Filed 5/17/16; pub. order 6/10/16 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


In re E.G., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                        G052899
    Plaintiff and Appellant,
                                                        (Super. Ct. No. DP-026121)
         v.
                                                        OPINION
K.K. et al.,

    Defendants and Respondents.



                  Appeal from a judgment of the Superior Court of Orange County, Gary L.
Moorhead, Judge. Reversed and remanded with directions.
                  Leon Page, County Counsel, Karen L. Christensen, and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Appellant.
                  Nicole Williams, under appointment by the Court of Appeal, for Defendant
and Respondent, K.K.
               Megan Turkat Schirn, under appointment by the Court of Appeal, for
Defendant and Respondent, R.G.
               Jamie A. Moran, under appointment by the Court of Appeal, for minor.
                                  *          *          *
               Orange County Social Services Agency (SSA) challenges the juvenile
court’s order granting reunification services to the mother of E.G. SSA argued the court
should bypass reunification, citing Welfare and Institutions Code section 361.5,
subdivision (b)(13). 1 (All statutory references are to the Welf. & Inst. Code unless
otherwise stated.)
               In rejecting SSA’s argument, the court decided drug treatment ordered as
the result of a deferred entry of judgment (Pen. Code, § 1000 (PC1000)) is not “prior
court-ordered treatment” for purposes of section 361.5, subdivision (b)(13).) But, we
find no principled difference between drug treatment ordered pursuant to PC1000 and
any other drug treatment ordered by a court during unrelated criminal proceedings.
               We reverse the judgment and remand the case for the court to reconsider its
ruling in light of our determination PC1000 is “court-ordered treatment” as contemplated
by section 361.5, subdivision (b)(13).
                                         FACTS
Background, Petition, Reports
               E.G. was born in 2015 while his then 22-year-old mother, K.K. (mother),
and 34-year-old father, R.G.,2 were incarcerated. After his birth, mother arranged to have
an unrelated female take E.G. home from the hospital. About two months later, SSA
received a welfare report concerning the state of this woman’s home. SSA substantiated


       1   Minor adopts SSA’s statement of facts and arguments.

       2R.G. did not appeal the order denying him reunification services. However. He
submitted a brief and urged the court to affirm the judgment.

                                             2
the report—the home was extremely unsafe and unsanitary—and SSA took E.G. into
protective custody.
              Shortly thereafter, SSA filed a dependency petition that alleged mother
failed to protect and provide for E.G. (§ 300, subds. (b), (g).) According to SSA reports,
mother started using methamphetamine in 2008, around the time of her 16th birthday.
She was a daily user of methamphetamine until she became pregnant in 2010 with E.G.’s
half sibling, B.G. Mother said she stopped using early in her pregnancy with B.G., and
she was able to stay away from it for a couple of years. However, in 2012, mother
returned to regular methamphetamine use, and B.G. went to live with his father.
              In April 2012, mother was arrested for possessing drug paraphernalia. The
court ordered her to attend an 18-month deferred entry of judgment program pursuant to
PC1000.3 Mother reported being “ordered to PC1000 three times,” and she said that she
had enrolled in a program, but failed to attend.
              In late 2012, mother was arrested for a probation violation after she missed
an appointment with her probation officer. In 2014, she was convicted of evading a
peace officer and driving under the influence of alcohol, and the court ordered mother to
complete a three-month first offender alcohol treatment program.
              By early 2015, mother was pregnant with E.G. and in jail with pending
felony charges for possession of fictitious checks, stolen access cards, stolen property,
and drugs. Mother later told the social worker she had unknowingly used
methamphetamine during the first two or three weeks of her pregnancy with E.G., and
she disclaimed any knowledge of the appalling condition of her friend’s home. While


       3 The court’s 2012 minute order states, “As to count(s) 1, entry of judgment is
deferred and defendant is to enroll in a Drug Program pursuant to Penal Code 1000.
Defendant advised upon successful completion of the requirements of Penal Code 1000,
the plea may be withdrawn and charges dismissed.” A summarized criminal records
clearance from the Bureau of Criminal Identification and Investigation has the following
notation: “CRT/DEFER JDGMNT-TRM CRM PROC REINST.”

                                             3
she acknowledged a nearly six-year addiction to methamphetamine, mother said she
wanted to resolve her pending criminal charges, complete her GED, and reunify with
E.G.
              SSA placed E.G. with his maternal grandmother in June 2015, and he
seemed to be doing well. Grandmother facilitated weekly supervised visits between E.G.
and mother during her incarceration. Mother was happy about E.G.’s placement and
expressed the desire to continue regular visitation. She took a parenting class, worked
through a parenting handbook, and passed her GED while incarcerated.
SSA’s Recommended Disposition
              SSA recommended the court bypass reunification services, citing section
361.5, subdivision (b)(13). Paraphrasing the statute, the social worker wrote, “the
children’s mother has a history of extensive, abusive, and chronic use of drugs or alcohol
and has resisted prior court-ordered treatment for this problem during the three year
period immediately prior to the filing of the petition, or has failed or refused to comply
with a program of drug o[r] alcohol treatment on two prior occasions.”
              The social worker also expressed concern at mother’s ability to make
timely and significant progress on her case plan after her release from jail, and she felt
E.G., who was then six months old, was not bonded to mother. SSA recommended
adoption as the goal of the case plan.
              Mother submitted to the court’s jurisdiction based on SSA’s reports, but she
contested SSA’s recommended disposition.
Contested Disposition Hearing
              At the contested disposition hearing, SSA submitted on its reports and
called mother to testify. Mother admitted a long-term addiction to methamphetamine.
She admitted use of methamphetamine during her previous pregnancy, but she said her
recent use during the first two-to-three weeks of her pregnancy with E.G. only occurred
because she was unaware of the pregnancy.

                                              4
              SSA asked mother how many times she had been “ordered to do PC1000?”
Mother answered, “I wasn’t court-ordered. I was actually offered to either do PC1000 or
do my time, and I chose to do PC1000, I just failed to enroll, so I ended up doing my time
instead.” Mother said she knew failing to complete the program would result in the entry
of judgment and conviction. As for the three-month alcohol treatment program, mother
said she had not enrolled because she was in custody at the time.
              Mother further testified her incarceration in protective custody made it
difficult to attend classes with the general population. Notwithstanding this limitation,
mother completed her GED and a parenting skills workbook. She also attended Narcotics
Anonymous and Alcoholics Anonymous meetings. Mother said she had three more
months to serve on her various criminal cases, but that she wanted to receive
reunification services and participate in a drug treatment program upon her release.
              Mother denied being given any referrals to drug treatment or counseling
with respect to the PC1000 deferred entry of judgment in 2012, and she denied being
ordered to drug treatment since then.
Argument and Ruling
              SSA argued mother’s then seven-year drug habit, her use of drugs during
both pregnancies, and her loss of contact with B.G. suggested reunification services
should not be ordered. With respect to mother’s prior drug treatment, SSA pointed out
that mother had been arrested at least five times, and convicted twice, for drug-related
offenses. In 2012, she had agreed to the PC1000 program, but she never reported to the
program. Instead, she decided to take the conviction and serve a period of incarceration.
              County counsel asserted, “The case law specifically states that when a
parent faces incarceration by failing to comply with a program, whether or not they say
it’s voluntary or not, but if there’s a threat of incarceration that is tantamount to a court-
ordered drug treatment program. That is in D.B. v. Superior Court [2009] 171
Cal.App.4th 197.

                                               5
              “[¶] . . . [¶]
              “Pursuant to the language of PC1000, PC1000 is a drug program. And
mother’s counsel and father’s counsel can argue that PC1000 was not court-ordered.
However, again, per the case law when there is a threat of incarceration if they fail to
comply with the program they are told to complete, then that is sufficient to constitute a
court-ordered drug treatment program for the purposes of (b)(13).”
              “[¶] . . . [¶]
              “I suspect that there also will be argument that somehow because PC1000
isn’t a really good program that the court should just kind of dismiss the fact that that was
what mom was given an opportunity to do. I know what the law says, and counsel
recited what the law says, that it has to be an approved program. It has to be considered
an effective and credible program. The point is that mom had an opportunity, and it
wasn’t a voluntary opportunity. It was something that the court said here do this or do
this. And the fact that she didn’t do it, the fact that she didn’t take advantage of it, in my
view indicates that she resisted treatment.
              “I do believe that (b)(13) applies in this case. I don’t think there’s any
argument that she has an extensive history, that it’s chronic. And I would view this as
resisting treatment.”
              On the other hand, father’s counsel argued, “[SSA has not] provided any
evidence to the court except for this minute order that states that this program was offered
to mother not as a condition of probation but merely as a deferred entry of judgment and
that mother was to comply with it or else a sentence would be imposed. Which she
testified that she decided and chose to have her sentence imposed.
              “I would ask that the court to look at the language of (b)(13) and the
legislative intent behind it is that there are parents who have been chronic users and have
been ordered and offered treatment and have not taken advantage of it and have resisted
that treatment.

                                              6
              “And that just really is not the case here. There’s absolutely no evidence
that the mother was actually given an opportunity to address these issues.”
              The court found SSA proved by clear and convincing evidence that mother
had an extensive, abusive, and chronic methamphetamine addiction. As the court noted,
mother began using methamphetamines when she was a minor at 16, and she was using
“up until the delivery of her baby a year ago.”
              However, in the court’s view, SSA failed to prove by clear and convincing
evidence that mother had resisted prior court-ordered treatment. The court mentioned
mother’s PC1000 deferred entry of judgment, but stated, “PC1000 according to my
reading of that statute and my experience as a judge in the misdemeanor criminal courts
leads me to conclude that PC1000 is a drug program designed to educate first offenders
and divert off of their record any judgment for a small or first offense drug issue. There
is no doubt under paragraph (c)[4] of . . . PC1000 is something that has to be administered
by the county drug program administrator to be credible and effective. But my
understanding of PC1000 is that, as I indicated before, it’s an education program. My
understanding is that defendants go to essentially one class to learn about the harmful
effects of drugs. I don’t believe that there is any counseling whatsoever involved in that
drug program.”
              “[Section] 361.5 sub[division] (b)(13) is dealing with parents who have an
extensive drug problem and have been offered drug treatment, not simply an educational
program but drug treatment and they have resisted that.




       4 Subdivision (c) of PC1000 states all referrals granted by the court “shall be
made only to programs that have been certified by the county drug program administrator
pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that
provide services at no cost to the participant and have been deemed by the court and the
county drug program administrator to be credible and effective.”

                                             7
              “This is a case of first impression. I hope somebody takes it up on appeal
because I frankly am not certain and there’s no case law that guides the court effectively
in this regard. I have reviewed the D.B. [v.] Superior Court authority and I find that deals
with separate issues regarding probation or parole violations dealing with court-ordered
drug treatment. I’ve also reviewed the Randy R. [v.] Superior Court authority regarding
chronic and extensive drug abuse. I don’t need to go into that because I found that the
chronic abuse applies.
              “But it seems to me that the purpose for family reunification is to reunify
parents with their children. We bypass because we have situations where the Legislature
has determined that it would basically be a waste of money to offer family reunification if
any of the 16 sub[divisions] apply and there isn’t a best interest of the child overriding
those 16 sub[divisions].
              “In this case in 2012 the mother was offered [PC]1000, ended up not
completing or enrolling in PC1000 and took her sentence instead. I don’t think that the
Legislature in enacting the (b)(13) sub[division] considered that PC1000 would be a drug
treatment, and I highlight the term treatment, program that would preclude a parent from
family reunification.
              “Based on the mother’s testimony that she would willingly undergo a drug-
treatment program at this time and that she is willing to try and beat her drug problem, I
am going to order family reunification services for the mother.
              “I will note for the record that drug issues in parents, particularly meth, are
extremely difficult to beat and it would not be in the best interest of the child if mother
cannot overcome her chronic meth addiction. But I think that she deserves a chance at a
real drug-treatment program before we terminate reunification services to her.”




                                              8
                                       DISCUSSION
Reunification Services
              Generally, the removal of a child from a parent’s custody prompts an order
for family reunification services, “if the court determines that the services will benefit the
child.” (§ 361.5, subd. (a).) There is a statutory presumption in favor of family
preservation in juvenile dependency proceedings (§ 361.5, subd. (a)), and family
reunification services are an integral part of that process. (Riverside County Dept. of
Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 487; see In re
William B. (2008) 163 Cal.App.4th 1220, 1227-1228.)
              Nevertheless, subdivision (b) of section 361.5 sets out 16 exceptions to the
statutory presumption. As one court acknowledged, section 361.5, subdivision (b) is the
legislative acknowledgement “that it may be fruitless to provide reunification services
under certain circumstances.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
              As pertinent here, section 361.5, subdivision (b)(13) states, “[r]eunification
services need not be provided . . . when the court finds, by clear and convincing
evidence,” (1) the child’s parent “has a history of extensive, abusive, and chronic use of
drugs or alcohol,” and (2) the parent “has resisted prior court-ordered treatment for this
problem during a three-year period immediately prior to the filing of the petition . . . .”
              The court found SSA proved by clear and convincing evidence mother had
a history of chronic methamphetamine abuse. However, the court found SSA failed to
prove mother had resisted prior court-ordered treatment. The court concluded the
treatment previously ordered under the PC1000 deferred entry of judgment program was
not “court-ordered treatment” within the meaning of section 361.5, subdivision (b)(13).
              Because this presents a question of statutory construction, we review the
court’s interpretation of section 361.5, subdivision (b)(13) and PC1000 de novo, and
apply familiar rules of statutory construction. (People v. Trask (2010) 191
Cal.App.4th 387, 394 (Trask).)

                                              9
              “‘When construing a statute, a court must first “examine the words at issue
to determine whether their meaning is ambiguous.” [Citation.] If statutory law is
“‘“clear and unambiguous there is no need for construction, and courts should not indulge
in it.”‘“ [Citations.]’ [Citation.]” “‘“We construe the words of a statute in context, and
harmonize the various parts of an enactment by considering the provision at issue in the
context of the statutory framework as a whole. [Citations.]” [Citation.]’ [Citation.]”
(Trask, supra, 191 Cal.App.4th at p. 394.)
              This is not the first time a parent in dependency proceedings has questioned
the scope of section 361.5, subdivision (b)(13)’s reference to “prior court-ordered
treatment.” In D.B., supra, 171 Cal.App.4th 197, the juvenile court denied reunification
services after finding the father demonstrated resistance to ““court-ordered treatment”‘ by
having a drug relapse and violating a condition of parole. (Id. at p. 202.) The father
unsuccessfully argued the term “court-ordered treatment” did not extend to treatment
conditions imposed in conjunction with parole. (Id. at p. 203.)
              The D.B. court reasoned, “Construing the law as father suggests would
produce an absurd consequence. We begin with the premise that a parent who has failed
to participate in drug or alcohol treatment ordered directly by the court as a condition of
probation in a criminal case may be denied services under section 361.5, subdivision
(b)(13) if the other criteria of that provision are met. [Citation.] There is no meaningful
distinction between treatment ordered as a condition of probation and treatment ordered
as a condition of parole for purposes of determining whether a parent’s failure to comply
signifies a substance abuse problem so intractable that the provision of reunification
services would be a waste of time. In both situations, the parent faces incarceration as a
consequence and has ample incentive to comply with the treatment condition imposed.”
(D.B., supra, 171 Cal.App.4th at pp. 203-204.) The court concluded the statutory
language contemplated “treatment ordered as a part of unrelated criminal matters,” as
well as treatment ordered by a juvenile court. (Id. at p. 204, fn. 3.)

                                             10
              We agree with the reasoning in D.B. and conclude treatment ordered under
PC1000 is “prior court-ordered treatment” for purposes of section 361.5, subdivision
(b)(13). Under PC1000, first-time drug offenders are permitted to bypass the normal
criminal process and enter a drug treatment program. (People v. Descano (2016) 245
Cal.App.4th 175, 182-183; Terry v. Superior Court (1999) 73 Cal.App.4th 661, 663-664.)
PC1000 authorizes “the courts to ‘divert’ from the normal criminal process persons who
are formally charged with first-time possession of drugs . . . and are found to be suitable
for treatment and rehabilitation at the local level.” (People v. Superior Court (On Tai
Ho) (1974) 11 Cal.3d 59, 61-62.)
              Moreover, any referrals under PC1000 must be made “to programs that
have been certified by the county drug program administrator pursuant to Chapter 1.5
(commencing with Section 1211) of Title 8, or to programs that provide services at no
cost to the participant and have been deemed by the court and the county drug program
administrator to be credible and effective.” (§ 1000, subd. (c).)
              In turn, Penal Code section 1211 provides, “the county drug program
administrator in each county, in consultation with representatives of the court and the
county probation department, shall establish minimum requirements, criteria, and fees for
the successful completion of drug diversion programs which shall be approved by the
county board of supervisors . . . .” These minimum requirements include, (1) an
assessment of each divertee’s social, economic, and family background, education
vocational achievements, criminal history, medical history, drug history, and prior
treatment, (2) “[a] minimum of 20 hours of either effective education or counseling or
any combination of both for each divertee,” (3) an exit conference, and (4) fee
exceptions. (Pen. Code, § 1211, subd. (a)(1)(A)-(F).) And, each county must have
“[g]uidelines and criteria for education and treatment services, including standards of
services which may include lectures, classes, group discussions, and individual
counseling.” (Pen. Code, § 1211, subd. (c)(1).)

                                             11
              Satisfactory performance during the PC 1000 deferral period results in the
criminal charge being dismissed, and the arrest is deemed to have never occurred. (Pen.
Code, §§ 1000.3,1000.4, subd. (a).) Unsatisfactory performance, on the other hand,
produces a conviction, or convictions, and the entry of judgment. (Pen. Code, § 1000.3.)
              In sum, for these purposes treatment ordered by a court under PC1000 is
analogous to treatment ordered by a court pursuant to parole or a grant of probation. In
all three circumstances, it arises in an unrelated criminal proceeding, carries the risk of
jail time for failure to cooperate, and “is by no means voluntary.” (D.B., supra, 171
Cal.App.4th at p. 205.) This is true even though PC1000 may be an entry level treatment
program and the treatment details may vary from county to county. (Pen. Code, § 1211.)
                                      DISPOSITION
              The judgment is reversed and the matter remanded for the court to
determine whether mother “resisted” (§ 361.5, subd. (b)) PC1000 treatment and, whether
reunification services for mother will “benefit” (§ 361.5, subd. (a)) E.G.




                                                  THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




                                             12
       Filed 6/10/16

                          CERTIFIED FOR PUBLICATION


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                           FOURTH APPELLATE DISTRICT


                                    DIVISION THREE


In re E.G., a Person Coming Under the
Juvenile Court Law.


ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                     G052899
    Plaintiff and Appellant,
                                                     (Super. Ct. No. DP-026121)
       v.
                                                     ORDER CERTIFYING OPINION
K.K. et al.,                                         FOR PUBLICATION


    Defendants and Respondents.


               Appellant requested that our unpublished opinion, filed on May 17, 2016,
be certified for publication. It appears that our opinion meets the standards set forth in




                                             13
California Rules of Court, rule 8.1105(c). The request for publication is GRANTED.
The opinion is ordered published in the Official Reports.


                                                 THOMPSON, J.


WE CONCUR:




MOORE, ACTING P. J.




IKOLA, J.




                                            14
