing. In addition, prior to the hearing, mother told the department point
blank that she was not interested in visitation or phone calls with minor.
Indeed, father has been minor’s primary caregiver since at least 2014.
Finally, and most consequential to our inquiry, two of minor’s mental
health providers, her psychologist and psychiatrist, described minor’s
significant mental health issues, including her diagnoses of PTSD, attention-
deficit/hyperactivity disorder, and disruptive mood regulation disorder.
These experts agreed minor’s relationship with mother was harmful to
minor’s health and well-being, as mother appeared to be a significant trigger
for minor’s emotional breakdowns and hospitalizations.
“Subdivision (b)(13) of section 361.5 ‘reflect[s] a legislative
determination that an attempt to facilitate reunification between a parent
and child generally is not in the minor’s best interests when the parent is
shown to be a chronic abuser of drugs who has resisted prior treatment for
drug abuse.’ [Citation.] Experience tells us that such a parent has a high
risk of reabuse [that] places the parent’s interest in reunifying with her child
directly at odds with the child’s compelling right to a ‘placement that is
stable, permanent, and that allows the caretaker to make a full emotional
commitment to the child.’ [Citation.]” (William B., supra, 163 Cal.App.4th at
p. 1228, 2d–4th bracketed insertions added.) Compounding these factors
with minor’s multiple significant mental health issues, we have no doubt the
juvenile court had discretion to find that reunification with mother would not
be in minor’s best interests.
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DISPOSITION
The jurisdiction/disposition order dated October 5, 2020, is affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Needham, J.
A161209/Sonoma County Human Services Dept. v. Shawna M.
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