Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD17881.
McAdams, J.
By writ petition, the mother of a dependent child challenges the findings and orders made by the juvenile court in bypassing reunification services and setting a permanency planning hearing. Asserting that the court misinterpreted and misapplied section 361.5, subdivision (b)(10), the mother contends that she made reasonable efforts during the relevant timeframe to treat the problems that led to the removal of the child’s siblings. In any event, she argues, it is in the child’s best interests to provide reunification services to her. Finding substantial evidence to support the juvenile court’s decision, we deny the mother’s petition.
See Welfare and Institutions Code section 366.26, subdivision (l); further unspecified statutory references are to that code. See also, California Rules of Court, rules 8.450, 8.452, and 5.600.
FACTS AND PROCEDURAL HISTORY
The child whose interests are at issue in this proceeding is Marc A., who was born in February 2007. His parents are petitioner Theresa A. (the mother) and Timothy A., Sr. (the father). Marc has two older siblings: Timothy A., Jr., born in October 2004, and Jennifer A., born 14 months later, in December 2005.
The Siblings’ Dependency
In June 2006, Gilroy police officers were called to the parents’ home on a domestic disturbance call. The officers removed Timothy and Jennifer from the home and placed them in protective custody. The two siblings were detained, and a petition was filed on their behalf, pursuant to section 300, by the Santa Clara County Department of Family and Children’s Services (the Department). The Department alleged that the children were at risk from the parents’ domestic violence, drug use, and unsanitary living conditions in the home. The following month, the juvenile court sustained the petition after making specific findings, including that “the parents’ relationship is characterized by domestic violence” and that “the mother has a substance abuse problem with methamphetamine, which interferes with her ability to protect and parent the children….”
The court ordered reunification services for the parents. The parents’ case plans were designed to address parenting, domestic violence, and substance abuse issues. The following services were ordered for the mother: (1) a parent orientation class; (2) a parenting without violence class; (3) counseling or psychotherapy; (4) random drug testing, twice a week; (5) a 12-step substance abuse program, three or four times a week; (6) a drug intervention group; and (7) a domestic violence support group.
As assessed by the Department, the mother “got off to a great start, but then dropped out of her services….” She completed a parent orientation class and a 15-week domestic violence support group, and she was on the waiting list for the parenting without violence class. From July to November 2006, the mother attended 21 sessions of the women’s drug intervention group, but she dropped out when she had nearly completed it, explaining that she felt bullied there. The mother had been submitting to random drug testing in 2006, but she tested only twice in 2007, in late February and early March. As for 12-step meetings, according to the mother’s testimony in May 2007, she attended only 15 of them. Concerning the therapy component of her case plan, the mother did not find a counselor with whom she felt comfortable, despite having contacted more than 30 therapists.
In January 2007, the Department prepared a report for the siblings’ six-month review hearing, in which it recommended termination of the parents’ reunification services as to Timothy and Jennifer. The parents contested the recommendation, and the matter was set for trial, which finally commenced at the end of April 2007. At the time of trial, Marc was two months old; he had been provisionally detained since birth in protective custody.
By stipulation, Marc’s jurisdictional hearing was consolidated with the six-month review hearing for his siblings, Timothy and Jennifer. The two matters were heard over four consecutive court days, starting on April 30, 2007. There was extensive testimony, with two social workers and both parents taking the stand. The court also received in evidence a number of reports prepared by the Department. At the conclusion of the hearing, the court took the matters under submission.
In mid-May 2007, the juvenile court issued written decisions. Concerning the siblings, Timothy and Jennifer, the court found “clear and convincing evidence” that the parents “failed to participate regularly and make substantive progress in their court-ordered treatment plan” and it terminated family reunification services for both parents as to those two children.
Marc’s Dependency
Immediately following his birth in February 2007, Marc had been placed in protective custody at the hospital. The Department filed a section 300 petition on his behalf two days later. In it, the Department alleged that Marc was “at substantial risk of physical harm and general neglect” in his parents’ care. The petition also alleged that the father had threatened flight with the mother and Marc to avoid protective custody. In addition, the Department asserted sibling abuse as a ground for jurisdiction.
Among its May 2007 orders following the consolidated hearings described above, the juvenile court sustained jurisdiction over Marc and it formally detained him.
A contested disposition hearing was conducted in early July 2007. The court received in evidence the Department’s disposition report, dated May 25, 2007. That report included the Department’s recommendation for a bypass of reunification services. The court took judicial notice of the prior findings and orders in the siblings’ case. Witnesses at the two-day hearing included a social worker and the father. After the presentation of evidence, the court entertained oral argument. Among the disputed points was the proper interpretation of the relevant statutory provision for denying reunification services. (§ 361.5, subd. (b)(10).)
At the conclusion of the hearing, the court adopted the Department’s recommendation and it ordered “a bypass of services.” The court specifically found that the parents had not made reasonable efforts to address the problems that led to the older children’s removal. In fact, the court said: “There are almost none.” Having bypassed reunification, the court then set a permanency planning hearing for October 26, 2007. (See § 366.26.) The court advised the parents of their right to seek an extraordinary writ from this court.
Contested Writ Petition
The mother gave timely notice of her intent to file a writ petition. In support of her bid for extraordinary relief, the mother alleges that the court erred in denying her services to reunify with Marc. She contends that the court misinterpreted and misapplied section 361.5, subdivision (b)(10), which permits bypass of services when a parent fails to make reasonable efforts to treat the problems necessitating removal of the dependent child’s siblings. In any event, the mother asserts, the court should have provided her with reunification services under section 361.5, subdivision (c), because doing so would serve the child’s best interest.
The Department opposes the mother’s writ petition.
DISCUSSION
I. Legal Background
A. Reunification Services
“Until permanency planning, reunification of parent and child is the law’s paramount concern.” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546; see §§ 361.5, subd. (a); 366.21, subd. (g)(1).) For that reason, parents of dependent children generally are entitled to reunification services “aimed at assisting the parent in overcoming the problems that led to the child’s removal.” (Judith P., at p. 546.) “There is a presumption in dependency cases that parents will receive reunification services.” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95 (Cheryl P.).)
The governing statute is section 361.5. As summarized below, it contains: (a) the general rule requiring reunification; (b) exceptions to that rule; and (c) an override provision. (See § 361.5, subds. (a), (b), (c).)
1. General Statutory Mandate for Reunification Services
Subdivision (a) of section 361.5 embodies the general statutory mandate for the provision of reunification services whenever a dependent child is removed from the parent’s custody. It states in pertinent part: “Except as provided in subdivision (b), … whenever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians.” (§ 361.5, subd. (a).)
2. Exceptions
Subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services can be bypassed. “These bypass provisions represent the Legislature’s recognition that it may be fruitless to provide reunification services under certain circumstances.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; see also, e.g., Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744; but see, Cheryl P., supra, 139 Cal.App.4th at p. 97 [questioning adoption of “fruitless” standard].) These provisions also reflect legislative acknowledgement “that there are cases where delay attributed to reunification services is more detrimental to the minor than the competing policy of reunification.” (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.)
At issue here is section 361.5, subdivision (b)(10), which applies when reunification services previously provided with respect to the dependent child’s sibling(s) have been terminated. It provides: “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (10) That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian.” (§ 361.5, subd. (b)(10).)
Subdivision (b)(10) contemplates a two-prong inquiry: (1) whether the parent previously failed to reunify with the dependent child’s sibling(s); and (2) whether the parent “subsequently made a reasonable effort to treat the problems that led to removal of the sibling….” (§ 361.5, subd. (b)(10); see Cheryl P., supra, 139 Cal.App.4th at p. 96.) Only the second prong is disputed here.
3. Override for Child’s Best Interest
A final opportunity for reunification services is provided in section 361.5, subdivision (c), which allows the juvenile court to order services even where bypass is otherwise warranted, if doing so is in the child’s best interest. Subdivision (c) thus states, in relevant part: “The court shall not order reunification for a parent or guardian described in paragraph … (10) … of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).)
B. Appellate Review
A petition for extraordinary writ may be brought in the Court of Appeal to challenge a juvenile court’s decision to bypass or terminate reunification services and to set a permanency planning hearing. (See Cal. Rules of Court, rules 8.450, 8.452, 5.600; see generally, Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 577-578 [discussing former rule 39.1B].)
Typically, the appellate court reviews an order bypassing reunification services for substantial evidence. (See Cheryl P., supra, 139 Cal.App.4th at p. 96 [writ challenging the bypass of reunification services]; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 874, 879-880 [same]; cf., In re Alvin R. (2003) 108 Cal.App.4th 962, 971 [appeal challenging the adequacy of reunification services].) Even when clear and convincing evidence is required below, we review the record only for substantial evidence in support of the order. (Sheila S., at p. 880; In re Alvin R., at p. 971.) In doing so, however, we bear in mind the heightened standard of proof. (In re Alvin R., at p. 971.) We draw all reasonable inferences from the evidence to support the juvenile court’s findings and orders, and we review the record in the light most favorable to its determinations. (Ibid.) Questions of fact and issues of credibility are the province of the juvenile court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Other review standards may apply to particular disputes. For example, issues of statutory interpretation present questions of law, which the appellate court reviews de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) And on the other end of the spectrum, the juvenile court’s discretionary decisions are given an extremely deferential review. (See, e.g., In re Stephanie M. (1994) 7 Cal.4th 295, 318 [placement determination reviewed for an abuse of discretion]; Cheryl P., supra, 139 Cal.App.4th at p. 96, fn. 6 [determination under § 361.5, subd. (c), would be reviewed for an abuse of discretion].)
II. Analysis
With that background in mind, we turn to the specific issues presented here.
A. Interpretation of Subdivision (b)(10)
Under the applicable statutory exception, prior failure to reunify with the dependent child’s sibling warrants bypass of reunification services, unless the parent “subsequently made a reasonable effort to treat the problems” underlying the sibling’s removal. (§ 361.5, subd. (b)(10), italics added.)
Here, the parties disagree on the proper interpretation of the statutory language. More specifically, they disagree about which event the word “subsequently” refers to: the sibling’s removal or the parent’s later failure to reunify.
1. Contentions
The mother argues that the triggering event is removal. Under her view of the statute, her efforts should be assessed starting from the time of the siblings’ removal (June 2006), not from the date that reunification services were terminated (May 2007).
The Department urges that the key date is when services were terminated. Under its view of the statute, the proper period for scrutinizing the parents’ efforts would be from May 2007, when reunification services were terminated for Marc’s siblings, to July 2007, when his dispositional hearing took place. Moreover, the Department argues, “even if the entire period since the removal of the siblings is examined, the mother’s efforts to rectify the problems was insufficient.”
2. Juvenile Court’s Ruling
Rejecting the mother’s argument below, the juvenile court judge said: “as I read the statute [the issue] is whether subsequent to the previous failure to reunify there have been reasonable efforts to address problems that then existed ….”
3. Authority
In support of her interpretation of section 361.5, subdivision (b)(10), the mother relies on Cheryl P., supra, 139 Cal.App.4th 87. In that case, the juvenile court order bypassing services for the dependent child was made immediately after the order terminating services for his sibling. (Id. at p. 95.) The appellate court ordered issuance of a writ vacating the bypass order. (Id. at pp. 99-100.) In its view, “when a case involves the almost simultaneous termination of services in the sibling’s case and the denial of services at the child’s dispositional hearing, the statutory language … refers to reasonable efforts made since the removal of the sibling.” (Id. at p. 98.) In reaching that conclusion, the Cheryl P. court explicitly rejected the contrary holding of In re Harmony B. (2005) 125 Cal.App.4th 831, 842-843. (Cheryl P., at pp. 98-99.)
The Department urges us to apply In re Harmony B., supra, 125 Cal.App.4th 831. In that case, as in Cheryl P., the juvenile court’s bypass of reunification services followed immediately on the termination of services in the siblings’ case. (In re Harmony B., at p. 839; see Cheryl P., supra, 139 Cal.App.4th at p. 95.) But unlike Cheryl P., the Harmony B. reviewing court approved the bypass. (In re Harmony B. at p. 843; see Cheryl P. at p. 95.) Discussing a recent statutory amendment, the court saw it as a means “to provide a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings; it was not amended to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so.” (In re Harmony B. at p. 843.) In the court’s view, where “the two proceedings occur in immediate proximity,” as they did there, a “finding under the ‘no-reasonable-effort’ clause is a formality because the parent’s circumstances necessarily will not have changed.” (Id. at pp. 842-843, fn. omitted.)
4. Discussion
We need not decide the statutory interpretation issue here. As explained below, we agree with the Department that the mother failed to adequately address the problems that led to her older children’s removal, even when her earlier efforts are considered. We therefore assume, without deciding, that the statute contemplates examination of the parent’s efforts to reunify during the entire period following the siblings’ removal. Even aided by that assumption, however, the mother has not demonstrated error by the juvenile court.
B. Application of Subdivision (b)(10)
As noted above, the issue before us turns on the second prong of section 361.5, subdivision (b)(10): whether the parent has “subsequently made a reasonable effort to treat the problems that led to removal of the sibling ….” (§ 361.5, subd. (b)(10).) That “clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.” (In re Harmony B., supra, 125 Cal.App.4th at p. 842.)
In applying that part of the statute, case law instructs, “the ‘reasonable effort to treat’ standard” of subdivision (b)(10) “is not synonymous with ‘cure.’ ” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) Thus, for example, the “mere fact that [the mother] had not entirely abolished her drug problem would not preclude the court from determining that she had made reasonable efforts to treat it.” (Ibid.) According to Cheryl P., the focus is on effort, not progress: the provision is meant “to ensure that lackadaisical or half-hearted efforts would not be deemed adequate rather than to additionally require a certain level of progress.” (Cheryl P., supra, 139 Cal.App.4th at p. 99.)
Here, the mother complains that the juvenile court focused only on the period after May 2007, ignoring all of her earlier efforts in engaging services after her older children’s removal in July 2006. We cannot agree. For one thing, in explaining its decision, the juvenile court commented that the mother “basically stopped services in November and really hasn’t done much this year.” That comment implies that the court considered the mother’s early efforts, but nevertheless discounted them because they were remote in time. Weighing and valuing a parent’s efforts are matters entrusted to the juvenile court, to which we defer. (See Sheila S. v. Superior Court, supra, 84 Cal.App.4th at p. 880.)
Furthermore, contrary to the mother’s assertion, her case is not factually similar to Cheryl P. There, the two proceedings – termination of services as to the older son and bypass as to the younger – occurred on the same day. (Cheryl P., supra, 139 Cal.App.4th at p. 95.)
Here, a period of approximately six weeks separated the two hearings. That six-week interim afforded the mother at least some opportunity to engage in services. She did not take advantage of that opportunity, however.
The mother had signed up for an advanced domestic violence group, which was set to start just after Marc’s dispositional hearing. But there is no evidence that she made any other efforts during this period to address the problems underlying the older children’s dependency.
There are other significant differences between Cheryl P. and this case. In Cheryl P., the record lacked clear and convincing evidence of the parents’ failure to make reasonable efforts to treat the problems leading to their older son’s removal. (Cheryl P., supra, 139 Cal.App.4th at p. 98.) As the reviewing court noted, the older son “was removed from his parents’ custody because they were homeless and did not properly supervise him. By the time of the [younger son’s] dispositional hearing [the parents] were renting an apartment, which was deemed adequate for the family.” (Id. at p. 98.) The court further observed: “Although recalcitrant at times about services, the parents complied with their case plans and demonstrated progress. They underwent psychological and psychiatric evaluations, completed parenting courses, engaged in individual therapy and regularly visited their son. [The father] followed his medication regimen and also attended an anger management course. All the professionals agreed [the parents] loved their son and were devoted to him.” (Ibid.)
Here, by contrast, although the mother engaged services in 2006, she did almost nothing in 2007. Her inaction continued, despite awareness of the Department’s January 2007 recommendation to terminate reunification services as to Timothy and Jennifer, and despite encouragement and new referrals in from the social worker, who advised the mother in February 2007: “Any services that you participate in prior to the next court hearing for the baby will count, and will look good to the court.” Testifying at the July 2007 jurisdictional hearing as an expert in risk assessment and placement of dependent children, the social worker reviewed this performance and opined “that the parents have not made a reasonable effort to treat the problems that [led] to the removal of” Marc’s siblings.
As noted above, the mother did enroll in an advanced domestic violence group, which was scheduled to start in July 2007, and she submitted to drug testing twice in 2007, once on February 26 and again on March 1. In testimony given in May 2007, the mother stated that she had attended 12-step meetings, but the record contains no documentary evidence that would indicate the dates of her attendance. In a March 2007 report, the Department advised the court that the mother had not attended any 12-step meetings.
On this record, we find substantial evidence to support the juvenile court’s determination that the mother made no reasonable efforts to address the problems underlying her children’s removal. Under the circumstances, the court was warranted in denying the mother reunification services for Marc, based on section 361.5, subdivision (b)(10).
C. Application of Subdivision (c)
In her final argument in this court, the mother asserts that reunification services should be ordered pursuant to section 361.5, subdivision (c), “because reunification is in the best interest of the child.” She contends that she “made efforts to make herself a better parent to Marc.” She notes her loving attention to Marc while he was hospitalized for surgery. She cites her separation from the father and her current enrollment in an advanced domestic violence class.
The Department disputes the mother’s assertion that reunification would be in Marc’s best interest. It says: “Both public policy and the uncontradicted facts of this case support the court’s ultimate decision to deny reunification services to the mother.” In terms of policy, the Department quotes case law holding “that there are cases where delay attributed to reunification services is more detrimental to the minor than the competing policy of reunification.” (Marlene M. v. Superior Court, supra, 80 Cal.App.4th at p. 1151.) It asserts: “This is one of those cases.” Addressing the facts, the Department cites the mother’s lack of significant efforts and denial of the underlying problems, “even after Marc’s birth and her alleged separation from the father.” It also notes that “newborn Marc had no relationship with his mother prior to being taken into custody. They have been separated ever since.”
We reject the mother’s argument. Under the dictates of section 361.5, when bypass is justified under subdivision (b)(10), reunification services “shall not” be ordered, “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).) This record contains no evidence that would support such a finding. At this juncture, Marc’s best interests will be served by eliminating any further delay.
DISPOSITION
The petition for extraordinary writ is denied.
WE CONCUR: Rushing, P.J., Elia, J.