T.K. v. Super. Ct. CA1/3

Filed 2/24/21 T.K. v. Super. Ct. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
T.K., A161671
Petitioner, (Contra Costa County
v. Super. Ct. No. J2000584)
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY,
Respondent,
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU, et al.,
Real Parties in Interest.
T.K. (mother)1 seeks extraordinary writ relief from a December
17, 2020 order that denied her reunification services for her son Z.K.
(the child) and set a hearing to consider termination of her parental
rights and the child’s permanent placement under Welfare and
1 The child’s father is not a party to this writ proceeding.
1
Institutions Code section 366.26.2 Pending our resolution of the
petition, mother requests a temporary stay of the section 366.26
hearing set for April 15, 2021. Real party in interest Contra Costa
County Children and Family Services Bureau (agency) opposes the
petition.
Mother challenges the juvenile court’s denial of reunification
services under section 361.5, subdivisions (b)(10) and (b)(11). Under
this statute, in pertinent part, the court “need not” provide
reunification services for a child when a parent’s reunification services
or parental rights have been terminated in an earlier proceeding
concerning a half-sibling and the parent “has not subsequently made a
reasonable effort to treat the problems that led to removal” of the half-
sibling. (Id., subs. (b)(10) & (11).) Once a court has found that a parent
is described in subdivision (b)(10) or subdivision (b)(11) of section 361.5,
it “shall not order reunification” for the parent unless it further “finds,
by clear and convincing evidence, that reunification is in the best
interest of the child.” (Id., subd. (c)(2).) Here, the juvenile court
found mother was a person described in subdivisions (b)(10) and (b)(11)
of section 361.5, but it did not find that reunification would be in the
best interest of Z.K. Therefore, mother’s request for reunification
services was denied. We deny the petition for an extraordinary writ on
the merits and deny as moot the related request for a temporary stay of
the section 366.26 hearing.
2 All further undesignated statutory references are to the Welfare
and Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
In October 2020 mother gave birth to the child and both tested
positive for “methamphetamines and opioids.” Due to safety concerns
and mother’s substance use, the child was placed in protective custody.
That same month, the agency filed an amended section 300 petition
asking the court to assume dependency jurisdiction over the child. The
amended petition alleged mother failed to protect Z.K. by placing him
at substantial risk of physical harm because she: (1) had a serious and
chronic substance abuse problem that affected her ability to parent the
child, and (2) had untreated mental health issues (anxiety and bi-polar
disorder diagnosed in 2011 for which she stopped taking medication
and which caused constantly changing moods) that impaired her ability
to provide adequate care for the child. (§ 300, subd. (b)).
The amended petition further alleged Z.K. was at substantial risk
of abuse or neglect because mother previously abused or neglected two
other children (the child’s half-siblings N.K. and D.K.) and failed to
reunify with them due to her substance abuse problem. (§ 300, subd.
(j)). Mother’s reunification services concerning N.K. were terminated in
September 2011, her parental rights were terminated in October 2012,
and an adoption was finalized in July 2013. During the juvenile
dependency concerning D.K., mother’s reunification services were
bypassed in September 2011 and legal and physical custody was
granted to D.K.’s father in March 2012.
The agency submitted a report for the October 30, 2020 hearing
to determine detention and jurisdiction over Z.K. The agency social
worker reported both mother and child tested positive for
methamphetamines and opioids; the child suffered from fevers that
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were a symptom of withdrawal; and mother had multiple abrasions and
scratches on her arms that “appeared to be common symptoms of
people who abuse [m]ethamphetamine and ‘pick’ at their skin.” Mother
stated she did not know how she tested positive for methamphetamine
because she had not used the drug since 2015. She became addicted to
Norco in 2016 and later took Suboxone in 2017 when she became
pregnant with Z.K.’s half-sibling L.R. Mother currently used Suboxone
and no other substances. In regards to her mental health, mother
stated she had been diagnosed as suffering from “high anxiety” and bi-
polar disorder in 2011 and had not taken her prescribed medication for
a long enough period for it to work due to her “ ‘immaturity’ ” (mother’s
word). Mother felt her bi-polar disorder was adversely affecting her
daily life due to constantly changing moods, and she wanted mental
health treatment.
At the October 30, 2020 hearing, the juvenile court granted the
agency custody of Z.K. and mother was granted supervised one-hour
weekly visits. The court initially set a jurisdictional hearing and later
continued the matter for a contested combined jurisdictional and
dispositional hearing on December 17. On December 3, 2020, the
agency filed a report prepared for the contested combined jurisdictional
and dispositional hearing. The agency social worker recommended that
the court deny mother reunification services based on her failure to
reunify with the child’s half-siblings N.K. and D.K as alleged in the
amended petition.
In support of its recommendation, the agency social worker
described the family circumstances and portions of the records
concerning the earlier dependency proceedings regarding D.K. and N.K.
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The agency social worker also reported on mother’s substance abuse.
Mother stated she had a history of substance abuse with
methamphetamine and Norco, she had participated in drug treatment
in 2010, her longest period of sobriety was between 2014-2016, and she
last used drugs on November 11, 2020. The next day, November 12,
mother entered a residential drug treatment program, which included
classes on domestic violence and relapse prevention. She planned on
moving into a Sober Living Environment after she completed the in-
patient program. On November 25, mother reported a “ ‘slip up’ ” at
the program but she and her counselor were working to get her back on
track. Mother was scheduled for a mental health assessment on
December 1. The agency social worker also reported on Z.K.’s situation.
He was physically well and developmentally on target, and he had been
placed in the same foster care home as his half-sibling three-year-old
L.R. Mother had attended two (of four) supervised visits with Z.K., had
engaged with the child, and there were no reported issues regarding
the visits.
The December 17, 2020 contested combined jurisdictional and
dispositional hearing concerned the dependencies filed on behalf of Z.K.
and his half-sibling L.R. With regard to Z.K., the court considered the
agency’s reports prepared for the October 30 and December 17
hearings; the testimony of the agency social worker and mother; and
counsels’ arguments. The court also took judicial notice of portions of
the records in the earlier dependencies regarding N.K. and D.K.
The agency social worker testified concerning the mother’s
participation in services, noting she was participating in residential
drug treatment including drug testing; the program would be
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completed in January 2021 and thereafter mother planned to enter a
sober living environment. Mother had also completed a therapy
assessment and was waiting to start therapy. Mother testified
concerning her efforts to address her substance abuse problem since the
end of the earlier dependencies, noting that she had not been in any
type of treatment program between 2012 and 2020 when she entered
residential drug treatment in this case.
At the conclusion of the hearing’s evidentiary phase, the juvenile
court, focusing on bypassing reunification services, specifically asked
counsel to address whether mother had made reasonable efforts to
treat her problems and whether it would be in the children’s best
interests to offer mother reunification services. Mother’s counsel made
no argument that mother was not a person described in section 361.5,
but argued the court should nonetheless grant reunification services for
L.R. for the following reasons: (1) L.R.’s father was being granted
reunification services so granting mother services would not delay the
proceeding; (2) mother was making efforts to address her substance
abuse, having entered an in-patient drug treatment program; and (3)
both mother and L.R. would benefit from services as mother was
connected to L.R. and visits were going well. As to Z.K., counsel added
that mother was committed to doing all that was necessary to maintain
her sobriety and after completing her in-patient treatment program she
planned to move to a sober living place.
The juvenile court found the allegations in the amended petition
to be true and declared Z.K. a dependent of the court after finding he
was a person described in section 300, subdivisions (b) and (j). The
court granted the agency custody of Z.K. for out of home placement,
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denied mother’s request for reunification services, and set a section
366.26 hearing to consider termination of mother’s parental rights and
permanent placement for Z.K.
The juvenile court also found that denial (bypass) of reunification
services was required under section 361.5, subdivisions (b)(10), (b)(11),
and (c)(2). The court stated this finding was made based on clear and
convincing evidence that mother had not made reasonable efforts to
address her substance abuse problem plus she had failed to show, by
clear and convincing evidence, that reunification services would be in
Z.K.’s best interest. In so finding, the court relied on the following
evidence. For many years mother had been addicted to
methamphetamine and opiates. Her last participation in drug
treatment was in February 2011 and she had no drug treatment
between October 2012 (termination of parental rights over N.K. for
failure to reunify despite services) and her entry into drug treatment in
November 2020. Immediately following Z.K.’s birth in October 2020,
both mother and child tested positive for methamphetamines and
opioids. Mother entered a residential drug treatment program on
November 12, in response to agency and court intervention, and
thereafter she tested positive for methamphetamine at a level showing
she was still using shortly before November 23. Thus, she had “just
less than 30 days of sobriety” at the time of the December 17 hearing.
DISCUSSION
I. Applicable Law
As a general matter, when a child is removed from the custody of
his parents, reunification services must be offered unless a statutory
exception applies. (§ 361.5, subd. (a).) Under section 361.5, subdivision
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(b), the juvenile court “need not” provide reunification services when
the parent has previously failed to reunify with a child’s sibling or half-
sibling and the court finds, by clear and convincing evidence, either of
the following: (1) a parent’s court-ordered reunification services were
terminated after the parent failed to reunify with the sibling or half-
sibling and the parent subsequently did not make reasonable efforts to
treat the problem that led to removal (id., subd. (b)(10)); or (2) a
parent’s parental rights over a child’s sibling or half-sibling were
terminated and the parent subsequently did not make reasonable
efforts to treat the problem that led to removal (id., subd. (b)(11)).
If a parent is found to be described by subdivision (b)(10) or
subdivision (b)(11) of section 361.5, the juvenile court “shall not” 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).) In other words, once the court determines a
parent is one described in subdivision (b)(10) or subdivision (b)(11) of
section 361.5, “ ‘ “the general rule favoring reunification is replaced by
a legislative assumption that offering services would be an unwise use
of governmental resources,” ’ ” and “the burden is on the parent to
change that assumption and show that reunification would serve the
best interests of the child.” (In re William B. (2008) 163 Cal.App.4th
1220, 1227.)
While a parent’s reasonable efforts necessary to avoid the denial
of reunification services “are not synonymous with ‘ “ ‘cure,’ ” ’ . . . not
every ‘effort by a parent, even if clearly genuine, to address the
problems leading to removal will constitute a reasonable effort and as
such render [section 361.5, subdivision (b)] inapplicable. It is certainly
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appropriate for the juvenile court to consider the duration, extent and
context of the parent’s efforts, as well as any other factors relating to
the quality and quantity of those efforts, when evaluating the effort for
reasonableness. And while the degree of progress is not the focus of the
inquiry, a parent’s progress, or lack of progress, both in the short and
long term, may be considered to the extent it bears on the
reasonableness of the effort made.’ ” (Jennifer S. v. Superior Court
(2017) 15 Cal.App.5th 1113, 1121; italics in original (Jennifer S.).)
In reviewing the juvenile court’s finding of reasonable efforts, we
“determine whether the record, viewed as a whole, contains substantial
evidence from which a reasonable trier of fact could have made the
finding of high probability demanded by” the clear and convincing
standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005,
fn. omitted.) We do not “reweigh the evidence itself,” or “insert [our]
views regarding the credibility of witnesses” for those of the juvenile
court; rather we “view the record in the light most favorable” to the
juvenile court’s order, indulging all “reasonable inferences” that the
juvenile court may have drawn from the evidence and accepting the
juvenile court’s resolution of conflicting evidence. (Id. at p. 1008.)
When making the best interest determination under section
361.5, subdivision (c)(2), the juvenile court must decide whether a
parent has showed that the child would benefit from court-ordered
reunification services, after 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.’ ” (Jennifer S.,
supra, 15 Cal.App.5th at p. 1124.) “We review a juvenile court’s best
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interest determination in this context for an abuse of discretion.” (Id.
at pp. 1124-1125.)
II. The Juvenile Court Did Not Err in Finding that Mother
Had Not Made Reasonable Efforts to Address Her
Problems that Led to Removal of Child’s Half-Siblings
Relying on isolated portions of the record, mother contends the
juvenile court should have found she made reasonable efforts to treat
her substance abuse problems that caused removal of the child’s half-
siblings. She asks us to consider, among other things, that at the time
of the December 17 hearing she was engaged in a residential drug
treatment program (that included group sessions in domestic violence
and drug testing) and was in the process of being assessed for therapy
and a program in domestic violence. In addition her visits with Z.K.
were going well.
Our authority is limited to determining whether there is
substantial evidence to support the juvenile court’s finding in favor of
the agency. Whether mother’s circumstances at the time of the
December 17 hearing demonstrated she had made reasonable efforts to
address her substance abuse problems was a question “addressed
peculiarly to [the juvenile] court, which heard [mother’s] testimony and
observed [her] demeanor at [the hearing],” together with the other
evidence admitted at the hearing. (In re Marriage of Sheridan (1983)
140 Cal.App.3d 742, 749.) Mother makes no argument, and we see no
reason to otherwise conclude, that the juvenile court did not fully and
fairly consider the evidence regarding the reasonableness of her efforts
to address her substance abuse problems. We therefore reject mother’s
claim of error on this basis.
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III. Mother’s Argument that the Juvenile Court Should Have
Granted Her Mental Health Services as a Component of
Reunification Services Is Unavailing
Mother also seeks reversal based on a claim that the juvenile
court should have granted reunification services to address her mental
health issues, instead of treating this case “as an everyday drug case.”
According to mother, the court should have had a “more expanded
view” of her mental illness, noting that her “mental illness” should
have been the “ ‘starting’ ” point for reunification services, and that
Z.K.’s dependency would have been the first opportunity for the court to
grant her mental health services. She also contends her untreated
mental health issues may have prevented her from engaging in
programs between 2011 and 2020, but she had “a lot of insight” into her
problems and was amenable to treatment that the juvenile court should
have offered her in this case. We conclude mother’s arguments are
unavailing.
We begin by noting that, at the December 17 hearing, mother
made no assertion, as she does in her writ petition for the first time,
that her mental health issues may have prevented her from engaging
in programs between 2011 and 2020. She also did not proffer any
additional evidence directed at her mental health issues.
While the juvenile court, in denying reunification services, did
not mention mother’s mental health issues, it read and considered the
agency reports that contained the only information regarding those
issues. Additionally, the court took judicial notice of portions of the
records in the earlier dependencies concerning the child’s half-siblings.
Those records showed that mother received reunification services for
N.K. between January 10, 2011 and September 11, 2011 and family
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maintenance services for D.K. between January 10, 2011 and March 1,
2012. While those records did not show the nature of the services,
there is no question that mother was offered services during 2011 when
she contends she was diagnosed with mental health issues and
prescribed medication. These records do not, however, support
mother’s argument that Z.K.’s dependency would have been the first
opportunity for her to receive court-ordered mental health services.
We decline to “infer from the limited record a lack of services.
Notably, [mother] cites no authority for such an approach.” (Steve J. v.
Superior Court (1995) 35 Cal.App.4th 798, 812.) “The rule is well
settled that in examining the sufficiency of the evidence to support a
questioned finding, the appellate court must accept as true all evidence
tending to establish the correctness of the finding as made, taking into
account, as well, all inferences which might reasonably have been
thought by the trial court to lead to the same conclusion. [Citation.]
There is no corollary to this rule which authorizes a reviewing court to
draw inferences from the absence of evidence to overturn the
questioned finding.” (Id. at p. 813.) If it was mother’s position that she
should have been granted reunification services for Z.K. due to a
previous lack of court-ordered mental health services in the earlier
dependencies for the child’s half siblings, she “should have cross-
examined the social worker” or “introduced [her] own evidence on the
issue. . . . [F]or [her] to now make this argument amounts to no more
than an attempted sandbagging of the [juvenile] court. This we cannot
tolerate.” (Ibid.)
Finally, the cases cited by mother to support her argument that
the juvenile court should have considered her “mental illness” as the
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“ ‘starting point’ ” for reunification services, In re K.C. (2012) 212
Cal.App.4th 323 (K.C.) and Patricia W. v. Superior Court (2016) 244
Cal.App.4th 397 (Patricia W.), are factually inapposite as they concern
whether an agency made reasonable efforts to provide reunification
services for a parent with mental health issues. (See K.C., supra, at p.
329; Patricia W., supra, at p. 425.) Here, we are concerned with
whether mother is entitled to reunification services in the first
instance. Given mother’s report that her mental health issues were
diagnosed in 2011, her admitted failure to take prescribed medication,
and her lack of explanation for not seeking treatment between 2012
and 2020 despite her belief her bi-polar disorder was adversely
affecting her daily life, the juvenile court could have impliedly found
there was no clear and convincing evidence that it would be in Z.K’s
best interest to provide mother with mental health services as a
component of reunification services. We therefore reject mother’s claim
of error on this basis.
IV. Conclusion
We deny mother’s petition for writ relief as she has failed to meet
her appellate burden of demonstrating error or an abuse of discretion
in the juvenile court’s denial of reunification services. Our refusal to
grant mother affirmative relief is buttressed by “[t]he intent of the
Legislature, [as expressed in legislation] especially with regard to
young children,” that the dependency process should proceed “with
deliberate speed and without undue delay.” (Marlene M. v. Superior
Court (2000) 80 Cal.App.4th 1139, 1151 (Marlene M.).) “Section 361.5,
subdivision (b) is part and parcel of the legislative scheme and
recognizes that there are cases where delay attributed to reunification
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services is more detrimental to the [child] than the competing policy of
reunification.” (Marlene M., supra, at p. 1151.) Here, the Legislature’s
goal that “dependency actions be resolved expeditiously . . . would be
thwarted if the [December 17 hearing] had to be redone.” (In re Jesusa
V. (2004) 32 Cal.4th 588, 625.)
DISPOSITION
The petition for an extraordinary writ is denied on the merits.
(Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule
8.452(h).) The request for a temporary stay is denied as moot. Our
decision is final immediately. (Cal. Rules of Court, rules 8.452(i) &
8.490(b).)
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_________________________
Petrou, J., Acting P.J.
WE CONCUR:
_________________________
Jackson, J.
_________________________
Wiseman, J.*
A161671
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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