California Family Law Report

Case of the Month Archive

Smoking addiction need not be cured but Mom must make more than “lackadaisical or half-hearted efforts” to quit . . .

In writ proceeding, Third District finds that juvenile court did not err by refusing to order reunification services for parent who refused to stop smoking and failed to acknowledge danger posed by child’s sex-offender father

In 2009, K.C.’s newborn child was removed from her custody after testing positive for nicotine. The Trinity County Health and Human Services Agency (HHSA) filed a dependency petition on the baby’s behalf, alleging that K.C. had a history of addiction to and abuse of nicotine and had already had other children removed from her care; the agency reported that K.C. had her parental rights to those children terminated partly because one of them showed signs of experiencing withdrawal from nicotine and caffeine after birth and K.C. had resisted all efforts to get her to stop smoking. In addition, HHSA claimed that this baby was at risk of sexual abuse by the father, who had been convicted of violating PC §288 [unlawful sex with minor] in a case involving a five-year-old child, because K.C. failed to acknowledge the danger that he posed. In reports submitted in relation to the proceedings, HHSA stated that K.C. continued to minimize the importance of her smoking habit and its effects on her baby. K.C. claimed to have reduced the number of hand-rolled cigarettes she smoked each day and to have switched to organic tobacco. The report noted that when K.C. was asked to participate in alcohol and drug counseling to deal with her smoking addiction, she failed to attend. It also mentioned that the father’s probation officer did not consider K.C. to be a suitable adult to supervise his visits with the children because of her history of neglecting the kids and her own experience in being molested in childhood. The report further stated that despite years of therapy and parenting services, K.C. remained unmotivated to change and continued to neglect her kids while she pursued her smoking habit. Meanwhile, HHSA said it continued to monitor the baby for signs of developmental delay due to nicotine exposure, but had found none to date.

At the jurisdictional hearing, an HHSA social worker testified that K.C.’s teeth and fingers were always stained from smoking and her smoking was related to her lack of supervision and neglect of the children to which she lost parental rights. The social worker said that in that case, K.C. had been in complete denial regarding her smoking problem and frequently left one of the children, an infant, unattended and in distress while she went outside to smoke. That, the social worker stated, caused the children to suffer from reactive attachment disorder since K.C.’s dependence on nicotine and caffeine seemed to “ta[ke] precedence over child care.” K.C. testified that after she learned she was pregnant with this child, she cut down on her cigarette consumption and reduced the size of the hand-rolled cigarettes she smoked; she also used a stop-smoking aid, but had relapsed. K.C. also stated that she recognized that the child’s father was a convicted sex offender and was taking a class to learn how to protect the kids. The juvenile court sustained the petition based on clear evidence of K.C.’s smoking habit and refusal to deal with it.

At the disposition hearing, K.C. admitted that she’d considered terminating her pregnancy when she found out she was pregnant with this child; she feared losing another child in a dependency action. As to attending group therapy for addiction, K.C. stated that the participants in that program would laugh at her for seeking treatment for a smoking addiction in that setting. However, she claimed to have attended a women’s therapy group to get help in coping with stress. The juvenile court then determined that the provisions of W&I C §361.5(b)(10) and (11), which permit the juvenile court to deny reunification services if a parent fails to make reasonable efforts to address the problem that led to the children’s removal, applied to K.C. Concluding that her refusal to enter treatment for nicotine and caffeine addictions were evidence that she was unwilling to comply with services if they were offered, the court denied reunification services and scheduled a W&I C §366.26 permanency planning hearing.

K.C. petitioned the Third District for a writ of mandate and a stay of the dependency proceedings, but the justices denied her petition and vacated their stay.

Where there’s smoke . . .
K.C. contended that the juvenile court should not have applied §361.5(b)(10) and (11) to her because she made reasonable efforts to rectify the problem that caused her child to be removed from her care. A majority of the justices explained that under those statutory provisions, the lower court could refer back to the case involving her other children to see whether reunification services had been terminated because she failed to reunify with them and then consider whether she had made reasonable efforts to address the problem since then. Here, those justices continued, the problems that led to the removal of the kids in the prior case were the same as those that led to the baby’s removal in this case: K.C.’s neglect and lack of concern for their welfare because of her extreme dependence on nicotine. The two justices noted that the reasonable efforts required by the statute do not include a cure of the problem, but they must be more than “ ‘lackadaisical or half-hearted’ ” (quoting In re Cheryl P. (2006) 139 Cal.App.4th 87, 42 Cal.Rptr.3d 504). When they reviewed the record regarding the efforts that K.C. had made, the justices saw that she’d been provided with a wide range of services, including psychological evaluation, in connection with the removal of her other children, but she’d refused to accept responsibility for her actions or their affects on her children. When HHSA attempted an early intervention in this case, K.C. continued to deny her addiction, or her need for services. In addition, the two justices noted, she failed to adequately acknowledge the risk of harm that the children’s father’s sex-offender status posed to them, showing a continued pattern of putting her needs above those of her children. She absolutely refused to attend any programs designed to combat her smoking addiction and her attendance at a class in keeping her kids safe from sex offenders was spotty at best. Instead of making progress, the two justices concluded, K.C. had actually made the problems worse. Accordingly, the panel concluded, the juvenile court did not err by denying reunification services for K.C.