Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. CK69373 Donna Levin, Juvenile Court Referee.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Kevin G. (father) appeals from a juvenile court order denying him reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (e). He contends that the juvenile court committed reversible error by failing to find that offering him services would cause detriment to his daughter, Gabriella T. (the minor, born Apr. 2005).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Because the juvenile court failed to find that offering father reunification services would cause detriment to the minor, we reverse the juvenile court’s order. The matter is remanded to allow the juvenile court to make the requisite finding.
FACUTAL AND PROCEDURAL BACKGROUND
Prior Proceeding
In 2007, the juvenile court assumed jurisdiction over the minor because her mother, Jennifer T. (mother) had a history of methamphetamine and marijuana use, left the minor in the care of a known drug user, and failed to retrieve the minor in a timely manner. The juvenile court also determined that father was unable to provide the minor with the necessities of life because he had been incarcerated for the duration of the minor’s life. By early 2008, father was apparently reincarcerated.
Mother had been a dependent child, removed from her mother twice: once after being sexually abused in the home and then again, when she was 17 years old and her daughter Alyssa T. (Alyssa), was one-year old, after mother and Alyssa’s grandmother were found using drugs together. Later, the Department of Children and Family Services (DCFS) removed Alyssa from mother’s custody and placed with her maternal aunt, who became her legal guardian.
Although father had been ordered to participate in reunification services, he did not do so. And, he failed to visit the minor because of his incarceration.
The minor remained in foster care for six months. In March 2009, mother successfully reunified with the minor and was granted sole custody, with supervised visits for father.
Instant Section 300 Petition and Detention
The instant proceeding resulted from a June 2009 referral made on behalf of the minor and her half-sister Samantha T. (Samantha), alleging that mother abused drugs and was a prostitute. Mother denied the allegations, claiming that she had allowed the minor to stay with her paternal grandmother and the grandmother had made false allegations.
Neither Samantha nor Alyssa is implicated in this appeal.
As part of a safety plan, mother submitted to a drug test, which returned positive results for amphetamine, methamphetamine, and marijuana. Mother explained that she had been sober for almost two years, but three weeks prior to the drug test, she used marijuana. She denied any other drug use, but later admitted to it. When mother learned that the minor and Samantha were going to be detained, she requested that they be placed with the minor’s prior foster mother.
The minor was ordered detained.
Jurisdiction/Disposition
In its August 17, 2009, hearing, DCFS reported that father was incarcerated at La Palma State Prison in Arizona. He never established a relationship with the minor, but occasionally called and wrote to her.
Like mother, father was a former dependent of the juvenile court (from 1996 to 1998). The juvenile court terminated its case after father was declared a ward under section 602 and thereafter supervised by the juvenile probation department. His criminal behavior continued into adulthood, with adult convictions extending from 2002 to the present, including drug use, failure to appear, petty theft, possession of a dangerous weapon, possession of a switch blade, receipt of stolen property, drug possession for sale, vandalism, grand theft auto, taking a vehicle without the owner’s consent, evading a peace officer, felony robbery, and several parole violations.
When the DCFS investigator interviewed the minor and asked her to identify her father, she responded that his name was “Jose” (the name of mother’s live-in boyfriend). When the social worker mentioned father by name, the minor did not recognize it. She did recognize the name of her paternal grandmother.
The minor and Samantha were placed in the minor’s previous foster home and appeared very attached to one another. The social worker did not want the siblings separated “under any circumstances.”
Father, who submitted to a paternity test, indicated that he was in prison when the minor was born. When she was removed from parental custody in 2007, he had visitation rights. He claimed that he spoke to her every weekend and that the minor knew him as her father. Father wanted to be included in the dependency case and eventually considered for custody. He confirmed that he was in prison for robbery and selling marijuana, but he asserted that he was not a drug addict.
According to the paternal grandmother, father never established a relationship with the minor. He only rarely sent letters and made telephone calls.
Mother had been issued a restraining order against father in 2005, which expired in 2008, based on his making violent statements, gang affiliation, and criminal behavior. Less than a month before the jurisdiction/disposition hearing, he wrote a letter to mother in which he made snide comments and called her profane names. His earliest release date was in February 2010. The penitentiary offered only a drug and alcohol program.
On August 17, 2009, and November 9, 2009, the juvenile court assumed jurisdiction over the minor under section 300, subdivisions (b) and (g), based on mother’s drug use and neglect of the minor, father’s incarceration, failure to comply with the orders made in the prior proceeding, and the history of criminal activity. Although the juvenile court issued an order for father’s appearance, he refused to appear or sign the waiver form, and he would not indicate his wishes.
The juvenile court held all findings against father in abeyance until November 9, 2009, to ensure that he received proper notice.
The juvenile court offered reunification services to mother, and then considered whether to offer services to father. DCFS urged the juvenile court to deny him services. It reported that in the prior proceeding, he had failed to comply with the case plan, even though he was out of custody for part of the reunification period, he had no relationship with the minor, he had been in jail for most of the minor’s life, and he had evaded contact with DCFS in the prior proceeding. Counsel concluded that under the factors set forth in section 361.5, subdivision (e), it would be detrimental to offer reunification services to father.
The minor’s attorney asserted that it would not be detrimental to offer services to father because his release date was upcoming and mother was being provided with services.
Ultimately, the juvenile court refused to offer father reunification services, noting that it was concerned about his ability to participate in his place of incarceration, that father had made no progress towards reunification in the prior proceeding, and that father had returned to prison while the matter was still pending.
Father’s timely appeal ensued.
DISCUSSION
I. Standard of Review
The parties dispute the appropriate standard of review. While father argues that the substantial evidence standard of review controls, DCFS asserts that we review the juvenile court’s order for abuse of discretion. Case law goes both ways. (Compare Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151 with Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) For purposes of the instant appeal, we need not resolve this question because “[t]he practical differences between the [substantial evidence and abuse of discretion] standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’ s action, no judge could reasonably have made the order that [he or she] did.’...”’ [Citations.]” (In re Jasmine D (2000) 78 Cal.App.4th 1339, 1351.)
II. The Juvenile Court Committed Reversible Error
“Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) “To that end, ‘[w]hen a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.’” (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174.) Provision of reunification services “‘implement[s] “the law’s strong preference for maintaining the family relationship if at all possible.” [Citation.]’” (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) Section 361.5 “reflects a public policy favoring the development of a family reunification plan even when a parent is incarcerated.” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011–1012.)
Section 361.5, subdivision (e)(1), provides: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and... any other appropriate factors.” (§ 361.5, subd. (e)(1).) “The court must consider each listed factor and any other additional factors when it determines detriment. Any one factor or combination of factors might result in a finding of detriment, but it must be shown by clear and convincing evidence how the factor or factors result in a detriment.” (In re Dylan T. (1998) 65 Cal.App.4th 765, 774.)
Respondent’s argument notwithstanding, the juvenile court failed to consider detriment, let alone make the requisite finding of detriment. It denied father reunification services because he did not have a meaningful relationship with the minor, did not comply with the prior case plan or make any progress towards reunification, and was sent back to prison before the prior case was terminated. But, the juvenile court never considered whether and how reunification services would be detrimental to the minor. Because the juvenile court never addressed this issue, the order must be reversed to allow it to do so. (In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344–1345.)
Respondent urges us to affirm on the grounds that even if the juvenile court erred, that error was harmless as we can imply a finding of detriment based on the appellate record. We disagree. The removal of the minor did not arise out of any incident which led to father’s conviction and prison sentence. (In re Alexis M. (1997) 54 Cal.App.4th 848, 852–853.) There is no indication that father had committed any crimes in the minor’s presence or had harmed her or placed her at a risk of harm. And, parental incarceration does not, in and of itself, provide sufficient grounds for denying reunification services. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402 [“‘go to prison, lose your child’” is not an appropriate legal maxim].) While the factors identified by respondent could support a finding of detriment, they could also indicate a need for family preservation services. Therefore, the matter must be remanded to the juvenile court for a finding of detriment, if any.
Respondent claims that reunification services are inappropriate because it would “fill the [minor] with false hopes.” Aside from the speculative nature of this argument, respondent did not raise this argument below and there is no indication that the juvenile court found (even implicitly) that offering father reunification services would harm the minor by filling her with false hope.
Finally, respondent argues that the juvenile court’s order could be affirmed under section 361.5, subdivision (b)(10). That statute provides, in relevant 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 pursuant to Section 361 and 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 of that child from that parent or guardian.” (§ 361.5, subd. (b)(10).)
As respondent concedes, the juvenile court did not terminate father’s reunification services in the prior proceeding. Furthermore, the prior services were offered with regard to the minor, not to her siblings. Accordingly, the facts of this case do not fall within the scope of section 361.5, subdivision (b)(10). Respondent offers no legal authority that would allow us to ignore the plain language of the statute and apply it to the instant case because the facts here purportedly fall within the “spirit” of section 361.5, subdivision (b)(10).
DISPOSITION
The juvenile court’s order is reversed. The matter is remanded to the juvenile court to allow it to determine whether the minor would suffer detriment if reunification services were offered to father.
We concur: BOREN, P. J., DOI TODD, J.