Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J42336
Bamattre-Manoukian, ACTING P.J.
J. D., mother of the child in this juvenile dependency proceeding, petitions for extraordinary relief from an order denying her reunification services pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(11) and (e)(1), and setting a hearing under section 366.26. (Cal. Rules of Court, rules 8.450-8.452.) She contends that the juvenile court abused its discretion in declaring the child to be a dependent child, in removing the child from her care, and in denying her services, because the court’s findings and orders are not supported by substantial evidence. She also contends that the Department of Social and Employment Services (the Department) acted in excess of its jurisdiction when it removed the child from her care without a warrant. As we find that substantial evidence supports the juvenile court’s findings and orders, and that mother waived her objection to the removal of the child without a warrant, we will deny the petition for extraordinary relief.
Further unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
At the time of the child’s birth in July 2007, mother was incarcerated in Valley State Prison for Women in Chowchilla and the child’s alleged father was also incarcerated. Mother’s expected date of release was August 17, 2008, and the alleged father’s expected date of release was in March 2008. Mother has nine older children, none of whom were in her care at the time of her incarceration. Three of them reside with their maternal grandfather and three of them were adopted in 1997 by friends of the family. The youngest two of the nine were adopted, one, R., in 2003 and the other, C., in 2006, after both of them tested positive for drugs at birth, they were declared dependent children of the Monterey County juvenile court, and mother’s parental rights were terminated. Mother’s criminal history includes convictions for endangering the welfare of a minor, commercial burglary, grand theft, and vehicle theft.
On July 24, 2007, the Department filed a petition as to the child under section 300, subdivisions (b) [failure to protect], (g) [no provision for support], and (j) [abuse of sibling]. Following a hearing on July 25, 2007, the juvenile court ordered the child detained. The child was placed in a licensed foster home.
The social worker’s report for the jurisdictional/dispositional hearing recommended that the child be found to be a dependent child of the court, that the child be removed from mother, that reunification services be denied both parents because the court terminated their parental rights regarding C. and because it was unlikely that the parents would be released from prison within the following six months (see § 361.5, subds. (b)(11) & (e)(1)), and that the matter be set for a section 366.26 hearing. Mother requested a contested hearing.
The contested jurisdictional/dispositional hearing was held on five days between December 12 and 21, 2007. The parties stipulated that mother used controlled substances before her incarceration and during the first trimester of her pregnancy, but stopped when she learned of the pregnancy. The parties further stipulated that upon evaluation by the McStart Clinic, the child exhibited symptoms consistent with in utero drug exposure but that those symptoms have improved.
The social worker in C.’s dependency case testified that C. was removed from mother because he tested positive for drugs at birth. At the time of C.’s jurisdictional/dispositional hearing, mother was in jail for vehicle theft. She was released in February 2004 to a drug rehabilitation program but she did not complete the program. She was denied reunification services for C. based on her prior history with R. and her failure to show significant progress. In July 2007, prior to the birth of the child at issue here, the social worker was contacted by a correctional counselor at mother’s prison. The counselor told the social worker that the child could be placed in a temporary foster home while mother was on a waiting list for the prison infant-mother program. The social worker responded that, due to mother’s history with her other children and with the Department, mother would not be a good candidate for the infant-mother program. The counselor told the social worker that, based her response, mother did not qualify for the program. The counselor also stated that mother had contacted family and that no family member was willing to take the child. Therefore, a social worker went to the hospital after the child was born and took the child into custody.
The correctional counselor testified that mother applied to the prison infant-mother program in June 2007. At the time mother applied, she would have been 17th on the statewide waiting list. Even though mother has a history of substance abuse, mother would have qualified for the infant-mother program if the Department had not challenged the placement based on mother’s history with her other children. In order to be eligible for the program, applicants have to meet the requirements outlined in Penal Code section 3417. One of those requirements is that the applicant has not been found to be an unfit parent in any court proceeding. The counselor determines whether an applicant meets that requirement by contacting child protective services and by reviewing information in the applicant’s central file. In this case, the social worker informed her that mother’s parental rights to at least two of her children had been terminated and the social worker recommended against placing mother into the program based on that history.
See Penal Code section 3417, subdivision (a)(3).
The child’s maternal grandmother testified that she has had weekly contact with mother while mother has been incarcerated. Mother asked her to contact the mother-infant program on mother’s behalf prior to the child’s birth, and she did so. However, mother took responsibility for the application process itself.
Tara McKinney, a licensed marriage and family therapist and a treatment coordinator at Beacon House, which is a residential drug and alcohol treatment program, testified as an expert that she met with mother at the Salinas jail, once in October 2007 and once in December 2007. Each meeting lasted two hours. She also reviewed some of mother’s court files. In her opinion, “with the right support in place for [mother], . . . she can be an effective parent.” Mother “is making reasonable efforts toward recovery.” She has been sober since November 30, 2006, and is focusing on her total well-being. She is attending narcotics anonymous meetings and is working on step four of the 12 steps. However, long-term residential substance abuse treatment “would be helpful” for mother once she is released from prison, as would aftercare.
The child’s social worker testified that she has spoken to mother on the telephone three times since she filed her jurisdictional/dispositional report. They discussed visitation and parenting classes and mother said that she has been participating in a substance abuse treatment program in prison. The social worker recommended that no services be provided mother regarding the child because mother’s parental rights to R. and C. were terminated, because she was serving a three-year prison sentence, and because she has not demonstrated that she has done anything to mitigate the circumstances that brought her before the court in previous cases. Mother started the 12-step treatment program about one month before the hearing, but she had not done anything between C.’s birth and the child’s birth to correct the problems leading to C.’s removal.
Mother testified that her parole date is August 17, 2008. She was incarcerated for the first time in 1994. She used drugs from the time she was 18 years old until November 29, 2006. She has a history of substance abuse and theft offenses and most of the thefts were committed in order to support her drug habit. On November 30, 2006, she learned that she was pregnant again and she has been sober since that time. She has never completed a drug treatment program. She and her three oldest children were sexually and physically abused by her husband for almost 13 years. She asked her father to take those children because she felt their lives were in danger. Other children were adopted by her best friend. Although the last time any of her children were in her care was in 1997, she has regular contact with most of them.
On December 21, 2007, the court found based on the preponderance of the evidence that the allegations in the section 300 petition were true and adjudged the child to be a dependent child of the court. The court found by clear and convincing evidence that the department made reasonable efforts to prevent or eliminate the need for removal of the child, but that the removal was appropriate because of mother’s incarceration with a parole date of August 2008 without a program which would allow her to take custody of the child and because of her lack of substantive progress in alleviating or mitigating the causes necessitating the prior removals. The court found that there would be a substantial danger to the child’s health or well being were the child to be returned to mother. The court found under section 361.5, subdivision (b)(11), that the child’s sibling and half-sibling were removed from mother, her parental rights were terminated, and she has not subsequently made a reasonable effort to treat the problems that led to the removal of those children. Mother continued her drug use and her criminal activity after her parental rights were terminated as to C., and she continued her criminal activity even though she knew that she was pregnant and even though she remained sober. The court further found under section 361.5, subdivision (e)(1), that the provision of services to mother would be detrimental to the child because of the “lack of likelihood of successful reunification,” and because “I don’t think there are any reasonable services that could be provided in this case based on other findings.” The court therefore set a section 366.26 hearing for April 11, 2008, but granted mother visitation to be arranged by the Department.
DISCUSSION
Mother contends that the juvenile court abused its discretion in declaring the child a dependent child of the court, in removing the child from her care, and in denying her reunification services, because there is insufficient evidence to support the court’s findings. She argues that she had made reasonable and ample efforts to provide for the care of the child, that the child would not have been in danger of harm if the child were placed with her under the prison parent-child program, and that she had made substantial progress in addressing her substance abuse issues. Mother further argues that the Department acted in excess of its jurisdiction by removing the child without a warrant because there were not exigent circumstances justifying their decision to do so.
In dependency cases, as in other areas of the law, the standard of review at the appellate level is whether substantial evidence supports the juvenile court’s findings. (In re S.O. (2002) 103 Cal.App.4th 453, 461; In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) The burden of proof is different at the jurisdictional and dispositional phases. The truth of the allegations of a petition must be found by a preponderance of the evidence. (In re S.O., supra, 103 Cal.App.4th at p. 461; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) At the dispositional phase, the court must find clear and convincing evidence justifying removal of the child. (In re Basilio T. (1992) 4 Cal.App.4th 155, 169; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The court must also find clear and convincing evidence to deny reunification services to a parent under section 361.5, subdivision (b)(11) or (e)(1). But even where the burden of proof is by clear and convincing evidence, the reviewing court’s duty is only to determine whether substantial evidence supports the juvenile court’s findings. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 599-600.)
“Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can be reasonably deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 600.) We must uphold the juvenile court’s findings “unless it can be said that no rational factfinder could reach the same conclusion.” (In re Heather B. (1992) 9 Cal.App.4th 535, 563.)
Mother first challenges the juvenile court’s finding that the child is a dependent child of the court under the provisions of section 300, subdivisions (b), (g), and/or (j). The court could properly find that the child is a dependent child if the record showed any of the following: (1) “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, . . . or by the inability of the parent . . . to provide regular care for the child due to the parent’s . . . substance abuse.” (§ 300, subd. (b).) (2) “The child has been left without any provision for support; . . . the child’s parent has been incarcerated . . . and cannot arrange for the care of the child . . . .” (§ 300, subd. (g).) (3) “The child’s sibling has been abused or neglected, as defined in subdivision . . . (b) . . . and there is a substantial risk that the child will be abused or neglected, as defined in [that] subdivision[].” (§ 300, subd. (j).)
We find that the record amply supports the juvenile court’s findings that the child comes within the provisions of section 300, subdivisions (g) and (j). The child was born while mother and the alleged father were incarcerated, mother did not meet the statutory requirements for the prison parent-child program due to her prior history with her children R. and C., and no family member was willing to take the child. Therefore, the court could reasonably find that, at the time of the hearing, mother was incarcerated and unable to arrange for the care of the child. (§ 300, subd. (g); see In re Aaron S. (1991) 228 Cal.App.3d 202, 207-209.) In addition, mother has seven children older than R. and C.; none of these children have been in mother’s care since 1997; R. and C. were adopted after they were made dependent children of the court due to mother’s substance abuse and criminal conduct and mother’s parental rights were terminated; mother continued her drug use and criminal conduct after her parental rights were terminated as to R. and C.; and mother continued her criminal conduct even after learning that she was pregnant with this child. Therefore, the court could reasonably find that the child’s sibling had been abused or neglected and that there is a substantial risk that the child would be abused or neglected. (§ 300, subd. (j).) We will not disturb the juvenile court’s order declaring the child a dependent child.
As we have upheld the court’s findings under section 300, subdivisions (g) and (j), we need not address the court’s findings under section 300, subdivision (b).
Mother also challenges the juvenile court’s order removing the child from her care. She argues that, in order to sustain an order of removal, the Department must present clear and convincing evidence that there is a substantial risk that the child would be exposed to physical harm or illness, and the Department failed to do so here.
“A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive . . .: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody. . . . [¶] . . . [¶] (5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated . . . cannot arrange for the care of the minor . . . .” (§ 361, subd. (c).)
In this case, the record amply supports the trial court’s removal order under section 361, subdivisions (c)(1) and (5). Mother and father were both incarcerated at the time of the jurisdictional/dispositional hearing, mother did not meet the requirements for admission into the prison parent-child program, and no family member was willing to take the child. Mother did not meet the requirements for the prison parent-child program because her parental rights had been terminated to at least two of her children by the juvenile court. Thus, mother was incarcerated, could not arrange for the care of the child, the child was left without any provision for her support, and there was no reasonable means by which the child’s physical health could be protected without removing the child from mother’s care. (§ 361, subds. (c)(1) & (5).)
Mother challenges the juvenile court’s order denying her reunification services, arguing that the record shows that she had made substantial progress in addressing her substance abuse issues. She has been drug free since November 30, 2006, when she learned that she was pregnant, and she is currently working on an effective substance abuse treatment program.
“[W]henever a child is removed from a parent’s . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother . . . . Child welfare services, when provided, shall be provided as follows: [¶] . . . [¶] (2) For a child who, on the date of initial removal from the physical custody of his or her parent . . . was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care. . . .” (§ 361.5, subd. (a)(2).) “Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent 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 the parent.” (§ 361.5, subd. (b)(11).) “If the parent . . . is incarcerated . . . 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 crime . . ., [and] the degree of detriment to the child if services are not offered . . . . Reunification services are subject to the applicable time limitations imposed in subdivision (a). . . .” (§ 361.5, subd. (e)(1).)
In this case, the child was removed from mother’s custody at the time of her birth in July 2007, while mother was incarcerated. Mother’s expected parole date was August 2008, well past the six-month limitation for services provided in section 361.5, subdivision (a). In addition, substantial evidence supports the juvenile court’s finding that mother comes within the provisions of both section 361.5, subdivisions (b)(11) and (e)(1). Mother admittedly used drugs for approximately 19 years. Her parental rights to the child’s half sibling and sibling were terminated due to her drug abuse and criminal history, yet mother continued to use drugs until November 29, 2006, the day before she found out she was pregnant with the child. Although she has remained sober since November 30, 2006, she continued her criminal conduct and has been incarcerated since January 2007. Accordingly, we find that, although the “reasonable effort to treat” standard found in section 361.5, subdivision (b)(11) is not synonymous with “cure” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464), the record supports the juvenile court’s determination in this case that mother has failed to adequately address her problems. (§ 361.5, subd. (b)(11).)
The record also supports the juvenile court’s determination that providing reunification services would be detrimental to the child. Given the child’s age, services would be limited to six months (§ 361.5, subd. (a)), yet at the time the child was placed in foster care mother’s expected parole date was over one year later. Although mother’s expert testified that, in her opinion, mother could effectively parent with appropriate services, the expert also testified that mother should have residential drug abuse treatment and aftercare upon release from incarceration. In addition, mother has not had any of her children in her custody since 1997 and she had not been successful in reunifying with the child’s half sibling even with the provision of services. On this record, we must uphold the juvenile court’s order denying mother reunification services.
Mother’s last contention is that the Department acted in excess of its jurisdiction when it removed the child from her care without a warrant. She argues that there were no exigent circumstances justifying its decision to do so as the child was born without any indications of drug use by her, neither she nor the child were tested for drugs at the time of the birth, and the Department did not investigate what programs she was enrolled in while incarcerated. We find that mother has waived the issue by failing to raise it below.
“Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts . . . .” (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) “Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338; see also, In re Anthony P. (1995) 39 Cal.App.4th 635, 641.) “[A]ny other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In re Lorenzo C., at p. 1339.) Furthermore, even if we were to find the issue not waived, we would find any error harmless as the juvenile court properly ordered the child removed from mother’s care following the jurisdictional/dispositional hearing.
DISPOSITION
The petition for extraordinary relief is denied.
WE CONCUR: MIHARA, J., MCADAMS, J.