Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County No. DP018215, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.
Juvenile Defenders and Donna P. Chirco for Petitioner.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and April Kleis for Real Party in Interest Benjamin B.
OPINION
FYBEL, J.
INTRODUCTION
Petitioner Jimmy B. (Father) is the father of now eight month old Benjamin B. who was taken into protective custody in March 2009. The Orange County Social Services Agency (SSA) filed a juvenile dependency petition against Father and Benjamin’s mother, Stefanie T. (Mother), under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.)
At the disposition hearing, the juvenile court denied Father and Mother reunification services on three separate grounds, codified at section 361.5, subdivision (b)(10), (11), and (13), involving Father’s and Mother’s substance abuse histories, the termination of their parental rights over Benjamin’s sibling A.B., and their failure to make reasonable efforts to treat the substance abuse problems that led to A.B.’s removal from their care. The juvenile court did not find reunification in Benjamin’s best interest and thus also denied Father and Mother reunification services under section 361.5, subdivision (c). The court set the matter for a permanency hearing under section 366.26.
By petition filed pursuant to rule 8.450 of the California Rules of Court, Father alone seeks relief from the order denying reunification services and setting a permanency hearing because, he contends, the record shows he has made reasonable efforts to treat the substance abuse problem that led to A.B.’s removal from his care within the meaning of section 361.5, subdivision (b)(10) and (11). Father also contends the record does not show that he has a history of “extensive, abusive, and chronic use of drugs” or that he has “resisted prior court ordered treatment” within the meaning of section 361.5, subdivision (b)(13). Finally, he contends the juvenile court abused its discretion by failing to find that reunification was in Benjamin’s best interest under section 361.5, subdivision (c).
We deny Father’s writ petition. Substantial evidence shows that since A.B.’s removal, Father tested positive for methamphetamine in December 2008, was arrested for, inter alia, possession of a controlled substance in January 2009, and has failed to complete any substance abuse program. The juvenile court, therefore, did not err by finding that Father failed to make reasonable efforts to treat the substance abuse problem that led to A.B.’s removal within the meaning of section 361.5, subdivision (b)(10) and (11), and by denying Father reunification services accordingly. Furthermore, the record is devoid of evidence showing that reunification is in Benjamin’s best interest.
Because we conclude the juvenile court properly denied reunification services under section 361.5, subdivisions (b)(10), (11) and (c), we do not need to address whether substantial evidence supported the court’s additional finding that reunification services should be denied Father under section 361.5, subdivision (b)(13).
BACKGROUND
Benjamin was born in Clark County, Nevada in December 2008. At the time of his birth, Benjamin and Mother “presented with urine toxicology screens positive for methamphetamine.” Mother and Father tested positive for methamphetamine after submitting to hair follicle drug tests four days after Benjamin’s birth. On January 9, 2009, a petition was filed in the juvenile court in Clark County, alleging that Benjamin was “in need of protection.”
On January 27, 2009, Father and Mother were arrested in Orange County, California. Father was arrested for possession of controlled substance paraphernalia, first degree burglary, and second degree burglary, and on a warrant for using another person’s identification; Father was incarcerated. Mother was arrested for receiving stolen property, grand theft auto, and possession of controlled substance paraphernalia, and on a warrant for first degree burglary.
On March 10, 2009, Benjamin was taken into protective custody by SSA. On March 12, SSA filed a juvenile dependency petition in Orange County Juvenile Court (the petition), which alleged Benjamin came within the juvenile court’s jurisdiction under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petition alleged that Benjamin and Mother tested positive for methamphetamine and amphetamine at the time of Benjamin’s birth and that Mother and Father tested positive for methamphetamine and amphetamine four days later, thereby “demonstrating that the parents’ substance abuse is an unresolved issue which places the child’s safety at risk.” The petition also alleged Father “has an unresolved history of illegal substance abuse, dating from before 1995, including but not limited to, the use of methamphetamine and marijuana with no successful completion of a drug treatment program, which impairs his ability to safely parent and protect the child.” The petition stated Father “knew or reasonably should have known of [M]other’s unresolved substance abuse and failed to protect [Benjamin] from the same.”
The detention report explained that even though Benjamin was born in Clark County, Nevada, “the two jurisdictions agreed that the child... would be transported to Orange County and a petition would be filed on behalf of the child with the Orange County Juvenile Court” because Father and Mother lived in Orange County and had a pending dependency case in Orange County Juvenile Court involving another child. The petition filed in Clark County was dismissed.
We must comment on the state of the juvenile dependency petition as the allegations contained therein are poorly organized, confusing to follow, and, at times, inconsistent. We urge SSA to use more care in drafting these critical documents.
The petition also contained allegations regarding Benjamin’s sibling, A.B., who was declared a dependent of the Orange County Juvenile Court in February 2008. The petition alleged that a juvenile dependency petition had been filed on A.B.’s behalf (A.B.’s petition) under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), and was sustained by the juvenile court. A.B.’s petition alleged that in December 2007, Mother gave birth to A.B. and that they both tested positive for amphetamine and/or methamphetamine. Father is A.B.’s father. A.B.’s petition also alleged Father reasonably should have known of Mother’s use of illegal drugs while she was pregnant with A.B. and he should have made efforts to protect A.B. A.B.’s petition further alleged that Father had a history of substance abuse since at least November 2002 and had no record of successfully completing a rehabilitation program, “thereby impairing his ability to effectively parent” A.B. Mother’s and Father’s parental rights as to A.B. were terminated four days before Benjamin was born, due to their failure to comply with their case plans.
The petition alleged Father and Mother (who are married to other people) have had children with their respective spouses and those children have been involved in various stages of the dependency system. Because the juvenile court’s basis for denying reunification services to Father was based on A.B.’s dependency case and Father’s failure to make reasonable efforts to resolve the substance abuse problem that led to A.B.’s removal, we do not refer to Father’s and Mother’s other children or their failures as to those children in this opinion.
The jurisdiction and disposition report in the instant case, dated April 13, 2009, stated that a records clearance with the California Department of Justice showed Father had been convicted of being under the influence of a controlled substance in February 2003, possession of a controlled substance in August 2003, and possession of a controlled substance again in January 2005. Father admitted to the social worker that he has had “a long history of drug use and never has completed a drug treatment program.” He also claimed he has not used drugs since 2005 or 2006. The report further stated that the records in A.B.’s dependency case show “[b]oth parents failed to make substantial progress towards family reunification. [F]ather failed to comply with most of the items of the case plan. The only area he... complied with was the parenting education. [F]ather failed to test regularly, failed to attend the drug program and failed to attend the 12-Step meetings.”
At the jurisdiction hearing, Father and Mother submitted to the allegations of the petition. The juvenile court found the allegations of the petition true by a preponderance of the evidence, and found Benjamin came under section 300, subdivisions (b) and (j).
At the disposition hearing in June 2009, Father testified that he began a voluntary substance abuse program through the Phoenix House while he has been in custody. He expected to be released from custody on July 25, 2009, at which time he wished to change his life and continue treatment. Father testified he had not been drug tested while in custody. He also testified that he started attending Narcotics Anonymous/ Alcoholics Anonymous meetings on March 23 and has been reading books from the programs. During cross examination, Father inaccurately described the first step of the program. Although Father testified he was on step 5 or 6 of the program, he stated he could not remember what step 5 was about.
On June 4, 2009, the juvenile court declared Benjamin a dependent child of the court under section 360, subdivision (d); found that Father and Mother need not be provided reunification services under section 361.5, subdivision (b)(10), (11), and (13); and set a permanency hearing under section 366.26.
Father filed petition for writ of mandate directing the juvenile court to vacate its order of June 4, 2009 and issue a new order providing family reunification services to Father. SSA filed an opposition to Father’s writ petition and Benjamin’s counsel filed a letter brief joining in SSA’s opposition and requesting that Father’s writ petition be denied.
DISCUSSION
I. Substantial Evidence Supports the Juvenile Court’s Denial of Reunification Services Under Section 361.5, Subdivision (b)(10) and (11).
Father argues the juvenile court erred by denying him reunification services under section 361.5, subdivision (b)(10), (11), and (13). “We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.] ‘In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court’s order was proper based on clear and convincing evidence. [Citation.]’” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839 840.)
Pursuant to section 361.5, subdivision (a), “[w]hen a child is removed from the custody of his parents, reunification services must be offered to the parents unless one of several statutory exceptions applies.” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) The juvenile court, however, “need not” provide a parent reunification services if it finds, by clear and convincing evidence, that any of the exceptions set forth in section 361.5, subdivision (b) apply. (§ 361.5, subd. (b).) In Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, the California Supreme Court stated, “‘[o]nce it is determined one of the situations outlined in [section 361.5,] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]’”
As pertinent to this case, section 361.5, subdivision (b) includes the following three separate exceptions to the general rule that reunification services must be provided. First, reunification services need not be provided under section 361.5, subdivision (b)(10) when the court finds by clear and convincing evidence 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.”
Second, section 361.5, subdivision (b)(11) provides that reunification services need not be provided when the court finds by clear and convincing evidence that “the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent 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 the parent.”
Third, subdivision (b)(13) of section 361.5 provides that reunification services need not be provided when the 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 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.”
Here, the juvenile court denied Father reunification services after finding, by clear and convincing evidence, that each of these three exceptions applied. Father contends the juvenile court erred by denying reunification services under section 361.5, subdivision (b)(10) and (11) because the record shows he had made reasonable efforts to treat the substance abuse problem that led to A.B.’s removal. Father also argues the court erred by denying him reunification services under section 361.5, subdivision (b)(13) because the record does not show that he had “a history of extensive, abusive, and chronic use of drugs” or that he “has resisted prior court-ordered treatment for this problem.” Father does not challenge any other finding necessarily made by the court under section 361.5, subdivision (b)(10), (11), and (13).
The record, however, contains substantial evidence which supports the court’s finding Father “has not subsequently made a reasonable effort to treat the problems that led to removal of [A.B.] from [Father].” (§ 361.5, subd. (b)(10) & (11).) Father does not disagree that his substance abuse problem led to A.B.’s removal from his care. The record shows the juvenile court previously sustained A.B.’s petition which alleged, inter alia, A.B. tested positive for methamphetamine at birth in December 2007; Father reasonably should have known of Mother’s substance abuse during her pregnancy and failed to make efforts to protect A.B.; Father had a history of substance abuse; and Father had no record of successful completion of a rehabilitation program, and his ability to effectively parent A.B. was therefore impaired. The record also contains information from A.B.’s dependency case, which stated that Father had failed to drug test regularly, attend the drug program, and attend the 12 step meetings. Ultimately, Father’s and Mother’s parental rights as to A.B. were terminated. In the instant case, Father admitted to a social worker that he has “a long history of drug use.”
We therefore consider whether substantial evidence supports the juvenile court’s finding Father has not made reasonable efforts since A.B.’s removal to treat this substance abuse problem. Although the record does not clearly state the date on which A.B. was removed from Father and Mother’s care, we know it was some time before Father’s and Mother’s parental rights as to A.B. were terminated in December 2008. Substantial evidence shows that four days after Father’s and Mother’s parental rights as to A.B. were terminated, Benjamin was born, and he and Mother tested positive for amphetamine and methamphetamine. Four days after that, Father and Mother submitted to a hair follicle drug tests; they both tested positive for the presence of amphetamine and methamphetamine. One month later, in January 2009, Father was arrested for, inter alia, a drug related crime (possession of controlled substance paraphernalia in violation of Health and Safety Code section 11364). Father was incarcerated, and remained in custody as of the time of the disposition hearing during the first week of June 2009 with an expected release date of July 25, 2009. As of the date of the disposition hearing, Father had not completed any substance abuse program and had not been tested for illegal drugs since he was taken into custody. More than substantial evidence supports the juvenile court’s finding Father failed to make reasonable efforts since A.B.’s removal to treat his substance abuse problem.
Father argues the juvenile court should have granted reunification services because, about five weeks before the disposition hearing, he began to participate in a voluntary substance abuse treatment program through the Phoenix House. Father testified that since March 23, 2009, he has also participated in the Narcotics Anonymous/ Alcoholics Anonymous program while in custody. He further testified he wished to change his life, intended to seek further treatment upon his release on July 25, and believed reunification services were in Benjamin’s best interest.
Under the substantial evidence standard, although Father’s commencement in a substance abuse program and participation in Narcotics Anonymous and Alcoholics Anonymous shortly before the disposition hearing are steps in the right direction, Father’s efforts are too late and too preliminary to constitute “reasonable effort[s]” to treat his substance abuse problem within the meaning of section 361.5, subdivision (b)(10) and (11). During cross examination at the disposition hearing, Father misstated the first step of the Narcotics Anonymous/Alcohol Anonymous program. Although Father testified he was then on step 5 or 6 of the program, he stated he could not remember what step 5 was about, leading the juvenile court to conclude that Father “does not seem to have substantively engaged [in] the process even to the extent of being able to recite the current step that he’s working [on].” Furthermore, the record shows Father has enrolled in substance abuse programs in the past, which he failed to complete.
Substantial evidence therefore supports the juvenile court’s finding that Father failed to make reasonable efforts to treat his substance abuse problem within the meaning of section 361.5, subdivision (b)(10) and (11). Because reunification services were properly denied under section 361.5, subdivision (b)(10) and (11), we do not need to determine whether the exception codified at section 361.5, subdivision (b)(13) was also supported by substantial evidence.
II. The Record Does Not Show Reunification Would Be in Benjamin’s Best Interest Within the Meaning of Section 361.5, Subdivision (c).
Father argues that the juvenile court abused its discretion by denying reunification services under section 361.5, subdivision (c) because reunification is in Benjamin’s best interest.
Under section 361.5, subdivision (c), the juvenile court “shall not order reunification for a parent” described in, inter alia, section 361.5, subdivision (b)(10) or (11) “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c); In re Ethan N. (2004) 122 Cal.App.4th 55, 64 [“Once the juvenile court finds that one or more of these subparts of subdivision (b) applies, the court is prohibited from ordering reunification services unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child”].) We review the juvenile court’s refusal to order reunification services under section 361.5, subdivision (c) for an abuse of discretion. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6.)
In In re William B., supra, 163 Cal.App.4th 1220, 1227, a panel of this court explained that once “‘“it is determined one of the situations outlined in [section 361.5,] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]”’ [Citation.] The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child.” (Italics added.)
Here, Father contends the juvenile court should have found reunification services in Benjamin’s best interest because Father testified (1) he did not want to live the drug lifestyle anymore (as supported by his recent participation in substance abuse treatment programs) and (2) he is of the opinion reunification services would be in Benjamin’s best interest. Father’s testimony is insufficient to constitute clear and convincing evidence that reunification is in Benjamin’s best interest. As Father has otherwise failed to carry his burden of proving that reunification is in eight month old Benjamin’s best interest, the juvenile court did not abuse its discretion by refusing to order reunification services under section 361.5, subdivision (c).
DISPOSITION
Father’s writ petition pursuant to California Rules of Court, rule 8.450 is denied.
WE CONCUR: SILLS, P. J., MOORE, J.