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In Re Lana S. et al., Persons Coming Under the Juvenile Court Law. v. C.G

June 22, 2012

IN RE LANA S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
C.G., DEFENDANT AND APPELLANT.



(Super. Ct. No. J515203D-E) APPEAL from judgments of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

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

CERTIFIED FOR PUBLICATION

We affirm judgments in which the court assumed jurisdiction over C.G.'s children, Lana S. and Landon S., based on her drug use and the presence of drug paraphernalia in the home; removed them from her custody; and denied her reunification services. Contrary to C.G.'s contention, the court's jurisdictional and dispositional findings, and the denial of reunification services, are supported by substantial evidence.

A preliminary issue on the denial of reunification services is a matter of statutory construction. Under Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11),*fn1 a parent is not entitled to services if the juvenile court finds by clear and convincing evidence that in a prior dependency case the parent failed to reunify with a sibling or half sibling of the child in the current proceeding, and "has not subsequently made a reasonable effort to treat the problems that led to removal" of the sibling or half sibling. (Id., subd. (b)(11), italics added.) The issue is whether the italicized language refers only to the problems alleged in the prior dependency petitions, physical abuse and domestic violence, or extends to a chronic problem addressed as a substantial component of C.G.'s service plan, drug abuse.

To avoid an absurd result, we interpret the language in the latter manner. The exceptions to the general mandate of services are intended to protect a child's best interests, and secondarily to preserve limited governmental resources, by not requiring services when doing so would be fruitless.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Proceedings

C.G. has a lengthy history of drug abuse and child protective services (CPS) intervention. In 2003 the San Diego County Health and Human Services Agency (the Agency) took her eldest son, Joshua G., into protective custody at birth because they both tested positive for methamphetamines. She admitted a history of drug abuse and drug use during the pregnancy. She participated in reunification services, including a drug treatment program, and reunified with him in 2005.

Later in 2005, however, the Agency again took Joshua into protective custody, along with C.G.'s eldest daughter, S.G., because of the physical abuse of Joshua. C.G. originally confessed to harming him, but after she was arrested she recanted and blamed her live-in boyfriend, Shawn B. In 2006, C.G. gave birth to Shawn G., whose alleged father was Shawn B. Shawn G. was taken into protective custody because of a domestic violence incident between C.G. and Shawn B. C.G. admitted to the social worker that she was involved in "several domestic violence incidents in the past."

The Agency's detention report in this case states that in the prior proceedings C.G.'s service plan required her to "[reenroll] in individual therapy, participate in an in-home parenting education program, and maintain regular visitation with the children. At some point, she was also required to complete a second psychological exam, continue in individual therapy, domestic violence classes, and substance abuse testing."

The report also states: "Throughout the duration of her [second dependency] case, there were concerns that [C.G.] was using drugs, as evidenced by her pattern of no-shows when asked to submit to random drug tests, showing up to the drug[-]testing site and reporting that she could not produce a urine sample, or showing up to drug test at times not designated by the social worker. In November of 2006, [C.G.] tested positive for methamphetamine and since that time she failed to complete drug tests for SARMS [Substance Abuse Recovery Management System program]."

The report adds: "Throughout the duration of her second dependency case, [C.G.] was asked to submit to random drug testing as part of her case plan." Further, C.G. "was asked to enroll in in-patient drug treatment [but] she refused. [She] continued to deny her drug use and therefore failed to adequately address and remedy her drug issues. . . . [She] failed to acknowledge and/or take responsibility for addressing her drug issues, which appeared to contribute to her inability to maintain a safe home for her children." (Italics added.)

A November 2006 psychological evaluation of C.G. states she revealed that in the earlier proceeding for Joshua she "was kicked out" of KIVA, a residential drug treatment program (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1397), "because she would not complete the work assignments she was given." The report states that in psychological testing, C.G. exhibited a "profile . . . similar to that found in individuals who have proven vulnerable to difficulty in managing alcohol and any drugs give them an immediate relief from tension." The report also states that since C.G. had not developed "many life coping skills that enable her to deal well with stress," she "remains vulnerable for substance abuse."

In the summer of 2007, C.G.'s reunification services and parental rights over the three children were terminated. She appealed and this court affirmed the judgments. (In re Joshua G. (Apr. 11, 2008, D051499 [nonpub. opn.].) The children were ultimately adopted.

B. Current Proceeding

Lana was born to C.G. in the fall of 2007, and Landon was born to her in 2009. C.G. and the children's presumed father, Michael S., separated in 2011.

In August 2011 C.G.'s boyfriend, Justin D., was living with her and the children. On August 15, police officers went to the home on a domestic violence call. C.G. said she and Justin were just arguing. She quickly walked toward her bedroom in the back of the apartment, but officers stopped her. She became confrontational and yelled. In plain view, and within the children's reach, the officers found drug paraphernalia in the bedroom, including glass pipes, burnt foil, a burnt tablespoon and a blowtorch. They found more glass pipes and a "compressed pellet gun" inside an open drawer.

C.G. denied drug use, but Justin reported she used heroin and methamphetamines, and she last used methamphetamines the previous night. The home was foul smelling and filthy, with "piles of dirty clothing, trash, and rotten food thrown throughout the living room," and "animal feces and urine on the floors." C.G., however, did not feel the home was unfit for the children, who were also filthy. C.G. was arrested for possession of drug paraphernalia, obstruction of justice and child cruelty.

C.G. was released on bail, and on August 17, a social worker, accompanied by police officers, made an unannounced visit to her home. The social worker checked C.G.'s bedroom and saw a glass bong on top of a dresser in the open closet. C.G. denied any drug use since she was a teenager, despite evidence to the contrary in the prior dependency proceedings. She vehemently refused to voluntarily drug test. C.G. reported that the children had been in the care of their maternal grandmother since August 15, but C.G. gave the social worker a false address for the grandmother. After a brief period, C.G. ordered the social worker and officers to leave.

On August 24, when the children were located, the Agency took them into protective custody and filed petitions on their behalf under section 300, subdivision (b). Both children tested presumptively positive for methamphetamines, but confirmatory testing was negative. Medical personnel explained to the social worker that cutoff levels for an initial screening are lower and detect exposure through any factors, including environmental exposure. That amount, however, may "not be high enough to produce a confirmatory positive."

C.G. told the social worker that when police officers arrived at her home on August 15, she had just returned from a two-week vacation to Washington State. She said she could produce evidence of the trip, such as gas receipts, in court. She let a friend of Justin's stay at her home during her absence, and she surmised he threw a party, trashed the place and left the drug paraphernalia behind. C.G. again refused to voluntarily drug test. She also refused other voluntary services. She "did not give a sober date and stated that she [was] in treatment before but it did not work for her. [She] said that being around other[s] that use and have a problem doesn't help her. [She] did not give any specific information on the substance abuse program she participated in or the dates of enrollment."

In its jurisdictional and dispositional report, the Agency recommended the denial of services to C.G. because, among other things, she "[failed] to reunify with [three] older children [who] were removed due to the mother's . . . substance abuse . . . ." The report also states that on September 12, 2011, C.G.'s phone accidentally called the social worker's phone. On C.G.'s phone, the social worker overheard a conversation taking place ...


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