Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; Jane A. Cardoza, Judge, Super. Ct. Nos. 07CEJ300142-1, 07CEJ300142-2 & 07CEJ300142-3.
Kenneth K. Taniguchi, Public Defender, and Julie Ann Bowler, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested dispositional hearing denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his three minor children. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and Janet are the parents of Emma, Caleb and Elijah, the subjects of this writ petition. Petitioner and Janet have a history of drug abuse and domestic violence. In addition, petitioner has an extensive criminal history, including a conviction in 1990 for two counts of rape by force or fear (Pen. Code, § 261) for which he served six years in prison. The victim was his then 15-year-old biological daughter. Subsequently, petitioner twice failed to register as a sex offender for which he was sentenced to prison and violated parole nine times between 1996 and 2009.
Janet did not file a writ petition.
Petitioner and Janet also have a history of child welfare intervention. In 2007, then nine-month-old Emma was removed from Janet’s custody because of Janet’s drug abuse and neglect. Janet completed family reunification services, including drug treatment, as well as family maintenance services and dependency was dismissed. Petitioner was denied reunification services pursuant to section 361.5(b)(12) because of his rape conviction.
Section 361.5, subdivision (b)(12) provides in relevant part:
These dependency proceedings were initiated in October 2010 after Janet rear-ended another vehicle while driving under the influence of methadone and tequila. At the time, then six-month-old Elijah was in the front passenger seat, strapped into his car seat, but not into the car.
Petitioner told a social worker from the Fresno County Department of Social Services (department) that he was aware Janet left earlier that day with Elijah to pick up her dose of methadone. Asked why he did not stop Janet from leaving with Elijah if he knew she was under the influence, petitioner stated he could not control what she did. The department took the children, Emma, then four years old, Caleb, then 17 months old and Elijah, into protective custody and filed a dependency petition on their behalf alleging that Janet and petitioner’s drug use and domestic violence placed the children at risk of harm.
The juvenile court ordered the children detained pursuant to the petition and ordered supervised visitation for the parents. The department placed the children with their maternal grandparents. In December 2010, the juvenile court adjudged the children dependents pursuant to a first amended petition and set the dispositional hearing.
In its dispositional report, the department recommended against offering petitioner and Janet services to reunify with the children. As to petitioner, the department recommended the juvenile court deny him services pursuant to section 361.5, subdivision (b)(10) and (12) because he continued to abuse drugs after Emma’s removal and because of his 1990 rape conviction. The department also opined it would not be in the children’s best interests to offer petitioner reunification services because of the extensiveness of his criminal history and the severity of his crimes, the extensiveness of his drug abuse history and his unwillingness or inability to protect the children from Janet.
Section 361.5, subdivision (b)(10) provides in relevant part:
In March 2011, the juvenile court conducted a contested dispositional hearing on the department’s recommendations. Petitioner did not challenge the applicability of section 361.5, subdivision (b)(10) and (12) as a basis for denying him reunification services. However, he argued the juvenile court should exercise its discretion and order reunification services in the best interests of the children. To that end, he testified he and the children shared a loving relationship and that he rehabilitated himself in the years since the rape through counseling and programs offered through the Department of Corrections. He believed the court should give him a chance to prove himself.
At the conclusion of the hearing, the juvenile court ordered the children removed from parental custody, denied petitioner and Janet reunification services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Petitioner contends the juvenile court erred in denying him reunification services not because section 361.5, subdivision (b)(10) and/or (12) do not apply to him, but because the court did not exercise its discretion to order services. We disagree.
When a child is removed from parental custody, the juvenile court is required to order reunification services for the child and the child’s parents unless the court finds by clear and convincing evidence that the parent is described by any of 15 exceptions set forth in section 361.5, subdivision (b) (subdivision (b)). (§ 361.5, subds. (a) & (b)(1)-(15).) These exceptions to the general rule reflect a legislative determination that attempts to reunify may be futile under certain circumstances and may not serve a child’s interests. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.)
Once the juvenile court finds that any of the subdivision (b) exceptions apply, it is prohibited under subdivision (c) of section 361.5 (subdivision (c)) from ordering reunification services “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” Thus, the court’s discretionary power to order reunification services under subdivision (c) only arises after the court determines that reunification services would serve the child’s best interest.
When the sufficiency of the evidence to support a finding is challenged on appeal, we determine whether substantial evidence supports the finding. (In re Ethan N. (2004) 122 Cal.App.4th 55, 64 (Ethan N.).) Moreover, we will not reverse the juvenile court’s determination of what would best serve the child’s interest absent an abuse of discretion. (Id. at pp. 64-65.)
Petitioner contends there was sufficient evidence for the juvenile court to find that providing him reunification services would serve the children’s best interests. To that end, he cites this court to Ethan N., supra, 122 Cal.App.4th 55, a case in which this court identified factors relevant to the juvenile court’s examination of best interests in determining whether to grant reunification services under subdivision (c). (Id. at pp. 63-67.) As applied to his case, petitioner argues, these factors militate in favor of a best interest finding.
However, on a challenge to the sufficiency of the evidence to support the juvenile court’s finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citations.]” (Ibid.) If the finding or order is supported by substantial evidence, it will be upheld. (Ibid.)
In Ethan N., this court deemed the following factors pertinent to a juvenile court’s analysis of a child’s best interest: parental efforts, fitness and history; the gravity of the problem that led to the dependency; the strength of relative bonds between the child and the parent; and the child’s need for stability and continuity. (Ethan N, supra, 122 Cal.App.4th at pp. 63-67.) With respect to parental efforts, fitness and history, petitioner cites evidence that he voluntarily participated in services and visited the children. Further, he points to the loving relationship he and the children share as evidence of the strength of his bond with them and argues that permanency in a relationship with him furthers the fundamental objective of the dependency system to reunite families.
Petitioner ignores, however, the significance of his criminal conduct and ongoing substance abuse vis-à-vis his prognosis for reunification. The fact petitioner raped his daughter is sufficient grounds to conclude reunification would not serve his children’s best interests. And if it were not enough, petitioner’s ongoing drug use and infractions would be. Notably, in October 2010, within two weeks following the children’s removal, petitioner tested positive for marijuana and cocaine and was cited for driving under the influence.
We conclude on this record that the juvenile court did not err in denying petitioner reunification services. Accordingly, we will deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
“(b) Reunification services need not be provided to a parent … described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶ ] … [¶ ] (12) [t]hat the parent … of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code.”
“(b) Reunification services need not be provided to a parent … described in this subdivision when the court finds, by clear and convincing evidence, … [¶ ] … [¶ ] (10) [t]hat 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 … after the sibling … had been removed from that parent … and that parent … has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling … of that child from that parent.…”