Opinion
D059957 Super. Ct. No. SJ12059B
12-05-2011
In re O.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. E.N., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Garry Haehnle, Judge. Affirmed.
E.N. appeals from a judgment of the juvenile court denying her reunification services relating to her youngest son, O.S., pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (11). She contends that the juvenile court should have authorized services for her because (1) the San Diego County Health and Human Services Agency (the Agency) did not prove, by clear and convincing evidence, that she failed to make reasonable efforts to eliminate the problems that led to the removal of O.S.'s older sibling as necessary for those statutes to apply and (2) in any event, it was in O.S.'s best interests to do so. We find E.N.'s arguments unavailing and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, E.N. gave birth to her third son, M.A. After M.A. tested positive for methamphetamines, the Agency filed a dependency petition on his behalf and detained him. E.N. was immediately referred to reunification services and successfully completed substance abuse treatment, counseling and drug testing.
E.N.'s two older sons were 16 and 20 at the time; the older son lived with E.N., while the second son was placed with his father.
Unfortunately, after leaving her residential treatment program, E.N. slipped back into her former drinking and drug habits and did not stop, even after M.A. was returned to her on a trial basis. The court again removed M.A. in December 2009, ended reunification services for E.N. in March 2010 and terminated her parental rights the following July.
At about the same time that her parental rights to M.A. were terminated, E.N. became pregnant with O.S. and O.S.'s biological father, F.S., was arrested for being under the influence and possessing drug paraphernalia in violation of his parole. Severely depressed as a result of the loss of M.A., E.N. continued drinking and using drugs and was ultimately discharged from an outpatient drug treatment program to which the Agency had referred her.
F.S. had a lengthy criminal history, primarily related to drugs and auto theft. He was not the biological father of any of E.N.'s other sons.
After F.S. was released from jail in November 2010, he convinced E.N. to keep the baby, start getting prenatal care and stop drinking and using drugs. In February 2011, E.N. went into labor four weeks prematurely and gave birth to O.S. at home. (All further relevant dates are in 2011 except where otherwise noted.) Mother and child were taken to the hospital by ambulance; O.S. weighed just less than five pounds, was malnourished and required a feeding tube to keep his food down.
Hospital staff discovered that E.N. and O.S. had amphetamine and methamphetamine in their systems and E.N. admitted to the social worker that she had intentionally ingested the drugs when she went into labor because she did not want to give M.A. a basis for believing that she loved this baby more than him. F.S. was angry when he learned that E.N. had taken drugs and told the social worker that he wanted to be able to take care of O.S. if E.N. could not. Although E.N. was released from the hospital relatively promptly, O.S. remained in the hospital until February 21, when he was placed in a confidential foster home.
The day after O.S. was released the Agency filed a juvenile dependency petition on his behalf, alleging, in part, that there was a substantial risk that he would suffer serious physical harm or illness as a result of E.N.'s substance abuse. Based on E.N.'s history with M.A. and the fact that the same issue led to O.S.'s detention, the Agency recommended that she not be provided with reunification services.
At the detention hearing, F.S. requested voluntary services, informing the court that he had arranged to enter a residential drug treatment program through the Veteran's Village of San Diego (Veteran's Village). E.N.'s counsel also requested voluntary services for her client, representing that E.N. had met with a substance abuse counselor and, in accordance with the counselor's recommendation, would be entering the Community Resources and Self Help (CRASH) residential drug treatment program. The court found that detention was necessary to protect O.S.'s physical health, authorized voluntary services for the parents and advised them they had six months to make substantial progress in services and show that they could safely reunify with O.S. It also authorized liberal supervised visitation for both parents.
F.S. promptly entered the Veteran's Village program; however, despite E.N.'s stated intent to begin treatment, she did not follow through on the referral to CRASH because she wanted to go back to the residential program at KIVA (which she had successfully completed during M.A.'s detention and knew that she would do well in).At the social worker's insistence, however, E.N. finally enrolled in a six-month CRASH residential recovery program on April 4. Both parents were visiting with O.S. on a weekly basis.
E.N. went so far as to lie to the social worker about the availability of a bed at CRASH as a basis for saying that she was pursuing the KIVA program instead.
The social worker's detention report described E.N.'s substance abuse history, which started when she was 13, and her criminal history, which included convictions for first degree burglary, vehicle theft, evading and resisting an officer and drug-related offenses. The social worker opined that E.N. had failed to address her substance abuse problem since M.A.'s removal from her care and recommended that E.N. be denied reunification services on that basis. The social worker recommended that F.S. not be provided with services either, based on his extensive criminal and substance abuse history.
In the meantime, however, F.S. had made significant progress in the Veteran's Village program and program staff reported that F.S. was committed to recovery and had a "strong chance for long-term sobriety." In light of F.S.'s progress and the fact that he had never participated in inpatient drug treatment before, the social worker revised her recommendations regarding reunification services for him and developed a case plan that would provide him with six months of individual therapy, parenting classes, substance abuse treatment and testing.
At the jurisdiction and disposition hearing, the Agency continued to recommend a denial of services for E.N. based on her failure to address her substance abuse problems in or after the dependency proceedings relating to M.A., her intentional decision to use drugs while pregnant with O.S., and her initial resistance to drug treatment in the current proceedings, noting that she had only been at CRASH for a short time. It also questioned whether E.N. would be able to maintain sobriety once she was no longer in a structured setting. E.N.'s counsel argued that, in light of E.N.'s depression and other problems, her recent efforts to address her substance abuse issues were reasonable and that it was in O.S.'s best interests for her to receive reunification services since F.S. was continuing toward reunifying with O.S. The court made true findings on the petition, ordered reunification services for F.S. and continued the dispositional hearing to monitor E.N.'s progress at CRASH.
In early May 2011, O.S. was moved to another confidential foster home and E.N. missed two of her weekly visits with him. She was starting to make progress at CRASH, though, participating in parenting education, career training, drug treatment, volunteering in day-to-day operations of the facility, submitting to drug testing and attending Narcotics Anonymous (NA) meetings twice weekly. E.N. had some difficulty integrating some of the information provided through those services and the social worker was concerned about her failure to be honest with the Agency about her sobriety in both the current proceedings and those involving M.A.
During this time, F.S. relapsed and was discharged from the Veteran's Village program after a dirty drug test; he was very remorseful and, after successfully completing a detoxification program, was re-admitted to Veteran's Village.
At the continued disposition hearing, the court found that E.N. had not made reasonable efforts to address her substance abuse problems after discovering she was pregnant with O.S. or even after O.S. was detained. It concluded that, given E.N.'s extensive history of substance abuse, her recent participation in CRASH did not rise to the level of reasonable efforts to alleviate the problems that had resulted in M.A.'s detention and denied her request for reunification services. It also found that authorizing reunification services for E.N. was not in O.S.'s best interests in light of E.N.'s intentional decision to take drugs just before giving birth to O.S. E.N. appeals.
DISCUSSION
1. Applicability of the Statutory Exceptions to the Services Requirement
If a child is removed from parental custody, family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his parent unless one of the exceptions set forth in subdivision (b) applies. (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188; see also In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 [recognizing that the subdivision (b) exceptions reflect a legislative acknowledgement that it is "fruitless to provide reunification services under certain circumstances."].)
Section 361.5, subdivision (b) provides in pertinent part:
"Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶]
"(10) That the court ordered termination of reunification services for any siblings . . . of the child because the parent or guardian failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent or guardian . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling . . . .
"(11) That the parental rights of a parent over any 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 . . . . "
We review an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.) Accordingly, we must indulge in all reasonable inferences to support the juvenile court's findings and view the record in the light most favorable to its orders. (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) In addition, the appealing parent bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Here, there is no dispute that E.N. failed to reunify with M.A. and that her parental rights were terminated in the juvenile dependency proceeding initiated on his behalf. However, because family preservation is a first priority when child dependency proceedings are commenced and reunification services provide an important tool in achieving that goal, the failure of a parent to reunify with a prior child, standing alone, will not justify the denial of a parent's meaningful chance to do so with that child's sibling. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Instead, a denial of services in such circumstances hinges on whether the parent subsequently made "reasonable" efforts to treat the problems that led to the loss of the rights. (§ 361.5, subds. (b)(10), (11).) To be reasonable, a parent's efforts need not have resulted in a cure of the original problems, but they must be more than " 'lackadaisical or half-hearted.' " (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393, quoting Cheryl P. v. Superior Court (2006) 193 Cal.App.4th 87, 89.)
Applying these standards here, we find that substantial evidence in the record supports the juvenile court's finding that E.N. had not made reasonable efforts to treat the substance abuse issues that led to her failure to reunify with, and the loss of parental rights over, M.A. E.N. had a 20-year history of alcohol and drug abuse. She participated in substance abuse treatment beginning in mid-2008 and successfully completed that treatment in the proceedings relating to M.A., but relapsed fairly quickly and kept drinking and using drugs even after M.A. was returned to her care.
Although E.N. was very upset when her parental rights to M.A. were later terminated, she made no attempt to achieve sobriety after becoming pregnant with O.S. and in fact admitted that she intentionally took drugs when she went into labor. After O.S. was detained, E.N. initially resisted participating in the CRASH program for approximately five weeks and, during that same time, missed at least one drug test. Further, although E.N. made notable progress once she started CRASH, she had only been there for a little more than two months as of the date of the hearing; in light of the fact that the statutes required the juvenile court to consider E.N.'s efforts from the time that M.A. was removed from her care, it could have reasonably concluded that these efforts were too little, too late, and did not rise to the level of what the statutory exceptions contemplate for reunification services to be required. Thus, the court did not err in finding that the statutory exceptions to the general rule requiring services applied.
2. O.S.'s Best Interests
Once the juvenile court determines that one of the exceptions set forth in section 361.5, subdivision (b) applies, the general policy favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of public resources. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744; accord, In re William B. (2008) 163 Cal.App.4th at p. 1227.) Accordingly, where a parent fails to reunify with a dependent sibling after receiving services or where her parental rights are terminated, and she thereafter fails to make a reasonable effort to treat the problems that led to the removal of that sibling, the court cannot order reunification services for her unless it finds, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).)
The juvenile court is vested with " 'very extensive discretion' " in determining what is in the best interests of the child and its determination will not be reversed except for a clear abuse. (In re Eric B. (1987) 189 Cal.App.3d 996, 1005.) The parent's historical circumstances, as well as the current situation, all have bearing on the issue of whether the provision of reunification services is in the best interests of the child. (Shawn S. v. Superior Court (1998) 67 Cal.App.4th 1424, 1430, disapproved on another ground in Renee J. v. Superior Court, supra, 26 Cal.4th at p. 748, fn. 6.)
E.N. argues, as she did in the proceedings below, that she met her burden of establishing that O.S.'s best interests supported the provision of services to her because her continuing relationship with F.S. made it likely that she would continue to be in O.S.'s life. However, the evidence was at best equivocal about whether the parents' relationship would continue. Further, even if the parents had clearly decided to continue their relationship, E.N. has not cited any authority holding that such a circumstance circumscribes or limits the juvenile court's exercise of its discretion. (Compare In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524 [finding no abuse of discretion where the juvenile court ordered reunification services to only one parent]; compare In re Renee J., supra, 96 Cal.App.4th at p. 1464 [stating that where there is "a reasonable basis to conclude that a [parent's] relationship with the current child could be saved, the courts should always attempt to do so"].) Although the law recognizes that it may be in the child's best interests to provide services for a nonreunifying parent who is likely to have continued contact with the child, it is not a foregone conclusion that that will be true in every case. (See In re Alanna A., supra, 135 Cal.App.4th at pp. 565-566 [recognizing that the court has discretion to terminate services for one parent while continuing reunification services to the other parent]; In re Jesse W. (2007) 157 Cal.App.4th 49, 55-56.)
Here, after considering E.N.'s history, including her extensive substance abuse, her failure to even begin to address that problem until shortly before the hearing and her intentional decision to take drugs when she went into labor, the juvenile court concluded that it would not be in O.S.'s best interests to order reunification services for her. Given that E.N. did not make any showing of a particularly strong bond with either O.S. or F.S. or put forth any other basis on which the juvenile court might have concluded that providing her with reunification services was in O.S.'s best interests, we cannot conclude that the court abused its discretion in finding that E.N.'s past performance made it unlikely that offering reunification services to her would inure to O.S.'s benefit.
As noted by the Agency, the fact that the court's order denied E.N. reunification services does not preclude her from working toward reunification on her own and, if she continues to make progress, from seeking a modification of that order. (§ 388.)
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DISPOSITION
The judgment is affirmed.
IRION, J.
I CONCUR:
HUFFMAN, Acting P. J.