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In Re B. S., A Person Coming Under the Juvenile Court Law. v. A. S


April 19, 2011


(Super. Ct. No. JD227622)

The opinion of the court was delivered by: Robie, Acting P. J.

In re B.S. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the mother of the minor, appeals following a dispositional hearing at which she was denied reunification services. (Welf. & Inst. Code,*fn1 § 395.) Appellant claims the juvenile court erred by denying her services. Finding no merit to this claim, we affirm.


The minor was first the subject of a dependency petition in June 2008, shortly after her birth, due to appellant's history of methamphetamine abuse, which had led to the termination of her parental rights to three other children in December 2007. In the minor's first dependency case, appellant completed intensive outpatient treatment and consistently tested negative for controlled substances. In January 2009, the minor's dependency status was terminated.

In June 2010, a new dependency petition was filed concerning the minor, now two years old, alleging that appellant began using methamphetamine again on a daily basis approximately six months earlier, until she was arrested in May 2010. According to appellant, she cut her use to two or three times per week when she discovered she was pregnant. Appellant did not feel she had a substance abuse problem and denied that her drug use affected her parenting. Although she was cooperative during a drug assessment, she did not appear to have much insight into why she had relapsed.

Appellant claimed to have a strong bond with the minor. However, the maternal grandmother, with whom appellant lived, reported that she was the minor's primary caregiver and that appellant left each day to go out with friends. The minor "cried uncontrollably" at the end of visits with the grandmother, whereas there was no similar report regarding the minor's reaction to separation from appellant.

Based on appellant's failure to reunify with her other children and her "passive[] resist[ance]" to substance abuse treatment, the social worker recommended against offering her reunification services.

The jurisdictional/dispositional hearing took place in August 2010. Appellant had reported to the social worker that she was participating in outpatient treatment, as well as individual counseling, a parenting class, and an anger management class. According to the social worker, appellant was appropriate and interactive with the minor during visits, and the minor enjoyed the visits. However, the social worker continued to recommend that services not be provided to appellant because she had participated in services in two previous dependency proceedings but continued to abuse controlled substances and did not show adequate insight regarding her substance abuse.

The juvenile court sustained the allegations in the petition and declined to order services for appellant. The court found that appellant had a chronic substance abuse problem, had been resistant to prior court-ordered treatment during the three years preceding the filing of the current petition (§ 361.5, subd. (b)(13)), that her reunification services and parental rights had been terminated with regard to her other children, and she had not subsequently made reasonable efforts to treat the problem leading to their removal. (§ 361.5, subd. (b)(10) & (11)). The matter was continued six months because the whereabouts of the minor's father were unknown. (§ 361.5, subd. (b)(1).)



Denial Of Reunification Services

Appellant argues she was improperly denied reunification services. She is incorrect.

Section 361.5, subdivision (b) provides that reunification services may be bypassed if one of the enumerated bases for denying services is established by clear and convincing evidence. An order denying services under section 361.5, subdivision (b) is reviewed for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

In the present matter, one of the bases relied on by the juvenile court for denying reunification services is set forth in section 361.5, subdivision (b)(13), which provides, in part, that services may be denied when a parent has a history of extensive, abusive and chronic use of drugs or alcohol and has resisted court-ordered treatment during the three years preceding the filing of the current petition. Numerous cases have held that the requirement of resistance to court-ordered treatment in this subdivision may be satisfied with evidence that the parent participated in court-ordered treatment but subsequently returned to substance abuse. (See, e.g., In re Brooke C. (2005) 127 Cal.App.4th 377, 382; In re Brian M. (2000) 82 Cal.App.4th 1398, 1402-1403; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.)

For example, in Randi R. v. Superior Court, supra, 64 Cal.App.4th at page 67, the mother had completed two treatment programs but subsequently was arrested when police found drugs and paraphernalia in her car. Noting the mother's numerous attempts at rehabilitation and the fact that, on two occasions, she relapsed within a year following treatment, the court concluded that "while she has technically completed rehabilitation programs, her failure to maintain any kind of long-term sobriety must be considered resistance to treatment." (Id. at pp. 69-70, 73.)

Appellant's circumstances are similar. During dependency proceedings involving her three other children, appellant failed to complete substance abuse treatment and continued to test positive for methamphetamine. And despite compliance with her case plan during the minor's previous dependency matter, appellant resumed methamphetamine use a year after dependency jurisdiction was terminated and continued her substance abuse even after learning she was pregnant. Moreover, even with all of the treatment appellant had received, she was unable to acknowledge that she had a substance abuse problem and that her drug use affected her parenting. In short, appellant's history falls squarely within the definition of resistance to treatment.

Appellant acknowledges that a significant relapse is sufficient to establish resistance to treatment for purposes of denying services under section 361.5, subdivision (b)(13). She argues, nonetheless, that "this broad definition of 'resistance' [should] be rejected in this case" because her compliance with services during the minor's prior dependency and her "relatively lengthy period of sobriety" provided a "reasonable basis to conclude that the relationship with the [minor] could be saved." She relies on language in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, stating that the bypass provisions in section 361.5 constitute recognition by the Legislature that services may be fruitless in some cases, but if "despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so." (Renee J. at p. 1464.)

Renee J. is distinguishable, as it involved a harmless error review of a juvenile court's erroneous denial of services based on a different bypass provision. In that case, the parent made considerable efforts to address her substance abuse while the legal question at issue made its way through the courts and the Legislature. Consequently, the appellate court concluded that the error could not be deemed harmless because the juvenile court could have focused on the parent's progress "and determined that further efforts to deal with the problem would not have been 'fruitless.'" (Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1464.)

The matter before us, in contrast, involves an evaluation of the sufficiency of the evidence to support the juvenile court's denial of services. Given appellant's history, there is ample evidence to support the court's determination that offering her services would be fruitless.

As we conclude the juvenile court properly denied appellant reunification services under section 361.5, subdivision (b)(13), it is unnecessary for us to address the other grounds relied on by the juvenile court for denial of services. (In re D.F. (2009) 172 Cal.App.4th 538, 546; In re Jasmine C. (1999) 70 Cal.App.4th 71, 76.)


Application Of Section 361.5, Subdivision (c)

Appellant also asserts that, even if the juvenile court properly applied section 361.5, subdivision (b), it abused its discretion under subdivision (c) of the statute by not ordering services for her. Again, we disagree.

As already discussed, section 361.5, subdivision (b), enumerates circumstances under which the juvenile court "need not" provide reunification services to a parent. According to subdivision (c) of the same statute, if a parent falls within certain paragraphs of subdivision (b), including those under which the court denied services to appellant, "[t]he court shall not order reunification for [that parent] . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) A juvenile court's determination in this regard is subject to review for abuse of discretion. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)

"Once it is determined one of the situations outlined in [section 361.5,] subdivision (b) 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 Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) "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.) "To determine whether reunification is in the child's best interest, the court considers 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."

(In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.)

In the present matter, the juvenile court was warranted in concluding that offering appellant reunification services would not be in the minor's best interest. The seriousness of appellant's substance abuse problem is beyond dispute. Her drug use was directly related to the loss of her parental rights to three other children and was the basis for the earlier dependency case concerning the minor. The relapse that resulted in the current proceedings involved months of regular methamphetamine use by appellant, which she continued even when she discovered she was pregnant. This egregious history of relapses could properly give rise to skepticism with regard to her current efforts to rehabilitate. The gravity of appellant's substance abuse problem weighed heavily against pursuing reunification.

Nor was there compelling evidence that the minor's bond with appellant dictated in favor of pursuing reunification. Although there was evidence of this bond during the minor's first dependency case, the strength of the bond was not as evident when the current proceedings were initiated. By this time, the maternal grandmother had become the minor's primary caregiver, and it was separation from the grandmother at the end of visits that caused the minor difficulty. In any event, a child's bond with a parent "cannot be the sole basis for a best interest finding." (In re William B., supra, 163 Cal.App.4th p. 1229.)

Appellant maintains that, as a six-month continuance was required in any event because the whereabouts of the minor's father were unknown (§ 361.5, subd. (b)(1)), the minor's interest in permanency would not be affected by a grant of services to her. But the necessity of a continuance does not mean that providing appellant services in the interim would benefit the minor, particularly when the likelihood of long-term success was so slim.

Accordingly, we conclude the juvenile court did not abuse its discretion by declining to order reunification services for appellant.


The juvenile court's orders are affirmed.

We concur: BUTZ, J. DUARTE, J.

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