Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK69532, Valerie Skeba, Juvenile Court Referee.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency matter, we sustain the juvenile court’s jurisdictional finding but reverse the denial of reunification services as to appellant Robert G. (father).
SUZUKAWA, J.
BACKGROUND
Father and Erika D. (mother) are the parents of Z.G. (born June 2007) and K.G. (born Aug. 2008). This appeal by father involves only K.G.
Mother’s eldest child from another relationship, A.D. (born July 2005), is the half-sibling of Z.G. and K.G. Mother and father do not live together, and father has never had physical custody of the children.
I. Prior Proceedings
Before K.G. was born, mother and father were involved in a domestic violence incident that resulted in an August 2007 petition as to Z.G. (Welf. & Inst. Code, § 300, subds. (a) [physical harm], (b) [failure to protect].) In October 2007, a similar petition was filed as to A.D. Father received reunification services as to Z.G., including referrals for anger management and domestic violence counseling, and parenting courses.
All further statutory references are to the Welfare and Institutions Code.
In August 2008, the court ordered father to begin “on demand and random” drug testing. Father tested positive for cocaine on September 4, 2008, failed to test on September 15 and 25, 2008, and tested negative on October 31 and November 20, 2008.
On October 17, 2008, Z.G. and A.D. were released to mother. At the time, mother also had custody of K.G., who was born in August 2008.
II. Present Proceedings
On October 24, 2008, mother was hospitalized for mental illness, which necessitated the removal of all three children from her custody. On October 29, 2008, the Los Angeles County Department of Children and Family Services (DCFS) filed the present section 300 petition as to K.G. and a section 342 petition as to Z.G. and A.D. The section 300 petition alleged that neither parent was capable of caring for K.G. due to mother’s mental illness (count b-1) and father’s “unresolved history of illicit drug abuse” (count b-2).
At the October 29, 2008 detention hearing, mother’s attorney expressed doubt regarding the paternity of K.G. Father, who had signed a voluntary declaration of paternity, requested genetic testing. This delayed the adjudication of the petition’s count b-2 allegation regarding father’s drug use.
In November 2008, mother was discharged from the hospital. However, on December 3, 2008, mother was arrested for “holding up a bus driver with a box cutter while she allegedly threaten[ed] to cut the bus driver’s throat,” and was placed in a detention facility.
On January 29, 2009, the court sustained the petition’s count b-1 allegation regarding mother’s mental illness. It also conducted a 12-month permanency hearing regarding Z.G. and A.D. (§ 366.21, subd. (f).) As relevant to this appeal, the court continued father’s reunification services as to Z.G. and ordered father to submit to weekly drug testing.
On June 10, 2009, the court conducted an adjudication and disposition hearing on the petition’s count b-2 allegation regarding father’s drug use. It also conducted an 18-month permanency review hearing as to Z.G. and A.D. (§ 366.22.)
At the June 10 hearing, the court received evidence that father’s paternity had been established by genetic testing. It also received evidence that father’s drug tests were inconsistent. In addition to testing positive for marijuana on March 31, 2009, father had tested negative on November 20, 2008, failed to test on December 9 and 22, 2008, tested negative on January 22, 2009, failed to test on February 23 and March 9, 2009, tested negative on March 24, 2009, failed to test on April 8 and 21, 2009, and tested negative on May 14, 2009.
Father argued that the evidence was insufficient to establish that the alleged drug use posed a current risk of harm to K.G. The court disagreed, stating that the evidence reasonably showed that father had failed to test because of his current drug use, which was harmful to the children in that it interfered with his compliance with the case plan. The court sustained the petition’s count b-2 allegation, which stated that father “has an unresolved history of illicit drug abuse, which renders the father incapable of providing regular care for the children. The father’s use of illicit drugs endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
The court stated that when father “was testing on demand, he was able to use drugs, and we weren’t catching it because the tests were not very frequent. Once he was required to test on a regular basis, then we started having positives and no-shows.” “It’s also that same period when he stopped visiting.” “I don’t believe he’s complied with the case plan. I think that his... compliance since the.21(f) hearing... in December, has been rather sporadic. I don’t think he has stable housing, and I don’t think he was visiting.” “[T]he pattern of testing and the pattern of compliance with the case plan indicates that father has not addressed... the substance abuse issues that brought the case into court. He may not be using cocaine anymore. But I have a pretty strong belief that he’s using marijuana. And, as I indicated, that has affected his ability to comply with the case plan and have a relationship with his children. So what I’ll do is I’ll add ‘has unresolved history of illicit drug use’ and strike the part about ‘and is a current abuser of cocaine.’ I’ll also strike the sentence about the positive toxicology for cocaine back in 2008. That isn’t particularly relevant. What is relevant is that I believe there’s an ongoing pattern of substance abuse that’s impacting his parenting ability. So sustaining [b-2] as amended.”
The court denied father’s request for reunification services as to K.G. and terminated both parents’ reunification services as to Z.G. The court concluded that in light of father’s status as “a biological father only,” it would not be in K.G.’s best interests to grant father reunification services, given “the length of time the child has been in the system and the [child’s] lack of a relationship” with father. The court alternatively held that “even if he is a presumed father,” reunification services were denied under the exception provided in section 361.5, subdivision (b)(10).
Father timely appealed from the June 10, 2009 jurisdictional and dispositional orders.
DISCUSSION
I. The Jurisdictional Order Is Supported by the Record
Father contends that the evidence is insufficient to support the jurisdictional finding that his unresolved drug problem has hindered his ability to care for K.G. We disagree.
“The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence, and we will affirm the court’s findings if they are supported by substantial evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)” (In re Mariah T. (2008) 159 Cal.App.4th 428, 438.) The evidence when viewed under this standard reasonably supports a finding that father’s use of drugs has interfered with his compliance with the case plan, as shown by his lack of visitation and failure to provide a suitable home. Given the dire situation created by mother’s absence due to her mental illness and arrest, father’s decision to use drugs rather than promptly comply with the case plan reasonably suggests that his drug use is interfering with his parenting abilities and poses a risk of harm to the child.
II. The Denial of Reunification Services Was Improper
A father’s right to reunification services depends on whether he is a statutorily presumed father or a biological father. Where, as in this case, “the court has removed the child from the physical custody of a parent under section 361 and has determined it would be detrimental to place the child with a noncustodial parent under section 361.2, the court must order the Agency to provide reunification services to the child’s mother and statutorily presumed father, unless it determines that a statutory bypass exception applies under the relevant provisions of section 361.5. (§ 361.5, subds. (b), (c), & (e)(1).)” (In re Adrianna P. (2008) 166 Cal.App.4th 44, 54, fn. omitted.)
In this case, the court denied father reunification services as a biological father, based on its determination that the services would not benefit the child. (In re Adrianna P., supra, 166 Cal.App.4th at p. 54, fn. 4 [“Where the noncustodial parent is a biological father, as defined in section 361.5, subdivision (a), the court has discretion to order reunification services when the services will benefit the child.”].) It alternatively denied father reunification services as a statutorily presumed father, based on its determination that the exception contained in subdivision (b)(10) of section 361.5 applies to this case. Father contends that the court erred in making both determinations. We agree.
The record is undisputed that father signed a voluntary declaration of paternity that has not been set aside. (Fam. Code, § 7570 et seq.) “Until the voluntary declaration of paternity is set aside, it has the ‘force and effect’ of a judgment. ([Fam. Code,] § 7573.) It is not a mere presumption to be weighed against competing” presumptions. (Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1141.) Accordingly, father is a statutorily presumed father.
A statutorily presumed father is entitled to reunification services unless the court “determines that a statutory bypass exception applies under the relevant provisions of section 361.5.” (In re Adrianna P., supra, 166 Cal.App.4th at p. 54.) In this case, the court relied on the subdivision (b)(10) exception, which applies when “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).)
By its terms, the subdivision (b)(10) exception does not apply to a noncustodial parent such as father. The exception applies to a custodial parent who failed to reunify with a child who was removed from that parent “pursuant to Section 361.” (§ 361.5, subd. (b)(10).) Section 361 applies only to custodial parents.
“The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent). (§§ 361, subd. (c), 361.2, subd. (a).) Section 361, subdivision (c) governs the child’s removal from the physical custody of a parent. ‘“It does not, by its terms, encompass the situation of the noncustodial parent.”’ (R.S. v. Superior Court [(2007)] 154 Cal.App.4th [1262,] 1270.)” (In re V.F. (2007) 157 Cal.App.4th 962, 969, fns. omitted.) Section 361.2 “‘addresses the situation of the noncustodial parent and whether reunification services should be provided to that parent.’” (R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1270.)
Given that father was at all times a noncustodial parent, he could not and did not lose custody of Z.G. under section 361 and, therefore, the section 361.5, subdivision (b)(10) exception does not apply to him as a matter of law. We conclude the denial of reunification services based on the subdivision (b)(10) exception must be reversed. In light of our determination, we need not address the other issues raised in father’s opening brief.
DISPOSITION
The June 10, 2009 order is reversed as to the denial of reunification services. In all other respects, the order is affirmed.
We concur: EPSTEIN, P.J. MANELLA, J.