Reunification services properly denied when parent continues to resist treatment for substance abuse.
Cite as
1999 DJDAR 1249Published
Mar. 3, 1999Filing Date
Jan. 31, 1999Summary
In the published part of the opinion, the C.A. 3rd has ruled that the trial court properly denied reunification services to a parent who had an extensive history of severe alcohol and drug abuse.
David T., the child of Karen S. and Larry T., was removed from the custody of his parents when he was less than one month old. Earlier that same year, Karen's five other children were removed from her custody and permanently placed with others as a result of Karen's untreated mental illness and alcohol abuse. Larry had a long history of chronic heroin, marijuana and alcohol abuse. At a jurisdictional hearing, the trial court found that David had suffered, or would likely suffer, serious physical harm as a result of his parents' abuse and neglect and that his siblings had in fact, been abused and neglected. By clear and convincing evidence, the trial court further found that there was a "substantial risk" that David would continue to suffer abuse and neglect if returned to his parents. Citing Welfare and Institutions Code, Sections 361.5(b)(10) and 361.5(b)(12), the trial court denied reunification services for both Karen and Larry. Larry objected, contending that the trial court erred in denying him reunification services on the ground that he had "resisted prior treatment" for his substance abuse problems within the meaning of Section 361.5(b)(12). Larry petitioned for a writ of mandate.
The C.A. 3rd denied the writ. Section 361.(b)(12) states that the trial court need not order reunification services when it has been shown, by clear and convincing evidence, that the parent "has a history of extensive, abusive and chronic drug or alcohol abuse . . ." and that the parent continues to resist treatment for the problem. Although Larry admits his chronic substance abuse problem, he argues that because he had voluntarily participated in various treatment programs, he had not "resisted prior treatment" within the meaning of the statute. In enacting Section 361.5(b)(12), the Legislature recognized that there were certain situations where attempted reunification would be "fruitless" and not in the best interests of the child. Resisting treatment for substance abuse is one such situation. Larry admitted taking heroin within the year before the dependency petition was filed. While the petition was pending, Larry fell down and broke his ribs while intoxicated. In another instance, he engaged in domestic violence with Karen while both were intoxicated. Although not "psychologically resistant", Larry nonetheless resisted treatment when he continuously exerted himself "to counteract or defeat" the effects of various treatment plans. Larry was properly denied reunification services. In the unpublished portion of the opinion, the trial court correctly found that Karen was denied reunification services based upon her refusal to seek help for either her mental illness or her alcohol abuse problem. There was substantial evidence to support the trial court's findings that Karen continued to abuse alcohol and that her lack of sobriety made her incapable of caring for David.
— Brian Cardile
KAREN S. et al.,
Petitioners,
v.
SUPERIOR COURT OF EL
DORADO COUNTY,
Respondent,
EL DORADO COUNTY DEPARTMENT
OF SOCIAL SERVICES et al.,
Real Parties in Interest.
No. C031025
(Super.Ct.No. PK-03360A)
Calif* ornia Court of Appeal
Third Appellate District
(El Dorado)
Filed February 1, 1999
CERTIFIED FOR PARTIAL PUBLICATION*
ORIGINAL PROCEEDING: Petitions for Writ of Mandate and Request for Stay of Proceedings. Patrick J. Riley, Judge. Petitions denied.
Steven C. Bailey for Petitioner Karen S.
Valla S. Hoffman for Petitioner Larry S.
No appearance for Respondent.
Roger B. Coffman and Cherie Vallelunga for Real Party
In Interest Department of Social Services.
Abigail Roseman for Real Party In Interest Barbara H.
Jay Dyer for Minor.
Karen S. and Larry T., parents of David T. (the minor), seek a writ of mandate (Cal. Rules of Court, rule 39.1B) directing the juvenile court to vacate its orders denying them reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26; further section references are to this code). 1 Larry also requests a stay of proceedings in the respondent court.
In the published part of this opinion, we reject Larry's claim that the juvenile court erred in denying him reunification services pursuant to section 361.5, subdivision (b)(12) on the ground that he "resisted prior treatment" for his chronic use of drugs and alcohol. As we shall explain, when like Larry, a parent participates in a substance abuse treatment program but continues to abuse illicit drugs or alcohol, the parent has "resisted" treatment within the meaning of section 361.5, subdivision (b)(12).
In the unpublished portions of this opinion, we reject petitioners' remaining contentions. Accordingly, we shall deny the petition, rendering moot the request for a stay.
FACTS AND PROCEDURAL BACKGROUND The Department of Social Services (DSS) removed the minor from petitioners' custody when the minor was less than a month old. Earlier in the year, Karen's untreated mental health problems and abuse of alcohol had resulted in the removal and permanent placement of her other five children. Larry had a history of polysubstance abuse and was on methadone. Petitioners stipulated to the minor's detention.
At the conclusion of a contested jurisdiction hearing, the juvenile court found: (1) the minor suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of petitioners' failure and inability to supervise or protect the minor adequately, and as a result of petitioners' inability to provide regular care for the minor due to Karen's mental illness and petitioners' substance abuse (§ 300, subd. (b)); and (2) the minor's siblings had been abused and neglected and there was a substantial risk the minor would be neglected as a result of petitioners' substance abuse and mental health problems (§ 300, subd. (j)).
The court then found clear and convincing evidence of a substantial risk to the minor if he were returned to petitioners, and denied reunification services for both parents, citing section 361.5, subdivision (b)(10) as to Karen and subdivision (b)(12) as to Larry.
DISCUSSION [This Part Is Not Certified for Publication] I* Karen asserts the juvenile court erred by applying section 361.5, subdivision (b)(10) to deny her reunification services.
Section 361.5, subdivision (b)(10) states: "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 (A) the court ordered a permanent plan of adoption, guardianship, or long-term foster care for any siblings, or half-siblings of the minor 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), or (B) the parental rights of a parent or guardian over any sibling or half-sibling of the minor had been permanently severed 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 minor from that parent or guardian."
Relying on In re Shawn S. (1998) 67 Cal.App.4th 1424, Karen argues the juvenile court was required to, and did not, consider her efforts both to improve her parenting and to rehabilitate herself subsequent to detention of both the minor's siblings and the minor himself.
Shawn S. is of no assistance to Karen because in this case there was evidence before the juvenile court of her efforts at reunification in the siblings' case, her care of the minor prior to detention, her continuing lack of sobriety which exacerbated her mental disorder, and her refusal to take the medications which could have stabilized her mental illness. The court explicitly stated it had considered the petitioner's past history "including the period of time since the filing of this petition and prior to this hearing" in making its ruling. And the court concluded that, prior to detention, petitioners generally cared for the minor's health but not his safety; nothing had changed significantly since that time; and petitioners remained unable to parent the minor. Accordingly, the court properly applied section 361.5, subdivision (b)(10) to deny reunification services to Karen.
II* Larry contends substantial evidence does not support the juvenile court's finding that the minor came within section 300, subdivision (b) as there was no evidence of substantial risk of serious physical harm to the minor at the time of the hearing. 2 1 2 Larry argues the minor was healthy and had no history of injury when removed from petitioners' care and the jurisdictional findings as to him were based only on his history of substance abuse and the fact he had a few beers in the months before the hearing.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing, the reviewing court must determine if there is any substantial evidence, i.e., 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.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (Ibid.; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) We may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
At the outset, we observe that there need not be actual injury, only the substantial risk the minor will suffer serious physical harm in order to satisfy section 300, subdivision (b). Larry's substance abuse placed the minor at such risk.
Larry had a significant history of abuse of alcohol, heroin and marijuana which spanned decades. Even during a period from 1987 to 1993, when he was in methadone maintenance and not drinking because he was taking Antabuse, he still smoked marijuana. He had been in the Progress House rehabilitation program for 18 months beginning in 1995 or 1996, was currently on methadone, and attended Alcoholics Anonymous. He admitted using heroin in 1997 and misusing his pain medications. During the summer of 1998, while this case was pending, he fell and broke his ribs while intoxicated and, in a separate incident, engaged in domestic violence with Karen when both were intoxicated. He could not remember his longest period of sobriety since December 1997, and had made multiple efforts at rehabilitation.
It is evident that substance abuse pervades Larry's life and, at least part of the time, renders him incapable of caring for the minor. When he is incapable of caring for the minor, the task falls to Karen, whose untreated mental health disorder exacerbated by her alcohol abuse also places the minor at risk of physical harm. Substantial evidence supports the juvenile court's finding that the minor came within the provisions of section 300, subdivision (b).
As substantial evidence supports the juvenile court's exercise of jurisdiction pursuant to section 300, subdivision (b), we need not address Larry's contentions challenging the adequacy of the pleading of section 300, subdivision (j).
III* Larry contends DSS failed to make reasonable efforts to prevent the minor's removal or to make it possible for the minor to return home. To the extent Larry contests the findings and orders made at the detention hearing, the challenge is waived as both parents stipulated to the minor's detention.
When a child is taken from the physical custody of its parent, the juvenile court must find "there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . custody" (§ 361, subd. (c)(1)), determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his" home, and "state the facts on which the decision to remove the minor is based" (§ 361, subd. (d)).
At the disposition hearing, the court reaffirmed the findings made at the detention hearing regarding reasonable efforts, namely, that Karen had received extensive services in connection with the minor's siblings without benefiting therefrom and that the emergency presented by the risk to the month-old minor excused DSS from the requirement of making reasonable efforts as to Larry to eliminate the need for removal. The court also found that it was not safe to return the minor to petitioners' custody as they were currently unable to provide him adequate care because Karen was resistant to taking medications to control her mental disorder and Larry had serious physical problems and suffered from polysubstance abuse.
Thus, contrary to Larry's contention, the court did make factual findings to support the decision to remove the minor. Moreover, the evidence supported the finding of emergency removal both at the initial detention hearing and later at the disposition hearing. At the time of the initial detention, Karen had received extensive services in the siblings' case but still was incapable of providing a safe home for the minor because she refused treatment. Karen's inability to function as a parent helped to create the emergency situation since Larry's substance abuse rendered him periodically incapable of caring for the infant, necessarily leaving the minor's care to Karen. There was no way to protect the minor absent moving a caretaker into Karen and Larry's home, and this solution was not a reasonable one.
During the period of time the minor was out of the home awaiting the jurisdiction and disposition hearings, the social worker did develop a plan and referred Larry to services, but he did not follow up on the referrals. The social worker also encouraged Karen to see a doctor and get medication for her condition. Karen refused to do so. Thus, by the detention hearing, the conditions were virtually unchanged and again the only way to protect the minor in the petitioners' home was to place an independent caretaker there. Even Larry admitted Karen was unable to care for the minor and he could not do so alone. The evidence supported the juvenile court's findings.
[End of Part Not Certified for Publication]
IV Larry contends the juvenile court abused its discretion in denying him services pursuant to section 361.5, subdivision (b)(12), which states that reunification services need not be provided to a parent when the 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 treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan . . . on at least two occasions, even though the programs identified were available and accessible."
Larry admits that he has a history of chronic abuse of heroin, marijuana and alcohol, but points out that he voluntarily participated in substance abuse treatment programs both before and after the dependency petition was filed. Hence, he argues, the evidence does not show that he "resisted prior treatment" for his chronic substance abuse.
It is true Larry voluntarily sought out treatment programs; but the evidence also establishes that he never had a significant period free of substance abuse despite the programs. Even when he was in methadone maintenance and not drinking because he was taking Antabuse, he still smoked marijuana. He admitted using heroin within the year before the dependency petition was filed, and acknowledged misusing his pain medications. While the petition was pending, he fell and broke his ribs while intoxicated and,
in a separate incident, engaged in domestic violence with Karen when both were intoxicated.
For reasons which follow, we conclude that Larry "resisted prior treatment" within the meaning of section 361.5, subdivision (b)(12) by failing to benefit from treatment for his chronic use of illicit drugs and alcohol.
In construing a statute, a court must ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.) To determine legislative intent, we examine the words of the statute (ibid.), applying "their usual, ordinary, and common sense meaning based
on the language the Legislature used and the evident purpose for which the statute was adopted." (In re Rojas (1979) 23 Cal.3d 152, 155.) We "'must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and to avoid an interpretation that would lead to absurd consequences.' [Citation.]" (People v. Coronado, supra, at p. 151.)
In enacting section 361.5, subdivision (b), the Legislature determined that, in certain situations, "attempts to facilitate reunification do not serve and protect the child's interest." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) Situations listed in that subdivision constitute circumstances in which the Legislature has recognized that "it may be fruitless to provide reunification services . . . ." (In re Rebecca H. (1991) 227 Cal.App.3d 825, 837.) With this legislative determination in mind, we consider the utilization in subdivision (b)(12) of the phrase "resisted prior treatment" for chronic use of drugs or alcohol.
The common definition of "resist" is either "to withstand the force or effect of" or "to exert oneself to counteract or defeat." (Webster's Third New Internat. Dict., Unabridged (1981) p. 1932.) The definition encompasses both active and passive behavior. Thus, a parent can actively resist treatment for drug or alcohol abuse by refusing to attend a program or by declining to participate once there. The parent also can passively resist by participating in treatment but nonetheless continuing to abuse drugs or alcohol, thus demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life. In either case, a parent has demonstrated a resistance to eliminating the chronic use of drugs or alcohol which led to the need for juvenile court intervention to protect the parent's child. In other words, the parent has demonstrated that reunification services would be a fruitless attempt to protect the child because the parent's past failure to benefit from treatment indicates that future treatment also would fail to change the parent's destructive behavior.
It is the latter, passive sense of the word "resisted" that is applicable here. Larry participated in various treatment programs within three years before the petition was filed, but continued to abuse drugs and alcohol. Even after the minor was detained and Larry remained involved in a methadone maintenance program, he continued to abuse alcohol although knowing he should not drink while taking methadone. Dr. Miller, the psychologist, testified that Larry was resistant to treatment in this sense, i.e., treatment was not effective in preventing relapse.
Larry argues the statute cannot apply to him because, according to Dr. Miller, Larry is not "psychologically resistant" to treatment and could possibly benefit from it. However, the statute does not indicate that "resisted" is to be understood in any way other than its common ordinary meaning, and Dr. Miller made it clear that the best indication of whether Larry could benefit from treatment was his past efforts. Larry's past efforts had been unsuccessful. If the Legislature intended the specialized meaning relied upon by Larry, it would have said so.
Larry also contends that application of the provision to him constitutes a denial of due process because he has not had an opportunity to benefit from reunification services before, and the denial of services negatively affects his fundamental right to parent his child. He is wrong.
Several of the circumstances in which reunification services may be denied anticipate that a parent has not abused the particular child in question and has never had reunification services. (§ 361.5, subds. (b)(1) [parent's whereabouts unknown], (b)(2) [parent suffering from mental disability], (b)(4) [parent caused the death of another minor], (b)(6) [severe sexual abuse of sibling], (b)(8) [minor conceived by child molestation], (b)(11) [parent convicted of a violent felony].) The statute contemplates that, in such situations, the parent may nonetheless show that providing services is in the best interests of the child. (§ 361.5, subd. (c).) The statute has not been applied unfairly to Larry. The juvenile court properly found the circumstances of section 361.5, subdivision (b)(12) pertained to Larry, and the best interests of the child would not be served by providing reunification services.
DISPOSITION The petitions for writ of mandate are denied. The request for a stay is dismissed as moot.
We concur:
SIMS, J.
MORRISON, J.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception parts I through III.
1 For simplicity and to avoid confusion, we shall refer to Karen S. and Larry T. by their first names or collectively as "petitioners."
1 The relevant allegations of the amended petition are: "The child has suffered or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of his or her parent . . . to supervise or protect the child adequately[;] as a result of the willful or negligent failure of the child's parent . . . to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left[;] by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse [because:] (b)(3) The minor's father abuses alcohol. Such abuse periodically renders him incapable of providing proper and effective parental care and control for the minor. (b)(4) The minor's father periodically abuses controlled substances. The father is presently on methadone maintenance, which treatment renders him tired all the time and unable to properly care for the minor."
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception parts I through III.
CERTIFIED FOR PARTIAL PUBLICATION*
ORIGINAL PROCEEDING: Petitions for Writ of Mandate and Request for Stay of Proceedings. Patrick J. Riley, Judge. Petitions denied.
Steven C. Bailey for Petitioner Karen S.
Valla S. Hoffman for Petitioner Larry S.
No appearance for Respondent.
Roger B. Coffman and Cherie Vallelunga for Real Party
In Interest Department of Social Services.
Abigail Roseman for Real Party In Interest Barbara H.
Jay Dyer for Minor.
Karen S. and Larry T., parents of David T. (the minor), seek a writ of mandate (Cal. Rules of Court, rule 39.1B) directing the juvenile court to vacate its orders denying them reunification services and setting a permanency planning hearing (Welf. & Inst. Code, § 366.26; further section references are to this code). 1 Larry also requests a stay of proceedings in the respondent court.
In the published part of this opinion, we reject Larry's claim that the juvenile court erred in denying him reunification services pursuant to section 361.5, subdivision (b)(12) on the ground that he "resisted prior treatment" for his chronic use of drugs and alcohol. As we shall explain, when like Larry, a parent participates in a substance abuse treatment program but continues to abuse illicit drugs or alcohol, the parent has "resisted" treatment within the meaning of section 361.5, subdivision (b)(12).
In the unpublished portions of this opinion, we reject petitioners' remaining contentions. Accordingly, we shall deny the petition, rendering moot the request for a stay.
FACTS AND PROCEDURAL BACKGROUND The Department of Social Services (DSS) removed the minor from petitioners' custody when the minor was less than a month old. Earlier in the year, Karen's untreated mental health problems and abuse of alcohol had resulted in the removal and permanent placement of her other five children. Larry had a history of polysubstance abuse and was on methadone. Petitioners stipulated to the minor's detention.
At the conclusion of a contested jurisdiction hearing, the juvenile court found: (1) the minor suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of petitioners' failure and inability to supervise or protect the minor adequately, and as a result of petitioners' inability to provide regular care for the minor due to Karen's mental illness and petitioners' substance abuse (§ 300, subd. (b)); and (2) the minor's siblings had been abused and neglected and there was a substantial risk the minor would be neglected as a result of petitioners' substance abuse and mental health problems (§ 300, subd. (j)).
The court then found clear and convincing evidence of a substantial risk to the minor if he were returned to petitioners, and denied reunification services for both parents, citing section 361.5, subdivision (b)(10) as to Karen and subdivision (b)(12) as to Larry.
DISCUSSION [This Part Is Not Certified for Publication] I* Karen asserts the juvenile court erred by applying section 361.5, subdivision (b)(10) to deny her reunification services.
Section 361.5, subdivision (b)(10) states: "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 (A) the court ordered a permanent plan of adoption, guardianship, or long-term foster care for any siblings, or half-siblings of the minor 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), or (B) the parental rights of a parent or guardian over any sibling or half-sibling of the minor had been permanently severed 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 minor from that parent or guardian."
Relying on In re Shawn S. (1998) 67 Cal.App.4th 1424, Karen argues the juvenile court was required to, and did not, consider her efforts both to improve her parenting and to rehabilitate herself subsequent to detention of both the minor's siblings and the minor himself.
Shawn S. is of no assistance to Karen because in this case there was evidence before the juvenile court of her efforts at reunification in the siblings' case, her care of the minor prior to detention, her continuing lack of sobriety which exacerbated her mental disorder, and her refusal to take the medications which could have stabilized her mental illness. The court explicitly stated it had considered the petitioner's past history "including the period of time since the filing of this petition and prior to this hearing" in making its ruling. And the court concluded that, prior to detention, petitioners generally cared for the minor's health but not his safety; nothing had changed significantly since that time; and petitioners remained unable to parent the minor. Accordingly, the court properly applied section 361.5, subdivision (b)(10) to deny reunification services to Karen.
II* Larry contends substantial evidence does not support the juvenile court's finding that the minor came within section 300, subdivision (b) as there was no evidence of substantial risk of serious physical harm to the minor at the time of the hearing. 2 1 2 Larry argues the minor was healthy and had no history of injury when removed from petitioners' care and the jurisdictional findings as to him were based only on his history of substance abuse and the fact he had a few beers in the months before the hearing.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing, the reviewing court must determine if there is any substantial evidence, i.e., 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.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (Ibid.; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) We may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
At the outset, we observe that there need not be actual injury, only the substantial risk the minor will suffer serious physical harm in order to satisfy section 300, subdivision (b). Larry's substance abuse placed the minor at such risk.
Larry had a significant history of abuse of alcohol, heroin and marijuana which spanned decades. Even during a period from 1987 to 1993, when he was in methadone maintenance and not drinking because he was taking Antabuse, he still smoked marijuana. He had been in the Progress House rehabilitation program for 18 months beginning in 1995 or 1996, was currently on methadone, and attended Alcoholics Anonymous. He admitted using heroin in 1997 and misusing his pain medications. During the summer of 1998, while this case was pending, he fell and broke his ribs while intoxicated and, in a separate incident, engaged in domestic violence with Karen when both were intoxicated. He could not remember his longest period of sobriety since December 1997, and had made multiple efforts at rehabilitation.
It is evident that substance abuse pervades Larry's life and, at least part of the time, renders him incapable of caring for the minor. When he is incapable of caring for the minor, the task falls to Karen, whose untreated mental health disorder exacerbated by her alcohol abuse also places the minor at risk of physical harm. Substantial evidence supports the juvenile court's finding that the minor came within the provisions of section 300, subdivision (b).
As substantial evidence supports the juvenile court's exercise of jurisdiction pursuant to section 300, subdivision (b), we need not address Larry's contentions challenging the adequacy of the pleading of section 300, subdivision (j).
III* Larry contends DSS failed to make reasonable efforts to prevent the minor's removal or to make it possible for the minor to return home. To the extent Larry contests the findings and orders made at the detention hearing, the challenge is waived as both parents stipulated to the minor's detention.
When a child is taken from the physical custody of its parent, the juvenile court must find "there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . custody" (§ 361, subd. (c)(1)), determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his" home, and "state the facts on which the decision to remove the minor is based" (§ 361, subd. (d)).
At the disposition hearing, the court reaffirmed the findings made at the detention hearing regarding reasonable efforts, namely, that Karen had received extensive services in connection with the minor's siblings without benefiting therefrom and that the emergency presented by the risk to the month-old minor excused DSS from the requirement of making reasonable efforts as to Larry to eliminate the need for removal. The court also found that it was not safe to return the minor to petitioners' custody as they were currently unable to provide him adequate care because Karen was resistant to taking medications to control her mental disorder and Larry had serious physical problems and suffered from polysubstance abuse.
Thus, contrary to Larry's contention, the court did make factual findings to support the decision to remove the minor. Moreover, the evidence supported the finding of emergency removal both at the initial detention hearing and later at the disposition hearing. At the time of the initial detention, Karen had received extensive services in the siblings' case but still was incapable of providing a safe home for the minor because she refused treatment. Karen's inability to function as a parent helped to create the emergency situation since Larry's substance abuse rendered him periodically incapable of caring for the infant, necessarily leaving the minor's care to Karen. There was no way to protect the minor absent moving a caretaker into Karen and Larry's home, and this solution was not a reasonable one.
During the period of time the minor was out of the home awaiting the jurisdiction and disposition hearings, the social worker did develop a plan and referred Larry to services, but he did not follow up on the referrals. The social worker also encouraged Karen to see a doctor and get medication for her condition. Karen refused to do so. Thus, by the detention hearing, the conditions were virtually unchanged and again the only way to protect the minor in the petitioners' home was to place an independent caretaker there. Even Larry admitted Karen was unable to care for the minor and he could not do so alone. The evidence supported the juvenile court's findings.
[End of Part Not Certified for Publication]
IV Larry contends the juvenile court abused its discretion in denying him services pursuant to section 361.5, subdivision (b)(12), which states that reunification services need not be provided to a parent when the 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 treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan . . . on at least two occasions, even though the programs identified were available and accessible."
Larry admits that he has a history of chronic abuse of heroin, marijuana and alcohol, but points out that he voluntarily participated in substance abuse treatment programs both before and after the dependency petition was filed. Hence, he argues, the evidence does not show that he "resisted prior treatment" for his chronic substance abuse.
It is true Larry voluntarily sought out treatment programs; but the evidence also establishes that he never had a significant period free of substance abuse despite the programs. Even when he was in methadone maintenance and not drinking because he was taking Antabuse, he still smoked marijuana. He admitted using heroin within the year before the dependency petition was filed, and acknowledged misusing his pain medications. While the petition was pending, he fell and broke his ribs while intoxicated and,
in a separate incident, engaged in domestic violence with Karen when both were intoxicated.
For reasons which follow, we conclude that Larry "resisted prior treatment" within the meaning of section 361.5, subdivision (b)(12) by failing to benefit from treatment for his chronic use of illicit drugs and alcohol.
In construing a statute, a court must ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.) To determine legislative intent, we examine the words of the statute (ibid.), applying "their usual, ordinary, and common sense meaning based
on the language the Legislature used and the evident purpose for which the statute was adopted." (In re Rojas (1979) 23 Cal.3d 152, 155.) We "'must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and to avoid an interpretation that would lead to absurd consequences.' [Citation.]" (People v. Coronado, supra, at p. 151.)
In enacting section 361.5, subdivision (b), the Legislature determined that, in certain situations, "attempts to facilitate reunification do not serve and protect the child's interest." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) Situations listed in that subdivision constitute circumstances in which the Legislature has recognized that "it may be fruitless to provide reunification services . . . ." (In re Rebecca H. (1991) 227 Cal.App.3d 825, 837.) With this legislative determination in mind, we consider the utilization in subdivision (b)(12) of the phrase "resisted prior treatment" for chronic use of drugs or alcohol.
The common definition of "resist" is either "to withstand the force or effect of" or "to exert oneself to counteract or defeat." (Webster's Third New Internat. Dict., Unabridged (1981) p. 1932.) The definition encompasses both active and passive behavior. Thus, a parent can actively resist treatment for drug or alcohol abuse by refusing to attend a program or by declining to participate once there. The parent also can passively resist by participating in treatment but nonetheless continuing to abuse drugs or alcohol, thus demonstrating an inability to use the skills and behaviors taught in the program to maintain a sober life. In either case, a parent has demonstrated a resistance to eliminating the chronic use of drugs or alcohol which led to the need for juvenile court intervention to protect the parent's child. In other words, the parent has demonstrated that reunification services would be a fruitless attempt to protect the child because the parent's past failure to benefit from treatment indicates that future treatment also would fail to change the parent's destructive behavior.
It is the latter, passive sense of the word "resisted" that is applicable here. Larry participated in various treatment programs within three years before the petition was filed, but continued to abuse drugs and alcohol. Even after the minor was detained and Larry remained involved in a methadone maintenance program, he continued to abuse alcohol although knowing he should not drink while taking methadone. Dr. Miller, the psychologist, testified that Larry was resistant to treatment in this sense, i.e., treatment was not effective in preventing relapse.
Larry argues the statute cannot apply to him because, according to Dr. Miller, Larry is not "psychologically resistant" to treatment and could possibly benefit from it. However, the statute does not indicate that "resisted" is to be understood in any way other than its common ordinary meaning, and Dr. Miller made it clear that the best indication of whether Larry could benefit from treatment was his past efforts. Larry's past efforts had been unsuccessful. If the Legislature intended the specialized meaning relied upon by Larry, it would have said so.
Larry also contends that application of the provision to him constitutes a denial of due process because he has not had an opportunity to benefit from reunification services before, and the denial of services negatively affects his fundamental right to parent his child. He is wrong.
Several of the circumstances in which reunification services may be denied anticipate that a parent has not abused the particular child in question and has never had reunification services. (§ 361.5, subds. (b)(1) [parent's whereabouts unknown], (b)(2) [parent suffering from mental disability], (b)(4) [parent caused the death of another minor], (b)(6) [severe sexual abuse of sibling], (b)(8) [minor conceived by child molestation], (b)(11) [parent convicted of a violent felony].) The statute contemplates that, in such situations, the parent may nonetheless show that providing services is in the best interests of the child. (§ 361.5, subd. (c).) The statute has not been applied unfairly to Larry. The juvenile court properly found the circumstances of section 361.5, subdivision (b)(12) pertained to Larry, and the best interests of the child would not be served by providing reunification services.
DISPOSITION The petitions for writ of mandate are denied. The request for a stay is dismissed as moot.
SCOTLAND, P.J.
We concur:
SIMS, J.
MORRISON, J.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception parts I through III.
1 For simplicity and to avoid confusion, we shall refer to Karen S. and Larry T. by their first names or collectively as "petitioners."
1 The relevant allegations of the amended petition are: "The child has suffered or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of his or her parent . . . to supervise or protect the child adequately[;] as a result of the willful or negligent failure of the child's parent . . . to supervise or protect the child adequately from the conduct of the custodian with whom the child has been left[;] by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse [because:] (b)(3) The minor's father abuses alcohol. Such abuse periodically renders him incapable of providing proper and effective parental care and control for the minor. (b)(4) The minor's father periodically abuses controlled substances. The father is presently on methadone maintenance, which treatment renders him tired all the time and unable to properly care for the minor."
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception parts I through III.
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