Opinion
E074775
04-29-2020
D.P., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Friedman and Cazares and Kelsey Yoro-Bacay for Petitioner. Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J283006) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Petition denied. Friedman and Cazares and Kelsey Yoro-Bacay for Petitioner. Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County Counsel, for Real Party in Interest.
The juvenile court removed L.P. (minor) from petitioner, D.P. (father); denied father reunification services pursuant to the bypass provision of Welfare and Institutions Code section 361.5, subdivision (b)(10) (reunification services terminated as to another minor); and set the section 366.26 hearing. In this petition, father contends the juvenile court erred in admitting records from Solano County to support the application of the bypass provision, and that insufficient evidence supports the court's order denying him reunification services. The petition is denied.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
Minor came to the attention of real party in interest, San Bernardino County Children and Family Services (CFS), in August 2019, with expressions of concern for minor's safety in mother's care. Mother admitted using methamphetamine early in her pregnancy but asserted that she had stopped using in her first trimester. Mother tested negatively for controlled substances at minor's birth. Minor was not tested. Mother had "very little prenatal care." Parents were homeless; they had recently moved in with a friend.
Mother is not a party to this petition. --------
Mother's parental rights as to several of minor's half siblings had been terminated due to substance abuse, domestic violence, and mental illness. Father's reunification services had purportedly been terminated as to one of minor's half siblings due to unresolved concerns of domestic violence and substance abuse.
When contacted on September 4, 2019, at the hotel which father had obtained through homeless assistance, father indicated he had not obtained medical insurance for minor; thus, minor had had no medical checkups since birth. The social worker recommended father speak with a Medi-Cal worker when obtaining assistance to procure insurance for minor.
The social worker asked father to drug test; father said that if he did, he would test positively for marijuana. The social worker provided him with a list of drug test sites, but father failed to show for testing. The social worker later met father and asked him to test again; he said he was in pain and could not go; the social worker offered him a ride, which father refused.
Over the course of two months, the social worker had difficulty contacting parents as they continually moved without providing their new addresses. Eventually, the social worker obtained information that parents were staying together with minor. The social worker contacted them at that address; mother opened the door and then closed it on the social worker. Parents refused to speak with the social worker.
The social worker obtained a warrant to take minor into protective custody. Police accompanied the social worker upon service of the warrant; officers placed father under arrest on an active warrant for failure to appear in court on drug charges. Mother informed the social worker that minor had still not seen a doctor since birth.
CFS personnel filed a juvenile dependency petition alleging that mother had a history of substance abuse (b-1); father suffered from substance abuse (b-2); mother had been involved in acts of domestic violence (b-3); father had been involved in acts of domestic violence (b-4); mother's reunification services and parental rights to minor's half siblings had been terminated due to substance abuse, domestic violence, and mental illness (j-5); and that father's reunification services had been terminated as to one of minor's half siblings (j-6). Neither parent appeared at the detention hearing on November 5, 2019. The court detained minor.
In the jurisdiction and disposition report filed November 21, 2019, the social worker recommended the court sustain the allegations, remove minor from parents' custody, and not provide reunification services to parents pursuant to the bypass provisions of section 361.5, subdivision (b)(10) and (b)(13). The social worker met father while he was still in custody on November 8, 2019. Father denied any drug use or domestic violence. Father admitted mother was using methamphetamine. Father had been arrested on November 3, 2019, for criminal threats and possession of a controlled substance. Father admitted selling methamphetamine in 2016 but denied using it. Father's criminal record reflected numerous offenses including bringing a controlled substance into jail, possession of methamphetamine, and being under the influence of a controlled substance. The social worker attached documentation reflecting that mother's parental rights had been terminated as to two of minor's half siblings on October 10, 2018.
Neither parent appeared at the jurisdiction hearing on November 26, 2019. The juvenile court noted that father had been released from custody; mother had never appeared in the case. The court found all allegations true except the b-4 allegation, which it found not true.
On December 6, 2019, father's counsel filed a motion seeking to set aside the jurisdictional findings. Father alleged he had been told he could appear at the jurisdictional hearing via video conference. He asserted he had arrived at CFS' offices to appear and waited until 10:00 a.m. Counsel claimed he was never informed that father would be appearing by video conference. On December 11, 2019, father's counsel filed a motion for continuance of the disposition hearing.
At the hearing on December 17, 2019, mother made her first appearance. The court denied father's motion to set aside the jurisdictional findings but granted his motion to continue the disposition hearing.
In the information for the court filed January 9, 2020, the social worker noted that parents had yet to visit minor. Father had failed to drug test on October 30, November 21, December 2, and December 16, 2019. Documents requested from Sacramento County Child Protective Services regarding minor's half sibling, I.P., father's son, had yet to be received.
At the hearing on January 15, 2020, counsel for CFS requested a continuance to obtain "minute orders from Sacramento regarding Father's other child in his previous case. I think that would show that he was provided reunification services and those services were terminated and provide a basis for bypass, so we'd like to get those documents for the Court." The court granted the continuance. On January 30, 2020, the social worker filed additional information for the court with attached records of the juvenile dependency proceeding pertaining to father's other child as well as father's arrest records from November 2, 2019.
At the dispositional hearing on February 5, 2020, father's attorney argued there was no evidence before the court showing father's reunification services as to his other child had been terminated. Counsel for CFS responded: "With regards to the Father, it is a little more complicated, your Honor. I don't believe that the Court having a minute order is required. But I think based on the documents that the Court has from Sacramento County and from Solano County taken together demonstrate Father's reunification services were terminated and they were for the same basis that the petition was filed today." "In Solano County—the report that was provided today [sic], on page 5 in the legal history section, it indicates that FR services were terminated for the father on 7/31/2009."
The court observed, "I feel that the documents provided provide enough evidence to demonstrate that Father's services were terminated and that the same issues continue as from the previous dependency, so I will adopt the findings." The court applied the bypass provisions to both parents, removed minor from their custody, denied parents reunification services, and set the section 366.26 hearing.
II. DISCUSSION
A. Admission of Solano County Records.
Father contends the court erred in admitting records from Solano County into evidence pursuant to Evidence Code section 1521, subdivision (a). Father maintains that admission of the evidence from Solano County was improper to prove father's reunification services had been terminated because "a certified minute order is necessary to determine the actual orders of the Court." We disagree.
The secondary evidence rule provides that the "court shall exclude secondary evidence of the content of writing if the court determines . . . : [¶] (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion." (Evid. Code § 1521, subd. (a)(1).) "The secondary evidence rule permits the introduction of '"otherwise admissible secondary evidence" to prove the contents of a writing.' [Citation.] 'It does not excuse the proponent [of the evidence] from complying with other rules of evidence, most notably the hearsay rule.' [Citations.] A writing that passes muster under the secondary evidence rule is not necessarily admissible. The writing 'still may be inadmissible because of other exclusionary rules of evidence, such as hearsay, opinion, privilege, or irrelevancy.'" (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 994-995.)
"'At the . . . dispositional phase, any relevant evidence including hearsay shall be admitted . . . to help the court determine the child's best interests.'" (In re Madison T. (2013) 213 Cal.App.4th 1506, 1509.) Failure to object to the admission of evidence below forfeits any contention on appeal that the evidence was improperly admitted. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) "Enacted in 1998 . . . the secondary evidence rule replaced the best evidence rule, which was repealed. 'Under the secondary evidence rule, the content of a writing may now be proved either "by an otherwise admissible original" . . . or by "otherwise admissible secondary evidence."'" (People v. Landry (2016) 2 Cal.5th 52, 86.)
"We review the evidentiary rulings of the juvenile court for abuse of discretion, and will not disturb those rulings in the absence of a showing of a manifest abuse of that discretion." (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249.) "'"'If any suspicion hangs over the instrument, or that it is designedly withheld, a rigid inquiry should be made into the reasons for its non-production. But where there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original—in fact, courts in such cases are extremely liberal.'" [Citation.] Questions whether the search was sufficient in scope and was conducted in good faith are addressed to the discretion of the trial court, and will not be disturbed on appeal absent abuse of discretion.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1013.)
First, father never objected to the admission of the Solano County report below. Thus, father has forfeited the issue.
Second, even assuming father did not forfeit the issue, father fails to identify any basis for the exclusion of the Solano County report other than that, in his opinion, a certified minute order reflecting the order terminating father's reunification services would have been the best evidence of such an order. Of course, the best evidence rule no longer exists. (People v. Landry (2016) 2 Cal.5th 52, 86; see People v. Westerfield (2019) 6 Cal.5th 632, 693, 696.) Even hearsay evidence contained in reports is admissible at the dispositional phase in juvenile dependency matters. (In re Vincent G. (2008) 162 Cal.App.4th 238, 243; In re M.B. (2011) 201 Cal.App.4th 1057, 1070-1071.)
Here, there is no identifiable suspicion over the veracity of the Solano County report or its contents. Moreover, CFS personnel appear to have made good faith efforts to obtain the minute orders reflecting the termination of father's previous reunification services; they twice indicated they were attempting to obtain those records, even requesting a continuance to do so. Thus, the court acted within its discretion in admitting the Solano County report.
B. Sufficiency of the Evidence.
Father contends insufficient evidence supports the juvenile court's determination to deny him reunification services pursuant to section 361.5, subdivision (b)(10). We disagree.
"Section 361.5, subdivision (b), states that '[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . and that parent . . . has not subsequently made a reasonable effort to treat the problems that led to [the] removal of the sibling . . . .'" (In re B.H. (2016) 243 Cal.App.4th 729, 735-736.) "'When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be "'an unwise use of governmental resources.'"'" (Id. at p. 736.)
"Section 361.5, subdivision (b)(10), contemplates a two-prong inquiry: (1) whether the parent previously failed to reunify with the child's sibling or half sibling; and (2) whether the parent 'subsequently made a reasonable effort to treat the problems that led to [the] removal of the sibling or half sibling.'" (In re B.H., supra, 243 Cal.App.4th at p. 736.) "'We do not read the 'reasonable effort' language in the bypass provisions to mean that any effort by a parent, even if clearly genuine, to address the problems leading to [the] removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made. [¶] Simply stated, although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court's determination of whether an effort qualifies as reasonable.'" (In re D.H. (2014) 230 Cal.App.4th 807, 816.)
"[T]he court [also] retains authority to order services if it finds by clear and convincing evidence they would be in the children's best interests. [Citation.] In making its determination, the court may consider the 'failure of the parent to respond to previous services.'" (In re Lana S. (2012) 207 Cal.App.4th 94, 109.) The parent "has the burden of proving [his or] her children would benefit from the provision of court-ordered services." (Ibid.)
"'The standard of review of a dispositional order on appeal is the substantial evidence test, "bearing in mind the heightened burden of proof."'" (In re Madison S. (2017) 15 Cal.App.5th 308, 325.) "[O]nly one valid ground is necessary to support a juvenile court's decision to bypass a parent for reunification services . . . ." (Id. at p. 324; see In re Lana S., supra, 207 Cal.App.4th at p. 108 [evidence of parent's lengthy history of drug abuse sufficient to deny parent reunification services].)
Here, sufficient evidence supports the court's determination that father's other child had been removed, at least in part, due to drug abuse issues; that father's reunification services as to that child had been terminated; and that father had failed to make a reasonable effort to treat the problems that had led to the removal of that child. CFS personnel did not provide the court with the minute order reflecting that father's reunification services as to minor's half sibling had been terminated. Nonetheless, CFS personnel provided numerous documents which, when considered together, reflect that father's reunification services as to minor's half sibling had been terminated due, at least in part, to father's drug problems.
Attached to the disposition report is the juvenile dependency petition filed in Sacramento County, dated November 5, 2008, as to father's other child, which alleged various allegations against the mother. The jurisdiction and disposition report from that case, dated January 23, 2009, reflected that the mother alleged father had sold methamphetamine and cocaine while living with her and the child in June 2005; she said he used methamphetamine twice weekly. Father admitted using marijuana since the age of 15; he had admitted using as recently as January 12, 2009. The social worker recommended against placement of the child with father due, in part, to father's drug use. The social worker recommended reunification services be provided to father.
On February 13, 2009, the court, adopting the findings and orders originally attached to the jurisdiction and disposition report, removed father's other child from his custody and ordered reunification services to include participation in counseling to address drug abuse issues. In a status review report filed February 3, 2010, in Solano County, to which the case was transferred, the social worker noted that father's reunification services had been terminated on July 31, 2009. The social worker also observed that father's then whereabouts were unknown. Thus, the records established the first prong requisite in applying the section 361.5, subdivision (b)(10) bypass provision, both that father's other child had been removed from his custody due, in part, to drug abuse issues and that father's reunification services as to that child were later terminated.
Sufficient evidence also supports the court's finding on the second prong of the bypass provision. Here, father admitted selling methamphetamine in 2016. Father faced several criminal charges reflecting controlled substance issues after his reunification services had been terminated. When the social worker initially asked father to drug test, he said that if he did, he would test positively for marijuana. The social worker provided him with a list of drug test sites, but father failed to show for testing. The social worker later met father and asked him to test again; he refused. Father failed to drug test on October 30, November 21, December 2, and December 16, 2019. On the date the social worker took minor into custody, father was arrested on an active warrant for failure to appear in court on a drug charge. Thus, substantial evidence supported the juvenile court's finding that father failed make reasonable efforts to treat the problems that led to the removal of minor's half sibling. Therefore, substantial evidence supports the juvenile court's denial of reunification services to father pursuant to the bypass provision of section 361.5, subdivision (b)(10).
III. DISPOSITION
The petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: FIELDS
J. MENETREZ
J.