L.H.v.Superior Court of Riverside Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWOJul 26, 2012
E055633 (Cal. Ct. App. Jul. 26, 2012)

E055633

07-26-2012

L.H., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.

Dawn Shipley for Petitioner. No appearance for Respondent. Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIJ120660)


OPINION

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.

Dawn Shipley for Petitioner.

No appearance for Respondent.

Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Real Party in Interest.

Petitioner L.H. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's orders (1) terminating reunification services as to her older child K.Y., (2) denying reunification services as to her youngest child N.H, (3) and setting a Welfare and Institutions Code section 366.26 hearing as to both children. On appeal, Mother contends that the juvenile court erred in terminating her services as to K.Y. and denying her services as to N.H. pursuant to section 361.5, subdivision (b)(10) and (b)(13). She also argues that she was denied her due process right because she was not provided with notice that section 361.5, subdivision (b)(13), might be utilized in denying her services. For the reasons explained post, we deny Mother's petition.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

I


FACTUAL AND PROCEDURAL BACKGROUND

K.Y. came to the attention of the Riverside County Department of Public Social Services (DPSS) in November 2010 due to allegations of physical abuse and general neglect by Father, which he subsequently admitted. At the time, Mother, who was 22 years old and a former foster child herself, was residing separately in a sober living home. She had a history of abusing methamphetamine and marijuana. She also had a history with DPSS. In March 2010, allegations of general neglect were substantiated in regard to Mother's second child, D.Y., after she gave birth to D.Y. and tested positive for methamphetamine and marijuana. Following an investigation, Mother signed a declaration to have her sister care for D.Y. in Arizona. She also signed a declaration to have the paternal aunt care for K.Y. because Father was incarcerated for five days at the time. In addition, Mother stated that she suffered from undiagnosed postpartum depression following the birth of D.Y.

Father is not a party to this appeal.

Mother also stated that she suffered from undiagnosed postpartum depression following the birth of her third child.

On November 17, 2010, K.Y. was taken into protective custody. Two days later, a petition was filed on behalf of K.Y. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse of a child under five), and (g) (no provision for support). At the detention hearing, K.Y. was formally removed from his parents and placed in a foster home.

The jurisdictional/dispositional hearing was held on December 22, 2010. The juvenile court found the allegations in the petition true and declared K.Y. a dependent of the court. The parents were offered reunification services and ordered to participate in the court-approved case plan. Mother's case plan required her to participate in general counseling, a parenting education program, a substance abuse treatment program, and drug test.

For the first three months of this case, Mother was homeless. However, on February 18, 2011, Mother, who was pregnant with her third child, enrolled in an inpatient 12-month program at the Coachella Valley Rescue Mission (Coachella Valley program). Later revelations by Mother indicate that she was still taking methamphetamine for the first two or three months after entering the program. The program included anger management, 12-step and life skills classes, Bible studies, random drug testing, individual and group counseling, and 28 hours of work therapy each week. In addition, Mother received a $15 stipend every two weeks. Mother was doing exceptionally well in the program. She had also enrolled in a general education diploma (GED) course and was planning to take her examination in July. Additionally, Mother had attended offsite parenting and substance abuse classes, as well as counseling.

Mother was also regularly visiting K.Y. twice weekly for two hours. Mother was appropriate during the visits, and K.Y. appeared to be forming a bond with his mother. K.Y., who knew the difference between his foster mother and Mother, appeared to be bonded to his foster mother as well and sought comfort from his foster mother when he was tired, hungry, or hurt.

The six-month review hearing was held on June 22, 2011. Due to Mother's progress in her case plan, the juvenile court continued Mother's reunification services as to K.Y.

Mother's third child, N.H., was born in August 2011. On October 19, 2011, Mother admitted to a relapse on October 8, 2011, when she took her first weekend pass to visit family. During that weekend, Mother explained she left N.H. in her brother's care while she used methamphetamine. Mother later acknowledged that it was a "poor choice," and that she "just could not handle being around drugs." She also later admitted she had two relapses between October and November 2011, while N.H. was in her care.

On October 28, 2011, Mother informed the social worker that she would be leaving the Coachella Valley program "because they were not meeting her needs." The social worker later discovered that Mother had subsequently been dismissed from the program for failing to abide by the rules and regulations of the program. The director of the Coachella Valley program reported that Mother was enrolled in the program from February 19 to October 31, 2011. During that time, Mother had received "15 disciplinary write ups for various reasons, [and] a 60 day restriction for disruptive behavior and failure to comply with her required responsibilities."

Furthermore, Mother admitted using methamphetamine during the first five months of her pregnancy with N.H. Since N.H. was born in August 2011 and Mother was reported seven months pregnant in a social worker's report dated June 22, 2011, and N.H. was likely conceived in November or December 2010, the first five months of her pregnancy would have included the first two or three months after she began the Coachella Valley program on February 18, 2011. The social worker was also concerned because N.H. required a sleep apnea machine for his breathing disorder, and Mother appeared to be unsure whether she would be able to care for the child.

N.H. was "born with unstable breathing and had bacteria in his blood, for which he was hospitalized for three weeks in the NICU."

On November 17, 2011, DPSS filed a petition pursuant to section 300 on behalf of N.H., based on Mother having an open reunification case, her extensive drug abuse history, and her recent relapse.

Also, on November 17, 2011, Mother began attending the Riverside County Department of Mental Health's "MOMS" program (MOMS program). DPSS recommended that N.H. remain in Mother's physical custody, based on Mother's "proactive efforts to secure her child in a safe place and get the necessary help to alleviate her problems."

The program offers outpatient treatment to voluntary and court-ordered clients, and provides counseling and education to pregnant and parenting drug abusing women. Services include transportation to a 16-week intensive day treatment program where women learn hands-on parenting skills.

On November 18, 2011, the juvenile court disagreed with DPSS's request and formally detained N.H. N.H. was placed in the same foster home as his half sibling K.Y.

At the detention hearing, Mother claimed that she did not know who the father of N.H. was; his identity remains unknown.

By December 21, 2011, Mother, who was still unemployed, moved into a residential substance abuse facility at Martha's Village and Kitchen in Indio. She resided in the single parent's dormitory, and was required to attend Narcotics Anonymous/Alcoholic Anonymous (NA/AA) meetings, self sufficiency classes, and participate in the GED program. She was also attending the MOMS program, general counseling, and drug testing with negative results. In addition, Mother continued to regularly visit K.Y. for four hours every other Thursday. Mother was appropriate during the visits, and K.Y. was "becoming well bonded with his mother." Mother also visited N.H., and the visits appeared to be appropriate. Mother was able to effectively redirect K.Y. and attend to N.H.'s needs.

The social worker believed that reunification was "highly unlikely even if offered additional months of services." She based her opinion on Mother's three-year drug addiction to methamphetamine, that neither K.Y. nor D.Y. was in Mother's care, that Mother had failed to enroll in services until three months after K.Y. was detained, and that Mother had recently relapsed. The social worker also noted that Mother had only parented K.Y. for about six months before she gave him to Father who physically abused the child. The social worker further pointed out that Mother continued to show a lack of parenting skills as to her newborn baby, as evidenced by her feeding the two-month-old popcorn and ice cream given his age and medical condition. DPSS therefore recommended that the juvenile court terminate reunification services as to K.Y. and deny reunification services as to N.H. pursuant to section 361.5, subdivision (b)(10).

However, by February 14, 2012, DPSS changed its recommendations because in December 2011, Mother had voluntarily entered the MFI Recovery Center (MFI program), a residential substance abuse treatment facility, and had completed 45 days of the program as of January 28, 2012. The program provided Mother with an array of educational programs and counseling, such as substance abuse education, relapse prevention, self-esteem, step studies, parenting education, domestic violence, anger management, life skills, a 12-step program, and criminal addictive thinking. Mother had received a number of acknowledgements and certificates for completing portions of the program. Mother was also drug testing with negative results. Following her 45-day residential program, Mother enrolled in the outpatient MFI program and was residing in a sober living residence. The social worker believed that Mother was benefiting from the program, but noted, "however, time is the only factor that can determine the extent and her continued commitment to remaining drug free and her willingness to regain custody of her children."

MFI Recovery Center (My Family, Inc.) is a nonprofit alcohol and drug recovery treatment program.

On February 14, 2012, the juvenile court held a combined 12-month review hearing as to K.Y., and the jurisdictional/dispositional hearing as to N.H. At the hearing, DPSS recommended that services be offered to Mother. Mother's counsel argued that based on Mother's honesty and the "tremendous progress" that she has made, "the court could find a substantial probability" the children could be returned to her care if given services. Minors' counsel argued that Mother should be provided with services, given that in the last six months and her "very bad background," Mother has made "an extraordinary effort."

The juvenile court disagreed, and explained: "I can see everyone has a lot of concern and compassion for the mother given what she's gone through, and I can certainly understand that, but the Court has an obligation to protect these young children and I can't lose sight of that, and that is the court's foremost obligation. [¶] I just don't feel that the court would be protective of the children if it followed [DPSS]'s recommendation. I feel bad for mother. She's certainly had a hard life, but she has a longstanding drug problem. She didn't do so well in the first six months of her review period with [K.Y.] [¶] The court was convinced to give her an additional six months where she got pregnant again and began using methamphetamine while pregnant with another baby and used methamphetamine during her second six months of the review period regarding [K.Y.]'s review."

As to K.Y., the juvenile court terminated reunification services and set a section 366.26 hearing. It found by clear and convincing evidence that Mother had failed to make substantive progress or complete her case plan, and that there was no substantial probability of returning the child to Mother if given additional services.

As to N.H., the juvenile court found the allegations in the petition true and declared him a dependent of the court. It denied Mother services pursuant to section 361.5, subdivision (b)(10) and (b)(13). In regard to section 361.5, subdivision (b)(13), the juvenile court noted that, "No one has argued (b)(13). I believe that was discussed in a previous hearing on this. But, the evidence is all through the report that mother comes within (b)(13)." The juvenile court thereafter gave the parties an opportunity to comment on the (b)(13) finding. Mother's counsel argued that there was insufficient evidence to make a finding under (b)(13). The juvenile court disagreed. It denied Mother services "as not being in the best interest of the child," pursuant to section 361.5, subdivision (b)(10) and (b)(13), and set a section 366.26 hearing.

II


DISCUSSION

A. Termination of Services as to K.Y.

Mother contends, and DPSS agrees, that there was insufficient evidence to support the juvenile court's order terminating reunification services as to K.Y. The parties, therefore, believe that Mother was entitled to six additional months of reunification services.

When a dependent child is not returned to parental custody at the 12-month review hearing, the juvenile court has three options: (1) set a selection and implementation hearing; (2) order the child remain in long-term foster care; or (3) continue reunification efforts for an additional six months to the 18-month date. (§ 366.21, subd. (g)(1)-(3).) "The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . ." (§ 366.21, subd. (g)(1).)

In order to find a substantial probability of return, the juvenile court is required to find all of the following: (1) the parent has consistently and regularly visited the child; (2) the parent has made substantial progress in resolving the problems that led to the child's removal; and (3) "[t]he parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(A)-(C); see also Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845 (Tonya M.).)

"[T]he extent to which a parent has progressed in resolving the problems that led to the child's removal necessarily depends on the parent's efforts and successes during the entire reunification period." (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1062 (A.H.).) "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, superseded by statute on another ground as stated in In re Eli F. (1989) 212 Cal.App.3d 228, 234.) "Perfection is certainly not the standard, but a demonstrated lack of progress necessary for reunification, regardless of its cause, is absolutely relevant when the ultimate goal is expeditious resolution for the child." (A.H., at p. 1062; see also Tonya M., supra, 42 Cal.4th at p. 847, fn. 4 ["We have long recognized that providing children expeditious resolutions is a core concern of the entire dependency scheme"].)

We review the juvenile court's decision for substantial evidence. (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1024; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626.) In doing so, we must view the record in the light most favorable to the respondent and "indulge in all legitimate and reasonable inferences to uphold" the court's findings. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Here, looking at the most recent review period as a whole, the juvenile court could reasonably conclude that Mother had not made consistent progress toward completion of her court-ordered case plan, the elimination of the causes for her children's removal from her custody, or in demonstrating her capacity to provide for her children's well-being. By the time of the 12-month review hearing, Mother had completed the 45-day residential MFI program and was enrolled in their outpatient program. However, only months before, she had admitted to using methamphetamine when she took her first weekend pass to visit family and was dismissed from the Coachella Valley program for failing to abide by the rules of the program. Mother also later admitted to two more incidents of relapses between October and November 2011, while N.H. was in her care. Furthermore, Mother admitted to using methamphetamine during the first five months of her pregnancy with N.H.

Moreover, only months before the social worker believed that reunification was "highly unlikely even if offered additional months of services," based on numerous factors, such as Mother's three-year drug addiction to methamphetamine, K.Y. and D.Y. not being in her care, her failing to enroll in services until three months after K.Y. was detained, and her recent relapses. The social worker also noted that Mother had only parented K.Y. for about six months before she gave him to Father who had physically abused the child. The social worker further pointed out that Mother continued to show a lack of parenting skills as to N.H., as evidenced by her feeding the two-month-old popcorn and ice cream given his age and medical condition. The fact Mother had completed numerous classes and remained drug free for about three months prior to the 12-month review hearing did not demonstrate she had made substantial progress with her case plan.

We note that neither Mother nor DPSS mention D.Y., Mother's second child, in their writ petitions, and DPSS believes N.H. is Mother's second child. Allegations of general neglect were substantiated on March 24, 2010, in regard to D.Y., due to Mother's substance abuse. And, following an investigation, Mother signed a declaration to have her sister care for D.Y. in Arizona.

Additionally, although Mother is to be commended for her efforts to resolve her substance abuse problem, substantial evidence shows that there was no credible evidence that Mother could control her drug addiction in the next six months and be able to effectively parent and care for K.Y. Indeed, Mother acknowledged that she could not be around people who used drugs. In addition, during the entire reunification period, Mother had no job or prospects of securing a job or a residence of her own, and had solely resided in structured settings. The record shows that there was no reasonable probability K.Y. would be returned to a safe home within six months, and there is no evidence to suggest that Mother could provide a safe home for the child within any foreseeable period of time. Indeed, the parties do not go so far as to argue there was evidence suggesting K.Y. would have been returned to Mother's care before the 18-month deadline if she had been given an additional six months of services.

Mother's lack of consistency throughout the entire reunification period provided substantial evidence to support the juvenile court's order terminating reunification services as to K.Y. Although there is no question that Mother was maintaining regular visitation and that she had possibly made some progress in resolving the problems that led to K.Y.'s removal, there was substantial evidence that Mother had not made "significant progress in resolving problems that led to the child's removal from the home." (§ 366.21, subd. (g)(1)(B).) There is also substantial evidence that Mother had not demonstrated the capacity and ability to safely parent K.Y. before the 18-month date. (§ 366.21, subd. (g)(1)(C).)

Accordingly, substantial evidence supports the juvenile court's order terminating reunification services as to K.Y.

B. Denial of Services as to N.H.

Mother also contends, and DPSS agrees, that there was insufficient evidence to support the juvenile court's order denying her services as to N.H. pursuant to section 361.5, subdivisions (b)(10) and (b)(13). Mother further argues, and DPSS concedes, that she was not provided notice that services might be denied under section 361.5, subdivision (b)(13).

Turning from the order terminating services as to K.Y. to the order denying services as to N.H., the juvenile court was required to make a more difficult decision, albeit on the same set of facts, because the presumptions are more favorable to the parents at the dispositional stage than they are after 12 months of reunification services. Nevertheless, as we will explain, because of the exceptions that apply in this case to the general rule that reunification services are provided, we uphold the juvenile court's findings and orders as to N.H.

"There is a presumption in dependency cases that parents will receive reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5 subdivision (b). [Citation.] Section 361.5, subdivision (b) is a legislative acknowledgement 'that it may be fruitless to provide reunification services under certain circumstances.' [Citation.]" (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96 (Cheryl P.); see also Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744 (Renee J.), superseded by statute on other grounds as stated in In re Angelique C. (2003) 113 Cal.App.4th 509, 518, & In re Allison (2010) 190 Cal.App.4th 1106, 1113; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) "Once it is determined one of the situations outlined in 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.]" (In re Baby Boy H., at p. 478.)

Section 361.5, subdivision (b), lists the circumstances where reunification services need not be provided. As relevant here, the circumstances include where the juvenile court previously has terminated reunification services for a sibling or half sibling (§ 361.5, subd. (b)(10)), and a parent has a chronic drug problem (§ 361.5, subd. (b)(13)).

We review the juvenile court's order denying reunification services under section 361.5, subdivision (b), for substantial evidence. (Cheryl P., supra, 139 Cal.App.4th at p. 96.) When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Ibid.) Substantial evidence is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The burden is on the petitioner to show the evidence is insufficient to support the juvenile court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

1. Section 361.5, subdivision (b)(10)

Section 361.5, subdivision (b)(10), allows a court to deny services if it finds, by clear and convincing evidence "[t]hat 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 . . . 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."

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).) "The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)

Section 361.5, subdivision (b)(10), contemplates a two-prong inquiry: (1) whether the parent previously failed to reunify with the dependent child's sibling or half sibling; and (2) whether the parent "subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ." (§ 361.5, subd. (b)(10).) It appears that only the second prong is disputed here. 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. (2005) 125 Cal.App.4th 831, 842 [Fourth Dist., Div. Two].)

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., supra, 96 Cal.App.4th at p. 1464.) Thus, for example, the "mere fact that [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.) Rather, 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.]" (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393 (K.C.).) According to the court in 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, substantial evidence shows that Mother only made "half-hearted efforts" to address the problems underlying N.H.'s siblings removal. (Cheryl P., supra, 139 Cal.App.4th at p. 99.) By the time of the dispositional hearing in N.H.'s case, Mother had completed 45 days of the residential MFI program and was enrolled in their outpatient program. However, only months before, she had admitted using methamphetamine and was dismissed from the Coachella Valley program for failing to abide by the rules of the program. She also later admitted two more incidents of relapses between October and November 2011, while N.H. was in her care. Furthermore, Mother admitted using methamphetamine during the first five months of her pregnancy with N.H. The social worker also initially did not believe reunification was likely even if Mother was offered additional months of services, based on Mother's three-year drug addiction to methamphetamine, K.Y. and D.Y. not being in her care, her failing to enroll in services until three months after K.Y. was detained, and her recent relapses.

The petition on behalf of K.Y. specifically stated: (1) "The mother knew or reasonably should have known that the father was physically abusing the child, and the mother failed to intervene on behalf of the child to protect the child"; (2) "[t]he mother has an unresolved substance abuse history, she is currently residing in a sober living home, and is unable to provide the child with adequate food, clothing, shelter, medical treatment, and protection"; and (3) "[t]he mother is unable and/or unwilling to provide the child with care and support."

Moreover, there is no evidence to suggest Mother had made reasonable efforts to treat all of the problems leading to N.H.'s sibling's removal. K.Y. was removed from Mother's care for her failure to provide the child "with adequate food, clothing, shelter, medical treatment, [care], and protection," as well as for her unresolved substance abuse history. Although Mother had engaged in services, she continued to show a lack of parenting skills as evidenced by her feeding popcorn and ice cream to two-month-old N.H. Further, during the entire reunification period in K.Y.'s case, Mother had no job or prospects of securing a job or a residence of her own, and had solely resided in structured settings. Indeed, there is no evidence in the record to suggest that Mother was able to provide for herself outside of a residential program, much less her children. We conclude that substantial evidence supports the juvenile court's finding that Mother did not make "a reasonable effort to treat the problems that led to removal of" K.Y. (§ 361.5, subd. (b)(10).)

Mother relies on Cheryl P., supra, 139 Cal.App.4th 87 to support her position that she had made a reasonable effort to treat the problems leading to K.Y.'s removal. The appellate court in Cheryl P. held that the evidence failed to support the implicit finding that the parents had not made reasonable efforts to treat the problems leading to the removal of the older child, and it reversed the lower court's order denying the parents reunification services under section 361.5, subdivision (b)(10). (Cheryl P., supra, at p. 90.) In Cheryl P., the reviewing court concluded that the lower court "applied the wrong standard—namely, that six more months of services would be pointless because [the parents] had not eliminated their problems after 18 months of services." (Id. at p. 97.) In Cheryl P., the child was removed from his parents' custody because they were homeless and did not properly supervise him. (Id. at p. 98.) By the time of the dispositional hearing, the parents were renting an apartment, which was deemed adequate for the family, and the parents had participated in their case plans. (Ibid.) The court 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, while Mother had gone through the motions of attending classes and substance abuse programs, which she had previously done, Mother had not shown progress toward independent living. As already stressed, even after K.Y. had been removed, and Mother was participating in an inpatient substance abuse program for at least six months, she was unable to maintain her sobriety and relapsed the first time she was given a weekend pass to see her family. Further, the fact Mother had completed numerous classes and remained drug free for about three months in the structured setting of a program prior to the dispositional hearing did not demonstrate she had made reasonable efforts in other areas leading to K.Y.'s removal, such as supporting and caring for a child. Thus, unlike the situation in Cheryl P., where the parents demonstrated real effort toward treating all their problems by the time of the disposition hearing, here, Mother showed no concrete signs of being able to maintain herself, much less N.H., without the support and direction of a residential program.

R.T. v. Superior Court (2012) 202 Cal.App.4th 908 (R.T.) is more like this case. In R.T., the child was removed from his parents' care after his father was arrested for domestic violence and the mother admitted drug and alcohol use. The parents had previously failed to reunify with the child's sibling, P.T., who was removed based on the parents' substance abuse and chronic homelessness. (Id. at p. 911.) The parents had made only minimal efforts to engage in reunification services in P.T.'s case. But, two months after the minor's removal, the mother moved to a safe residence, separated from the father, was following mental health recommendations, and had started attending a drug treatment program and 12-step meetings. Notwithstanding these efforts, the juvenile court ordered bypass of reunification services, citing the termination of parental rights in P.T.'s case and finding the parents had not made reasonable efforts to treat the underlying problems. (Id. at pp. 911-913.)

The Court of Appeal explained: "We do not read the 'reasonable effort' language in the bypass provisions to 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 alone 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., supra, 202 Cal.App.4th at pp. 914-915.)

In concluding that substantial evidence supported the juvenile court's finding, the R.T. court observed: "There is no evidence that mother made any effort to address her substance abuse issues after minor was returned to her, until minor was once again removed and bypass was recommended. By then, mother had been using drugs again for nearly a year, if not longer, and minor was once again languishing without proper care as a result. There is no evidence in the record that mother, in the month or two of services following minor's second removal, had engaged in these services in any meaningful way. [Citation.] In any event, the juvenile court properly could conclude this recent effort, even assuming the effort was substantiated, was simply too little, too late." (R.T., supra, 202 Cal.App.4th at p. 915.)

By the time of the dispositional hearing in N.H.'s case, Mother had voluntarily entered and completed 45 days at the residential MFI program. She was also enrolled in their outpatient program and was residing in a sober living residence. Additionally, she was continuing to test negative for drugs and had completed some parenting classes. However, the duration, extent, and context of Mother's efforts reveal a pattern that, especially when combined with Mother's actual progress, could reasonably lead the juvenile court to conclude that Mother's efforts were only superficial. Although there are other inferences that can be drawn, the timing of Mother's efforts does reasonably suggest that she was not motivated by a genuine desire to change. Rather, one could reasonably infer that Mother was only prompted to resume substance abuse programs by entering the MOMS program on the same date the petition on behalf of N.H. was filed. In addition, whatever Mother may have learned from her participation in the services she was offered, she was clearly unable or unwilling to apply.

When the record is viewed in the light most favorable to the judgment, the juvenile court could reasonably conclude that Mother's efforts to deal with her persistent substance abuse issues, and to provide for the safety and security of her children, were "'"lackadaisical or half-hearted"'" considering the duration, extent, and context of her efforts. The juvenile court could reasonably reject Mother's argument that her three months of participation in an inpatient substance abuse treatment program constituted a reasonable effort to treat her long-term methamphetamine addiction and to provide proper care for her children. In view of Mother's history of substance abuse and prior opportunities to treat her addiction, the record supports the conclusion that Mother's recent participation in substance abuse treatment, while a positive step, is both qualitatively and quantitatively insufficient to support the finding that she made a reasonable effort to treat the problems that had led to the removal of N.H.'s sibling from her care. (R.T., supra, 202 Cal.App.4th at p. 914.)

The purpose of the reasonable effort prong of section 361.5, subdivision (b)(10), is not to create further delay for a child by allowing a parent, who up to that point has not reasonably addressed his or her problems, another opportunity to do so. (Harmony B., supra, 125 Cal.App.4th at p. 843.) Viewing Mother's history in its totality, we conclude that there is substantial evidence to support the juvenile court's finding that Mother did not make a reasonable effort to treat the problems that led to the removal of N.H.'s sibling from her care. Accordingly, the juvenile court did not err when it denied reunification services to Mother under section 361.5, subdivision (b)(10).

2. Section 361.5, subdivision (b)(13)

The juvenile court also denied services to Mother as to N.H. under section 361.5, subdivision (b)(13). Mother and DPSS both argue that this bypass provision did not apply because there was no notice that section 361.5, subdivision (b)(13), would be used to deny services, and there was insufficient evidence to support application of this bypass statute.

Initially, we address the question of whether a parent is entitled to notice that she might be denied services under this specific paragraph of section 361.5, subdivision (b). "Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. [Citation.]" (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114; see also In re Joshua M. (1998) 66 Cal.App.4th 458, 471.)

Section 361.5, subdivision (c), also states: "In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The social worker shall prepare a report that discusses whether reunification services shall be provided." The statute does not specify whether the social worker must identify the exact paragraph in section 361.5, subdivision (b).

Courts have suggested that notice is adequate when it informs the parent that it is seeking the denial of reunification services under section 361.5. (See, e.g., In re S.G. (2003) 112 Cal.App.4th 1254, 1259; In re Joy M. (2002) 99 Cal.App.4th 11, 22, fn. 5; In re Jessica F. (1991) 229 Cal.App.3d 769, 782 (Jessica F.) [Fourth Dist., Div. Two].) In Jessica F., this court specifically addressed an argument similar to the one raised here. In that case, the mother argued that the county department of public social services was required to include in the dependency petition a specific allegation that reunification services would be denied under section 361.5, subdivision (b)(4). We concluded that ". . . section 361.5 only requires that mother be given notice in the social worker's report that reunification services might be denied and, further, that mother be afforded an opportunity to be heard on that issue, both of which occurred in this case." (Jessica F., at p. 782.) In Jessica F., although we noted that the mother had received notice of the specific basis for the denial of services at the jurisdictional hearing, having notice of the specific statutory paragraph further established that mother had no legitimate reason to complain. (Id. at p. 782, fn. 15.) We were satisfied that the social worker's reports referred to section 361.5, subdivision (b), without reference to any specific paragraph. (Jessica F., at p. 782 & fn. 15.)

We again conclude that section 361.5 only requires that Mother be given notice that reunification services might be denied. This is particularly true in this case where Mother was given notice that services might be denied under section 361.5, subdivision (b)(10), and, as the juvenile court noted, the social worker's "report seems to speak to it not by mentioning (b)(13), but by the outlining of the facts and the situation." Moreover, Mother was provided with an opportunity to respond to whether services should be denied under section 361.5, subdivision (b)(13), at the dispositional hearing. Mother, therefore, cannot assert that she was surprised that services were also denied under section 361.5, subdivision (b)(13).

Even without notice of the specific paragraph, Mother should have been able to narrow down the potential grounds for denying services based on the facts involved in this case. Although the social worker offered one ground for the denial of reunification services, Mother nevertheless had notice that DPSS intended to seek the denial of services. Mother also had notice at a prior hearing that the juvenile court "would not be inclined to follow [DPSS]'s amended recommendation." While prior notice of the exact paragraph may have assisted Mother in preparing for the dispositional hearing, we cannot say that Mother was deprived of due process or denied her rights under the statute. Both due process and the requirements of section 361.5 require only that Mother be made aware that DPSS intends to seek the denial of reunification services.

We therefore conclude that Mother received adequate notice.

We now address whether there was substantial evidence to deny Mother services as to N.H. under section 361.5, subdivision (b)(13). Again, we review the juvenile court's determination under the substantial evidence rule. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)

Section 361.5, subdivision (b)(13), provides that reunification services may be denied to a parent when the juvenile court finds by clear and convincing evidence that "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 . . . ."

Under section 361.5, subdivision (b)(13), two prongs must be found by clear and convincing evidence to deny a parent reunification services. First, the parent must have "a history of extensive, abusive, and chronic use of drugs or alcohol." Second, the parent either (1) "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 (2) "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."

Mother does not deny that section 361.5, subdivision (b)(13), applies to her insofar as her drug use is extensive, abusive, and chronic. Rather, she contends she did not resist treatment within the meaning of the statute.

Numerous cases have held that the requirement of resistance to court-ordered treatment may be satisfied with evidence that the parent participated in court-ordered treatment within a three-year period preceding the filing of the petition but subsequently returned to substance abuse. (See, e.g., In re Brooke C. (2005) 127 Cal.App.4th 377, 382; In re Brian M. (2000) 82 Cal.App.4th 1398, 1402; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73 (Randi R.).) In addition, "a parent can actively resist treatment for drug or alcohol abuse by refusing to attend a program or by declining to participate once there." (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010 (Karen S.).) Proof of resistance "may come in the form of dropping out of programs, or in the form of resumption of regular drug use after a period of sobriety." (In re Brian M., at p. 1402.)

Here, there is substantial evidence that Mother resisted court-ordered treatment within the three-year period immediately preceding the filing of the petition on behalf of N.H. on November 17, 2011. Although Mother had completed the 45-day MFI program and was enrolled in their outpatient program by the time of the dispositional hearing, only months before, she had admitted to using methamphetamine when she took her first weekend pass to visit family. She also admitted to two more incidents of relapses between October and November 2011, while N.H. was in her care. Furthermore, she admitted to using methamphetamine during the first five months of her pregnancy with N.H. Moreover, she was dismissed from the Coachella Valley program for failing to abide by the rules of the program. Under these circumstances, substantial evidence shows that Mother resisted treatment.

In support of her contention that she did not resist treatment, Mother seeks to distinguish the facts of her case from those in Laura B. v. Superior Court (1998) 68 Cal.App.4th 776 (Laura B.), a case in which the court found the mother resisted treatment. In Laura B., a mother with an 18-year history of drug use gave birth to a child who tested positive for cocaine. (Id. at p. 778.) The mother had participated in numerous rehabilitation programs, including two residential treatment programs. (Ibid.) However, she stopped attending NA/AA meetings and used cocaine during her pregnancy, knowing that she was pregnant. (Ibid.) The juvenile court determined that her drug use constituted resistance to treatment and denied her reunification services. (Id. at pp. 778-779.)

Laura B. examined the meaning of "resistance to treatment" under section 361.5, subdivision (b)(12), the antecedent version of subdivision (b)(13). (Laura. B., supra, 68 Cal.App.4th at pp. 780-781.) Section 361.5 was amended, effective October 10, 2001, without substantive change, renumbering subdivision (b)(12) as (b)(13). (Stats. 2001, ch. 653, § 11.3, p. 4123.) In 2002, section 361.5, subdivision (b)(13), was amended to replace "prior treatment" with "court-ordered treatment." (Stats. 2002, ch. 918, § 7, p. 4512.)
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The Laura B. court concurred that the mother resisted treatment because she stopped attending NA meetings, and she returned to consistent and habitual substance abuse. (Laura B., supra, 68 Cal.App.4th at p. 780.) The court distinguished the mother's drug use from a relapse, stating: "A mother who regularly attends her program could experience a brief relapse during pregnancy but immediately resume treatment. That type of behavior would not necessarily prove resistance. But [the mother] did not just suffer a setback; she did not just fall off the wagon on one or two occasions. She stopped attending Narcotics Anonymous meetings and returned to consistent, habitual, semiweekly and then biweekly substance abuse. Regular use of cocaine throughout pregnancy cannot be considered a simple relapse. It is an abundantly clear demonstration of a determination to maintain a drug habit. The trial court reasonably interpreted this as resistance to treatment." (Ibid.) The court held that resistance to treatment may "come in the form of resumption of regular drug use after a period of sobriety." (Ibid.)

Mother contends, unlike the mother in Laura B., that she merely relapsed. She further claims that she never stopped her treatment and found a program better suited to her needs. Therefore, she claims, under the holding of Laura B., her drug use did not constitute resistance under section 361.5, subdivision (b)(13). Having reviewed the appellate record, as summarized above, we conclude differently.

Karen S., supra, 69 Cal.App.4th 1006 is instructive. In that case, the father had a chronic history of abusing heroin, marijuana, and alcohol. He argued that the evidence did not show that he had resisted prior treatment for his chronic substance abuse because he had voluntarily participated in substance abuse programs both before and after the dependency petition was filed. (Id. at p. 1009.) The appellate court, in rejecting the father's argument, stated, "It is true [the father] voluntarily sought out treatment programs, but the evidence also establishes that he never had a significant period free of substance abuse despite the programs." (Ibid.)

Although there is no evidence to suggest that Mother began consistently and habitually using drugs as did the mother in Laura B., substantial evidence here nonetheless demonstrates that Mother resisted treatment. Her pattern of substance abuse constitutes resistance to treatment, not merely a relapse, because, as previously noted, a parent "can passively resist [treatment] by participating in treatment but nonetheless continuing to abuse drugs or alcohol, thus demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life." (Karen S., supra, 69 Cal.App.4th at p. 1010; see also Randi R. v. Superior Court, supra, 64 Cal.App.4th at p. 73 [multiple programs completed but unable to maintain long-term sobriety].) Mother admitted using methamphetamine during the first few months of her pregnancy, which included two or three months while in the Coachella Valley program. She otherwise abstained from illegal substances while in the program, but an inference can be drawn from her relapse at her first opportunity that she complied only because she lacked the opportunity. Thus, the juvenile court could reasonably infer that she had been passively resisting the Coachella Valley program until her weekend pass permitted her resistance to become active. Mother's current compliance could merely be a repetition of a pattern of passive resistance, becoming active when the opportunity is presented.

Mother exemplifies the kind of parent described in Karen S., one who passively resists treatment. She participated in many drug treatment programs, some for extended periods of time, and yet she resumed drug use. For whatever reason, Mother repeatedly failed to apply the skills she learned in drug treatment to achieve sobriety. By her failure to break her pattern, Mother demonstrated that any further attempts at reunification would be fruitless. Further, Mother's conduct suggests a deliberate choice to resume drug use and not a brief relapse. Most notably, she arranged care for N.H. so she could use methamphetamine. The juvenile court could reasonably infer that this behavior is not a brief relapse but the beginning of a repetitive cycle of drug use demonstrating resistance to treatment. Based on the foregoing, we find substantial evidence to support the juvenile court's finding under section 361.5, subdivision (b)(13). The juvenile court therefore did not err in denying Mother reunification services as to N.H. pursuant to section 361.5, subdivision (b)(13).

III


DISPOSITION

The petition for extraordinary writ is denied. The previously ordered stay is lifted.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.
We concur:

McKINSTER

J.

CODRINGTON

J.