Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 79872
Banke, J.
G.Q. (Mother) challenges an order of the San Mateo County Superior Court, Juvenile Division, made December 17, 2009, in which the court set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minor J.Q. (born June 2008). Mother challenges the juvenile court’s ruling that denied reunification services after making findings pursuant to section 361.5, subdivision (b)(10) and (11). She also objects to certain comments made by the court after closing argument but before its ruling. As discussed below, we conclude substantial evidence supports the findings, and conclude further that the court’s remarks were not prejudicial. Accordingly, we deny Mother’s petition on the merits.
All further statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
The San Mateo County Human Services Agency (Agency) initiated this proceeding on September 18, 2009. The minor was initially removed from Mother’s custody three days later, pursuant to a formal order of detention.
The petition, as amended, requested that the juvenile court declare the minor a dependent of the court pursuant to section 300, subdivision (b). Specifically, it alleged: (1) Mother had an extensive criminal and drug abuse history, and had “not been able to ameliorate her drug abuse issues in that on September 8, 2009, [she] was arrested for being under the influence and in possession of methamphetamines and the eighteen-month-old child was under [her] care at the time”; (2) Mother afterwards agreed to voluntary services, which required that she submit to drug testing and not return to her previous residence, which was known to have drug traffic, yet Mother returned to the previous residence and failed to test on several occasions; (3) Mother’s association with other drug users had resulted in her being in violent situations—in August 2009 a woman attempted to stab her outside her residence while the child was in the residence, and on September 14, while the minor was present, she was assaulted and battered by her live-in boyfriend; and (4) Mother had lost parental rights to one of the minor’s older half siblings due to her continued drug abuse.
The petition included an additional allegation that Andrew Q. (Father) was incarcerated for drug related offenses and was unable to care for the minor.
In its initial report prepared for the jurisdictional/dispositional hearing (the hearing), completed on October 9, 2009, the Agency recommended that the court not offer reunification services, pursuant to section 361.5, subdivision (b)(10) and (11) (hereafter subdivision (b)(10) and (11)). Specifically, in a prior dependency proceeding, the court had terminated Mother’s reunification services, and then her parental rights, with respect to a half sibling of the minor. Further, the half sibling had been removed from Mother’s custody as a result of her drug abuse, and Mother had not subsequently made a reasonable effort to treat that problem. (See § 361.5, subd. (b)(10) & (11).)
Section 361.5, subdivision (b), provides that “[r]eunification services need not be provided to a parent... when the court finds, by clear and convincing evidence” that the parent is described by one or more enumerated paragraphs of that subdivision. Paragraph (10) describes a parent as to whom “the court ordered termination of reunification services for any siblings or half siblings of the child because the parent... failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent... and that, according to the findings of the court, this parent... has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent.” Paragraph (11) describes a parent as to whom “parental rights... over any sibling or half sibling of the child had been permanently severed... and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”
At the hearing, held December 17, 2009, the juvenile court sustained the amended allegations of the petition in their entirety. It further denied reunification services to Mother, adopting the Agency’s recommended findings under subdivision (b)(10) and (11). The court accordingly set the matter for a hearing under section 366.26. Mother’s petition followed. (§ 366.26, subd. (l).)
The juvenile court also denied reunification services for Father, pursuant to section 361.5, subdivision (e)(1).
Discussion
A. “Reasonable Effort”
Mother contends the juvenile court erred in denying her reunification services because the conditions for denial of services, set out in subdivision (b)(10) and (11) were not met. The gist of her argument focuses on the court’s findings that she had “not subsequently made a reasonable effort to treat the problems that led to the removal” of the minor’s half sibling. In her view, there was sufficient evidence to support a finding that she had subsequently made a reasonable effort to treat her drug abuse problem, and there was not clear and convincing evidence to the contrary. She relies particularly on evidence that, after the removal of the minor’s half sibling, she completed a drug treatment program and remained clean and sober for some three years before her relapse in 2009. In addition, she started a drug treatment program in this case prior to the hearing. Mother also points to decisions holding that a “reasonable effort” need not result in an actual resolution of the problem. (See In re Albert T. (2006) 144 Cal.App.4th 207, 221 (Albert T.); Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.).)
We do not consider whether the record would support a finding the juvenile court might have made—that Mother did make a reasonable effort. Our review is limited to a determination whether substantial evidence supports the finding the court did make—that Mother did not make a reasonable effort. (See In re Brian M. (2000) 82 Cal.App.4th 1398, 1401 & fn. 4.) In doing so, “ ‘we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ ” (In re Angelique C. (2003) 113 Cal.App.4th 509, 519.) In the case of the “bypass findings” set out in section 361.5, subdivision (b), “ ‘[t]he sufficiency of evidence to establish a given fact, where the law requires proof... to be clear and convincing, is primarily a question for the trial court to determine.’ ” (Angelique C., at p. 519.) “Thus, on appeal from a judgment required to be based upon clear and convincing evidence, ‘the clear and convincing test disappears... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.’ ” (Ibid.)
Here the record shows that Mother began experimenting with drugs at the age of 15 years. When she gave birth to the minor’s older half siblings, “she did not feel like she wanted to parent them and felt that drugs were more important.” One of the minor’s half siblings was removed from Mother’s care in June 2003, primarily because he was born with a positive toxicology for methamphetamine. The juvenile court in that proceeding terminated Mother’s reunification services in March 2004 and terminated her parental rights in July 2004.
There is no evidence Mother made any effort to address her drug abuse during the subsequent 16 months. She received a prison sentence following conviction for possession of a controlled substance for sale on November 21, 2005. Mother reported to the Agency that she was released on parole in 2005. She admitted she then started using methamphetamine again. After one “dirty” drug test, Mother’s parole officer required that she enter and complete an inpatient substance abuse treatment program. She complied, and completed a three-month residential program administered by Women’s Recovery Association (WRA), followed by nine months in a transitional housing. It is reasonable to assume that when Mother left transitional housing, it was no earlier, and probably sometime later than, November 2006. Mother claimed she remained clean thereafter until January 21, 2009. Yet she received, on April 30, 2007, a suspended sentence and probation of 18 months following a conviction for being under the influence of a controlled substance. Whatever the length of Mother’s period of sobriety, it ended when the minor was seven months old.
After this relapse Mother began to use the drug regularly, sometimes daily. At the hearing, Mother admitted during cross-examination that she, as well as others she was “hanging around with,” used drugs at her apartment while the minor was there in her care. At times she left the minor at the apartment when others were there using drugs.
On September 8, 2009, the Agency received a referral to the effect that the minor, then 15 months old, was living with his Mother in an apartment where she was using methamphetamines and was permitting others to use the apartment “to smoke and sell drugs.” On September 9, after the Agency had forwarded the referral to police, officers of the San Mateo Police Department conducted a welfare check of Mother’s apartment, and arrested Mother after finding her under the influence of and in possession of a small amount of methamphetamine while the minor was in the apartment. That same day, Mother agreed to a voluntary safety plan proposed by the Agency, which required that she complete a drug assessment, drug test twice weekly, and remain drug free.
On September 14, 2009, Mother made a 911 call, and reported she had just been beaten by a man, and that she had fled from her apartment leaving the minor there with the suspect. Police officers responding to the call found the apartment door wide open, and upon entering found the minor alone there, crying. Mother told officers she had been beaten by a man she had been “[h]anging out” with for about three months, and had run out of the apartment after someone else entered and asked him a question. She also reported the man had assaulted and battered her three days earlier, and he had told her that if she called the police he would wreck her car and frame her for drugs he had in his possession.
On September 16, 2009, Mother agreed with the Agency to undertake a three-month voluntary case plan. Among other things, she agreed to leave the apartment and live with a relative, complete a drug assessment, submit to random drug testing, apply for substance abuse treatment, enroll in a program to address substance abuse, and remain drug free.
On September 18, 2009, the Agency filed its original petition in this proceeding, after learning that Mother had returned to her apartment. She did so with the knowledge that it placed the minor at risk, in that an unknown woman had attempted to stab her outside the apartment some three weeks previously. Mother had also tested positive for methamphetamine use on one occasion, had failed to submit to random testing on two occasions, and had failed to engage in substance abuse treatment services.
It appears Mother was charged with possession of a controlled substance following her arrest on September 9, 2009. In any event, she was arrested on October 20 for failing to make an appearance in a criminal action involving that charge. At the hearing, Mother admitted she was convicted in that criminal matter later in October, after which she “got sentenced to Prop 36.” In response to questioning by the juvenile court, she admitted that the sentencing judge in the criminal matter had ordered her to enter a drug treatment program.
Mother began a residential drug treatment program at WRA in early November 2009. After participating in the program approximately one week, she learned there was a “hit” out on her, and for her personal safety was transferred to a residential treatment program at Project Ninety, Incorporated. She began treatment there on November 19. At the hearing on December 17, she admitted she had been in treatment only “five weeks or so.”
Viewing the foregoing evidence in the light most favorable to the challenged ruling, we are satisfied it provides substantial support, such that a reasonable trier of fact could find, under the clear and convincing evidence standard, that Mother did not subsequently make a reasonable effort to treat the problem that led to the removal of the minor’s half sibling, within the meaning of subdivision (b)(10) and (11).
The authorities on which Mother chiefly relies are distinguishable and do not persuade us to reach a different conclusion. In Albert T., supra, 144 Cal.App.4th 207, the minor was removed for domestic violence problems and the lower court denied reunification services because the mother had not made a reasonable effort to treat this problem since the prior removal of a sibling. The reviewing court noted there was ample evidence of her efforts to treat the problems of domestic violence, and the juvenile court had essentially relied on the fact that mother’s efforts had not actually resolved the problem. (Id. at pp. 220-221.) Here it is clear the juvenile court did not rely solely on the fact that Mother had not actually resolved her problem, but on the evidence relating to the reasonableness of her efforts to treat the problem of her drug abuse.
In Renee J., supra, 96 Cal.App.4th 1450, the juvenile court failed to apply a recently enacted amendment to subdivision (b)(10) and (11), which expressly added the “reasonable effort” requirement to each provision. (Renee J., at pp. 1457, 1463.) The social services agency contended the error was harmless, because there was evidence showing that the mother had not, for a period of time, made a reasonable effort to treat her drug abuse. The reviewing court rejected this argument, concluding it was speculative to assume the juvenile court would have focused on this period of time, to the exclusion of other time periods that showed her efforts overall had been “remarkably good.” (Id. at p. 1464.) Thus, unlike the lower court in this case, the juvenile court in Renee J. never considered whether the parent had made a “reasonable effort.” Moreover, the record here, viewed in the light most favorable to the ruling, does not indicate that Mother’s efforts were “remarkably good” overall.
We conclude the challenged findings are supported by substantial evidence.
B. Comments After Closing Argument
During closing argument at the hearing, Father’s counsel argued in favor of giving Mother reunification services. At one point he said “[b]y all accounts [the minor] is currently in a safe place.” After closing argument, the juvenile court remarked as follows: “[Father’s counsel’s] assertion that [the minor] is in a safe place? Well, the test for this Court is not whether the child is in a safe place. The test that is before us is the child’s safety, but, more important, to achieve permanency.”
Counsel was referring to the minor’s current placement with a relative. It appears to us this statement was meant to support counsel’s argument that it was preferable to grant reunification services to Mother and “then... come back and see how it evolves in the next six months.”
Mother claims the juvenile court erred in making this comment. She reasons that it indicated that the court was improperly focusing on permanency for the minor at the dispositional stage of the proceeding, and was not giving appropriate weight to her “constitutional interests in the care, companionship and custody of her child.”
We see nothing prejudicial in this statement by the juvenile court. It preceded and was not a part of the ruling. It may be characterized as a rejection of the argument by Father’s counsel. The court’s remarks otherwise express its view of the evidence in explanation of its forthcoming ruling.
Section 361.5, subdivision (b), authorizes but does not require a denial of services once a juvenile court has found that a parent falls within one of the subdivision’s enumerated paragraphs. (Renee J., supra, 96 Cal.App.4th at p. 1464.) In our view the juvenile court, at worst, was articulating, albeit obliquely, an intention to exercise its discretion to deny reunification services to Mother based on the evidence presented. Once services are denied, the focus of the proceeding shifts immediately from the parent’s interest in reunification to the child’s interest in permanency. (See In re Marilyn H. (1993) 5 Cal.4th 295, 304.)
There is nothing else in the record to suggest that the court slighted or disregarded Mother’s interests at the dispositional stage of this proceeding. We conclude the challenged comment discloses no prejudicial impropriety.
Disposition
The request for stay is denied and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur: Marchiano, P. J., Dondero, J.