J.H. v. Superior Court CA1/5 ( 2015 )

Filed 12/30/15 J.H. v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
J.H.,
Petitioner,
v.
THE SUPERIOR COURT OF CONTRA A146373
COSTA COUNTY,
(Contra Costa County
Respondent; Super. Ct. Nos. J15-00630, J15-00631)
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
Petitioner J.H. (Mother) seeks writ review (Cal. Rules of Court, rule 8.452)1 of the
decision of the juvenile court setting a hearing under Welfare and Institutions Code
section 366.26,2 following an order bypassing reunification services with her children,
S.D. and S.H. (collectively, Minors), pursuant to section 361.5, subdivision (b)(13).3 We
deny the petition.
1
All further rule references are to the California Rules of Court.
2
All undesignated section references are to the Welfare and Institutions Code.
3
Section 361.5, subdivision (b)(13) provides reunification services may be bypassed
where the juvenile court finds by clear and convincing evidence “[t]hat the parent or
guardian of the child 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
1
BACKGROUND
In June 2015, the Contra Costa County Children and Family Services Bureau
(Bureau) filed section 300 petitions on behalf of three-year-old S.D. and newborn S.H.
The petitions alleged Mother “has a history of chronic poly-substance abuse that places
[Minors] at risk of serious physical harm and neglect”; “engaged in substance abuse
while pregnant” with S.D., resulting in his “being born with a positive toxicology for
opiates and having to be treated for withdrawal symptoms with morphine”; and, with
respect to S.D., “is unable to care for the child and has expressed her desire to give the
child up for adoption.” In July, the juvenile court sustained the petitions’ allegations.4
A contested dispositional hearing was held in September. The following evidence
appears in the Bureau’s detention/jurisdiction and disposition reports, the social worker’s
testimony, and records of a criminal case which the juvenile court took judicial notice of.
At birth S.H. weighed only three pounds ten ounces, tested positive for opiates, and was
put on morphine for withdrawal. Mother stated she did not want to see the baby or bond
with him, and planned to give him up for adoption.5
Mother admitted to using opiates for at least seven years. She claimed her use was
because of health problems including arthritis and fibromyalgia. She initially reported
she “buys Vicodin on the street.” Mother later told the Bureau she has prescriptions but
never provided documentation to the Bureau.
period immediately prior to the filing of the petition that brought that child to the court’s
attention, or has failed or refused to comply with a program of drug or alcohol treatment
described in the case plan required by Section 358.1 on at least two prior occasions, even
though the programs identified were available and accessible.”
4
Procedural history relating to Minors’ alleged fathers and a half-sibling is omitted
except where relevant to this writ proceeding.
5
At the hearing, however, Mother’s counsel represented that Mother did want to reunify
with S.H.
2
In 2006, the Bureau filed dependency petitions regarding Minors’ half-brothers
because of concerns about Mother’s poly-substance abuse, among other concerns.6
During those proceedings, Mother completed an outpatient treatment program in
September 2006, had several positive drug tests between November and January, and
entered an inpatient program in February 2007 which she successfully completed in May.
Mother had no positive tests between February 2007 and February 2008, when the
dependency cases were vacated.7 In 2011, S.D. was born and tested positive for opiates.8
In 2012, Mother was convicted of possession of a controlled substance, heroin. Mother
participated in drug diversion and was ordered to enroll in a drug treatment program. She
enrolled in April 2014 and was still enrolled as of July 2014, with an expected exit date
of October 2014. The record does not indicate whether she successfully completed the
program.
The Bureau referred Mother to a two-year “dual diagnosis” treatment facility
because Mother reported she has cognitive and learning disabilities. The Bureau also
provided Mother with referrals to other treatment programs, testing, mental health
services, and community resources, and provided tickets for public transportation.
Mother told the Bureau she had made several calls to treatment programs, but at the time
of the disposition hearing, she had not enrolled in a program.
S.D. has a significant speech delay, with her vocabulary limited to 10 to 15 words.
She does not have “basic skills like basic colors, numbers, and sequencing.” Her foster
parent reported significant behavioral issues including regularly smearing feces on walls
6
One of the half-brothers was born in 2000. Mother admitted that she used marijuana
and alcohol during this pregnancy, and she tested positive for amphetamines at his birth.
7
At the time the instant petitions were filed, all of Minors’ half-siblings were under their
respective fathers’ care.
8
The Bureau’s social worker testified there was an indication in the file of a dependency
referral made after S.D.’s birth that Mother was being treated by a medical clinic,
although it was not clear exactly when or for what specific purpose. Contrary to
Mother’s suggestion, there was no evidence Mother was still being treated by this or any
other medical clinic at the time of the instant petitions.
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and on herself; eating out of a garbage can, even after a full meal; hiding food, money,
and objects in her room; and tearing her clothing to shreds. She also displays overly
sexualized behaviors.
Mother had regular and positive visits with S.D. The Bureau social worker
testified Mother “clearly” cares for S.D. and “there’s a very close attachment between
them.”
Both the Bureau and Minors’ counsel argued reunification services should be
bypassed under section 361.5, subdivision (b)(13). The juvenile court agreed, bypassed
services, and set a section 366.26 hearing for January 14, 2016.
DISCUSSION
Mother first argues the order bypassing services is in error because the petitions do
not allege that she resisted court-ordered treatment during the previous three years.
Mother did not raise this argument in the trial court and has therefore forfeited it. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 221–222.) In addition, Mother fails to cite any
legal authority for the proposition that all facts necessary to support bypass must be
alleged in the dependency petition. (Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956 [“ ‘The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived.’ ”]; cf. § 332, subd. (f) [dependency
petition must contain “facts . . . to support the conclusion that the child upon whose
behalf the petition is being brought is a person within the definition of each of the
sections and subdivisions under which the proceedings are being instituted”]; § 361.5,
subd. (b) [services may be bypassed “when the court finds, by clear and convincing
evidence, any of the following” factual scenarios].)
Mother next argues the court’s bypass finding was not supported by substantial
evidence. Her primary argument appears to be that the Bureau contended her failure to
be in treatment at the time of the disposition hearing constituted resistance to treatment,
yet the Bureau failed to make reasonable efforts—in light of Mother’s cognitive and
learning disabilities—to help her enter treatment. This does not appear to accurately
represent the Bureau’s position below; in any event, we review the entire record—not just
4
the Bureau’s arguments—to determine whether substantial evidence supports the juvenile
court’s finding. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) Mother
admitted using opiates and S.H. required morphine for withdrawal from opiates at his
birth. This constitutes substantial evidence of her resistance to treatment and is
independent of the Bureau’s efforts to help her enter treatment during these proceedings.9
(In re William B. (2008) 163 Cal.App.4th 1220, 1230 [“resumption of drug use”
following treatment (other than “a simple relapse”) constitutes resistance to treatment for
purposes of § 361.5, subd. (b)(13)].)
Finally, Mother points to the close attachment between her and S.D., but does not
explain how this is relevant to the section 361.5, subdivision (b)(13) analysis. To the
extent she is challenging the trial court’s finding that reunification is not in S.D.’s best
interest (§ 361.5, subd. (c)), we reject the challenge. S.D. exhibited significant speech
delays and behavioral issues; Mother has a history of chronic substance abuse and
resistance to treatment. The trial court’s finding was not an abuse of discretion. (In re
William B., supra, 163 Cal.App.4th at p. 1229.)
DISPOSITION
The writ petition is denied. The request for a stay of the January 14, 2016 hearing
is denied. This decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
9
In any event, the Bureau made reasonable efforts. The Bureau social worker testified
Mother was initially not receptive to treatment referrals. When Mother subsequently
became more receptive, the social worker tried to discuss the necessary steps with
Mother, but Mother “said she had to leave and she already had all the information she
needed and she ended up leaving before [the social worker could] give her a lot of detail
about it.” Mother does not identify any additional efforts the Bureau could have made
which were likely to result in her entering treatment. The cases cited by Mother are
inapposite. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1778, 1791–1792
[agency must make reasonable efforts to facilitate visitation when bipolar parent was
hospitalized due to mental illness]; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1323–
1324, 1327–1329 [agency failed to consider parent’s developmental disability in creating
reunification plan which, despite parent’s efforts to comply, did not help her overcome
the problems leading to the loss of custody].)
5
6
SIMONS, J.
We concur.
JONES, P.J.
BRUINIERS, J.
(A146373)
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