Opinion
A149885
01-18-2017
In re G.W., a Person Coming Under the Juvenile Court Law. G.W. et al., Petitioners, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; MARIN COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV26280A)
I.
INTRODUCTION
Petitioners G.W. (Father) and S.W. (Mother) file petitions for an extraordinary writ seeking review of the court order setting a hearing under Welfare and Institutions Code section 366.26 to consider termination of parental rights and a permanent plan for six-year-old G.W.
All further statutory references are to the Welfare and Institutions Code unless otherwise identified. --------
Both Mother and Father (Petitioners) contend the juvenile court erred in bypassing reunification services under section 361.5, subdivision (b)(13) because there was not clear and convincing evidence Petitioners had a history of chronic drug and alcohol abuse, and they had resisted treatment over a three-year period. We deny the writ petitions on the merits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2016, the Marin County Department of Social Services (the Department) filed a juvenile dependency petition pursuant to section 300, subdivision (b)(1) for then five-year-old G.W. The detention report alleged that there was substantial danger to G.W.'s physical and emotional health from both parents.
The family had a lengthy history of referrals beginning when G.W. was an infant. In the previous four years, there were a total of 15 child welfare referrals, with investigations into 9 of them. In March 2013, Father was arrested for a driving under the influence (DUI) and possession of cocaine, and Mother was hospitalized under Penal Code section 5150 as a danger to herself or others. G.W. was taken into protective custody and placed in foster care. The next day Father was also arrested for assault and was in jail.
In April 2014, G.W. was returned to her parents' custody, but placed solely in her Father's care after Mother overdosed on heroin while G.W. was home with her. The court ordered a detailed safety plan for G.W. Shortly thereafter, in May 2014, G.W. was placed in foster care because Father did not adhere to the safety plan and allowed G.W. to stay with Mother. G.W. was then returned to Father's care.
In December 2015, the Department received reports that G.W. was in a "crack[]house" with Mother, who was using cocaine and methamphetamine. Both parents agreed to attend Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings and submit to drug testing. The Department attempted to provide Mother with referrals to substance abuse treatment programs and psychological counseling.
The most recent incident leading to the current petitions involved a domestic violence incident between Mother and Father in G.W.'s presence. Father punched Mother and G.W. was hit in the head when Father attempted to grab her from Mother's arms. Father had, once again, violated the safety plan by allowing G.W. to be in Mother's care. Father was found passed out with a knife in his sock and a bag of methamphetamine. Father was arrested for domestic violence and possession of a controlled substance. Mother continued to have positive drug tests for methamphetamine and opiates.
At the detention hearing, the juvenile court found that the Department made a prima facie case that G.W. was subject to the court's jurisdiction, and ordered the child be removed from the physical custody of both parents.
The Department filed a jurisdiction and disposition report in June 2016, which stated that Petitioners agreed to the allegations under section 300, subdivision (b). The report stated that there have been a total of 15 referrals regarding G.W. since she was an infant, all involving the parents' substance abuse and domestic violence. G.W. has been detained three times in the previous three years.
The report stated: "After almost three years of services, where both parents have been offered and engaged in court ordered drug and alcohol inpatient and outpatient treatment, participated in AA meetings, develop sober support groups and identify sponsors to help them with maintaining their sobriety, participate in both individual and couples therapy, work with a parent partner for parent education and support, [and] undergo drug testing[, . . .] G[.W.] is back in foster care. Sadly[,] after all the services and support neither parent is capable of prioritizing their 5[-]year[-]old daughter['s] needs for consistent, stable and safe care." Over the previous four months, the Department had offered services and made multiple efforts to keep G.W. in her parents' care, with no success. The Department requested the case be set for a dispositional hearing.
On July 6, 2016, the Department filed a "Notice of Bypass of Reunification Services," and the court scheduled a contested hearing on October 18, 2016.
Prior to the hearing, the Department filed a disposition report in August 2016. It outlined the family's lengthy history with the Department. It documented that after a period of sobriety, both parents resumed regular drug use in the fall of 2015. Father admitted using marijuana, cocaine and alcohol beginning in September 2015 after being "clean and sober" since May 2014. The report stated the Department had made substantial efforts to assist both parents in getting treatment for their longstanding substance abuse, but both parents "are resistant to benefitting from treatment and they are unable to sustain their commitment to sobriety." Both parents had been receiving treatment for all of G.W.'s life, but they continually return to using drugs.
At the hearing on October 18, 2016, social worker Tony Milani testified that Father had an extensive history of drug and alcohol use for the past 25 years. The family had 15 referrals, all of them having to do with substance abuse or alcohol. The Department provided 30 months of services between March 2013 and August 2015, during which time Father participated in Adult Drug Court, Center Point outpatient treatment and AA. One month after the case was closed in 2015, Father began using again. During the period of March 2013 to March 2016, Father resisted treatment, which included a diluted drug test and a missed drug test.
Mr. Milani testified that Mother also had an extensive history of drug and alcohol abuse for a period of approximately 27 years. Mother was also provided with 30 months of services, during which time she participated in both inpatient and outpatient treatment programs, but during that time she tested positive for opiates and methamphetamine. During the three-year period from 2013 to 2016, treatment staff reported that Mother was focused on Father rather than on recovery.
Both parents did have a period of sobriety of approximately one year from May 2014 to July 2015. Father successfully completed drug court and residential treatment and was reunified with G.W. in August 2015. As of the date of the hearing, Father was in living at Gateway Sober Living Environment, where he attended daily meetings and was drug tested.
Mr. Milani testified that despite periods of sobriety, during G.W.'s six years of life, for more than four of those years, the parents had chronic and ongoing substance abuse issues.
The court found the parents had received 30 months of services by August 2015 including therapy, sponsors, parent education, and drug testing. The case was closed in August 2015 because both parents appeared to be sober and free of drugs, but by December 2015, both parents had resumed using drugs and alcohol and were resistant to treatment. In addition, G.W. was exposed to further domestic violence. G.W. has been removed from her parents on three separate occasions due to their chronic drug and alcohol use. "Each parent has resisted Court-ordered treatment due to their extensive abuse and chronic use of drugs and alcohol during the three-year period immediately preceding the current petition." The court found by clear and convincing evidence that Mother and Father should not receive reunification services pursuant to section 361.5, subdivision (b)(13). The court declared G.W. a ward of the court and set the matter for a hearing pursuant to section 366.26 on February 27, 2017.
III.
DISCUSSION
A. Standard of Review
In reviewing an order denying reunification services, we determine if substantial evidence supports it. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196.) "[W]e resolve all conflicts in the evidence in favor of the juvenile court's finding. [Citation.]" (Ibid.) "A juvenile court has broad discretion when determining whether . . . reunification services would be in the best interests of the child under section 361.5, subdivision (c). [Citation.] An appellate court will reverse that determination only if the juvenile court abuses its discretion. [Citation.]" (In re William B. (2008) 163 Cal.App.4th 1220, 1229 (William B.).) The substantial evidence standard applies even if the standard of proof in the trial court is clear and convincing evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
B. The Court Properly Bypassed Reunification Services to Both Parents
The purpose of reunification efforts is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 (Baby Boy H.).) However, it is also the "intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay. [Citations.]" (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) In some cases, the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. (Ibid.) Specifically, section 361.5, subdivision (b) exempts from reunification services " 'those parents who are unlikely to benefit' " from such services or for whom reunification efforts are likely to be "fruitless." (In re Joshua M. (1998) 66 Cal.App.4th 458, 467, 470, 474; Baby Boy H., supra, 63 Cal.App.4th at p. 478.) Under such circumstances, a child's need for stability and permanence outweighs a parent's interest in reunification.
Under section 361.5, subdivision (b)(13), the court need not order reunification services if it finds by clear and convincing evidence that "the parent or guardian of the child 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[.]" (§ 361.5, subd. (b)(13).) 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.]" (In re Levi U. (2000) 78 Cal.App.4th 191, 200.)
In Laura B. v. Superior Court (1998) 68 Cal.App.4th 776 (Laura B.), the court bypassed reunification services because Laura had a chronic substance abuse problem and had resisted treatment during the three years prior to the petition being filed. (Id. at p. 780.) Laura had been an addict for 18 years. She had completed at least three substance abuse treatment programs during the previous three years. (Ibid.) After a period of sobriety, she began using drugs again. (Ibid.)
"[R]esistance would be easiest to prove if the facts demonstrated that the parent entered one or more available programs during the relevant period only to drop out repeatedly without completing them. But, as we recently noted in Randi R. v. Superior Court (1998) 64 Cal.App.4th 67 . . . , the concept of resistance does not require opposition to treatment by direct action. (Id. at p. 73.) What [the social services agency] is required to show is that a parent has previously undergone or enrolled in substance abuse rehabilitation. Then, during the three years prior to the petition being filed, the parent evidenced behavior that demonstrated resistance to that rehabilitation. Such proof may come in the form of dropping out of programs, but it may also come in the form of resumption of regular drug use after a period of sobriety." (Laura B., supra, 68 Cal.App.4th at p. 780.) The court distinguished between "fall[ing] off the wagon on one or two occasions" and the parent returning to consistent, habitual substance abuse. (Ibid.)
A brief relapse does not necessarily demonstrate resistance to treatment. But the resumption of drug use does. (William B., supra, 163 Cal.App.4th at p. 1230 [finding § 361.5, subd. (b)(13) applied where the father began using drugs again on a regular basis after successfully completing a substance abuse treatment program].)
Here, both parents have an "extensive, abusive, and chronic" substance abuse problem. There have been a total of 15 child welfare referrals since G.W.'s birth, all related to substance abuse. Mother had a lengthy history of drug and alcohol abuse for a period of approximately 27 years. Father had a history of drug and alcohol abuse for the past 25 years. G.W. had been removed from the parents' custody three times due to substance abuse by both of them.
Both parents engaged in prior court-ordered substance abuse treatment and both had successfully completed various programs, but both returned to substance abuse repeatedly. Mother argues that she did not resist treatment because she completed two prior court-ordered treatment programs. She contends she was sober for well over a year and her current use was just a relapse. Father similarly argues that he has been sober for 25 months over the previous three-year period.
Neither parent simply "f[ell] off the wagon" with an occasional relapse—both returned to chronic substance abuse. At the time of the most recent incident, Mother was using methamphetamine and opiates. Father was arrested with methamphetamine. (See In re Brooke C. (2005) 127 Cal.App.4th 377, 383 [finding after many years of substance abuse, where mother completed an outpatient drug abuse program, but resumed drug use shortly thereafter, mother had "engaged in more than a brief relapse, that she had instead resisted treatment"].)
In her short life, G.W. has been removed from her parents' custody three times due to their chronic substance abuse and domestic violence. As the court said in William B., where the children were similarly removed from their parents' custody for the third time due to substance abuse, "[t]hree times is enough." (William B., supra, 163 Cal.App.4th at p. 1223.) We conclude the juvenile court did not abuse its discretion in ordering a bypass of reunification services to Mother and Father.
IV.
DISPOSITION
The petition for writ of mandate is denied on the merits. (§ 366.26, subd. l(1)(C); Cal. Rules of Court, rule 8.452.) The request for a stay is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.