Opinion
C057499
10-29-2008
In re K. R., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. T. W., Defendant and Appellant.
Not to be Published
In this dependency case, T. W., mother of the minor, appeals from the judgment of disposition. (Welf. & Inst. Code, §§ 358, 360, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the court abused its discretion in failing to find that providing her reunification services was in the minors best interest. We affirm.
FACTS
The Department of Health and Human Services (DHHS) filed a petition to remove K. R. from parental custody in July 2000, shortly after her birth, due to appellants substance abuse problems. The court denied appellant services based upon her failure to reunify with the minors five half siblings in an ongoing case that was based on appellants neglect and failure to protect the half siblings from abuse. The minor reunified with her father in March 2002.
In June 2007, DHHS filed a second petition to remove the now six-year-old minor from parental custody. The petition alleged appellant subjected the minor to physical abuse which resulted in marks and bruising consistent with inflicted rather than accidental injury. The petition further alleged appellant and her boyfriend engaged in domestic violence and appellant told the boyfriend to hit the minor. The minor was afraid to return home. DHHS again sought an order denying services to appellant based upon her prior failure to reunify with the minors half siblings who now were adopted or in guardianships.
According to the jurisdiction report filed in July 2007, appellant denied she recently hit the minor with a belt and explained the minor was injured playing with another child. Appellant stated that hitting the minor with a belt was "not the first thing" she did to discipline the minor but she did believe in corporal punishment. The minor told the social worker that appellant hit her with a belt and said to lie about it. An addendum noted there was a bond between the minor and appellant but that there was no detriment in denying appellant services because she had not benefited from past services, there were no other services which would assist her, and she had made no changes to address the ongoing problems of substance abuse and failure to protect her children. The addendum stated appellant said she had not used drugs for seven years; however, recent tests were positive for marijuana. A police report from the time of the minors injury contained the minors statements to a police officer and a teacher that appellant hit her in the face with a belt and appellants statement denying the physical abuse.
In August 2007, the minor was moved from the Childrens Receiving Home to a psychiatric facility for a 90-day diagnostic due to her high levels of anger and aggression. After initially failing to participate in a substance abuse evaluation and continuing to test positive, appellant was eventually assessed as a substance abuser and referred to an outpatient treatment program pending the jurisdiction/disposition hearing. At visits with appellant, the minor acted younger than her age and exhibited overly nice, pleasing behaviors.
At the hearing, the social worker first assigned to the case testified appellant denied current substance abuse even when confronted with positive tests. The social worker said appellant was currently in outpatient treatment and testing negative for drugs. According to the social worker, appellant was visiting weekly except when the minor did not want to see her. She said appellant had been offered services before but the same problems of substance abuse, choosing bad relationships and failing to take responsibility for things that have happened remain.
The parties stipulated that the minor would testify that she wanted to live with her father but, if she could not, then she wanted to live with appellant. The minor said she was afraid to live with appellant because appellant hits her. The minor did like to visit with appellant.
The reunification social worker testified appellant was participating in substance abuse treatment and had been compliant. However, it was not clear appellant was benefiting because she continued to engage in concerning behavior such as having contact with her boyfriend despite a no-contact order and seemed unaware that the behavior was a problem.
The court sustained the petition, finding the minors statements believable and substantiated by medical reports.
Appellant testified on disposition issues, discussing her participation in services and insisting she now took responsibility for her drug use and no longer believed in corporal punishment, having learned alternatives. She acknowledged she had learned alternatives in the past but maintained she would not hit the minor again. She continued to deny she had caused the minors injuries.
The court found DHHS had established that appellant came within section 361.5, subdivisions (b)(10) and (11), which permit the court to deny services because appellant failed to reunify with the minors half siblings, her parental rights were terminated as to some of the minors half siblings, and she had not subsequently made a reasonable effort to treat the problems that led to removal of the half siblings.
Appellant argued services should nonetheless be ordered since reunification would be in the best interest of the minor. However, the court did not address the issue and appellant did not press for a ruling on it although the court expressly asked if any issues had been missed.
DISCUSSION
Appellant contends the juvenile court abused its discretion in denying her services because reunification with her would be in the best interests of the minor. When a child is removed from parental custody, the juvenile court must order reunification services to assist the parents in reuniting with the child. (§ 361.5, subd. (a).) However, if certain of the circumstances set forth in section 361.5, subdivision (b), are established, "the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) The recidivist behavior described in section 361.5, subdivisions (b)(10) and (11), falls within this assumption. (See, e.g. In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.) Nonetheless, services may still be provided to a parent if section 361.5, subdivision (c), is shown to apply.
Section 361.5, subdivision (c), provides in part: "The court shall not order reunification for a parent . . . described in paragraph . . . (10), (11) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523) An appellate court will reverse that determination only if the juvenile court abuses its discretion. (Id. at pp. 523-524.) It is the parents burden to "affirmatively show that reunification would be in the best interest" of the child. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
As noted above, the court did not rule on whether appellant had established the exception in section 361.5, subdivision (c), and appellant did not press for a ruling although the court gave her the opportunity to do so.
Where the court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who is seeking the ruling must make some effort to have the court actually rule. (People v. Braxton (2004) 34 Cal.4th 798, 813-814.) The partys failure to do so may be considered a forfeiture of the issue. (Ibid.; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) That is the case here.
Even were the issue not forfeited, appellant cannot prevail. The evidence demonstrated that she had done little to remedy the core issues which led to the minors abuse and continued to deny responsibility for the minors injuries. The minor was afraid of appellant because appellant hit her. Appellant acknowledged that she had learned alternatives to corporal punishment before but said that this time she would not hit the minor again. The evidence did not meet the clear and convincing standard required for the court to order services. The court was not required to gamble with the safety of a minor already showing the negative effects of living in a violent home based on appellants representations of change which were belied both by her testimony and her behavior. No abuse of discretion appears.
DISPOSITION
The judgment of disposition is affirmed.
We concur:
SCOTLAND, P. J.
BUTZ, J.