Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225579
RAYE , Acting P.J.Appellant, mother of the minor M., appeals from the judgment of the juvenile court adjudging the minor a dependent child of the court and denying appellant reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10). (Welf. & Inst. Code, §§ 360, subd. (d), 395; all further statutory references are to this code.) She contends the juvenile court erred in not finding under section 361.5, subdivision (c) that reunification was in the best interest of the minor. We disagree and shall affirm the orders.
BACKGROUND
On March 9, 2005, in a separate action, the juvenile court adjudged appellant’s four minor children dependent children of the court because of appellant’s physical abuse of them. A month later, appellant gave birth to M. (half-sibling to appellant’s four other children).
On November 28, 2006, M.’s father was awarded sole physical and legal custody of M. On or around January 5, 2007, Child Protective Services conducted an investigation and found appellant to be living at father’s home. Thereafter, father signed a “safety plan” agreement stating he would not allow appellant to live at his residence.
On March 8, 2007, officers conducting a probation search at father’s residence found father using marijuana in the minor’s presence. Appellant was also present during the search and reported to the officers that she was living at the residence with father. Appellant’s reunification services for her other children had been terminated on or about February 21, 2007, and the children had been placed for adoption.
Sacramento County Department of Health and Human Services filed a section 300 petition on behalf of M., alleging father had failed to protect M. from appellant and had placed the minor at risk. The petition also alleged that the minor’s half-siblings had been adjudged dependents because appellant physically abused them, that appellant’s reunification services had since been terminated with respect to those half-siblings, and that those children were in a plan of adoption. A detention hearing was held and the minor was detained. Although appellant attended the detention hearing, she did not appear for further hearings.
The combined jurisdiction/disposition hearing took place on May 22, 2007. The social worker’s report concluded that the minor remained at risk and recommended continued removal from the home and reunification services to the parents. Father testified at the hearing. The subject matter of his testimony surrounded his understanding of the “safety plan” and whether he had violated that agreement. During his response to one of the juvenile court’s questions about why he allowed mother to spend the night in his home at all, father explained that appellant was unpredictable and would show up at unpredictable times. (Father explained elsewhere that appellant would not come around for weeks at a time.) Father said he allowed her to visit because appellant and the minor were “very close” and he felt he needed to allow them to continue that bond. Father also mentioned that appellant was good at putting the minor to sleep when the minor was fussy and a little better than he at stopping her from crying, since he was still a new parent. Father maintained appellant was not living at his residence and they were no longer in any kind of relationship.
The juvenile court sustained the allegations in the petition and adjudged M. a dependent child of the court. The juvenile court ordered reunification services for father, but did not order reunification services beyond supervised visitation for appellant upon the finding that section 361.5, subdivision (b)(10) applied. Although the juvenile court noted that father believed appellant had a “strong and appropriate” relationship with the minor, the court did not find clear and convincing evidence that reunification services with appellant would be in the minor’s best interest. In addition to finding that father’s testimony generally lacked credibility, the court concluded that father allowed appellant continued access to the minor “because it was easy,” because it did not require father to “hassle with” appellant, and because appellant and the minor “did seem to be close, they did seem to have some relationship, and parenting is very, very hard work.”
The court further found that the evidence was insufficient to warrant reunification services for appellant “given the recency of the termination of reunification services [with appellant’s other children], [and] the lack of evidence and information that the mother has continued to work on services.” The court further found that the evidence reflected appellant “has simply reached the point where she’s given up and is choosing at this point in time not to make modifications to her life or lifestyle allowing her to provide care for [M.] or any other child. And that, I think, interpretation is consistent with her failure to appear at the trial date this afternoon.”
DISCUSSION
Appellant contends that, although section 361.5, subdivision (b)(10) would normally apply to deny reunification services, there was clear and convincing evidence to support court findings under section 361.5, subdivision (c) that services would be in the best interest of the minor. Thus, she argues, the juvenile court erred in not ordering services. We disagree.
Section 361.5, subdivision (b)(10) provides as follows: “(b) Reunification services need not be provided to a parent or guardian 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 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, according to the findings of the court, this parent or guardian has not subsequently make 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.”
In enacting section 361.5, subdivision (b), the Legislature determined that, in certain circumstances, providing reunification services to a parent likely will be futile and not in the minor’s best interest. (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 (Baby Boy H.).) Once the juvenile court finds, as it did here, that the minor is as described by section 361.5, subdivision (b), the general rule favoring services no longer applies and is “replaced by a legislative assumption that offering services would be an unwise use of governmental resources.” (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164 (Raymond C.); see Baby Boy H., supra, 63 Cal.App.4th at p. 478.) At that point, “[t]he court shall not order reunification . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c), italics added.) It is the parent’s burden to prove that services are warranted under section 361.5, subdivision (c). (Raymond C., supra, 55 Cal.App.4th at pp. 163-164.)
Here, appellant did not meet her burden. She presented no evidence that the minor would benefit from reunification with her, or that the instability in the minor’s life that would result from an extended reunification period would be justified. To the contrary, the evidence suggested that reunification services would be fruitless.
The minor was under the age of three at the time of initial removal and the reunification period was therefore limited to six months from the date the minor entered foster care. (§ 361.5, subd. (a)(2).) Appellant had just demonstrated she was unable, after two years, to reunify with her other children. There was no evidence that appellant would be able to perform the parental role within a reasonable time. “Certainly, it cannot serve a child’s best interest to unnecessarily prolong the lengthy dependency process when there is no chance of successful reunification because of circumstances that make it ‘fruitless to provide reunification services . . . .’ [Citation.]” (In re Joshua M. (1998) 66 Cal.App.4th 458, 470.)
Appellant argues that reunification is in the minor’s best interest because the minor is closely bonded to her. Appellant had the opportunity at the disposition hearing to establish that, although she failed to reunify with her other children, reunification services would be in the minor’s best interest because of a close bond or for other reasons. She did not do so. Indeed, she did not even appear at the hearing.
The only evidence of the minor’s bond to appellant was father’s testimony and portions of the social worker’s report. Father testified the minor was with mother during the first eight months of the minor’s life; that when he was granted custody in November 2006 the minor was healthy and very well developed; and that minor and mother were very close. Because mother had been with minor for so long, he “wanted them to keep that bond.” Conscious of the safety plan agreement that required him to bar mother from living in his residence, father denied she ever lived in his home but acknowledged she had spent the night on occasion; mother was good at putting minor to sleep. However, mother’s visits were not scheduled and “[s]he would just kind of show up.” Mother was an extremely unpredictable person and there would be periods when she “wouldn’t show up for two or three weeks at a time.” He indicated his contact with mother had largely ceased since the March 8 marijuana incident and affirmed his commitment to obeying all court orders restricting mother’s contact in the future. The juvenile court was not impressed and expressly stated it did not find father’s testimony to be credible; father was just saying whatever he thought the court wanted to hear.
As expressed by father, “Well, now I found out that Rosemary has been -- her reunification services on her other children have been terminated, that her children are being adopted away from her and that she did not actually finish her services. And now I realize that because of those reasons that the safety of [M.] should be in my care and my care alone.”
The social worker’s report recommends that mother be provided with reunification services. However, the report largely reflects father’s account of mother’s contact with the minor. It expresses doubt regarding father’s denial that mother had been living in the home and assumes that mother will continue to be involved with father, and through him with the minor, notwithstanding father’s insistence that he will cease all contact with her. While recognizing that mother previously had children removed from her custody, the report notes the circumstances of the prior removal were different from those involving the minor in the present case. The recommendation for reunification services appears to flow from the assumption that mother will continue to be involved in the minor’s life, given her relationship with father. In light of this assumption, and the assessment that minor “would be at high risk of abuse or neglect if returned to the parents’ care,” the report recommends services to both parents, including mother, who “needs to address issues of domestic violence, substance abuse and previous physical abuse of children.” The social worker’s report proceeds from the erroneous assumption that the court is powerless to enforce orders restricting mother’s contact with the child; reunification services are necessary to forestall harm that might otherwise result from mother’s involvement in the minor’s life. We cannot accept the notion that mother will resume the role of day-to-day caretaker of the child, despite orders giving father sole legal and physical custody and restricting mother’s access to the child. A reunification order cannot rest on this shaky premise.
The purpose of reunification services is to remedy the problems that place the child at risk. A necessary corollary of the legislative determination that offering reunification services to a parent fitting the criteria of section 361.5, subdivision (b) would be fruitless is that the parent should no longer be involved in the daily life of the child. Here, the court has made appropriate orders to assure that outcome; mother’s contact is severely restricted. Because father has been granted reunification services, termination of mother’s parental rights is not yet an issue and the court has the discretion to grant her visitation. (§ 361.5, subd. (f).) However, in light of her recent parental history, only if the court finds by clear and convincing evidence that reunification is in the minor’s best interest must it order reunification services. The evidence presented does not support, let alone compel, such a finding.
DISPOSITION
The judgment of disposition is affirmed.
We concur: MORRISON , J., CANTIL-SAKAUYE , J.