Filed 2/5/15 Nicole B. v. Super. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOUTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NICOLE B., D066874

Petitioner, (San Diego County Super. Ct. No. J519002) v.

THE SUPERIOR COURT OF SAN

DIEGO COUNTY,

Respondent;

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

Real Party in Interest.

PROCEEDINGS for extraordinary relief after reference to a Welfare and

Institutions Code section 366.26 hearing. Kenneth J. Medel, Judge. Petition denied;

request for stay denied.

Dependency Legal Group of San Diego and John P. McCurley for Petitioner. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San

Diego County Health and Human Services Agency.

Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and

Alexandra Abbey for Minor.

Nicole B. seeks writ review and stay of a juvenile court order denying

reunification services as to her minor son, Michael B., and setting a Welfare and

Institutions Code1 section 366.26 hearing. Nicole contends the evidence was insufficient

to support the denial of services under section 361.5, subdivision (b)(10) and (11). We

deny the petition and Nicole's request for a stay.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2014, the San Diego County Health and Human Services Agency (the

Agency) filed a petition on behalf of newborn Michael B. under section 300,

subdivisions (b)2 and (g). The subdivision (b) count alleged that Nicole "had a mental

illness, including, but not limited to, anxiety, depression and cognitive impairment for

which she was hospitalized in February 2014. Further, the mother was incarcerated at

Las Colinas, just prior to giving birth where she exhibited signs of paranoia,

disorganization and agitation during most of the time there. The mother has

demonstrated a negative association with the child during her pregnancy and after birth,

1 Statutory references are to the Welfare and Institutions Code.

2 Effective June 20, 2014, after the Agency filed the petition, subdivision (b) of section 300 was redesignated subdivision (b)(1). (Stats. 2014, ch. 29, § 64.) 2 which rendered her incapable of providing regular care for [the] child . . . ." The

subdivision (g) count alleged Nicole had been incarcerated or institutionalized and could

not arrange for the care of Michael. The petition alleged the identity and whereabouts of

the father were unknown.

The Agency received a referral and detained Michael the day after Nicole gave

birth to him during her incarceration at Las Colinas Correctional Facility. The Agency in

its detention report stated that Nicole had a history of psychiatric illness and substance

abuse issues and had not shown any interest in seeing Michael after he was born. She did

not receive prenatal care before her incarceration on February 4, 2014, and she tested

positive for methamphetamine in January 2014 while pregnant. She told treating

physicians she blamed Michael for nightmares and other psychiatric issues during her

pregnancy.

The Agency social worker who interviewed her the day after Michael was born

reported Nicole was handcuffed to her hospital bed and was being monitored by two

Sheriff's deputies because of her history of violent behavior. She was incarcerated and

charged with assault with force likely to cause great bodily injury and battery on

emergency personnel after she became violent with staff at a county mental health facility

in February 2014.3 A representative of the district attorney's office told the social worker

3 The social worker reported in the Agency's detention and jurisdiction/disposition reports that Nicole was charged with three felony counts of assault with force likely to cause great bodily injury and three misdemeanor counts of battery on emergency personnel. However, Nicole's entire criminal history, which the Agency obtained from a "CLETS" (Criminal Law Enforcement Telecommunications System) request and set 3 Nicole had been found not competent to face her charges and would be sent to Patton

State Hospital (Patton) to stabilize her mental condition until she became competent

enough to face the charges. A person sent to Patton to stabilize before facing criminal

charges usually would be there around six months, but could be there for up to three

years. Nicole denied having mental health issues and repeatedly told the social worker,

"I have to go to Patton and then I have to get myself together. I can't have the baby with

me." She also repeatedly said, "I hate psych meds." She was unsure whether she wanted

to give Michael up for adoption or work toward reunification.

When the social worker interviewed Nicole on June 11, 2014, Nicole reported she

had been living in the Los Angeles area with a boyfriend she described as "abusive." She

said he had "control issues" and she was tired of living on the streets and smoking "meth"

with him. She told the social worker, "I'm a user, a smoker. I smoke a lot." She told an

obstetrician who evaluated her in February 2014 that she had recently used meth, crack,

and THC4 with her boyfriend. When she found out she was pregnant, she wanted to stop

using methamphetamine and get away from her boyfriend, so she took a bus to Tijuana,

Mexico, and then decided to go to San Diego because she had no money.

forth in the jurisdiction/disposition report, lists one count of "Assault with deadly weapon with force: Possible great bodily injury"; one count of "Assault with force: Possible great bodily injury"; and two counts of "Battery Peace Officer/emergency personnel/etc." from the February 2014 incident.

4 THC or tetrahydrocannabinol is "the chief intoxicant in marijuana." (Webster's 11th Collegiate Dict. (2004) p. 1294.) 4 In San Diego, law enforcement directed Nicole to a shelter. She started "having

nightmares" at the shelter and voluntarily checked herself into a county psychiatric

hospital after she "swung [her fist] on a nurse after a nightmare." She told the social

worker she only took psychiatric medication if she was "really stressed out," and she only

became stressed out when she had to stay sober and off drugs. When she was on parole

and had to stay sober, she used psychiatric medications "to cut off [her] edge."

Regarding Michael, she told the social worker, "I really don't want to get rid of him. I'm

just stressed out because of the situation I'm in. I didn't want to have a baby right now.

It's bad timing. I don't have family. I don't have support."

Nicole's criminal history set forth in the jurisdiction/disposition report includes

numerous arrests between 1994 and 2008 for possession of a controlled substance

(among other charges), including four in 2003, three in 2005, and one in 2006. She was

convicted of possession of a controlled substance in 2003 and 2005, and was sentenced to

16 months in prison in 2005 after violating her probation. Nicole had no criminal history

from June 2008 until April 2013, when she was arrested and convicted for possession of

controlled substance paraphernalia. In October 2013 she was charged with one count of

"Obstruct/etc. Public Officer/etc." and one count of "Battery Peace Officer/emergency

personnel/etc." The next charges brought against her were the assault and battery charges

arising from her violence against staff members of the county mental health facility in

February 2014.

5 A. Prior Dependency Case

In October 2004, the Department of Children and Family Services in Los Angeles

County filed a section 300 petition on behalf of Nicole's daughter Mariah J. eight days

after her birth. Under section 300, subdivision (b), the petition alleged Nicole had a

history of substance abuse and was a frequent user of methamphetamine and marijuana,

and had used illegal drugs throughout her pregnancy. The petition further alleged she

neglected the child by failing to feed her and change her diaper in the hospital. The

juvenile court sustained the petition, removed Mariah from her custody, and ordered

reunification services for Nicole. In May 2005, the court terminated Nicole's services

because she was not in compliance with her case plan. The court terminated her parental

rights to Mariah in December 2006.

B. Jurisdiction and Disposition Hearings in the Present Case

At the initial jurisdiction hearing, the court appointed a guardian ad litem for

Nicole and set a contested jurisdiction and disposition hearing for August 8, 2014. At the

August 8 hearing, the court sustained the petition and made true findings on the section

300, subdivisions (b) and (g) counts. Over Nicole's objection, the court granted the

Agency's request to bifurcate jurisdiction and disposition and set a contested disposition

hearing for October 22, 2014. In September, Nicole's counselor at Patton left the social

worker a voicemail in which he stated, "It doesn't look like she'll be released anytime

soon."

At the contested disposition hearing, the court admitted the Agency's reports into

evidence and took judicial notice of documents from Mariah's dependency case attached

6 to the Agency's motion for judicial notice. The court declared Michael a dependent of

the court, removed him from Nicole's custody, and placed him in foster care. The court

set a section 366.26 hearing and, under section 361.5, subdivision (b)(10) and (11),

denied Nicole reunification services on the ground she had not made a reasonable effort

to treat the problems that led to Mariah's removal from her custody in the prior

dependency case.

DISCUSSION

Nicole contends the court erred in denying her reunification services. "On

removal of a child from parental custody, the juvenile court generally must order

reunification services to assist the parent to rectify the problems that led to removal.

[Citations.] 'This requirement implements the law's strong preference for maintaining the

family relationship if at all possible.' " (In re Lana S. (2012) 207 Cal.App.4th 94, 106.)

However, section 361.5 authorizes the juvenile court to deny a parent reunification

services if it finds, by clear and convincing evidence, either that the court terminated

reunification services for a sibling or half sibling because the parent failed to reunify with

the sibling or half sibling after the child's removal (§ 361.5, subd. (b)(10)), or that the

parent's rights over a sibling or half sibling were terminated (§ 361.5, subd. (b)(11)), and

in either circumstance, the 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)(10) & (11).) The Agency bears the burden of proving the parent has not made

the reasonable effort required by the statute. (Cheryl P. v. Superior Court (2006)

139 Cal.App.4th 87, 98; In re Albert T. (2006) 144 Cal.App.4th 207, 221.)

7 In evaluating whether a parent has made a reasonable effort to treat the problems

that led to removal of the sibling or half sibling, the court focuses on the extent of the

parent's efforts, not whether he or she has attained "a certain level of progress."

(Cheryl P. v. Superior Court, supra, 139 Cal.App.4th 87, 99.) "The 'reasonable effort to

treat' standard 'is not synonymous with "cure." ' [Citation.] 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.] To be reasonable, the

parent's efforts must be more than 'lackadaisical or half-hearted.' " (K.C. v. Superior

Court (2010) 182 Cal.App.4th 1388, 1393.)

However, the term "reasonable effort" in section 361.5, subdivision (b)(10) and

(11) 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 . . . ." (R.T. v.

Superior Court (2012) 202 Cal.App.4th 908, 914.) The court may "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." (Ibid.) Thus, "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." (Id. at p. 915.)

8 We review an order denying reunification services for substantial evidence.

(R.T. v. Superior Court, supra, 202 Cal.App.4th at p. 914.) We do not consider the

credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the

evidence. Instead, we draw all reasonable inferences in support of the findings, view the

record favorably to the juvenile court's order and affirm the order even if there is

substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994)

24 Cal.App.4th 596, 610; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340,

1346.)

Substantial evidence supports the order denying Nicole reunification services. It is

undisputed that Nicole did not reunify with Michael's half sibling Mariah and her parental

rights over Mariah were terminated. Thus, the first element of section 361.5,

subdivision (b)(10) and (11) is satisfied. Nicole argues the Agency did not meet its

burden of proving she did not make a reasonable effort to treat the problems that led to

Mariah's removal because the Agency did not account for four years and nine months of

the approximately nine-year period since the court terminated her parental rights in

Mariah's dependency case.

We conclude substantial evidence supports the court's finding that Nicole had not

made a reasonable effort to treat her substance abuse problem that led to Mariah's

removal in the prior dependency case, notwithstanding the time period for which the

Agency did not account for Nicole's conduct. Mariah's removal was largely based on

Nicole's history of substance abuse and her frequent use of methamphetamine and

marijuana, including throughout her pregnancy. In the present case, Nicole admitted to

9 the social worker that she was "a user, a smoker[,]" and told the obstetrician who

evaluated her in February 2014 that she recently had used methamphetamine and crack

cocaine. In June 2014, shortly after Michael's birth, she admitted to using

methamphetamine on a regular basis, including during her pregnancy with Michael.

Nicole's criminal history revealed a substance abuse problem going back to at least 2003.

She had multiple arrests for possession of a controlled substance between 2003 and 2005,

and convictions in 2003 and 2005. In 2013 she was convicted of possession of controlled

substance paraphernalia.

In its oral ruling denying Nicole reunification services, the court focused on

Nicole's statements to the social worker that she took psychiatric medication only if she

was "really stressed out"; she only became stressed out when she had to stay sober and

off drugs; and she used psychiatric medications "to cut off [her] edge" when she was on

parole and had to stay sober.5 From these statements, Nicole's criminal history of drug-

related offenses, and the absence of any evidence that she ever made an effort to

overcome her drug abuse problem apart from staying sober only when she "had to" as a

5 The court interpreted Nicole's statements as saying, " 'I'm a meth user. That's what I do, and that's what I'm going to be doing and that's kind of the way it is. And I've been using with my friend. We use together. In fact, what really irks me is when I use the psychotropic drugs, those make me crazy, but not when I use methamphetamine . . . . That's my day-to-day sort of thing. I have to use the psychotropic drugs to not be crazy. I mean, when I use the psychotropic drugs, I'm great. I really go off the edge, but not so when I use the methamphetamine and other drugs. Those are part of my daily existence.' " The court concluded "all of that information together paints that picture of someone who has not reasonably dealt with those problems, which resulted in . . . the removal of [Mariah] initially and then the termination of her services and then the termination of her parental rights." 10 condition of parole, the court could reasonably infer that since her pregnancy with

Mariah, Nicole continuously had been committed to using illegal drugs as a way of life

and had never been seriously interested in treating her mental health problems or

overcoming her drug addiction.6 The court was not required to find Nicole made a

reasonable effort to treat her drug abuse problem during the unaccounted for time period

based solely on the absence of evidence one way or the other as to whether she did.

As noted, although the degree of a parent's success in treating the problems that

led to removal of a sibling or half sibling in a prior dependency case is not the focus or

sole measure of whether the parent has made a reasonable effort to treat those problems,

the measure of success achieved is a factor the court may consider in determining

whether the parent has met the "reasonable effort" requirement under section 361.5,

subdivision (b)(10) and (11). (R.T. v. Superior Court, supra, 202 Cal.App.4th at pp. 914-

915.) In making that determination, the court properly may consider a parent's "lack of

progress, both in the short and long term . . . ." (Id. at p. 214.) The court properly

considered Nicole's lack of long-term progress in treating her substance abuse problems

and reasonably found, based on that lack of progress, Nicole had not made a reasonable

effort to treat her drug abuse problems.

6 The court concluded: "Here, . . . we have such a long history of chronicity, such a commitment and identification with the drug, that I don't think . . . it is appropriate to offer services in this case . . . ." 11

DISPOSITION

The petition is denied. The request for stay is denied.

MCDONALD, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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