In re M.P.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOURMar 30, 2017
A148305 (Cal. Ct. App. Mar. 30, 2017)

A148305

03-30-2017

In re M.P., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. J.V., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1500980)

J.V. (Mother) appeals a dispositional order denying her services to reunify with her daughter, M.P. (Minor). She contends the evidence does not support the juvenile court's findings that three of the "bypass" provisions of Welfare and Institutions Code section 361.5, subdivision (b) applied to this case. We shall affirm the order.

All statutory references are to the Welfare and Institutions Code.

I. BACKGROUND

A. Mother's Older Children

Minor is youngest of Mother's five children. Mother's oldest two children lived with her former husband, whom she divorced in 2001. He and the children went to live with Mother's mother, who had a restraining order against Mother because Mother would "show[] up at her house yelling and screaming" when she was drinking.

Mother became involved with W.S. in 2001, and their daughter, K.S., was born in 2003. W.S. was an alcoholic, and their relationship was marred by domestic violence. Mother began using methamphetamine in 2003.

The Contra Costa County Children & Family Services Bureau (the Bureau) received a referral in November 2003 alleging Mother neglected K.S. Mother told a social worker she and W.S. fought regularly and that she previously had been ordered to take an anger management class as a result of an altercation with another woman. Mother reported that she had about two drinks a day and did not consider it a problem. W.S. said Mother smoked marijuana when he first met her and drank alcohol daily, including in the morning. Mother was offered a voluntary family maintenance plan, which included drug testing and a drug treatment program. She continued to drink alcohol regularly, failed to submit to drug testing, and did not show up for the treatment program.

Mother said she was manic-depressive, and she reported that she was taking medication for depression. However, her doctor said that he had not seen her in six to nine months and that he had not prescribed enough medication to last that long. Her former husband said the effect of the medications on her was "like night and day."

The Bureau filed a dependency petition on K.S.'s behalf in February 2004, and the juvenile court sustained allegations that Mother had a substance abuse problem that impaired her ability to care for K.S. in that she used marijuana and consumed alcohol during her pregnancy; she had been arrested for public intoxication; and she had failed to participate in drug testing and substance abuse treatment. The court also sustained allegations that Mother had failed to protect K.S. from domestic violence. The court ordered reunification services. Mother's case plan included staying free from illegal drugs, participating in substance abuse testing and inpatient treatment, taking part in counseling and a domestic violence program, having a "psyc [sic] assessment," and psychotropic medication evaluation and monitoring.

In August 2004, during the reunification period for K.S., Mother gave birth to another daughter, A.S., whose father was A.V. Mother and A.S. tested positive for methamphetamine at the child's birth, and Mother admitted using the drug four days previously. She used methamphetamine because she was depressed. She also said she had stopped taking her medication for depression three months previously because she "just wanted to give her body a break from it." She admitted that she smoked marijuana. She had not complied with her case plan regarding K.S., which required her to submit to random drug testing, substance abuse treatment, and domestic violence counseling. Mother thought the case plan for K.S. was unnecessary and "stupid."

Mother was in a relationship, which led to a brief marriage, with A.V. between approximately 2003 or 2004 and 2006.

The Bureau filed a petition on A.S.'s behalf, alleging (1) failure to protect due to Mother's use of methamphetamine, failure to obtain prenatal care, and failure to take her psychiatric medication, and (2) failure to comply with her case plan regarding K.S. The juvenile court sustained the allegations of the petition in December 2004 and ordered reunification services for Mother and A.V. Mother's case plan required her to participate in individual counseling, substance abuse testing, inpatient treatment, and a 12-step program, and to comply with medical or psychological treatment.

Meanwhile, in the proceedings for K.S., the Bureau had recommended that the juvenile court terminate reunification services because of the lack of progress by Mother and W.S. (K.S.'s father) on their case plans. The juvenile court terminated reunification services for K.S. in November 2004 and set the matter for a hearing pursuant to section 366.26.

In April 2005, the Bureau also recommended terminating Mother's reunification services for A.S. Although Mother had begun an outpatient drug and alcohol treatment program and was attending 12-step programs, she had not submitted to drug testing and she had refused referrals to individual counseling. The juvenile court terminated Mother's reunification services with A.S. in May 2005.

Mother's parental rights to K.S. were terminated in June 2005, and her parental rights to A.S. were terminated in July 2006.

B. Minor's First Dependency

Minor was born in October 2010. The Bureau filed a petition pursuant to section 300 on her behalf in March 2012. As later sustained, the petition included allegations that Mother had left Minor to live solely with Minor's father, R.P. (Father) despite knowing he had ongoing issues with alcohol, that he engaged in violent behavior, and that he was overwhelmed with being Minor's sole caretaker; and that Mother had a history of substance abuse in that she had failed to reunify with two older children due to methamphetamine use, she had used methamphetamine several times in 2009, and she had relapsed by using marijuana twice in 2012. The disposition report indicated Mother and Father had a history of emotional and physical violence, that they had separated, and that Minor was living with Father. Mother reported having used methamphetamine in early 2008 and again in 2009. She had abused prescription medications in 2011 and used marijuana in early 2012. She had a history of wanting to harm herself while under the influence of alcohol. Mother also suffered from anxiety and panic attacks. Over the course of a few days in July 2012, she had visited two different emergency rooms and a doctor, and had obtained three different medications to treat her anxiety. Two of the medications were benzodiazepines, which Mother had been advised against taking because of her history of substance abuse.

The Bureau noted that because Mother had failed to reunify with two of her older children due to her substance abuse issues, it could recommend against offering reunification services to Mother. However, since the beginning of Minor's dependency, Mother had engaged in outpatient substance abuse treatment, individual therapy, drug testing, anger management, and 12-step meetings; the Bureau therefore recommended that Mother receive reunification services.

The juvenile court ordered reunification services for Mother and Father. Mother's case plan included participating in a domestic violence program, individual counseling, substance abuse testing, and a 12-step program; completing a mental health assessment and following all recommendations; and taking psychotropic medications as directed. Mother complied with her case plan and regained custody of Minor in 2014.

C. Minor's Current Dependency

The Bureau filed a petition pursuant to section 300 on Minor's behalf in December 2015, when Minor was five years old. As later sustained, the petition alleged Mother was suffering from untreated mental health issues and that she had a history of substance abuse that had impaired her ability to care for Minor and for Minor's half-siblings. The court ordered the Bureau to provide services to Mother pending further proceedings, including alcohol and drug testing, substance abuse assessment, parenting education, and mental health counseling. Mother submitted to jurisdiction.

The petition was filed after an incident that took place on December 27, 2015. Mother was upset about a breakup with her on-and-off boyfriend. She was driving around on the freeway, with Minor in the car. Mother called a friend, L.F., "screaming and screaming," told her she wanted to crash the car and die, and threatened to drive the car off a bridge. L.F. heard Minor in the background saying, "Don't do it mommy! I'll die too!" and similar fearful exclamations. Minor yelled, "I want to see [L.F.]," and Mother answered, "No, [L.F.] wants to put you in jail." Mother was placed on a mental health hold. (§ 5150.)

Mother reported that after the end of the last dependency, she had "drifted away" from her self-care plan: she stopped going to therapy and taking her mental health medications, she started smoking marijuana and drinking wine, and she became involved in relationships that involved domestic violence. Gradually, her mental health had become destabilized.

Mother had been diagnosed with bipolar disorder, and she was not taking her prescribed medications. She also had a diagnosis of borderline personality disorder, characterized by extreme and out-of-control emotions, suicidal ideation, overly dramatic gestures, and unstable and chaotic personal relationships. After a breakup with a man, Mother would drop Minor off with a family friend and sob uncontrollably for weeks, then engage in extended conflict with the man. Mother had engaged in loud arguments, verbal disagreements, and domestic violence with her boyfriend. She admitted she was "out of control emotionally" and that she was using marijuana as a coping tool.

Minor was placed with L.F. She told a social worker she was staying there because her "mommy is crazy and went to the hospital to get medicine." She said that she did not feel safe with Mother because Mother was "always crazy, jumping up and down," that Mother "yells bad words" and made her feel scared, that Mother spanked her and that it "hurts really bad," and that Mother "goes outside to show people she's not hurting me, but she is." Describing the incident when Mother threatened to commit suicide by crashing the car, Minor said, "I think I was half dying," and "I think I was having a heart attack." Minor said she told Mother, "If you're going to be killed, I'm going to be killed too," and Mother responded, "No, I'm going to die by myself," and indicated she was trying to find somewhere for Minor to go.

Mother insisted she would not have followed through on her threat to crash the car. She said she had stopped taking her medication for depression and attending counseling and psychiatric visits in June 2015 because she had lost her Medi-Cal coverage. She reported that she was not using alcohol or drugs, but that she smoked marijuana to control her anxiety. She attended occasional 12-step meetings.

Minor and Mother had a close relationship and appeared very bonded. Minor was happy when Mother visited her, and ran to her for a hug. Mother was loving and appropriate with Minor when they visited. The family that had adopted two of Mother's older daughters, K.S. and A.S., was willing to take Minor into their home.

At the contested dispositional hearing, the social worker assigned to the case testified that Mother tested positive for marijuana on six occasions between March 2 and April 7, 2016. L.F. told him Mother was drinking alcohol between the end of Minor's first dependency and the beginning of the current dependency. L.F. also told him that after the first dependency, Mother said she had "lied" to the social workers and often laughed that she had "fooled those guys." According to L.F., Mother and her boyfriend "fought loudly and long and screaming, throwing things, breaking things." After a breakup, Mother would sob inconsolably for days at a time, lying on the floor, without meeting Minor's needs. Minor would be forced to comfort Mother, and would call L.F. and ask her to help Mother or to get Minor.

Mother's therapist testified that he had worked with Mother from 2012 until June 2015, when she lost her Medi-Cal insurance. Mother began attending therapy again in January 2016, paying for the appointments out of her own pocket. The therapist diagnosed Mother as suffering from extreme depression and anxiety. He did not believe Mother was using marijuana habitually or that her use harmed her ability to care for Minor. He thought Mother had made an effort in the past to benefit from mental health treatment and that she had benefited from domestic violence and substance abuse treatment. He acknowledged that Minor had been present during some of Mother's arguments with her boyfriend, that marijuana, as a depressant, was counter-indicated for depression, and that Mother had continued to drink alcohol, although not as much as she had in the past.

Mother testified that she began her relationship with her most recent boyfriend in 2013 and that their relationship involved verbal abuse. She completed a six-month drug treatment program in September 2013, and she believed the treatment had been effective in keeping her from relapsing on methamphetamine. She denied having drunk alcohol since 2013. From March 2014, when Minor's first dependency ended, to June 2015, when she lost her Medi-Cal coverage, she took her mental health medications and received individual therapy. She continued her therapy for a couple of months at her own expense, but she could not afford to keep doing so. She used marijuana two or three times a week, at night, for anxiety, depression, and headaches, and to help her sleep.

Mother testified that the incident in which she threatened to crash the car occurred because she was angry at her boyfriend for taking gifts he had bought for Minor and taking Mother's cash. She was not sure she would have reacted any differently if she had been continuing her mental health treatment.

The juvenile court denied reunification services to Mother pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13), and ordered services for Father. The court did not find Mother's testimony that she had not continued to use alcohol to be credible.

II. DISCUSSION

A. Denial of Reunification Services

Mother contends the evidence does not support the juvenile court's findings. We review an order denying reunification services for substantial evidence. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) " '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.]' [Citation.]" (Ibid.) "We do not reweigh the evidence or make credibility determinations. We review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings." (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.)

Section 361.5, subdivision (b) provides that reunification services need not be provided to a parent when the court makes certain findings by clear and convincing evidence. These findings include: that the parent had failed to reunify with the minor's sibling or half-sibling and the 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 that parent or guardian" (§ 361.5, subd. (b)(10)); that the parent's parental rights over the minor's sibling or half sibling had been permanently severed and "this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling" (§ 361.5, subd. (b)(11)); or "[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" (§ 361.5, subd. (b)(13)). When one of these exceptions applies, the court shall not order reunification unless it finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c)(2).)

Mother contends first, that the problems that led to the removal in the current dependency, were different from those that led to the removal of K.S. and A.S. She argues that the primary problems leading to the removal in the earlier dependencies were substance abuse and domestic violence, and that her mental health problems were merely a "concern" at the time that did not require services, whereas her mental health is the focus of the current dependency. (See In re Albert T. (2006) 144 Cal.App.4th 207, 220 ["the reasonable-efforts-to-treat prong of section 361.5, subdivision (b)(10), is directed not to all the issues that confronted a parent in a prior dependency proceeding but specifically to 'the problems that led to the removal of the sibling.' "].) We reject this contention. The "problems that led to the removal" in section 361.5, subdivision (b)(10) and (11) may include problems that were not alleged in the prior petitions. (In re Lana S. (2012) 207 Cal.App.4th 94, 108 [although parent's drug abuse was not alleged in prior petition, it had been a recurrent theme and was a substantial component of earlier service plan].) Here, Mother's mental health problems were a recurrent theme in the prior dependencies. The jurisdiction/disposition report for K.S. noted that Mother was manic-depressive and that it appeared she might not be taking her medications. Her service plan included a "psyc [sic] assessment" and psychotropic medication evaluation and monitoring. The petition on behalf of A.S. alleged that Mother had stopped taking her prescribed medication for bipolar disorder and that she had not complied with her service plan for K.S., and the jurisdiction/disposition report explained that Mother said the medication was effective but that she had stopped taking it because she "wanted to give her body a break from it." Her case plan required her to comply with medical or psychological treatment. It is clear that Mother's mental health problems were a cause of the removals of K.S. and A.S.

Substantial evidence also supports the trial court's finding that Mother did not make a reasonable effort to treat the problems leading to the removal of K.S. and A.S. This prong does not require "a certain level of progress." (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99.) However, a "reasonable effort" does not "mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable." (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914-915.)

The record supports a conclusion that Mother did not meet this standard. She did not address her problems with substance abuse, mental health, or domestic violence during K.S.'s dependency, and called her case plan "stupid." During A.S.'s dependency, she refused referrals to counseling and did not submit to drug tests. She admitted that she continued to use methamphetamine until 2010 and alcohol until 2012 or 2013, but both L.F. and Mother's therapist believed she continued to use alcohol after that time. She continued to use marijuana. She continued her pattern of volatile and abusive relationships, including abusive conduct in Minor's presence. There was also evidence that, after Minor's first dependency, Mother said she had lied to the social workers and "fooled those guys." We recognize that Mother completed her case plan for Minor's first dependency and Minor was returned to her care. However, she subsequently "drifted away" from her self-care plan and her mental health suffered. The juvenile court could properly find that Mother had not made reasonable efforts to address the problems that led to the removal of her older children.

We also reject Mother's challenge to the juvenile court's refusal to find, by clear and convincing evidence, that reunification services would be in Minor's best interest. We recognize that Minor and Mother shared a loving bond. However, this was Minor's second dependency. There was evidence that, by age five, she had witnessed episodes of abusive behavior between Mother and her boyfriend and she had seen Mother's prolonged emotional breakdowns. Minor reported that Mother was "always crazy, jumping up and down," that Mother "yells bad words" and made her feel scared, and that Mother spanked her and it "hurts really bad." Finally, in the incident that precipitated the current dependency, she had been in terror for her life as Mother threatened to crash the car and kill herself. The juvenile court could reasonably conclude Minor's well-being would not be served by continuing reunification services with Mother.

Because the trial court properly bypassed reunification services under section 361.5, subdivision (b)(10) and (11), we need not address Mother's argument regarding whether the bypass provision of subdivision (b)(13) also apply to this case. --------

B. Request for Judicial Notice

Finally, the Bureau has asked us to take judicial notice of court documents indicating that Father died in June 2016 and the juvenile court granted the Bureau's request to set a hearing pursuant to section 366.26 to set a permanent plan for Minor. Because we review " 'the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration' " (In re Zeth S. (2003) 31 Cal.4th 396, 405), we deny the request for judicial notice.

III. DISPOSITION

The April 21, 2016 order denying reunification services to Mother is affirmed.

/s/_________

Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.