There’s Resistance and Then There’s Fruitless

Mother [M] and Father [F] originally came to the attention of the Orange County Social Services Agency [SSA] in 2013 when they were arrested for possession of heroin and methamphetamine.  Their two children were removed from the home and the parents began court-ordered reunification plans including drug treatment programs.  For the next five years M and F would sober up, relapse and go through reunification services, including drug treatment programs, and then relapse again.  During this time, they also had a third child.

By 2019, SSA asked the court to deny reunification services because the parents were resisting reunification efforts.

Under California’s Welfare and Institutions Code section 361.5, subdivision (b)(13), courts are allowed to bypass reunification services to parents if they have “a history of extensive, abusive, and chronic use of drugs or alcohol and [have] resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . .” (emphasis added)

The trial court stated, “First, in this case regarding active resistance, there is nothing present here that the parents are refusing to participate.  Regarding passive resistance, while the parents have considerable problems, the court does not find that the issues that these parents are presently pervasive or resistant… or that offering services . . . have gotten to the point of becoming fruitless.” 

The court further stated, “What struck this court mostly is when the parents did relapse, they instituted their safety plan, and they did what they were instructed to do.  They placed their children with the caretakers, they got into rehab.”  Then the court made some credibility observations against the parents, but granted reunification services again stating: “I’m not going to allow these children to wallow in dependency court until these parents figure out their issues.  If you don’t figure it out quickly, this is going to be a very short-lived reunification plan.”  SSA and minor’s counsel appealed.

The Appellate Court upheld the trial court’s finding for reunification services.

“The focus is on a parent’s demonstrated unwillingness to change.  The legislative calculation is not simply that the parent did it before and so is likely to do it again.  Our interpretation is consistent with that approach:  resistance amounts to a demonstrated unwillingness to change…

“…Here, both parents enjoyed lengthy periods of sobriety while participating in reunification services in prior cases.  And both parents have demonstrated a willingness to participate in further drug treatment programs.  Under these circumstances, the parents cannot be said to have resisted treatment.  Accordingly, the court did not err in offering them reunification services.

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