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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

S. S., SR.,

Petitioner,

v.

THE SUPERIOR COURT OF LAKE 

COUNTY,

Respondent;

LAKE COUNTY DEPARTMENT OF 

SOCIAL SERVICES, et al.,

 Real Parties in Interest. 

 A166417

 (Lake County

 Super. Ct. No. JV320646)

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, 

1 Undesignated statutory references are to the Welfare and 

Institutions Code. 
2

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 courtordered 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