S.S. v. Superior Court CA1/5

Filed 1/19/23 S.S. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

S. S., SR.,
Petitioner,
v. A166417
THE SUPERIOR COURT OF LAKE
COUNTY,
(Lake County
Respondent;
Super. Ct. No. JV320646)
LAKE COUNTY DEPARTMENT OF
SOCIAL SERVICES, et al.,
Real Parties in Interest.

S. S., Sr. (Father) seeks review by extraordinary writ of the
juvenile court’s disposition order, which bypassed reunification
services and set a Welfare and Institutions Code section 366.26
hearing for his four-year-old son, S. S., Jr. (Son).1 Father
contends substantial evidence does not support the court’s
finding, made pursuant to section 361.5, subdivision (b)(13), that
he actively resisted court-ordered substance abuse treatment,
and that the court abused its discretion in determining
reunification services would not be in Son’s best interest (§ 361.5,

Undesignated statutory references are to the Welfare and
1

Institutions Code.
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subd. (c)). We deny Father’s petition and his request for a stay of
the section 366.26 hearing.

BACKGROUND

A.

Section 361.5, subdivision (b)(13), provides in relevant part
that a court “need not” provide reunification services when it
finds, by clear and convincing evidence, that a 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 that child to the court’s attention . . . . For
purposes of this paragraph, ‘resisted’ means the parent or
guardian refused to participate meaningfully in a prior court-
ordered drug or alcohol treatment program and does not include
‘passive resistance,’ as described in In re B.E. (2020) 46
Cal.App.5th 932.” (§ 361.5, subd. (b)(13), italics added.)

B.

In May 2022, the Lake County Department of Social
Services (Department) filed a dependency petition, which alleged
then three-year-old Son came within section 300, subdivision
(b)(1), due to his parents’ ongoing substance abuse, homelessness,
neglect, and unsafe living conditions. At the time the dependency
petition was filed, Son was living with a relative, Vivian H., who
was no longer willing to care for him. This development left Son
without a home or caregiver because the whereabouts of both
parents were unknown. Accordingly, it was also alleged that Son
had been left without any provision for support (§ 300, subd. (g)).

The detention report recounted that the family had first
come to the Department’s attention in 2017 when Son’s older
sister (L.D.S.) was removed from Father’s and Mother’s custody
at birth—due to their ongoing substance abuse and unstable
housing. Reunification and then family maintenance services
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were provided until July of 2018, when the parents reunified with
L.D.S. and the dependency case was dismissed.

The Department renewed its focus on L.D.S.’s (and now
Son’s) welfare in February of 2022. At that time, it was reported
that Mother, Father, and both children lived in a trailer without
power, water, or sewage connections. The parents had been
observed driving while intoxicated with their children in the car
(and not in car seats). They were also reported to be using
methamphetamine and engaging in domestic violence in front of
the children.

In the midst of the February 2022 child welfare
investigation, the Robinson Rancheria Band of Pomo Indians
(Robinson Rancheria)—with whom Son is registered as a member
(through Mother)—intervened, placed the children with a
maternal relative (Vivian H.), and designated Vivian the tribal
custodian/guardian. At the time the children came into Vivian’s
care (immediately after leaving Mother’s and Father’s home), Son
appeared to have not been bathed in weeks and had several
untreated medical conditions—“extreme lice with scabs and open
wounds,” pink eye, decaying teeth, and an ear infection.

After several months of caring for the children and
observing their sexualized behaviors with each other, Vivian
determined she could continue to care for L.D.S. but not Son.
The Robinson Rancheria’s coordinator under the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) then
contacted the Department.

At the detention hearing, the juvenile court found that Son
is an Indian child and that the Department had complied with
the applicable due diligence and notice requirements. He was
placed in foster care with a Native American family approved by
the Robinson Rancheria.

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 C.

The jurisdiction report indicated that the social worker had
located Father (about a month after the dependency petition was
filed) but also learned that Mother recently committed suicide.

When interviewed by the social worker, Father denied
using methamphetamine but admitted being an alcoholic. He
further stated that he “drinks a lot” and admitted being a
primary caretaker for Son while they lived in an uninhabitable
trailer. Father continued to occasionally stay at this trailer but
also stayed with family and friends. He did not deny knowledge
of Son’s physical condition at the time he was placed with Vivian.
Since the filing of the dependency petition involving Son, Father
had not submitted to any substance abuse testing or made
himself available to be assessed for other services.

The jurisdiction report also recounted Father’s criminal
history, which spanned 20 years and included numerous arrests
(and at least one conviction) for driving under the influence (Veh.
Code, § 23152, subds. (a), (b)), as well as two convictions for
domestic violence (Pen. Code, § 273.5) in 2015 and 2019.

The juvenile court appointed counsel to represent Father,
and then, after an uncontested jurisdictional hearing, sustained
the petition’s failure to protect (§ 300, subd. (b)(1)) allegations
against Father. The allegation that Father’s whereabouts were
unknown was dismissed.

D.
In its disposition report, the Department recommended
bypass of reunification services pursuant to section 361.5,
subdivision (b)(13).

In support of that recommendation, the social worker noted
that Father’s criminal and juvenile dependency history indicates
long-term, chronic abuse of alcohol. Father was also previously

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ordered, by the juvenile court (during L.D.S.’s dependency), into
substance abuse treatment. While the juvenile court had
jurisdiction over L.D.S., Father completed a six-month outpatient
treatment program and was sober for 10 months. However, after
the dependency case was dismissed (in July of 2018), Father
quickly resumed drinking.

Further information regarding Father’s resumption of
substance abuse was provided by the Robinson Rancheria’s ICWA
coordinator, who submitted a declaration as the tribe’s qualified
expert witness. The tribe’s ICWA coordinator opined that
continuing Father’s custody of Son would likely result in serious
emotional or physical damage. In reaching that conclusion, the
ICWA coordinator reported that Mother and Father resumed
drinking almost immediately after L.D.S. was returned to their
care. After Mother admitted as much to the Habematolel Pomos
of Upperlake (where Father was enrolled and had housing), the
tribal council recommended Mother and Father address their
substance abuse in residential treatment while others cared for
the children. Father initially agreed but then recanted after one
month. As a result, he and the children were evicted from
housing on the Habematolel Pomo reservation and disenrolled
from the tribe.

E.
At the contested disposition hearing, the social worker
testified that Father successfully completed court-ordered
substance abuse treatment in 2018, but that he resisted that
treatment by continuing to use alcohol after L.D.S.’s dependency
case was dismissed. However, the social worker also
acknowledged that between dismissal of the prior dependency
case and May 2022 (when Son’s petition was filed), no court had
ordered Father to complete another substance abuse treatment
program.

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 The ICWA coordinator for Robinson Rancheria also
testified that Mother and Father were asked to leave that tribe’s
reservation not long after L.D.S.’s dependency was dismissed,
due to complaints about their alcohol use, noise, and domestic
violence. The ICWA coordinator further stated that Father was
disenrolled from his own tribe for similar behavior. During that
same time frame, the coordinator herself observed empty bottles
of alcohol in and around Mother and Father’s residences.

Father testified that he wanted the opportunity to engage
in reunification services so that he could reunify with Son.

F.

Father’s counsel (joined by Son’s counsel) opposed the
Department’s recommendation to bypass reunification services.
Father argued that the Department failed to meet its burden to
show, by clear and convincing evidence, that Father actively
resisted court-ordered substance abuse treatment within the
requisite three-year period (see § 361.5, subd. (b)(13); In re B.E.
(2020) 46 Cal.App.5th 932 (B.E.)). Father’s counsel also argued
that section 361.5, subdivision (b)(13) did not apply because there
had been no court-ordered treatment within three years before
the filing of Son’s dependency petition.

The juvenile court found Father has a history of chronic
alcohol use; that Father actively resisted alcohol treatment; and
that reunification services were not in Son’s best interest. The
juvenile court observed, “[W]e’re not talking about a slip-up.
We’re talking about chronic, everyday . . . situations that are
open and notorious to the community.”

The court adjudged Son a dependent, found that he was an
Indian child, and that Father’s continued custody was likely to
result in serious emotional or physical damage. The court further
found that active efforts were made to eliminate the need for
removal but were unsuccessful, ordered Son removed from

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Father’s custody, bypassed reunification services, and set a
section 366.26 hearing for February 14, 2023.

DISCUSSION

A.

Father argues that the juvenile court’s finding that he
actively resisted court-ordered substance abuse treatment is not
supported by substantial evidence and is in conflict with B.E.,
supra, 46 Cal.App.5th 932. We disagree.

1.

When a dependency petition is sustained and the children
are detained, the juvenile court is generally required to order the
provision of reunification services to the parent. (§ 361.5, subd.
(a).) However, services may be bypassed under certain
circumstances when reunification efforts are likely to be futile.
(In re I.A. (2019) 40 Cal.App.5th 19, 23.) The same rule applies
in ICWA cases. (In re K.B. (2009) 173 Cal.App.4th 1275, 1283-
1284, 1287-1288; Letitia V. v. Superior Court (2000) 81
Cal.App.4th 1009, 1016.)

Section 361.5, subdivision (b)(13), provides (in relevant
part) that a court “need not” provide reunification services when
it finds, by clear and convincing evidence, that a 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 that child to the court’s attention.”

B.E. held that, in using the term “ ‘resisted’ ,” the
Legislature meant active resistance, not passive resistance.
(B.E., supra, 46 Cal.App.5th at p. 941.) In doing so, the court
extensively criticized a line of cases (including its own prior
decision in In re William B. (2008) 163 Cal.App.4th 1220
(William B.)), which allowed for denial of reunification of services

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after only passive resistance—in other words, one significant
relapse—even if the parent had benefited from services in the
past. (B.E., at pp. 935, 939-941, 944.)

Because the Legislature intended the bypass provision to
apply to “parents who refuse to participate meaningfully in a
court-ordered drug treatment program, not parents who slip up
on their road to recovery” (B.E., supra, 46 Cal.App.5th at pp. 934-
935), B.E. held that juvenile courts should focus on whether a
parent has actively demonstrated an unwillingness to change.
(Id., at p. 942.) The court reasoned that its interpretation of the
“resisted” term was consistent with the statute’s plain language,
as well as the concept of futility (underlying the other bypass
provisions): “It is decidedly not fruitless to offer services to a
parent who genuinely made an effort to achieve sobriety but
slipped up on the road to recovery. On the other hand, where a
parent has recently actively resisted a court-ordered drug
treatment program—i.e., demonstrated an unwillingness to
commit to sobriety—it becomes more apparent that trying the
same approach so soon is unlikely to work.” (Id. at pp. 941-942,
some italics added.)

The Legislature amended the statute (effective January 1,
2022), to explicitly adopt the B.E. court’s interpretation of
“resisted.” (See § 361.5, subd. (b)(13), as amended by Stats. 2021,
ch. 585, § 2.5.) Accordingly, section 361.5, subdivision (b)(13),
now also states: “For purposes of this paragraph, ‘resisted’ means
the parent or guardian refused to participate meaningfully in a
prior court-ordered drug or alcohol treatment program and does
not include ‘passive resistance,’ as described in [B.E., supra,] 46
Cal.App.5th 932.” (§ 361.5, subd. (b)(13), italics added.)

We review the trial court’s findings under section 361.5,
subdivision (b), for substantial evidence. (In re G.L. (2014) 222
Cal.App.4th 1153, 1164.) In reviewing a finding that a fact has
been proved by clear and convincing evidence, the question on

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appeal is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable the fact was true. (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1009.)

2.

Father concedes that he has the sort of extensive history of
substance abuse that satisfies the first condition of section 361.5,
subdivision (b)(13). And it is undisputed that we must adopt the
B.E. court’s definition of “resisted” now that the Legislature has
explicitly integrated it into section 361.5, subdivision (b)(13). The
only question is whether the Department presented substantial
evidence from which a reasonable fact finder could have found it
highly probable that Father, within the relevant three-year
period, refused to participate meaningfully in a court-ordered
substance abuse treatment program or demonstrated an
unwillingness to commit to sobriety. (§ 361.5, subd. (b)(13); B.E.,
supra, 46 Cal.App.5th 932.)

Father contends that, after his successful completion of
treatment in 2018, “[a]ny subsequent use of alcohol or breaks in
[his] sobriety” should be considered a mere relapse under B.E.
The Department contends that B.E. is distinguishable. The
Department has the better argument.

In B.E., the parents had their children removed on three
separate occasions and successfully reunified in the first two
dependency cases. At the time the children were detained for the
third time, the parents had relapsed briefly but repeatedly, had
been sober for periods of years while participating in the prior
two cases’ reunification services, and voluntarily enrolled
themselves in residential drug treatment before child welfare
services became involved. Before the disposition hearing, they
both participated in all of the services recommended by the social
worker. (B.E., supra, 46 Cal.App.5th at pp. 935-937, 945.) Under
those circumstances, the court of appeal affirmed the juvenile
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court’s finding that the parents did not “resist” treatment, they
simply relapsed. (Id. at p. 945.)

Here, in contrast, the evidence shows Father was sober for
only 10 months during the prior dependency. More importantly,
the juvenile court found that Father did more than relapse—he
actively resisted substance abuse treatment (within the requisite
three-year period). That finding is supported by the
Department’s evidence that Father and Mother resumed
regularly drinking alcohol not long after the earlier dependency
case was dismissed and continued to do so even after repeated
interventions (including losing housing and the custody of their
children) by their tribes.

Father’s subsequent behavior (after the filing of Son’s
dependency petition) provides further support for the juvenile
court’s finding that he actively resisted treatment after dismissal
of L.D.S.’s dependency case. Father admitted being an alcoholic
but also told the social worker that “he likes to drink, [but] it has
never been a problem.” And, within two months of Son’s
detention, Father was arrested for driving under the influence,
with a blood-alcohol level of 0.24 percent.

Father also made only minimal efforts to either visit Son or
drug test after Son’s detention. Although the Department offered
Father significant pre-disposition services (including providing
him with a phone, supervising twice weekly visitation,
conducting twice weekly drug testing, and referring him to
substance abuse treatment services at Lake County Tribal
Health Consortium), Father had made only minimal efforts to
engage. He only visited Son three times in the four months that
had passed between Father’s first contact with the social worker
and the disposition hearing. He also only drug tested once; the
test was positive for alcohol.

A reasonable fact finder could find it highly probable that
Father’s behavior (within the three-year period before Son’s
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dependency petition was filed) demonstrated an unwillingness to
commit to sobriety. (See B.E., supra, 46 Cal.App.5th at pp. 942-
943 [a parent who merely “ ‘go[es] through the motions’ of
treatment with the aim of achieving reunification and then
immediately resum[es] a drug habit” is actively resisting
treatment].) A reasonable fact finder might alternatively find
that Father’s behavior (within the relevant three-year period)
constituted mere relapse. But it is not our role to reweigh
conflicting evidence and substitute our judgment for that of the
juvenile court if it is supported by substantial evidence. (In re
Stephanie M. (1994) 7 Cal.4th 295, 319.)

Father also suggests that section 361.5, subdivision (b)(13),
has no application to him because he completed court-ordered
treatment more than three years before the date Son’s
dependency petition was filed. Father is wrong.

The first prong of section 361.5, subdivision (b)(13)’s second
condition does not require proof that the prior treatment occurred
during the three-year period. It requires proof that the resistance
to such treatment occurred within the three years preceding the
filing of the current petition. (Laura B. v. Superior Court (1998)
68 Cal.App.4th 776, 780; accord, William B., supra, 163
Cal.App.4th at p. 1230.) The Legislature has superseded Laura
B. and William B. to the extent they suggest mere relapse
constitutes resistance to court-ordered substance abuse
treatment. (See § 361.5, subd. (b)(13), as amended by Stats.
2021, ch. 585, § 2.5; B.E., supra, 46 Cal.App.5th at pp. 935, 939-
941, 944.) However, we are not persuaded that there has been
any change in the rule that the social services agency is only
required to prove resistance (not court-ordered treatment) during
the three-year period.

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 B.

Father also maintains that the juvenile court abused its
discretion in finding reunification would not be in Son’s best
interests. We disagree.

1.

The court “shall not” order reunification for a parent
described by section 361.5, subdivision (b)(13), unless the court
finds, by clear and convincing evidence, that reunification is in
the child’s best interest. (§ 361.5, subd. (c)(2).) The parent bears
the burden to prove reunification services would be in the best
interests of the child. (William B., supra, 163 Cal.App.4th at p.
1227, superseded by statute on other grounds.) Accordingly,
there is a legislative presumption that offering services would be
an “ ‘unwise use of governmental resources.’ ” (Ibid.)

The “best interest” concept is not rigidly defined. It aims
“ ‘ “to maximize a child’s opportunity to develop into a stable,
well-adjusted adult.” ’ ” (William B., supra, 163 Cal.App.4th at p.
1227.) Relevant factors include the parent’s history, his current
efforts and fitness, the gravity of the problem that led to the
dependency, the strength of the bonds between the child and his
parent and current caretaker, and the child’s need for stability
and continuity. (In re G.L., supra, 222 Cal.App.4th at p. 1164;
William B., at p. 1228.) There must also be “some ‘reasonable
basis to conclude’ that reunification is possible” before services
are offered on a discretionary basis. (William B., at pp. 1228–
1229.)

We review a juvenile court’s best interests determination,
under section 361.5, subdivision (c)(2), for abuse of discretion. (In
re A.E. (2019) 38 Cal.App.5th 1124, 1140-1141.)

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 2.

Father contends the juvenile court abused its discretion
because he successfully reunified with L.D.S. in the earlier
dependency and because Father told a social worker, in advance
of the disposition hearing, that he would do “whatever is
necessary to get [Son] back.”

Father admits that he is an alcoholic but continues to deny,
despite all the obvious evidence to the contrary, that his
alcoholism presents any problem with respect to his parenting.
Furthermore, Father has largely failed to engage with the social
worker, drug test, or visit Son in the months between detention
and the disposition hearing. Father’s continued denial and
failure to take responsibility (despite already having completed
substance abuse treatment) demonstrates that further
reunification services have little chance of success.

Son is a young child, with strong needs for permanence and
stability. Given the record of Father’s limited visitation with
Son, their bond does not appear to be especially strong. On this
record, Father fails to demonstrate that the juvenile court abused
its discretion.

C.

Father also challenges the juvenile court’s consideration of
the qualified expert witness declaration submitted by the ICWA
coordinator, contending it was inadmissible. We need not
consider his argument because he forfeited it—by failing to raise
an objection to the declaration below. (See In re S.B. (2004) 32
Cal.4th 1287, 1293, fn. omitted [“a reviewing court ordinarily will
not consider a challenge to a ruling if an objection could have
been but was not made in the trial court”], superseded by statute
on another ground as stated in In re S.J. (2008) 167 Cal.App.4th
953, 962.)

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 Although Father unsuccessfully objected to a portion of the
ICWA coordinator’s live testimony at the disposition hearing (on
foundation and hearsay grounds), he did not preserve any
objection to the court’s consideration of her expert witness
declaration. In fact, the record shows that Father stipulated that
the ICWA coordinator met the requisite expert witness
qualifications and that the juvenile court could accept her
declaration in lieu of her testimony.

DISPOSITION

Father’s writ petition is denied on the merits. His request
for a stay is also denied. Because the section 366.26 hearing is
set for February 14, 2023, our decision is final as to this court
immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

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 ______________________
BURNS, J.

We concur:

____________________________
JACKSON, P.J.

____________________________
SIMONS, J.

A166417

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