Jasmine B. v. Superior Court CA4/1 ( 2014 )

Filed 5/12/14 Jasmine B. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JASMINE B., D065414
Petitioner, (San Diego County
Super. Ct. No. SJ10558D)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY et al.,
Real Parties in Interest.
PROCEEDINGS for extraordinary relief after reference to a Welfare and
Institutions Code section 366.26 hearing. Edlene C. McKenzie, Commissioner. Petition
denied; request for stay denied.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
Jasmine B. seeks writ review of the juvenile court's February 10, 2014, order
setting a Welfare and Institutions section 366.26 hearing (all statutory references are to
the Welfare and Institutions Code). Jasmine contends the court erred by denying
reunification services (§ 361.5, subd. (b)(10) & (11)). We deny Jasmine's petition.
BACKGROUND
Jasmine has a long history of violence, drug abuse and mental instability. Her
three older children, Anthony B., A.B. and Christopher B., were removed from her care
when they were infants, and her parental rights were terminated as to all three children.
When Anthony was born in April 1999, he and Jasmine tested positive for heroin, and
there were concerns about Jasmine's mental health. Jasmine did not comply with her
reunification plan, which included drug testing and treatment, and services were
terminated at the six-month review hearing. The case closed in June 2001 when
Anthony's adoption was finalized. While pregnant with A.B., Jasmine tested positive for
methamphetamine. After A.B. was born in December 2002, Jasmine behaved bizarrely
and there were concerns about her mental health. Jasmine's reunification plan included a
substance abuse program and therapy. She attended those services just a few weeks and
failed to reunify with A.B. The case closed in November 2004 when A.B.'s adoption was
finalized. While pregnant with Christopher, Jasmine tested positive for
methamphetamine and other drugs and received no prenatal care. She was incarcerated
2
when he was born in April 2004. Jasmine was denied reunification services due to her
child welfare history and a psychological evaluation stating her mental illness rendered
her incapable of parenting. The case closed in November 2005 when Christopher's
adoption was finalized.
For five months in 2009, Jasmine was enrolled in the residential substance abuse
treatment program at North County Serenity House. She completed the program and
achieved all treatment plan goals. In May 2010, Jasmine entered the Kiva drug treatment
program. She completed the program in October. In the fall of 2013, the police took
Jasmine to the hospital because she was deemed a danger to herself and, in a separate
incident, Jasmine was arrested for assaulting a nurse while on drugs.
In December 2013, the San Diego County Health and Human Services Agency
(the Agency) filed a dependency petition for newborn L.S. based on Jasmine's untreated
bipolar and schizoaffective disorders and her methamphetamine use, which had
prevented her from caring for Anthony, A.B. and Christopher. L.S. was detained with a
nonrelative extended family member.
Jasmine said she had been in several rehabilitation programs, and had completed
treatment approximately 13 times, but had been unable to stay sober for more than eight
or nine months. She had been hospitalized many times for mental health issues and had
been in counseling, but had not taken prescribed psychotropic medication because she did
not like the side effects and had not been under the care of a psychiatrist or therapist. The
nonrelative extended family member said she had tried to take Jasmine to the hospital
during her pregnancy, but Jasmine had jumped out of the car on the freeway.
3
In February 2014, the court made true findings on the petition, denied Jasmine
services and set a section 366.26 hearing.
Jasmine petitioned for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules
of Court, rule 8.452.) This court issued an order to show cause, the Agency responded
and the parties waived oral argument.
DISCUSSION
"Reunification services need not be provided to a parent . . . when the court finds,
by clear and convincing evidence," that the court terminated reunification services for a
sibling or half sibling because the parent failed to reunify after the sibling's or half
sibling's removal (§ 361.5, subd. (b)(10)), or the parent's rights over a sibling or half
sibling were terminated (id., subd. (b)(11)), and that, in either situation, the parent "has
not subsequently made a reasonable effort to treat the problems that led to removal of the
sibling or half sibling . . . ." (Id., subd. (b)(10) & (11).) "The 'reasonable effort to treat'
standard 'is not synonymous with "cure." ' [Citation.] The statute provides a 'parent who
has worked toward correcting his or her problems an opportunity to have that fact taken
into consideration in subsequent proceedings.' [Citation.] To be reasonable, the parent's
efforts must be more than 'lackadaisical or half-hearted.' [Citation.]" (K.C. v. Superior
Court (2010) 182 Cal.App.4th 1388, 1393.) We review the court's findings for
substantial evidence. (See A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.)
Jasmine first contends the court did not apply the clear and convincing evidence
standard of proof. The record belies this contention. Where, as here, there is no question
as to the applicable standard of proof, the trial court need not articulate that standard and
4
it is presumed the court applied the correct standard. (In re Fred J. (1979) 89 Cal.App.3d
168, 175.) Contrary to Jasmine's assertion, there is no evidence the court here applied an
incorrect standard. The court mentioned the clear and convincing evidence several times,
even applying it to the jurisdictional findings, where the standard of proof is merely a
preponderance of the evidence (§ 355, subd. (a)). Moreover, the court told Jasmine, "I
just don't find that there's any evidence that you've really taken reasonable steps to
address [the issues of substance abuse and mental health] in the more recent history . . . ."
Jasmine argues this statement suggests the court relied only on the absence of evidence
that she had failed to make reasonable efforts. The court's statement is more reasonably
viewed as an affirmative finding that there was no evidence Jasmine had taken any
reasonable steps to address her problems recently.
Jasmine next contends there was insufficient evidence she failed to make a
reasonable effort to treat the problems that led to removal of her older children after the
court terminated reunification services (§ 361.5, subd. (b)(10)), or terminated parental
rights (id., subd. (b)(11)), in those children's cases. This contention lacks merit.
After Jasmine's services and parental rights were terminated in Anthony's case, she
participated in services in A.B.'s case just a few weeks, failed to reunify and suffered
termination of her parental rights to A.B. and Christopher. Several years later, Jasmine
completed two substance abuse treatment programs but, a few years after that, she was
using drugs again and exhibited mental instability. Jasmine claimed to have participated
in drug and mental health treatment many times, but acknowledged she had been unable
to stay sober, she had not been under the care of a psychiatrist or therapist and she had
5
not taken psychotropic medication because she did not like the side effects. Shortly
before the advent of this case, Jasmine was hospitalized involuntarily after she was found
running in the street and was rambling, agitated and combative. In the context of her
extensive history of mental illness and drug abuse, her treatment efforts cannot be viewed
as anything more than "lackadaisical or half-hearted" and far short of reasonable. (Cheryl
P. v. Superior Court (2006) 139 Cal.App.4th 87, 99.) Substantial evidence supports the
court's finding that section 361.5, subdivision (b)(10) and (11) applied.
DISPOSITION
The petition is denied.
MCINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
6