Filed 12/19/13 C.C. v. Super. Ct. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


C.C.,

         v.

THE SUPERIOR COURT OF ORANGE                                           G049048
COUNTY,
                                                                       (Super. Ct. No. DP018663)
     Respondent;
                                                                       OPINION
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,

     Real Parties in Interest.



                   Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Kimberly Menninger, Judge.
Petition denied.
                   Frank Ospino, Public Defender, Dave Dziejowski, Assistant Public
Defender, Geraldine Wong and Dennis M. Nolan, Deputy Public Defenders, for
Petitioner.
              Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy
County Counsel, for Real Party in Interest, Orange County Social Services Agency.
              Rebecca Captain, under appointment by the Court of Appeal, for the Minor,
A.C.
                                  *          *           *
              C.C. (mother) seeks extraordinary relief (Cal. Rules of Court, rules 8.450,
8.452) from the juvenile court’s orders bypassing reunification services concerning her
daughter A.C., born in March 2003, (Welf. & Inst. Code, § 361.5, subds. (b)(10), (11); all
statutory references are to this code unless otherwise indicated) and scheduling a section
366.26 selection and implementation hearing for January 15, 2014. Mother contends
there is insufficient evidence to support the court’s finding she had not made reasonable
efforts to treat the problems that led to a failure to reunify with another child removed
from her custody in 2006. Having reviewed the petition on the merits, we deny the
requested relief.
                                              I
                         FACTS AND PROCEDURAL BACKGROUND
              In December 2006, San Diego social workers filed a section 300 petition
concerning mother’s son J.D., born in December 2006. The petition alleged mother had a
history of drug use, used drugs during her pregnancy, tested positive for
methamphetamine, amphetamine and marijuana at J.D.’s birth, and there was a
substantial risk the child would suffer serious physical harm or illness in mother’s care
(§ 300, subd. (b)). Mother received reunification services, but in January 2010, the San
Diego juvenile court terminated mother’s parental rights to J.D.
              In June 2009, the Orange County Social Services Agency (SSA) filed a
section 300 petition concerning mother’s children S.M. (born April 1998), J.M. (January
2001), A.C. (March 2003), A.M. (June 2005), and T.M. (June 2008). The petition
alleged mother had been arrested for child cruelty after leaving eight-year-old J.M. to

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care for younger siblings in a motel room while mother “h[u]ngout with friends” in
another room. A.M. was found wandering the motel grounds, and a man mother had just
met was intoxicated and passed out in mother’s motel room with J.M. and A.C. The
motel room was messy and unclean, and there was insufficient food for the children.
Mother had tested positive for drugs in 2008 and her alcohol and drug problems remained
unresolved. The family had been transient since March 2009. Mother had a criminal
record, including convictions for child cruelty and domestic violence. One of the
children’s fathers used methamphetamine, had a felony record, and had been deported to
Mexico. A.M. had tuberculosis (TB) requiring hospitalization, and the other children
tested positive for exposure to TB and required prophylactic medication. Two of the
older children received mental health diagnoses, and A.C. was particularly troubled.
Mother’s school age children had not regularly attended school and stood academically
far behind their peers.
              The social worker recommended bypassing reunification services. In late
August 2009, mother pleaded no contest to the allegations of the petition as amended. At
the disposition hearing in December 2009, the court formally removed the children from
mother’s custody (§ 361), but adopted a reunification case plan. Among other
requirements, the case plan directed mother to meet her children’s needs and provide a
safe home, stay sober, and live free from alcohol and drug dependency, comply with
conditions of her probation or parole, participate in counseling with an SSA approved
therapist, complete a parenting education class, submit to random drug and alcohol
testing, and complete an SSA approved drug treatment program if any tests were positive.
              In October 2010, the court returned the children to mother under continued
supervision with wraparound services. A.C. continued to manifest aggressive behaviors,
which forced mother to drop out of a substance abuse treatment program. Nevertheless,
at a review hearing in April 2011, the court adopted the social worker’s recommendation
and terminated dependent child proceedings.

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              In May 2013, SSA filed a new section 300 petition alleging mother had
failed to supervise the children and had neglected them by failing to provide them with
clean clothing and hygiene, and a clean home. The petition also alleged mother failed to
ensure the children regularly attended school. The children, particularly A.C., had
exhibited behavioral and criminal issues at home and school. Several reports surfaced
concerning A.C. T.M. reported A.C. was sexually abusing him. There were reports
mother struck A.C. with a cord and belt causing bruises. On May 25, A.C. “punched a
window” during an argument with mother requiring a hospital visit, and A.C. was
subsequently transferred to a behavioral medical center.
              In early June 2013, the court detained the children and released all except
A.C. to mother under a conditional release (CRISP) agreement. But mother soon violated
the CRISP release agreement. Mother’s probation officer reported mother tested positive
for methamphetamine on June 4, 2013, missed other tests, and had failed to report for
appointments. During a home visit, the probation officer found mother associating with
two men who had drug convictions. One of these men was suspected of sexually abusing
A.C. S.M. reported seeing drugs in the home and stated “a lot of men came into the
home and some of them could have done things to” A.C. Mother also left J.M. and A.M.
unattended. School officials reported mother’s children had ongoing behavior problems
and unexcused absences and tardiness.
              In July 2013, SSA filed a new section 300 petition (§ 300, subds. (b) & (j))
incorporating subsequent developments. In early August, mother submitted on the
allegations of the petition and SSA’s reports. The court admitted SSA’s reports, found
the petition’s allegations true, and exercised jurisdiction over the children.
              In SSA’s August 8, 2013 report, the social worker stated mother had
received a 365-day jail term and an extended probationary period. A.C. had begun
counseling at UCI Focus, and several of the other children were in therapy. The social



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worker nevertheless recommended reunification services. A.C.’s lawyer objected,
arguing reunification bypass provisions applied.
              On September 17, 2013, following a contested disposition hearing, the
juvenile court found by clear and convincing evidence reunification services need not be
provided to mother and A.C. because the court had previously ordered termination of
reunification services for A.C.’s half sibling J.D., and mother had not subsequently made
a reasonable effort to treat the problems that led to J.D.’s removal. (§ 361.5, subd.
(b)(10) & (11).)
                                              II
                                         DISCUSSION
              Mother challenges the sufficiency of the evidence to support the juvenile
court’s order denying her reunification services under subdivisions (b)(10) and (11) of
section 361.5. The record, however, contains ample substantial evidence to support the
findings.
              Section 361.5, subdivision (b) provides, “Reunification services need not be
provided to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following: . . . (10) That the court ordered
termination of reunification services for any siblings or half siblings of the child because
the parent or guardian failed to reunify with the sibling or half sibling after the sibling or
half sibling had been removed from that parent or guardian pursuant to Section 361 and
that parent or guardian is the same parent or guardian described in subdivision (a) and
that, according to the findings of the court, this parent or guardian has not subsequently
made a reasonable effort to treat the problems that led to removal of the sibling or half
sibling of that child from that parent or guardian. [¶] (11) That the parental rights of a
parent over any sibling or half sibling of the child had been permanently severed, and this
parent is the same parent described in subdivision (a), and that, according to the findings



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of the court, this parent has not subsequently made a reasonable effort to treat the
problems that led to removal of the sibling or half sibling of that child from the parent.”
              Section 361.5, subdivision (b) is a legislative acknowledgement “that it
may be fruitless to provide reunification services under certain circumstances.”
(Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) In enacting section
361.5, subdivisions (b)(10) and (11), “the Legislature has made the decision that in some
cases, the likelihood of reunification is so slim that scarce resources should not be
expended on such cases.” (Riverside County Dept. of Public Social Services v. Superior
Court (1999) 71 Cal.App.4th 483, 488; see Renee J. v. Superior Court (2001) 26 Cal.4th
735, 744 [the Legislature recognizes it may be fruitless to provide reunification services
under certain circumstances].) “Inherent in this subdivision appears to be a very real
concern for the risk of recidivism by the parent despite reunification efforts.” (Deborah
S. v. Superior Court, supra, 43 Cal.App.4th at p. 751.) A court reviews an order denying
reunification services under section 361.5, subdivision (b) for substantial evidence. (A.A.
v. Superior Court (2012) 209 Cal.App.4th 237, 242; Francisco G. v. Superior
Court (2001) 91 Cal.App.4th 586, 600.)
              When the sufficiency of the evidence to support a finding or order is
challenged on appeal, even where the standard of proof in the trial court is clear and
convincing evidence, the reviewing court must determine if there is any substantial
evidence – that is, evidence which is reasonable, credible and of solid value – to support
the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re
Jason L. (1990) 222 Cal.App.3d 1206, 1214.) All conflicts are to be resolved in favor of
the prevailing party; issues of fact and credibility are questions for the trier of fact. (Ibid.;
In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the
evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994)
7 Cal.4th 295, 318-319.)



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              As the court explained in R.T. v. Superior Court (2012) 202 Cal.App.4th
908, “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.” (Id. at pp. 914-915.)
              Here, mother’s problems were severe and persistent. In December 2006,
mother’s drug use prompted San Diego social workers to remove J.D. from her custody.
In June 2009, SSA removed the children from mother’s custody because of severe
neglect, and it was evident mother had not resolved her substance abuse issues because
she had tested positive for methamphetamine as recently as 2008. In December 2009, the
court directed mother to meet her children’s needs and provide a safe home, to stay sober
and live free from alcohol and drug dependency, to comply with conditions of her
probation, and to complete an SSA approved drug treatment program. The children had
not regularly attended school and they were academically far behind their peers. In
October 2010, the court returned the children to mother even though mother had dropped
out of her substance abuse treatment program.
              But in 2013, SSA was required to file another petition because mother
continued using drugs, including methamphetamine, and failed to supervise, protect, and
provide for her children. Despite two courses of reunification services, mother’s

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parenting had not improved. The family was arguably in a worse place in 2013 than it
was in 2006. A.C. reported mother’s acquaintances had sexually abused her. A.C.
continued to exhibit severe behavioral and criminal issues at home and school. A.C.’s
counsel states A.C.’s behaviors are so severe she requires a constant chaperone, and that
while she “requires the ultimate level of supervision . . . there is zero evidence mother[]
would be able to provide” it. Mother’s prognosis for reunification with A.C. was poor.
The juvenile court reasonably concluded additional reunification services would be
fruitless. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 195.) Substantial evidence
supports the court’s finding mother had not made a reasonable effort to treat the problems
– drug abuse and associated neglect – that led to J.D.’s removal.
                                             III
                                        DISPOSITION
              C.C.’s petition seeking extraordinary relief from the juvenile court’s
September 17, 2013 orders bypassing reunification services and setting a section 366.26
selection and implementation hearing for January 15, 2014 is denied, as is her request for
a stay of the section 366.26 hearing.




                                                   ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



FYBEL, J.




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