ORANGE COUNTY SOCIAL SERVICES AGENCY, Plаintiff and Appellant, v. J.E. et al., Defendants and Respondents; B.E. et al., Minors, etc., Appellants.
G058062 (Super. Ct. Nos. 16DP0317A; 16DP0318A; 17DP0664A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
Filed 3/23/20
CERTIFIED FOR PUBLICATION
| In re B.E. et al., Persons Coming Under the Juvenile Court Law. | G058062 (Super. Ct. Nos. 16DP0317A; 16DP0318A; 17DP0664A) ΟΡΙΝΙON |
| ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Appellant, v. J.E. et al., Defendants and Respondents; B.E. et al., Minors, etc., Appellants. |
Appeal from a judgment of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Respondent J.E.
Baron Legal and Brian W. Baron for Defendant and Respondent Ja.E.
Leslie A. Barry, under appointment by the Court of Appeal, for Appellants and Minors.
* * *
We are compelled to break with the line of cases that have interpreted
FACTS
This proceeding concerns three children, ages seven, four, and two.2 Both mother and father have an extensive history of drug abuse, treatments, and relapses, and this is not the first dependency proceeding precipitated by their drug use.
The first was in April 2013. The eldest child was taken into protective custody when the parents were arrested for possession of heroin and methamphetamine. The child was declared a dependent of the court. The parents went through substance abuse treatment and were able to maintain sobriety over a period of three years. They reunified with the child in April 2015.
In March 2016, the eldest and middle child were taken into protective custody (the youngest having not yet been born) when father was found under the influence of illicit drugs and with uncapped needles in the home. Father admitted to police that he had recently completed a 30-day substance abuse program to “get off scripts” but that he had once again “slipped back into scripts.” That same day, mother was found unresponsive in her vehicle due to a possible overdose. She was briefly hosрitalized. The parents were again given reunification services, including substance abuse treatment, and maintained approximately two years of sobriety. They reunified with the children (including the now-born youngest child) in January 2018.
Unfortunately, in 2018 the parents relapsed again. In March 2018, father relapsed for a few days on cocaine. Mother also briefly relapsed. Shortly afterward, in April 2018, both mother and father voluntarily enrolled in a residential drug treatment program (SSA was not involved at this point). Between April 2018 and August 2018, the parents left the children with family friends pursuant to a safety plan the pаrents had developed in the event they were to relapse. Although both parents successfully completed the
On September 7, 2018, a hypodermic needle was found under the sofa in the family home, wrapped in a blanket. The needle was found by a company who moved the sofa in the parents living room to make way for a temporary hospital bed to help father recover from a staph infection. Thе company reported the needle to SSA. Both parents stated the needle was “old.”
The needle prompted an investigation by SSA. Upon inspecting the home, SSA had no concerns, and the house appeared clean, well-organized, adequately furnished, and stocked with ample food. Given the parents’ past history and recent relapses, however, on September 15, 2018, SSA filed a petition to take the children into protective custody.
The next day, father was found nonresponsive due to an overdose of painkillers. He was taken to the hospital. At trial father stated the overdose was due to his staph infection and his use of the pain medications he had been prescribed. Father contends he has been sober since August 2018.
After the children were removed, Mother relapsed on cocaine and heroin. On October 4, 2018, mother entered a four-day detoxification program, then reentered the program for an additional five days. Mother contends she has been sober since that time.
Both mother and father consistently drug tested over the protracted course of the jurisdictional/dispositional hearing, which did not finish up until late July 2019, ten months after the children were removed. Seven of the tests were ambiguous, however, because both parents were prescribed Adderall, which is an amphetamine salt. The lab explained that this result could be caused by Adderall. Aside from the ambiguous results, there were 12 tests that indicated drug use. Mother tested positive for cocaine and heroin in September 2018 (which predates her claimed sobriety date). Both Mother and Father tested positive for methamphetamine in December 2018 in amounts that could not be accounted for by their Adderall prеscription. Mother tested positive for cocaine in January 2019. In April 2019, both parents took a hair follicle drug test through Quest Diagnostics which came back negative for amphetamines, cocaine, marijuana, opiates, and phencyclidine. However, none of the parties called an expert to explain the significance of that test.
The parents were also on a number of prescription medications that consistently turned up in the test results. Mother was prescribed Adderall (amphetamine salts) for attention deficit disorder. She was prescribеd Wellbutrin (anti-depressant), Xanax (anti-anxiety), and Suboxone (to manage cravings for opiates). Father had prescriptions for Suboxone, Adderall, Zolazepam (for sleeping), Xanax, and an inhaler.
At the conclusion of the protracted hearing, the court found the allegations of the petition to be true, but denied SSA‘s request to bypass reunification services. Regarding the
DISCUSSION
Background Principles
As a general rule, when a dependency petition is sustained and the children are detained, the parents are entitled to reunification services. (
However, the Legislature has enumerated 17 exceptions to that rule where reunification services need not be provided. (
The bypass provision at issue here,
The issue in this case concerns the meaning of the word “resisted.” The court found, and the parties do not dispute, that both parents have the sort of extensive history of drug abuse that satisfies the first condition of
On appeal, SSA and minors’ counsel contend the evidence below compelled a finding that the parents have resisted a court-ordered drug trеatment program. They contend the parents’ repeated relapses amount to what has come to be known as passive resistance. Because, as we foreshadowed in the
Development of the Passive Resistance Interpretation
The first case to introduce the concept of passive resistance (though not the term itself) is Randi R., supra, 64 Cal.App.4th 67, an opinion out of this court authored by Justice Sills. There, the mother had been denied reunification services under fоrmer subdivision (10), which applied where the parent had previously failed to reunify with another child, as well as former subdivision (12), which is the former version of what is now
The mother had previously completed two drug-treatment programs and rеlapsed within one year on both occasions. The court concluded, “Thus, while she has technically completed rehabilitation programs, her failure to maintain any kind of long-term sobriety must be considered resistance to treatment.” (Randi R., supra, 64 Cal.App.4th at p. 73.) The court‘s only justification for this interpretation was a reductio ad absurdum argument: “acceptance of [the mother‘s] definition of the term ‘resist’ would narrow the statute to the point of absurdity: A parent could repeatedly go through the motions of rehabilitation just long enough to regain custody of his or her child only to immediately revert to substance abuse and avoid the denial of services. We are convinced the Legislature did not intend to place such a limit on the juvenile court‘s discretion.” (Ibid.)
The cases that followed Randi R. largely accepted its holding without significant analysis. The next case in this line is Laura B. v. Superior Court (1998) 68 Cal.App.4th 776 (Laura B.), which accepted the Randi R. court‘s premise that resistance can be “in the form of resumption of regular drug use after a period of sobriety.” (Laura B., at p. 780.) Perhaps recognizing the potentially harsh results that could follow, Laura B. qualified the rule, noting that a person who relapsed but “immediately resumed treatment” would “not necessarily prove resistance.” There, the mother “did not just fall off the wagon on one or two occasions. She . . . returned to consistent, habitual, semiweekly and then biweekly substance abuse.” (Id. at p. 780.) In that case, the mother had previously reunified with a child and successfully completed a drug treatment program. (Id. at p. 778.) The opinion
In re Levi U. (2000) 78 Cal.App.4th 191 (Levi U.) took the passive resistance interpretation one step further. Citing Randi R. and Laura B., it held that a parent could be deemed to resist simply by failing to volunteer for a drug treatment program. (Levi U., at pp. 199-201.) In other words, a parent could resist treatment even though he or she had never attempted treatment, and never been ordered to treatment. Although In re Levi U. was never overruled directly, it appears to have been implicitly superseded by the 2003 amendment to
The first case to introduce the active/passive resistance distinction was Karen S., supra, 69 Cal.App.4th at page 1008. There, despite having vоluntarily sought out treatment programs, the father “never had a significant period free of substance abuse . . . .” (Id. at p. 1009.) The court concluded the father had resisted treatment “by failing to benefit from treatment for his chronic use of illicit drugs and alcohol.” (Id. at p. 1009.) The court explained, “The common definition of ‘resist’ is either ‘to withstand the force or effect of’ or ‘to exert oneself to counteract or defeat.’ (Webster‘s New Internat. Dict. (3d ed. 1981) p. 1932.) The definition encompasses both active and passive behavior. Thus, a parent can actively resist treatment for drug or alcohоl 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.” (Id. at p. 1010.)
The logical conclusion of this line of cases came in In re William B. (2008) 163 Cal.App.4th 1220, another opinion out of this court authored by Justice Sills. There, the father relapsed over a period of three months (id. at p. 1230) following closure of his children‘s dependency case, and we affirmed a trial court‘s denial of reunification services, finding the father had resisted drug treatment (id. at p. 1231). The result in William B. is
Analysis
We approach this issue by looking first to the language of the statute itself. (John v. Superior Court (2016) 63 Cal.4th 91, 95 [“We consider first the words of a statute, as the most reliable indicator of legislative intent“].) Conspicuously absent from
Moreover, had the Legislature intended to implicitly bypass services for a mere relapse, there would have been no need to include the word “resisted” at all. It could have simply applied a bypass where the parent was ordered to treatment in the past three years and subsequently became the subject of a new case involving drug use. The word “resisted” is surplusage if the Legislature meant to apply a bypass to simple relapse. Thus, for “resisted” to mean anything at all in this context, it must mean something more than relapse. We conclude that what the Legislature meant by “resisted” is active resistance, not passive resistance.
We find support for our interpretation in the surrounding bypass provisions of
Other bypass provisions that support our interpretation are
Counterarguments
How, then, have courts arrived at the conclusion that the Legislature intended passive resistance? We glean two justifications in the caselaw described above. The first is the dictionary approach from Karen S., and the second is the reductio ad absurdum argument from Randi R. We address each in turn.
With regard to the dictionary approach, we acknowledge that, in general, resistance can have both of those meanings—active and passive. The question here, however, is not what resistance means in general, but how the Legislature used it in this particular context. (People v. Scott (2009) 45 Cal.4th 743, 757 [“In construing a statute, we consider the words in context and interpret them in a manner that effectuates the intent of the Legislature“].) And in this context, the passive definition of resistance does not fit the common usage of that term. When a person goes through drug treatment successfully, but then relapses, it is not customary to describe that person as having resisted the treatment. Instead, one might describe thе treatment as having failed, or, more likely, simply say the person relapsed. If a person is described as resisting drug treatment, that conjures to mind a person who either is unwilling to attend at all or unwilling to engage fully while in treatment. Drug treatment is not like an antibiotic. If an antibiotic does not cure a particular disease, the disease can be said to be passively resistant to the antibiotic. Managing addiction, on the other hand, is a process that inherently requires the addict‘s active participation. In that context, resistance means failing to engage meaningfully in the drug treаtment program; i.e., active resistance.
With regard to the reductio ad absurdum argument, the Randi R. court argued, essentially, that unless we treat every significant relapse as resistance,
In addition to the arguments offered in the caselaw, SSA and minors’ counsel have advanced the following argument in favor of the passive resistance interpretation: That Legislative amendments since Randi R. have implicitly ratified that interpretation. (See Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145 [“It is a well-established principle of statutory construction that when the legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesсed in the previous judicial construction‘“].)
We are not persuaded this single amendment, which has little or nothing to do with the Randi R. line of cases, implies legislative approval. As other courts have acknowledged, “legislative inaction is a thin reed from which to divine the intent of the Legislature.” (Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 942; see San Diego County Employees Retirement Assn. v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184 [“it is well established that legislative inaction alone does not necessarily imply legislative apрroval, and at most provides only a ‘weak inference of acquiescence‘“].) As a practical matter, we can imagine many reasons why the Legislature might not have spent its resources and political capital to legislate against the passive resistance interpretation. We are not aware of any public outcry over the Randi R. line of decisions that
The final counterargument goes mostly unspoken, but it is perhaps the most influential: The need to address the parent who repeatedly relapses and seems genuinely hopeless. Why put the children through another six or 12 months of limbo when this parent has already failed multiple timеs and is likely to do so again? This is a genuine concern, and we recognize that the Randi R. line of cases, as well as the position of SSA and minors’ counsel here, are well intended. In the face of an addict‘s repeated failures, it is easy to conclude that the children are better off with other caretakers, and the passive resistance interpretation may seem an attractive shortcut to a better outcome for the children.
The fundamental problem with that approach, however, is that
would target repeat offenders, but not a single relapse. Could we craft a nuanced definition of passive resistance that required some number of relapses—how many, before resistance was established? Or could we charge courts with attempting to prognosticate the future—will the parent successfully achieve sobriety, or not, and refusing services to those parents it predicts will not?
Aside from the practical difficulties inherent in such approaches, the heart of the problem is that crafting those sorts of rules is the purview of the Legislature, not the Judiciary. This is a hard problem, and the Legislature has at its disposal the tools to tackle it: broader fact-finding powers, extensive expert advice, and input from all interested stakeholders. Courts, on the other hand, have a much smaller kit of institutional tools. Moreover, as a matter of the separatiоn of powers, it simply is not our place to craft a complex bypass procedure based on a single word in a statute. Accordingly, if parents experiencing repeated relapses should be bypassed for reunification services, the Legislature must enact that rule, not the courts. We encourage the Legislature to address the issue.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
ARONSON, ACTING P. J.
FYBEL, J.