Opinion
A147352
09-19-2016
In re J.D., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. P.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J15-00955)
P.D. (Father) appeals an order of the juvenile court denying him reunification services with J.D. (Minor). He contends the evidence is insufficient to support the finding that he had been convicted of a violent felony. We shall affirm the order.
I. BACKGROUND
The Contra Costa County Children and Family Services Bureau (the Department) filed a petition pursuant to Welfare and Institutions Code section 300 on September 15, 2015, alleging Minor's mother, K.J. (Mother) had engaged in domestic violence with her partner and that she had placed Minor at risk of harm by driving the wrong way through an apartment complex while Minor was in her vehicle. Father's address, as listed in the petition, was in a state prison. The detention/jurisdiction report noted that Mother had told the social worker Father was currently incarcerated for a rape conviction.
All undesignated statutory references are to the Welfare and Institutions Code.
The report also noted that Minor's maternal grandmother (Grandmother) had expressed the wish to have Minor in her care. When the social worker carried out a criminal background check on Grandmother's son, who lived with her, the information provided by the Department of Justice (DOJ) showed he had felony convictions related to narcotics and spousal battery. Grandmother insisted that the information provided by the DOJ was incorrect and that her son, who was on the autism spectrum, had never been arrested.
Minor was detained and ordered placed in a licensed foster home. Mother pled no contest to the allegations of the petition, and the trial court found Minor was a dependent child. Minor was later placed in Grandmother's home.
The Department prepared a disposition report dated November 12, 2015, which stated: "the Department of Justice was able to provide minimal criminal history over the phone for [Father]. A full criminal history will be mailed however; it had not been received at the time of the writing of this report. [Father] has an entry on his record from August 1, 2013, for rape with a victim unable to give consent, oral copulation, and sodomy with a person under fourteen-years old or by force. There was also an entry from August 21, 2015, for rape with force. It is a felony conviction with a six-year prison term. [Father] is required to register as a sex offender."
Father was transported from state prison to local custody, and appeared in person, with counsel, at the November 16, 2015 dispositional hearing. At the hearing, he asked to be granted presumed father status. His counsel told the juvenile court Father was present at Minor's birth, he held her out as his own, he lived with her for about eight months, and he provided financial support to the best of his ability. He had last seen Minor approximately two years before the hearing. The court granted Father's request for presumed father status. The court continued the dispositional hearing until January 4, 2016, noting as it did so that Father was in state prison for rape and was required to register as a sex offender and that, as a result, the Department would probably recommend that reunification services be bypassed.
Before the continued dispositional hearing, the Department prepared a report, dated November 23, 2015, recommending that Father not be offered reunification services pursuant to section 361.5, subdivision (b)(12). Although the report did not state that the Department had received Father's full criminal history, it provided more details than had been contained in the earlier disposition report, to wit: "[Father] was convicted in Santa Clara County on August 21, 2015, of [Penal Code section] 264.1 Rape: Force/Fear/ETC which is defined as a 'violent felony' in subdivision (c) of section 667.5 of the Penal Code. [Father] is required to register as a sex offender." The report also noted that the last time Minor saw Father, he absconded with Minor and took her to San Diego. When they were found, Father was arrested on an outstanding warrant for rape.
Father was present at the January 4, 2016, dispositional hearing. His counsel acknowledged that she had received the disposition report and the report addressing whether Father should receive reunification services. Father's counsel stated that Father objected to the recommendation that he be denied reunification services and that she was not going to present any affirmative evidence on Father's behalf. The court ordered reunification services for Mother but denied them to Father, stating, "So therefore the Court will adopt the recommendation that services be bypassed as it relates to [Father] pursuant to Welfare & Institutions Code Section 361.5 subdivision 12, as he has been convicted of rape by fear or force, is required to register as a sex offender and was sentenced to 6 years in state prison." The juvenile court's written findings specified that it found by clear and convincing evidence that Father had been convicted of a violent felony described in Penal Code section 667.5, subdivision (c).
II. DISCUSSION
When the juvenile court has removed a child from a parent's custody, it must generally order reunification services. (§ 361.5, subd. (a).) However, reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, that the parent has been convicted of a violent felony as defined in Penal Code section 667.5, subdivision (c). (§ 361.5, subd. (b)(12).) Among the violent felonies defined in that statutory provision is rape in concert by fear or force in violation of Penal Code section 264.1. (Pen. Code, § 667.5, subd. (c)(18).)
An order denying reunification services will be affirmed on appeal if it is supported by substantial evidence. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) " 'In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence.' [Citation.]" (Id. at pp. 839-840.)
Father's sole contention on appeal is that the statements in the Department's reports are insufficient to support a finding by clear and convincing evidence that he had been convicted of a violent felony. At a dispositional hearing, the juvenile court must receive in evidence and consider the social worker's report. (§ 358, subd. (b); In re Corey A. (1991) 227 Cal.App.3d 339, 347; In re M.B. (2011) 201 Cal.App.4th 1057, 1070.) Father made no objection below to the admission of the reports, and he concedes, as he must, that they were admissible. He argues, however, that they did not provide sufficient evidentiary support for the juvenile court's finding. He contends that hearsay is inherently unreliable (see People v. Ayala (2000) 23 Cal.4th 225, 268), and that the reports themselves relied on hearsay statements from the DOJ. Moreover, Father argues, the information the DOJ had earlier provided about the criminal record of Grandmother's son was inaccurate, and as a result we should view the information about Father's criminal history as also suspect.
We reject this contention. At the time of the dispositional hearing, Father was incarcerated in state prison, and there is no reason to doubt the accuracy of the information provided by the DOJ regarding the crimes of which he had been convicted—information that included both the criminal statute at issue and the date and county of his conviction. (Compare In re Ricardo L. (2003) 109 Cal.App.4th 552, 568-569 [reversing jurisdictional finding in absence of specific facts about parents' noncompliance or failure to learn from services provided in connection with minor's siblings].) This information is consistent with other information in the Department's reports indicating Father had been convicted of rape. Father attended the dispositional hearing and was represented by counsel, who had received the reports, but he made no challenge to the trial court's finding that he had been convicted of rape. He did not seek to cross-examine the social worker, who was also present at the hearing, and he introduced no evidence. There being no evidence to the contrary, the juvenile court could reasonably find by clear and convincing evidence that Father had been convicted of a violent felony.
III. DISPOSITION
The January 4, 2016 order is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.