Jasmine B. v. Superior Court CA4/1
- Proceeding
- writ
- Trial judge
- Edlene C. McKenzie (commissioner)
- Outcome
- writ denied — Petition denied; request for stay denied.
- Area
- dependency
- Panel
- McINTYRE (author), Alex C. McDonald, Gilbert Nares
Analysis
The juvenile court denied Jasmine B. reunification services and set a section 366.26 hearing, finding by clear and convincing evidence that she had not made reasonable efforts to treat the problems leading to the removal of her siblings. The Court of Appeal denied the writ petition, holding that substantial evidence supported the trial court's findings and that the correct standard of proof was applied.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (b)(11).“Substantial evidence supports the court's finding that section 361.5, subdivision (b)(10) and (11) applied.” | substantial evidence | correct | agree with court The appellate court correctly applied the substantial evidence standard to the trial court's factual findings regarding the parent's history of treatment and relapse. The record cited in the opinion, including the parent's admission of inability to stay sober and lack of recent psychiatric care, provides sufficient support for the conclusion that efforts were not reasonable. |
Application of the clear and convincing evidence standard of proof.“Where, as here, there is no question as to the applicable standard of proof, the trial court need not articulate that standard and it is presumed the court applied the correct standard.” | de novo | correct | agree with court The court correctly noted that the trial court's failure to explicitly state the standard is not reversible error when the record indicates the correct standard was used. The opinion cites the trial court's explicit mention of 'clear and convincing evidence' to refute the petitioner's claim that the wrong standard was applied. |
Authorities
- relied: K.C. v. Superior Court (2010) 182 Cal.App.4th 1388 — Defines the 'reasonable effort to treat' standard as not synonymous with 'cure' and requiring efforts more than 'lackadaisical or half-hearted.' The court used this to evaluate the sufficiency of the parent's treatment history.
- relied: A.A. v. Superior Court (2012) 209 Cal.App.4th 237 — Establishes that the review of the court's findings in this context is for substantial evidence. The court cited this to justify its standard of review.
- relied: In re Fred J. (1979) 89 Cal.App.3d 168 — Holds that a trial court is presumed to have applied the correct standard of proof if it does not explicitly articulate it, provided there is no question as to the applicable standard. The court used this to reject the argument that the trial court failed to apply the clear and convincing standard.
- relied: Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87 — Supports the characterization of treatment efforts as 'lackadaisical or half-hearted' when a parent has a history of relapse and failure to maintain sobriety or mental health stability. The court cited this to support its conclusion that Jasmine's efforts were insufficient.
The appellate opinion: sound — The opinion is sound because it correctly applies the substantial evidence standard to the factual findings and accurately cites controlling authority regarding the presumption of correct standard of proof application. It directly addresses the petitioner's arguments with specific references to the record and relevant case law.
How this analysis was made · dispute it
unusual dispositionThe juvenile court sustained a dependency petition for newborn L.S., denied the mother reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11) based on her prior failed reunifications and terminated parental rights as to three older children, and set a section 366.26 hearing. On writ review, the Court of Appeal held the record showed the juvenile court applied the clear and convincing evidence standard and that substantial evidence supported the finding that the mother had not made a reasonable effort to treat her substance abuse and mental health problems; the petition and stay request were denied.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Whether the juvenile court applied the clear and convincing evidence standard of proof in making the section 361.5, subdivision (b)(10) and (11) bypass findings“Where, as here, there is no question as to the applicable standard of proof, the trial court need not articulate that standard and it is presumed the court applied the correct standard.” | unclear | correct | agree with court The court relied on the presumption from In re Fred J. that a trial court applies the correct standard where the standard is settled, and pointed to record evidence that the commissioner repeatedly referenced clear and convincing evidence, even for jurisdictional findings governed by preponderance. The court also reasonably read the commissioner's remark about 'any evidence' of reasonable steps as an affirmative finding rather than a misallocation of the burden. The reasoning and authority support the conclusion. |
Denial of reunification services under section 361.5, subdivision (b)(10) and (11) based on the finding that the mother had not subsequently made a reasonable effort to treat the problems that led to removal of the siblings“In the context of her extensive history of mental illness and drug abuse, her treatment efforts cannot be viewed as anything more than "lackadaisical or half-hearted" and far short of reasonable.” | substantial evidence | correct | agree with court The court correctly stated the K.C. standard that reasonable effort is not synonymous with cure and must be more than lackadaisical. The record it recounted—only weeks of participation in A.B.'s case, relapse after two completed programs, no psychiatrist or therapist, refusal of prescribed medication, and an involuntary hospitalization and drug-related assault shortly before L.S.'s birth—supplies substantial evidence of inadequate effort, particularly as to the untreated mental illness. The opinion is somewhat thin in explaining why the two completed residential programs in 2009 and 2010 do not themselves qualify as reasonable efforts given that success is not required, but the lack of any mental health treatment supports the result. |
Authorities
- relied: K.C. v. Superior Court (2010) 182 Cal.App.4th 1388 — The 'reasonable effort to treat' standard under section 361.5, subdivision (b)(10) and (11) is not synonymous with cure, but efforts must be more than lackadaisical or half-hearted.
- relied: A.A. v. Superior Court (2012) 209 Cal.App.4th 237 — Findings supporting denial of reunification services under section 361.5, subdivision (b) are reviewed for substantial evidence.
- relied: In re Fred J. (1979) 89 Cal.App.3d 168 — Where the applicable standard of proof is not in question, the trial court need not articulate it and is presumed to have applied the correct standard.
- relied: Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87 — A parent's treatment efforts that are lackadaisical or half-hearted do not constitute a reasonable effort to treat the problems that led to a sibling's removal.
- missed: R.T. v. Superior Court (2012) 202 Cal.App.4th 908 — The reasonable-effort inquiry under section 361.5, subdivision (b)(10) focuses on the extent of the parent's efforts, not on whether the parent achieved success or avoided relapse; completed treatment followed by relapse may still constitute reasonable effort.
The appellate opinion: sound with gaps — The opinion correctly states the governing standard, applies the right standard of review, and answers both of the petitioner's arguments with on-point authority and record facts, particularly the complete absence of mental health treatment. It does not squarely engage with the argument that two completed residential programs are themselves reasonable efforts under the 'not synonymous with cure' principle, and it does not address R.T. v. Superior Court, which cautions against equating relapse with lack of effort.
Opinion
Filed 5/12/14 Jasmine B. v. Superior Court 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, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JASMINE B., D065414 Petitioner, (San Diego County Super. Ct. No. SJ10558D) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Real Parties in Interest.
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Edlene C. McKenzie, Commissioner. 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 Erica R. Cortez, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
Jasmine B. seeks writ review of the juvenile court's February 10, 2014, order setting a Welfare and Institutions section 366.26 hearing (all statutory references are to the Welfare and Institutions Code). Jasmine contends the court erred by denying reunification services (§ 361.5, subd. (b)(10) & (11)). We deny Jasmine's petition.
BACKGROUND
Jasmine has a long history of violence, drug abuse and mental instability. Her three older children, Anthony B., A.B. and Christopher B., were removed from her care when they were infants, and her parental rights were terminated as to all three children.
When Anthony was born in April 1999, he and Jasmine tested positive for heroin, and there were concerns about Jasmine's mental health. Jasmine did not comply with her reunification plan, which included drug testing and treatment, and services were terminated at the six-month review hearing. The case closed in June 2001 when Anthony's adoption was finalized. While pregnant with A.B., Jasmine tested positive for methamphetamine. After A.B. was born in December 2002, Jasmine behaved bizarrely and there were concerns about her mental health. Jasmine's reunification plan included a substance abuse program and therapy. She attended those services just a few weeks and failed to reunify with A.B. The case closed in November 2004 when A.B.'s adoption was finalized. While pregnant with Christopher, Jasmine tested positive for methamphetamine and other drugs and received no prenatal care. She was incarcerated 2 when he was born in April 2004. Jasmine was denied reunification services due to her child welfare history and a psychological evaluation stating her mental illness rendered her incapable of parenting. The case closed in November 2005 when Christopher's adoption was finalized.
For five months in 2009, Jasmine was enrolled in the residential substance abuse treatment program at North County Serenity House. She completed the program and achieved all treatment plan goals. In May 2010, Jasmine entered the Kiva drug treatment program. She completed the program in October. In the fall of 2013, the police took Jasmine to the hospital because she was deemed a danger to herself and, in a separate incident, Jasmine was arrested for assaulting a nurse while on drugs.
In December 2013, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for newborn L.S. based on Jasmine's untreated bipolar and schizoaffective disorders and her methamphetamine use, which had prevented her from caring for Anthony, A.B. and Christopher. L.S. was detained with a nonrelative extended family member.
Jasmine said she had been in several rehabilitation programs, and had completed treatment approximately 13 times, but had been unable to stay sober for more than eight or nine months. She had been hospitalized many times for mental health issues and had been in counseling, but had not taken prescribed psychotropic medication because she did not like the side effects and had not been under the care of a psychiatrist or therapist. The nonrelative extended family member said she had tried to take Jasmine to the hospital during her pregnancy, but Jasmine had jumped out of the car on the freeway.
3 In February 2014, the court made true findings on the petition, denied Jasmine services and set a section 366.26 hearing.
Jasmine petitioned for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
"Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence," that the court terminated reunification services for a sibling or half sibling because the parent failed to reunify after the sibling's or half sibling's removal (§ 361.5, subd. (b)(10)), or the parent's rights over a sibling or half sibling were terminated (id., subd. (b)(11)), and that, in either situation, the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . ." (Id., subd. (b)(10) & (11).) "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.' [Citation.]" (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) We review the court's findings for substantial evidence. (See A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.)
Jasmine first contends the court did not apply the clear and convincing evidence standard of proof. The record belies this contention. Where, as here, there is no question as to the applicable standard of proof, the trial court need not articulate that standard and 4 it is presumed the court applied the correct standard. (In re Fred J. (1979) 89 Cal.App.3d 168, 175.) Contrary to Jasmine's assertion, there is no evidence the court here applied an incorrect standard. The court mentioned the clear and convincing evidence several times, even applying it to the jurisdictional findings, where the standard of proof is merely a preponderance of the evidence (§ 355, subd. (a)). Moreover, the court told Jasmine, "I just don't find that there's any evidence that you've really taken reasonable steps to address [the issues of substance abuse and mental health] in the more recent history . . . ."
Jasmine argues this statement suggests the court relied only on the absence of evidence that she had failed to make reasonable efforts. The court's statement is more reasonably viewed as an affirmative finding that there was no evidence Jasmine had taken any reasonable steps to address her problems recently.
Jasmine next contends there was insufficient evidence she failed to make a reasonable effort to treat the problems that led to removal of her older children after the court terminated reunification services (§ 361.5, subd. (b)(10)), or terminated parental rights (id., subd. (b)(11)), in those children's cases. This contention lacks merit.
After Jasmine's services and parental rights were terminated in Anthony's case, she participated in services in A.B.'s case just a few weeks, failed to reunify and suffered termination of her parental rights to A.B. and Christopher. Several years later, Jasmine completed two substance abuse treatment programs but, a few years after that, she was using drugs again and exhibited mental instability. Jasmine claimed to have participated in drug and mental health treatment many times, but acknowledged she had been unable to stay sober, she had not been under the care of a psychiatrist or therapist and she had 5 not taken psychotropic medication because she did not like the side effects. Shortly before the advent of this case, Jasmine was hospitalized involuntarily after she was found running in the street and was rambling, agitated and combative. In the context of her extensive history of mental illness and drug abuse, her treatment efforts cannot be viewed as anything more than "lackadaisical or half-hearted" and far short of reasonable. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99.) Substantial evidence supports the court's finding that section 361.5, subdivision (b)(10) and (11) applied.
DISPOSITION
The petition is denied.
MCINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
Cites, in this corpus
- A.A. v. Superior Court No. D062114 · 2012-09-12
- K.C. v. Superior Court C063449 · 2010-03-18
- CHERYL P. v. Superior Court D047891 · 2006-05-05
- In Re Fred J. Docket Nos. 17719, 17720 · 1979-02-02