Opinion
B214912.
12-13-2009
In re F.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. S.R., Objector and Appellant.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Objector and Appellant. Office of the County Counsel, James M. Owens, Assistant County Counsel, Melinda S. White-Svec, Deputy County Counsel, for Petitioner and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
Appellant and mother, S.R. (mother), appeals from the juvenile courts February 2, 2009, dispositional orders denying, pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10), mothers family reunification services with her children, F.A. (born in 1993) and M.S. (born in 2004). The juvenile court also denied mother reunification services with F.A. because she had already received more than the statutorily mandated period of services with her oldest son. Mother contends the juvenile court erred in failing to grant her reunification services with M.S., and in failing to recognize that exceptional circumstances existed justifying further reunification services with F.A. We affirm the juvenile court orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF PROCEEDINGS
Mother came to the United States with her parents from Mexico at age 13 years and completed the tenth grade. At about age 16 years, mother gave birth to F.A.—the father being Francisco. A. She had four more children with Francisco A., and they separated in 2001. Mother was awarded physical custody of the children and co-joint legal custody of the children. She had another child with another father. Mother gave birth to M.S. in 2004—Jose S. was alleged to be his father.
In 2003, the Los Angeles Department of Children and Family Services (Department) filed a section 300 petition on behalf of the children because of reports of physical abuse of F.A. and a sibling by their father Francisco A., and that mother knew of the abuse and failed to protect the children, placing all of the children at risk of abuse. The Department also alleged that there had been a number of prior domestic violence police reports filed regarding the family.
Francisco A. was incarcerated on charges of felony child abuse, and the children were detained by the Department. The juvenile court detained the children from their fathers and released the children to mother, over the Departments objection, on the condition that the second father not have contact with the children. The juvenile court ordered the Department to provide family reunification services and to ensure mother was referred to parenting and domestic violence counseling. The children remained at home with mother, with maintenance services in place. As noted, in 2004, mother gave birth to her seventh child, M.S.
In April 2004, the juvenile court ordered the children to remain placed with mother and family maintenance services to continue. In October 2004, the juvenile court ordered maintenance services to continue for six additional months. Services for the father had been terminated. There were reports of misbehavior by F.A. Notwithstanding that the Department recommended jurisdiction be terminated, in 2005, the juvenile court continued dependency jurisdiction
In January 2006, mother had housing and health difficulties. F.A. and another sibling had problems with drug use and depression, while the younger children had lice. Some of the children had been suspended from school because of their problems.
On April 25, 2006, the juvenile court detained the children even though the Department had not yet filed a section 300 petition. On April 28, 2006, the Department filed a section 342 petition on behalf of all the children except M.S. after reports that mother had physically abused the children and was unable to control inappropriate behavior by the children, and filed a section 300 petition on behalf of M.S. The children were detained, and reunification services were ordered for mother.
In February 2007, the Department recommended that the children be returned to mother after they "recanted." The section 300 and 342 petitions were dismissed. The juvenile court returned the children to mother and reinstated maintenance services.
In June 2007, the Department filed a new section 387 petition on children other than F.A. and M.S. after mother said she wanted the five older children removed from her care because she could not handle their behavior. There were allegations of sexual abuse by mothers live-in companion of some of the children. Five of the children were detained and placed with various paternal relatives. F.A. and M.S. and another sibling remained with mother.
In August 2007, the juvenile court sustained the section 387 petition as to the other siblings and ordered them placed with relatives. In September 2007, it denied reunification services, finding mother had already received in excess of 18 months of services.
In July 2008, the Department filed a new section 342 petition on behalf of F.A. and another sibling and a section 300 petition on behalf of M.S. based on mothers failure to provide care and supervision and physical altercations in the house. M.S. was placed in foster care. The juvenile court ordered the children detained. In August, the Department submitted a request for a Protective Custody Warrant for F.A. The Department reported F.A. had been returned to his maternal grandmothers home and reportedly did not want to be put in foster care. He also had engaged in criminal behavior and was arrested for theft-related crimes.
In 2008, F.A. and M.S. were placed in a foster home together. Mother did not appear for scheduled visits. The juvenile court sustained the section 342 petition as to F.A. and sibling [A] and the section 300 allegation as to M.S. based on agreements with mother. The mother agreed to the following regarding the section 300 petition filed on M.S.s behalf:
"Count b-1: On or about July 2, 2008, the childs mother[] failed for several days to provide care and supervision of [M.S.] and his siblings and to provide the children and their maternal grandmother with contact information for Mother. Further the mothers lack of an adequate plan for and supervision of the children resulted on July 3, 2008, in the child [M.S.] and his sibling, [A], being found at the home of their maternal grandmother without any supervision. Mothers omissions place the child at substantial risk of physical and emotional harm. "Count b-2: On or about July 6, 2008, and on prior occasions, the child [M.S.s] mother, [], has been involve in arguments with the childs maternal grandmother [] that became physical altercations involving the maternal grandmother striking the mothers face in the presence of the childs siblings. The mother exposed the child to the risk of ongoing harm by residing with the child and his siblings in the grandmothers home and permitting the grandmother unlimited access to the children despite the arguments and maternal grandmothers violent conduct toward the mother. The mothers conduct and lack of protection of the child place the child at substantial risk of physical and emotional harm." Count a-1, which had alleged the child was at risk of physical abuse due to the domestic violence between mother and maternal grandmother, was dismissed. The counts regarding M.S.s father were held in abeyance, pending the results of the paternity test.
Mother agreed to the following allegations regarding the section 342 petition filed on behalf of F.A. and a sibling [A]:
"Count b-1: On or about July 2, 2008, the children [F.A.] and [A]s mother, [], failed to several days to provide care and supervision of the children and their sibling [M.S.], and to provide the children and their maternal grandmother with contact information for mother. Further, the mothers lack of an adequate plan for and supervision of the children resulted on July 3, 2008, in the child [A] and her four-year old sibling [M.S.], being found in the home of their maternal grandmother without any supervision. Mothers omissions place the child at substantial risk of physical and emotional harm. "Count b-2: On or about July 6, 2008, and on prior occasions, the children [F.A.] and [A]s mother, [], has been involved in arguments with the childrens maternal grandmother [] that became physical altercations involving the maternal grandmother striking the mothers face. The mother exposed the children to these altercations and to the risk of ongoing harm by residing with the child and his siblings in the grandmothers home and permitting the grandmother unlimited access to the children despite the arguments and maternal grandmothers violent conduct toward the mother. The mothers conduct and lack of protection of the children place [F.A.] and [A] at substantial risk of physical and emotional harm." Count a-1, which alleged the children were at risk of physical abuse due to the violent altercations between mother and maternal grandmother, was dismissed in the petition. F.A. disappeared again, and when he appeared, he expressed a desire to be with his mother.
In its November 2008, report, the Department stated, "The mother has received an overwhelming amount of DCFS services and she has exhausted many of the services that have been provided to her in being able to properly care for the children. All of the efforts from DCFS and the service providers have resulted in the mothers further abuse and neglect of the children. The children and the mother continued to have unstable housing, they slept in the car, in the park or each them [sic] were at different homes so that they can have some shelter. The mother continued to expose the children to domestic violence and inappropriate behavior on her behalf. It is evident that none of the children will be able to thrive and become successful in the mothers care due to the mother not being capable of properly parenting or supervising the children . . . [¶] . . . [¶] DCFS respectfully recommends that the mother . . . be given no family reunification services."
At the February 2, 2009 disposition hearing, the juvenile court sustained the section 300 petition, counts g-1, and b-3, as to M.S. and that F.A. remained a dependent of the juvenile court under the section 342 petition.
At the February 2, 2009, hearing, mother made an offer of proof, through her counsel, that she had attempted to enroll in programs since the detention of her children, and was currently on a waiting list for parenting and domestic violence programs. Mother disputed the description of visitation presented by the Department in its latest report. The parties stipulated the children would testify that they loved their mother and wanted to return to their mothers care.
Thereafter, mother argued that it would be in M.S.s best interests to provide her with reunification services, since M.S.s father, who lived out of state, would be receiving services. Mother also argued that because F.A. was 15 years old, and wanted to be home with his mother, it would be in his best interest to be placed with her because at his age, "he should have some say over what happen[s] to him."
F.A.s attorney informed the juvenile court that F.A. would like to return to his mother, liked his current foster home, and was doing better in school. F.A.s counsel stated that he had explained to F.A., that if the juvenile court did not return him to mother this day, he could file a section 388 petition in the future when he was ready to go home.
The juvenile court declared M.S. a dependent of the juvenile court pursuant to section 300, subdivisions (b) and (g). The court found by clear and convincing evidence that there was a substantial danger to the childrens health, safety, protection, and physical or emotional well being and no reasonable means by which they could be protected without removal. F.A. continued to remain a dependent of the juvenile court.
The juvenile court further ordered that mother not be provided with reunification services for M.S. pursuant to section 361.5, subdivisions (b)(10) and (b)(11). The court ordered reunification services for M.S.s father.
Subdivision (b)(11) does not appear to be applicable because parental rights had not then been permanently severed. That subdivision used to be part of subdivision (b)(10)
In making its findings that mother not be provided reunification services, the court stated: "The evidence is uncontroverted that the mother—that the Department has met their burden in establishing either one of those bypass provisions—10 or—11, and no one has even contested. The burden then shifted to the mother to demonstrate by clear and convincing evidence that reunification services would be in the best interest of her children. [¶] I have considered all the evidence including the offer of proof made by the mother and the arguments of her counsel. So, I find the mother has not established by clear and convincing evidence that reunification services would be in the best interest of her children, as such reunification services will be denied to the mother as to all three of her children that are here for disposition today."
Counsel for the Department requested the juvenile court make additional findings that, as to F.A. and [A], mother was not entitled to further reunification services because she had received more than 18 months of services. The juvenile court responded: "Well, that would be a separate and distinct reason. I mean you met the burden under b-1 and b-11, just as the case as the G[] father, same situation, shes already received more than 18 months or 24 months of reunification services, and theres no law that allows her to receive additional services and there are certainly no extraordinary services that would justify, based upon the evidence, thats another alternative or manner by which the mother will not be given reunification services for those—for minors one and six and because she certainly has not gotten reunification services for minor number seven. [¶] So minor seven is based solely upon the subdivision 10 and 11 [§ 361.5, subd. (b)] exceptions. Okay"
The juvenile court stated as to M.S., "Im going to set a 21(E) [§ 366.21, subd. (e)] on August 3, 2009." With respect to F.A., the juvenile court said that a section 366.26 hearing is not in his best interest and that "he will be in [permanent plan of planned permanent living arrangement] with a goal of emancipation, . . . Ill set it for a RPP [Review of Permanent Plan] for [F.A.] for August 3, 2009." On March 24, 2009, mother filed her Notice of Appeal.
DISCUSSION
A. Standard of Review
As with dispositional orders, an order denying services pursuant to section 361.5, subdivisions (b)(10), is reviewed according to the substantial evidence test. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75. As the court stated in In re Jasmine C., "When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citation.]" In Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510-1511, the court suggested that the abuse of discretion standard applies to a decision as to whether "extraordinary circumstances" exist to extend services beyond the statutory limit.
B. Applicable Law
Family reunification services are provided to reunify a child separated from a parent due to "abuse, neglect, or exploitation." (§ 16507.) The child welfare services specified in section 361.5, subdivision (a), "in the form of both reunification and family maintenance services" are "designed to assist the parent in overcoming the problems which led to the courts intervention . . . ." (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166.) Under section 361.5, subdivision (a)(3) (now subdivision (a)(4)), the services may be extended "up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of his or her parent or guardian if it is shown . . . that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period." The period is not "tolled" when children are returned to parental custody. (§ 361.5, subd. (a); Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 165, fn. 4.) The juvenile court may continue reunification services beyond the statutory time period in exceptional circumstances. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1796; Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1510.)
The Legislature has recognized that it "may be fruitless to provide reunification services under certain circumstances." (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 70, quoting Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) Thus, under section 361.5, subdivision (b), the law provides in part: "Reunification services need not be provided to a parent or guardian described in this subdivision 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 or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian . . . is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling from that parent or guardian."
The juvenile court also referred to section 361.5, subdivision (b)(11), but that provision does not appear applicable here.
To apply section 361.5, subdivision (b)(10), the juvenile court must first find that "(1) the parent previously failed to reunify with a sibling and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling." (In re Albert T. (2006) 144 Cal.App.4th 207, 217.) If section 361.5, subdivision (b)(10), applies, the juvenile court has discretion to order reunification services only when it determines by clear and convincing evidence reunification is in the best interest of the child pursuant to section 361.5, subdivision (c). (In re Albert T., supra, 144 Cal.App.4th at p. 218, fn. 5.) There is no requirement the court find that the reasons that led to the removal of the siblings and the half siblings are the same reasons for the removal of the child under consideration. (§ 361.5, subd. (b)(10).)
C. M.S.
The juvenile court terminated reunification services for mother with four of M.S.s siblings in September 2007. There was evidence that mother has not benefitted from the services provided her since 2003 when the Department first became involved with the family. The siblings had to be removed in 2007 even though the Department continued to offer mother a variety of services. Notwithstanding these services, M.S., who had been under the voluntary supervision of the Department, was detained in 2008. Mother concedes she did not fully complete programs.
There is substantial evidence in the record to support the juvenile courts decision to deny mother further reunification services with regard to M.S.
D. F.A.—Additional Services
Section 361.5, subdivision (b)(10) applies to F.A. as it did to M.S. The substantial evidence supporting the order as to M.S. likewise applies to F.A. The juvenile court also denied reunification services to F.A. on the basis that there were no exceptional circumstances to extend the services beyond the statutory time limitation.
The juvenile court initially removed F.A. from mother in April 2006. Even when F.A. was returned to mother in August 2007, mother received family maintenance and preservation services. The juvenile court again removed F.A. from mothers custody in July 2008, and he has remained detained, although he sometimes stayed with mother when evading foster care. In view of these time sequences, the juvenile court did not have to provide additional services. Mother has conceded that it is only in "rare instances involving exceptional circumstances" that the juvenile court may continue reunification services beyond the statutory limit. (See In re Elizabeth R., supra, 35 Cal.App.4th at p. 1796 [court has "limited" discretion to extend reunification period].) Here, it is not established that mother was physically or mentally disabled, such that she could not take advantage of the services, and mother did not fully take advantage of the court ordered programs. Mother does dispute the reasonableness of the Departments reunification efforts. The juvenile court stated that there was no basis for providing additional services beyond the 24 months of services mother had already received for F.A.
The record reflects no "extraordinary circumstances" (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1510) justifying additional services beyond the time limits. Since 2006, when F.A. was removed from mother, notwithstanding reunification services, F.A. has had to be removed from mothers custody again. Mother does not specify what special circumstances exist that would justify continued reunification services. She concedes that the circumstances here do not involve "some external factor which prevented the parent from participating in the case plan." (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) The juvenile court did not err in denying additional services regarding F.A.
DISPOSITION
The juvenile court orders are affirmed.
We concur:
ARMSTRONG, J., Acting P. J.
KRIEGLER, J.