Filed 5/26/15 S.R. v. Super. Ct. CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

S.R.,
                                                                                           F071144
         Petitioner,
                                                                                 (Super. Ct. No. 517176)
                   v.

THE SUPERIOR COURT OF STANISLAUS                                                         OPINION
COUNTY,

         Respondent;

STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,

         Real Party in Interest.



                                                   THE COURT*
         ORIGINAL PROCEEDING; petition for extraordinary writ review Ann Q.
Ameral, Judge.
         Kathy Lynn Trosclair, for Petitioner.
         No appearance for Respondent.
         John P. Doering, County Counsel, and Robin Gozzo, Deputy County Counsel, for
Real Party in Interest.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J. and Smith, J.
       S.R. (mother) seeks extraordinary writ relief from a juvenile court’s order denying
her reunification services and setting a Welfare and Institutions Code section 366.26
hearing as to her one-year-old son Travis.1 Mother appears to argue there was
insufficient evidence that she had an opiate addiction to warrant the juvenile court’s
exercise of jurisdiction over Travis or order denying her reunification services. She also
contends the Stanislaus County Community Services Agency (agency) did not provide
her with reasonable services. On review, we conclude mother’s claims are meritless and
deny her petition.
                     PROCEDURAL AND FACTUAL HISTORY
       Mother has a history of substance abuse issues, dating back to at least 2006, which
have caused her to neglect and lose custody of her many children. Between 2007 and
2011, she either failed to successfully complete or was denied family reunification
services for her then six children and her parental rights to each of them were terminated.
Travis is mother’s seventh child.
       When Travis was approximately seven months old, the agency received a report
that the child’s father, who also had a history of substance abuse, was using drugs such as
methamphetamine and marijuana in the home where the child lived. Mother believed the
report was false.
       As of November 25, 2014, the father tested positive for methamphetamine and
marijuana. That day both he and mother agreed to participate in voluntary maintenance
services to avoid Travis’s removal. However, they did not complete their family
maintenance assessment as originally scheduled.
       The father continued to test positive for methamphetamine and marijuana but
would not participate in family maintenance services. Mother meanwhile submitted to


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


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drug tests, which were positive each time for benzodiazepine and opiates and once was
also positive for oxycodone. The parents were also found to be under the influence while
caring for Travis.
       During the substance abuse evaluation, mother reported she suffered from back
pain and severe arthritis. She produced a patient prescription summary for that year from
a pharmacy in her hometown. The summary revealed seven different healthcare
providers prescribed hydrocodone for mother on 20 occasions between April 14, 2014
and November 28, 2014. The summary did not include a prescription for oxycodone.
The substance abuse assessor concluded mother was in denial of her opiate addiction.
       The substance abuse assessor referred mother to a program called First Step. The
First Step program included outpatient substance abuse treatment, a 12-step program,
parenting classes and domestic violence services. The social worker provided mother
with bus passes so that she would have transportation to and from First Step. However,
as of mid-December mother had not attended the program.
       Consequently, the agency detained Travis and initiated the underlying juvenile
dependency proceedings. In its petition for juvenile court dependency jurisdiction, the
agency alleged, pursuant to section 300, subdivision (b), there was a substantial risk
Travis would suffer serious physical harm or illness by each parent’s inability to provide
regular care for him due to their substance abuse and also, in mother’s case, her
intellectual limitations. The agency detailed the parents’ failure to participate in
voluntary family maintenance services as agreed. The agency also alleged under section
300, subdivision (j) that Travis’s siblings had been neglected as a result of the parents’
substance abuse issues and there was a substantial risk that he too would be so neglected.
       Between December 2014 when the agency filed its petition and March 2015 when
the juvenile court conducted its combined jurisdictional and dispositional hearing in the
case, the agency offered each parent services to address their respective issues, including
substance abuse. The father, however, remained unwilling to participate in recommended

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services. Mother, who started the First Step program after Travis was detained, stopped
attending services altogether at First Step by mid-January 2015.
       Mother claimed she would participate in substance abuse services in her
hometown, not in Modesto where First Step was located. The assessor, who conducted
mother’s substance abuse evaluation, offered mother a bed at Redwoods, a clean and
sober living facility that would enable mother to still participate in First Step services.
However, mother refused. The assessor did not recommend the substance abuse services
available in mother’s hometown. The agency advised mother it could not refer her to the
program in her hometown and would not approve her participation in that program. The
agency did give mother a referral for parenting education and domestic violence
prevention through Sierra Vista Child and Family Services. Mother did not begin
services at Sierra Vista. According to the agency social worker, mother still did not
understand the severity of her misuse of prescription medication or see a concern with the
father’s methamphetamine use.
       As a result, the agency recommended that the juvenile court exercise its
dependency jurisdiction over Travis, adjudge him a dependent child and remove the child
from parental custody. The agency also recommended that the juvenile court deny the
parents reunification services under section 361.5, subdivision (b)(10) and (11). In
mother’s case specifically: the court had ordered termination of reunification services for
Travis’s siblings because she failed to reunify with them after they were formally
removed from her custody and she had not subsequently made a reasonable effort to treat
the problems that led to the siblings’ removal (§ 361.5, subd. (b)(10)); and her parental
rights over Travis’s siblings had been permanently severed and she had not subsequently
made a reasonable effort to treat the problems that led to the siblings’ removal (§ 361.5,
subd. (b)(11)).
       At a combined jurisdictional and dispositional hearing in March 2015, mother
testified. She was first questioned about what services she had participated in since the

                                              4.
latest order terminating her parental rights issued in 2011. She testified she did not
participate in any sort of substance abuse program except for the First Step program
between December 2014 and the first part of January 2015. While in that program, she
attended two weeks of 12-step meetings. While she was pregnant with and after she gave
birth to Travis, mother also attended four months out of a year-long parenting program.
The classes she did attend involved nutrition and how to care for a child.
       Mother stopped participating in services at First Step in January 2015 because she
“was working on getting it transferred to [her hometown];” services at First Step were
“time-consuming.” By “time-consuming” mother meant she had “no time to do anything
really” when she returned home from First Step. Mother admitted her substance abuse
assessor did not recommend transferring services to mother’s hometown.
       Mother admitted the social worker referred her to Sierra Vista for services but she
was not participating because she claimed she had been sick. It had been a month and a
half since she had participated in any services.
       Mother agreed she had a history of substance abuse. However, she did not believe
she had a current drug abuse problem. Previously, her drug of choice was marijuana, but
she stopped using marijuana two years ago. She did admit, however, to using marijuana
in October 2014.
       Currently, she was taking two prescription medicines: lorazepam for anxiety and
hydrocodone for back problems and arthritis. She had been taking the hydrocodone for
four years. A primary care physician whom she could not identify prescribed it. Mother
added she went to a medical clinic and it was not always the same prescribing doctor.
She admitted approximately seven different doctors prescribed the hydrocodone.
       According to mother, her hydrocodone prescription was for three pills a day. She
testified that since April 2014 she did not take more than prescribed.




                                             5.
       Mother did not believe she abused her prescription medication or had a drug
problem. Mother repeatedly denied and admitted that she had been offered residential
drug treatment since December 2014. She refused to go.
       Mother testified she only filled her prescriptions at one pharmacy. She later
contradicted herself and testified when the one pharmacy was closed, she would go to
another pharmacy. Although she provided a prescription summary from the “main”
pharmacy she used, she did not provide such a summary from the other pharmacy for the
substance abuse assessor.
       Mother also contradicted herself about filling prescriptions for hydrocodone a few
times at the second pharmacy in the past six months. In addition, mother gave conflicting
answers regarding filling prescriptions in the last year for another pain reliever, tramadol,
and seeing a physician in an emergency room a month before and after Travis’s
detention.
       Mother did not remember all the doctors she had seen in the last year or what each
of the doctors prescribed for her.
       She believed she was still able to care for Travis while taking hydrocodone. She
added she took one pill at a time every four to six hours.
       Mother did not think she was in need of any services to help her parent Travis.
She also did not feel she needed services when her other children were removed.
       At the conclusion of the combined hearing, the court exercised its dependency
jurisdiction over Travis pursuant to section 300, subdivisions (b) and (j), adjudged him a
dependent child and removed him from parental custody. The court also denied each
parent reunification services under section 361.5, subdivision (b)(10) and (11).
                                      DISCUSSION
                                             I.
       Mother claims the juvenile court found she had an opiate addiction and that there
was insufficient evidence to support such a finding. In her petition, she relates her

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argument to both the court’s exercise of jurisdiction and its order denying her
reunification services. Mother’s argument is faulty in several respects.
       To begin, she misstates the record. The court did not find that she had an opiate
addiction. In fact, it was the substance abuse assessor who in December 2014 opined
mother had an opiate addiction. Notably, mother did not call the evaluator as a witness in
an effort to discredit the evaluator’s assessment. At most, the judge stated she believed
mother was abusing prescription drugs and had substance abuse issues in her
jurisdictional finding that Travis was a child described by section 300, subdivision (b).
       If mother means to challenge the jurisdictional finding under section 300,
subdivision (b), she overlooks the alternative grounds on which the court exercised its
jurisdiction, namely the father’s failure to protect based on his substance abuse (§ 300,
subd. (b)) and the siblings’ neglect (§ 300, subd. (j)). When a court makes multiple
jurisdictional findings, on review we need only find support for one of them to uphold the
court’s exercise of jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.) In
this case, mother makes no argument challenging the sufficiency of the evidence to
support the alternative grounds for dependency jurisdiction. Thus, she has arguably
forfeited her argument over the court’s jurisdiction.
       In any event, mother’s sufficiency of the evidence argument is meritless. It was
uncontroverted that she had a history of substance abuse issues, dating back to at least
2006, which have caused her to neglect and lose custody of six children. When she was
granted reunification services on more than one occasion, she failed to reunify. Since the
latest order terminating parental rights in 2011, she admittedly did not participate in any
sort of substance abuse program except for the First Step program between December
2014 and the first part of January 2015. And she dropped out of that program before she
could make any meaningful progress. In the interim, she was testing positive for opiates
and in the undisputed opinion of the substance abuse assessor was in denial as to an
opiate addiction.

                                             7.
       Ignoring this record, mother concentrates instead on the inferences she draws from
the pharmacy prescription summary she provided the substance abuse assessor in
December 2014. Mother claims if one were to calculate, based on the pharmacy
prescription summary, the span of days over which she was prescribed hydrocodone and
divide it by the total number of pills she was prescribed, it would show she had less than
four pills for each day. She adds if she took one pill every six to eight hours, the amount
of pills she had prescriptions for was reasonable, not evidence of addiction.
       This is one way in which the prescription summary could be interpreted although
it relies on supposition. Also, mother’s approach ignores the rule of law that we indulge
all legitimate inferences in favor of upholding the court’s decision, if possible. (In re
Laura F. (1983) 33 Cal.3d 826, 833.)
       The summary reveals one pharmacy filled 20 hydrocodone prescriptions for
mother from seven different medical providers, ranging from physician’s assistants, nurse
practitioners to physicians, over a seven-month period. While mother argues in terms of
averages, the summary reveals that sometimes the prescriptions were written very close
in time compared to mother’s hypothetical of average daily use. Also, the summary
reveals in one two-day period mother obtained one hydrocodone prescription from one
provider and one prescription for another narcotic pain reliever, tramadol, from another
medical provider. Further, mother ignores her own admission that this was not the only
pharmacy she visited in 2014 or 2015 to fill her prescriptions.
       Mother suggests that the number of the providers may not have been an indicia of
doctor shopping if they were members of the same office practice or clinic. In this
regard, she criticizes the agency for not investigating whether her supposition was
accurate. However, mother was in the best position to know if all the providers were
from the same practice. However, she never offered such testimony.
       Mother also ignores other evidence. For instance, there was her positive drug test
in December 2014 for oxycodone and the lack of a prescription for the drug. There was

                                             8.
also the evidence that she was found under the influence while Travis was in her care and
the drug assessment that mother needed outpatient drug treatment.
       Based on the record before us as summarized above, the juvenile court could
properly find in these proceedings that mother had a substance abuse problem.
                                             II.
       Mother next claims the juvenile court made a reasonable services finding under
section 366.21, subdivision (f), which was not supported by substantial evidence. Again,
mother’s argument is flawed.
       The court neither made a finding that the agency provided mother with reasonable
services to overcome the problems that led to Travis’s initial removal nor did it have to
make such a finding. The law requires a reasonable services finding at review hearings
held 6, 12 and 18 months after the initial dispositional hearing when a court orders
reunification services. (§ 366.21, subds. (e) & (f); § 366.22, subd. (a).) Here, the court
denied the parents reunification services at the dispositional hearing.
       At the dispositional hearing, the court does have to make a determination as to
whether reasonable efforts were made to prevent or to eliminate the need for removal of
the child from his home. (§ 361, subd. (d).) In this case, the court made such a finding.
To the extent mother means to challenge the sufficiency of the evidence to support the
reasonable efforts finding, we are not persuaded.
       Mother complains that the agency should have accommodated her request to move
services to her hometown. In so doing, she presumes her request was a reasonable one.
The record, however, establishes otherwise. Mother claimed receiving services at First
Step was too “time-consuming,” leaving her “no time to do anything really.” Also, issues
of fact and credibility are matters for the superior court alone. (In re Amy M. (1991) 232
Cal.App.3d 849, 859-860.
       In addition, it was undisputed that the substance abuse assessor could not
recommend the services in mother’s hometown as a reasonable substitute. Mother also

                                             9.
minimizes the agency’s showing that the assessor offered mother a bed at a facility in the
same community as First Step. She further ignores the evidence that the social worker
offered mother a referral for services at Sierra Vista, of which mother did not take
advantage. Finally, we note we may not reweigh or express an independent judgment on
the evidence, before the trier of fact. (In re Laura F., supra, 33 Cal.3d 826, 833.)
       We therefore conclude there was substantial evidence to support the court’s
reasonable efforts finding.
                                             III.
       Last, mother appears to argue that the agency did not make reunification and
family preservation a priority for her and Travis. Our review pertains, however, to the
court’s rulings that resulted in the setting of a section 366.26 hearing, not the agency’s
actions. (§ 366.26, subd. (l); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.) In
addition, as discussed above, we have concluded there was sufficient evidence to support
the court’s finding that the agency made reasonable efforts to prevent or eliminate the
need for removal of the child from his home. (§ 361, subd. (d).)
       To the extent mother means to contend she should have received reunification
services as part of the court’s disposition, we conclude there was substantial evidence to
support the court’s findings pursuant to section 361.5, subdivision (b)(10) and (11) to
warrant a denial of services. It was undisputed that the court had ordered termination of
reunification services for Travis’s siblings because mother failed to reunify with them
after they were formally removed from her custody and her parental rights over Travis’s
siblings had been permanently severed. Also, by mother’s own testimony, there was
clear and convincing evidence that she had not subsequently made a reasonable effort to
treat the problems, most notably substance abuse, that led to the siblings’ removal. At
most, she participated in First Step services between mid-December 2014 and mid-
January 2015. Remarkably, she did not believe she needed those or any other services.
Therefore, the court could properly conclude mother did not make a subsequent

                                             10.
reasonable effort to treat her substance abuse issues that led to the siblings’ removal for
purposes of section 361.5, subdivision (b)(10) and (11).
       The court could have still ordered services for mother, but only if she produced
clear and convincing evidence that reunification was in Travis’s best interests. (§ 361.5,
subd. (c); In re Ethan N. (2004) 122 Cal.App.4th 55, 64.) Mother, however, introduced
no such affirmative evidence at the dispositional hearing. Thus, we conclude the court
did not err by denying mother reunification services and setting the section 366.26
hearing to select and implement a permanent plan for Travis.
                                      DISPOSITION
       The petition for extraordinary writ is denied. This opinion is immediately final as
to this court.




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