Filed 7/28/16 Brian U. v. Superior Court CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

BRIAN U.,
                                                                                           F073653
         Petitioner,
                                                                                 (Super. Ct. No. 516888)
                   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.
         Nadine Salim, under appointment by the Court of Appeal, for Petitioner.
         No appearance for Respondent.
         No appearance for Real Party in Interest.
                                                        -ooOoo-



*        Before Levy, Acting P.J., Kane, J. and Smith, J.
       Brian U. (father) seeks extraordinary writ relief from the juvenile court’s
dispositional orders denying him reunification services under Welfare and Institutions
Code section 361.5, subdivision (b)(13)1 and setting a section 366.26 hearing as to his
now two-year-old daughter, Emersyn. He contends the court erred in applying the denial
of services statute to his unique circumstances. He also contends the court erred in
finding that the Stanislaus County Community Services Agency (agency) used due
diligence in identifying a possible relative placement. We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       This case marks the second dependency proceeding involving Emersyn. In
November 2013, then two-month-old Emersyn was taken into protective custody because
her maternal grandmother could no longer care for her. Emersyn’s mother, Taylor,2 was
using methamphetamine and left Emersyn in the grandmother’s care. The juvenile court
exercised its jurisdiction over Emersyn and granted Taylor and father reunification
services. In June 2014, the court released Emersyn to Taylor’s custody with family
maintenance services. In January 2015, the court released Emersyn to father’s custody
with family maintenance services and in July 2015 issued joint custody orders to Taylor
and father and dismissed the dependency.
       These dependency proceedings were initiated in February 2016 after the agency
responded to a report that then two-year-old Emersyn was wandering around her
apartment complex unsupervised. She was seen descending the stairs alone from the
second floor apartment where she and Taylor lived. She was also seen going to other
apartments asking tenants for food. In addition, there was concern she could access the
nearby swimming pool even though it was fenced in.


1      Statutory references are to the Welfare and Institutions Code.
2      Taylor did not file a writ petition.


                                              2
       Taylor told the investigating social worker that she left Emersyn alone while she
went to take out the trash but that she locked the deadbolt before leaving. She said that
Emersyn knew how to stand on things and unlock the door. Father said he was at work
when the incident occurred. Both parents stated that if tested, they would test positive for
methamphetamine and marijuana. The social worker informed them that someone would
need to care for Emersyn while the agency investigated. They suggested Emersyn’s
previous foster parents.
       The agency filed an original dependency petition alleging under section 300,
subdivision (b)(1) (failure to protect) that father and Taylor failed to supervise Emersyn,
resulting in her wandering outside the apartment unattended on multiple occasions,
including one occasion when an employee from Pep Boys, located several blocks from
the apartment complex, returned her to the apartment manager. Additionally, apartment
security video recorded Taylor putting Emersyn in the apartment, shutting the door and
leaving, and then returning 10 to 15 minutes later. Emersyn was also found unescorted,
walking along the upper floor balcony. The petition further alleged that Taylor and father
received court-ordered substance abuse treatment in Emersyn’s prior dependency case
and had multiple arrests for substance abuse related charges. In addition, father was
convicted of possession of a controlled substance in 2006 and served a sixteen-month
prison term.
       Emersyn’s foster parents notified the agency that Emersyn smelled faintly of
methamphetamine when she arrived at their home. She also had sores or bites on her
torso, burn marks or sores on her hand, a red rash on her lower back, under her nose and
on her cheek and two sores on her foot.
       The juvenile court ordered Emersyn detained and ordered that she undergo drug
testing by hair follicle analysis. The court continued the matter to March 2016 for a
hearing on jurisdiction and disposition (combined hearing) and the agency referred father
and Taylor for individual counseling, parenting classes and a substance abuse assessment.

                                             3
       Prior to the combined hearing, the agency received the results of Emersyn’s hair
follicle analysis that was positive for methamphetamine. The agency filed a first
amended petition adding an allegation that father and Taylor exposed Emersyn to their
substance abuse.
       In its report for the combined hearing, the agency recommended the juvenile court
adjudge Emersyn a dependent child and deny father and Taylor reunification services
under section 361.5, subdivision (b)(13) because of their “extensive, abusive, and chronic
use of drugs or alcohol” and resistance to court-ordered treatment. The agency reported
that father had a 27-year history of drug use and numerous drug-related arrests. From
May to July 2013, he participated in residential drug treatment but relapsed and was
actively using drugs when Emersyn was taken into protective custody in November 2013.
In December 2013, he entered court-ordered drug treatment and graduated from the
program in February 2014. He relapsed the next day. He was promptly readmitted and
in April 2014, he graduated from the program and began outpatient treatment that he
completed the following September. In January 2015, the juvenile court returned
Emersyn to father’s custody under family maintenance and in July 2015 dismissed its
dependency jurisdiction. Approximately three months later, father and Taylor relapsed.
When asked what caused his relapse, father said he and Taylor talked and joked about
using methamphetamine and mistakenly believed they could use it one more time. They
began using it every few days but quickly progressed to daily use. In October 2015, his
mother was hit by a car and died. He found it difficult to grieve and increased his drug
use.
       Taylor also had a long history of drug use and resisting treatment that the agency
detailed in its report.
       The agency also reported that father made minimal efforts to engage in the
services offered to him after the detention hearing. He completed a substance abuse
assessment but continued to use methamphetamine. Taylor had not engaged in any

                                            4
services, had not visited Emersyn and was arrested in March 2016 with a syringe full of
methamphetamine in her possession.
       The agency included in its report a list of relatives who were possible placement
candidates. The list, designated as “Attachment J,” was drawn from multiple state and
county databases, internet search engines and social networking sites. On March 8, 2016,
social worker Rebecca Blacksten, the placement specialist, mailed letters to 15 relatives
listed; ten maternal relatives, including the maternal grandmother, and five paternal
relatives. Blacksten included an informational pamphlet entitled “Important Information
for Relatives of a Child in Foster Care” along with each letter. Only two of the relatives,
including the maternal grandmother, had valid telephone numbers. None of the relatives
had applied for placement.
       In April 2016, the juvenile court conducted a contested hearing. In an addendum
report, the agency informed the court that father was participating in an intensive
outpatient program and residing at a clean and sober facility, and that Taylor visited
Emersyn once in late March 2016.
       Father testified he was participating in intensive outpatient treatment and last
tested positive for drugs on March 15, 2016. He acknowledged completing residential
drug treatment three times and subsequently relapsing each time. He abstained from drug
use from April 2014 to October 2015 and then relapsed after finding out that his father
had cancer and congestive heart failure and after his mother was hit by a car and killed.
He did not seek out any support before he relapsed. He was overwhelmed with grief and
did not know how to cope with his situation other than to resort to drugs. On redirect,
however, he testified he relapsed on alcohol before knowing his father was sick and used
methamphetamine approximately three times before his mother died.
       Father knew that Taylor was using methamphetamine while caring for Emersyn
but believed it was Taylor’s responsibility to take care of Emersyn while he worked. He
never asked Taylor if she used methamphetamine in Emersyn’s presence. After

                                             5
conducting some research, he believed that Emersyn tested positive for
methamphetamine through skin-to-skin contact with him.
       Father also testified that his “little sister’s mother” and his Aunt Kim would take
custody of Emersyn, and that his stepmother had applied for custody. His aunt needed
more information to apply. He said he and Taylor were no longer in a relationship and
had not been since December 2015.
       Taylor’s attorney made an offer of proof that Taylor was participating in services
in jail and that her visit with Emersyn in March 2016 went very well. The court accepted
the offer of proof.
       Social worker Beth Morrison was questioned by father’s attorney about
Attachment J. She did not know if Ms. Blacksten made any further attempts to contact
the relatives listed after sending out the letters. However, she spoke to Blacksten during
a break and testified that Blacksten followed up with the maternal grandmother after
Emersyn was removed. She did not know if Blacksten attempted to obtain valid
telephone numbers for the other relatives.
       The juvenile court sustained the first amended petition, denied father and Taylor
reunification services under section 361.5, subdivision (b)(13) and set a section 366.26
hearing. The court also found that the social worker exercised due diligence in
attempting to identify, locate and notify Emersyn’s relatives.
       This petition ensued.
                                        DISCUSSION
       Father contends the juvenile court erred in denying him reunification services
under section 361.5, subdivision (b)(13) (the statute) that permits the denial of services to
a parent when the juvenile court finds by clear and convincing evidence that the parent
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 the child to the court’s attention, or has

                                               6
failed or refused to comply with a program of drug or alcohol treatment on at least two
prior occasions, even though the programs identified were available and accessible.
       Father does not dispute that the statute applies to him insofar as he has the
requisite history of drug use. Nor does he dispute that a relapse may constitute resistance
to treatment under the statute or that he relapsed following the completion of court-
ordered drug treatment on multiple occasions, most recently within three years of the
petition filed in this case. Nevertheless, he invites this court to consider his relapse in
essence an excusable reaction to a traumatic experience (i.e., his father’s severe illness
and his mother’s sudden death) rather than resistance to treatment.
       Whether a relapse constitutes “resistance to treatment” under the statute depends
on how it evolves rather than on its impetus. The type of relapse that demonstrates
resistance is one that results in the resumption of regular drug use after a period of
sobriety. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.) It is not a mere
“setback” or “brief relapse.” (Ibid.) Consequently, a person could suffer a brief relapse
following a traumatic experience and not be considered resistant to treatment if that
person did not resume regular drug use. However, that is not what father did. When he
relapsed during that period of time surrounding his father’s illness and mother’s death, he
resumed regular drug use. He said he began using methamphetamine every few days and
was using it daily when the agency intervened. His relapse had evolved into regular drug
use and constituted resistance to treatment under the statute. Therefore, the juvenile court
did not err in applying it to him.
       Father asserts nevertheless that Emersyn was very attached to him and that
providing him reunification services would serve her best interest. Indeed, the juvenile
court could have ordered reunification services for father despite having found a basis to
deny him services under the statute. However, in order to do so, the court had to find by
clear and convincing evidence that it would be in Emersyn’s best interest. (§ 361.5,
subd. (c).) Father testified that Emersyn greeted him with a hug when she saw him,

                                               7
referred to him as “Daddy” and asked when she could go home with him. However, that
evidence did not compel the court to order services in father’s case and, under the
circumstances, we find no abuse of discretion in the court’s decision.
       Father further contends the agency failed to comply with its investigative duty
under section 309, subdivision (e)(1) to locate relatives for possible placement. We
disagree.
       When a child is removed from parental custody, the social worker “shall use due
diligence” (§ 309, subd. (e)(3); Cal. Rules of Court, rule 5.637(a)) “to identify and locate
all grandparents, … and other adult relatives of the child, … including any other adult
relatives suggested by the parents.” (§ 309, subd. (e)(1).) The social worker shall
provide located relatives with written notice, and oral notice when appropriate, of the
child’s removal (§ 309, subd. (e)(1)(A)) and “[a]n explanation of the various options to
participate in the care and placement of the child and support for the child’s family,
including any options that may be lost by failing to respond.” (§ 309, subd. (e)(1)(B);
Cal. Rules of Court, rule 5.534(f)(3).)
       On appeal, father bears the burden of showing that substantial evidence does not
support the juvenile court’s finding the social worker exercised due diligence in
identifying, locating and notifying Emersyn’s relatives for placement. (Winograd v.
American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Father failed to satisfy his
burden.
       Father contends the agency’s investigation was inadequate because the social
worker made no attempt to find telephone numbers for all of the relatives listed in
Attachment J. He seems to infer that the social worker did not exercise due diligence
because she did not contact the relatives by telephone. Father’s argument, however, is
baseless. Section 309, subdivision (e)(1) requires “written notification.” Blacksten
notified the relatives listed by letter and there is no evidence that they did not receive the
letter. Further, the statute does not require “oral notification” unless it is appropriate.

                                               8
Here, Blacksten also spoke to Emersyn’s maternal grandmother, which was appropriate
since she had cared for Emersyn before and was the most likely person to assume custody
of her.
          We conclude substantial evidence supports the juvenile court’s due diligence
finding and deny the petition.
                                            DISPOSITION
          The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




                                                9
