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Name: In re L.B. (2023) 98 Cal.App.5th 827
Case #: F086109
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/13/2023
Subsequent History: Ordered published 1/9/2024

Active resistance to substance abuse treatment, for purpose of bypass pursuant to section 361.5, subdivision (b)(13), includes the prompt resumption of substance abuse shortly after successful reunification. Parents had a long history of interaction with the Department, including dependency actions in 2011, 2016, and 2020. In 2022, the minors were again removed due to parents’ domestic violence and substance abuse. Both parents began engaging promptly with services. At the disposition hearing, reunification services were ordered for parents, over minors’ counsel’s objection. The juvenile court noted that it did not believe it could bypass the parents under section 361.5, subdivision (b)(13) because the parents were engaging in treatment and thus were not passively resisting treatment. Minors appealed and the reviewing court reversed. Although the case became moot when the minors were returned, the court chose to reach the merits. The Legislature amended section 361.5, subdivision (b)(13) in 2021 to clarify that “resistance to treatment” means a refusal to participate meaningfully in court ordered drug or alcohol treatment and does not include “passive resistance.” A parent who merely goes through the motions of treatment with the aim of achieving reunification and then immediately resumes a drug habit is actively resisting treatment. (In re B.E. (2020) 46 Cal.App.5th 932, 943.) Here, parents had participated in court-ordered substance abuse counseling during their previous dependency case and then promptly resumed their habit of consuming alcohol in excess and engaging in domestic violence. Thus, the juvenile court applied the wrong legal standard when it concluded that it could not bypass the parents and remand is required for a new hearing.

The full opinion is available on the court’s website here: