IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 13, 2011
IN RE D.K. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.R., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD228707, JD230737)
The opinion of the court was delivered by: Murray , J.
In re D.K.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.K. and D.K., appeals following orders made at a jurisdictional hearing as to J.K. (Super. Ct. Sacramento County, No. JD230737) and a hearing on a modification petition as to D.K. (Super. Ct. Sacramento County, No. JD228707). Appellant was denied reunification services with J.K. and granted continuing family maintenance services with D.K., the older of the two minors. Both minors were residing with their father. (Welf. & Inst. Code, §§ 361.5, subd. (b)(13), (c), 364, 388, 395.)*fn1
Appellant acknowledges that there was a basis to deny her services with J.K., but claims the juvenile court erred by failing to exercise its discretion under section 361.5, subdivision (c), to grant her services. Discerning no abuse of discretion on the part of the juvenile court with regard to J.K., we affirm the judgment and orders in case No. JD230737. Because appellant has made no claims on appeal with regard to D.K., we dismiss the appeal in case No. JD228707.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2008, a dependency petition was filed by the Sacramento County Department of Health and Human Services (the Department) concerning newborn D.K. The petition alleged that appellant had an ongoing substance abuse problem and that she and D.K. had tested positive for amphetamine and marijuana at the time of D.K.'s birth. Appellant, age 28, initially did not deny nor confirm drug use. Shortly thereafter, she admitted she had been using methamphetamine since she was 21 years old and that her substance abuse was problematic. After D.K.'s birth, appellant said she wanted to address her addiction through treatment. The father denied any knowledge of appellant's substance abuse and wanted D.K. placed with him if appellant could not keep her. At the initial hearing, the juvenile court ordered D.K. returned to appellant, who subsequently moved in with the father.
According to a subsequent report prepared by the Department, two of appellant's other children (older half siblings of D.K. and J.K.) had been permanently removed from appellant's care in proceedings conducted in another county, and were living with the maternal grandmother. Another child, the older sibling of D.K. and J.K., tested positive at birth for marijuana and amphetamine and had been declared a dependent child of the juvenile court, also in another county. This child was in the care of the father. Appellant had received about 18 months of substance abuse treatment previously, and had been referred to 10 months of inpatient treatment; however, she left without graduating from the program. She used methamphetamine within a month of being discharged from this program.
Noting there was a basis for denying services to appellant based on her failure to reunify with three other children, the Department nonetheless recommended services for appellant because D.K. appeared to be thriving in appellant's care and bonding with her.
In January 2009, the juvenile court sustained the allegations in the petition, adjudged D.K. a dependent, and ordered D.K. placed with appellant and the father with reunification services. A little more than one week later, appellant entered a plea of no contest to a criminal violation of Health and Safety Code section 11550, subdivision (a), "Unlawfully Under the Influence of a Controlled Substance."
Appellant tested positive for methamphetamine, amphetamine, and marijuana in May and June 2009. After the May results were called to appellant's attention during the June 2009 case conference, appellant initially denied use and claimed the results were a mistake. After the sample she provided in June tested positive, appellant again denied use. Eventually, she admitted using with a friend in June while the father was visiting in Texas. She also admitted the results from the May test were accurate. She then agreed to attend an intensive, four-day outpatient treatment program, and was allowed to take D.K., who would attend daycare services at the treatment center. However, appellant "continue[d] to minimize the extent of her addiction," and in July 2009, she entered a residential treatment program. At the review hearing later that month, the juvenile court ordered that D.K. was to remain placed in the home with continued services.
Less than two months later, appellant was discharged from the residential program when it was discovered that she had hidden a urine sample in a freezer and that she had paraphernalia under her bed. Thereafter, she was not compliant with treatment or testing for several months. By January 2010, however, she was engaged in a variety of services. Appellant and the father planned to separate, and appellant was going to move out of the home as soon as she found stable housing.
At a review hearing in January 2010, the juvenile court ordered that D.K. remain placed with the parents and that the parents comply with the case plan.
In early April 2010, appellant moved out of the father's home. The father reported that his relationship with appellant was over.
In May 2010, the Department filed a request to modify the juvenile court's January 2010 order because appellant was no longer complying with her case plan. The Department sought removal of D.K. from appellant's care and termination of her services, with D.K. to remain with the father.
In early June 2010, prior to the hearing on the Department's modification request concerning D.K., appellant gave birth to J.K. J.K. tested positive for methamphetamine at birth, as did appellant. J.K. was detained and a dependency petition was filed. According to the detention report, appellant again had received no prenatal care during her pregnancy. J.K. was born prematurely. He could not eat or drink because of a breathing problem. His short gestation term and his inability to drink or eat, as well as his breathing problems, "correlated" to appellant's drug use. J.K. was detained at a hearing on June 11, 2010.
Appellant denied using methamphetamine before going into labor and was uncooperative when the social worker attempted to interview her at the hospital. Despite the fact that she tested positive for methamphetamine in March 2010 while she was pregnant, she blamed the father for the positive post-birth drug tests, claiming he was "vindictive" and "[m]aybe he put something in my shit." Appellant could only say she did not know why she had tested positive in March. The father indicated that there were times before appellant moved out in April when "she would take off for a few days." He suspected she might be using, but "never questioned her [because] it would just start an argument."
On June 21, 2010, the juvenile court held a hearing on the Department's May 2010 request to modify the court's prior order as to D.K. The court found there had been a change of circumstances and that it was "in [D.K.'s] best interests to be removed from the mother's care and remain in the father's care." The court ordered that appellant not reside at the father's home and not be there overnight without the Department's approval. The court continued the matter for a determination as to whether appellant's reunification services with D.K. should be terminated.
Appellant met with an early intervention specialist on June 11, 2010, the date of the detention hearing for J.K. During the interview, appellant indicated she was not willing to accept residential treatment, but would accept outpatient services. At that time, she presented as "resistant and minimally compliant."
Appellant missed several in-person appointments with the social worker in June 2010. When the social worker was finally able to interview appellant by telephone on June 29, 2010, appellant again claimed she did not know why she had tested positive for methamphetamine at the time of J.K.'s birth. Appellant said she was willing to do a residential treatment program if J.K. could be with her.
The next day, appellant left a message for a social worker indicating that she was in day treatment at a substance abuse program. The social worker called appellant in an attempt to verify her statement. Appellant claimed she was "at treatment" but "on break" during their second phone conversation. The social worker confirmed with program staff that, although appellant had had several contacts with the staff, she had never actually reported to the program, and failed to show up for the June 30 group session staff had scheduled for her.
The Department's assessment concluded that appellant was not entitled to reunification services with regard to J.K. based on appellant's "extensive, abusive, and chronic use of drugs" and her resistance to treatment. (§ 361.5, subd. (b)(13).) The Department opined that services for appellant would not be in J.K.'s best interests because he had never resided with appellant and, given her lengthy substance abuse history, it was unlikely services would ameliorate the problems that led to dependency. The Department recommended that J.K. be placed with the father and that the father be provided services.
At a hearing in August 2010 regarding both D.K. and J.K., the juvenile court ruled that its prior order with regard to D.K. was not a removal because the minor remained in the home and the court only intended to separate appellant from the home "as a means of protecting [D.K.] at the time." The court stated, "I was actually removing her from the home rather than removing the child from her custody." The court ordered D.K. "placed with the father and [appellant]," with appellant not to reside in the home or have overnight visits. Concluding that it had no discretion to deny appellant further family maintenance services with D.K., the court ordered the father and appellant to comply with the case plan.
At the same hearing, the juvenile court sustained the allegations in the petition regarding J.K. The court ordered J.K. removed from appellant and denied services for her with J.K. under section 361.5, subdivision (b)(13), "for the reasons that are stated in the reports." The court found that services for appellant would not be in J.K.'s best interests. J.K. was ordered to remain placed with the father. The court distinguished what it had done concerning D.K., saying, "because we knew mother was not participating properly in the case plan, I granted a modification which was not removal but had mom leave the home. [L]egally, I don't believe I removed [D.K.], but I think legally I should remove [J.K.] from mother's custody based upon all the evidence before me."
Appellant claims the juvenile court abused its discretion by denying her reunification services with J.K. because such services were in J.K.'s best interests and because the court had allowed her to continue services with D.K. This claim is without merit.
The juvenile court denied appellant services under section 361.5, subdivision (b)(13), which, as relevant here, provides that reunification services need not be provided to a parent if it is established by clear and convincing evidence that the parent "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."
Appellant does not dispute that this provision applied to her circumstances. Rather, she asserts that, under section 361.5, subdivision (c), it was an abuse of discretion to deny her services with J.K.
Section 361.5, subdivision (c) provides, in relevant part, that a court "shall not" order services for a parent who is described in specified paragraphs of subdivision (b), including subdivision (b)(13), "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." Factors to consider when evaluating the child's best interest include the gravity of the problem leading to dependency, the parent's history, the parent's current efforts and fitness, and the strength of bonds between the child and parent. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
"The burden is on the parent to . . . show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).) The juvenile court has broad discretion in determining whether offering a parent reunification services is in the child's best interests, and we will reverse the juvenile court's order denying services only if that discretion has been clearly abused. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)
Here, appellant had been using methamphetamine for seven years when proceedings concerning D.K. were initiated. In addition to the minors, appellant had three other children who were no longer living with her, one of whom also tested positive for methamphetamine at birth. Appellant had received substance abuse treatment previously, including residential treatment, without success.
At the time D.K. was declared a dependent, the parents were living together, appellant was engaged in treatment, and D.K. appeared to be thriving and bonding with both parents. Based on these auspicious circumstances, the juvenile court found that services for appellant were in D.K.'s best interest. The circumstances were quite different by the time of J.K.'s removal. By then, appellant had repeatedly relapsed despite being offered numerous opportunities for treatment. Furthermore, after J.K. was born, appellant denied using methamphetamine and was generally uncooperative, refusing residential treatment and lying about being in day treatment. Given these events and appellant's prior treatment history, the juvenile court justifiably found that services for appellant would not be in J.K.'s best interest. There is an abundance of evidence supporting the juvenile court's exercise of discretion in this regard.
Appellant maintains "there was a reasonable basis to conclude that [her] relationship with [J.K.] could have been saved, and thus, it was in the minor's best interest to allow appellant a meaningful chance to reunify." Even if this were the case, the issue before us is not whether the juvenile court properly could have found services to be in J.K.'s best interest, but whether it abused its discretion by finding they were not.
Appellant's reliance on language in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450 (Renee J. v. Superior Court II) is misplaced. Renee J. v. Superior Court II involved very unique circumstances and an analysis by the appellate court of whether the erroneous application of a different bypass provision -- section 361.5, subdivision (b)(10), involving failure to reunify with another child -- was harmless under the circumstances. There were two appeals involving the parent in that case and an amendment to the bypass provision in between the appeals.
In the first appeal, the Court of Appeal concluded that a proper interpretation of the language in section 361.5, former subdivision (b)(10) "required the court to make a finding that [a] parent had not made a reasonable effort to treat the problem which had led to the prior removal of another child, before denying services to either a parent who had failed to reunify with the other child or a parent who had rights terminated to the other child." (Renee J. v. Superior Court II, supra, 96 Cal.App.4th at p. 1455.) The court ordered the case remanded to the juvenile court with instructions to hold a new dispositional hearing at which reunification services would be offered. (Id. at pp. 1466-1467.) Thereafter, the California Supreme Court reversed, interpreting the "no reasonable effort" requirement to apply only when parental rights to another child had been terminated, and not to the mother's situation, where prior reunification efforts for another child were unsuccessful. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 740, 748-749.)
Complying with the California Supreme Court's interpretation of the bypass provision, the juvenile court terminated the reunification services and scheduled a section 366.26 hearing without actually conducting a review hearing or considering Renee's progress toward reunification. On that very same day, unbeknownst to the juvenile court and the parties, a statutory change designed to clarify the ambiguity leading to the Supreme Court's decision was signed into law as an urgency measure. (Renee J. v.Superior Court II, supra, 96 Cal.App.4th at p. 1458.) Because neither the parties nor the court knew of the amendment, the amendment was not discussed at the parent's hearing. Thereafter, the parent called the amendment to the juvenile court's attention. (Ibid.) The juvenile court concluded that the amendment was not retroactive, and declined to apply it to the parent. (Id. at p. 1459.) The parent appealed for a second time.
The parent in Renee J. v. Superior Court II, supra, 96 Cal.App.4th 1450 had made considerable efforts to address the problem underlying the previous dependency case while her case wended its way through the two appellate proceedings and the change in the legislation. In the parent's second appeal, the Court of Appeal determined that the statutory amendment should have been applied retroactively, thus requiring the court to make a "reasonable efforts" determination. (Renee J. v. Superior Court II, supra, 96 Cal.App.4th at pp. 1461-1463.) The Department contended that the juvenile court's failure to do so was harmless. (Id. at pp. 1463-1465.) The court disagreed. The court held that the erroneous application of the statute could not be deemed harmless because, even if there was sufficient evidence to deny services under a correct interpretation, the juvenile court might have focused on the parent's progress and determined that further efforts to reunify "would not have been 'fruitless.'" (Renee J. v. Superior Court II, supra, 96 Cal.App.4th at p. 1464.)
Appellant points to language in Renee J. v. Superior Court II stating that, 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. v. Superior Court II, supra, 96 Cal.App.4th at p. 1464.) That statement has no application here. The court's observation was made in the context of evaluating harmless error, i.e., whether the juvenile court could have exercised discretion it believed it did not have to order services. In contrast, our inquiry focuses on whether the juvenile court abused its discretion by expressly finding services were not in J.K.'s best interest. As already noted, there is ample evidence to support the court's determination that, given appellant's history, offering her services would be fruitless.
Appellant contends there was a reasonable basis for finding her relationship with J.K. could be saved because this would "preserv[e] the familial bond." A child's bond with a parent cannot be the sole basis for a best interest finding. (William B., supra, 163 Cal.App.4th at p. 1229.) Moreover, appellant cited no facts to support her claim that there was a bond between her and J.K. Unlike D.K., appellant had never lived with J.K and had never cared for him. The only bond between J.K. and appellant was biological.
Appellant claims services had a likelihood of success because J.K. had been removed "only . . . one time" and services would not disturb his stability, as he was placed with the father and appellant was receiving services with D.K. The fact that none of appellant's children were in her care and that she continued to use methamphetamine despite the extensive services she had received belies this claim.
Appellant contends that, because the court ordered services be continued as to D.K., who would be living with the father and J.K., allowing appellant to participate in services with J.K. would not have violated the legislative intent underlying the bypass provisions -- avoiding the unwise expenditure of government resources -- because any resources devoted to appellant relative to J.K. would have overlapped with services she had been granted with D.K. This argument misses the point. As we have noted, the juvenile court thought it had no choice but to continue services relative to D.K. Moreover, as we have noted, the issue before us is not whether the juvenile court could have exercised its discretion to grant appellant services for J.K. The issue we must decide is whether the court abused its discretion in denying services. Appellant's history of drug abuse, her history of noncompliance with treatment programming, her refusal of residential treatment, and lying about her treatment programming support the juvenile court's determination that continued services would not be in J.K.'s best interest.
In light of all these circumstances, we conclude the juvenile court did not abuse its discretion by declining to order reunification services for appellant relative to J.K.
The juvenile court's judgment and orders with regard to J.K. (case No. JD230737) are affirmed. As appellant has made no claims concerning D.K., the appeal as to D.K. (case No. JD228707) is dismissed.
We concur: BLEASE , Acting P. J. HULL , J.